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The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "FIRE ME ... Make my day ..."

The Charging Party was employed by Tasker, which was a medical office with approximately nineteen employees. The Charging Employee along with a few current and former employees engaged in a private Facebook group message to organize a social event. The first hour of the exchange was non-eventful and focused on planning the social event. Things soon got interesting when a former employee made a joke. In response, the Charging Party mentioned that a former employee who had previously left was coming back to work and speculated that Tasker may make the returning employee a supervisor. The Charging Party then attacked her current supervisor claiming he "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." But Charging Party was not done there and added, "[Tasker is] full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK ... FIRE ME ... MAKE my day ..." Other than Charging Party, no other current employees took part in this portion of the conversation, but one did pipe up after Charging Party complained following a two hour lull that she had been deserted and there was "[n]o one to make [her]laugh." In response, the current employee said she made the Charging Party laugh and added "it's getting bad there [at Tasker], it's just annoying as hell. It's always some dumb shit going on." The Charging Party did not have anything substantive to add to this and no other current employee added anything else work-related.

As you might have guessed, one of the current employees included on the group message who did not say anything during the exchange showed the Facebook posts to the employer. The employer took Charging Party up on her request to be fired stating that it was "obvious" that she was not longer interested in working there, and indeed made her day.

The employee filed a charge alleging that her termination violated the National Labor Relations Act ("NLRA") because her Facebook comments constituted protected concerted activity. In an Advice Memorandum, the NLRB Office of the General Counsel concluded that the employee's Facebook message did not constitute protected concerted activity because they did not involve shared employee concerns over terms and conditions of employment. To understand this conclusion, it is important to understand the NLRB's test for concerted activity, which is whether the activity is engaged "in with or on the authority of other employees, and not solely by and on behalf of the employee himself" and includes circumstances where employees seek to "initiate or to induce or to prepare for group action," and where individual employees bring "truly group complaints" to the employer's attention. However, comments made "solely by and on behalf of the employee himself are not concerted" are not protected and neither is "mere griping" by an employee who does not look forward to any action.

Applying this to the facts at hand, the Advice Memorandum found that the employee's comments merely expressed an "individual gripe rather than any shared concerns about working conditions." Specifically, the employee's comments telling a supervisor to "back the freak off"; stated her employer was "full of shit"; and that her employer should "FIRE ME ... Make my day" reflected individual "griping" and personal contempt rather than shared employee concerns over terms and conditions of employment. In addition, there was no evidence that any of the Charging Party's coworkers interpreted the postings as shared concerns over their working conditions, not even the posting "it's getting bad there[,] it's just annoying as hell" because it was ambiguous and bore no relation to the Charging Party's earlier comments.

Takeaways: This one is a win for employers, but employers are still reminded to be cautious when terminating an employee for the things they say on social media. This case demonstrates that even when an employee's comments on social media are so outrageous that they literally ask the employer to fire the employee, the employer must still do some analysis to determine whether the comments may constitute concerted protected activity under the NLRA. So employers keep the NLRB's standard for concerted protected activity in mind before terminating an employer for social media posts and ask yourself: (1) What was said? (2) Who said it? (3) Who commented on it or chimed in on the conversation? (4) Could it be considered shared employee concerns about terms and conditions of employment?
 

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First it was Wisconsin. Then Indiana. Then Michigan of all places. Right-to-work legislation is being considered, and in some cases passed, by legislatures throughout the Rust Belt. Given that trend, and the economic benefits to businesses and the state that follow with right-to-work, it was only a matter of time before regional pressures led the Ohio legislature to consider the idea notwithstanding the previously failed attempts on Senate Bill 5.

Just recently, two Ohio House of Representatives members, Kristina Roegner (R-Hudson) and Ron Maag (R-Lebanon), announced they are sponsoring bills that would enact right-to-work for both the public and private sectors in Ohio. There are two proposed avenues: by statute or by a constitutional amendment engraining right-to-work in the Ohio Constitution. The legislation encompasses a basic right-to-work provision and only prevents an employee from being forced to join a union or pay dues to a union as a condition of employment.

However, just the other day, all of this became a moot point—for now. Ohio Senate President Keith Faber announced that right-to-work legislation will not be taken up by the Ohio Senate. This effectively makes right-to-work “dead in the water.” It also has been reported that Governor John Kasich was not particularly interested in the idea. As of April 8, 2013, the New York Times’ expert pollster and election predictor Nate Silver of the FiveThirtyEight blog, places Governor Kasich in “better shape” for his reelection in 2014. According to Mr. Silver, surveys are showing Governor Kasich currently has a 50% job approval rating. This compares to a job approval rating in the 30s for Kasich in 2011 when Senate Bill 5 was in the forefront. For Kasich, he has nothing to gain (and everything to lose) by forcing a controversial issue and reigniting the firestorm.

But the question may be one of timing. Governor Kasich is up for reelection in 2014. Republicans are also trying to hold the U.S. House of Representatives and make gains in the U.S. Senate. Motivating unions to campaign with their union dues and get-out-the-vote efforts in 2014 by pushing right-to-work does not seem like the wisest course of action for Republicans in Ohio. It would heavily motivate the Democratic Party and Democratic voters. This was explicitly acknowledged by Ohio Senate President Faber, when he said “[t]he only purpose this discussion serves right now is to generate a bunch of breathless fundraising appeals from the Ohio Democratic Party.”

So, for now, right-to-work is on the minds of Ohio’s Republicans, but the expectation is no legislation will be forthcoming. Expect the issue to die out in time for the 2014 election, but then it may rear its head once again in 2015. If right-to-work can be enacted in Michigan, it can certainly be enacted in Ohio.
 

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Federal contractors and subcontractors should take notice that, in the last couple of years, the Office of Federal Contract Compliance Programs (OFCCP) has been pursuing a much more aggressive enforcement and regulatory agenda. Final revised rules on disability and veterans affirmative action are expected soon. Later in 2013, proposed new rules for construction contractors and gender discrimination are expected. We will post to this blog when these are available.

As we are awaiting these new regulatory frameworks, it should be noted that OFCCP has also been conducting more in depth and more aggressive compliance evaluations of federal contractors and subcontractors. Of note, OFCCP recently abandoned its prior framework for analyzing pay discrimination in favor of a much more flexible approach that permits it greater latitude in analyzing potential discrimination and in requesting documentation and data. [INSERT (See our recent post: OFCCP Signals Formal Change of Course on Pay Discrimination.)

Also of note, OFCCP’s planned compliance evaluations for fiscal year 2013 (October 1, 2012 – September 30, 2013) represent a significant 12% increase from fiscal year 2012. Consider this data on the number of compliance evaluations conducted or planned:

Also, OFCCP is boasting that the compliance evaluations it conducts today are much more in depth. From 2010 to 2011, OFCCP reported a 36.7% increase in audits closed with a financial remedy. For example, OFCCP recently released a press release regarding a $439,538 back pay settlement for nearly 2,000 female job applicants involving a subsidiary of Hormel Food Corp. (Clougherty Packing Co. – “Dodger Dog” hot dogs). The Company must also offer positions to 700 affected women applicants as positions become available.

With most contractors finalizing their calendar year 2013 Affirmative Action Plans and executing recruiting and outreach efforts for 2013 at this time, it becomes more important than ever to pay critical attention to affirmative action given the OFCCP’s recent activity.
 

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Our colleagues over at Technology Law Source advise today of an interesting case in which a New Jersey federal court held that a plaintiff in a personal injury lawsuit failed to preserve relevant evidence when he deactivated his Facebook account and failed to reactivate it within fourteen (14) days – which according to Facebook’s terms and conditions renders the account’s contents irretrievable. As a result, the court found that the defendant was entitled to a jury instruction that permits the jury to infer that “the fact that a document was not produced or destroyed is ‘evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.’” In short, the court concluded that the plaintiff’s permanent deactivation of his Facebook account prejudiced the defendant’s ability to refute his claim that he had sustained permanently disabling injuries. Although this is not an employment case, it is easy to see where this issue is likely to come up in workers’ compensation, employment discrimination and other employment law contexts. Because this type of jury instruction can be devastating to a plaintiff’s case, employer’s counsel should be sure to ask for this type of instruction when plaintiffs have deactivated their relevant social media accounts. You can find the full Technology Law Source post and a copy of the court’s decision in Gatto v. United Air Lines, Inc. here.
 

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Naked pictures? Drunken celebrations? Sexist comments? A click of a button and all evidence of your "Weekend at Bernie's" can disappear. Job seekers know to scrub clean their Facebook pages before they connect with potential employers, to remove all trace of their off-color on-line life. But here in Ohio you can't delete your way out of the mess you created through social media. Employers can legally ask employees and recruits to surrender their social media passwords, and thanks to Facebook's newly expanded access program, the result is a stunningly deep portal into private messages, deleted posts, photographs and everything you ever posted on your Facebook wall.

Where does an employer's right to screen applicants and monitor employee behavior end and personal privacy begin? It's a murky line drawn so far by only six states — and Ohio isn't one of them. After failing to win support for Senate Bill 351 in 2012, Ohio Senator Charleta Tavares will this month reintroduce her proposal to make it illegal for an employer to require an employee or potential employee to surrender their social media passwords. Tavares argues that employers should not be able to access personal thoughts and messages that employees never intended to be broadly distributed.

Tavares' legislation would not restrict employers from inspecting the social media that is readily available to an applicant's network of friends, and can legitimately help employers determine if a prospective employee would be a good organizational fit. Employers, for example, could still inspect your Facebook page, but they would do so without the personal password that gives them expanded access to your history and hidden files.

As we have noted in the past, whether such legislation really is necessary, however, is subject to debate. Few employers need — think law enforcement, finance and child care industries that require more in-depth screening — or want to delve deeply into their applicants’ or employees' personal lives, but employers and recruiters rightfully argue that social media is a valid screening method that can reveal both negatives and positives about potential hires. A recruit who is not on LinkedIn and has no professional social media presence can appear to be not relevant. Your social media profile can paint a flattering picture of your volunteer efforts, your professional affiliations and your networking capabilities. Conversely it can expose your poor grammar and your lack of judgment. What exactly were you thinking when you posted that picture of yourself, half-naked, with a beer bottle in one hand, a joint in the other, wearing a ball-cap that says "Female Body Inspector?" We've all seen such pictures.

Beyond the hiring process, however, employers should know that a wealth of information is available to them if they obtain that magic password for other purposes, particularly during discovery in matters involving disputes with current or former employees. Employers can use social media to great advantage in such cases. It is difficult to sustain a claim for disabling injuries, for example, when the employer displays recent photographs of your weight-lifting workout at the gym. One manager who denied a personal relationship with a subordinate happily posted romantic pictures and glowing descriptions of their encounters.

By obtaining the personal password of a volunteer, a recent test of the new Facebook access program provided an astounding amount of personal information, hidden files, private conversations, and remarkably every item ever posted on the user's Facebook wall dating back to her original sign-on date in 2008. In a printed format (with small font) the wall posts were nearly one thousand pages long. Surprisingly, even the private conversations the volunteer typed into pop-up message boxes, directed at individuals, were recorded and stored and resulted in 200 printed pages of "private" conversations. Every photograph the volunteer ever posted, every person the volunteer had deleted from her friend list, and all files the volunteer thought to be "hidden" were readily available. Specific devices used by the volunteer to log-on, the time spent on Facebook, and a list of every ad viewed by the volunteer over the past five years were also accessible. It is a stunning amount of information that can provide undisputable evidence, particularly in the labor and employment context.

A recent survey by Jobvite, a company that provides applicant tracking software, shows that 92% of employers are using or planning to use social networks as a recruiting tool this year.  Careerbuilder.com reports roughly 40% of employers are using social media as a screening tool, but there are no statistics that show how many employers require social media passwords to be surrendered.

Employers can establish a clear process that allows for legitimate inspection of a prospective employee's social media profile — without asking for personal passwords. A successful social media review process is one that minimizes the employer's chance for a charge of discrimination while allowing the employer to determine whether an applicant posesses reviewable, legal characteristics that make the applicant a good or bad fit for the company. You might wonder why the concern for a charge of discrimination comes in to play. Well, by just scanning an applicant's social medial profile, an employer can uncover a lot of information, and some of it is unlawful information for an employer to use or consider in the hiring process. This information includes an applicant's race, age, religious affiliation, national origin, gender, veteran status, pregnancy status, genetic information, sexual orientation (in some states and localities), and gender identify (some states and localities).

Successful policies usually include the following:

1. Layout Search Criteria: A standard written search policy that defines for the employer and the applicant what social medial sites will be searched and what information reviewed; e.g., engaging in hate speech, discriminatory conduct, criminal activity.
2. Put a Wall Between Reviewer and Ultimate Decision Maker: A two-tiered approach that provides for an initial screening of the social media before information is presented to the person who will make the actual hiring decisions. In turn, the reviewer will forward on to the ultimate decision maker only the information about the applicant that hit the employer's defined search criteria. This ensures that the person who makes the ultimate employment decision has never actually viewed the applicant's social media profile. This eliminates even the appearance that the applicant was hired or rejected on the basis of inadvertent access to legally protected information.
3. Document, Document, Document: You have a strict policy in place. Now prove it. Keep uniform records about what disqualifying information was obtained through the social media sites for use in the event a lawsuit ensues.
4. Stay True To Your Policy: Again, you have a strict policy in place — abide by it. Do not attempt to circumvent an applicant's privacy settings to collect more information about the applicant. This includes creating a false profile to gain access to the applicant's information or impersonating a "friend" for the same reason.

With proper guidance your social media policies can reflect the culture of your company, and will enhance — not ensnare — your workforce.

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With Valentine's Day approaching, it is a good time to remind employers that dear old Cupid is alive and well, and strutting his stuff in the workplace. I won't bore you with the statistics about how many romantic relationships blossom in the workplace, and how many of those end up in marriage or crash and burn like the Hindenburg. As many employers already know, it is not just the parties actually involved that can get burned when it comes to workplace romances. Most often, it is the employer that feels most the heartburn when workplace romances turn sour. Because romantic workplace relationships will develop, regardless of what an employer does to try to stop them, here are some thoughts about how to protect your workplace and avoid the inevitable sexual harassment lawsuit.

Don't Put Yourself Between a Rock and Hard Place by Banning Office Relationships

As I said, romantic workplace relationships will develop, no matter what policies employers have in place to prohibit them. These policies simply are unrealistic and ineffective. Policies that prohibit romantic relationships merely prompt employees to hide the relationship and lie to cover their tracks. As you can imagine, this does not bode well for a happy, productive workforce ... and that's before the relationship heads south. Imagine trying to supervise an employee who just got dumped by her (covert workplace) boyfriend. When you ask her what's going on with her performance, she either lies and tells you nothing to perpetuate the secret, or unleashes the tale of the forbidden affair and all its details. This leaves you, the employer, with two choices. You either enforce your "Workplace Relationships Prohibited" policy, which means you may have to fire a good employee for something that could have been handled differently and likely avoided, or, you choose not to enforce your policy and communicate to your employees that you don't enforce your policies. And keep in mind, co-workers will know about the affair long before you ever do, so they will know when you choose not to do anything about it. As you can see, a prohibition on these relationships is not only unrealistic, it's ineffective and distracting.

So, to avoid that awkward situation between a rock and a hard place, don't flat out prohibit such relationships. Instead, recognize that these relationships happen, and put policies and procedures in place to deal with them when they do.

Steps for Employing Targeted Workplace Relationship Policies

1. Come Out Come Out Wherever You Are. Require Disclosure Of Office Relationships.

Relationships between co-workers are difficult enough for employers to handle, but when those relationships turn into sexual harassment claims, the employer has the affirmative Faragher/Ellerth defense and can only be liable it was negligent either in discovering or remedying the harassment.

When the romance is between supervisor and subordinate or on an executive level, the stakes become higher for the employer. In a supervisor on subordinate sexual harassment case, the Faragher/Ellerth defense is not available. Meaning, if the supervisor's harassment of a subordinate employee culminates in a tangible employment action against the subordinate, like termination or a demotion, the employer will be strictly, or automatically, liable. If the harasser is a supervisor, but the subordinate has not been subject to a tangible employment action, the employer can avoid liability by showing: (1) it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior"; and (2) that the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise" i.e., failed to follow the employer's harassment reporting policy outlined in the employer's handbook. While the Supreme Court grapples with the issue of who qualifies as a "supervisor" in this context in Vance v. Ball State University, a case that is awaiting decision, employers can get ahead of the issue and put policies in place to deal with disclosed relationships.

A more targeted policy that requires employees to disclose romantic relationships and provides that employees may not be in a romantic relationship with anyone they have supervisory authority over or with someone who has supervisory authority over them area advisable. In the event a supervisor/subordinate relationship is disclosed, the company can then review their workforce needs to determine if a transfer or schedule change would be appropriate to accommodate the relationship. If not, employees should be informed that they may be subject to termination.

2. Sign on the Dotted Line. Have Employees Enter Into a Consensual Relationship Agreement, i.e., A Love Contract.

A Consensual Relationship Agreement, a/k/a, a "love contract" establishes workplace guidelines for workplace dating or romantically involved coworkers. The purpose of the policy is to limit employer liability in the event that the romantic relationship ends. 

A love contract is kind of like a pre-nup agreement between the two employees involved in the relationship. Instead of dividing assets ahead of time though, it protects the employer and provides that if (when) the relationship fails, neither employee will blame (sue) the company. Although employers may be squeamish about approaching their employees about signing these contracts, the benefit to the employer is that the contract can require the employees to waive claims that may have already accrued prior to the signing of the agreement.

So what else should be in a love contract?

1. Statement of Consent: Typically, a love contract requires the two employees in a consensual dating relationship to sign it and declare that their romantic relationship is voluntarily and without any type of coercion or duress.
2. Prohibited Conduct. They should also outline what conduct in the workplace is and is not appropriate. This keeps all the "love" from spilling out into and distracting the workforce, which could make it uncomfortable for other employees.
3. Arbitration. Another helpful feature that can be included in a love contract is a binding arbitration clause. This type of clause makes arbitration the only grievance process available to the romantically-linked employees and eliminates the possibility of a later sexual harassment lawsuit if (when) the relationship ends.

When the employees sign their love contract, it is also a good opportunity for the employer to remind the employees of the company's anti-harassment and anti-discrimination policies.

3. "You Are Not Doing That Here!"

In the event a workplace relationship is disclosed, the employer can get ahead of it. Office romances don't just create liability for employers dealing with the employees in the relationship. Lawsuits stemming from workplace romances can come from all sides, including from employees who feel they are being discriminated against or harassed because of an office relationship. This typically comes in the form of a discrimination suit from an employee believes an employee in the relationship is getting more favorable treatment. Just because an employer allows office relationships to happen does not mean the employer relinquishes control over its workplace. Employer policies also should explicitly indicate that employees have no expectation of privacy and define what conduct cannot occur in the workplace, i.e., no "public displays of affection."

It is also important that employees know how to complain about harassing behavior and that managers are trained how to respond to it. This can mean the difference between an employer being liable or not. This also means that all complaints should be taken seriously and that a thorough investigation into all complaints must be done. By now, most employers know they have to have anti-harassment policies and reporting and investigation protocols. Just remember, they apply in workplace romance situations too. So, train, remind, enforce, investigate and take seriously!

Key Takeaways

The heart wants what the heart wants. Since you likely can't stop them, an employer's best defense is to deal with workplace romances head on. This means making your employees in those relationships deal with it head on too by disclosing their relationships and by signing agreements to deal with the potentially legal ramifications from the fallout. Most importantly, make sure your anti-harassment policies are up to date and that your complaint procedure protocols are up to date and strictly and fairly enforced.
 

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According to a news release issued by the university, a Kansas State University study to be published in the journal Computers in Human Behavior concludes that between 60 and 80% of the time spent by people on the internet at work has "nothing to do with work." The study, which was profiled this morning on The Today Show, suggests that "cyberloafers" come in all ages. According to one of the researchers, "Older people are doing things like managing their finances, while young people found it much more acceptable to spend time on social networking sites like Facebook."

Certainly, while the estimated percentage might be unexpectedly high to some, there is no doubt that workers are spending more time on the internet for personal reasons. The study goes on to note that employer electronic monitoring policies do little to change behaviors unless the policies are enforced. According to the news release announcing the study, "Researchers discovered that the only way to change people's attitudes is to provide them with information about other employees who were reprimanded."

The question I have is whether enforcement of these policies really discourages employees from surfing the web or whether it merely drives the behavior underground. My bet is that many – I won't say most – employees who fear discipline as a result of electronic monitoring at work will simply resort to using their personal electronic devices, which the employer will not be able to monitor. In my mind, the best way for an employer to ensure that workers are actually working is to monitor their actual work performance, both quantity and quality, and in the process it will catch most, if not all of its cyberloafers.

I'm not suggesting that electronic monitoring policies are bad or even ineffective; just don't ask them to cure more problems than they are capable of doing. Indeed, such policies are invaluable in making sure that employees are not accessing pornography or other material at work that may subject an employer to liability. These policies also can help prevent trade secret leakage or outright misappropriation. But to think that enforcing these policies, without more, will deter most employees from shopping on Amazon.com or checking Espn.com for the latest trade rumor in my opinion is a bit naïve and maybe even somewhat counterproductive.

Even the researchers noted that the strategy can have negative consequences in the workplace and can lower morale. Indeed, in many work environments where employees are one dinner time cell phone call away from being back on the clock, it is not entirely unreasonable to think that some employees will conduct some personal business while at work. In addition, some studies have suggested that occasional personal use of the internet while at work might help recharge employees' batteries and keep them more focused on their jobs.

I'm all for enforcing electronic monitoring policies at work; let's just not ask them to do too much. Now, if you don't mind, there is this set of golf clubs that I saw on the internet last night….

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The Internet is burning up this morning with the story of an Applebee's waitress who was fired for posting on Reddit, a social news and entertainment site, the receipt from a customer who gave her no tip on a $35.00 check, writing "I give God 10% why do you get 18?" Unfortunately, the waitress did not obscure the customer's signature when she posted a picture of the receipt, which naturally set off a firestorm of Reddit users and others on the Internet attempting to identify the customer. The customer apparently then contacted Applebee's and demanded the waitress's termination.

While there is plenty of reason to sympathize with the waitress, particularly if the facts are as represented here and here, it is hard to fault Applebee's for its decision at least to discipline the waitress. As I see it, this was an individual gripe by the waitress, so no concerted protected activity for the NLRB to get riled up about and, regardless of whether he deserved it or not, she created at least one really unhappy customer.

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In a recent decision in Chenzira v. Cincinnati Children’s Hospital Medical Center, Case No. 1:11-cv-00917, the U.S. District Court for the Southern District of Ohio in Cincinnati held that sincerely held beliefs in veganism could plausibly be considered religious beliefs protected against religious discrimination under Title VII of the Civil Rights Act of 1964 and Ohio state law. The Court rejected the argument that veganism was merely a social philosophy or dietary preference.

Sakile Chenzira was a customer service representative for Cincinnati Children’s Hospital for over 10 years. In 2010, the Hospital terminated Chenzira for her refusal to be vaccinated for the flu. As a vegan, she objected to flu shots because the flu vaccine is grown in chicken eggs, and vegans do not ingest any animal product or byproduct. Chenzira requested a religious accommodation to be excluded from the vaccine requirement but was denied and terminated. Prior to 2010, the Hospital had accommodated her request to forgo the flu vaccine.

Chenzira sued, alleging religious discrimination under Title VII and Ohio Revised Code (O.R.C.) Chapter 4112, as well as wrongful discharge in violation of public policy. The Hospital moved to dismiss. The Hospital argued that veganism is not a religion, but rather, a social philosophy or dietary preference not entitled to protection under Title VII or O.R.C. Chapter 4112. The Hospital relied on the Sixth Circuit’s decision in Spies v. Voinovich, 173 F.3d 398, which denied a prisoner abuse claim related to prison food based on the inmate being a Buddhist vegetarian. The Hospital also argued that her claim was barred because Chenzira failed to file her charge with the EEOC within 300 days of her termination, waiting 309 days after her termination to file the charge. The Hospital moved to dismiss the public policy/wrongful discharge claim on the grounds that Title VII and O.R.C. Chapter 4112 adequately provide a remedy for religious discrimination.

Judge S. Arthur Spiegel held that veganism may be entitled to protection as a religion because the definition of “religious practices” in EEOC regulations (29 C.F.R. § 1605.1) “include[s] moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views.” He also gave some credit to Chenzira’s citation of biblical passages supporting veganism and Chenzira’s citation to them in requesting a religious accommodation from the Hospital. He also noted that it lends credence to her position that veganism is a religious belief because others espouse similar beliefs. Judge Spiegel distinguished the Sixth Circuit decision in Spies on the ground that the inmate’s dietary request was adequately met by providing a vegetarian diet, as the inmate himself conceded that a more restrictive vegan diet was not a requirement of his Buddhist faith. The Court did caution that it was only holding that it was “plausible” that Chenzira’s veganism was a religious belief entitled to protection under the law, not that she actually set forth a claim of religious discrimination. At the conclusion of discovery, her case still has to withstand a summary judgment challenge, which will not be based on the liberal “plausibility” standard.

As for the charge filing requirements, the Court held that her EEOC charge was timely filed because her EEOC intake questionnaire was completed within 300 days and was sufficiently detailed to be construed as a request for remedial action. It was clear from her intake questionnaire that she intended to file a charge and sought government assistance in remedying her situation. The Court relied on a 2008 U.S. Supreme Court decision, Federal Express Corp. v. Holowecki, 552 U.S. 389, holding that an intake questionnaire can be construed as a “charge” if it expresses intent to: file a charge, seek remedy with the EEOC, and notify the employer of the accusations (including all identifying and contact information for the employer).

The Court did dismiss the wrongful discharge claim as barred because Title VII and Ohio’s civil rights statute (O.R.C. Chapter 4112) adequately protect against religious discrimination.

As the title of this post makes clear, employers should be careful in immediately dismissing non-mainstream beliefs as not entitled to protection under federal and state law. The Court in Chenzira reaffirmed that the law protects moral and ethical beliefs not traditionally thought of as “religions” if they are held with the strength of religious views.
 

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In Dixon v. Univ. of Toledo et al., the Sixth Circuit Court of Appeals has held that a high-level human resources official who writes publicly against the policies her government employer charges her with creating, promoting and enforcing, is not engaging in protected speech. Crystal Dixon, an African-American woman, who was the acting Interim Associate Vice President for Human Resources at the University of Toledo ("the University") when she penned a riveting op-ed column rebuking comparisons between the civil-rights and gay-rights movements. The piece ultimately led to her termination.

On April 4, 2008, Toledo Free Press Editor-in-Chief Michael Miller wrote an editorial titled "Gay rights and wrongs." In his piece, Miller compared the gay rights movement to the civil rights movement and expressed concern that Medical College of Ohio employees who became University of Toledo employees following a 2006 merger were not offered domestic-partner benefits that were available to other University employees. Dixon responded to Miller's piece with her own op-ed column, "Gay rights and wrongs: another perspective," on April 18, 2008. Dixon rejected Miller's comparisons of the gay-rights and civil-rights movements stating,

"[a]s a Black woman who happens to be an alumnus of the University of Toledo's Graduate School, and employee and business owner, I take great umbrage at the notion that those choosing homosexual lifestyle are 'civil rights victims.' Here's why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle as evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few...."

Dixon also responded to Miller's comments regarding health insurance, stating, "[t]he reference to the alleged benefits disparity at the University of Toledo was rather misleading....To suggest that homosexual employees on one campus are being denied benefits avoids the fact that ALL employees across the two campuses regardless of their sexual orientation, have different benefit plans."

Dixon was placed on paid administrative leave on April 21, 2008, as a result of her op-ed column. President Jacobs wrote a guest column in response to Dixon's op-ed column, on May 4, 2008. Jacobs repudiated Dixon's opinion on behalf of the University and emphasized the University's position on diversity. Jacobs also highlighted the various programs at the University aimed at expanding and supporting diversity.

Dixon's disciplinary hearing was held on May 5, 2008. Dixon read a prepared statement reiterating the beliefs stated in her op-ed column, and she stated she was speaking as a private citizen. She also claimed she had never discriminated based on sexual orientation, and accused the University of treating her differently than other employees. President Jacobs issued a termination letter to Dixon on May 8, 2008.

On December 1, 2008, Dixon filed suit in the U.S. District Court against the University, President Jacobs, and Vice President for Human Resources and Campus Safety William Logie, alleging First Amendment and other violations. The District Court granted the Defendant's motion for summary judgment. Dixon filed an appeal to the Sixth Circuit Court of Appeals.

The Court analyzed Dixon's claim of First Amendment Retaliation specifically focusing on whether her speech was protected. Dixon needed to show the following: 1) her speech touched on a matter of public concern; 2) that under the balancing test announced by the U.S. Supreme Court in Pickering v. Board of Education, her "free speech interests outweigh the efficiency interests of the government as employer"; and 3) that the speech was not made pursuant to her official duties." The parties agreed Dixon was speaking on a matter of public concern, but the University argued Dixon could not satisfy the Pickering requirement, and was speaking in her official capacity.

The University argued Dixon's speech fell within the presumption set forth by the Sixth Circuit Court of Appeals in Rose v. Stephens, which states "where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law." The evidence established Dixon was delegated appointing authority and was responsible for recommending, implementing, and overseeing policy. Moreover, Dixon's comments implying that homosexuals should not be afforded the same protections as African-Americans is in direct contradiction to several University policies developed and promoted by the Human Resources Department. The Sixth Circuit found the University's interests outweighed Dixon's interest as a matter of law and affirmed the district court's grant of summary judgment.

Reminders
Government employers should understand that the First Amendment will not prevent them from disciplining employees serving in policy-making positions for public speech that contradicts the employer's policies. Such employers, however, should be careful to consider the disruption caused by the employee's speech before taking disciplinary action. 

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We hope you enjoyed our five-part series last week addressing the Top 5 Holiday Headaches for Employers. Due to popular demand, we have compiled this series into an eBook for you and have added a special bonus:

Three FMLA Stocking Stuffers: How to Avoid a
Big Lump of Coal

We couldn't do a holiday-blog series and NOT include something about every employer's favorite holiday topic. Like fruitcake, it is a gift that nobody really wants or knows what do with... the FMLA.

Here we tackle three prickly FMLA-holiday questions. First, do holidays count against an employee's FLMA leave entitlement? Second, how does FMLA work in the case of a week-long plant, office or school shutdown? Lastly, does an employer have to pay an employee on FMLA leave holiday pay?

#1 - Does a Holiday Count Against an Employee's FMLA Leave Entitlement?

Let's say you have an employee who is out on FMLA leave from Monday, December 3, 2012 through Thursday, January 31, 2012. Let's also say that your office is closed Tuesday, January 1, 2013 to celebrate New Year's Day. Does the January 1, 2013 holiday count against the employee's FMLA leave entitlement?

The FMLA itself does not directly answer this question, so we look to the general rule for counting FMLA leave during a holiday week. The key here is whether or not the employee is absent for the entire week in which the holiday is observed. In our example, the answer is "yes." Under the FMLA, leave is calculated in workweek increments. While there are some exceptions when employers have to deal with intermittent or reduced schedule leaves when shorter periods of leave of observed, the week is the standard unit. If an employee is out on FMLA for the entire workweek, like in our example, the holiday would count against the employee's FMLA leave entitlement.

If, however, the employee works part of the week, e.g., if the FMLA leave is certified from Friday, December 21, 2012 through Wednesday, January 2, 2012, then only the days the employee would have been expected to report to work would count against the employee's FMLA leave entitlement. In this case, the holiday days will not count against the employee's FMLA leave entitlement unless the employee was otherwise scheduled to work as the FMLA provides:

For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement.
29 C.F.R. § 825.200(h) (emphasis supplied).

Here's what it looks like in application. In our example, the employee has FMLA leave certified from Monday, December 3, 2012 to Thursday, January 31, 2012. So, the whole week, which includes the holiday, counts against the employee's FMLA leave entitlement.

-- Count Whole Week as FMLA Leave --

In the second example, where the employee has FMLA leave certified from Friday, December 21, 2012 through Wednesday, January 2, 2012, only Monday and Wednesday count against the employee's FMLA leave entitlement.

-- Count Monday and Wednesday
as FMLA Leave --

FMLA leave the employee used for the week. For this, divide the hours the employee missed for FMLA leave over the hours the employee would have worked but for the FMLA leave and get the fraction of FMLA leave to charge the employment's leave allotment. Using our second example, and an 8-hour workday, here is what that looks like:

Hours missed for FMLA                            16  = 1

Hours would have worked but for FMLA      32     2 

Instead of

Hours missed for FMLA                            16  = 2

Hours would have worked but for FMLA      40     5 

In our example, the employee missed 16 hours for FMLA leave divided by the 32 hours the employee would have worked that week but for the FMLA leave. Divide the hours missed for FMLA, which is 16, over the hours the employee worked have worked, 32, and you get 1/2 a workweek FMLA used, instead of 2/5 the employee would be charged in a five-day workweek.

If an employer cannot determine how many hours the employee typically works in a workweek, i.e., the employee's schedule varies from week to week, the employer should take the average number of hours the employee works (including hours worked, leave time used and overtime) taken over the past twelve months. The 12-week period is a look-back period from the date of the leave, not the date of the request for leave. When it comes to overtime, the regulations provide a bright-line rule that if an employee is typically required to work overtime, but is unable to do so because of an FMLA qualifying reason that precludes that employee from working overtime, the overtime hours should be counted against that employee's FMLA entitlement. This is essentially intermittent leave, and the hours counted against the employee are counted at straight time, not time and a half. Voluntary overtime, however, is not to be counted against the employee's FMLA leave allotment.

#2 – How Does This Work In Case of a Weeklong Plant, Office or School Shutdown?

If there is a weeklong shutdown, like a plant closing or school shutdown, where employees are not expected to work, the regulations are clear that the shutdown period cannot count against the employee's FMLA allotment. This is referred to in 29 C.F.R. § 825.200(h), cited above.

#3 - Do Employees on FMLA leave Get Holiday Pay?

Last issue: Do employees on FMLA leave get holiday pay if they are on FMLA leave during the holiday? This issue has presented quite a conundrum, and if you Google this issue, you will be find a number of varying responses.

There are two regulations on point. 29 C.F.R. § 825.09, which provides how an employer must maintain an employee's benefits while on FMLA leave, provides "[a]n employee's entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate)."

In addition, 29 C.F.R. § 825.215(c)(2), which provides how an employer must maintain equivalent pay, provides:

Equivalent pay includes any bonus or payment, whether it is discretionary or non-discretionary, made to employees consistent with the provisions of paragraph (c)(1) of this section. However, if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.

Here's what these regulations mean: Under FMLA, you treat FMLA leave like you would treat comparable non-FMLA leave. Suppose you have an employee who is taking vacation time during the holiday week and your policy provides that if an employee is on vacation the day before the holiday the employee will get paid for the holiday, but will not get paid for the holiday if the employee is on an unexcused absence the day before the holiday. Now suppose an employee is absent for an FMLA-qualifying reason the day before the holiday. The way you treat that holiday pay may depend on whether the FMLA leave is going to be running concurrent with the employee's paid vacation leave, or whether it is simply an unpaid leave under the FMLA. If the employee is using vacation, and the employer policy would allow the employee to take holiday pay if they are using vacation the day before the holiday, the employer would have to allow that for the employee on FMLA leave. On the other hand, if an employer does not ordinarily pay an employee for the holiday if the employee is absent on some other kind of unpaid leave the day before the holiday, the employer would not have to pay the employee on FMLA leave. Employers just have to be sure they are treating employee consistently with similar forms of non-FMLA leave under your policies.

This year, the United States Court of Appeals for Eighth Circuit held in Keeler v. Aramark, that an employee out on FMLA leave was not entitled to holiday pay when his employer had a policy of not providing such pay to employees who did not work the day before the holiday regardless of the reason. In Keeler, the employer requested various leaves in the fall of 2007. His FMLA time went through Labor Day, a day the employer typically paid its employees, even though they were not required to work.

The employer's policy provided that it did not provide holiday pay for any employee on unpaid leave during the holiday, or for any employee who did not work the last regularly scheduled workday before the holiday, unless that absence was previously approved. Pursuant to this policy, the employer did not pay the employee for Labor Day because the employee was absent on the last workday before Labor Day.

The employee sued claiming he was entitled to holiday pay for Labor Day even though he was out on FMLA leave. The employee argued that because the FMLA prohibits an employer from using an employee’s use of FMLA leave as a negative factor in employment actions, he was entitled to the same paid leave he would have received as had he not been out on FMLA leave. The court disagreed and relied on 29 U.S.C. § 825.215(c)(2), set forth above, in particular: “if a bonus or other payment is based on the achievement of a specified goal such as hours worked … or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied." Relying on this regulation, the court found that so long as the employer treats other employees who were absent for non-FMLA reasons in the same manner. This regulation, with the employer's policy of not providing holiday pay for any employee on unpaid leave during the holiday, meant the employee had no claim.

The takeaway here for employers is simple: check your leave policies and check them twice, and make sure you are applying FMLA leave entitlements in conformity with the FMLA and your own policies.

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It is important not to require employee attendance at holiday parties and that pressure to attend is properly managed. Mandatory attendance at company-sponsored functions, like holiday parties, can result in workers' compensation claims if an attending employee is injured. It can also mean that the employee is entitled to be compensated for his or her time spent at the event pursuant to the Fair Labor Standards Act ("FLSA").

For workers' compensation liability, if the employee is required to attend a company-sponsored event, or there is significant business that takes place at the event that essentially makes attendance mandatory, then the employee will be considered to have been acting in the course of his or her employment and the same rules that apply to typical workers' compensation claims apply to injuries the employee suffers while at the holiday party.

The timing of the event is important for determining if and when workers' compensation laws may come into play. For example, if the event is held during normal working hours, then employee’s attendance will likely be considered as “in the course and scope of their employment” though courts will also typically look at:

• The extent to which the employer expects/ requires employees to attend; 
• The extent to which the employer benefits from the event, e.g., will clients be present and/or will work be done;
• The degree of participation by the employer; 
• Whether the activity takes place on the employer's premises or off-site; and
• When the event takes place in relation to the employee's normal work hours. 

Several courts have recognized that an employee's voluntary attendance at a social event sponsored by his employer off the employer's premises and outside normal working hours cannot reasonably be viewed as conduct within the scope of his employment.

To help make your company holiday event festive while reducing your liability, keep the following tips in mind:

• Make Attendance Optional: Make it clear to employees that attendance at a company-sponsored events is purely optional, not mandatory. This also means keep the event social, not work related. Keep work-related events, like handing out of bonuses or awards, for another day.
• Pony Up the Pay: If attendance is required or the event is during work-time, compensate your employees, including overtime pay if their hours for the week exceed 40.

Thank you for sharing with us the fun with our week-long holiday blog series.  Stay tuned for a special "stocking stuffer" on Monday, December 17 as we wrap this up!  (Hint ... you didn’t think we could talk about holiday headaches without mentioning the FMLA, did you?)

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Many employees believe they are entitled to holiday pay, even if they do not work on the holiday. This is not the case. In fact, neither the Fair Labor Standards Act ("FLSA") nor most state laws, including Ohio, require a private employer to pay hourly employees for working or not working on holidays (federal or otherwise).  (For employers in Massachusetts, however, be sure to check your Blue laws.) This type of pay, if provided, is typically considered a fringe benefit and is a matter of agreement between an employer and an employee (or the employee's union representative). Please note that this does not apply to salaried, exempt employees who get paid for holidays (even ones they don't work) because the law prohibits employers from making wage deductions if the company is closed on a holiday.

What if an employer pays its employees for holidays for which they don't actually work?

Some employers may choose to pay their employees for the holiday, e.g., eight hours for New Year's Day, so it is important that employers understand the FLSA and comparable state law overtime implications. While employers may choose to pay employees for an additional eight hours on a holiday they did not work, these additional eight hours of time that did not constitute actual work cannot be used to go into a calculation for overtime purposes. Federal and most state laws require employers to pay nonexempt employees one and one-half times their regular rate for each hour worked over 40 in a workweek. These non-worked hours don't count.

Here's what it looks like in application:

Say an employee works 42 hours in a workweek and gets an additional 8 hours of pay for New Year's Day, even though the employee did not actually work on New Year's Day. The employee earns $10 an hour. The employee is entitled to 48 hours of straight pay and 2 hours of overtime, not 40 hours of straight pay and 10 hours at time and a half.

What if an employer gives an employee a holiday bonus?

Some employees really get into the holiday spirit and include holiday bonuses, along with other compensation. The FLSA excludes eight types of payments from the regular rate, one of which is the discretionary bonus. Discretionary bonuses are when the employer has discretion both on whether the payment is actually awarded and on the amount of the payment until a time close to the end of the period for which the bonus is paid. Nondiscretionary bonuses, on the other hand, typically are those agreed to, promised or contracted. Thus, for FLSA purposes, only nondiscretionary bonuses affect the overtime calculation.

For purposes of the FLSA, nondiscretionary bonuses must be included in the calculation for regular pay when computing overtime. For example, if an employee earns $10 an hour and works 45 hours in a work week, the employee would be entitled to 40 hours at $10 an hour and 5 hours at time and a half, or $15 for a grand total of $475.

Now let's go one step further. Let's say the employer gives the employee a holiday bonus that is a matter of contract between the employee and the employer paid out the bonus in the amount of $500 in the week discussed above, when the employee worked 45 hours. To calculate the overtime due for a week covered by a nondiscretionary bonus, the employer must first calculate the average rate of pay for the week, given the impact of the bonus. Here's how that calculation works:

Failing to include the $500 non-discretionary bonus when calculating the regular rate of pay would violate the FLSA and could mean steep penalties for the employer. So, if you decide to give holiday bonuses, make sure you comply with the FLSA and comparable state laws regarding overtime pay or make sure your holiday bonuses qualify as discretionary so they can be excluded from this calculation.

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So the question on everyone's mind when it comes to holiday parties: Will alcohol be served? For employers this is a big decision and, depending on where the holiday party is held and how it is contained, one that may come to expose an employer to liability. For the most part, whether an employer can be held responsible for alcohol-related incidents at or after company-sponsored events depends on the state in which the party is held and the circumstances.

First things first: If the event involves a business purpose that can be considered to have a direct effect on the commercial profitability of the business or if attendance is mandatory, the employer could find itself exposed to liability, so it is important to make attendance optional. Normally, however, merely attending an employer sponsored party will not expose the employer to liability for injuries that an intoxicated employee may cause once away from the premises.

In Ohio specifically, a social host, (i.e., the employer, in the case of an office holiday party) who provides alcohol on company premises is typically not liable to a third person subsequently injured by the intoxicated person. Ohio courts have refused to impose liability on a social host in a situation where a guest becomes intoxicated and injures a third party. Specifically, in Settlemeyer v. Wilmington Veteran's Post No. 49, 11 Ohio St.3d 127 (1984), the Ohio Supreme Court has held that a social host is not liable for injuries to a third-party that occur as a result of the negligence of an intoxicated social guest. Settlemeyer has been applied in the employer-holiday party context and been found controlling. See Gilkey v. Gibson, No. 98AP-1570, 2000 WL 4973 (10th App. Dis. Jan. 6, 2000); Knox v. Bell Optical Lab, Inc., No. 1145, 1989 WL 126857 (1st App. Dis. Oct. 24, 1989). In this context the courts typically have reasoned that the proximate cause of the injury is the consumption of the alcoholic beverage itself, not the act of furnishing the beverage. This is especially true when it concerns an adult guest; it’s a little different for minors, as set forth below. If the event is held at a restaurant or off-site, the vendors selling/providing the alcohol for profit may be liable for resulting injuries to third parties if they provide alcohol to noticeably intoxicated guests; however, the employer sponsoring the event generally has no liability.

When minors are involved, Ohio courts in some instances have found a furnisher of alcohol liable for injuries to a third person as a result of an intoxicated guest’s actions. These instances include cases where a person under 21 is provided beverages and when a liquor license holder knowingly violates the law relative to the sale of alcoholic beverages. In each such instance, the courts have determined that by enacting specific statutes that forbid the furnishing of alcohol to minors, the legislature meant business. Because these instances constitute statutory violations, Ohio courts have imposed liability on the social host and/or license holder in the event that the intoxicated minor causes injuries to a third party.

A minority of the states have adopted social host liability, in order for an employer to be found liable in one of these states, typically there must be an affirmative showing that the social host served alcohol to a person when the host knew or should have known that the person was intoxicated, and further knew that the intoxicated guest would be driving away from the event.

The problem for employers, even those in Ohio where there is no social host liability typically, is that there is no law that prohibits an intoxicated adult from suing a social host for injuries to that adult guest as a result of the intoxication. This means that if something happens to an employee or someone else due to the actions of an employer who became intoxicated at a company holiday party, the employer can still be named as a defendant in a lawsuit and spend money defending the suit.

If you decide to have alcohol at your company holiday party, here are some steps that might lessen the possibility of being held responsible for an employee's conduct after drinking too much:

• Don't Serve Minors: Make sure no minors are served. Check IDs, pass out wrist bands, and post signs that guests must be 21 in order to consume alcohol beverages. If fraternities can do it, so can you.
• Be Aware of Your State Law: Be familiar with your state’s laws regarding liability and alcohol at company-sponsored events.
• Make Attendance Optional: Make it clear to employees that attendance at a company-sponsored event is purely optional, not mandatory. This also means, keep the itinerary for the event social, not work related. Keep work-related events, like handing out of bonuses/awards or discussing yearly goals, for another day.
• Remind Employees of Policies: Remind employees of your policies regarding proper decorum. While you can encourage them to have fun, remind them that they are expected to act responsibly, which includes not drinking too much and then driving. With this, also remind salaried-exempt managers to keep an eye on employees even though technically it's not work time.
• Limit Consumption: Use a cash bar or drink ticket system to limit alcohol consumption.
• Take it Outside: Have the party at an off-site restaurant, party hall or hotel where the facility will serve the drinks. This will reduce the risk o employer liability. If the party is on-site, at a minimum hire a professional wait staff or bartenders so the alcohol is being served by non-company employees. Ask the bartenders/caterers to prepare low-alcohol mixed drinks or punches that look and taste as festive as their high-alcohol content counterparts. DO NOT have managers/supervisors/co-workers making and serving their colleagues/subordinates beverages.
• Be Careful with Your Choice of Beverages and Food. Provide a variety of non-alcoholic beverages and plenty of food. Stay away from sweet punches that contain alcohol, which make it difficult for employees to monitor how much alcohol they are consuming. Go easy on the greasy, salty or sweet foods, which tend to make people thirsty, and serve starchy and protein-heavy foods that slow the absorption of alcohol into the bloodstream. If possible, serve appetizers that are easy to eat while standing and mingling. Employees who have to choose between holding a drink and holding a plate of food may choose the drink only.
• Close the Bar Early: Close the bar well before the end of the event, no less than a half hour, but keep serving food.
• The More the Merrier: Consider opening the party to spouses/partners/significant others, which tends to reduce alcohol intake in addition to providing a possible designated driver.
• Plan Ahead: Discuss transportation ahead of time with employees and encourage them to coordinate rides with designated drivers. Another option: Arrange for taxis, a shuttle, or other transportation at the company's expense. Let employees know that transportation options are available so they can plan ahead. Announce during the party that transportation is available, even for employees who did not make an advance request.

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Religion is also a hot-button workplace issue in December because so many different religious groups celebrate different holidays in December. For example: Christians commemorate the birth of Jesus at Christmas; Buddhists celebrate Buddha's Enlightenment with Bodhi Day; Jewish people celebrate Hanukkah, the Festival of Lights; African-Americans celebrate Kwanzaa, Muslims celebrate Eid al-Adha, or the Feast of Sacrifice; Seinfeld enthusiasts celebrate Festivus, and there are many others.

Federal and state laws prohibit discrimination and/or harassment on the basis of religion. This means that an employer cannot treat persons of different religions differently or appear to favor one religion over another. As such, having a party that is focused on a single religious theme, i.e., a "Christmas" party, excludes employees who do not practice Christian beliefs. As such, employees should be mindful of varying cultural differences among their employees and determine a neutral way to celebrate this special time of year. Here are some tips:

• Keep Decor Wintery, Not Religious-Centered: In the office, its goodbye to the Christmas tree, the nativity scene and the menorah. Unless you allow all types of religious symbols during the holidays, its best to deck the halls with neutral themes, like wintery snowmen, snowflakes and colorful lights.
• Give Peas a chance! Some religious observances restrict diets or require fasting during certain periods. Do what you can to avoid holiday parties during times of fasting and offer food options that are sensitive to various religions and nationalities that are likely to be represented at your party.
• Music Makes the World Go Round: Music sets the tone of the party, and if done wrong your party can have two left feet. Music can be tough, especially with a workforce of varying ages, cultural backgrounds and/or religious beliefs. One suggestion is to avoid overly religious Christmas carols.
• Foster an Atmosphere of Inclusion not Cliques: Take steps to keep employees from hanging out with their workplace friends. Encourage employees to mix and mingle by assigning seats randomly and/or have everyone engage in an activity, like a gift exchange. Most importantly, make sure everyone feels welcome and included. Holiday parties should promote office morale and bolster workplace cohesion, not remind employees of high school.

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As much as everyone loves them, the holidays create increased risk of employer liability and can result in a long list of legal problems for an unprepared employer. As our holiday gift to you, we've put together our top five holiday headaches for employers, which will be provided to you in a week-long series starting today.

Numero uno on our list: Sexual harassment at the office holiday party. Who doesn't have at least one inappropriate office holiday party story? If you don't, you've at least heard a couple doozies. The mix of sparkly outfits, tasty snacks, free-flowing libations and people who typically spend their working hours together and you have a recipe for jaw-dropping, not to mention, litigious situations. For example, there's the uncomfortable flirtation, the inappropriate comment about someone's appearance or outfit, the misconstrued invitation, and the just-asking-for-problems mistletoe decoration, which should never be featured at a holiday party. And lest we forget, there is a whole host of problems that ensue when the office Santa keeps asking female employees to sit on his lap.

Holiday-related sexual-harassment lawsuits are not new and not unusual. Under federal and state law, employers have a legal obligation to prevent harassment in the workplace. This duty extends to work-sponsored events, like holiday parties and even extends to the appropriateness of gifts for a holiday gift exchange. When it does not abide by this duty, an employer can be vicariously liable for employee behavior that concerned sexual harassment committed in the course of employment. There is a bright side: generally, employers will not be vicariously liable for the actions of its employees if it can demonstrate it took reasonable steps to prevent the sexual harassment or that the employee did not use the employer's complaint procedures to alert the employer of the problem. Some cases on this subject have addressed comments with suggestive innuendos and some have been more overt. Take Grigaliunas v. Rockwell Intern. Corp. (defended by our own Charlie Warner), where the plaintiff alleged a co-worker kissed her at a holiday party for example. While that employer was lucky enough to get the case thrown out early by showing it took reasonable steps to correct the problem when notified, some employers aren't so lucky, and in any event, it costs a lot of money to get the case tossed out.

No matter how well planned or well-intended and despite an employer's best efforts to train their employees, office parties tend to encourage employees to behave in odd ways. This is despite an employer's best efforts to train their employees. Thus, employers are advised to remind their employees, not only of the company's anti-harassment policy, but to remind them that it applies to employer-sponsored parties and events. Here are some other tips to help keep your office Santa off the real one's "Naughty List":

• Review, Update, Remind: Review your employment handbook and, if necessary, update it so it expressly notes that employees are subject to the employer's anti-harassment policy at company-sponsored events. Once reviewed and updated, remind employees of the company's anti-harassment and reporting policies. Let them know that the policies apply to social and non-social events inside and outside the office equally and that they will be subject to discipline if they are involved in harassment during the holiday party. Don't forget to make sure your employees know this applies to their social media activities too ... just in case one of them decides to make a co-worker's dance with the lampshade the new YouTube sensation.
• Take a Top Down Approach: Start at the top and remind supervisors of the company's anti-harassment policies and what to do if they learn of or witness potential harassment.
• Caution Gifting: If there is going to be a holiday party gift exchange, employers should inform employees that gifts should be workplace appropriate. If necessary, employers should expressly state that employees are not to bring gifts/cards that contain derogatory images, language, innuendos or otherwise humorous gifts to which someone might take offense.
• The More the Merrier: Consider inviting your employees' spouses/partners/families. Their presence may change the dynamic, in a good way, and keep the inappropriate conduct at bay.
• Dress for Success: Consider implementing a dress code that maintains a professional environment, e.g., instead of "holiday attire," which could mean sparkly tube tops to some, keep it "business casual."
• Act Fast: Should all else fail and you find yourself dealing with a sexual harassment issue, act promptly! All acts of sexual harassment, even those that occur at a holiday party, should be taken seriously and dealt with properly. This includes a proper investigation and implementation of disciplinary procedures as necessary.

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In Nitro-Lift Technologies, L.L.C. v. Howard, the U.S. Supreme Court this week held that if a contract contains an arbitration provision and there is a challenge to the validity of the contract, it is for the arbitrator and not a court to hear that challenge. The case is important for employers because the challenge was to the validity of a non-competition agreement. More specifically, the Supreme Court held that if a contract contains an arbitration provision, it is up to an arbitrator, and not a court, to determine whether the non-competition provision of the contract runs afoul of a state law limiting the enforceability of such restrictive covenants. In so holding, the Court reaffirmed its earlier precedent that when a contract contains an arbitration provision, the Federal Arbitration Act. (“the FAA”), is the law of the land and that the FAA promotes a “national policy favoring arbitration.” So, the Supreme Court held, the Oklahoma Supreme Court erred when it held that a state law limiting the enforceability of non-competition agreements essentially negated the arbitration provision of the contract and allowed a court to declare the non-competition agreement void. Rejecting this judicial hostility towards arbitration, the U.S. Supreme Court held that pursuant to the arbitration provision, the validity of the contract as a whole, including the non-competition agreement, was a question for the arbitrator and not an Oklahoma state court.

Nitro-Lift Technologies, L.L.C. provides services to operators of oil and gas wells that enhance production of those natural resources. Nitro-Lift entered into confidentiality and non-competition agreements with two of its employees, Eddie Lee Howard and Shane Schneider. Each of those agreements also contained an arbitration clause providing in pertinent part: “Any dispute, difference, or unresolved question [between the parties] shall be settled by arbitration[.]” Howard and Schneider quit working for Nitro-Lift and began working for one of its competitors.

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As we reminded you last month here, the Consumer Financial Protection Bureau ("CFPB"), the agency that has enforcement responsibility over the Fair Credit Report Act ("Act"), revised the forms which employers must use to comply with the FCRA, effective January 1, 2013. There was only one little problem with the forms the CFPB provided for use: They contained various typos and technical errors that the CFPB now has recognized in its Supplementary Information in the November 14, Federal Register Notice.

The forms at issue:

• The Summary of Consumer Identity Theft Rights;
• Summary of Your Rights Under the Fair Credit Reporting Act, which employers are required to provide to applicants and employees with the FCRA disclosure and authorization form when the employer procures an investigative consumer report and with any pre-adverse action notice sent when an employer intends to rely in whole or in part on information contained in a background check report to make an employment decision;
• Notice of Furnisher Responsibilities, which background check providers must provide to certain furnishers of information; and
• Notice to Users of Consumer Reports: Obligations of Users Under the FCRA, which background check providers must give employers who procure background check reports.

These forms appear, respectively, in Appendices I, K, M and N of Regulation V, and the new corrected forms are available here.

The good news for those employers who have already transitioned to the forms that were published in December 2011, the CFPB says it will regard the use of the originally-published model forms, typos and technical errors notwithstanding, “to constitute compliance with the FCRA provisions requiring such forms and will regard those forms to be substantially similar to the corrected forms” until it directs otherwise. The CFPB further states that it plans to so advise, and to provide sufficient time to allow for orderly discontinuation of the December forms, when it issues a final rule to restate Regulation V in 2013.

Takeaways. For employers that have not yet started using the new FCRA forms, make sure you use the newly-corrected ones available above. For employers that already transitioned to the originally-published model forms, consider transitioning to the correct model forms as it is unclear how must advance notice the CFPB will give before ending its grace period.
 

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By now, you should know that the Equal Employment Opportunity Commission ("EEOC") has issued “Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions”, which is designed to restrict criminal background checks by employers, but you may not know that enforcement responsibility for the Fair Credit Reporting Act ("FCRA") has been transferred from the Federal Trade Commission to the recently created Consumer Financial Protection Bureau ("CFPB").

The FCRA, of course, is the federal law that imposes requirements on employers who use third party Consumer Reporting Agencies ("CRA's") to obtain “consumer reports" (i.e., background check, reference check, credit check) and "investigative consumer reports" (i.e., a consumer report where information regarding character, general reputation, personal characteristics, etc is obtained through personal interviews) on prospective or current employees.

What this means for employers is that they should expect heightened scrutiny on their FCRA compliance. The FCRA requires employers who use CRA's to do their background checks to go through a four-step process, using federally-mandated forms. One of the CFPB's first steps in its role as chief enforcer of the FCRA, was to revise that forms which employers must use, effective January 1, 2013.

The three notices the CFPB revised, which are available in Appendices K, M and N to 12 C.F.R. part 1022, are summarized as follows:

• A Summary of Your Rights Under the FCRA: CRAs must provide this form to employers and employers must provide this form to prospective employees and current employees when either will be subject to an investigative consumer report or when a pre-adverse action notice is sent.
• Notice to Users of Consumer Reports: Obligations of Users Under the FCRA: CRAs must provide this form to their employer-clients.
• Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA: CRAs must provide this notice to certain furnishers of information.

The forms CRAs and employers are to continue to use until January 1, 2013 are available in Appendices F, G and H to 16 C.F.R. part 698.

Below is a summary of the four steps and, more helpful, how the CFPB's changes to the FCRA impact each step and when the new notices are required:

Step 1: Certification to the Consumer Reporting Agency

A CRA may furnish a consumer report for employment purposes only if the employer certifies to the CRA, among other things, that:

• It notified the prospective employee or current employee clearly and conspicuously and in writing that a consumer report is being requested for employment purposes;
• It obtained writing authorization from the prospective employee or current employee allowing the employer to obtain a copy of the report;
• It will use the information for a "permissible purpose" only, this includes employment purposes;
• It will comply with the conditions for adverse action should adverse action be taken against the applicant; and
• Information from the consumer report will not be used in violation of any applicable Federal or State equal protection laws or regulations.

Once a CRA is engaged to conduct a consumer report, it must provide their employer clients with a copy of the Notice to Users of Consumer Reports: Obligations of Users Under the FCRA.

Step 2: Notice and Authorization from the Applicant

Next, an employer must inform the prospective employee or current employee that it might use information in his or her consumer report for decisions related to employment. The employer must also obtain written permission from the prospective employee or current employee and this must be in a clear and conspicuous manner.

In addition to the obligations above, if the employer wants an "investigative consumer report," as defined above, it must also inform the applicant that an investigative consumer report may be obtained. This must be done in a written disclosure that is mailed, or otherwise delivered, to the prospective employee or current employee not later than three days after the date on which the report is first requested. The notice must clearly and accurately disclose to the applicant in writing that an investigative consumer report may be made. This disclosure must include a statement informing the prospective employee or current employee of his or her right to request additional disclosures of the nature and scope of the investigation, and must include the A Summary of Your Rights Under the FCRA and that, upon the written request of the applicant made within a reasonable period of time after the disclosures required above the user must make a complete disclosure of the nature and scope of the investigation that was requested. Should an prospective employee or current employee contact the employer in writing, and request information about the nature and scope of the investigative consumer report, the employer must supply this information within five days of the date on which the employer received the prospective employee or current employee's request or the date on which the report was requested, whichever is later.

Step 3: Pre-Adverse Action Protocol

If an employer might use information from a consumer report, in whole or in part, to take an “adverse action” — it must give the prospective employee or current employee (1) a copy of the report; and (2) a copy of A Summary of Your Rights Under the FCRA before taking the adverse action.

If, however, the consumer report does not influence the employer's adverse action in whole or in part, the employer has no duty to forward a copy of the report of a summary of consumer rights to the applicant at the pre-adverse action stage.

The rights as explained in A Summary of Your Rights Under the FCRA include giving the prospective applicant or current employee the opportunity to contact the employer and the CRA to dispute or explain information in the report that the prospective applicant or current employee believes is inaccurate or incomplete to give the prospective applicant or current employee the opportunity to see the report that contains the information that is being used against them. If the report is inaccurate or incomplete, the prospective applicant or current employee then has the opportunity to contact the CRA to dispute or explain what is in the report.

Step 4: Adverse Action Protocol

If, after waiting the requisite amount of time, the employer decides to take an adverse action (i.e., deny the applicant's application for employment or terminate an employee) it must inform the prospective employee or current employee orally (though this is highly discouraged) or in writing, which can be electronically, of the adverse action and of the following, statutorily required information, that includes:

• The name, address, and phone number of the CRA that supplied the consumer report;
• A statement that the CRA that supplied the information did not make the decision to take the adverse action and cannot give any specific reasons for it; and
• A notice of the employee's right to dispute the accuracy or completeness of any information in the applicant's report and to get an additional free report from the company that supplied the credit or other background information if the applicant requests it within 60 days.

Takeaways

• Get Ready to Change Your Forms. Before January 1, 2013, when conducting criminal screens of applicants and employees, employers should start using the new FCRA Summary of Rights when they: (1) provide the form with required disclosures for investigative consumer reports; and (2) enclose it when they give the applicant or employee a "pre-adverse action" notice.
• Do not forget your state laws. Many states have their own laws governing this issue. Some are in line with the FCRA, however, some are not and have additional requirements for employers seeking to obtain background reports (e.g., California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oklahoma, Oregon, Washington, and Vermont).
• Lastly, keep an eye on your state's laws on this issue, including "ban the box" laws that prohibit asking about criminal arrests on applications. New laws on this issue are popping up all the time. Take Vermont, for example, that passed Vermont Act No. 154, effective July 1, 2012, which added a new section to Vermont’s Fair Employment Practices statute prohibiting employers in Vermont from failing or refusing to hire or recruit; discharge; or for otherwise discriminating against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual’s credit report or credit history or even inquire about an applicant’s credit report or history unless the position of employment involves access to confidential financial information and/or if the position of employment involves access to an employer’s payroll information. Or Indiana, whose House Bill 1033, also effective July 1, 2012, restricts the types of criminal history information employers and CRAs can obtain from Indiana state court clerks and the types of criminal history information that CRAs can report to employers in background reports.

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Election Day will soon be upon us, and with that comes some common questions from employers about what they must do regarding employees who take off work or arrive late to work to vote.

What is an Employer Prohibited from Doing? Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” The law further prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against an employee to induce an employee to vote or refrain from voting for or against any person, issue or question submitted to the voters.

What Is an Employer Required to Do? Ohio employers must give their employees "reasonable time" to vote. The law, however, does not define what constitutes "reasonable time". Nor does the law specify whether an employer can require an employee to apply for voting time off prior to Election Day or designate the hours the employee may miss work, though these types of provisions are not prohibited by the statute. To be on the safe side, it is advisable that employers provide employees leave to vote even when the employee are able to vote during non-working hours or establish policies defining how an employee can apply for voting time off or designate hours employees may miss work to vote.

Does An Employer Have to Pay an Employee for Time Spent Voting? The law also does not indicate whether an employer has to pay the employee for time off to vote. However, the Ohio Attorney General has weighed in and has construed the time off to vote law to require that pay for voting time is limited to salaried employees. What this means is that employers do not have to pay hourly, commissioned, or piecework employees for leave taken to vote. However, employers may not deduct a salaried employee’s pay for taking time off to vote. Such a deduction not only likely violates Ohio law but also would be a violation of the Fair Labor Standards Act.

What is the Penalty for Violating the Law? While there is no case where an employee has sued a former employer for discharging that employee for taking time off of work to vote, employers who discharge employees for taking leave to vote may be subject to a cause of action for wrongful discharge in violation of the public policy set forth in R.C. §3599.06.

In addition to a potential wrongful termination claim, the penalty for voting leave violations may include orders directing the employer to pay a fine of not less than $50 but not more than $500.
 

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Charlotte Beck had been employed with Buckeye Pipeline Services Company ("Buckeye") for over 16 years as a 12-hour operator. In 2009, however, Buckeye underwent a company-wide reduction in force. Buckeye created a "design team" to reform the organizational structure of the Company and implement a team-based leadership model that would be used going forward. The design team created a new performance evaluation system, which required at least two people with first-hand knowledge of the employee to rate the employee and cite specific examples of behaviors that supported the grade. Any employee who did not receive a rating of 60 points or higher would be terminated. Three members of the design team evaluated Beck and she received an overall score of 35 points. Beck was terminated from Buckeye, along with 139 other employees. A younger, male employee with less experience replaced Beck as a 12-hour operator.

Claiming that the design team's reliance on "subjective criteria" in selecting her for termination singled her out because of her age and gender in violation of Ohio law, Beck filed suit in Ohio federal district court. The district court granted Buckeye's summary judgment motion on the ground that Beck could not show that the company's decision to lay her off as part of a company-wide reduction in force was pretextual.

On appeal, the Sixth Circuit upheld the summary judgment decision. Noting that qualified individuals often lose their jobs as part of a legitimate reduction in force, the Sixth Circuit held "the use of subjective evaluation criteria does not by itself show discrimination, particularly in a reduction in force case." To establish that the employer's reliance on the reduction in force was pretextual, Beck relied on a favorable opinion provided by her direct supervisor. The problem, however, was that the supervisor, undoubtedly reluctant to be the cause of anyone losing their jobs, stated all of his subordinates were good employees and placed the decision squarely back in the hands of the design committee. When Beck's supervisor was deposed as part of the lawsuit, he stated that he disagreed with some of the design team's conclusions about Beck, but acknowledged that he did not share his contrary thoughts with the team when it was making its decision. Significantly, because this is often an issue in reduction in force cases, the Sixth Circuit also noted that the supervisor's "satisfaction with Beck's work under the old system at any rate does not prove she would succeed under the new system."

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In a case that vividly demonstrates how employers are vulnerable to insider cyber attacks, a recent federal court decision out of the Southern District of Ohio addressed the scope of federal statutes designed to address such activity. In Freedom Banc Mortgage Services, Inc. v. O'Harra, the plaintiff's complaint alleged that an employee began remotely downloading software programs on 27 of the employer's computers and five servers. Through these programs, O'Harra, with the assistance of others, allegedly was able to access the employer's employees' email accounts, deleted hundreds of email from these accounts, uninstalled the employer's security camera, deleted pictures that the camera had recorded, and monitored employee Blackberry usage, among other activities. As a result of these unauthorized intrusions into the plaintiff's computer system, the plaintiff's computers began to operate slowly and eventually, 22 computers and three servers became inoperable. The plaintiff alleged that it lost business, productivity, and revenue as a result of the damages to its computers and, in December 2010, ceased business operations.

Freedom Banc filed its complaint against O'Harra and her alleged accomplices alleging violations of the federal Computer Fraud and Abuse Act ("CFAA"), the Stored Communications Act ("SCA") and state law tort claims of trespass to chattels, conversion and conspiracy. In response, the defendants moved for dismissal. With respect to the CFAA count of the Complaint, the court rejected each of O'Harra's arguments that attacked the statute's applicability. First, O'Harra argued that the computers at issue were not "protected computers" within the meaning of the CFAA, but the Court concluded, as have virtually all courts that have addressed this issue, that any computer that is connected to the Internet is "protected" for purposes of invoking the CFAA. Next, O'Harra argued that for the CFAA to apply, the plaintiff must allege damages of at least $5,000 caused by a single unauthorized intrusion into a protected computer. Again, the Court had little difficulty rejecting this argument and found that the plaintiff's alleged damages of at least $5000 in the aggregate was sufficient to invoke the CFAA's protection.

The Court also permitted the plaintiff's state law tort claims to proceed. The Court concluded that the plaintiff's complaint sufficiently pleaded a trespass to chattels claim by alleging that O'Harra deprived plaintiff of the use of its computers and impaired those computers as to their condition and value. Similarly, plaintiff's complaint also alleged a cause of action for conversion by alleging that O'Harra downloaded software programs onto plaintiff's computers that gave them "complete access to and control over” plaintiff's email accounts and security camera, among other things, and by alleging that the defendants deleted hundreds of email messages from plaintiff's email accounts, deleted photographs from plaintiff's security camera, and continued to access and initiate contact with plaintiff's computers until they were ultimately rendered inoperable. Finally, the Court upheld the conspiracy count of the complaint based on the allegations that O'Harra conspired with her co-defendants in a "malicious combination" to gain unauthorized access to the plaintiff's computer systems.

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Employers adopting social media policies have to consider whether they would be struck down by the National Labor Relations Board (NLRB) if challenged as invalid under Section 7 of the National Labor Relations Act. Section 7 protects the rights of union, as well as non-union, employees to communicate at or away from work about terms and conditions of employment. Citing a desire to provide guidance to employers regarding workplace regulation of employee use of social media, the chief lawyer for the NLRB (its “General Counsel”) issued guidance reports in August 2011, January 2012 and May 2012 to show what sorts of social media policies the General Counsel believes violate Section 7. The NLRB considers but is not bound by the General Counsel’s guidance when issuing decisions. Until recently, the NLRB itself had not had occasion to issue a decision on a social media policy.

In Costco Wholesale Corporation (NLRB Case No. 34-CA-012421), the NLRB considered a social media policy for the first time. The NLRB invalidated portions of Costco’s policies and in doing so signaled that it will probably track closely with the General Counsel’s guidance when reviewing social media policies. That means a very aggressive review and the likelihood that policies which are not drafted narrowly and carefully will be struck down.

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Presume for a moment an employee complains to Human Resources that a co-worker's perfume makes her want to choke. The workplace sometimes brings us "closer" together and one worker's scent can be another worker's source of distraction or even discomfort. If the complaining employee's problem is just a matter of personal preference, then the employer has no legal duty to take action, but may want to explore a diplomatic way to resolve the dispute. On the other hand, a recent decision by the United States District Court for the Southern District of Ohio shows that, in some circumstances, this issue can result in a legal challenge.

In Core v. Champaign Cty. Board of County Commissioners, (S.D. Ohio No. 3:11-CV-00166), an employee sued the County under the Americans with Disabilities Act (ADA) and under Ohio disability discrimination law for not accommodating her request for a "fragrance-free" workplace policy. The employee suffered from severe asthma and chemical sensitivity to certain perfumes and other scents. She began experiencing difficulty breathing at work when co-workers in her proximity were wearing a perfume called "Japanese Cherry Blossom." According to the Complaint, her initial request that the employer ask employees to refrain from wearing that perfume went unheeded. Her symptoms became more severe and eventually she had to have emergency medical treatment.

Shortly after the employee sought medical treatment, co-workers began to mock her, including in Facebook posts making fun of her condition. She also alleges that employees began to wear the perfume intentionally around her and that the employer took no action to stop this conduct.

The employee presented a request to the employer signed by a nurse practitioner asking that co-workers be advised of the employee's sensitivity and that they be asked to avoid use of the perfume. The employer apparently communicated by email to employees asking that they not approach the employee personally, and instead communicate with her only by telephone or email. The employer also asked the employee to attempt to have face-to-face conversations with staff only in well-ventilated, open areas of the office.

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The Department of Labor ("DOL") published proposed regulations to the Family and Medical Leave Act ("FMLA") on February 15, 2012, and the deadline for public comments has been extended through Monday, April 30, 2012.

The DOL introduced the proposed regulations to implement and interpret the 2009 amendments to the federal FMLA. They address three specific areas: 1) Military Family Leave; 2) Flight Crew FMLA Eligibility; and 3) the manner in which employers calculate increments of FMLA leave.

The proposed regulations include several changes in regards to Military Family Leave. First, military caregiver leave has been expanded to cover eligible employees whose family members are recent veterans (active within the past 5 years) with serious injuries or illnesses incurred in the line of active duty, where the veteran is undergoing medical treatment, recuperation or therapy. Previously, only current service members were covered.

Secondly, the definition of a serious injury or illness has been expanded to include serious injuries or illnesses that existed prior to service and were aggravated in the line of active duty.

Thirdly, private health care providers not affiliated with the Department of Defense ("DOD") or Veteran's Affairs ("VA") have been added as authorized health care providers that may provide the necessary "serious illness or injury" certification for military caregiver leave.

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The Sixth Circuit's decision in Berryman v. SuperValu Holdings, Inc., clarifies that the "totality-of-the-circumstances" test used in hostile work environment cases does not have to be based on what the individually employee actually experiences, but rather what the individual employee is aware of.

In the case, eleven current and former SuperValu warehouse employees alleged that over a twenty-five year period, they were exposed to a racially hostile work environment that included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. The district court tossed out the employee's claims out finding that while the acts were reprehensible, they did not amount to a hostile work environment. The Sixth Circuit affirmed the lower court and in doing so clarified what can be considered in the "totality-of-the-circumstances" test.

By way of relevant background, to prevail on a hostile work environment claim, a plaintiff must show that his work environment was both objectively and subjectively hostile. In evaluating hostile work environment claims, courts look at the totality of the circumstances and consider things like the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Oftentimes plaintiffs want to rely on instances of discrimination/harassment that happened to other employees, but not to them personally. Whether or not the experiences of co-workers are relevant is a common dispute among counsel in defining the scope of discovery in these types of cases. On one end, plaintiffs typically argue that courts should consider all employees complaints in the aggregate to show a hostile environment, regardless of whether the individual plaintiff was actually aware of the other incidents or not. On the other, employers typically argue that courts should only consider the actual experience of the individual plaintiff.

The Sixth Circuit declined both approaches in favor of a middle-of-the-road approach and found that: "a plaintiff does not need to be the target of, or a witness to harassment in order for us to consider that harassment in the totality of the circumstances; but he does need to know about it." In coming to this conclusion, the court noted that an employer could create a hostile work environment by directing discriminatory acts or practices at a protected group of which the plaintiff is a member, and not just at the plaintiff personally. The decision, however, does make clear that a plaintiff does have to be aware of the allegedly discriminatory acts or practices directed at others in order to use such evidence in the plaintiff's individual case. Thus, for the plaintiffs to be able to use their collective experiences in the aggregate, they would have had to "marshal basic evidence to show that they were individually aware of the harassment experienced by other plaintiffs." Here they did not.

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Here's a recent blog post from my partner Bill McGrath that appeared Wednesday on our sister blog - Federal Securities Law Blog. In his post, Bill discusses a recent decision from the First Circuit in which the court ruled that, while the whistleblower protections of the Sarbanes-Oxley Act apply to employees of public companies, they do not apply to employees of the public company's contractors or subcontractors. For further discussion and analysis, please read further on Federal Securities Law Blog.

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On Wednesday, the NLRB General Counsel's Office issued its second report on social media cases that have been brought to it for advice by regional directors. Our take on the first Report can be found here.  As noted in the Board's press release which links to the Report, the Report covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised. The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

With respect to the discharge cases, the Board's press release notes that the Report underscores that "[a]n employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees." Indeed, as we have noted previously, the Board does appear to be gaining some consistency in this regard. Somewhat troubling, however, is the Board's continued reliance on whether and how co-workers respond to the Facebook post in determining whether the original post is entitled to Section 7 protections. Doing so seems like an easy vehicle for potentially transforming what really was a personal gripe without any obvious intent to initiate or induce coworkers to engage in group action, into what the Board views as concerted activity. On the other hand, the Board hopefully will continue to view negative co-worker responses as evidence of the lack of concerted activity.

With respect to the lawfulness of social media policies, the Board's press release notes simply that "[e]mployer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees." Though the cases cited in the Report give employers some examples of permissible policy provisions, it is still lacking in more concrete general guidance about what is permissible. In particular, the Report fails to give a clear thumbs up or thumbs down to the effectiveness of a disclaimer in a social media policy that disavows any intent to restrict employees' rights to communicate with each other regarding terms and conditions of employment.
 

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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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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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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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The U.S. Department of Labor Office of Federal Contracts Compliance Programs (OFCCP) has proposed a new rule requiring federal contractors and subcontractors to set a goal to have 7% of their workforce be individuals with disabilities. Presently, federal contractors and subcontractors are only required to set percentage numerical goals for areas of their workforces where women and minorities are found to be underrepresented based on an "Availability Analysis" conducted under OFCCP regulations. The 7% goal for persons with disabilities proposed by OFCCP would apply to each job group in the contractor’s workforce. It is not based on any calculation by the contractor of availability but is rather based simply on OFCCP's estimate of the percentage of the overall workforce that is disabled.

The proposed rule also imposes a requirement that contractors invite applicants to voluntarily self-identify as an individual with a disability at the hiring stage and the pre-offer stage, and to conduct an annual anonymous survey of its employee's inviting them to identify themselves as a person with a disability. The rule would also require contractors to maintain recruiting and hiring data concerning persons with disabilities.

The proposed rule also requires contractors to develop and implement written programs for handling requests for reasonable accommodation and to engage in specific types of outreach and recruitment efforts to recruit individuals with disabilities, and to make mandatory job opening listings with the nearest One Stop Career Center as is currently required for recruiting veterans.

A link to the the OFCCP's related FAQ's can be found here.

The proposed rule is open for comment until February 7, 2012.  

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In light of the questions raised regarding the alleged inaction of various Penn State University coaches and officials stemming from the alleged sexual assault of a child by a former assistant football coach, we thought it might be beneficial to highlight the duty to report statutes in Ohio.

Ohio Rev. Code § 2151.421(A)(1)(a) states that a person acting in an official or professional capacity who knows, has reason to know, or has reason to suspect that a child under the age of 18 or 21, if mentally disabled, has suffered or faces a threat of suffering abuse or neglect, shall immediately report that knowledge to children services or a municipal or county peace officer. The duty to report applies to a number of professionals, including:

• attorney;
• physician (including a hospital intern or resident);
• dentist;
• podiatrist;
• practitioner of a limited branch of medicine;
• registered nurse, licensed practical nurse or visiting nurse;
• other health care professional;
• licensed psychologist;
• licensed school psychologist;
• independent marriage and family therapist or marriage and family therapist;
• speech pathologist or audiologist;
• coroner;
• administrator or employee of a child day-care center;
• administrator or employee of a residential camp or child day camp;
• administrator or employee of a certified child care agency or other public or private children services agency;
• school teacher;
• school employee;
• school authority;
• person engaged in social work or the practice of professional counseling;
• agent of a county humane society;
• person, other than a cleric, rendering spiritual treatment through prayer in accordance with the tenets of a well-recognized religion;
• employee of a county department of job and family services who is a professional and who works with children and families;

In addition to Ohio Rev. Code § 2151.421, Ohio has a general reporting statute. Ohio Rev. Code § 2921.22, states, "no person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities." If a person fails to disclose information to law enforcement, they are guilty of failure to report a crime and may be charged with a misdemeanor.

Had these incidents occurred at an Ohio university, it is doubtful that reporting the incident up the chain of command would have been sufficient to avoid indictment. Professionals and officials covered under Section 2151.421 therefore should be mindful of their obligations under that statute to avoid potential prosecution. Furthermore, in light of the reputational damage that likely would follow an incident similar to the one at Penn State, employers of such professionals and officials would be wise to make sure that their staff understand these obligations and are counted on to comply with them.

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It seems like everyone is tweeting these days, including employees and often as a part of their jobs. For employers whose employees are using Twitter, Facebook, blogs, or other social media as a part of their jobs, they may want to examine who owns the accounts.

A mobile phone review website, PhoneDog, is suing a former employee over his Twitter account. While employed at PhoneDog Noah Kravitz created a Twitter account, which he named "@Phonedog_Noah" and from which he tweeted on a variety of professional and personal topics. According to media reports, Kravitz apparently was not hired to do tweeting on behalf of his employer, which did not even know his password. When he left Phonedog for new employment, he took his Twitter account with him when he left the Company and changed the name to “@noahkravitz,” retaining all of his followers. The Company claims that taking the Twitter account, which he previously used as a part of his job at PhoneDog was the equivalent of taking its property and trade secrets. This month, a judge held that the case presents an issue for trial.

Businesses are beginning to see value in the followers and fans of individual employee social media accounts that are used for professional purposes. As this case demonstrates, merely including the company name in the Twitter account name may not be enough to designate the account as company property. With worker mobility being what it is today, this issue is bound to come up frequently in the future, not only with Twitter, but other social media sites such as LinkedIn. It seems that employers are far better off establishing who owns these accounts from the outset through company policies or agreements and drawing clear lines about what is an “official” company social media account and what is an employee’s personal social media account, especially in a world where those lines are increasingly blurred.
 

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Just when I started to think that I might have the answers regarding the NLRB's obsession with social media, the NLRB starts changing the questions. Not that that is always a bad thing. Just ask Schulte, Roth & Zabel.

In Schulte, the charging party alleged that he was terminated for his role in employee discussions about the employer's allegedly unlawful overtime policy. Schulte, however, contended that it had terminated the charging party for referring to his job title as "fucktard" in response to a LinkedIn invitation from a supervisor in the firm's IT department in violation of the firm's electronic communications policy, which prohibited using the firm's electronic communication systems to communicate "obscene, defamatory, harassing or abusive" material to any person or entity associated with the company. (Sorry for the profanity, but I assume you already have clicked on our link to the General Counsel's Advice Memorandum, where the word is used twice.)

In his Advice Memorandum to the Regional Director, the Board's Associate General Counsel recommended dismissal of the charge since there was no way to argue that the charging party's use of that word was concerted protected activity and there apparently was no evidence that the employer had any knowledge of the employee unrest regarding the overtime policy. Consistent with Knauz BMW, the Advice Memorandum concluded that because the employer's policy was not enforced in a manner that restricted the charging party's Section 7 rights, the discharge was valid. Certainly, this portion of the Advice Memorandum is not surprising.

What was a little more unexpected (to me at least), however, was the General Counsel's Office's failure to go ahead and also consider whether the policy itself was overbroad. I mean, this decision comes directly on the heels of the ALJ's decision in Knauz BMW to find a similar policy -- requiring employees to be courteous and polite -- unlawful despite upholding a discharge for Facebook posts based in part on that policy. In Schulte, however, the Advice Memorandum simply states, "In any event, there is no allegation that the rule here is unlawful."

Huh? Don't get me wrong. I'm not looking this gift horse in the mouth, but for those of us looking for some semblance of consistency from the Board on these issues, the General Counsel's position in Schulte is a bit of a head scratcher. Granted, all of these cases are very factually dependent, but this Advice Memorandum not only seems inconsistent with Knauz BMW, it also seems contrary to the position the General Counsel's office took in the initial Facebook firing case, American Medical Response of Connecticut, Inc., where it alleged that policies prohibiting "disparaging remarks" about the employer violated Section 7 of the NLRA. Again, I welcome this favorable outcome for employers, but going forward, prudent employers should strongly consider including a disclaimer in their social media and electronic communications policies stating that those policies will not be enforced in a manner that would interfere with employees' rights to communicate regarding working conditions. Not a cure-all, for sure, but hopefully it will help the policies withstand NLRB scrutiny until the Board and its counsel's office find some consistency on these issues.

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If you don't know the answer to this question with absolute certainty, you had better go back and check your policy. In Cracker Barrel v. Cincinnati Insurance Company, a Tennessee federal court concluded that the employer's EPLI policy provided neither coverage nor even a defense to a Title VII action brought against it by the EEOC. Why? The policy in question defined a "covered claim" as "a civil, administrative, or arbitration proceeding commenced by the service of a complaint or charge, which is brought by any past, present or prospective employees." The court read this provision literally and concluded that because the EEOC was not an employee, the complaint brought by it on behalf of the company's employees was not a covered claim.

Regardless of the correctness of this decision, employers need to review their EPLI policies to see how they define a covered claim. If it is not clear that the policy covers both claims brought by and claims brought on behalf of employees, then it makes sense to go back to the insurance broker to obtain clarification from the carrier on whether the latter type of claim falls within the definition. Because claims brought by the EEOC and other governmental agencies can be among the most expensive to defend, it is important for employers to know whether they are getting what they think they are paying for.

Hat tip to Michael Fox at employerslawyer@blogspot.com.
 

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The Internal Revenue Service (IRS) has developed a new program called the Voluntary Classification Settlement Program (VCSP) that permits taxpayers to voluntarily reclassify workers as employees for federal employment tax purposes. Taxpayers that choose to participate in the program and voluntarily reclassify workers as employees for future tax periods will only have to pay 10 percent of the employment tax liability that may have been due on compensation paid to the workers for the most recent tax year; will not be liable for any interest and penalties on the liability; and will not be subject to an employment tax audit with respect to the worker classification of the workers for prior years. Additionally, a taxpayer participating in the VCSP must agree to extend the period of limitations on assessment of employment taxes for three years for the first, second and third calendar years beginning after the date on which the taxpayer has agreed under the VCSP closing agreement to begin treating the workers as employees.

To participate in the program, the taxpayer must have consistently treated the workers as nonemployees, and must have filed all required Forms 1099 for the workers for the previous three years. The taxpayer cannot currently be under audit by the IRS, the Department of Labor or by a state government agency. A taxpayer that previously was audited by the IRS or the Department of Labor concerning the classification of the workers will only be eligible if the taxpayer has complied with the results of that audit.

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Earlier this year, speculation and educated guesses gave way to NLRB General Counsel Advice Memoranda on how the NLRB will address unfair labor practice charges challenging so-called Facebook firing cases. Now we have our first charge that actually has gone to hearing and resulted in an Administrative Law Judge decision.

In Hispanics United of Buffalo, Inc., the employer, a not-for-profit corporation that renders social services to economically deprived residents of Buffalo, New York, terminated five employees for their comments on Facebook after a co-worker had raised concerns about the job performance of other HUB employees. Apparently concerned that the co-worker would bring her concerns to management, one of the five employees posted the following on her Facebook page:

[Co-worker] feels that we don't help our clients enough at HUB I about had it!
My fellow coworkers how do u feel?

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Under Ohio law, employees may sue their employer to recover damages for an employer intentional tort – even when the injuries are otherwise covered by workers' compensation.  Because these cases can be costly to defend, employers historically have purchased commercial general liability policies with “stop-gap” insurance endorsements for years, believing these provisions imposed a duty to defend the employer against an employer intentional tort lawsuit.

On July 6, however, the Ohio Supreme Court decided Ward v. United Foundries, Inc., determining that Gulf Underwriters Insurance Company did not have a duty to defend United Foundries, Inc. under such a stop-gap endorsement in an employer intentional tort action.

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In earlier posts, we discussed the best time to mediate different types of employment or ERISA matters. Although some disagree, selecting a mediator to facilitate a settlement based on a meeting of the minds may be the most important part of the mediation process. Even though mediation is a party-driven process, the mediator's knowledge, skill, experience, style and ability to handle the type of individuals involved in the dispute has a substantial impact on the resolution of the dispute. With apologies to Kyra Sedgwick, the goal is to find The Closer.

In most private mediations, the parties and their counsel select the mediator, and bear the burden of selecting an appropriate person to mediate the dispute. In making a selection, there are a number of issues the parties may want to consider.

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Those of you have been reading Employer Law Report over the past six months may have noted an addition to our home page recently in the lower portion of the left column. There, you will find my most recent tweets on Twitter from @BrianDHallEsq. Sounds a bit pretentious, I know, but every usable combination of Brian D and Hall were already taken.

Twitter allows us to inform you about a lot of issues that we simply can't fit into this blog. It also allows us to get information out to you faster than we can on the blog. While the key to tweeting is brevity -- we can't use more than 140 characters in any tweet --we are able to link to an incredible array news, legal and government sources. In addition, Twitter is filled with knowledgeable human resources professionals and, yes, other labor and employment lawyers who we can "retweet" when they address topics we think you will find interesting.

So, what will you find on my Twitter feed if you follow me? Everything you see here on Employer Law Report, and more. In addition to the labor and employment legal news, I will also be tweeting about legal developments relating to our privacy as well as interesting news and events going on in Columbus and Ohio. I promise, however, I won't waste your time telling you what I had for lunch.
 

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Several days ago, I read the New York Times article reporting that the NLRB's Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter. At the time, I flagged the article because I wanted to use it to highlight my -- emphasis on the word, MY -- views on the NLRB's recent assault on social media policies: When it comes to social media, it is time for cooler heads to prevail, both at the NLRB and within the employer community.

So, what happened at Thomson-Reuters? According to the article in the Times, the company on one of its Twitter outlets had invited employees to post suggestions on Twitter about how to make Reuters the best place to work. In response, an employee, who was also the head of the Newspaper Guild at Reuters, tweeted: "One way to make this the best place to work is to deal honestly with Guild members." The next day, her supervisor contacted her at home to advise her about Reuters policy of not saying things that would damage the company's reputation. Though Reuters denies that it disciplined the employee, she complained that she felt threatened and intimidated. A source at the NLRB apparently confirmed to the Times that it would be filing a complaint against Thomson-Reuters accusing the company of violating the employee's right to engage in concerted, protected activity with co-workers to improve working conditions.

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In a scenario that frequently occurs in workplaces across the country, Linda Buck, the vice president of human resources at Proctor Hospital, was asked to terminate Vincent Staub based on information contained in a report from his supervisors that accused him of violating the terms of a “corrective action” disciplinary warning. Relying on this accusation and her own review of Mr. Staub’s personnel file, Ms. Buck decided to terminate Mr. Staub’s employment. Mr. Staub protested to Ms. Buck that his supervisors were hostile to his military obligations as a member of the U.S. Army reserves, but rather than follow up on Mr. Staub’s concern with his supervisors, Ms. Buck simply conferred with another human resources staff member and adhered to her termination decision. Mr. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Ms. Buck had any such hostility but that his supervisors did, and that their actions influenced Ms. Buck’s ultimate employment decision. (This type of case has been referred to as a "Cat's Paw" case, based on an Aesop's fable involving a cat, a monkey, chestnuts and fire. Justice Scalia provides more information at footnote 1 of his majority opinion.)

A jury found that Mr. Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” and awarded $57,640 in damages. The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because Ms. Buck had relied on more than just the supervisors' advice in making her termination decision.

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The OFCCP has released a new directive – the Active Case Enforcement Directive (ACE)  – to replace the Active Case Management directive (ACM) which was rescinded by OFCCP in December 2010. The ACE procedures will result in more in-depth OFCCP audits and will greatly increase the chances of OFCCP making findings that are adverse to the companies they audit.

Under the ACE Directive, the OFCCP will conduct full desk audits of every contractor selected for a compliance evaluation. This is in contrast to the previous ACM procedure that required full desk audits only for every 25th contractor audited or for any contractor for which an abbreviated desk audit revealed indicators of potential class-wide, systemic discrimination. Under the ACE Directive, every 25th contractor audited will be selected for a full compliance review – desk audit, onsite review, and possible offsite analysis – regardless of the findings of the initial desk audit. This will generate far more full reviews than the old procedures, which required a full compliance review only of every 50th contractor or when there were indicators of class-wide or systemic discrimination.

At the beginning of every audit , OFCCP will contact the EEOC and State fair employment practices agencies to determine the nature, status, and outcome of any complaints filed against the contractor. The directive says OFCCP will expand this effort to also include gathering information from other federal enforcement agencies, such as OSHA and the Wage Hour Division, to determine if the employer has a history of violating other employment statutes that might be looked to as a possible indicator of discrimination.

Perhaps of greatest significance is the fact that OFCCP will now proceed to an onsite review where there are any "indicators of discrimination." In the past, other than doing an onsite of every 50th contractor, the agency did an onsite only where there were indicators in the desk audit of systemic or class-wide discrimination. Under the ACE Directive, an onsite will be triggered by indicators of any sort of discrimination. The Directive says that discrimination can be indicated by statistical indicators, anecdotal evidence, patterns of individual discrimination, patterns of systemic discrimination, patterns of major technical violations involving recordkeeping or failure to maintain an AAP, and indications of noncompliance with other labor and employment laws administered by other federal agencies. Stating that discrimination may be indicated by patterns of "major" recordkeeping violations or by non-compliance with other laws that have nothing to do with discrimination is a very aggressive and some might argue unfair approach. For example, the ACE directive says that a contractor's violation of wage hour laws can be an indicator of possible discrimination.

OFCCP has said that it intends to conduct fewer audits in the future but that those it does conduct will be more detailed and thorough. The procedures adopted in the ACE directive certainly confirm that when OFCCP calls on you for an audit in the future there is a far greater likelihood of a longer, more aggressive encounter with the agency.
 

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Wednesday, February 16, 2011
11:30 a.m. - 1:30 p.m. Lunch will be provided.
Capital Club – 41 South High Street, 7th Floor
Columbus, Ohio

An employer’s human resources department can provide one-stop shopping for identity thieves, where they can find personnel records, benefits data, and payroll and tax records all in the same place. What would you do if you learned that this data had been compromised? Don’t get caught short  – learn what you can do to respond effectively to data breach intrusions, whether as a result of a lost laptop, criminal hacking, or other unauthorized access or use of this highly private and sensitive information about your employees.

Featuring:
Robert J. Morgan, Esq., Porter Wright Morris & Arthur LLP
Jeremy A. Logsdon, Esq., Porter Wright Morris & Arthur LLP
Donna M. Ruscitti, Esq., Chair, Porter Wright's Information Privacy and Data Security Practice Group

This is a complimentary seminar, however seating is limited. To reserve your spot at this program, please e-mail Deb Ballard at dballard@porterwright.com before February 14.
 

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Updating our previous posts on Thompson v. North American Stainless, the Supreme Court yesterday reversed the Sixth Circuit’s en banc decision holding that an employee who claims he was fired in retaliation for his fiancé's complaint of sex harassment had an actionable retaliation claim under Title VII. The Supreme Court reversed the Sixth Circuit’s decision in a 8-0 opinion with Justice Scalia writing the unanimous decision.

The facts are as follows: A woman filed a sex discrimination charge with the EEOC. Three weeks later, the employer terminated the woman’s fiancé, who also was employed by the company. The fiancé filed his own EEOC charge and, eventually, a lawsuit, alleging that his termination was in retaliation for his fiancé’s EEOC charge. In response, the employer argued, among other things, that there is no cause of action under Title VII for retaliation against associated third-parties. The trial court agreed and dismissed the case. The plaintiff appealed, and the EEOC filed an amicus (“friend of the court”) brief in support of associational retaliation claims. In a 2-1 decision, a three-judge panel of the Sixth Circuit reversed, holding that “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer’s action.” The entire Sixth Circuit (en banc) reversed the three-judge panel holding in a close 10-6 vote that there was no cause of action for third-party or associational retaliation.

Yesterday, the Supreme Court reversed the Sixth Circuit’s en banc decision, agreeing with the plaintiff that Title VII’s provisions prohibiting retaliation were broad enough to include associated third-parties. The Supreme Court reasoned that Title VII’s anti-retaliation provisions were intended to protect against any employer action that may dissuade a reasonable worker from making or supporting a charge of discrimination—specifically emphasizing that this is an objective standard. The Court reasoned that it was “obvious” that a worker might be dissuaded from making or supporting a complaint of discrimination if she knew that her fiancé might be terminated as a result. The Court reasoned that hurting the fiancé was the means by which the employer intended to harm the female employee making the complaint of discrimination. The Court warned that retaliation against a mere acquaintance would not meet this standard but declined to identify specific relationships that would and would not be covered—holding that outside of close family relationships it would depend on the circumstances of each case to determine whether the plaintiff was in the "zone of interest."

Retaliation claims have long been a thorn in the side of employers, who too often make the mistake of transforming a meritless discrimination claim into a viable retaliation claim by the way they treat an employee who remains in their employ after complaining of discrimination. The Supreme Court's 2006 decision in Burlington Northern & Santa Fe Ry. Co. v. White made it easier for employees to prove retaliation and yesterday's decision in Thompson expands the list of potential retaliation claimants. With retaliation claims already on the rise as demonstrated by the EEOC's recent statistics, it is more important than ever that employers thoroughly and impartially evaluate any disciplinary scenario before taking adverse action to ensure that the discipline is free of any retaliatory motivation.
 

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In a decision issued this morning, the Sixth Circuit held that an Ohio complaint alleging wrongful termination for discharging employees for unionizing activities was pre-empted by the National Labor Relations Act (“NLRA”).  Specifically, the court in Lewis v. Whirlpool Corporation upheld the dismissal of the case by the district court based on a lack of subject matter jurisdiction.   

The plaintiff argued that because he had been employed as a supervisor, he was not an employee covered by the NLRA. The court noted, however, that a supervisor has a viable claim under the NLRA when he is terminated or otherwise disciplined for refusing to commit unfair labor practices. In addition, it appears that Lewis filed a charge with the NLRB, but withdrew it when it became clear that an NLRB Field Examiner had concluded that his claim had no merit. Because Lewis’s claim under Ohio law was identical to the claim he could (and, in fact, did) bring before the NLRB, the Ohio law claim was pre-empted and subject to dismissal. 

Although the court did not have to address the issue in light of its pre-emption finding, it seems that the availability of adequate remedies for Lewis under the National Labor Relations Act (had he been able to factually support his claims) would have resulted in dismissal of his Ohio wrongful termination claim in any event. Keep in mind, however, that on that front, we are still awaiting the Ohio Supreme Court’s decision in Sutton v. Tomco Machining, Inc., which we expect will again address the scope of Ohio public policy wrongful termination law in the context of a workers’ compensation retaliation claim.

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Thursday, January 20, 2011
11:30 a.m. - 1:30 p.m. Lunch will be provided
Capital Club - 41 South High Street, 7th Floor
Columbus, Ohio

Unfortunately, identity thieves frequently target not just customer or client data, but also employment records. This workshop will help you learn how to effectively use law enforcement and private security resources to protect yourself, your business and your employees from computer criminals. 

Featuring:

Special Agent Corey Collins, Federal Bureau of Investigation

Justin L. Root, Esq., Porter Wright Morris & Arthur LLP

Matthew A. Bitonti, Chief Operating Officer, iSekurity, Inc.

Moderated by Donna M. Ruscitti, Esq., Chair, Porter Wright's Information Privacy and Data Security Practice Group

This is a complimentary seminar, however seating is limited. To reserve your spot at this program, please e-mail Deb Ballard at dballard@porterwright.com before January 17.  

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As expected, the NLRB has moved forward with initiatives that seem designed to make it easier for unions to successfully organize. The most controversial aspects of the proposed Employee Free Choice Act, including card-check recognition and mandatory arbitration in bargaining, seem to be dead in the water. But a union-friendly NLRB is pursuing initiatives administratively that will facilitate union organizing. 

Rule Making to Require Posting About Organizing Rights

The NLRB recently issued a Notice of Proposed Rule Making which would require all employers to post notices in the workplace advising employees of their rights to engage in union organizing. The notice would have to be posted prominently in the workplace and employers that communicate electronically with employees would be required to include the posting in an electronic communication The proposed mandatory organizing poster is very similar to one that is required for federal contractors and subcontractors. It gives a comprehensive explanation of employee rights to organize and restrictions on employer responses to organizing. 

A copy of the NLRB news release about the proposed rule, together with links to the Notice of Proposed Rule Making, which includes the full text of the proposed posting, and additional information, can be found here. 

The prospect of a mandatory prominent notice about union organizing in the workplace is good cause for every employer to evaluate its overall plan for response to possible union activity.

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Earlier this week, we reported on a New York Times article about employer efforts to address the impact of prescription drugs in the workplace. The article profiled workers at the Dura Automotive Systems Inc. plant in Lawrenceburg, Tennessee who were terminated for testing positive for prescription drugs that Dura considered to raise safety issues. Yesterday, the Sixth Circuit handed down a decision in a case that challenged the company's drug testing policy. 

In that decision, the Court held that several of the workers could not challenge their terminations under that policy because they were not "qualified individuals with a disability" under the ADA. The employees had claimed that under Section 12112(b)(6), the drug testing policy constituted a “qualification standard, employment test, or other selection criteria” that “screen out or tend to screen out” persons with disabilities. But, the court held that “a straightforward reading of this statute compels the conclusion that only a ‘qualified individual with a disability' is protected from the prohibited form of discrimination described in subsection (b)(6)—the use of qualification standards and other tests that tend to screen out disabled individuals.” The Court distinguished Section (b)(6) the ADA from Section (d)(4), which provides that employers may not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. Many courts have held that an employee does not need to have an ADA-protected disability to pursue a lawsuit under Section (d)(4). 

The Sixth Circuit's decision is certainly good news for employers, particularly for those in Ohio, which lies within the Sixth Circuit. But in order to avoid lawsuits challenging the testing itself, employers must still be able to demonstrate that any drug testing for prescription drugs is not only job-related but also required by business necessity. In separate litigation brought by the EEOC against Dura, Dura apparently is attempting to defend its testing program based on evidence that suggests that the Lawrenceburg facility has a higher accident rate than other comparable facilities. In addition, the New York Times article suggests that there was evidence of drug use and sales going on at the plant.   It will be interesting to see how the Sixth Circuit addresses that issue if the EEOC case gets that far.

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On November 2, 2010, the NLRB issued a press release reporting that its Hartford, Connecticut, regional office had issued a Complaint alleging that American Medical Response of Connecticut, Inc., (“AMR”) had published an overly broad blogging and Internet posting policy that violated employee Section 7 rights, and then illegally fired an employee for negative posts about a supervisor.

As described in the Complaint, the AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company “in any way” over the Internet without company permission. Such provisions, according to the NLRB’s Complaint, constitute a violation of 8(a)(1) of the National Labor Relations Act because they interfere with employees' right to engage in protected concerted activity under Section 7 of the NLRA. (The NLRB and courts typically interpret Section 7 as protecting employees’ right to discuss the terms and conditions of their employment with other employees or even non-employees.)  The NLRB also alleged that the employer illegally fired an employee pursuant to that policy for posting negative remarks about a supervisor on Facebook, which the NLRB said drew supportive remarks from her co-workers.

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In Branham v. Gannett Satellite Information Network, Inc., No. 09-6149, 2010 WL 3431617 (6th Cir. Sept. 2, 2010), the Sixth Circuit Court of Appeals held that an employer is not necessarily entitled to rely on a “negative certification” submitted by an employee's health care provider in denying a request for FMLA leave. 

The plaintiff-employee in Branham initially claimed that the absences for which her employment was terminated were related to a “serious health condition” within the meaning of 29 CFR § 825.113. Her employer responded by requesting that the employee produce a medical certification confirming her inability to work. However, the employer's request was not made in writing, it did not expressly provide the employee with 15 days to comply, and it did not expressly inform her that a failure to certify an FMLA-qualifying reason for the absence would result in a denial of the leave. These requirements for a proper request for medical certification are all set forth in 29 CFR § 825.305.

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We are starting to see an increase in the number of news articles reporting on health care facilities terminating employees for violating patient privacy on their facebook pages or other social media. 

Last December, one such incident made a fair number of headlines when a Mississippi hospital worker responded to a tweet from the Governor of Mississippi, Haley Barbour, regarding the state’s “dire fiscal situation” and soliciting ideas to trim expenses.  The employee responded with a tweet that said the Governor should “schedule regular medical exams like everyone else instead of paying UMC employees over time to do it when clinics are usually closed.”  The hospital terminated the employee on the ground that her tweet violated HIPAA because it disclosed that the Governor had been a patient at the hospital.

More recent reports suggest that health care employers have become even more aggressive in terminating employees who have compromised patient privacy on their social media pages.  For instance, in June, it was reported that a hospital in Oceanside, California had terminated five employees and disciplined a sixth for using social media to discuss hospital patients.  The hospital’s CEO is quoted as saying that its investigation had not yet uncovered any evidence that patient names, photographs, or similar identifying information was posted by these employees, but the investigation had yielded sufficient information to warrant disciplinary action. 

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Congress’ recent passage and President Obama’s signing of the “Dodd-Frank Wall Street Reform and Consumer Protection Act” provides significant incentives for financial industry whistleblowers to assist the government root out fraudulent practices and other unlawful conduct in the industry. Supporters of the Dodd-Frank Act are praising its expansive whistleblower protections as a necessary good corporate-citizen tool to help the government ensure a financial crisis like 2008 never happens again.

Under the Dodd-Frank Act, whistleblowers in publicly traded companies are provided significant personal financial incentives to disclose to the SEC “original” information concerning securities laws violations occurring within their companies. “Original” information means the information must be derived from the whistleblower’s independent knowledge or analysis and cannot be known to the SEC from any other source. The available financial reward — or “bounty” — available to a qualifying whistleblower will range from 10% to 30% of any financial recovery in excess of $1,000,000 that the SEC obtains from the targeted corporation, including the amount of any penalties, disgorgement and interest.

The Dodd-Frank Act also protects the whistleblower from being retaliated against by the employer because the whistleblower provided information to the SEC. The Act gives the whistleblower a private right of action in federal court to try to establish the unlawful retaliation. Remedies for the successful whistleblower may include reinstatement, double back pay with interest, expert witness fees, and attorneys fees. Thus, Congress clearly intended for these remedies, coupled with a possible incentive bounty of at least $100,000, to encourage whistleblowers to come forward and assist the government attack corporate financial fraud.

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There are times when parties want to avoid litigation as a means for resolving a dispute. Some employment disputes are particularly well-suited to pre-filing or pre-discovery mediation. For example, in a case where the reputation of an individual or an organization is at stake, there is a great chance that early mediation will result in resolution. A party faced with disclosure of damaging information and the unavoidable publicity that may result, often sees a resolution in mediation as the best option. Pre-suit mediation is also favorable to the party possessing the damaging information since once a lawsuit is filed, it has lost some of its leverage. These type situations are ideal for pre-suit or pre-discovery mediation.

Another time pre-filing mediation is particularly fitting is when the remedy sought involves little money and is relatively easy to implement. Cases involving failure to accommodate under the ADA, failure to offer leave under the FMLA, or single-party claims under the FLSA are some examples. Here, pre-suit mediation is practical.

Pre-filing mediation may also enhance the possibility of resolution in disputes where there is or may be an ongoing relationship. This is true, for instance, in cases involving failure to accommodate or to offer leave, where the parties may want to continue the employment relationship.

Still another opportunity for pre-suit or pre-discovery mediation is when parties lack the financial or emotional wherewithal to see a case through. The parties may be aware of weaknesses in their claims or defenses, may have less than ideal witnesses, or may want to avoid costly discovery. There are virtually limitless concerns parties may have, including, avoiding disclosure of confidential medical records, comparator information or financial data. Mediation in situations like these can be especially cost-effective.

As mediators and mediation advocates, we know that every day great minds meet to resolve problems in mediation. But when to meet may have significant impact on the likelihood of resolution, so when litigation is threatened or anticipated, decision makers and their counsel should consider whether pre-suit or pre-discovery mediation is appropriate. Decision makers should weigh the benefits of early mediation against the risk and uncertainty of going forward, and then explore the opportunities and benefits pre-suit mediation offers. 
 

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The federal health care reform legislation passed in March of this year included an amendment to the Fair Labor Standards Act (FLSA), requiring employers to provide reasonable unpaid break time to nursing mothers to express breast milk for the nursing child. The requirement to provide breaks extends for one year after the child is born. The DOL has just released a fact sheet with general information about the requirements.

Briefly, the law requires that employers provide "reasonable break time... each time such employee has need to express milk." Employers must provide a private location, free from intrusion, other than a bathroom, for purposes of the break.

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On Tuesday, May 25, 2010, Representatives Phillips and Driehaus introduced in the Ohio General Assembly a bill that effectively would create a single definition of "employee" for purposes of Ohio workers' compensation, unemployment compensation, payroll taxes, minimum wage and other purposes. Presently, each statute contains its own test for determining whether an individual is an employee or an independent contractor, often resulting in conflicting results.

If passed, this legislation would create a single seven-factor test for evaluation whether an individual truly is an independent contractor.

For an individual to be an independent contractor under H.B. 523, all of the following factors would have to be met:

1. The individual has been and continues to be free from control and direction in connection with the performance of the service.
2. The individual customarily is engaged in an independently established trade, occupation, profession, or business of the same nature of the trade, occupation, profession, or business involved in the service performed.
3. The individual is a separate and distinct business entity from the entity for which the service is being performed or, if the individual is providing construction services and is a sole proprietorship or partnership, the individual is a legitimate sole proprietorship or a partner in a legitimate partnership.
4. The individual incurs the main expenses and has continuing or recurring business liabilities related to the service performed.
5. The individual is liable for breach of contract for failure to complete the service.
6. An agreement, written or oral, express or implied, exists describing the service to be performed, the payment the individual will receive for performance of the service, and the time frame for completion of the service.
7. The service performed by the individual is outside of the usual course of business of the employer.

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President Obama signed the “Jobs Bill” into law on March 18, 2010. Part of the Jobs Bill is the HIRE or “Hiring Incentives to Restore Employment” Act. The HIRE Act grants employers a tax exemption for their 6.2 percent Social Security (or FICA) payroll contribution for every new qualified employee hired between February 3, 2010, and before January 1, 2011, for wages paid beginning March 19, 2010.

A qualified employee is someone who has been unemployed for 60 days prior to accepting employment. Being “unemployed” means having worked less than 40 hours during the preceding 60-day period. To be qualified, the employee must not be hired to replace another employee unless the employee quit voluntarily or was fired for cause, which includes employees who were terminated as part of downsizing. Finally, a qualified employee must not be “related” to the employer as defined in the U.S. Tax Code.

In addition to the 6.2 percent exemption, employers may earn an income tax credit that is equal to 6.2 percent of paid wages, or up to $1,000, for every new qualified employee who is retained for 52 consecutive weeks. This credit will be taken on the employer’s 2011 income tax. To ensure eligibility for the income tax credit, the employer must ensure that the wages paid to any qualified employee during the last 26 weeks are at least 80 percent of what was paid to that employee during the first 26 weeks.

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As noted in a recent New York Times article, researchers have found that the number of unpaid internships has risen, likely due to employers' limited ability to provide new paying jobs and students' willingness to gain increasingly hard-to-come-by experience. However, officials from the Department of Labor have indicated that many unpaid internship arrangements violate federal law. Nancy Leppink, Acting Director of the DOL's Wage and Hour Division, stated: "If you're a for-profit employer or you want to pursue an internship with a for-profit employer, there aren't going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law."

The Division utilizes the following six-factor test to determine whether an individual is an employee or a "trainee" under the Fair Labor Standards Act:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close observation;
4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and
6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

See Advisory, Training and Employment Guidance Letter No. 12-09. Only if all of the above factors are met may an individual be considered a trainee, in which case he or she is not considered an employee and is not subject to the minimum wage or overtime requirements of the FLSA. Among others, it is often difficult for employers to meet the factor requiring that they derive no immediate advantage from the individual’s work.

Due to the increasing number of unpaid internships, the DOL is ramping up enforcement efforts and educating colleges and students regarding the law. Accordingly, employers offering such positions or thinking about doing so should carefully review the positions to make sure they are in compliance with the FLSA.

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Employers may want to pay attention to recently introduced H.B. 470. The Bill was introduced by Representative Stephen Dyer (D-43rd District) and co-sponsors Mark Okey (D-61st District), John Domenick (D-95th District), Raymond Pryor (D-85th District), and Robert Hagan (D-60th District) on March 23, 2010. H.B. 470 would create a cause of action against employers that discriminate against individual job applicants or employees because they smoke tobacco. If enacted, H.B. 470 would prohibit employers from refusing to hire individuals or otherwise discriminating against individuals with respect to the terms, conditions, and privileges of employment because they smoke tobacco. The bill does not impact an employer’s ability to establish policies prohibiting smoking “or smelling like tobacco smoke” during work hours.

The bill does not explicitly include any private remedies for the applicant who is not hired or the employee who is fired. Instead, any employer who violates this provision is subject to civil liability and is subject to escalating fines, including (1) $25,000 for the first offense, (2) $50,000 for the second offense, and (3) $100,000 for each subsequent offense. 

H.B. 470 is still in the early stage of the legislative process. However, we will continue to keep you updated if the bill gains any traction.

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The Federal Motor Carrier Safety Administration has issued a notice of proposed rulemaking that would permanently ban text messaging by commercial motor vehicle (CMV) drivers while operating in interstate commerce and to impose sanctions, including civil penalties and disqualification from operating CMVs in interstate commerce, for drivers who fail to comply with this rule. Additionally, motor carriers would be prohibited from requiring or allowing their drivers to engage in texting while driving.

The term "texting" is broadly defined to mean "manually entering alphanumeric text into, or reading text from, an electronic device." Texting would include, but not be limited to, short message service, emailing, instant messaging, a command or request to access a World Wide Web page, or engaging in any other form of electronic text retrieval or entry, for present or future communication.

The definition of texting would not include: (i) Reading, selecting, or entering a telephone number, an extension number, or voicemail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a phone call or using voice commands to initiate or receive a telephone call; (ii) Using an in-cab fleet management system or citizens band radio; (iii) Inputting or selecting information on a global positioning system or navigation system; or (iv) Using a device capable of performing multiple functions for a purpose that is not otherwise prohibited in this rule. For purposes of the rule, the term "electronic device" includes, but is not limited to, a cellular telephone; personal digital assistant; pager; computer; or other device used to input, write, send, receive, or read text.

Finally, the proposed rule defines driving to include operating a commercial motor vehicle, with the motor running, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle with or without the motor running when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.

Comments (identified by docket number FMCSA–2009–0370) may be submitted on or before May 3, 2010, by any one of the following methods:

Federal eRulemaking Portal:
www.regulations.gov

Fax:
202–493–2251

Mail:
Docket Management Facility (M-30)
U.S. Department of Transportation
West Building Ground Floor, Room W12–140
1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

Hand Delivery:
Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329.

A list of the states (19 to date) that currently prohibit texting while driving can be found at the following USDOT Web site: http://www.distraction.gov/state-laws.

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Employers may not realize that the recently signed health care reform law includes a provision which amends the Fair Labor Standards Act to require reasonable unpaid breaks for nursing employees. In addition to the unpaid break time, the amendment to the FLSA (29 U.S.C. § 207(r)(1)) provides that employers must furnish a private location, other than a restroom, which may be used by the employee to express breast milk. Employers with fewer than 50 employees are not subject to these requirements if such requirements would cause an undue hardship on the employer.

This amendment creates some confusion with existing federal law on the issue of employee breaks. While the FLSA does not require that employees be given breaks, there are federal regulations which indicate that rest periods of short duration (usually lasting 5 to 20 minutes) are considered compensable work hours. The proposed amendment, however, specifically states that employers are not required to compensate nursing mothers for reasonable break times.

In addition, although many states have passed laws requiring employers to provide nursing mothers with reasonable break time, Ohio’s law addresses only the right to breastfeed in a place of public accommodation. Although Ohio’s breastfeeding law governs the relationship between a place of public accommodation and individuals who are attempting to use the accommodations, employers with places of public accommodation on their premises (i.e., store, restaurant, bank) should be mindful of this law. Also, based on the Ohio Supreme Court decision in Allen v. Totes/Isotoner, it appears that there are at least a few justices who may be prepared to extend pregnancy discrimination laws to nursing mothers.  For a further discussion of the Allen case, please see our previous blog from August 31, 2009.

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Following a year-long contentious debate, Congress finally passed the President’s top domestic agenda item: Health Reform.

Sunday, the House of Representatives passed the Senate version of the Health Reform Bill by a slim margin (three votes more than required) and no Republican support. The Bill contains broad reforms that make numerous significant changes to the ways in which healthcare is accessed, delivered and financed. Some of the noteworthy changes (and effective dates) for employers to consider are the following:

•  Employers with 200 or more employees that sponsor a health plan must automatically enroll all employees in the employer-sponsored plan. Employees may opt-out of the employer plan if they demonstrate they have coverage from another source. (January 1, 2014)
• Employers with more than 50 employees that do not offer coverage and have at least one full-time employee who receives a premium tax credit will be assessed a fee equal to the lesser of $3,000 for each employee receiving a premium tax credit or $750 for each full-time employee. (January 1, 2014) (Note this provision may be modified in the reconciliation bill discussed below.) 
• Employers that offer coverage to employees must provide a “free choice voucher” to employees with incomes less than 400% of the federal poverty level (currently the federal poverty level is $10,830 for an individual, and $22,050 for a family of four) if that employee’s share of the premium exceeds 8% but is less than 9.8% of the employee’s income and the employee enrolls in a health plan through the newly created Exchange. The amount of the free choice voucher is the amount the employer would have paid for the employee under the employer-sponsored plan. Employer’s providing free choice vouchers are not subject to the assessment for employees that receive premium credits for coverage purchased through the Exchange. (January 1, 2014)
• Employers with 25 or fewer employees and average annual wages of less than $50,000 per employee will be eligible for a tax credit. The full amount of the tax credit is phased in over several years, and the tax credit phases out as firm size and average wages increase. (January 1, 2010) 
• Creates a temporary reinsurance program for employers that provide health coverage to retirees (55-64) not eligible for Medicare. The reinsurance program provides for payment of claims at 80% of eligible expenses incurred between $15,000 and $90,000. (June 21, 2010 through January 1, 2014) 
• Over-the-counter drugs will no longer qualify for reimbursement under a health reimbursement account or health flexible spending account. (January 1, 2011) 
• The tax on distributions from health savings accounts that are not used for qualified medical expenses increases to 20%. (January 1, 2011)
  Contributions to health flexible spending accounts will be limited to $2,500 (subject to certain adjustments). (January 1, 2011)
  Increases the Medicare Part A payroll tax to 2.35% on earnings over $200,000 for individual taxpayers and $250,000 for married couples filing joint returns. (January 1, 2013)
  Tax deduction for employers who receive Medicare Part D drug subsidy payments is eliminated. (January 1, 2013)

The House of Representatives also passed a bill which includes a number of proposed amendments to the Health Reform Bill it approved on Sunday. Over the coming days, those amendments will be considered in the Senate through a process known as reconciliation, which allows bills to be approved based upon a simple majority vote (51) rather than the usual 60 vote super majority required in the Senate. The reconciliation process is likely to generate considerable controversy and debate and should be closely followed for any further modifications to the recently approved Health Reform Bill. 

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On February 19, 2010, the Second Circuit Court of Appeals vacated a district court decision and reversed JetBlue Airways’ favorable summary judgment in a case brought by a former customer service supervisor who complained to her supervisor, who was also the alleged harasser, about a hostile work environment because other avenues of complaint may have appeared to be futile.

The employee alleged that over a seven-month period her supervisor made several remarks about wanting to massage or suck on a woman’s breasts, remarked about going home so that his wife could attend a “sex toy” party and asked a female coworker whether she had “gotten enough loving” over the weekend. Other employees testified that the supervisor grabbed female crewmembers, that he frequently made inappropriate comments and gestures, and that he stared at them as if he was mentally undressing them.

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Ohio employers will want to pay close attention to H.B. 434, which was proposed by House Representative Kenny Yuko, D-Richmond Heights, last week. The Bill is similar in nature to the Worker Adjustment and Retraining Notification Act ( “WARN”), but goes further than the federal law in several respects. For example, the Bill would require an employer in Ohio laying off 25 or more employees in any 30-day period to give at least 90-days’ advance written notice of the layoff to affected employees, local workforce policy boards, and certain state departments and local elected officials. The notice period would be expanded to 120 days for employers planning to lay off 250 or more employees. Also, the penalties for violations include double back pay for all affected employees, as well as the full value of their employee benefits.

The Bill does contain exceptions similar to those found in WARN, including exceptions for temporary facilities, layoffs arising from “circumstances that were not reasonably foreseeable,” caused by “physical calamity, natural disaster, or act of war,” or where the employer can show that "notice would have blocked incoming capital which might have prevented the layoff.” 

H.B. 434 is still in the very early stages of the legislative process. However, because it would expand employer advance notice obligations in several respects beyond WARN’s requirements, it bears watching – and perhaps warrants a call to your State representative.  We will continue to keep you updated.

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On Monday, February 1, 2010, the U.S. Department of Labor (DOL) released its budget for the 2011 fiscal year. In a 95-page summary of the new budget, the DOL elaborated upon its plans for the approximately $14 billion it seeks in discretionary budget authority. According to the summary, the DOL will focus its efforts in 2011 on supporting reform of the Workforce Investment Act, rebuilding Worker Protection Programs, initiating a multi-agency legislative proposal to establish automatic workplace pensions, and boosting funds for unemployment insurance integrity efforts. From our perspective, however, the two most notable aspects of the 2011 budget are its provisions concerning employer misclassification of workers and paid family leave. 

The DOL proposes to devote $25 million to a joint Labor-Treasury Misclassification Initiative that will enable the agency to better detect, investigate, and prosecute employers who misclassify their workers, and to offer competitive grants to boost states’ incentives to address the problem. In addition, the DOL proposes to further limit the possibility of employer misclassification by:

1. requiring employers to demonstrate that their employees are classified correctly,
2. closing the safe harbor created by Section 530 of the Revenue Act of 1978, and
3. making misclassification of employees an explicit violation of the FLSA.  

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While attending a Mixed Martial Arts event in Miami, New York Jets head coach, Rex Ryan, apparently made an obscene gesture at some Miami Dolphin fans who were taunting him. Yesterday, the Jets fined Ryan $50,000. Ryan was attending the event, which was neither team nor NFL-sponsored, on his own time, but the team obviously felt that as head coach, Ryan is their representative even when he is "off duty" and that he must conduct himself accordingly.

In the real world, most employees are not celebrities that the general public will try to egg on until they do or say something stupid. Nevertheless, it is important for all of us to remember that the world is now filled with opportunists with camera phones and easy access to YouTube and other media outlets. Though we should not be expecting to see a rash of employers firing factory workers for flipping off a bunch of bar patrons after work, there are real world lessons to be learned from this episode. First, employees need to recognize when they are out in public that there is a significant risk that anything that they do or say that either embarrasses or otherwise reflects poorly on their employer ultimately may get back to the employer. On the other hand, employers should exercise restraint before taking disciplinary action against employees for their off duty conduct to make sure that the conduct truly does negatively impact the company's business or reputation.

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Recent reports have indicated that the number of FLSA collective actions rose sharply in 2009. Many believe this trend will continue in 2010 as employees gain increased awareness of their rights under wage and hour laws and the plaintiffs' bar recognizes the potential value of FLSA collective actions.

Indeed, there has been a recent flurry of activity across the country in the area of wage and hour class actions. Assistant managers at Foot Locker Retail Inc. filed a nationwide collective action in the Southern District of California, alleging that the company misclassified them as exempt and failed to pay them overtime wages. Similarly, Vermont state employees have brought a putative class action under the FLSA, claiming that the state has failed to pay overtime to employees in higher pay grades. 

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 Yesterday, the EEOC released its charge statistics report for its 2009 fiscal year, which ended on September 30, 2009. Not surprisingly, during an economically difficult period, the statistics show a near record number of charges filed -- 93,277 -- which is second only to the 2008 fiscal year when 95,402 charges were filed.

As usual, sex and race discrimination charges led the pack, but they also showed a slight decline from the previous fiscal year. Somewhat surprisingly, during a period that saw extensive reductions-in-force, age discrimination charges were significantly down. On the other hand, disability discrimination and retaliation charges showed the sharpest increase, both numerically and statistically.

The increase in disability discrimination charges likely can be tied directly to the enactment of the Americans with Disabilities Act Amendments Act (ADAAA) which makes it significantly easier for applicants and employees to establish that they have a protected disability. Employers can reduce the likelihood of being targeted for a disability discrimination charge by recognizing this new reality and engaging in good faith in the interactive process to determine whether a reasonable accommodation exists for applicants or employees with alleged disabilities. Frequently, the give and take of the interactive process if conducted in good faith will either result in finding an accommodation that both sides can live with or demonstrating to the applicant or employee's satisfaction that no reasonable accommodations actually exist. Remember, the ADA, even as amended by the ADAAA, still does not require the employer to provide applicants or employees with the accommodation they want -- only a reasonable one.

With respect to retaliation charges, as we have preached in previous posts both here and here, employers must be careful to treat employees who have filed discrimination charges or lawsuits as they would treat any other employee -- no better, no worse. In fact, the U.S. Supreme Court's decision in Crawford v. Metro. Gov’t of Nashville and Davidson County early in the 2009 term held that the retaliation protection provided by Title VII extend to employees who speak out about discrimination during the employer’s investigation into another employee’s internal complaint of discrimination. The Crawford decision, therefore, underscores employers' need to protect themselves from potential retaliation cases in this context as well by following up on any employees who claim "me too" in the course of internal discrimination investigations.

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As concerns about the potential scope of the H1N1 flu continue to grow, one question we keep hearing from clients is whether employees who believe they have contracted H1N1 in the workplace may have compensable workers' compensation claims. In the vast majority of cases, we believe the answer will be a resounding "No."

Ohio defines an occupational disease as:

"a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general."

Therefore, for instance, the office worker who contracts H1N1 because somebody in the next cubicle had it does not have a compensable claim. The situation is no different than the seasonal flu from year to year.

One likely exception to my general proposition come to mind:  healthcare workers, who by the nature of their work may be exposed to H1N1 in a greater and different manner than members of the general public. Childcare workers also may have an outside chance at establishing a viable claim. Even then, however, most healthcare and childcare workers will still have a difficult time proving actual causation; that is, that they actually contracted H1N1 as a result of their work rather than from a sick family member, at a restaurant or some other public place.

The H1N1 vaccine may also pose a potential risk if it ever becomes widely available. Workers who experience side effects from getting an H1N1 vaccine may claim they are entitled to workers' compensation benefits. In the absence of evidence that the employer actually required its employees to get vaccinated and demonstrated illness based on any known side effects, these claims should be rejected.

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Sports fans, you can breath easier about your fantasy football lineups -- Michael Vick is out of the doghouse with the U.S. Department of Labor, presuming he complies with a consent judgment. We had cautioned in an earlier post that Vick’s release from prison did not necessarily mark the end of his government obligations, given DOL allegations of ERISA violations. As explained in the DOL’s press release, the DOL’s complaint alleged that Vick and others improperly removed $1.35 million of pension plan assets to help pay the criminal restitution imposed on Vick after his conviction for unlawful dog fighting, and to help pay his attorney in his bankruptcy cases. Vick and his company, MV7 LLC, agreed to repay at least $416,461.10, pay a fiduciary to manage the plan until its termination, and pay a monetary penalty. The $933,539 difference between the amount alleged in the complaint and the repayment amount is not explained in the press release, though perhaps that is because Vick agreed to forfeit his share of the pension benefits. Vick can play football, but he is permanently barred from being an ERISA plan fiduciary.

Hopefully we don’t need to caution our readers to refrain from participating in unlawful dog fighting, and from “improperly removing” pension plan assets to buy their way out of trouble. But there is one sentence in both this press release and another press release about an Ohio mortgage broker that hits closer to home: “In fiscal year 2008, [DOL] achieved monetary results of $1.2 billion related to pension, 401(k), health and other benefits for millions of American workers and their families.” If someone out there is essentially stealing well over $1.2 billion per year of employee money (since this is just the amount recovered), shouldn’t we be appalled at the systemic flaw that allows this to happen? But is that really what is happening, or do employers need to be more worried about how DOL is getting to this $1.2 billion per year figure? A significant portion of this large dollar figure is related to participant contributions that EBSA argues “were not timely contributed” to a benefit plan.

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As a follow up to our recent post on e-Verify, many of our financial institution clients have been asking whether they are required to comply with the new federal e-Verify requirements for federal contractors.

Under federal affirmative action laws, many banks are considered federal contractors because they are issuing and paying agents for U.S. savings bonds or they are insured by FDIC. However, as explained below, issuance and payment of U.S. savings bonds and FDIC insurance do not trigger e-Verify obligations.

Clarifying language in the e-Verify regulations states that:

Agreements or activities performed by financial institutions that are not subject to the FAR (Federal Acquisition Regulation) are not required to comply with the e-Verify provisions and clauses of the FAR.

This statement in the e-Verify regulations is given in response to a specific question about whether banks and other financial institutions whose federal contracts are limited to serving as issuing and paying agents for U.S. savings bonds or being insured by the FDIC should be excluded from e-Verify requirements. Since issuance of or payment on U.S. savings bonds and FDIC insurance are not covered by FAR, they do not trigger e-Verify obligations. Similarly, the clarification notes that financial agency agreements (FAAs) between banks and the federal government are not subject to FAR and, therefore, do not trigger e-Verify obligations.

For all of these reasons, so long as the only federal contracts for your bank are of the sort described above, you can rest assured that you do not have to comply with the federal e-Verify requirements. 

The e-Verify regulations do not address specifically federal share insurance of the sort that credit unions have under the National Credit Union Insurance Fund.  However, the rationale for concluding that FDIC insurance does not trigger e-Verify requirements would  apply also to federal share insurance for credit unions. 

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You may have noticed a spate of recent articles and announcements indicating that “all federal contractors” will be required to begin using the federal government’s E-Verify system beginning September 8, 2009. Originally set to take effect on January 15, 2009, there have been three prior delays in implementing mandatory use of E-Verify for federal contractors. On August 26, however, a federal district judge rejected a request for further delay, so it appears the E-Verify regulations will actually go into effect on September 8. (See our recent blog post.) In light of this, current contractors should start thinking about how E-Verify will affect them – if at all.  

Even though many of the articles on this topic indicate that “all federal contractors” are required to start using the system on September 8, the reality is that not all contractors will be covered and that even covered contractors have time after September 8 to enroll and start using E-Verify. 

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Concerns about H1N1 Influenza are beginning to creep back into everyone's consciousness as summer is drawing to a close. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at:

CDC Guidance for Businesses, Employers, and Workplaces to Plan and Respond to 2009 H1N1 Influenza

Preparing for the Flu: A Communication Toolkit for Businesses and Employers

Employers should be ready to implement strategies to protect their workforces while ensuring continuity of operations. Most of the recommendations boil down to simple common sense:

1. Encourage workers who are sick to stay home (or go home if they've reported to work);
    
2. Encourage good hygiene in the workplace;
    
3. Prepare for increased numbers of employee absences due to illness in employees and their family members, and plan ways for essential business functions to continue;
    
4. Prepare for the possibility of school and daycare dismissal and closure; and
    
5. Encourage workers to get vaccinated.

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EFCA, as introduced in Congress in February 2009, includes sweeping changes to the rules for union organizing. (Please read our earlier blogs for further discussions on EFCA.)  The two most controversial original EFCA provisions are: (1) card-check recognition, which would allow unions to demand recognition rights based solely on union cards that they can pressure employees to sign through face-to-face interaction; and (2) mandatory binding arbitration to resolve impasse in first labor contract negotiations. The card-check provision has been especially controversial because it would result in unions obtaining bargaining rights without a secret ballot election. No doubt sensing that the general public favors secret-ballot elections, a number of moderate Democratic senators have begun to pull back support for card-check recognition as EFCA nears debate in the Senate.

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CNN.com is reporting that a group of Philadelphia policemen and women have filed a class action lawsuit in federal court against the Philadelphia police department for race discrimination on the ground that the department allegedly permitted its white officers, including some of supervisory rank, to maintain a private website that allegedly was used as a forum for racially offensive comments. It is alleged that the website created a hostile work environment, in part, because it was both accessed and discussed in the workplace. Although the police department has disavowed any responsibility for the website, which was password protected, questions necessarily will arise regarding whether the department had knowledge of the content on the website and acquiesced to it and whether it permitted the site to be operated during work time. Even if the department can establish it did not sanction or condone the website, the lawsuit still raises a number of interesting issues as to the extent to which an employer can be held liable for discriminatory and/or harassing conduct of its employees by supervisors while they all are off duty.

We don't know whether the police department had a policy regulating its officers' internet access, either on duty or off duty. Such a policy, if it exists and was enforced, might support the department's attempt to distance itself from the racially-charged comments on the website. Similarly, the content and enforcement of its policy against harassment will undoubtedly be scrutinized in the months ahead. As it stands, the department faces what looks to be an arduous legal battle. In addition, the department undoubtedly will need to take action internally to ensure that any future employment decisions, such as promotions and terminations, aren't tainted by the allegations in this complaint.

Here is a link to the CNN article: http://www.cnn.com/2009/CRIME/07/17/police.racism.lawsuit/index.html, which appropriately warns that the complaint -- to which it links -- may be highly offensive to some.

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On July 15, 2009, the EEOC published “Understanding Waivers of Discrimination Claims in Employee Severance Agreements,” a document directed to employees facing layoffs. The publication is not apparently intended to change existing regulations, but rather to summarize the legal requirements for severance agreements under the ADA, Title VII, the Equal Pay Act, and, separately, the Age Discrimination in Employment Act.

As noted by the EEOC’s summary, in order to minimize the risk of potential litigation, many employers provide laid-off employees with optional severance agreements, by which employees may obtain certain compensation or benefits in exchange for releasing the employer from liability. The EEOC document specifically addresses the validity of such releases, and it is therefore useful reading for employers as well.

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Generally, the firing of a professional sports team's general manager is not going to raise my interest as an employment lawyer, but the comments made by the owner of the Chicago Blackhawks after Dale Tallon was fired certainly piqued my interest. Those hockey fans in the audience may know that Tallon's firing came shortly after the NHLPA filed a grievance claiming that he failed to send out timely qualifying offers to players that were restricted free agents. Rather than risking those players becoming unrestricted free agents, Tallon quickly signed them to long term contracts that probably aggravates the team's salary cap issues in the near term and ultimately may cost the team more money.

In an effort likely designed to deflect attention from this blunder, Rocky Wirtz, the Blackhawks owner, is quoted by MSNBC.com as follows regarding Tallon's replacement: Asked what Bowman, who's in his ninth year with the Blackhawks, brings to the job that Tallon didn't, Wirtz said: "He's 36, Dale is 58. We always want younger people. What he brings is a system in place to get better," Uh oh.

Fortunately for the Blackhawks as it relates to Tallon's situation, the recent Supreme Court decision in Gross v. FBL Financial Services probably saves them from a potential claim of age discrimination. As reported previously, Gross holds that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. Here, John McDonough, the Blackhawks president who appears to have been the driving force behind the termination, acknowledged that Tallon probably would not have been fired if not for the free agent incident. For future reference, however, the Blackhawks may want to keep tabs on Congress, which already has announced that it will hold hearings directed at overturning the Gross decision.

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Back in December 2007, we wrote about the NLRB's decision in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70, which held that employees do not have a protected right to use employer email systems for solicitations or communications regarding union-related topics. In addition, the Board applied a new standard for determining when employers discriminatorily enforce email policies and, thus, violate Section 8(a)(3) of the NLRA. Specifically, as to the 8(a)(3) standard, the Board held that, in determining whether a policy had been discriminatorily enforced against the union, it looked to whether there had been "unequal treatment of equals."  Then, the Board upheld Register-Guard's enforcement of its email policy against an employee who was soliciting support for the union because there was no evidence that the company had permitted solicitation on behalf of other non-union groups (even though it had permitted various other personal uses of the email system, including personal solicitations for sports tickets and the like.) 

On July 7, 2009, however, the Court of Appeals for the D.C. Circuit refused to uphold the Board's conclusion as to whether the employer discriminatorily enforced its email policy but did not explicitly overrule the standard announced by the Board in December.   (On appeal, the union did not challenge the lawfulness of the email policy itself).   In short, the court held that the the company's discipline of an employee for using the email system to solicit employees to wear green in support of the union and to seek volunteers to help with the union's entry in a city parade violated 8(a)(3). Calling the distinction between organizational and personal solicitation a "post-hoc invention" that did not actually exist in the company's email policy, the court found that the company policy prohibiting non-work-related solicitations "made no distinction between solicitations for groups and for individuals."  Equally significant, the court noted that the company’s disciplinary warning" did not invoke the organization-versus-individual line drawn by the Board. To the contrary, the company told the employee in question to “refrain from using the Company’s systems for union/personal business.”

Because it is so fact-specific, the court's decision should not cause employers much concern.   In fact, the email policy at issue, which prohibited use of the company's communications systems “to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations,” would seem to be equally applicable to personal solicitations of a non-work nature as it is to organizational solicitations.   The good news here is that the court's decision does not disturb the underlying premise that employers may prohibit union access to its email system so long as it does so in a nondiscriminatory manner.  

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It's hard to believe that fewer than 10 years ago, there was widespread concern that our computers were all going to blow up and there would be anarchy in the streets. Since the clock struck midnight on January 1, 2000, we have seen an unprecedented technology boom that has had a widespread impact on the workplace. Remember the anxiety caused by cameras on our cell phones due to their impact on protecting trade secrets and our privacy in the locker rooms? Since then, we have grown comfortable with workers using laptops offsite though we still need to concentrate better on keeping track of them and what is on them!

Now, the social media craze -- Facebook, Linked-In, Twitter, etc. -- seems to be causing employers the most recent concern. As editor of employerlawreport.com, I have come to achieve a certain comfort level with social media, but I think that what primarily is keeping many employers up at night is fear of the unknown. That is why I'm going to summer camp! Starting this past Tuesday and running through the second Tuesday in August, I will be attending Social Media Summer Camp, a Columbus Business First initiative. The first session, "Social Media 101," provided a nice overview of everything that is out there and how businesses have been and could be using social media to market their services and products. The attractiveness of social media from a marketing perspective is often easy to see and hopefully we will be able to use some of what we learn at camp to improve our blog and to otherwise better communicate with our clients and friends.

In addition, I'm keeping my employment lawyer hat on to identify potential issues for employers that are encouraging their employees to "friend" others or to "tweet" or are attempting to regulate how and when they do it. This past Tuesday's session left me with one particular impression: Whether or not companies choose to use social media to foster their business, they would be wise to monitor the various social media outlets to make sure that others, including disgruntled and former employees, are not messing with their messages or creating unwanted ones.

So that's why I'm going to summer camp. I'm taking my laptop with me, but fortunately for all involved, I'm leaving my bathing suit at home.

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On June 29, 2009, the Supreme Court addressed a provocative question about the current state of workplace diversity in the United States. In the controversial Ricci v. DeStefano decision, the Court determined by a vote of 5-4 that only in very narrow circumstances can public employers engage in disparate-treatment discrimination to avoid violating the disparate impact provision of Title VII of the Civil Rights Act. In order to make a race-conscious preventative decision, an employer must have a strong basis in evidence that a given selection method was deficient and that discarding that method’s results is necessary to avoid creating a disparate racial impact.

Title VII protects employees from two types of discrimination based upon race, color, religion, sex, and national origin: intentional acts of discrimination (disparate treatment), and facially neutral policies and practices that have a disproportionate adverse effect on minorities (disparate impact).   If an employee makes a prima facie showing of disparate impact discrimination, the burden then shifts to the employer to prove that the practice in question is job related and consistent with business necessity. Even if the employer meets this burden, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has a lesser disparate impact and serves the employer’s legitimate needs. Ricci posed the question of under what circumstances an employer may take race-conscious action to avoid disparate-impact liability given this statutory scheme.

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We have been receiving more and more questions from human resources professionals asking how the ADA might impact their preparation for a potential pandemic flu. Now the EEOC has issued technical guidance on the topic, focused primarily on employers’ rights to make medical inquiries and require medical examinations of applicants and employees.  With respect to applicants, the EEOC notes that the ADA operates normally to preclude all disability-related questions and medical exams until after a conditional offer has been made.  With respect to current employees, who can be required to respond to medical inquiries or undergo medical exams only if they are job-related and consistent with business necessity, however, the EEOC recommended a model survey of employees that could be issued to all employees in preparation for a pandemic. The model survey is reprinted below:

ADA-Compliant Pre-Pandemic Employee Survey:

Directions:   Answer “yes” to the whole question without specifying the reason or reasons that apply to you.  Simply check “yes” or “no” at the bottom.

In the event of a pandemic, would you be unable to come to work because of any of the following reasons:
 

    If schools or day-care centers were closed, you would need to care for a child; 

    If other services were unavailable, you would need to care for other dependents;

    If public transport were sporadic or unavailable, you would be unable to travel to work,  and/or:

      If you or a member of your household fall into one of the categories identified by CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer:   YES __________   NO __________
 

The EEOC’s guidance also clarifies its position that employers may enforce rules requiring employees to behave in a hygienically appropriate manner to avoid the spread of the flu, to wear personal protective gear such as face masks, and to require employees to work from home.
 

In a separate release cryptically titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu),” the EEOC reminds us that Title VII “prohibits employment discrimination on the basis of national origin, for example, discrimination against Mexicans.” The “guidance” states nothing else as it relates to Title VII. Presumably, the EEOC wants to remind employers not to direct any employment actions at workers of Mexican descent out of a fear or concern that they may be more likely to carry the H1N1 flu virus.

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More and more federal non-employment statutes, regulations and programs are coming with strings attached for human resources professionals to grapple with. For instance, who would have expected that the federal plan for rescuing troubled financial institutions would have anything to do with immigration, that the federal stimulus statute would include whistleblower provisions and changes to COBRA benefits laws, or that consumer protection laws would contain whistleblower provisions? Now comes the Customs and Border Protection's (CBP's) Customs Trade Partnership Against Terrorism (CTPAT) program, which grew out of September 11 to help improve supply-chain security, and its employment-related provisions. CTPAT is a voluntary partnership program between the private sector and CBP to secure the supply chain for products entering commerce in the United States. Many view CTPAT certification as the equivalent of an ISO certification, and it can be a significant marketing tool. Companies that want to obtain CTPAT certification, in addition to implementing various security measures, must meet certain minimum criteria for personnel security including background checks, reference checks, exit interviews, procedures for providing employee ID, keys and fobs etc. If you are a human resources professional in the transportation and logistics industry, you should check with the business or operations side of your organization to find out whether your company is planning to participate in the CTPAT program so that you can get a jump on aligning your employee security procedures with the program's requirements.

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Now that we have the first confirmed case of swine flu here in Ohio, it makes sense to dust off the guidance we received from the U.S. Department of Labor and the Center for Disease Control when the avian flu was prompting concerns about a pandemic flu in the United States. Thus far, the confirmed cases of swine flu in the United States appear to have been relatively mild, but employers nevertheless should prepare to do their part to reduce the threat of pandemic flu and to respond should their workplaces be hard hit.

Those employers who want to be ahead of the game if the outbreak becomes more widespread should review the attached handbook entitled Guidance for Preparing Workplaces for an Influenza Pandemic, which was prepared by OSHA back in 2007. The handbook contains common sense advice for all employers to help reduce the risk of spreading the disease. For most employers, the recommendations are not rocket science nor difficult to implement. They mostly involve encouraging sick employees to stay home, encouraging basic hygiene practices in the workplace, and encouraging "social distancing" (i.e. avoiding close contact and crowds of people). The handbook also sets forth more extreme recommendations for employers with a medium exposure risk because of frequent close employee contact with the general public and for employers with high exposure risk due to frequent close employee contact with infected individuals. For healthcare workers and employees, OSHA also issued a handbook in 2007, which can be accessed here.  If the CDC and/or OSHA issue any further guidance in light of this most recent flu outbreak, we will let you know.

Though, the risks of pandemic flu still are being downplayed at this point, employers may also want to revisit their disaster plans for continuing operations in case of widespread employee absences.

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On Tuesday, March 31, 2009, the IRS issued its Notice 2009-27 providing additional guidance under the American Recovery & Reinvestment Act of 2009 (“ARRA”) relating to premium subsidies for COBRA coverage. The Notice addresses a number of issues, including the question of who is eligible for the subsidy, the method for calculating the premium reduction, and the length of the entitlement to the subsidy. [View the notice here.]

Of particular interest to employers is the guidance concerning what will be considered an “involuntary termination” entitling persons to the premium subsidy. The IRS gives this broad definition: “An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services.” Although it is a mouthful, that sounds simple enough. But, further language in the guidance and some of the specific examples show that there is plenty of room for disagreement about what is an involuntary termination. Of particular interest is language saying that the government will consider a resignation to be an involuntary termination if the resignation is “due to employer action that causes a material negative change in the employment relationship for the employee.”

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The U.S. Department of Labor (DOL) has released four model notices for use by employers in connection with requirements of the American Recovery and Reinvestment Act (ARRA) (see Employment Law Alert – “Broad COBRA Changes in 2009 Stimulus Bill – What Should You Be Doing Now?” – March, 2009). The model notices are available on the DOL web site: http://www.dol.gov/ebsa/COBRAmodelnotice.html. Employers and plan administrators should use the model notices as a guide, but those notices will require customization to meet the circumstances of particular employers and plans. Also, in the Model election forms there is a technical error in the way the election period is described. The Model election forms state that an election must be made within 60 days of notice. In fact, COBRA regulations allow for elections within 60 days of the date of notice or the date that coverage will end due to the qualifying event, whichever is later. Employers and plans using the Model Notices as a guide should correct that error.

The DOL and Internal Revenue Service have posted on their websites answers to common questions regarding the COBRA changes: http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionER.html and http://www.irs.gov/newsroom/article/0,,id=204708,00.html.

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The Employee Free Choice Act, or EFCA, was introduced in Congress on March 10, 2009. The bill, introduced as H.R. 1409 and S. 560, is identical to last year’s bill. On February 26, we discussed the Secret Ballot Protection Act (see post here), which was proposed by Republicans as a preemptive strike against EFCA and which would prohibit employers from recognizing or bargaining with a union that had not won a secret-ballot election of employees. Democrat Joe Sestak, Congressman from Pennsylvania, has also introduced legislation targeting the relationship between unions, employees, and employers. Rep. Sestak introduced the National Labor Relations Modernization Act (NLRMA) (H.R. 1355) on March 5, 2009. 

The NLRMA mirrors many of the provisions of EFCA but does not include one key provision: the NLRMA does not contain the card-check provision that would eliminate employees' right to choose a union through a secret-ballot election. The NLRMA does, however, contain EFCA’s increase of damages for employers who commit unfair labor practices, a provision similar to EFCA’s regulating the timeline for negotiating the terms of an initial collective bargaining agreement, and a requirement that the parties submit to binding arbitration if they are unable to reach agreement. The NLRMA also contains a novel section—not included or addressed in EFCA or SBPA—which requires employers, following the setting of an election date, to notify unions of any campaign activity they intend to undertake and to allow unions equal access to employees.

Although EFCA is currently in the nation’s spotlight, there is considerable discourse among the public and Congress about the appropriateness of its card-check provision. If Congress becomes convinced that a card-check provision is not the right way to go, NLRMA or some other compromise bill might provide the consensus necessary to pass some sort of labor reform legislation. One thing seems clear. In order for any compromise to get the support or organized labor, it will have to include some means to make it easier for unions to organize workers and some provision for binding dispute resolution when bargaining a first labor contract. These are the things considered by unions to be key to their goal of increased union representation, a goal supported by the White House, by union supporters in Congress, and by the newly appointed Secretary of Labor. Employers should begin now to plan and take steps to prepare for what is certain to be a very concerted increase in union organizing activity.

Among the essential steps are manager training, designed to make managers especially aware of the likely changes in the law, but more important to make them aware of the specific arguments that are used by union organizers to get cards signed and the sort of manager behavior that will make it more likely those union arguments fail. Employers should also undertake a concerted review of policies and practices to be sure that they have in place those rules that make it more difficult for union organizing to succeed and more important, those policies that demonstrate to employees a commitment to effective communication, fundamental fairness, and genuine worker involvement.

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A termination within three months of an employee’s EEOC charge, combined with a claim that the employer increased its scrutiny of that employee after his charge was filed was enough to prevent summary judgment--even where the employer had refrained from terminating the employee at its first opportunity following his charge. Hamilton v. GE.

Jarrett Hamilton sued GE alleging that he was terminated in retaliation for filing an age-discrimination charge with the EEOC approximately three months earlier. He claimed that after he filed the charge, the company intensified its scrutiny of his work.  Of course, he filed the charge while on a 30-day suspension that had been agreed to after he had been terminated while under a Last Chance Agreement (LCA). The Company did not fire him when the first opportunity to do so arose after he filed the charge but later terminated him for what it said was unacceptable conduct, including refusing work directions from a supervisor and using “unacceptable foul and abusive language.”

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In a press release issued yesterday, the Equal Employment Opportunity Commission (EEOC) reports that, in its fiscal year 2008 (October 1, 2007 – September 30, 2008), there was a 15 percent increase in the number of employment discrimination charges filed against employers. The 95,402 charges filed are more than the number of charges filed in any other one-year period in the history of the agency. The greatest percentage increase was in age discrimination charges, up 28.7 percent from the previous year. Sex discrimination charges were up 14 percent, and race charges were up 11.2 percent. There was a smaller percentage increase in disability charges (9.7 percent), but with the recently-passed amendments to the Americans with Disabilities Act, employers will likely see a significant increase in disability charges in fiscal year 2009. 

The steep increase in discrimination charges was no doubt fueled, in part, by job losses in the beginning stages of the economic recession. The continued down-turn of the economy in the last quarter of 2008 and early months of 2009 makes it almost certain that the number of discrimination charges will continue to increase.

So what does all of this mean for you as an employer? To begin, it is far more likely that employers will be sued or will face discrimination charges as employees are laid off or face other adverse employment actions. An economic reduction-in-force will, very possibly, generate charges or lawsuits. All too often, employers do not exercise the care needed with the decision-making leading up to a reduction-in-force. Careful attention to the process and documentation in the early stages, however, can make legal challenges less likely to occur and can make those that are filed more easy to defend. 

As we’ve discussed before, employers should develop and document a sequential approach from the very earliest stages of the decision-making leading up to a reduction-in-force. Key steps in that approach include:

• Reorganizing or eliminating job duties; 
• Selecting the employees best-qualified to perform remaining job duties;
• Establishing criteria for termination or lay-off decisions that are based on legitimate business reasons;
• Documenting the selection criteria, procedure, and decisions;
• Conducting a statistical review to identify any disproportionate impact on protected class employees and, if a disproportionate impact is shown, carefully reviewing decisions to assure that they are supported by legitimate business considerations.

After these steps have been taken, the company should consider payment of severance to and securing signed release agreements from those who are terminated. It is a mistake, though, to presume that all terminated employees offered severance will sign release agreements and therefore give short shrift to the initial decision-making and documentation steps. All it takes is one terminated employee who refuses to sign a release and, instead, files a charge or a lawsuit to negate the savings of the reduction-in-force through the cost of defense, settlement, or an adverse judgment.

Even if your company is not currently in a reduction-in-force mode, careful attention to all employment decisions is essential to reduce the risk of discrimination charges. Things like frank and candid communication in performance reviews and active involvement by human resource personnel in all adverse employment actions can make it far easier to defend later decisions to terminate in a reduction-in-force. 

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The American Recovery and Reinvestment Act of 2009 (the “Act”) was signed by President Obama on February 17, 2009. This Act includes several significant changes to COBRA that employers will quickly need to address. 

The most immediate and notable impact will be a significant reduction in the COBRA premiums paid by certain employees whose employment is involuntarily terminated (and their spouses and dependents who are COBRA-entitled). These individuals can get a 65 percent government-paid subsidy toward their COBRA premiums. Employers are required to “front” the subsidy by paying the full premium and obtaining a reimbursement via a later payroll tax offset. The subsidy takes effect for COBRA coverage periods beginning after the February 17, 2009 enactment date (March 1, 2009 for most plans). 

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The “economic stimulus bill”—formally referred to as the American Recovery and Reinvestment Act of 2009—signed into law on February 17, 2009 includes a whistleblower protection provision for employees of private contractors and state and local governments who report gross mismanagement, gross waste, public safety issues, abuse of authority, or violation of law in the implementation or use of the stimulus funds.  See American Recovery & Reinvestment Act of 2009, Pub. L. No. 111-5, § 1553.  These whistleblower protections are often referred to as the “McCaskill Amendment.”

Like other whistleblower protection statutes, the stimulus bill’s whistleblower protections require that an employee satisfy certain requirements in order to be protected.  First, the wrongdoing reported must be one of the following: (1) gross mismanagement of the agency contract or stimulus funds; (2) gross waste of stimulus funds; (3) abuse of authority in implementing or using the stimulus funds; (4) a violation of law, rule, or regulation related to an agency contract or grant using stimulus funds; or (5) a substantial and specific danger to public health or safety in the implementation or use of stimulus funds.  Second, the employee must have a “reasonable belief” that the information he/she possesses is evidence of wrongdoing falling in one of the above-listed categories.  A reasonable belief is likely to be interpreted as an objectively reasonable belief, as it is in other federal whistleblower protections, requiring the belief be one a reasonable person in the same factual circumstances would hold. Third, the employee must disclose the wrongdoing to one of the following individuals or entities: (1) the Board, (2) an inspector general, (3) Comptroller General, (4) a member of Congress, (5) a state or federal regulatory or law enforcement agency, (6) a person with supervisory authority over the employee, (7) a court, (8) a grand jury, or (9) the head of a federal agency. The Act specifically states that the whistleblower protection applies to internal disclosures and disclosures made in the ordinary course of the employee’s duties. If an employee’s actions meet all three requirements, he/she is protected as a whistleblower under the Act.

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On Wednesday, February 4, 2009, Google launched a new feature called Latitude. Latitude apparently will enable users of smartphones, including most Blackberries, most phones using Microsoft Windows Mobile and, eventually, iPhones, to transmit their locations to another smartphone or desktop computer.

Much like most social networking conventions, Latitude operates on an opt-in basis, which enables smartphone users to share their locations with only certain chosen recipients. Teenagers will undoubtedly find this application "cool" as will the parents of many of those teenagers who may use Latitude to keep tabs on their kids. In addition, many smaller businesses may use the feature to efficiently dispatch delivery and repair crews.

And therein lies the potential privacy problem. Although Latitude is designed to be used only by those who choose to do so, some employers may seek to require their workers to use Latitude so that work activities can be monitored and directed. Requiring employees to put Latitude on their personal cell phones is rife with potential invasions of privacy during nonworking hours. Therefore, employers that choose to use Latitude should plan on issuing company phones to monitored employees and should obtain written employee acknowledgment of and consent to the use of this technology. Furthermore, although Latitude requires an affirmative opt-in, smartphone users must disable the service when they do not wish to be monitored, such as when employees are off the clock. As a result, employers will need to create policies to ensure that appropriate worker privacy is maintained during non-work hours.

Employers should also understand the limitations of location-monitoring services. For instance, Latitude's accuracy is dependent on multiple factors such as whether Google is able to rely on smartphone GPS capabilities or whether Google must rely on cell phone tower triangulation to place the user. Employers must also understand that Latitude and other location-monitoring technology is capable only of identifying a person's location, not what that person is doing. Therefore, employers should be careful about coming to any rush to judgment based on the results of location monitoring.

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On January 29, the Lilly Ledbetter Fair Pay Restoration Act was the first bill signed into law by President Obama. As discussed in prior blog entries, the new law gives a employee or former employee the right to file a charge of discrimination within 180 days (or 300 days in some states, including Ohio) of their most recent paycheck. The Act overturns a U.S. Supreme Court decision holding that the statute of limitations started to run as soon as an employee received his or her first unfair paycheck. Under the new law, each new paycheck alleged to be discriminatory extends the statute of limitations for an additional 180 (or 300) days. 

The new law will significantly impair the ability of companies to defend claims about old pay decisions in federal court, especially for those employers who have forgotten or have not retained documentation as to why a given pay decision was made in the first place.

To read our client alert on this new law, click here.

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Back in October, the FTC announced with great fanfare a delay until May 1, 2009 for enforcing the FACTA Red Flag rules. Those rules require financial institutions and creditors to establish written programs for identifying, detecting, and responding to patterns, practices, or specific activities that are warning signs of identity theft. In contrast, the infrequently discussed Address Discrepancy rules that were issued at the same time as the Red Flag rules quietly went into effect as originally scheduled on November 1, 2008. The Address Discrepancy rules, found at 16 C.F.R. §681.1, apply not only to financial institutions and creditors but, potentially, to all employers that use consumer reporting agencies to conduct background checks on applicants and employees.

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On Monday, December 15, 2008, the City of Columbus modified its ordinances related to discrimination (Chapter 2331 of the Columbus City Codes). The modifications add five new protected classes to the employment discrimination ordinance: age, disability, gender identity or expression, familial status, and military status. 

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National banks may be missing out on a defense available to them against certain state-law employment claims brought by terminated bank officers. In particular, the National Bank Act (NBA) allows national banks to dismiss officers “at pleasure, and appoint others to fill their places.” This provision has been interpreted to mean that state-law tort and contract wrongful discharge claims by terminated bank officers are preempted and, thus, subject to dismissal. See, e.g., Boesch v. Champaign National Bank, Case No. 24014 at 6 (9th App. Summit Cty., June 30, 2008); Schweikert v. Bank of America, Case No. 06-2137 (4th Cir. April 1, 2008).

The NBA preemption defense applies, however, only when a bank’s board of directors makes the termination decision or delegates the authority to do so and then ratifies the decision. The board’s ratification need not occur before or on the termination date, but it needs to occur as promptly afterward as possible.

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Of course, no one can be certain of the exact workplace effects of Tuesday’s Presidential election results. But, at least one major change in employment law is pretty certain – and it is a change that all employers, large and small, in all industries, should be planning for now.

President-Elect Obama has stated clearly his support for the proposed Employee Free Choice Act (EFCA). His election, together with additional Democratic seats picked up in the Senate and Congress, make the passage of EFCA in 2009 a very strong likelihood. That will mean the most dramatic change in labor law in this country in decades.

As a reminder, there are two significant provisions of the EFCA: First, unions will be able to demand bargaining rights based solely on cards that they can pressure employees to sign face-to-face. The protection of a secret-ballot election will be taken away. Second, if labor negotiations between a union and employer for a first contract reach impasse, an outside arbitrator will dictate the terms of that key first contract.

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On August 14, 2008, President Bush signed into law the Consumer Product Safety Improvement Act of 2008 (CPSIA), which includes, among many extensive changes to consumer safety laws, a whistle-blower provision.

This provision applies to all manufacturers, distributors, retailers and private labelers of children's toys, children’s products and child care articles, regardless of the number of employees. Under the Act, children's toys and children's products are generally defined as being "designed or intended primarily for children 12 years of age or younger."  "Child care articles" are defined as "a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething."

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News confirming that the engineer of the Los Angeles commuter train that crashed last week, killing more than 20 people, engaged in text messaging while on the job underscores the need for employers to consider policies banning employee use of cell phones while driving on company business. Though it remains to be seen whether the engineer was texting at the time of the crash, the proliferation of electronic devices, such as Blackberries, and their potentially addictive use is helping to make "distracted driving" an increasing problem on the road. Simply put, distracted drivers are becoming more dangerous to themselves, their passengers and other motorists. Although distracted driving is a public problem that is not unique to employers, employers must recognize that they likely will be the "deep pockets" should a distracted employee cause a car accident. In fact, if the distracted employee also is injured in the accident, a workers’ compensation claim is also a strong possibility.

Some states have enacted laws restricting cell phone use while driving. Ohio is not one of them. As a result, Ohio law enforcement presumably is not obliged to police distracted driving (except in obvious cases of erratic driving). Therefore, to help manage their potential liability from distracted driving, Ohio employers should strongly consider banning the use of cell phones, Blackberries and similar devices while driving on company business as well as from conducting company business on such devices at anytime while driving. Otherwise, whether as a result of employees texting friends while driving on company business or responding to an urgent e-mail from the boss while driving, employers risk potentially significant liability.

For such policies to work, however, employers and employees will need to work together to ensure that the electronic device policy is enforced in a way that respects the fact that the employee may not be able to instantaneously respond to work issues while they are driving.

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In CBOCS West, Inc. v. Humphries, the Supreme Court held 7-2 that under 42 U.S.C. §1981, retaliation itself is a form of prohibited discrimination when contractual rights are at stake, even though §1981 does not include the word “retaliation.” Although this particular issue had been addressed by several appellate courts, the Supreme Court had never addressed the question squarely.

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After more than a decade of effort, supporters of the Genetic Information Nondiscrimination Act (GINA) were finally granted their wish. Passed overwhelmingly by the Senate (95-0) and House (414-1), GINA was signed into law today, May 21, 2008, by President Bush. Title I prohibits genetic discrimination in the area of health insurance while Title II ensures nondiscrimination in the employment arena.

Employers have plenty of time to bring their plans and workplaces into compliance. The Act’s group health plan provisions are effective for plan years beginning one year after enactment. The employment provisions become effective 18 months after enactment – November 21, 2009.

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If your business model includes extensive use of independent contractors, you’re going to want to pay attention to the Ninth Circuit's decision in NLRB v. Friendly Cab Company, Inc., Case No. No. 05-73813 (9^th Cir., January 8, 2008). In the latest attack on the independent-contractor business model, the Ninth Circuit upheld an NLRB finding that the taxi drivers who leased cabs from Friendly Cab were not independent contractors but, in fact, were employees. The NLRB reached this conclusion despite the fact that, after making lease payments, the drivers kept all of their fares. Ordinarily, this factor – that the risk of profit or loss falls on the worker -- creates a "strong inference" of independent contractor status because the purported employer would have no incentive to control the means and manner of the drivers' performance. Nevertheless, the court deferred to the NLRB's conclusion that this inference was rebutted by other evidence that Friendly Cab, in fact, exerted significant control over the drivers and, as a result, found that Friendly Cab was obligated to meet and bargain with the drivers’ union.

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