Employer Law Report

Archives: Traps for the Unwary

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Florida federal judge holds that supermarket chain’s website must be accessible to disabled

In the first trial on the merits involving website accessibility, a federal judge in Florida ruled on June 13, 2017, after a two-day bench trial, that supermarket chain Winn-Dixie violated the Americans with Disabilities Act (ADA) by failing to make its website accessible. Juan Carlos Gil, a blind Florida man who attempted to use Winn-Dixie’s website to locate Winn-Dixie store locations, fill and refill prescriptions, and obtain store coupons, sued Winn-Dixie alleging that he was unable to access these services because the website was not integrated with his screen reader technology. Screen reader technologies such as JAWS read the content …

FedEx employee terminated for using discount to sell on eBay loses USERRA termination challenge but can seek higher pension benefits

Kenneth Savage was terminated by FedEx about a month after a military leave and after complaining about the calculation of his pension benefits due to his military service. That proximity was not enough to establish a discrimination or retaliation claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage’s case was remanded because FedEx may have miscalculated his pension benefits by failing to account for potential overtime hours he might have worked during periods of military service.

Background

Kenneth Savage was employed by FedEx for eleven years as an aviation mechanic. During that same time, he served as …

Don’t wannacry? Help your IT staff prevent ransomware

I have frequently blogged about human resources departments’ role in preventing data breaches in their organizations and to date have largely focused on training employees to recognize and respond phishing exploits designed to encourage employees to click on email links or attachments that contain malware. See for example here, here and here. But, in what some have been calling the biggest cyberattack ever, the recent “Wannacry” ransomware apparently seeks out computers containing a vulnerability in the Microsoft Windows operating system, which permitted the ransomware to  infect approximately 200,000 computers in 150 countries across the globe. No clicking required.…

Work from home case shows importance of job descriptions and interactive dialogue

In a recent “work from home” decision by the U.S. District Court for the Eastern District of Pennsylvania, the court denied Sneaker Villa, Inc.’s, (the employer) motion for summary judgment. Slayton v. Sneaker Villa, Inc. Why is that important? In employment discrimination lawsuits, an employer’s earliest opportunity to have a case dismissed without the cost and risk of a jury trial is with a summary judgment motion. If the motion is denied, the case is headed for trial. The risks go up, the costs go up and, typically, so do the plaintiff’s settlement demands. In this case, the court decided …

Pro se litigant sets off Title VII avalanche: Seventh Circuit holds that Title VII prohibits sexual orientation discrimination

Never underestimate the power of a pro se litigant. That’s one lesson to take away from the Seventh Circuit’s en banc opinion in Hively v. Ivy Tech Community College, which is the first appellate decision to hold that Title VII bars employment discrimination on the basis of a person’s sexual orientation. Because Ivy Tech has stated that it does not plan to seek Supreme Court review (despite a Circuit split on the issue), employers subject to Title VII, particularly in Illinois, Wisconsin and Indiana, should know about this opinion and consider how and whether it may apply to them.…

Boeing Data Breach is yet another illustration of need for employee education and training

In November 2016, a Boeing employee experiencing difficulty formatting an Excel spreadsheet. Not realizing that hidden columns included birth dates and social security numbers for 36,000 Boeing employees, he emailed the spreadsheet to his wife, who was not a Boeing employee, so she could help. This seemingly innocent act prompted Boeing to launch an investigation and notify those employees and officials in four states of a data breach.

You see, data breaches are not always caused by Russian hacks or other cyber-criminals. Sometimes it is the most innocuous action taken by the most well-meaning of employees. As a result, Boeing

The door may be open for county or municipal government “right-to-work” laws in Ohio

Right-to-work laws limit the “union security” a union can achieve in a collective bargaining agreement with an employer. In states with no right-to-work law, unions can bargain for contract provisions requiring that, as a condition of continued employment, employees must either join the union or at least pay monthly fees to the union for its collective bargaining efforts. In states that have right-to-work laws, that sort of union security provision is illegal. There are 26 states with right-to-work laws currently. Ohio does not have a right-to-work law.…

Above the fray: The employer’s how-to guide on navigating the election season

A special thanks to Adam Bennett for his assistance with this article.

Election Day is quickly approaching. Rejoice! There really is a light at the end of the tunnel when the endless stream of attack ads will cease to exist. But before the last ballot is cast, the last precinct closes and the final votes are tallied, employers are sure to have plenty of questions about how to address employees’ political expression in the workplace without violating the law or making any employee feel alienated. To avoid being left with post-election blues, Ohio employers are wise to consider how they …

2nd Circuit “Cat’s Paw” decision highlights importance of employer investigations before termination

In 2011, the U.S. Supreme Court in Staub v. Proctor Hospital first endorsed the “Cat’s Paw” theory of liability in a USERRA case. Derived from an Aesop Fable, the Court held that an employee termination based on information from a supervisor with discriminatory or retaliatory intent can provide the basis for employer liability even if the biased supervisor did not participate in the adverse employment decision. Following up on this decision, federal courts began applying the theory to Title VII and other federal discrimination laws. Last week’s 2nd Circuit decision in Vasquez v. Empress Ambulance Service, Inc., took the …

The word “or” might render your non-compete worthless

The Northern District of Ohio recently refused to grant a Temporary Restraining Order (TRO) or Preliminary Injunction against an employee for allegedly violating a non-compete because the court said the agreement was written in the disjunctive. Alloy Bellows & Precision Welding Inc., v. Cole, Case no. 1:15CV494 (N.D. Ohio, April 22, 2016).

The claim was brought by Ohio corporation Alloy Bellows that manufactures “bellows assemblies,” which are highly specialized components of machines used in aerospace, heavy equipment, medical, nuclear, petrochemical, power generation (gas turbine) and semiconductors. Its former business development manager, Defendant Jason Cole, took a job with one …

8th Circuit upholds unfair labor practice findings in Jimmy John’s “Sick Sandwich” case

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by …

Director of human resources may be personally liable for FMLA violations

What an interesting and challenging time to be a human resources professional. There are the day-to-day challenges such as dealing with management needs, trying to support employee morale, keeping an eye on policy enforcement, legal compliance and workplace investigations. The list goes on. The U.S. Court of Appeals for the 2nd Circuit recently added one more challenge. The Court held that a human resources professional can be held personally liable for her company’s FMLA violations.

The Culinary Institute of America questioned the validity of an employee’s medical support for FMLA time off. In the ensuing communication between company and employee, …

Silence equals acquiesence, equals promissory estoppel claim

In Jennifer Trehar v. Brightway Center, Inc., the Seventh District Court of Appeals held that a promissory estoppel claim can lie even without an explicit promise—silence where an ordinary person would make a statement or take action.

Facts

Jennifer Trehar was employed at Brightway Center, a Christian non-profit, since 2010. In June 2012, she claimed she informed Brightway on two different occasions that she planned to move in with her boyfriend. She claimed that, on the first occasion, she was congratulated by her boss on the move. On the second occasion, she was granted permission to miss a work …

OSHA fines to increase almost 80%

For the first time since 1990, the Occupational Safety and Health Administration (OSHA) will increase its fines to reflect inflation. For willful and repeat citations, this will mean an increase in the maximum possible penalty from $70,000 to around $125,000. For serious citations, it will mean an increase in the maximum possible penalty from $7,000 to around $12,600. The Bipartisan Budget Act of 2015, signed into law by President Obama on November 2, allows OSHA a one time “initial adjustment” for inflation and then allows OSHA to adjust for inflation annually after that.

OSHA penalties are calculated from a number …

Fantasy sport issues in the workplace

As we enter football season, workforces should prepare for the estimated 25 million fantasy sports enthusiasts who spend at least an hour of work time managing their teams each week during the 13- to 17-week football season. (See more here.)  Distracted employees can reduce productivity, cause workplace accidents, and potentially impact the bottom line. As such, employers that are concerned with such productivity issues should put proper procedures in place to address these issues head on.

The first question of course, however, is are fantasy football leagues even legal? On the federal level, the Unlawful Internet Gambling Enforcement Act …

Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”

Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.

The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, …

Second Circuit rejects DOL test for unpaid internships

The Second Circuit Court of Appeals in Glatt et al. v. Fox Searchlight Pictures, Inc. recently rejected the Department of Labor (“DOL”) six factor test for determining whether an individual has been properly classified as an unpaid intern in favor of another test that looks at whether the intern or the employer is the primary beneficiary of the relationship.

The DOL’s six factors are:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;

Transgender status may not be a protected class, but lawsuits involving transgender employees are permitted to proceed

Caitlyn Jenner has dominated the national public interest stories and social media of late. However sensational the news has made this particular story, the issues surrounding transgender individuals are increasingly impacting employers.

Recently, the Eastern District of Michigan permitted one of the first sex-discrimination cases over a transgender employee’s firing to proceed. The Court refused to dismiss the case despite the fact that transgender persons are not a protected class under Title VII, finding instead that transgender employees are like other employees who are permitted to sue their employers over sex stereotypes. The Eastern District of Michigan is part of …

NLRB files complaint against postal service for not bargaining with union over effects of data breach incident

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”) apparently think that there should be an additional step when the data breach involves the personal information of employees who are covered by a collective bargaining agreement – bargaining over the effects of the data breach on, and the remedy to be provided to, the …

Reminder to federal contractors and subcontractors: April 8th effective date for expanded discrimination protections

In December, 2014, Jamie LaPlante wrote here about expanded obligations under the affirmative action laws that cover federal contractors and subcontractors. Among the changes she mentioned was the April 8th effective date for the inclusion of sexual orientation and gender identity among the classes protected under affirmative action laws. The expanded protections apply to all federal contractors and subcontractors who enter into new contracts or modify existing contracts on or after April 8th.

Under the expanded protections, discrimination against applicants or employees based on sexual orientation or gender identity is prohibited. Sexual orientation and gender identity now …

The U.S. Securities and Exchange Commission brings its first whistleblower enforcement action based upon an allegedly overbroad employee confidentiality agreement

The U.S. Securities and Exchange Commission (SEC) has now brought its first whistleblower enforcement action against a publicly traded company under the Dodd-Frank Act of 2010 for utilizing an overly broad employee confidentiality agreement. Specifically, the SEC alleges that KBR, Inc., has violated the Act by implementing employee confidentiality agreements that “potentially discouraged” employees from becoming whistleblowers by reporting misconduct to the SEC. This is illegal under the Act, and specifically under SEC Rule 21F-17 which prohibits employers “from taking measures through confidentiality, employment, severance or other type of agreements that may silence potential whistleblowers before they can reach out …

NLRB: employer unlawfully fired employee for calling supervisor a “NASTY M____ F____ER”

On Tuesday, March 31, 2015, the NLRB issued an order upholding an ALJ decision that Pier Sixty LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act when it terminated an employee who wrote on his Facebook page that his supervisor was a “NASTY M____ F____ER.”

According to the Board’s majority opinion, a number of service employees at Pier Sixty had expressed interest in union representation, in part because of concerns that management repeatedly treated them disrespectfully and in an undignified manner. Two days before the union election, a 13-year employee, who was working as a server at …

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