Employer Law Report : Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

We have been receiving questions lately from clients and friends regarding the continued validity of the Department of Labor's FMLA forms that we posted here. The Department has requested approval for the renewal of these forms from the federal Office of Management and Budget. In the meantime, employers may continue to use these forms. In order to comply with the Genetic Information NonDiscrimination Act ("GINA"), however, employers should also send a note to the healthcare provider that includes the following safe harbor language recommended by the EEOC:

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services."

Using this language will ensure that if the healthcare provider actually provides genetic information regarding the employee or family member in completing the FMLA forms, the employer can establish that its receipt of the genetic information was inadvertent.

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The United States Department of Transportation ("Department") has issued an Hours-of-Service ("HOS") Final Rule, that is meant to reduce the excessively long work hours of Commercial Motor Vehicle ("CMV") drivers. The Department wants to ensure drivers have enough time to obtain adequate rest on a daily and weekly basis, because excessive driving hours increase the risk of fatigue-related crashes and long-term health problems for drivers.

The objective of the final rule, which will go into effect on February 27, 2012, is also to reduce the acute and chronic fatigue of drivers.

The Federal Motor Carrier Safety Administration ("FMCSA") made several changes to the HOS rule. The three primary changes include:

1. Restarts are now limited to one per week;
2. restarts must include 2-night periods between 1:00-5:00 a.m.; and
3. drivers must take a 30-or-more minute break after 8 consecutive hours of driving.

The "34-hour restart" rule limits the number of restarts a driver is permitted to take in a one-week time period or every 7 days (168 hours). This new limitation prevents the excessive buildup of on-duty hours, and will reduce a driver's maximum allowable hours of work per week from 82 hours to 70 hours, a 15% reduction.

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The Ohio Court of Appeals for the Ninth Appellate District recently issued a decision that has potential to create more questions than answers when it comes to workers' compensation retaliation and disability discrimination law in Ohio.

While employed at Aldi, Maria Scalia injured her elbow. Her claim for workers' compensation was granted, and she was off work receiving workers' compensation benefits while her restrictions impaired her ability to perform her job. A year later, Aldi ordered an independent medical examination which found Ms. Scalia had reached maximum medical improvement, which resulted in the termination of Ms. Scalia's workers' compensation benefits. That medical examination also found that she could work without restrictions, even though Ms. Scalia's personal physician still had some restrictions in place. Shortly after her benefits were terminated, Aldi terminated her employment under its "no fault" attendance policy that required termination of any employee who had performed no work in the past 12 months.

Ms. Scalia claimed retaliation for participation in the workers' compensation system, wrongful discharge in violation of public policy, and violation of Ohio disability discrimination law because Aldi perceived her as having a disability and fired her for that reason.

What's the good news for Ohio employers?
The court found that Aldi's policy of terminating employees who had performed no work in the past 12 months to be "facially neutral" and that Scalia's termination was not "retaliation per se" for her participation in the Ohio workers' compensation system.

What's the bad news?
The court, in remanding Scalia's case back to the trial court, did not foreclose that Scalia could otherwise support a retaliation claim, saying that their conclusion of no retaliation per se "should not be interpreted to say that an employee can never allege a statutory retaliation claim based on action taken under an attendance policy, or that an employer's use of a facially neutral attendance policy can never be a pretext for retaliation."

Considering this, employers with these types of "no-fault" attendance policies should be mindful of the risks related to retaliation where all or even some of the days missed under the policy are due to protected types of activity or leave, including workers' compensation, FMLA, or leave provided as a reasonable accommodation under the ADA—particularly if application of the policy frequently involves consideration of absences covered by these types of statutes. Though courts in Ohio won't automatically find that application of such policies is retaliatory, employees who can show that protected activity (such as participation in the workers' compensation system) factored into the employer's decision are likely to succeed in getting their cases to trial. From the perspective of the workers' compensation retaliation claim under Ohio law, employers still should be protected so long as they apply the no fault attendance policy evenhandedly and consistently regardless of whether the employee was absent due to a workers' compensation injury.

As an aside, the Scalia decision also addresses technical distinctions between the definition of "disability" under Ohio discrimination law and the definition under the federal ADAAA. Rather than cause heads to explode dissecting the court's nuanced opinion on this issue, it is probably better to recognize that the ADAAA definition has become quite expansive and employers therefore will be better served in the vast majority of situations by assuming the employee with a physical or mental impairment has a "disability" and by addressing the reasonable accommodation question first.

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Even though the FMLA has been around since 1993, the Sixth Circuit did not get around to designating the appropriate framework for reviewing FMLA interference claims until January 17, 2012.

In Donald v. Sybra, Inc., Case No. 10-2153 (6th Cir. January 17, 2012) the Sixth Circuit held that the McDonnell Douglas burden-shifting framework applies to FMLA interference cases.

The case concerned an Arby’s franchise that terminated Gwendolyn Donald’s employment after it determined that she had been improperly discounting drive-in window orders and pocketing the difference. Among other allegations, she claimed that her employer terminated her employment in retaliation for taking FMLA leave and to interfere with her FMLA rights. The main issue underlying Donald's claims was timing because she was terminated the day she returned from a short FMLA absence.

The district court dismissed Donald's claims after concluding that the timing of her termination the day she returned from her FMLA leave was insufficient to overcome Sybra's claim that she was fired because of her suspicious conduct.

In affirming the district court, the Sixth Circuit began its analysis by laying out the elements for an FMLA interference case:

1. the plaintiff must be an "eligible employee" under the FMLA;
2. the defendant be an "employer" under the FMLA;
3. the plaintiff must be "entitled" for leave under the FMLA;
4. the plaintiff must give her employer notice of the intent to take leave; and
5. the employer must deny the employee FMLA benefits.

The Court then went on to conclude that its decision Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008) (holding that an employer may defend against an FMLA interference case by showing that it had a legitimate reason unrelated to the exercise of FMLA rights for terminating an employee and that the employee can then rebut this reason by showing that it has no basis in fact and did not actually motivate the termination decision), "effectively adopted the McDonnell Douglas tripartite test without saying as much."

Oddly enough, even though the Court took the time to outline all the elements of an FMLA interference claim under McDonnell Douglas, it opted not to analyze them. Instead, it skipped on to Donald's pretext burden and ultimately concluded that the timing of Sybra's decision to terminate Donald's employer was not enough to establish that Sybra's decision was improper.

This case is useful to employers because it puts finality on the issue of the proper standard of proof in FMLA interference cases; and, in doing so, ensures that plaintiffs have the burden to prove pretext.
 

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On Friday, January 13, 2012, a number of business groups, including the National Federation of Independent Business, National Right to Work Foundation, Coalition for a Democratic Workplace, lodged the first legal challenge seeking to block President Barack Obama’s January 4, 2012 recess appointments to the National Labor Relations Board (“NLRB”).

Procedurally, the groups bootstrapped their challenge to a lawsuit pending in the U.S. District Court for the District of Columbia challenging the NLRB’s highly controversial “Notice Posting Rule” that would require businesses to post notices and inform employees right to bargain collectively, distribute union literature, and engage in other union activities without reprisal under the National Labor Relations Act (“NLRA”), which is set become effective April 30, 2012.

As we more fully discussed here on January 6th, the NRLB lost its quorum when former Member Craig Becker’s term expired on January 3, 2012. President Obama then appointed Terence Flynn, Sharon Block, and Richard Griffith to the NLRB. The business groups argue in their motion and accompanying legal memorandum that these appointments are “unconstitutional, null and void,” because they were done while the Senate was in session, leaving no “recess” during which time President Obama could make appointments “without seeking or obtaining the advice and consent of the Senate.” As a result, the NLRB, with only two members, lacks the necessary quorum and ultimately “authority to implement or enforce” the Notice Posting Rule pursuant to New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).

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The Federal Motor Carrier Safety Administration (“FMCSA”) and the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) hope there now are approximately four million fewer distracted drivers on the road. On November 23, 2011, Transportation Secretary Ray LaHood announced a final rule which specifically prohibits all interstate commercial truck and bus drivers from using hand-held cell phones while operating their vehicles.

The FMCSA and PHMSA created this joint rule in an effort to continue to curb distracted driving. "This rule represents a giant leap for safety. It is just too dangerous for drivers to use a hand-held cell phone while operating a commercial vehicle. Drivers must keep their eyes on the road, hands on the wheel and head in the game when operating on our roads. Lives are at stake," said FMCSA Administrator Anne S. Ferro.

FMCSA research shows that commercial drivers reaching for a cell phone are three times more likely to be involved in a crash or other safety-critical event, and dialing a hand-held cell phone makes a crash six times more likely.

Not only will the drivers be penalized for violations, but commercial truck and bus companies will also face a hefty fine if they allow drivers to use hand-held cell phones. Drivers who violate this rule will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Commercial bus and truck companies could incur a maximum penalty of $11,000.

This rule is not the first of its kind. In September of 2010, FMCSA issued a regulation banning text messaging while operating a commercial truck or bus, and in February 2011, the PHMSA issued a companion regulation banning intrastate hazardous material drivers from texting.

Companies should update their company policies and handbooks to reflect these new rules. Failure to adopt and enforce cell phone policies could provide the basis for potential civil liability to operators beyond the civil penalties called for in the rule.

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Employers in the healthcare industry may find that they no longer have affirmative action obligations as of 2012 as a result of the National Defense Authorization Act, signed into law on December 31, 2011.

TRICARE is the Department of Defense healthcare program for active duty and retired military personnel and their families. Prior to the National Defense Authorization Act, the Office of Federal Contract Compliance Programs (OFCCP) took the position that hospitals, pharmacies, and other healthcare providers providing care under TRICARE contracts had affirmative action obligations as “subcontractors” pursuant to Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act. The National Defense Authorization Act expressly excludes hospitals, pharmacies, and other healthcare providers providing healthcare services to TRICARE participants from OFCCP jurisdiction, effectively overruling a 2010 Department of Labor decision holding that a hospital providing services under TRICARE was a federal subcontractor and related OFCCP guidance.

However, healthcare providers should not immediately abandon their federal affirmative action obligations without any other review of their contracts. It is possible that other contracts could subject them to affirmative action obligations (and OFCCP jurisdiction) as federal contractors or subcontractors, including those regarding contracts with the Veterans Administration, healthcare benefits for other federal workers, and receipt of Medicare Part C or D funds, which were not addressed by this legislation and which OFCCP has already asserted create affirmative action obligations.
 

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The last six weeks or so have brought us a flood of NLRB General Counsel Advice Memoranda addressing whether an employee's social media activity is protected concerted activity for which he or she may not be disciplined. In his excellent Ohio Employers Law Blog, John Hyman discusses four of them and suggests that the NLRB may be settling in on, dare I say, a more reasoned position when it comes to these kinds of cases. In three of those cases, the General Counsel's Office recommended dismissal because the employee at issue was merely venting an individual gripe and was not seeking to incite group action. In the fourth, the General Counsel's office concluded that the employee was rightfully terminated after refusing to delete a comment accusing the employer of fraudulent accounting practices after it was demonstrated that her allegations were false.

On January 3rd, the General Counsel's Office issued two new Advice Memoranda relating to social media issues. In Miami Jewish Health Systems, the charging party, a nurse who had been transferred from the ICU to another position, wrote an email, though Facebook, to a former co-worker who still worked at the hospital. In her email, she asked if the manager was "still there making life miserable for u guys" and if he was "still the wimp he is." In addition, he asked, "How long u gonna put up wit that?" The former co-worker apparently didn't share the charging party's views on the manager and reported the charging party. The General Counsel's Office concluded that the charge should be dismissed relying again on the concept that the employee was simply airing a personal gripe and was not an effort to initiate group action.

The second Advice Memorandum, Thomson Reuters provides an opportunity to update to an earlier post of ours here where we discussed a news article on this dispute. The Advice Memorandum discusses several issues arising out of what appears to have been some fairly contentious collective bargaining. During this time period, the employer invited employees to visit its new Twitter feed and encouraged them to "join the conversation on making Reuters the best place to work." One of the employees, a journalist, wrote on her own personal Twitter feed – which did not reference her affiliation with the employer – that "one way to make this the best place to work is to deal honestly with Guild members." The next day, the journalist's bureau chief called to "remind" her that the company's Twitter policy prohibited tweeting about anything that would damage the employer's reputation. Although no formal disciplinary action appears to have been taken against her, the journalist noted that from that point forward she refrained from tweeting about the employer's Twitter feed. Nevertheless, the Board concluded that the employer's policy and its application to this journalist violated Section 8(a)(1) of the NLRA because it would reasonably tend to chill the employees in the exercise of their Section 7 right to engage in concerted activity. The General Counsel concluded – consistent with the Board's approach to date – that broad prohibitions against damaging the employer's reputation, embarrassing the employer, and the like, without providing "limitations or examples" renders the policy overbroad and unlawful. In addition, the application of the policy to this particular tweet demonstrated to the General Counsel's Office the overbroad nature of the policy. Finally, the Advice Memorandum goes on to conclude that the specific application of the policy to this particular tweet also violated Section 8(a)(1), noting that the tweet about "dealing honestly" with the union was not so disloyal as to lose protection.

Perhaps I am starting to become numb to the NLRB's treatment of these issues, but there is nothing monumental about any of the General Counsel's treatment of the social media issues arising out of any of these cases. Though all of us on the employer side of the equation certainly wish that Board would be more sensitive to their concerns about employee social media use, we at least may be starting to see the next best alternative, consistency in approach.
 

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The recent Utah district court decision in Kuhn v. Comfort Hospice Care, LLC highlights the importance of evaluating relationships with professional employer organizations ("PEO's"), as these relationships may cause an unknowing employer to be held liable under the FMLA.

Comfort Hospice Care, LLC ("Comfort") provides medical care to terminally ill patients in Las Vegas, Nevada and Layton, Utah.

Comfort had a contract with a PEO, Innovative Staffing, Inc. ("Innovative") for human resource assistance, and Comfort employees were listed as employees of Innovative for compensation purposes. Innovative employees had no supervisory control over Comfort employees, they just performed administrative functions.

At the time Regina Kuhn was laid off, Comfort had a total of 36 employees. Kuhn filed a claim against Comfort and Comfort's Chief Executive, alleging violations of the Family and Medical Leave Act ("FMLA"). Comfort responded by filing a motion for summary judgment arguing that Comfort was not an "employer" as defined by the FMLA. The FMLA defines an employer as "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." In addition, the FMLA definition of an eligible employee excludes, "any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50."

Throughout 2010 and 2011, Comfort never had as many as 50 employees in any workweek. Therefore, the Court granted Comfort's motion on the ground that it is not a covered employer under FMLA, and Kuhn was not an eligible employee.

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Effective January 10, 2012, the BWC has implemented a new program providing grants up to $15,000 over 4 years to state-fund employers to create workplace wellness programs for the prevention of occupational injuries and illnesses and to address health risk factors to reduce the number and severity of workplace injuries and illnesses.

State fund employers without an existing wellness program who are current on all premiums and other costs are eligible to apply for a grant. In addition, employers shall agree not to eliminate any jobs or reduce employment due to the implementation of the workplace wellness program. The BWC is awarding grants on a first come, first serve basis, based on the availability of funds, and it is expected that over 600 businesses will apply for the grants.

Once the BWC accepts an employer into the program, the employer will be required to submit biannual and annual reporting to the BWC for 4 years following the implementation of the wellness program and enter into a written agreement with the BWC. Further, the employer is required to implement the wellness program within 3 months of receiving the grant funds. Employers will be eligible to renew their participation in the program on a yearly basis. An employer will be disqualified from the program if the BWC determines that the employer knowingly misrepresented information on the initial grant application, violated any laws pertaining to confidential personal health information and/or coerced employees to participate in the workplace wellness program.

The BWC will gather data from the participating employers' reporting to determine the effectiveness of the program in reducing claim costs.

Businesses interested in applying for the wellness program grants should contact the BWC for applications.
 

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A manager's involvement in the disciplinary process isn't necessarily enough to make them a "supervisor" under the National Labor Relations Act, according to a recent NLRB decision.

In DirecTV, 357 N.L.R.B. No. 149 (Dec. 22, 2011)  the Board, in a 2-1 decision, held that DirecTV's "field supervisors" weren't actually supervisors as defined in the National Labor Relations Act. Section 2(11) of the NLRA defines supervisors as individuals who have certain authority with respect to other employees, including the ability to discipline or "effectively recommend" discipline for other employees. The issue arose following a representation election won by the union. DirecTV argued that the field supervisors were "supervisors" under the NLRA and that the field supervisors' pro-union activities during the pre-election period interfered with the employees' free choice in the election. DirecTV asked the NLRB to invalidate the election.

In addition to leading team meetings, answering their team members' technical questions, and examining their work, field supervisors had authority to issue verbal warnings to their team members and, using a separate process, to initiate other levels of discipline, including termination. This process involved a form that field supervisors completed with the relevant facts and, in the form, the field supervisor identified the discipline that he thought appropriate. Then the field supervisor's manager, the site manager, and human resources would review the form, and in some cases review the performance and disciplinary history of the employee to be disciplined and consult with the field supervisor before making a final decision. In the majority of cases, the field supervisor's recommended action would be taken.

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Back in May, we hailed the Supreme Court's decision in AT&T Mobility v. Concepcion as a potentially huge step forward for employers that seek to require individual arbitration of employment claims. Last week, however, the NLRB again proved to be the wet blanket at the party. In D.R. Horton, the Board addressed an employer agreement that required all employees to waive their right to a judicial forum and to agree to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees. The Board held that such an agreement violated the National Labor Relations Act because it unlawfully barred employees from engaging in “concerted activity” which includes the right to file a class or collective action regarding wages, hours, or working conditions, whether in court or before an arbitrator because such an action seeks to initiate or induce group action protected by [the NLRA]." The Board emphasized that requiring employees to individually arbitrate their grievances is lawful so long as the requirement does not foreclose collective action judicially. 

Everyone expects that this decision will be appealed. Not only is the decision in apparent conflict with the AT&T Mobility decision, but the decision was also rendered by only two Board members potentially in violation of the Supreme Court's decision in New Process Steel v. NLRB. Also, it is interesting to note that the EEOC submitted an amicus brief urging the NLRB to decide in the manner that it did. As a result, we can expect continued hostility from that agency as well in response to collective arbitration requirements. 

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Many federal contractors and subcontractors use a calendar year for their written affirmative action plans (AAP's). That means their AAP's are typically being reviewed and revised shortly after January 1. Working with companies over the years to help them develop and revise AAP's and advising companies during OFCCP audits, we have come to appreciate the challenges for contractors in the process. Here are a few tips to keep in mind as you revise your AAP's:

1. It's Not Just "Boilerplate"

Too often, contractors revising AAP's simply "run the numbers" for the required statistical analysis and then put the plan back on the shelf. The narrative portions of the plan, sometimes referred to as "boilerplate," which include the contractor's good faith efforts to achieve goals and action plans for the coming year, are often given little or no attention. In fact, in an audit by the OFCCP, the agency is often more focused on these narrative portions of the plan than on the statistical analysis. Time should be taken to carefully review the narrative portions, especially the action plans. The narrative should reflect what has worked and what has not worked in good faith affirmative action efforts in the previous year. Where you have had success, make sure to mention that. Where efforts did not work as well as anticipated, draft the narrative to show the good faith efforts that were made. Most important, draft action plans that are specific, rather than general commitments.

2. Don't Forget the 12-Month Review

Contractors often put their primary focus on the required availability analysis which looks at the workforce as it exists at the beginning of the plan year. Don't forget that you are also required to analyze the personnel activity (hires, promotions, terminations, and compensation) for the 12-month period preceding the beginning of the plan year. The written AAP should include a brief analysis of that activity, making sure to reflect positive results and where results have not been positive, to reflect good faith efforts that have been made.

3. Don't Forget The AAP's for Protected Veterans and Disabled Persons

Too often, the AAP's for disabled persons and protected veterans are given very little attention in the annual review because they do not require any specific statistical analysis. However, note that the OFCCP has now proposed a rule that would require a statistical goal for disabled persons. Even though current regulations do not require a statistical analysis for veterans or disabled persons, the OFCCP has clearly shifted greater emphasis in compliance reviews to the AAP's covering those groups. Each annual revision of the AAP should include a review and revision of the AAP's for covered veterans and disabled persons. Include a discussion of any particular successes during the previous years and, to the extent possible, be specific in describing affirmative efforts to be taken in the following year.

4. Develop an AAP Calendar

When revising the narrative portions of your AAP's, be sure to calendar each specific commitment made, such as periodic reports to management, contacts to recruitment sources, etc. It is too often the case that the AAP is looked at only annually when it is revised, and the various commitments in the AAP for steps taken during the year are overlooked.

A carefully-prepared AAP can go a long way in an audit by the OFCCP. Making sure that the required statistical analysis is defensible and realistic is of key importance. But, the narrative portions of the AAP should be drafted carefully to reflect a genuine and realistic commitment to good faith efforts over the course of the following year. Doing that will reflect positively on the Company if the AAP is audited by the OFCCP. By contrast, if the OFCCP has the impression that the AAP is looked at only once a year when it is revised and the action plans and policies are not taken seriously, it will put your company in a poor light during an audit.
 

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