FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics

After more than 20 years under the ADA and FMLA, and 18 years since the passage of the Oregon Family Leave Act (“OFLA”), most employers are familiar with the basics of these laws. Many employee leave situations can be handled in a basic and straightforward manner. Unfortunately, others involve an obscure application of a particular law, or the thorny challenges presented by the interplay of all three laws. (Unlike FMLA and OFLA, the ADA was not specifically enacted for the purpose of providing leave per se. In fact, EEOC Commissioner Chai Feldblum has referred to the ADA as “an inadvertent leave law.”) 

This post gives an overview of specific practical tips to address some of the stickier leave situations that can arise.  (Shameless self-promotional plug:  these and other topics were covered in depth at a Stoel Rives Breakfast Briefing Seminar.  For details on other Stoel Rives seminars and breakfast briefings, click here.)

Continue Reading...

U.S. Supreme Court's Decisions on DOMA Extend FMLA Definition of "Spouse" To Same-Sex Partners In States Recognizing Gay Marriage

As almost everyone knows, the U.S. Supreme Court  issued two blockbuster decisions on gay marriage, U.S. v. Windsor, which struck down the Defense of Marriage Act's ("DOMA") definition of marriage for the purposes of federal law, and Hollingsworth v. Perry, which struck down California's "Proposition 8" prohibiting same-sex marriage in that state.  Those decisions will likely have significant effects on employers, such as with respect to employee benefits, health care and tax issues related to employees with same-sex partners.  For example,read here for a detailed discussion of how the Supreme Court's decisions may impact employee benefits.

Those decisions, particularly Windsor, also will have an immediate impact on employee coverage under the federal Family Medical Leave Act ("FMLA"), which requires covered employers to provide up to 12 weeks per year of unpaid leave to eligible employees for qualifying reasons (more leave may be required in certain situations, such as leave related to military duty).  One such qualifying reason entitles an employee to take leave to care for a family member, such as a family member with a serious health condition.  FMLA specifically defines family members to include a "spouse," which is further defined to mean a "husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized."  29 CFR 825.122.  Despite the fact that states have begun recognizing same-sex marriage in recent years, because the DOMA specifically defined marriage as only between a man and woman for the purposes of federal law, the DOMA basically overrode those states' laws for the purposes of FMLA coverage to spouses.

Continue Reading...

Part 2 of 2: Supreme Court Rules That "Supervisors" Under Title VII Must Have Power to Take Tangible Employment Actions

On Monday, we blogged about the first of two recent U.S. Supreme Court decisions interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”), University of Texas Southwestern Medical Center v. Nassar.  Today, we’ll discuss the second decision, Vance v. Ball State University, which addressed who is a “supervisor” for vicarious liability purposes under Title VII.  The decision provides clarity in a previously muddled area of law, and has important implications for employer liability for workplace harassment under Title VII.

As you probably know, Title VII prohibits discrimination in employment based on an individual’s race, color, religion, sex, or national origin, and similarly prohibits harassment resulting in a hostile work environment based on these characteristics.  The plaintiff in Vance was a catering assistant who filed a lawsuit claiming that she had been subjected to a racially hostile work environment at the hands of a catering specialist in her department.  Although the parties disagreed about whether the specialist was a supervisor, they did agree that she lacked authority to hire, fire, demote, promote, transfer or discipline the plaintiff.  The district (trial) court found that without this authority, the specialist was not a supervisor for whose actions the employer could be vicariously liable under Title VII.

Continue Reading...

Part 1 of 2: The U.S. Supreme Court Issues Two Employer-Friendly Opinions On Title VII In Vance v. Ball State Univ. and Univ. of Tex. Southwestern Medical Center v. Nassar

On one day recently, the U.S. Supreme Court issued employer-friendly opinions in two separate and long-awaited cases interpreting Title VII of the Civil Rights Act of 1964 (known simply as “Title VII”), the primary federal employment discrimination statute.  While both cases change little about what employers should be doing day-to-day to prevent unlawful discrimination in the workplace, both may have profound effects on the ability of employers to successfully defend against Title VII claims.  In fact, this was such a big day at the Supreme Court for labor and employment law that we’re going to blog about it twice!  Today, we blog about one of those cases, University of Texas Southwestern Medical Center v. Nassar, in which the Court increased the burden of plaintiff’s asserting retaliation claims under Title VII by requiring that they show their protected conduct was the “but for” cause of the adverse employment action.  

Later in the week, we’ll blog about the other case, Vance v. Ball State University, in which the Court narrowed the definition of “supervisor” to only those with actual authority to hire and fire employees, limiting the situations where employers can be liable for the discriminatory acts of lower-level employees. 

Nassar Requires “But For” Causation In Title VII Retaliation Cases Based On That Statute’s Structure

Title VII, as any reader of this blog probably knows, is the granddaddy of all federal anti-discrimination statutes. First enacted in 1964, its primary provision, 42 USC § 2000e-2, prohibits employers from taking employment action against employees “because of such individual’s race, color, religion, sex, or national origin.”  In 1991, Congress amended Title VII to, among other things, lessen the burden of proof on causation; plaintiffs bringing discrimination claims under Title VII need only show that a discriminatory motive was “a motivating factor...even though other factors also motivated the practice.” 42 USC § 2000e-2(m).  In other words, plaintiffs need not show that a discriminatory animus on the part of a manager was the only or even primary motive behind the employment action—if the employee’s race, gender, etc. was considered at all, the company could be liable for discrimination.  (Section 2(m) did create affirmative defenses that allow the employer to avoid money damages in these so called “mixed motive” cases if it can show that it would have taken the adverse action anyway regardless of the discriminatory motivation).

 

Continue Reading...

Fifth Circuit Sides With EEOC In Finding Lactation Discrimination Constitutes Title VII Violation

Last year, we posted about a decision from the Southern District of Texas in which the court ruled that firing a woman because she was lactating or breast-pumping did not amount to sex discrimination under Title VII or the Pregnancy Discrimination Act (PDA).  The Fifth Circuit Court of Appeals recently reversed the district court’s decision.  In a none-too-surprising opinion, the Fifth Circuit ruled that taking an adverse employment action against a woman because she is lactating or expressing breast milk is a cognizable sex discrimination claim because (1) it imposes upon women a burden that male employees do not suffer, and (2) lactation is a medical condition of pregnancy under the PDA. 

Is this earth-shattering news?  Probably not.  To most of us, it probably seems like common sense.  But the opinion likely does represent a significant victory for the EEOC, which now has another tool in its belt to pursue pregnancy discrimination claims.  Employers should be wise to know that pregnancy discrimination claims may now be viable for a longer period of time after childbirth than was the case prior to this ruling.  The district court essentially took the position that a woman does not fall within the protections of the PDA after she gives birth to her child.  Now, under the Fifth Circuit’s ruling, mothers could fall under the protections of PDA for as long as they are breastfeeding. 

The Fifth Circuit was careful to note, however, the Title VII and the PDA do not require employers to provide special accommodations for nursing mothers to pump breast milk.  Title VII and the PDA only prohibit an employer from taking an adverse employment action against a mother for lactating.  Although the Fifth Circuit was careful to note this distinction, employers should remember that under the recent amendments to the FLSA imposed by the Affordable Care Act, employers must provide breaks and a room for nursing mothers to pump.  Nursing mothers who are exempt under the FLSA are not afforded rights to pump in the workplace under either federal statute, but may be covered under applicable state statutes, which are summarized here

US Supreme Court Gives Green Light For Employers To Use Offers Of Judgment To Moot FLSA Collective Actions

Today the US Supreme Court issued its long-awaited opinion in Genesis Healthcare v. Symczk. In the case, the Court held that employers could effectively end collective action lawsuits under the Fair Labor Standards Act (FLSA) by agreeing to pay the named plaintiffs in those lawsuits whatever they claim they are owed. The Court held that because the named plaintiff was made completely whole by the employer’s offer her individual claim was moot, and because the named plaintiff’s claim was moot the entire collective action litigation was dismissed. This decision provides a helpful tactical weapon for employers that face the prospect of long and expensive collective action litigation.

How To “Pick Off” A Big FLSA Collective Action Lawsuit
Laura Symczk was employed as a nurse for Genesis, and was non-exempt under wage laws like the FLSA. She filed an FLSA “collective action” against Genesis claiming that it unlawfully failed to pay her and other nurses for meal breaks in which she had to work (the FLSA requires that employers pay employees for all their work time, including during meal breaks when the employee is not relieved of all work duties). Very early in the litigation, Genesis Healthcare issued what is called an “offer of judgment” under Federal Rule of Civil Procedure (FRCP) 68, offering to pay Symczk everything she claimed she was owed for her own unpaid work time (about $7,500, plus her attorney fees to date). The trial court then dismissed her entire collective action lawsuit, finding that because Symczk was made completely whole by Genesis’ offer and no others had yet joined the collective action, the case was “moot.”

Continue Reading...

Now in Effect: New FMLA Poster and I-9 Form!

As a friendly reminder, employers must update two key employment forms this month.  As of March 8th, employers must begin using the most recent FMLA poster issued by the Department of Labor.  The updated poster reflects the DOL’s final rule concerning military related leave available under FMLA.  The DOL has also issued new FMLA forms to reflect these changes.  Also as of March 8th, employers must begin using the new I-9 Form issued by the U.S. Department of Homeland Security, Department of U.S. Citizenship and Immigration Services.  Unlike other recent versions of the form, this form has a three year shelf life as it will not expire until March 2016.  New instructions for the I-9 form have also been published to help guide employers.   

The new FMLA poster can be downloaded here:

http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf or http://www.dol.gov/whd/regs/compliance/posters/fmla.htm

Info & links to the updated FMLA forms are found here: http://www.dol.gov/whd/fmla/index.htm, http://www.dol.gov/whd/fmla/2013rule/, and http://www.dol.gov/whd/fmla/2013rule/militaryDate.htm

 

The new I-9 Form and instructions can be downloaded here:

http://www.uscis.gov/files/form/i-9.pdf

 

If you have any questions regarding the new forms or the changes to the FMLA, feel free to contact any member of the Stoel Rives LLP Labor and Employment Group.

OSHA Issues Interim Final Rules on Whistleblower Protection Provisions Under ACA

The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments regarding procedures for handling employee whistleblower complaints under the Affordable Care Act (ACA), Section 1558. This part of the ACA added a new Section 18c to the Fair Labor Standards Act (FLSA), which protects employees from retaliation for exercising certain rights under the ACA, including (1) receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange, (2) reporting a violation of consumer protection rules under the ACA (which, for instance, prohibit denial of health coverage based on preexisting conditions and lifetime limits on coverage), and (3) assisting or participating in a proceeding under Section 1558.

The interim final rule states the time frames and procedures for bringing a whistleblower complaint under Section 18c and covers the investigation, hearing, and appeals processes. An employee has 180 days from the date of the alleged retaliation to bring a whistleblower complaint to the Secretary of Labor. Where a violation is found, remedies can include reinstatement, compensatory damages, back pay, and reasonable costs and expenses (including attorneys’ fees). If the employee brought the complaint in bad faith, an employer may recover up to $1,000 in reasonable attorneys’ fees.

Continue Reading...

Washington Court Affirms That Anti-Retaliation Laws Protect HR Employees

The Washington Court of Appeals recently determined that state anti-discrimination laws prohibit retaliation against human resources and legal professionals who oppose discrimination as part of their normal job duties. The court also declined to extend the same actor inference, a defense against discrimination claims, to retaliation claims.

Lodis worked at Corbis Holdings as a vice president of human resources. As part of his normal job duties, he warned Corbis’s CEO, Shenk, that Shenk’s age-related comments could give rise to liability for age discrimination. Around the same time, Shenk promoted Lodis but almost immediately gave him a negative performance review, placed him on probation, and then ultimately fired him. 

Lodis sued under the Washington Law Against Discrimination (WLAD), claiming that Corbis retaliated against him for opposing Shenk’s comments. The trial court concluded that Lodis was not engaged in protected activity “because he was simply performing his job duties by warning Shenk” about potential discrimination. The court of appeals disagreed.

Step Outside Rule

Corbis urged the court to adopt the “step outside” rule, which governs federal cases under the Fair Labor Standards Act (FLSA). The rule requires an employee to step outside her normal job duties before receiving the FLSA’s protection against retaliation.  

The court declined to adopt the rule for two reasons. First, the court believed that the language of the WLAD could not support a step outside rule. Second, the court concluded that policy considerations favored rejecting the rule. “[A]dopting the step outside rule,” the court said, “would strip human resources, management, and legal employees of WLAD protection.” The court noted the importance of protecting these employees because they are often the most able to oppose workplace discrimination. 

Same Actor Inference

Corbis also argued that the court should apply the same actor inference to dismiss Lodis's retaliation claim.  The same actor inference arises when an employee is both hired and fired by the same decision-makers in a short period of time.  Courts may then infer that the employee was not fired for any attribute that the decision-makers were aware of when they hired her.  Corbis contended that Shenk promoting Lodis despite the warning about potential discrimination proved that he did not retaliate when he later fired Lodis.

The court, however, refused to extend the same actor inference to retaliation claims.  The court was concerned that extending the defense would allow employers to simply promote employees before terminating them to avoid valid retaliation claims.

Thus, Lodis v. Corbis Holdings, Inc. limits the same actor defense to traditional discrimination cases. And perhaps more importantly, the case reaffirms that the WLAD protects all employees from retaliation.

Recordkeeping: The Often Overlooked Element of FMLA Compliance

Most employers grapple with the better-known aspects of the Family and Medical Leave Act (FMLA), such as determining whether an employee’s illness constitutes a serious medical condition, obtaining required certification or providing adequate coverage for workers on intermittent leave. All too often employers focus on the leave itself and breathe a sigh of relief when notice is provided confirming the dates of leave or when the employee has resumed his or her usual schedule. But an employer’s compliance with federal law includes the obligation to maintain adequate records related to the leave. Failure to do so can have significant consequences.

What Records Must You Keep?

FMLA recordkeeping requirements can be found in a single regulation, 29 C.F.R. § 825.500. That regulation requires employers to keep and preserve records in accordance with the recordkeeping requirements of the Fair Labor Standards Act (FLSA).  Records must be retained for no less than three years. Although no particular order or form is required, the records must be capable of being reviewed or copied. 

Covered employers with eligible employees must also maintain records that include basic payroll and data identifying the employee’s compensation. Failure to maintain accurate records can have significant consequences for employers, who have the burden of establishing eligibility for leave. Accuracy is important:  for example, the regulations demand that records document hours of leave taken in cases of leave in increments less than a full day.  Lack of suitable records documenting when leave was taken can also doom an employer’s defense to claims for leave. Special rules apply to joint employment and to employees who are not covered by or are exempt from the FLSA.

Continue Reading...

Allergy to Perfume Not a Disability, Says Ohio Federal Court

 Employers got some relief from a situation that is becoming more and more common: an employee that claims a scent allergy and wants a work accommodation. In Core v. Champaign County Board of County Commissioners, Case No. 3:11-cv-166 (S.D. Ohio Oct. 17, 2012), plaintiff claimed she was allergic to a particular scent that substantially limited her breathing and requested, as an accommodation, that her employer institute a policy requesting that all employees refrain from wearing scented products of any kind. The U.S. Court for the Southern District of Ohio threw the case out, concluding that (1) plaintiff was not disabled, as that term was used under the pre-2009 amendments to the Americans with Disabilities Act; and (2) even if the broader post-2009 definition of “disability” were used, plaintiff’s requested accommodation was not reasonable. 

Plaintiff worked for the Champaign County Department of Jobs and Family Services as a social service worker. Her job required her to conduct onsite inspections of childcare facilities, interact with the public and clients both onsite and offsite, and perform in-house client interviews, among other things. She claimed a disability because one particular scent she encountered occasionally in the workplace—Japanese Cherry Blossom—triggered asthma attacks, which substantially limited the major life activity of breathing. (She claimed reactions to other scents, too, but those reactions only included headaches and nausea, which the court found had no impact on plaintiff’s breathing or on any other major life activity.)

Continue Reading...

Washington Law Against Sexual Orientation Discrimination Not Retroactive

On September 13, the Washington Supreme Court held that a 2006 amendment to the Washington Law Against Discrimination, which makes it illegal for employers to discriminate on the basis of sexual orientation, does not apply retroactively. But the Court also held that evidence of pre-amendment harassment is admissible to show why post-amendment conduct is discriminatory.

Loeffelholz, a lesbian, sued the University of Washington in 2009, alleging that Lukehart, her supervisor, harassed her from 2003 to 2006 because of her sexual orientation.  She claimed that Lukehart’s conduct had created a hostile work environment.  She alleged only one incident, however, that occurred after the effective date of the 2006 amendment, and that incident was not explicitly related to her sexual orientation.  The trial court dismissed her claim, stating that Lukehart’s post-amendment conduct was insufficient to support a hostile work environment claim.  The court of appeals reversed, and the Supreme Court affirmed in part.

The Supreme Court first determined that the 2006 amendment applies only prospectively.  Thus, Loeffelholz was not entitled to recover for Lukehart’s actions before the amendment’s effective date.  The Supreme Court held, however, that evidence of Lukehart’s pre-amendment conduct was admissible as context to prove that his post-amendment behavior was discriminatory.  The only explicit comments Lukehart made regarding Loeffelholz’s sexual orientation, asking if she was gay and telling her not to “flaunt it,” occurred when she started working in 2003.  The Court further held that if Loeffelholz prevailed in her post-amendment hostile work environment claim, she would be entitled to damages from the effective date of the amendment, not just from the date of Lukehart’s post-amendment conduct.

Thus, while Loeffelholz v. University of Washington precludes recovery for sexual orientation discrimination occurring before the amendment, it does allow employees to bolster sexual orientation discrimination claims with evidence of pre-amendment conduct.

City of Seattle's New Paid Sick and Safe Time Law To Take Effect in September 2012

 

As most Seattle employers know by now and as we blogged about earlier, beginning September 1, 2012, the City of Seattle will require that all but the smallest employers provide paid sick leave to their Seattle employees. Seattle Paid Sick and Safe Time (PSST) mandates that most employers provide paid leave, which increases depending on the size of a company’s workforce. Once employees have worked 180 days or more, they must be allowed to use PSST for their own or their family members’ illnesses, as well as for certain safety-related reasons.

We are getting many questions from employers about this new leave mandate. This update will provide answers to some common questions. 

Remember that you need to notify Seattle employees of their PSST rights by September 1.  We are here to assist you in administering this new leave.  Below are a few common questions that may come up.

Q:        What general notice do we have to provide our employees?

A:        Regularly Work in Seattle.  As of September 1, 2012 or soon thereafter, current Seattle employees (of employers of any size) should receive notice of their PSST rights, and new employees should receive such notice at the time of hire. This can be accomplished in several ways:

  1. A poster displayed conspicuously and accessibly in your usual posting place,
  2. A notice to employees provided in employee handbooks or similar employee guidance, and/or
  3.  A notice to employees handed out to each new employee upon hiring. 

The notice can be given either electronically or on paper. The City of Seattle’s model notice and poster (in a number of languages) are available online (scroll down to “Resources” box in right column). 

            Occasional Seattle Employees. If your only Seattle employees are those who work in Seattle occasionally and not on a regular schedule, you do not have to provide notice to all employees, provided that notice is given to occasional-basis employees reasonably in advance of their first period of work in Seattle.

Q:        What notice do we have to provide our employees regarding their PSST accruals?

A:        Each time wages are paid, employees who are accruing PSST (even those who have not worked 180 days yet) must be given information (either on paper or in electronic format) about the amount of PSST they have available. 

Q:       What categories of employees are covered by the law, and what leave must these employees be given? 

A:        Regularly Work in Seattle. These are employees (regular part-time or full-time, and temporary) who regularly work at least 240 hours per year in Seattle, either at your workplace, by teleworking from a Seattle location or by traveling from another location to regularly work in Seattle. These employees begin to accrue leave on September 1, 2012, and can take it as soon as they have worked 180 days or more (even if those 180 days occurred before September 1, 2012). Leave is only required to be provided during times the employee is working in Seattle.

            Occasionally Work in Seattle. These are employees (regular part-time or full-time, and temporary) who occasionally work in Seattle, not on a schedule. These employees begin to accrue leave for every hour they work in Seattle after the 240th hour in a calendar year, and can take leave on their 181st day of employment (even if some or all of those 180 days occurred before September 1, 2012). You can begin to count these employees’ Seattle hours as of September 1. You can delegate to employees the duty to track “Seattle hours” as long as you notify them of this and provide a reasonable way for them to track hours. Once an occasional employee is covered, he or she is covered for that calendar year and the following calendar year. Leave is only required to be provided during times the employee is working in Seattle.

            In order to determine accruals, you must determine your Tier Size. See our past post for further information on Tier Size and accrual amounts. 

Q:        How do we figure out what rate of pay employees earn during leave? 

A:        Generally.  Employees earn the rate of pay they would have earned during the time PSST is taken—but only for hours they were scheduled to work. Employees need not be paid for lost tips or commissions, but must receive at least Washington’s current minimum wage ($9.04 in 2012). 

Nonexempts. Employees who would have been paid overtime during their PSST hours need only be paid their regular hourly rate of pay. 

Exempts. Employees receive an hourly rate of pay by dividing the annual salary by the number of weeks worked per year, to get the weekly salary, and dividing the weekly salary by the number of hours of the employee’s normal work week.

Q:        How do we coordinate PSST with other leave, including paid leave such as Short-Term Disability and other Income Replacement Policies? 

A:        PSST may run concurrently with other leave (such as FMLA) where both apply, and can be provided as a part of paid leave policies (such as vacation, sick and PTO) if those policies meet the eligibility, use, accrual and carryover requirements of PSST. Determining how you will do this and how to amend your policies must be done on a case-by-case basis. The language of your short-term disability leave arrangement, whether provided via insurance, policy or a plan, also requires a case-by-case review. 

Please contact Keelin Curran or your Stoel Rives attorney with your questions regarding coordination of PSST with other leave benefits.

 

Supreme Court Declares Pharmaceutical Sales Reps Exempt From Overtime

In Christopher v. SmithKline Beecham, a 5-4 decision announced Monday afternoon, the U.S. Supreme Court ruled that pharmaceutical sales representatives are exempt from the overtime requirements of the federal Fair Labor Standards Act ("FLSA") under the outside sales exemption. The Court ruled that the Department of Labor’s interpretation of the exemption, raised for the first time in its brief before the Court, was not entitled to deference. If your business treats some of its employees as exempt from overtime (whether on the basis of the outside sales exemption or another exemption), the case serves as a good reminder to reexamine their job duties to make sure that they satisfy the terms of the applicable exemption.

Read the entire alert here.

Tags:

When to Pay Summer Interns: FLSA Guidance You Need to Know

It's that time of year again, here's our post from last year from Matt Durham on this perennial summer concern for employers . . .

Certain things have become the recognizable signs of spring. Budding leaves. Flowers. Chirping birds. And summer intern resumes. Especially during a slow or recovering economy, HR professionals are likely to receive many resumes from eager students or recent graduates hoping to work as interns in order to gain valuable experience and networking opportunities. Often, intern candidates offer to work for nothing in exchange for the chance to learn about a job or industry.

Of course the idea, however enticing, of free labor should raise red flags. In fact, the United States Department of Labor (“DOL”) has made it clear that, unless specific criteria are met, student “interns” working at for-profit companies are actually student “employees,” subject to the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”). The DOL has identified the following six criteria for determining whether an individual meets the test for an unpaid intern:

  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;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Only if an internship program meets all of these requirements can participants be considered unpaid interns. And as you can imagine, meeting all of these requirements can be challenging. For example, the internship program must be structured around classroom or academic experience rather than around the employer’s business operations. For this reason, compliant programs are often developed and overseen by colleges or universities, which then give academic credit for participation. Moreover, the more the interns perform productive work for the employer (as opposed to job shadowing or similar activities), the more likely they will be deemed employees, entitled to minimum wage and overtime under the FLSA. You can find the DOL’s fact sheet on internship programs here.

At the end of the day, private employers seeking to benefit directly from eager students or graduates willing to work for the experience will find it difficult to meet DOL requirements. On the other hand, a company willing to provide work experience in order to be a good corporate citizen or to build relationships with schools or students, can structure an unpaid student intern program to meet those goals and comply with the law.

 

Legal Update: Transgender Employees Protected Under Title VII

On Friday, April 20, 2012, the EEOC issued a landmark ruling that intentional discrimination against a transgender individual is discrimination “based on … sex” and thus violates Title VII. Prior to this ruling, the EEOC generally declined to pursue discrimination claims that arose from transgender status or gender identity issues.

What does this mean for employers? In California, Oregon and Washington, state laws have protected transgender employees by prohibiting discrimination based on gender identity and gender expression. For employers in those states, this ruling raises the stakes: transgender employees with discrimination claims can now bring both state and federal claims, instead of being limited to a state court action. For employers in all states, the EEOC ruling provides new protections and is an important reminder of the evolving law of sex-based discrimination.

Read the entire alert here.

9th Circuit: Attendance Is Essential Job Function For NICU Nurse Under ADA

This week the federal Ninth Circuit Court of Appeals provided some help to employers seeking to balance the need to accommodate disabled employees with the need to enforce regular attendance policies.  In Samper v. Providence St Vincent Medical Ctr, the Ninth Circuit held that the Americans with Disabilities Act (“ADA”) did not require an Oregon hospital to exempt a neo-natal intensive care unit (“NICU”) nurse, whose fibromyalgia caused frequent absences, from its attendance policy.  The case helps illustrate both when employers should be flexible in accommodating disabilities that could affect attendance, and also when they may be entitled to require stricter adherence to attendance policies.

The Facts Of Samper
The defendant in Samper, St. Vincent Hospital in Portland, Oregon, had little trouble demonstrating that strict adherence to its attendance policy was essential for NICU nurses, who care for a very vulnerable patients, need to be in the NICU to do their jobs, and must be able to respond quickly in emergency situations.  The NICU nurse job description specifically identified attendance as an essential job requirement.  Further, NICU nurses have specialized training making it more difficult to find replacements during absences.  And despite the need for good attendance, the hospital policy nevertheless “generous[ly]” allowed nurses up to five unexcused absences per year. 

The plaintiff, Ms. Samper, worked as a part-time NICU nurse since about 2000.  From early on, she was disciplined or received multiple poor performance reviews in part because of unexcused absences in excess of the policy's 5-day per year limit.  In 2005, she began suffering from fibromyalgia, which caused more absences.  St. Vincent initially was able to accommodate her disability; first, it allowed her to call in on bad days and move her shift to another day.  Later, it adjusted her schedule so she would not work on consecutive days.  The hospital also provided Samper numerous extended leaves of absence, including for personal reasons unrelated to her disability.  Ultimately, however, in 2008 St. Vincent terminated Ms. Samper’s employment for, among other reasons, her continued unexcused absences in excess of the policy.  Ms. Samper sued, claiming in part that the hospital failed to reasonably accommodate her disability by not exempting her altogether from the 5-day limit under the attendance policy.

The Ninth Circuit found that her Ms. Samper’s request to be exempted from the attendance policy was not a reasonable accommodation as a matter of law.  In reaching its conclusion, the Court first noted that the hospital’s written job description stated in several places that attendance and punctuality were essential functions.  The Court also surveyed a number of other cases where courts found attendance to be an essential function, such as where employees must work in a team with other employees, where they regularly must interact with customers or clients (such as teachers and airline ticket agents), or are required to be on-site to work with special equipment (such as in a manufacturing environment).  Ultimately, the Court found that attendance for NICU nurses was even more essential than in any of those other situations, considering the importance of their “specialized, life-saving work” and the difficulty of finding replacements due to the specialized training NICU nurses receive.

When Is Attendance An Essential Function Under the ADA?
The reasoning in Samper probably provides a mixed bag for other employers trying to balance attendance and accommodation needs.  On the one hand, the case provides a ringing endorsement for the general principle that attendance can be an essential function of most jobs, absent evidence it is not, in fact, necessary.  Indeed, the Court stated as a general “rule” and matter of “common sense” that:  “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”  (emphasis added)

On the other hand, the detailed discussion of the facts and overall subtext of the case suggest that the court’s holding may not be as broad as employers might hope.  For example, the fact that NICU nurses provide care to vulnerable infants fighting for their lives probably helped tip things in the hospital’s favor; few other jobs will be able to demonstrate such urgency.  In addition, for positions that don’t require as much specialized training as NICU nurses, attendance may be less essential if the employer can more easily find qualified replacements on short notice when a disabled employee is absent.

Perhaps most importantly, the hospital demonstrated flexibility in applying its attendance policy and had a demonstrated track record in accommodating Ms. Samper in the past.  It did not enforce its attendance policy too strictly; instead, it allowed up to five unexcused absences per year.  In addition, the hospital made “Herculean” attempts to accommodate Ms. Samper over a nearly eight-year period, including allowing absences in excess of the policy, providing numerous leaves of absence, and adjusting her schedule several times.  The Court only found that her final request—to be exempted from the attendance policies altogether—was unreasonable.  While those efforts are technically distinct from whether attendance is an essential function of a job, the Court obviously believed the hospital had already bent over backwards repeatedly to try to accommodate Ms. Samper.  Had the hospital terminated her employment for a first time attendance violation or without the accommodation history, the case could have come out differently.  In that sense, Samper could serve as a reminder that employers often cannot do enough to engage in the interactive process and attempt accommodation where reasonable.


 

EEOC Issues Final Regulations for RFOA Defense Under ADEA

 

Last week, we reported that several senators had introduced new amendments to the Age Discrimination in Employment Act ("ADEA") to make it easier for plaintiffs in age discrimination cases to prove their claims.  U.S. Senators aren't the only ones busy refining federal age discrimination laws - on March 30, 2012, the Equal Employment Opportunity Commission (EEOC) published its final rule on the “reasonable factors other than age” (RFOA) defense under the ADEA.  Acting in response to two U.S. Supreme Court cases, Smith v. City of Jackson in 2005 and Meacham v. Knolls Atomic Power Laboratories in 2008, the rule bring the EEOC regulations in line with Supreme Court precedent and clarifies the scope of the RFOA defense

In Smith, the Supreme Court held that disparate impact claims are cognizable under the ADEA.  The Court further held that a practice having a disparate impact on older workers need only be justified by “reasonable” factors other than age; an employer need not satisfy the more rigorous “business necessity” defense applicable to Title VII claims.  In Meacham, the Court held that the employer bears the burden of production and persuasion on the RFOA defense.   

The regulation points out that the EEOC believes that “reasonable” factors other than age reflects a higher standard than a simple “rational basis” standard.  According to the EEOC, equating the RFOA defense with a rational-basis standard would improperly conflate ADEA disparate-treatment and disparate-impact standards of proof: “If an employer attempting to establish the RFOA defense were only required to show that it had acted rationally, then the employer would merely be required to show that it had not engaged in intentional age discrimination.”

The rule provides a non-exhaustive list of factors to be considered in determining whether an employment practice is based on RFOA:

  • The extent to which the factor is related to the employer’s stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training bout how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

The final rule makes clear that the EEOC will take a very dim view of an employer’s RFOA defense where supervisors are given broad discretion to make subjective decisions.  Accordingly, prudent employers will take steps to ensure that decisions are made consistent with business purpose, that supervisors are properly trained, and that supervisors exercise their discretion in a way that does not violate the ADEA.

For more information, visit EEOC’s Questions and Answers page.  The rule will take effect on April 30, 2012.

 

Senators Propose Amendments To ADEA

On March 12, several senators introduced Senate Bill 2189, known as the Protecting Older Workers Against Discrimination Act, which would overturn a 2009 U.S. Supreme Court case, Gross v. FBL Financial Services Inc, that had made it more difficult for older workers to prove claims under the Age Discrimination in Employment Act ("ADEA").  Under the new bill, it would be much easier for employees to prove age discrimination in many cases.

In the Gross case, the Supreme Court held, by a 5-4 margin, that the “mixed motive” analysis of discrimination claims was not available under the ADEA, and that plaintiffs asserting age discrimination must prove that age was the “but for” cause of the adverse employment action.  The Supreme Court reasoned that the Civil Rights Act of 1991, which codified the mixed motive analysis in cases of race, sex, and other protected statuses, only applied to Title VII of the Civil Rights Act of 1964 and not the ADEA, which is a separate statutory scheme.  Under Gross, in ADEA cases the plaintiff was required to prove that age was the “but for” cause of the employment action, not simply a motivating factor.

This bill is sponsored by Senators from both parties (Sen. Harkin [D-IA], Sen. Grassley [R-IA], and Sen. Leahy [D-VA]), but exactly how much support it has remains to be seen.  Similar bills were introduced in both the House and Senate in 2009, but neither were voted on.  It remains to be seen whether this bill will gain traction or suffer a similar fate.

When Does Alcohol or a Controlled Substance Preclude Workers' Compensation Benefits?

Like most states, Utah’s Worker’s Compensation statute prohibits an employee from recovering disability compensation when “the major contributing cause of the employee’s injury” is the employee’s unauthorized use of alcohol or a controlled substance. See Utah Code Ann. § 34A-2-302(3)(b). If any amount of a controlled substance or its metabolites is found in an injured employee’s system at the time of the injury, the Worker’s Compensation statute presumes that drug use was the major contributing cause of the injury. 

An employee can rebut this presumption by:

  • challenging the accuracy of the drug test;
  • demonstrating that he or she did not actually use a controlled substance;
  • providing expert medical opinion suggesting that the level of controlled substance in the employee’s system does not support a finding that drug use was the major contributing cause of the injury; or
  • otherwise demonstrating that drug use was not the major contributing cause of the injury.

 

A Utah appellate court recently weighed in on this issue when it reversed the Utah Labor Commission’s denial of disability compensation to James Barron in Barron v. Labor Commission.

Mr. Barron was severely injured while at work when he stepped backward off the edge of temporary metal decking at a construction site and fell fourteen feet to a concrete floor below. A urine sample taken at the hospital on the day of the accident tested positive for cocaine metabolites. Mr. Barron admitted to sharing a quarter of a gram of cocaine with a friend two days before the accident but presented evidence tending to demonstrate he was not impaired at the time of the accident, including testimony from co-workers and medical personnel who observed Mr. Baron’s conduct on the day of the accident.

Applying the statutory presumption, the Commission ignored Mr. Barron’s evidence of non-impairment and found that drug use was the major contributing cause of his injury. Specifically, the Commission determined that Mr. Baron must demonstrate that “some other force” apart from his own actions caused his injury to overcome the presumption. Following case law from a number of other states with similar statutory schemes, the Utah Court of Appeals reversed the decision of the Commission and, for the first time, clarified that employees are not required to show that their injury was the result of an outside force to overcome the statutory presumption. Rather, evidence of non-impairment at the time of the accident may be used to rebut the presumption and to demonstrate that drug use was not the major contributing cause of injury. 

So, when does the use of alcohol or a controlled substance preclude workers' compensation benefits?  The answer: almost always, but not when employees can demonstrate that they are not impaired, despite the presence of controlled substances within their systems.

Are Remedies Available to Working Moms Who Experience "Lactation Discrimination"?

For many new moms returning to work after the birth of a child, pumping breast-milk is considered to be a necessary evil.  Necessary because pumping ensures that these mothers’ babies can continue to experience the many benefits of breast-milk, and helps the mothers to maintain their milk supplies, relieves painful engorgement, and prevents potentially serious medical conditions like mastitis.  Evil because, well, it is not exactly fun to do, especially if the workplace is not supportive.  The U.S. Centers for Disease Control reports that full-time work for new mothers is “significantly associated with lower rates of breastfeeding initiation and shorter duration,” due primarily to workplace barriers such as “a lack of flexibility for milk expression in the work schedule, lack of accommodations to pump or store breast-milk, concerns about support from employers and colleagues, and real or perceived low milk supply.”  Click here to view CDC's report.

One mother recently faced with this predicament is Donnicia Venters, who alleged in a federal lawsuit that her employer fired her while she was on maternity leave when she inquired about using a back room in the office to pump milk upon her return from leave.  The EEOC brought suit on Ms. Venters’ behalf in the United States District Court for the Southern District of Texas, asserting sex discrimination claims against the employer under Title VII.  See EEOC v. Houston Funding II, Ltd., Case No. 4:11-cv-02442 (S.D. Tex.).  Title VII makes it “an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).  The Pregnancy Discrimination Act amended Title VII to state that “‘because of sex’ … include[s] … because of … pregnancy, childbirth, or related medical conditions ….” 42 U.S.C. §2000e(k).

United States District Judge Lynn N. Hughes (who is a male, for the record) recently granted summary judgment in favor of the employer, ruling that “[f]iring someone because of lactation or breast-pumping is not sex discrimination.”  In a rather conclusory fashion, the court reasoned that “lactation is not pregnancy, childbirth, or a related medical condition” and that any “pregnancy-related conditions” experienced by Ms. Venters ended on the day she gave birth to her daughter.  To see the full opinion click here.

In the few short days since it has been issued, this ruling has garnered much critical attention.  As many commentators have pointed out—and this seems quite obvious—only women can lactate, and lactation does not usually happen in the absence of childbirth.  The ruling therefore strikes many as illogical—how can firing someone for lactation or breast-pumping not be because of sex or a childbirth-related medical condition?  The EEOC has stated that it is considering whether to appeal the ruling.  The issue therefore remains far from settled. It remains to be seen whether the appellate court, or other judges who might be faced with this issue, will come to a different conclusion than Judge Hughes did.

Pumping mothers also have a new legal protection that Ms. Venters did not have when she gave birth to her baby in 2008.  Effective March 23, 2010, the Patient Protection and Affordable Care Act (also known as the Healthcare Reform Act) amended the Fair Labor Standards Act (FLSA) to require employers to provide a nursing mother break time to pump.  Specifically, covered employers must provide reasonable break time for an employee to express breast-milk for her nursing child for one year after the child’s birth, each time the employee has need to express milk.  See 29 U.S.C. § 207(r).  Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast-milk.  Id.

There are, of course, several limitations to this protection.  The FLSA amendment does not require employers to pay employees for such break time.  Id.  The requirements also do not apply to employers with less than 50 employees, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.  Id.

Under this amendment, nursing mothers who experience “lactation discrimination” in the workplace might now have a remedy—albeit a limited one—under the FLSA.  The FLSA makes it illegal for an employer to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].”  29 U.S.C. § 215.  In most jurisdictions, this provision applies to any employee who complains about an FLSA violation, either formally to an administrative agency, or informally to the employer.  A nursing mother who complains about her employer’s failure to provide reasonable break time for her to pump would therefore be protected by this anti-retaliation provision in the FLSA.  As the language of this anti-retaliation provision makes clear, however, the employee must actually complain to the employer in order to be protected.  Thus, if Judge Hughes’ opinion turns out to be the prevailing view and lactation is not protected under the Pregnancy Discrimination Act or Title VII, there is still a gap in protection, even with the FLSA amendment.  Nursing mothers who are simply fired for pumping at work before ever complaining about an employer’s FLSA violation would have no remedy.  In this scenario, a legislative amendment to Title VII, or legislation at the state level, might be the only potential source of protection.

In fact, many states have attempted to fill the gaps in protection for nursing mothers by passing their own legislation. A complete list of state laws enacted to protect breastfeeding can be found hereOf the states where Stoel Rives has offices, California, Oregon, and Minnesota each have laws that require employers to provide breaks for women to breastfeed or pump. To the extent these state laws are more robust than the FLSA amendment, they are not preempted.  see 29 U.S.C. § 207(r)(4).

Update - New Rule Requires Employers to Post Notice of Employee NLRA Rights

In order to allow more time for legal challenges to its notice-posting rule to be resolved, the National Labor Relations Board has again postponed the rule's effective date, this time to April 30, 2012.  Stay tuned.

For additional information regarding the NLRB's new rule and posting requirement, including links to the new rule and the poster employers must post, see our prior post on this topic by following this link.

Obama Jobs Bill Proposes To Ban Discrimination Against Unemployed

As almost everyone knows, last week President Obama presented a $447 billion jobs bill, called the American Jobs Act, to a joint session of Congress full of proposals designed to stimulate the lagging U.S. economy.  What many people probably don't know is that, tucked into the bill, is a provision that would make it unlawful for employers to refuse to hire someone because that person is unemployed.  This small part of the stimulus bill would create an entirely new protected class under federal discrimination law—the unemployed person.  If enacted it could expose employers to a raft of new employment discrimination lawsuits.

What The Bill Says

Section 375 of the proposed bill  actually has several anti-discrimination provisions.  First, it prohibits employers and employment agencies from refusing to hire an individual “because of the individual’s status as unemployed,” including prohibiting employers from directing employment agencies to do so. It also contains a broad anti-retaliation provision prohibiting employers from interfering or refusing to hire someone because the person reports a violation of the Act.  The Act will provide many of the same remedies available under Title VII of the Civil Rights Act—the same federal law that prohibits discrimination based on race, religion, or sex—including the right to file a charge with the Equal Employment Opportunity Commission (“EEOC”), or file a lawsuit to recover money damages and attorney fees.

The bill would also prohibit employers and employment agencies from expressly advertising in written job posts that unemployed persons are automatically disqualified from applying.

The Rub:  Full Employment...For Employment Lawyers

While the bill expressly states that it is not intended to preclude employers from considering an individual’s employment history or even from “examining the reasons underlying an individual’s status as unemployed,” that subtle distinction will be a small comfort to employers.  Employers routinely scrutinize employment history, and employment “gaps” on a resume have always been a red flag to hiring managers.  Under this new law, however, employers would need to walk a very fine line between scrutinizing only the “reasons underlying” unemployment, while avoiding letting the fact the person is unemployed to begin with affect a hiring decision. 

Those types of mental gymnastics are not only difficult for hiring managers to keep straight while reviewing job applicants, the distinction will be even harder to prove in court if the employer is later sued.  As a practical matter, any unemployed person rejected from a job could demonstrate a prima facie claim for discrimination simply by showing he or she was unemployed and then didn’t get the job.  Further, the cases will invariably turn on "yes you did, no I didn't" factual disputes about the hiring decision: did the employer make the decision because of reasons underlying the person's unemployment (lawful) or simply because the person was unemployed (unlawful)?  Because of those subtle factual nuances, and procedural rules that presume the truth of a plaintiff's allegations until trial, it could be virtually impossible to get even baseless claims dismissed before trial, such as at summary judgment.  That makes defending those cases much more difficult and expensive.

While much remains unsettled about the state of the U.S. economy, including whether Congress will even pass the American Jobs Act, one thing is very certain.  If the current anti-discrimination provision in the American Jobs Act passes, employers will be seeing a lot more discrimination claims from a whole new protected class of protected people--the unhired unemployed.

 

New Rule Requires Employers to Post Notice of Employee NLRA Rights

Your bulletin board full of required workplace postings just got more crowded. The National Labor Relations Board (“NLRB”) has issued a final rule that will require nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act (“NLRA”). The notice must be posted by no later than November 14, 2011 (now postponed until January 31, 2012, see update below).  The new rule is one of many new developments arising from the current NLRB’s implementation of the Obama administration’s labor policy.

This new notice is a form designed by the NLRB. Among other things, it contains:

 

·         A summary of employee rights under the NLRA, including the right to discuss wages and working conditions with co-workers or a union, form or join a union, take collective action to improve working conditions, and engage in other protected activities.

·         Examples of violations of those rights, and an affirmation that unlawful conduct will not be permitted.

·         Information about the NLRB, the NLRB’s contact information, and details on how to file an unfair labor practice charge with the NLRB.

·         A statement about the employer's obligation to bargain in good faith if a union has been selected by employees.

 

This new rule applies to almost all employers except public sector employers, very small employers below the NLRB’s jurisdictional standard for impacting interstate commerce, and other limited classes of employers outside of the NLRA’s jurisdiction. The NLRB may find that an employer’s failure to post the notice constitutes an unfair labor practice. The remedy for a violation may not be severe because the NLRB cannot impose fines – but much worse, a violation can be evidence of unlawful motive and prevent the running of the statute of limitations.

 

The full text of the actual required notice is available here. Private sector employers will be required to post this notice in conspicuous places, including where they customarily post other workplace notices. In addition, employers who customarily post personnel policies and rules on an internet or intranet site must include this new notice there or provide a link to the NLRB’s website section containing the notice. If an employer has employees working at another employer’s site, it will also need to determine whether it can post notices at that site if the other employer does not already have the notice posted. If 20 percent or more of an employer’s employees are not proficient in English and speak the same foreign language, the notice must also be posted in that language. The NLRB will provide translations in such circumstances. Copies of the required 11x17 posters will be available at no cost from the NLRB upon request, and will also be downloadable from the NLRB’s website, www.nlrb.gov. A federal contractor will be regarded as complying with the NLRB’s new posting requirement if it already posts the notice required of federal contractors by the U.S. Department of Labor. See our earlier discussion of those posting requirements here. 

 

The NLRB fact sheet with further information about the rule is available here. There are likely to be legal challenges to the NLRB’s new notice posting rule, and at least one bill has already been introduced in Congress seeking to invalidate it. For now, employers will need to be prepared to comply with the new posting requirement. While already unionized employers will likely see little impact from the new rule other than the actual posting requirement itself, non-unionized employers may be faced with employees raising questions about their rights under the NLRA. Because such questions will invariably be directed toward their immediate supervisors, it is important for non-unionized employers to make sure that supervisors are properly trained regarding how to maintain a union-free environment without violating the NLRA. Non-unionized employers might also be tempted to post their own notice alongside the new NLRB poster, advising employees why a union is not needed. As with all such efforts, missteps can lead to challenges before the NLRB, so employers should consult with their Stoel Rives labor attorney.

 

UPDATE:  On September 14, 2011, the NLRB made available the poster that employers must post.  The link to that poster is here.  The NLRB recently postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers.  See here.  The new effective date of the rule, and the date by which the new notice must be posted, is January 31, 2012.

The EEOC Reiterates the Importance of the Interactive Process

A recent decision from the federal Equal Employment Opportunity Commission (EEOC) reminds employers of their affirmative duty to engage in an interactive process once an employee raises a medical condition and requests some change to their work environment to accommodate it. The Americans with Disabilities Act (ADA), and the Rehabilitation Act at issue in Harden v. Social Security Administration, protect an employee from discrimination based on a disability, where the employee can otherwise perform his or her job with a reasonable accommodation. Tips for the interactive process are provided below, and next week we will go through a “hypothetical.”

In Harden, a claims assistant who was frequently late notified the SSA about her depression and general anxiety which were causing her problems sleeping and functioning early in the morning. She requested approval to arrive between 9:00 and 9:30 a.m., rather than between 7:00 and 9:00 a.m. like other employees, or else to use leave rather than leave without pay or discipline. The claims assistant supplied the SSA some medical documentation, but the SSA found that the documentation did not show that her medical condition kept her from getting to work before 9:00 a.m. The SSA denied the employee’s request for a modified schedule, and disciplined her when she was again tardy.

Based on information about the employee’s medical condition that came out during the EEOC complaint process, the EEOC found that the SSA engaged in discrimination. The claims assistant had a disability that could have been reasonably accommodated with a modified schedule. The EEOC disagreed with the SSA’s argument that medical documentation provided during the complaint process was irrelevant to the SSA’s decision to deny the modified schedule and discipline the employee.

What does Harden teach us? Disability discrimination laws place affirmative duties on employers to engage in a meaningful process after an employee raises a medical condition. Do not cut short the interactive process because the facts will come out eventually. This 4-step process provides a helpful framework for an ADA request.

 

1.        Get the facts: What is the medical condition? Get documentation from the employee’s doctor if necessary (with an appropriate release), including any limitations and potential accommodations. Allow the employee or doctor to provide additional information if you are not satisfied. What is this employee’s job? Identify the essential functions of her position. Is the employee performing the job, except for reasons related to her disability?

 

2.         Decide whether the employee is eligible for an accommodation: Based on the facts, is the employee qualified for the job? Can he or she perform the essential functions of the job, with or without an accommodation? Determine whether the individual has a physical or mental impairment that substantially limits a major life activity. Is the employee regarded as having such impairment?

 

3.         Have an interactive dialogue with the employee about an accommodation: Ask the employee what he or she wants. Quite frequently, this simple communication can result in a practical, cost-effective solution that works for everyone involved. Can the employee do the essential functions of the job with the employee’s proposed accommodation? Identify other accommodations that may work, and consider the effectiveness of each proposed accommodation. Discuss the cost and burden of each effective accommodation and assess whether it would be an “undue hardship.”

 

4.        Put the accommodation into action: Document the dialogue with employee. Choose and implement an accommodation. Document the expectations on all sides. Inform others of the accommodation, only to the limited extent they must know (such as a supervisor). Ensure confidentiality at all times, and maintain a separate confidential file for the employee’s medical documentation. Reassess the effectiveness of the accommodation after a time.

Idaho Supreme Court Rejects Lawsuit over Intra-Office Romance

On June 29, 2011, the Idaho Supreme Court unanimously upheld a district court ruling that a state worker could not maintain an action against her employer for wrongful discharge based on allegations that her supervisor’s intra-office romance and consequent favoritism toward his paramour created a hostile work environment. See Patterson v. State of Idaho Dep’t of Health & Welfare. In the first Idaho case of its kind, the Court found that paramour favoritism did not violate Title VII and therefore opposition to such activity is not “protected activity” under the Idaho Human Rights Act (“IHRA”).

The longtime Idaho Health & Welfare employee who initiated the action, Lynette Patterson, asserted that her boss’s affair with another worker resulted in favoritism toward the other worker and created a hostile work environment for her and others in her unit. Following Patterson’s initial complaints of her supervisor’s misconduct, the department launched an investigation into her allegations and found that although Patterson’s supervisor did in fact have an inappropriate relationship with another employee in violation of the department’s internal policy, there was no evidence to support preferential treatment. Thereafter, Patterson claims she was the victim of retaliation. Upon receiving a performance evaluation stating that she had failed to achieve performance standards, she quit her job, alleging that she was constructively discharged.  

Patterson’s complaint against the department asserted constructive discharge under the IHRA and violation of the Idaho Protection of Public Employees Act. Following an unfavorable summary judgment ruling, she appealed both issues to the Supreme Court.

 

In its analysis of Patterson’s retaliation claim under the IHRA, the Court used the Ninth Circuit’s three-prong test for a retaliation claim, which requires a plaintiff to demonstrate: 1) that she engaged in protected activity; 2) that she suffered an adverse employment action; and 3) there was a causal link between her activity and the adverse employment action. See EEOC v. Luce, Forward, Hamilton & Scripps. Courts have found the first prong satisfied when an employee demonstrates he or she subjectively and reasonably believed that he or she was opposing activity that violates Title VII. See Little v. United Technologies, Carrier Transicold Division.

 

The Court found that Patterson subjectively believed she engaged in protected activity when she opposed the paramour relationship allegedly resulting in favoritism, but it concluded that such a belief was not objectively reasonable. The Court noted that a critical element of the inquiry regarding objective reasonableness of an employee’s belief that he or she is engaging in protected activity is the existing case law at the time of the incident. The case law at the time of Patterson’s resignation did not support her position. Moreover, the Court found that the favoritism, even if true, affected all concerned on a gender-neutral basis.

 

This decision aligns Idaho with other jurisdictions that have confronted the specific issue of paramour favoritism and ruled that paramour favoritism does not constitute gender discrimination because it affects both men and women equally. The Court’s ruling is useful to Idaho employers to the extent that it requires employees to demonstrate the reasonableness of their belief that they are engaging in protected activity under the IHRA. Notwithstanding these holdings, employers must continue to be careful about the prospect of retaliation claims, which constituted 25% of all complaints filed with the Idaho Human Rights Commission in 2010.

Why Employers Should Exercise Restraint and Objectivity

Retaliation claims are increasing at an alarming pace. Not only have these claims tripled in number within the last two decades, they now exceed race discrimination as the leading claim filed with the U.S. Equal Employment Opportunity Commission.  Click here to see EEOC statistics.

Why the startling trend? First, Congress has gone to great lengths to protect employees’ rights to speak out against unlawful employment practices. Protections are regularly included in new laws, such as the American Recovery and Reinvestment Act of 2009, the Patient Protection and Affordable Health Care Act of 2010, and the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

Second, courts have adopted a broad definition of what constitutes retaliation and who should be protected. An employee must prove she engaged in a protected activity (like reporting harassment) and suffered an adverse employment action as a result (like being passed over for a promotion). An employer may ultimately defeat the harassment claim, but still face liability for retaliation. Third parties also may be protected from retaliation. For instance, in a recent United States Supreme Court decision the court found that the fiance of an employee who files a discrimination complaint is protected from retaliation under Title VII.

Third, jurors understand retaliation claims because they involve natural reactions to being accused of something awful, like sexual harassment. Jurors know how natural it is for the accused to have negative feelings after such an accusation, and at the same time jurors will sympathize with an employee who allegedly suffers for rocking the boat by making a complaint.

So what’s an employer to do?

  • Start with a clear anti-retaliation policy and train employees on it. Include an outlet for employees to raise retaliation concerns.
  • Counsel supervisors to be vigilant in their efforts to be objective, to exercise restraint, and to avoid knee-jerk reactions, and educate supervisors on how to spot situations where retaliation among co-workers is a risk.
  • Limit retaliatory behavior between employees by limiting the number of people who know about employee complaints.
  • Establish consistent processes that will catch subtle or unintended retaliation, so that employment decisions are based on legitimate business-related factors.
  • Timely investigate and address any appearance or allegation of retaliation.

DOL Demonstrates Commitment to Wage and Hour Violations with Launch of New "DOL-Timesheet" App

In a highly visual public expression of its commitment to wage-and-hour violations, and to encouraging employees to file wage and hour complaints, the Department of Labor’s Wage and Hour Division entered the world of Smartphone apps when it recently launched its own “DOL-Timesheet” app for the iPad and iPhone. At first glance, the DOL-Timesheet App may not appear to be much more than the contemporary technological equivalent of a pad of paper, pencil, and some simple math. But not only does the DOL-Timesheet app track an employee’s hours and wages, it also: (1) contains a glossary of wage and hour terms; (2) informs workers about their rights under the Fair Labor Standards Act (FLSA); (3) contains easy to use links to contact the DOL’s Wage and Hour Division via phone or email; and (4) specifically instructs employees on how to file a wage violation complaint.

 

With all it does, there are still significant shortcomings and problems with the DOL-Timesheet app. The DOL candidly admits that the app does not address tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest. Additionally, the potential for human error or abuse creates inherent problems with reliability which may call into question the apps utility in a court of law. For example, it is unclear whether the DOL-Timesheet app includes metadata that would allow an employer to determine the time and date employees entered their time which in turn creates the potential that employees might overinflate their hours to seek benefits and compensation to which they may not be entitled.

Despite its shortcomings, the DOL left little question that it hopes and intends to use the information an employee tracks through its new app in its enforcement efforts when it stated the following in its press release announcing the app:

 

“This new technology is significant because, instead of relying on their employers’ records, worker now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.”

 

For employers, the key phrase in the DOL’s statement is the last. An employee’s personal time records are unlikely to supplant or surpass an employer’s properly maintained time records. But in the absence of a well maintained and effective time-tracking system, an employee’s personal time records will quickly rise in value in the court’s eyes.

 

It remains to be seen whether the DOL-Timesheet will garner much attention and use from employees. However, regardless of its ultimate popularity, the DOL-Timesheet app serves as a clarion call to employers to get their proverbial wage-and-hour houses in order. If you are uncertain whether your wage and hour practices hold water under the FLSA, now is as good a time as any to take a good hard look at them.

Ninth Circuit Holds Shareholder Hire Preference Not Facially Discriminatory

Meghan M. Kelly also contributed to this post.

In an unpublished opinion in Conitz v. Teck Alaska Inc. the Ninth Circuit held that an Alaska Native corporation’s shareholder employment preference was not facially discriminatory because it was based on shareholder status, not racial status.

 

Teck employee Gregg Conitz works at the Red Dog Mine, which Teck operates and NANA Regional Corporation, an Alaska Native corporation, owns. Conitz alleged that he was passed over for promotions as a result of Teck’s policy favoring NANA shareholders in hiring – a preference Conitz argued was racially discriminatory because the majority of NANA shareholders are Alaska Native. The district court found that Teck’s employment preference for NANA shareholders was not a racial distinction and therefore did not violate either the Civil Rights Act or any other provisions of federal or state law. Given this, the district court declined to address Teck’s argument that as a joint venture between NANA and Teck, the Red Dog Mine is exempt from Title VII under a provision of the Alaska Native Claims Settlement Act. The district court also found that Conitz failed to show he was qualified for the promotion, and therefore failed to make out a case of discrimination under Title VII.

 

The Ninth Circuit affirmed, holding that a shareholder preference is not facially discriminatory because it favors candidates based on shareholder status, not race. The court also found that Conitz failed to show the elements of a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Conitz did not demonstrate he was qualified for the supervisory position and was, in fact, not promoted because he was not qualified. The court declined to decide whether the shareholder preference policy constitutes racial discrimination since the policy did not affect Conitz.

EEOC's Final Regulations on the ADAAA: News You Will Certainly Use

At long last the EEOC has issued its final regulations for the Americans With Disabilities Amendments Act.  In so doing, the EEOC has taken Congress’ words contained in the Act and declared (repeatedly) that the definition of “disability” is to be read very broadly and that employers should instead focus on whether discrimination has occurred or an accommodation is needed. As we've noted in our prior ADAAA coverage, we think that many more disability lawsuits will be filed and far fewer of them will be dismissed on summary judgment. As the EEOC sees it, “many more ADA claims will focus on the merits of the case.” 

What Hasn’t Changed

Most of the terms used in the original ADA haven’t changed. The Final Regulations do not alter the definitions of “qualified,” “reasonable accommodation,” “direct threat,” and “undue hardship.” And there are still three ways to come within the scope of the statute: “Actual” disability; “record of” disability; and “perceived as” disabled. The “perceived as” category has some substantial changes, as discussed below. 

What Has Changed

1.         Mitigating measures can no longer be taken into account when determining whether a person is disabled. (Except, individuals with with regular vision correction such as eyeglasses or contact lenses are still considered in their mitigated state for purposes of determining whether they have a disability.)  This means that if the employee’s condition is entirely treated (heart disease is kept under control by medication, for example), the employee’s “disability” is evaluated without consideration of the treatment. Of course, if a person’s condition is controlled entirely by medicine or an assistive device or some other measure, it may mean that no accommodation is needed.

2.         A “regarded as” claimant need no longer prove that he or she is perceived as a “disabled” person (i.e., a person with a physical or mental impairment that substantially limits a major life activity). Instead, a “regarded as” claimant need only show that the employer discriminated against him or her based on a belief that the employee (or applicant) had an impairment. However, if the employer can show that that the employee’s (or applicant’s) condition is actually just “transitory [i.e., lasting six months or less] and minor,” then the employee can’t be “regarded as” disabled. The six month time limit does not apply to evaluation of an actual disability or a record of a disability. And, in fact, the “rules of construction” contained in the Final Regulations specify that a disability may last less than six months. 

3.         The list of examples of “major life activities” is expanded and now includes “major bodily functions.” The rules make it clear that this is not a demanding standard. The major life activity need not be central to daily living, and it doesn’t have to severely or significantly limit the person’s ability. The final rule provides non-exhaustive lists of what constitutes a major life activity. Such activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and performing major bodily functions. Bodily functions include the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

4.         Given the new lists, some conditions will almost always be deemed to substantially limit a major life activity. The ones mentioned in the Final Regulations are: Deafness, blindness, intellectual disability (formerly known as mental retardation), partial or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Of these, perhaps the most troubling are autism and PTSD since both are ill-defined in the medical literature and exist on very broad spectrums of impairment. 

5.         The changed definition of “disability” applies to Title II of the ADA (State and local governments) and Title III (private places of public accommodation).

6.         The phrase “qualified individual with a disability” has disappeared and instead the Final Regulations refer to “individual with a disability” and “qualified individual” separately. Again, these changes are intended to focus the inquiry on whether discrimination has occurred, and away from whether the individual meets the definition of “disability.”

More Lawsuits to Follow

In our experience, the vast majority of employers do try to fully comply with the ADA. Unfortunately, the ADAAA and these new Final Regulations assume just the opposite; by removing practically any burden on the employee to show that he or she is disabled, Congress and the EEOC have clearly shifted the burden to employers.

 

For more ADAAA information, check out:

 

Supreme Court Rules Oral Complaints Of Wage Violations Are Protected Under FLSA

Today the U.S. Supreme Court issued another employee-friendly opinion in Kasten v. St. Gobain Performance Plastics Corp., holding by a 6-2 margin that the Fair Labor Standards Act ("FLSA") anti-retaliation provisions protect an employee’s oral complaints to supervisors about wage and hour violations. This is the latest of three opinions this term that have expanded the reach of various anti-retaliation provisions in employment discrimination statutes. (See World of Employment's analysis of the other two cases, Thompson v. North American Stainless, LP and Staub v. Proctor Hospital).

In Kasten, the plaintiff complained orally to his supervisors on several occasions that the location of time clocks in the workplace violated the FLSA, because it prevented employees from punching in and out while they were donning and doffing protective clothing and equipment.  Shortly afterwards, his employment was terminated for, ironically, multiple failures to properly punch in and out.  Plaintiff sued, claiming that his termination was in retaliation for his having complained that the Company was violating the FLSA.  The District Court dismissed his case, and the 7th Circuit affirmed, holding that the FLSA anti-retaliation provision, which prohibits employers from taking adverse action against employees because they “file any complaint or instituted or caused to be instituted any proceeding” complaining about wage and hour violations, protects only written complaints, not oral ones. 

The Supreme Court reversed, holding that oral complaints are also protected under the FLSA. The Court held first that the phrase “file any complaint” in the statute was ambiguous; the term “file” generally indicated a writing (although not always), while “any” indicated Congress intended to cover many different types of complaints.  The Court went on to look at the legislative history and purpose, Department of Labor interpretations, and numerous lower court opinions to ultimately decide that Congress must have intended the FLSA to protect oral complaints. 

At the end of the day, this opinion may change little for west coast employers. While the Kasten decision resolves a split among the Circuit courts, the law in the Ninth Circuit (which includes, amongst others, Oregon, Washington and California), has recognized for over a decade that oral complaints are protected under the FLSA. Further, the anti-retaliation provisions of other state and federal anti-discrimination statutes—most notably Title VII—also protect employees who make oral complaints of discrimination. Finally, the opinion merely holds that Mr. Kasten can go ahead with his lawsuit—he still needs to prove his case that his employer fired him because of his protected activity.

Still, Kasten and other recent U.S. Supreme Court decisions in Thompson and Staub provide useful reminders that courts--including the Supreme Court--read anti-retaliation protections broadly.  Employers must be careful to ensure and adequately document that any adverse employment actions against employees who have made any complaints about alleged unlawful activity in the past are for legitimate business reasons only. Retaliation claims are already the most common type of employment claims filed against employers.  This opinion isn’t going to change that. 

Ninth Circuit Places Burden of Proof on Employers to Justify Refusal to Reinstate in FMLA Interference Claims

A Ninth Circuit panel ruled yesterday in Sanders v. City of Newport that when an employer opts to not restore an employee who was on FMLA leave to her former position, that the burden falls on the employer to demonstrate that such action was justified.

In Sanders, the plaintiff, a billing clerk, started feeling ill after an office move to a new location and the use of new low-grade billing paper. She was diagnosed with multiple chemical sensitivity, and took FMLA leave. Upon being cleared to work by her doctor, the City terminated her employment on the grounds that it could not guarantee a safe workplace for her given her sensitivity to chemicals. In instructing the trial court on plaintiff’s FMLA interference claims, the trial court placed the burden on plaintiff to prove that the employer lacked reasonable cause to reinstate her. On that instruction, the jury rendered a decision for the City on all claims.

The plaintiff appealed on the grounds that the instruction improperly placed the burden of proof on her, and the Ninth Circuit panel, consistent with rulings in the Eighth, Tenth and Eleventh Circuits, agreed. The Court based its decision on the plain text of regulations stating that “[a]n employer must be able to show, when an employee requests restoration, that the employee would not otherwise have been employed if leave had not been taken in order to deny restoration to employment.” The court held that the error was not harmless, and remanded the case for a new trial.

While this case was remanded based on a technicality in the jury instructions, and may yet culminate in an employer verdict, it provides a good reminder for employers that if they decide to deny restoration of employment to an employee following protected FMLA leave, it will be their burden to demonstrate that they had objective justification for the decision. Even if the decision was made in good faith, lack of objective justification may serve to limit damages, but not liability. 

Service Animals Limited to Dogs and Some Miniature Horses Under New ADA Rules

As reported in the Oregonian, the Department of Justice this week implemented amendments to a number of regulations governing Title II and Title III of the Americans With Disabilities Act (“ADA”). Title II of the ADA applies to public entities, while Title III applies to public accommodation. While the new rules do not apply to Title I, which covers employment, they will impact any business that constitutes a place of public accommodation, which includes all businesses that provide access to members of the public. 

The primary change that will impact employers whose businesses constitute a place of public accommodation is a new definition of what constitutes a “service animal” under the Act. The purpose behind the rule change is to combat the dilution of the “service animal” label, “which has resulted in reduced access for many individuals with disabilities who use trained service animals that adhere to high behavior standards.”

The definition includes two primary changes: First, animals intended only to provide emotional support are no longer considered service animals. The second change limits the definition of a service animal to include only dogs that have been individually trained to do work that benefits an individual with a disability. Other animals, wild or domesticated, trained or untrained, no longer qualify as service animals, except, in limited circumstances, miniature horses. Places of public accommodation are not required to admit customers or members of the public with “service animals” that do not meet this new, limited, definition.

We want to stress again that this change does not apply to the part of the Act that relates specifically to employment, and does not in and of itself require employers to allow employees to have service animals. Employers presented with a situation where an otherwise qualified employee with a disability requests use of a service animal should engage in their usual reasonable accommodation analysis.  This new rule does have the potential to inform that process for employers, by providing insight as to what's considered “reasonable” in the public accommodation context.

For more information on the ADA rule changes, including the text of the rules and fact sheets for employers, go to the Department of Justice’s ADA home page

Medical Marijuana and Zero Tolerance Drug Testing Policies Remain An Issue For Employers

Employers and the courts continue to wrestle with issues involving “zero tolerance” drug testing policies and whether employers must accommodate medical marijuana use by their employees. Marijuana use is illegal under the federal Controlled Substances Act, and therefore does not need to be accommodated under the federal Americans with Disabilities Act (“ADA”). However, 15 states currently have legalized some form or another of medical marijuana use: Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington as well as the District of Columbia. The language of each state’s law can differ, and the courts therefore interpret these state law issues on a case-by-case basis.

 

Most recently, in Casias v. Wal-Mart Stores, Inc., a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana stated no legal claims for wrongful discharge. The court accepted Wal-Mart’s argument that Michigan’s medical marijuana law does not regulate private employment; rather, it merely provides a potential affirmative defense to criminal prosecution or other adverse action by the state. The court rejected the plaintiff’s argument that the law created a new protected employee class, which “would mark a radical departure from the general rule of at-will employment in Michigan.” The Casias decision is currently being appealed.

A similar ruling is under review by the Washington State Supreme Court. I argued the case for the employer on January 18, 2011. As I previously blogged, the Washington Court of Appeals in Roe v. Teletech Customer Care Management affirmed a trial court’s ruling and held that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. In so doing, the Court of Appeals stated, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act.” Rather, the Court held that MUMA merely protects qualified patients and their physicians from state criminal prosecution related to the authorized use of medical marijuana. The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. A decision from the Washington Supreme Court is anticipated later this year.

Three other state Supreme Courts have already issued rulings on workplace medical marijuana issues, and all have found in the employer’s favor. In Ross v. RagingWire, the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana. The court held that employers in California do not need to accommodate the use of medical marijuana, even when users only ingest or smoke marijuana away from the workplace.

In Johnson v. Columbia Falls Aluminum Company, the Montana Supreme Court ruled, in an unpublished decision, that an employer is not required to accommodate an employee's use of medical marijuana under the federal ADA or the Montana Human Rights Act.

Also previously covered on World of Employment, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that because federal criminal law takes precedence over Oregon’s medical marijuana law, employers in Oregon do not have to accommodate employees' use of medical marijuana. Stoel Rives filed a “friend of the court” brief on behalf of the employer in that case.

There are many sound reasons why employers have zero tolerance policies and engage in drug testing of applicants and/or employees, including, without limitation, customer requirements, government contracting requirements (including the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability. To best protect themselves, employers should review their policies to make sure that illegal drug use under both state and federal law are prohibited, and that their policies prohibit any detectable amount of illegal drugs in an applicant’s or employee’s system as opposed to using an “under the influence” standard. Employers should also ensure that all levels of their human resources personnel know how to handle medical marijuana issues as they arise. Finally, given the continued efforts by marijuana advocates and civil rights groups to “push the envelope” of medical marijuana laws into the workplace, it is important for employers to continue to closely monitor legislative and legal developments. A recent effort to include workplace protections for medical marijuana users via amendments to Washington’s medical marijuana laws was defeated, but we anticipate similar efforts will be made in Washington and other states in the coming years.

Ninth Circuit Holds "One-Strike" Drug Testing Rule Does Not Violate ADA

The Ninth Circuit Court of Appeals yesterday held in Lopez v. Pacific Maritime Association that an employer’s one-strike drug testing policy for applicants does not violate the Americans With Disabilities Act (“ADA”). The one-strike policy in question stated that the company would never hire any applicant who tested positive on a pre-employment drug screening. All applicants were given notice of the test seven days in advance. The plaintiff failed his test when he first applied in 1997. At the time he suffered from an addiction to drugs and alcohol. He re-applied in 2002, and was rejected based solely on his prior positive test. At that time the employer was unaware of plaintiff’s earlier addiction.

The plaintiff filed suit, alleging disparate treatment and disparate impact violations of the ADA based on his protected status as a rehabilitated drug addict. The trial court granted the employer’s motion for summary judgment, and the Ninth Circuit affirmed. The court dispensed with plaintiff’s disparate treatment arguments on the grounds that the rule, while arguably unreasonably harsh, was neutral, in that it “eliminates all candidates who test positive for drug use, whether they test positive because of a disabling drug addiction or because of an untimely decision to try drugs for the first time, recreationally, on the day before the drug test.” Citing the Supreme Court’s decision in Raytheon v. Hernandez, the court noted that “[t]he ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions made because of factors merely related to a person’s disability.”

The Court also rejected plaintiff’s disparate impact argument, on the ground that he failed to produce evidence from which a juror could conclude that “the one-strike rule results in fewer recovered drug addicts in Defendant’s employ, as compared to the number of qualified recovered drug addicts in the relevant labor market.”

While this case does present something of a win for employers with similarly neutral policies, I would caution employers from getting too excited for two reasons. First, the Court hinted that summary judgment may not have been appropriate had the employer known of the plaintiff’s addiction before he reapplied. Second, plaintiff’s disparate impact claim failed only because he could not produce any evidence of disparate impact. The Court made clear that to survive summary judgment he’d only have to produce “some” evidence—a very low threshold indeed.

Supreme Court Upholds "Cat's Paw" Theory In Employment Discrimination Cases

Today the Supreme Court issued its opinion in Staub v. Proctor Hospital, upholding the "cat's paw" theory of employer liability, under which employers are liable for discrimination where lower-level supervisors with discriminatory motives influence, but do not make, adverse employment decisions made by higher-level managers.  The near unanimous opinion, authored by Justice Scalia, is likely to greatly increase employer accountability for the actions and recommendations of lower-level supervisors.

Vincent Staub worked for Procter Hospital as an angiography technician; he was also a member of the Army Reserves.  His immediate supervisors resented his absences, which required coworkers to “bend over backwards” to pick up the slack. In January 2004 Staub was placed on Corrective Action for failing to be at his desk as required, and in April 2004 his supervisor informed HR that Staub was again away from his desk without notifying a supervisor as required.  Staub disputed the original Corrective Action, and also said he left a voice mail for his supervisor before leaving his desk in April.  The HR Manager largely relied on the supervisor’s accusation, reviewed Staub’s personnel file, consulted with another HR employee, and decided to terminate Staub’s employment. 

Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), which prohibits discrimination based on military service.  Under the so-called “cat’s paw” theory, Staub claimed that Procter Hospital was liable for discrimination, because the neutral decision-maker (the HR Manager) relied on information provided by lower-level supervisors who had discriminatory motives and were out to get him fired.  After winning in a jury trial, the district court granted Proctor Hospital’s motion to dismiss.  In affirming, the 7th Circuit had held that the employer should not be liable under the cat’s paw theory, because the lower-level supervisors’ input was not the “singular influence” on the decision, and because the HR Manager conducted “her own investigation into the facts relevant to the decision” and therefore was not “wholly dependent” on the discriminatory input.

Staub begins with an analysis of the text of USERRA, which expressly defines causation to include situations where discriminatory animus is "a motivating factor" in an adverse employment decision.  Drawing also on tort and agency principles, Justice Scalia concluded that the cat’s paw theory applies in cases where 1) a supervisor acts with discriminatory motive, 2) the discriminatory supervisor intends to cause the adverse action, and 3) the discriminatory act is a “proximate cause” of the adverse action.  Scalia rejected the argument that the decision-maker’s independent investigation should purge the decision of discriminatory motive, noting that the hostile supervisors’ recommendations remained a motivating factor in the decision.  He also noted, in contrast to the 7th Circuit, that the HR Manager largely relied on the supervisors’ account of the facts underlying the termination, and did not independently determine whether the supervisors’ recommendations were justified. 

 

What Employers Can Do:  Don’t Be A Cat’s Paw

While Staub opens the door wider to discrimination cases under the cat’s paw theory, the case offers some guidance on what employers can do to minimize exposure from these claims.  Most obviously, ultimate decision makers cannot simply rely on recommendations from subordinates, but should conduct a thorough and independent investigation into the facts underlying the employment action.  The subtext of Staub suggests the HR Manager’s investigation was far from adequate—she merely reviewed the personnel file and consulted another HR employee, but largely relied on the (hostile) supervisor’s accusation that Staub had, in fact, violated a workplace rule.  The better the independent investigation, especially into the underlying facts, the more likely it is to break the “proximate cause” nexus between coworkers’ discriminatory motive and the employer’s ultimate decision. 

In addition, and perhaps just as obvious, employers should do everything possible to detect and immediately end discriminatory animus brewing among lower level employees. The plaintiff inStaub easily satisfied the other two prongs of the Court’s test—that the supervisor acted with a discriminatory motive and intended to cause Staub’s firing—because the trial record was full of choice remarks by coworkers disparaging his military duty and complaining about his absences. His supervisors described his Reserve military duty as a “bunch of smoking and joking and a waste of taxpayers’ money,” and scheduled him additional shifts “to pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves.”

The Reach of the Cat’s Paw

Staub makes clear that its reasoning applies to more than just USERRA cases.  The opinion expressly noted that Title VII also uses the “a motivating factor” causation standard.  What is less clear is whether it applies to just discriminatory supervisors, or also to non-supervisory coworkers. For the moment, however, the Supreme Court has given a green light to cat’s paw cases, and employers should assume it could apply broadly and to any discrimination claim.

 

Ninth Circuit Clarifies Meaning of "Voluntary Departure" Under WARN Act

In Collins v. Gee West Seattle, LLC, a three member Ninth Circuit panel held 2-1 that employees who receive notice of a plant closing, but stop returning to work before the plant closing takes effect, have not “voluntarily departed” under the Worker Adjustment and Retraining Notification Act (WARN).

In Collins, the employer announced to its employees in late September 2007 that it would be closing its doors at the end of business on October 7, 2007. Before that announcement, the employer had approximately 150 employees. By October 5, however, only 30 employees continued to report to work, the remainder having opted to stop coming in.

Under the WARN Act, an employer must provide at least 60-days notice to each affected employee, assuming the closing or shutdown would result in “an employment loss…during any 30-day period for 50 or more employees.” 29 U.S.C. § 2101(a)(5).  An “employment loss” is defined as a termination “other than a discharge for cause, voluntary departure, or retirement.”  (Emphasis added.)

In Collins, the employer argued that the 120 employees who stopped coming to work were “voluntary” departures because they left of their own free will before the plant closed. As a result, only the 30 remaining employees were "involuntary" terminations, and therefore the WARN Act was never implicated. The Ninth Circuit disagreed, reversing the District Court’s grant of summary judgment, and holding that employees who stopped coming to work because of the notice that the plant would close did not depart “voluntarily” within the meaning of the Act. The Court noted that the employer’s interpretation is “inconsistent with the Act’s general structure and its overall purpose,” and would render “superfluous” the “faltering business” exception to the WARN Act—which allows employers who are uncertain as to the future of the business to provide notice of the closure “as is practicable.”

While Collins applies to only a narrow set of circumstances, employers facing the unfortunate circumstance of an uncertain mass layoff or plant closing must take into consideration that employees who stop coming to work before the layoff or closure, but based on the representation that the layoff or closure will occur, must be counted for purposes of WARN Act calculations. When faced with such an uncertain situation, employers are better off providing notice when practicable, and consider arguing a faltering business defense. 

See also World of Employment's prior WARN Act related posts:

 

 

Supreme Court Holds Title VII Can Cover Third Party Retaliation Claims

The United States Supreme Court issued a unanimous opinion today in Thompson v. North American Stainless, LP., 562 U.S. ___ (2011), that confirms the expansive scope of persons protected by Title VII. The Court held that it is unlawful for an employer to intentionally harm one employee in order to retaliate against another employee who engaged in protected activity.

Plaintiff Thompson and his fiancée Regalado were engaged to be married and both worked for North American Stainless (NAS). The EEOC notified NAS that Regalado had filed a charge of sex discrimination. Thompson was fired three weeks later. The issue was whether Thompson could state a claim for retaliation, even though he had not engaged in any protected activity. The Court confirmed that “Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct.” It “prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court found that it was “obvious” that Regalado would have been dissuaded from making her complaint if she knew that Thompson would lose his job as a result. 

The employer argued that to permit a third party retaliation claim in this case would lead to a dangerous slippery slope – would firing an employee’s boyfriend count? How about just a friend? Anytime the employer fired a person who happened to have a connection to someone else who had filed an EEOC charge, the employer would have potential liability. The Court responded: “Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. . . . Given the broad statutory test and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules.” In other words, there is no bright line test for who is protected from retaliation. 

After concluding that the antiretaliation provision of Title VII was broad enough to encompass the activity in this case, the Court tackled the question of whether Thompson could sue NAS. Here the Court took a more narrow approach. It declined to follow the Court’s prior view that, to be “an aggrieved person” under Title VII, all that was required was that the person have “minimal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court.” That minimalist approach would lead to “absurd consequences.” For example, if the minimalist approach was applied, a shareholder who could show that his stock value declined because of the company’s unlawful termination of a valuable employee could sue under Title VII. Instead, the test, the Court said, is as follows: “[A] plaintiff may not sue unless he falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Thompson, it said, fell within the “zone of interests” protected by Title VII because he was a NAS employee and NAS intended to injure him in order to punish Regalado. 

What This Case Means for Employers

Employers probably didn’t need another reminder that the potential claims they face are only limited by the imagination of plaintiffs’ attorneys. Before an employer takes any disciplinary action against anyone, it must ensure that it has legitimate business reasons for doing so and that an improper reason – such as a desire to exact revenge on another employee – hasn’t infected the decision. 

GINA Compliance?

As Stoel Rives World of Employment has previously reported, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees and applicants based on their genetic information and regulates employers’ acquisition and use of genetic information.   

GINA applies to private employers with 15 or more employees, employment agencies, labor unions, and some other entities. Laws in 34 states also prohibit employment discrimination on the basis of genetic information and some of them may apply to employers with fewer than 15 employees.  On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations to Title II of GINA.  

While many employers don’t think they collect genetic information covered by the law, its definition of “genetic information” is quite broad and includes family medical history.  “Genetic tests” which come under the law are becoming more common, such as tests which detect the gene thought responsible for a predisposition to breast cancer.  (The regulations helpfully specify that some tests, like a cholesterol test or a drug and alcohol test, are not “genetic tests.”)  The regulations broadly prohibit an employer’s efforts to obtain an applicant’s or employee’s genetic information, but do provide a safe harbor for “inadvertent acquisition.”  This safe harbor will protect an employer, for example, who gains genetic information by innocently inquiring about an employee’s well-being. 

But employers commonly make requests for medical information such as when asking an employee to provide a medical certification for a FMLA leave or as part of the ADA interactive process.  The regulations specify that employers must tell employees – using specific language – to not disclose protected genetic information when the employer requests medical information.  Not surprisingly, the regulations require employers to maintain any genetic information obtained in a separate confidential medical file. Genetic information may be kept in the same file as other medical information.

 

The EEOC’s helpful FAQs on GINA are here.  (Question 17 contains the suggested safe harbor language.) 

 

What should employers do?

 

  • Revise the EEO statement to include a prohibition on discrimination based on genetic information or ensure that the EEO statement includes broad language like “and as provided by law.”
  • Check to ensure that application forms or on-boarding forms don’t seek family medical history information.
  • Update template communications to employees when requesting medical information to include the approved safe harbor language.  

 

Ninth Circuit Approves of "Preemptive" Fitness for Duty Examination

Yesterday the Ninth Circuit Court of Appeals issued a decision approving of an employer's use of a "preemptive" fitness for duty examination for an employee who exhibited bizarre and erratic behavior in the workplace, even though that behavior had not yet impacted his job performance.  Click here to read the full opinion in Brownfield v. City of Yakima.

In Brownfield, a police officer was ordered to undergo a fitness for duty examination after he displayed several strange behaviors in and out of the workplace:  swearing at and arguing with another officer, becoming upset after a child teased him during a traffic stop, domestic violence at home, and making vague suicidal comments .  The City required Brownfield to undergo a fitness for duty examinations to determine whether he could perform police duties.  When Brownfield refused, the City terminated him.  Brownfield sued, alleging the City violated the Americans with Disabilities Act ("ADA") by unlawfully requiring a fitness for duty examination.

The Ninth Circuit held that the City did not violate the ADA by requiring the fitness for duty examination.  Under the ADA, an employer may not require a fitness for duty examination "unless such examination ... is shown to be job-related and consistent with business necessity."  The Ninth Circuit rejected Brownfield's argument that the examination could not be job-related unless the City showed Brownfield's job performance was affected by his behavior.  Rather, the court held that a "propyhlacitc psychological examination" following an employee's erratic behavior may be job-related and satisfy the business necessity standard even though job performance is not impacted. 

When can an employer order an employee who is behaving erratically to undergo a fitness for duty examination?  In Brownfield, the Ninth Circuit adopted a "reasonable person" standard: the employer can order the examination when faced with "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job."  The court also warned against overuse of such examinations, however: "an employee's behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions."

Brownfield will give employers in the Ninth Circuit greater leeway in addressing an employee's erratic behavior.  Before ordering such an examination, however, employers should consider whether the behavior could raise a serious question of whether the employee can still perform the essential functions of his job.  Overuse of such examinations could lead to meritorious discrimination claims. 

Supreme Court: Disparate Impact Plaintiffs Can Sue Based on the Application of the Discriminatory Practice

The Supreme Court today issued a judicial smackdown to the Seventh Circuit Court of Appeals, unanimously reversing its decision in Lewis v. City of Chicago (as we suggested it should when we reviewed the details of this case back in October!). Briefly put, the plaintiffs are a group of approximately 6,000 black firefighter applicants who filed charges of race discrimination with the EEOC more than 300 days after the initial announcement of their application test results, but within 300 days of the hiring of the new firefighter class from which they allege they were denied consideration. The Seventh Circuit held that the “discrimination was complete when the tests were scored...and the applicants learned the results.”

Justice Scalia, writing for the entire Court, stated that because there is no dispute that the claim was filed within 300 days of the hiring of the new class, the issue in this case is not “whether a claim predicated on the [on the hiring of the new firefighter class] is timely, but whether the practice thus defined can be the basis for a disparate-impact claim at all.” (Emphasis in original.) In other words, while the parties agreed that the adoption of a practice had a disparate impact, the real question was whether a cause of action can arise from the application of that same practice. The Court held that it could. Citing its recent opinion in another firefighter test case—Ricci v. DeStefano, the court noted that “a plaintiff establishes a prima facie disparate-impact claim by showing that the employer ‘uses a particular employment practice that causes a disparate impact’ on one of the prohibited bases.”

Per the Court, the City believes that this decision “will result in a host of practical problems for employers and employees alike,” in that it may subject employers to an increased number of disparate-impact lawsuits based on long-stranding practices. That may, in fact, be true. Following this decision, any employer engaging in a practice whose application may result in a disparate impact on some protected classification of employees should take the time to reevaluate that practice. While there may be a legitimate business defense for the practice (as remains to be seen in the Lewis case on remand), it’s going to be easier for employees to get their foot in the door and state a claim.

Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana

Yesterday the Oregon Supreme Court conclusively ruled that employers are not required to accommodate the use of medical marijuana in the workplace, ending years of doubt and confusion on this critical issue. Click here to read the Court’s opinion in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries.

In Emerald Steel, a drill press operator was terminated after his employer learned he was using medical marijuana to treat a medical condition that qualified as a disability under Oregon law. The employee filed a claim with the Oregon Bureau of Labor and Industries, alleging that the employer’s refusal to accommodate his use of medical marijuana violated Oregon law requiring employers to reasonably accommodate an employee’s disability. A judge ruled that the employer did not properly engage in the interactive process to determine whether other reasonable accommodations were possible.

The employer appealed that decision, arguing that neither federal nor state disability law requires employers to engage in the interactive process with users of medical marijuana, given that their use of marijuana is prohibited by federal law. The Oregon Court of Appeals ruled in favor of the employee on the basis that the employer failed to preserve that argument in the case below. Further, a prior Oregon Court of Appeals case—Washburn v. Columbia Forest Products—had held that employers do have a duty to accommodate the use of medical marijuana by a disabled employee.

On appeal, the Oregon Supreme Court reversed the decisions of the trial judge and the Court of Appeals, and reversed the Oregon Court of Appeals’ decision in Washburn. The Supreme Court held that employers do not have to accommodate employees’ use of illegal drugs. Because marijuana—medical or otherwise—is illegal under federal law, employers are not required to accommodate its use under any circumstance.

Since the original Washburn decision, many Oregon employers have assumed they were obligated to accommodate the use of medical marijuana by disabled employees. The Emerald Steel decision should give all Oregon employers comfort in knowing that, until or unless federal law changes, they are definitely not required to accommodate medical marijuana use. A similar ruling from the Washington Court of Appeals is being reviewed by that state’s supreme court.  Stoel Rives represents the employer in that case. Click here to read the World of Employment's coverage of that case.

President Obama Uses Recess Appointments to Fill NLRB, EEOC Seats

This week President Obama announced that he would make recess appointments to fill vacancies on the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).  The move allows the White House to bypass the Senate confirmation process, which promised to be extremely contentious. 

The appointments will add two Democratic members to the NLRB:  Craig Becker and Mark Pearce.  Both appointees were strongly opposed by Republicans because of their anticipated pro-labor viewpoints.  Becker, a labor law professor, has been associate general counsel for the Service Employees International Union (SEIU) since 1990 and has also served as an AFL-CIO staff counsel since 2004.  Pearce is a partner with the firm of Creighton, Pearce, Johnsen & Giroux in Buffalo, New York, where he represents unions and employees.  President Obama's recess appointments do not include Republican nominee Brian E. Hayes, the Republicans' labor policy director for the Senate Committee on Health, Education, Labor and Pensions, but Hayes' Senate confirmation is not expected to encounter any significant roadblocks. 

The EEOC appointments will bring the agency up to a full compliment of five directors.  The new appointments include: Jacqueline Berrien as EEOC chair, Chai Feldblum and Victoria Lipnic.  Berrien has served as associate director of the NAACP Legal Defense and Educational Fund Inc. (LDF) in New York since 2004 where she has worked on voting rights and political participation issues.  Feldblum, a Georgetown University law professor, played a leading role in drafting the original Americans with Disabilities Act and more recently worked on the ADA Amendments Act.  She has also worked on the proposed Employment Non-Discrimination Act, which would ban employment bias based on sexual orientation or gender identity.  Lipnic is a lawyer with Seyfarth Shaw in Washington, D.C. and served in President George W. Bush's administration as assistant secretary of labor for employment standards from 2002 until 2009.   In addition, EEOC supervisory attorney P. David Lopez will appointed to the post of EEOC general counsel.

What will these appointments mean for employers?  First, expect to see more rule changes.  Both the EEOC and the NLRB have for some time operated without quorums, meaning that the agencies have not been able to take on any controversial cases or make significant rule changes.  Now that they have enough members, expect a flurry of activity from both bodies.  For the NLRB in particular, this may mean reversals of many pro-employer decisions made during the Bush years.  Second, expect both agencies to get a lot more employee-friendly.  President Obama's appointments will appease labor unions and employee advocates who adamantly supported his campaign but until now have not received much in return.  Those groups expect to get a return on their investment, and these appointments will go along way towards making that happen. 

Ninth Circuit Issues Split Decisions on Compensation for Travel Time and "Off-the-Clock" Work

 

Employees who drive company vehicles between home and work will find little to cheer about in a recent Ninth Circuit decision . . . unless they live in California.  In Rutti v. Lojack Corporation, a three-judge panel refused to relax the rule that commuting time is non-compensable under the Fair Labor Standards Act (FLSA).  

The employee, who installed vehicle recovery systems, contended that his travel time between home and worksites was compensable under the FLSA and California law because his employer required him to drive company vehicles and significantly restricted his activities while doing so.  For example, the employer prohibited the employee from transporting passengers and engaging in personal pursuits, and required him to drive directly to and from the worksite with his cell phone turned on.  

All three judges rejected that argument under the FLSA, holding that use of an employer's vehicle to commute is non-compensable even if it is a condition of employment and that the restrictions placed on the employee's activities were incidental to his principal job activities.  The unanimous panel also rejected the employee's argument that his commuting time was compensable under the "continuous workday doctrine," under which an employee's workday generally lasts until he has completed all of his principal activities during the day. 

Continue Reading...

Despite Assertions to Contrary, Employment Laws Do Exist

On my way in to work this morning, I was listening to NPR’s Morning Edition, and caught an interview with Lewis Maltby, president of the National Workrights Institute. The interview was ostensibly to promote Mr. Maltby’s new book, “ Can They Do That?” in which he discusses employment termination cases that were deemed legal, but seem, in his opinion, to be disproportionately severe or unjust.

What Mr. Maltby appeared to decry (without using the proper terminology) is the American presumption of “at will” employment—the notion that an employer may terminate an at will employee’s employment for any reason or no reason, so long as it’s not otherwise illegal. A couple of Mr. Maltby’s examples demonstrate that concept well. For example, he mentioned instances where it was permissible for an employer to terminate an employee based on the political bumper sticker on the employee’s car, and for a school to terminate an overweight teacher’s employment because the teacher did not project the correct image. As there are no laws that specifically protect individuals from discrimination based on political affiliation or weight, these terminations were in fact permissible. (I would caution, of course, that terminating an overweight employee does carry risk to the extent the employee might be considered to have a disability under state or federal law.)

Continue Reading...

9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases

The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases.  Click here to read the decision in Alvarado v. Cajun Operating Co. 

Mr. Alvarado worked as a cook in defendant’s restaurant. He complained after his supervisor made allegedly discriminatory remarks related to his age and disability, and shortly afterward he received several disciplinary write-ups for poor performance.  After Mr. Alvarado was ultimately terminated, he sued his former employer for, among other things, retaliation under the ADA.  Prior to trial, the federal district court granted defendant’s motion in limine, barring plaintiff from seeking punitive and compensatory damages, and a jury trial, on his ADA retaliation claim on the grounds that the statute provided only equitable relief for such claims.

The Ninth Circuit affirmed the district court’s ruling by holding that the plain, unambiguous language of the ADA remedy provisions specifically enumerate only those sections of the act for which compensatory and punitive damages (and a jury trial) are available, and that the ADA anti-retaliation provision is not included in that list.  Somewhat surprisingly considering the laws at issue have been on the books since 1991, the Ninth Circuit appears to be only the third Circuit Court of Appeals to have been presented with the issue, after the Seventh and Fourth Circuits (which reached similar conclusions).  The court also noted that several district courts in other circuits had reached the opposite conclusion (perhaps most surprising of all), by ignoring the text of the remedy provision and instead emphasizing the overall structure of the ADA and the “expansive” intent of the 1991 amendments. 

For now, the law in the Ninth Circuit on this question is clear:  while still entitled to compensatory or punitive damages in disability discrimination or failure to accommodate claims under the ADA, employees may not receive those damages for ADA retaliation claims.

Continue Reading...

Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010

Wow, it's Festivus already, which means that in just a few short days it will be a brand new year!  We have a Festivus present for Oregon employers to help you get ready:  Ten things you need to know for 2010!  (click on each blue hotlink for more information)

  1. All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
  2. The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
  3. As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate
  4. Leave for Military Spouses:  Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty. 
  5. In 2010, you might have a greater duty to accommodate employees' religious dress and practices
  6. Domestic Violence Leave and Accommodations:  Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must  make reasonable accommodations for such employees.
  7. In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
  8. Oregon's minimum wage will remain $8.40/hour.
  9. Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act
  10. Oregon has new rest and meal break regulations.

And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength.  Happy festivus, and see you in 2010!

9th Circuit: Independent Contractor Can Assert Disability Claim Under Rehabilitation Act

The Ninth Circuit Court of Appeals ruled recently that an independent contractor may assert a disability claim against an employer under the Rehabilitation Act.  Click the link to read the opinion on Fleming v. Yuma Regional Medical Center

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act (ADA).

In Fleming, an anesthesiologist who worked as an independent contractor sued the medical center at which he worked, alleging a discriminatory constructive discharge.  The trial court dismissed the case on the basis that Fleming was an independent contractor and that the  Rehabilitation Act applied only to employee-employer relationships.  The Ninth Circuit reversed, holding that the Rehabilitation Act provides a cause of action to any individual subjected to disability discrimination by any program or activity receiving federal financial assistance.  While the Rehabilitation Act adopts the standards that are applied under the  ADA, it does not adopt the ADA's limitation to the employee-employer relationship. 

Independent contractors are not considered "employees" for purposes of most employment discrimination laws, and many employers hire independent contractors to avoid potential liability under such laws.  Fleming shows that, at least for employers covered by the Rehabilitation Act, independent contractors may still find ways to seek the protections of those laws despite their "non-employee" status.  In addition, many employers incur significant tax and other liabilities by misclassifying people as "independent contractors" when they really should be treated as employees.   For more information, the Internal Revenue Service offers this guidance for determining whether someone is or is not correctly classified as an independent contractor

Supreme Court Lets Stand Ruling Allowing EEOC to Issue Subpoenas After Right-To-Sue

Yesterday the U.S. Supreme Court declined to review a Ninth Circuit Court of Appeals decision that allows the Equal Employment Opportunity Commission (EEOC) to continue investigating allegations of employment discrimination, and even to issue subpoenas to employers, after issuing a right-to-sue letter to the employee who filed the initial complaint.  Click here to read the Ninth Circuit decision in Federal Express Corp. v. EEOC

In order to file a lawsuit under Title VII of the Civil Rights Act of 1964, an employee must first file a complaint of discrimination with either the EEOC or an analogous state agency, a process known as "exhausting administrative remedies."  Only after the EEOC issues a "right-to-sue letter" may the employee then file a lawsuit.  It is not uncommon for an employee to file a complaint with the EEOC and withdraw it almost immediately, obtain the right-to-use letter and file a lawsuit, all before the EEOC has had a chance to investigate.  In Federal Express, the employee did just that in order to join a pending class action lawsuit.  The employer expected the EEOC to drop its investigation, but instead EEOC continued to investigate and issued a subpoena to the employer. 

The Ninth Circuit enforced the subpoena, writing:  "By continuing to investigate a charge of systemic discrimination even after the charging party has filed suit, the EEOC is pursuing its obligation to serve the public interest."  The Ninth Circuit's decision is in line with a decision from the Third Circuit, but contrary to decisions from the Fifth, Seventh and Tenth Circuits.  The Supreme Court will often take a case like Federal Express to resolve such splits between the circuit courts, but declined to do so in this case.  As a result, the EEOC's investigatory powers will continue to vary depending on where a complaint is made. 

Given the Supreme Court's ruling in Federal Express, employers can no longer safely assume that the EEOC will drop its investigation once it issues a right-to-sue letter.  The EEOC may choose to continue investigating charges of discrimination, especially in cases involving allegations of systemic or widespread violations of anti-discrimination law.  Employers (at least those in the Ninth and Third Circuits) should be prepared to comply with EEOC investigations even after the right-to-sue letter has issued. 

Oregon BOLI Files Multiple Proposed Rule Changes

The Oregon Bureau of Labor and Industries has filed several proposed rules pertaining to labor and employment law, and is inviting public comment.  Click on the title of each to read the proposed rule:

  • Religious worship, child support obligors, physical accommodations for eligible disabilities.  The proposed rules would implement statutes:
    • requiring employers to reasonably accommodate wearing of religious clothing and leave for religious practices (SB 786)
    • making discrimination by employers against child support obligors an unlawful employment practice (ORS 25.424(3))
    • requiring places of public accommodation to provide access to employee toilets for customers with eligible medical conditions (SB 277)
    • requiring transient lodging of 175 or more units to provide lifts for individuals with disabilities (HB 3256). 
  • Compliance with the ADAAA, preferences for veterans, and discrimination on the basis of uniformed service.  The proposed rules and amendments would implement:
    • amendments to statutes providing for employment preference for veterans.
      (HB 2510)
    • amendments to disability discrimination statutes to conform them to the
      federal Americans with Disabilities Act Amendments Act of 2008 (ADAAA) (SB 874)
    • statutes prohibiting discrimination in employment on the basis of uniformed
      service (HB 3256).
  • Home Health Agencies, Wage Security Fund.  The proposed rule amendment would:
    • implement HB 2595, enacted in 2009, which prohibits home health agencies and hospice programs from paying nurses providing home health or hospice services on a per-visit basis
    • clarify conditions to be met in qualifying for payments from the Wage Security Fund and delete obsolete references in the agency’s insurance cancellation notification rules.
  • Employment of Minors.  The proposed rule amendment would:
    • implement House Bill (HB) 2826 enacted in 2009, which removes the requirement that employers obtain a special permit before employing a minor under 16 years of age until 7 p.m. (9 p.m. between June 1 and Labor Day).
    • conform current language in the rules to the provisions of HB 2826, which shifts authority for the issuance of agricultural overtime permits from the Wage and Hour Commission to the Commissioner of the Bureau of Labor and Industries
    • clarify that minors may not be employed to operate or assist in the operation of power-driven farm machinery unless the employer has obtained an employment certificate as required and the minor has received required training in the operation of such machinery.
  • Rest and meal periods.  The proposed rule amendment would address the provision of rest and meal periods to employees, including factors to be considered in determining when an employee is prevented from receiving regularly scheduled meal and rest periods.
  • Prevailing Wage.  The proposed rule amendments would make permanent the temporary rules currently in place regarding prevaling wage rates. 

Click here for more information on BOLI's proposed rule changes, including information on how to make public comment and the deadlines for doing so. 

President Obama Signs Expansion of FMLA Leave for Military Families

Earlier this week, President Obama signed the Fiscal Year 2010 National Defense Authorization Act (NDAA), a federal law that is enacted each fiscal year to specify the budget and expenditures of the United States Department of Defense.  This year, the NDAA contains two expansions of the exigency and caregiver leave provisions for military families under the Family and Medical Leave Act (FMLA):

  1. Caregiver Leave:  Employees could previously take up to 26 weeks of unpaid leave to care for a family member (spouse, child, parent or next of kin) who is an active service member currently undergoing treatment for a serious injury sustained on active duty; that leave has been expanded to allow leave to care for a veteran family member undergoing medical treatment, recuperation or therapy for a serious injury or illness that was sustained any time during the five years preceding the treatment.
  2. Exigency Leave:  Employees could previously take up to 12 weeks of unpaid leave for qualifying exigencies relating to a reservist family member's call to active service; that leave has now been expanded to provide exigency leave benefits to the family of a member of any armed service on active duty. 

These expansions became immediately effective when the law was signed. 

For more information on the military leave provisions of FMLA, check out this Fact Sheet on FMLA Military Family Leave Entitlements from the Department of Labor Wage and Hour Division.  While the fact sheet doesn't reflect these recent expansions, it does provide valuable information, including who is a qualifying family member and what is a qualifying exigency. 

EEOC Updates H1N1 Guidance

The H1N1 virus (aka "swine flu") continues to spread.  Is your workplace prepared?  Are your policies and procedures legally compliant?  In order to help employers, the Equal Employment Opportunity Commission (EEOC) updated its guidance for employers titled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."  (Click title to download). The EEOC guidance answers several common questions relating to H1N1 and compliance with the ADA.  For example:

  • May an employer send employees home if they display influenza-like symptoms during a pandemic?  Yes.  Employees who become ill with flu-like symptoms at work should leave the workplace.  Directing such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus.
  • How much information may an employer request from employees who report feeling ill at work or who call in sick?  Employers may ask employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • May an employer require employees to wear face masks or gloves, or gowns to reduce the transmission of the H1N1 or flu virus?  Yes. An employer may require employees to wear personal protective equipment during a pandemic. 
  • May an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?  Yes. Requiring regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA. 

The guidance addresses these and many other common H1N1 questions.  In short, the EEOC is directing employers not to panic, to take the H1N1 outbreak seriously, but also to treat it no differently than the regular seasonal flu -- at least from an employment law perspective.  For more information, consult the EEOC guidance or contact your employment law attorney. 

Supreme Court to Decide Title VII Statute of Limitations Question

The U.S. Supreme Court agreed yesterday to hear a challenge to a Seventh Circuit Court of Appeals decision in a case with similar factual overtones to the Ricci case decided earlier this year. Like Ricci, this case involves a firefighter qualification test that had a disparate impact on black applicants; unlike Ricci, at issue here is the statute of limitations on a Title VII claim.

In this case, Lewis v. City of Chicago, the plaintiffs are a group of approximately 6,000 black firefighter applicants who filed charges of race discrimination with the EEOC more than 300 days after the initial announcement of their test results, but within 300 days of the hiring of the new firefighter class from which they allege they were denied consideration. The trial court held that the hiring of each new firefighter was a new violation of Title VII, so the EEOC charges were timely filed. On appeal, the Seventh Circuit reversed, holding that the “discrimination was complete when the tests were scored...and the applicants learned the results.” At issue for the Supreme Court is whether the limitations period for a Title VII claim begins to run when an employer announces the results of a test that could violate Title VII’s disparate impact provision, or if the right to sue begins only once the employer has acted on that policy.

At face value, it seems that the trial court probably got this one right and the Supreme Court should reverse the Seventh Circuit. How can an employee know what the actual disparate impact will be until the employer’s hiring decisions are actually made? If, for example, the employer’s business needs ultimately dictate that it need hire nobody, there has been no harm done regardless of the results of the test. An actual harm needs to occur before the right to sue accrues. Notwithstanding that analysis, and given the current makeup of the court, however, it is unclear which way the Court will go on this one. The Stoel Rives World of Employment will let you know when a decision is reached and how that decision may impact your workplace.

2009 Mid-Term Federal Legislative Update

We expected many changes in federal labor and employment law in 2009 - for the first time in years, Democrats control the White House and both houses of Congress and have the political ability to make significant reforms.  However, not much has happened in 2009: we have only significant labor and employment bill signed into law.  To be fair, President Obama and the Congress have had other things to worry about:  a war or two, a lousy economy, health care and selecting a new White House dog to name a few.

But, the 2009-2010 legislative session is still not over, and Congress may yet pass some of the many labor and employment-related bills still pending.  Employers may want to take note, as some of these may become law before the end of the session in 2010.  Click on "continue reading" for a complete list.

Continue Reading...

EEOC Proposes Rules Implementing ADAAA; Seeks Public Comments

The Equal Employment Opportunity Commission (EEOC) will in today's Federal Register publish proposed regulations implementing the ADA Amendments Act (ADAAA).  The public will have 60 days - or until November 23, 2009 - to submit comments.  Click here to read the full text of the proposed regulations

Congress intended that ADAAA, which took effect January 1, 2009, would broaden the coverage of the Americans with Disabilities Act (ADA) by expanding the definition of "disability."   The ADAAA also directed the EEOC to enact new regulations consistent with the purpose and goals of the ADAAA.  Key changes now being proposed by the EEOC include: 

  • Redefining the term “substantially limits” to provide that a limitation does not have to “significantly” or “severely” restrict a major life activity to qualify an individual as "disabled."  Under the new definition, an impairment constitutes a disability “if it ‘substantially limits' the ability of an individual to perform a major life activity as compared to most people in the general population.”
  • Expanding the definition of “major life activities” and providing non-exhaustive lists of such activities and bodily functions.
  • Removing the requirement that an individual seeking ADA coverage prove a " limitation in the ability to perform activities of central importance to daily life” to have a qualifying disability.
  • Redefine “regarded as” disabled so that it is no longer necessary for an employee to prove the employer perceived him or her as substantially limited in a major life activity; rather, under the new rules, it is sufficient for the employee to prove that the employer took an employment action against him or her because of an actual or perceived impairment.

Unhappy with the new regulations?  Have a suggestion to make them better?  Want to express your wrath?  You can do so by clicking on Regulations.gov, the U.S. Government's portal for regulations and comments.  Want to know more about the ADAAA?  You can click here for complete ADAAA coverage on the Stoel Rives World of Employment

Employer Did Not Violate Title VII By Firing Employee For Wearing a Nose Ring

A Federal court in Florida has ruled that a Subway restaurant did not violate Title VII by firing an employee because she wore a nose ring, rejecting a claim by the Equal Employment Opportunity Commission (EEOC) for injunctive relief and punitive damages.  Click here to read the court's decision in EEOC v. Papin Enters. Inc

Subway has a policy prohibiting employees from wearing facial jewelry, but this particular employee refused to remove her nose ring on the grounds that wearing it was part of her Nuwaubian religion.  In April this year, a jury found that Subway did not have to accommodate the employee's nose ring, as she did not have a sincerely held religious belief requiring her to wear it.  Last week, the court declined the EEOC's request for injunctive relief and punitive damages (notwithstanding the jury verdict) as there was no basis for such relief absent any discrimination. 

The Papin case demonstrates an important legal principle:  although employers are required to reasonably accommodate employees' religious practices (which may include allowing employees to deviate from a dress code), employers are only required to accommodate sincerely held religious beliefs.  (So much for my idea of converting to Pastafarianism so I could claim a religious right to wear jeans on Friday).  For more information on what constitutes a "religion" for Title VII purposes, check out these Frequently Asked Questions on Religious Discrimination from the EEOC.  

Managers Individually Liable for Unpaid Wages Despite Employer's Bankruptcy

A recent case should strike fear into the hearts of all upper-level managers and human resources professionals:  in Boucher v. Shaw, the Ninth Circuit ruled that individual managers were liable for their subordinates' unpaid wages, even though the employer company filed for bankruptcy. 

In Boucher, a group of former casino employees sued the CEO, CFO and the labor relations manager of their former employer, the Castaways Hotel, Casino and Bowling Center.  The three managers moved to dismiss, arguing that they were not "employers" that could be liable for unpaid wages under the Fair Labor Standards Act (FLSA), and that they should receive protections from the Castaways' bankruptcy filing. 

The Ninth Circuit noted that under the FLSA, the term "employer" is to be construed broadly to include individuals who have “control over the nature and structure of the employment relationship,” or “economic control” over that relationship.  It concluded that the three executives, two of whom were also alleged to be co-owners of the casino, fit that definition of "employer."  The court also found that because the three executives were not parties to the bankruptcy proceeding, they were not entitled to any bankruptcy protections. 

As the Stoel Rives World of Employment reported earlier this month, the Washington Supreme Court reached a similar ruling based on almost identical facts in Morgan v. Kingen.  These cases should serve as a reminder to managers everywhere:  if your business is failing, you may want to prioritize paying your employees' wages over everything else.  Failure to do so may lead to personal liability. 

New Website for Disability Information

The Department of Labor's Office of Disability Employment Policy today launched a new website that may be of use to employers seeking information on how to accommodate a disabled worker.  At www.disability.gov an employer can research the applicable law and regulations, get ideas for appropriate reasonable accommodations, and locate additional resources.  For example, clicking here will take you to information about accommodating deaf and hearing impaired workers.   And here is useful information about tax incentives for complying with the ADA.  The new site offers a myriad of social networking capabilities including a Twitter feed, RSS feeds and a blog.   The site also includes a handy multi-state guide which employers could find very useful as they work to comply with all applicable federal and state disability laws.  

Federal Minimum Wage Rises to $7.25/Hour Today

If you pay your employees minimum wage, prepare to give them a raise effective today:  the federal minimum wage increases to $7.25 per hour, effective July 24.  Of course, you may live in a state that has a higher minimum wage; in that case, employers are obligated to pay the higher of the two wages.  Click here for a state-by-state list of minimum wage rates

What's that you say?  This won't affect your business since you pay higher than the minimum wage?  Don't be so sure.  According to this article from the New York Times, increases in the minimum wage tend to have a ripple effect, as employees with wage rates above the minimum wage want to maintain their lead over their lower-earning counterparts. 

Think the increase in the minimum wage is too much?  You're not alone.  As this article from the Associated Press points out, some business are concerned that the increase in the minimum wage will slow down the economic recovery.  On the other hand, the Times points out that even with this increase, the minimum wage is still no higher now, after inflation, than it was in the early 1980s, and it is 17 percent lower than its peak in 1968.

Another Circuit Court Agrees: ADA Amendments Act is Not Retroactive

Congress did not intend for the ADA Amendments Act (ADAAA) to be retroactive, the Court of Appeals for the District of Columbia ruled yesterday, and applied pre-ADAAA law to dismiss an employment discrimination claim.  Click here to read the court's decision in Lytes v. DC Water and Sewer Authority

Congress passed the ADAAA in 2008 and the new law became effective January 1, 2009.  The ADAAA significantly expanded the definition of "disabled" under the Americans with Disabilities Act (ADA).  The Lytes court reviewed the legislative history of the ADAAA, and could not find in that history any indication that Congress intended the law to apply retroactively.  The court also noted that Congress signaled its intend that the law not apply retroactively when it gave the ADAAA a specific effective date. 

The DC Circuit joins the Fifth Circuit Court of Appeals, which also ruled in EEOC v. Agro Distribution, LLC that the ADAAA is not retroactive.  Notably, the Department of Labor has also taken the position that the law should not apply retroactively.  And, at least for now, it appears that the Equal Employment Opportunity Commission agrees

Lytes and Agro Distribution are important cases for employers defending ADA claims; they make clear that for claims arising before January 1, 2009, pre-ADAAA standards of what constitutes a "disability" are likely to apply.  For more information on the ADAAA, click here for the Stoel Rives World of Employment's ADAAA coverage

Proposed "LAW" Would Index Federal Minimum Wage to Poverty Level

The recently proposed Living American Wage Act (LAW) would tie the federal minimum wage to the federal poverty threshold for a family of two with one child. Introduced last week by Rep. Al Green (D-Texas), LAW would index the minimum wage to 15 percent above the poverty line for a full-time worker, or about $8.20 per hour in wages, and it would increase the minimum wage every four years to maintain a wage at least 15 percent above the poverty line. For more information, click to read Rep. Green’s press release on LAW

Such an indexed minimum wage would not be unique. Oregon adjusts its minimum wage each year based on the U.S. City Average Consumer Price Index for All Urban Consumers for All Items.  Currently, Oregon's minimum wage is $8.40 per hour.  For a list of the minimum wages in other states, click here for the Department of Labor's handy list of minimum wages by state, effective January 1, 2009

We’ll keep watching to see if LAW becomes law.  Until then, please note that the federal minimum wage will increase to $7.25 per hour effective July 24, 2009.

Seventh Circuit Rules FLSA Doesn't Protect Verbal Complaints

Most employment lawyers and HR professionals know that firing an employee for making a complaint about being paid properly is a recipe for disaster.  This week in Kasten v. Saint-Gobain Performance Plastics Corp., the Seventh Circuit Court of Appeals thought differently, at least for verbal complaints about violations of the Fair Labor Standards Act.

The plaintiff, Kevin Kasten, was reprimanded three times for failing to clock in and out.  In response, he complained that the location of the time clock was illegal because, among other things, it prevented employees from being paid for time donning and doffing protective gear.  After Kasten failed to clock in a fourth time, he was terminated.  Kasten sued under the FLSA, claiming that he had been terminated in retaliation for his complaint. 

The FLSA protects employees who have "filed any complaint" under FLSA and whose employers retaliate against them for complaining.  The Seventh Circuit ruled that because a complaint must be "filed," verbal complaints are not protected by FLSA

The takeaway?  Despite this ruling, we at the Stoel Rives World of Employment think that employers should be wary of terminating employees for verbal complaints.   As others have noted, the case law in other circuits may contradict the Seventh Circuit on this issue.   Even more crucially, plaintiffs making verbal complaints may have other causes of action under state statutory law or common law.

DOL Secures $3.4 Million Settlement for NY Car Wash Employees

A portend of things to come in federal wage enforcment?  Yesterday, a group of New York car washes have agreed to pay over one thousand current and former employees a total of $3.4 million to settle a lawsuit filed by the Department of Labor (DOL) alleging violations of the Fair Labor Standards Act (FLSA).  Click here to read the consent decree in Solis v. LMC et al

As we reported back in May, the Department of Labor received a budget increase of 10 percent and is devoting most of that increase to enforcement.  Employers can expect to see more activity from the DOL to enforce wage and hour laws, especially large cases against groups of employers. 

In the meantime, sit back, relax and enjoy Rose Royce:

 

Federal Minimum Wage Increases to $7.25 Effective July 24

Employers take note:  the federal minimum wage increases to $7.25 per hour effective July 24, 2009.   For more information, check out the Department of Labor's Fair Labor Standards Act site

Of course, many states also have minimum wage laws, an where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage.  Click here for the Department of Labor's handy list of minimum wages by state, effective January 1, 2009.  (Note:  the chart does not accurately reflect that Nevada's minimum wage will increase effective July 1, 2009 increase from $5.85 per hour to $6.55 per hour, while the minimum wage for employees not receiving health benefits will increase from $6.85 per hour to $7.55 per hour). 

Need the Department of Labor's minimum wage posters?  Here they are:

Oregon Musicians No Longer Presumed Employees for Unemployment Purposes

Sine die!  The Oregon Legislature's biennial session has come to a close, providing a perfect opportunity for the Stoel Rives World of Employment to take a look at what passed, what failed, and what flew under the radar.

One helpful new statute fixes a problem for employers who operate music venues.  In late 2007, Mississippi Studios, a hip North Portland nightspot and recording studio, got nailed in an Oregon Employment Department audit for not paying unemployment taxes on musicians who played at the venue.  Mississippi assumed that the musicians were not employees, but were  independent contractors according to the Department's test.  Not so fast.  Mississippi was unaware of ORS 657.506, an obscure provision in Oregon statute that presumed musicians are employees unless otherwise stated in an employment agreement.

The new statute, which went into effect immediately on passage, repeals the old rule and treats Oregon musicians just like everybody else.  The bill is simply drafted and repairs some bad lawmaking.  Way to go, legislature!  This time you were up there with the best.

FOREWARN Act Introduced - Changes to WARN Act in 2009?

Last week, the Federal Oversight, Reform, and Enforcement of the WARN (FOREWARN) Act was introduced in the House by Rep. George Miller (D-CA) and in the Senate by Sen. Sherrod Brown (D-OH).  FOREWARN aims to amend the Worker Adjustment and Retraining Notification (WARN) Act by requiring more and smaller employers to notify workers of  plant closings or mass layoffs.  FOREWARN also would increase penalties for employers who violate the act.  For more information, click here to read Senator Brown's press release on FOREWARN

This isn't the first time in Congress for FOREWARN; it was introduced in 2007, but failed to gain traction, perhaps because of a likely veto from the then Bush White House had it passed.  The reintroduction of FOREWARN does not come as a big surprise:  the Stoel Rives World of Employment warned (ouch! bad pun!) that changes were coming to the WARN Act back in March.  Better yet, we predicted FOREWARN would be on then President-Elect Obama's agenda back in November 2008. 

While FOREWARN is still making its way through Congress, employers must comply with the existing WARN Act, and we have some WARN Act resources to help:

Changes Coming to the WARN Act?

The Worker Adjustment and Retraining Notification ("WARN") Act is getting a lot of airplay these days; that's the federal law that requires qualifying employers to give 60 days’ notice of a plant closing, a layoff of 500 or more people at one location, or a cut of at least one-third of the work force at a site.  But many critics of the WARN act think it doesn't go far enough because it covers only the largest layoffs by the largest employers.  Now, some economists are calling for a tougher, broader WARN Act.

We'll be watching to see if these calls for revising the WARN Act gain traction in Congress this term.  For now, there are resources out there to help you cope with the current version of WARN:

President Obama to Sign Ledbetter Fair Pay Act on January 29, 2009

As expected, the Lilly Ledbetter Fair Pay Act passed Congress (the House passed the Senate version 250-177 on January 27).  President Obama has announced he will sign the bill into law--the very first bill he will sign--on January 29.  The Act will overturn a U.S. Supreme Court decision that limited the time frame for bringing pay discrimination claims.  (For more information on the Act and its history, check out this previous post here at the Stoel Rives World of Employment). 

Here's an important wrinkle:  as passed, the Act will be retroactive, and will apply to all claims of discrimination in compensation that are pending on or after May 28, 2007.  This may have an impact on many pending unfair and unequal pay lawsuits. 

Tenth Circuit Affirms Dismissal of WARN Act Case

We don't need to tell you there's a recession going on, and that a recession means layoffs.  But we will remind you that layoffs may implicate the Worker Adjustment and Retraining Notification (WARN) Act - the federal law that requires employers to give 60 days' notice of certain mass layoffs and plant shutdowns. 

Sometimes giving 60 days' notice of a layoff just isn't possible, and the law makes exceptions in some circumstances.  A recent case from the Tenth Circuit Court of Appeals illustrates one of those exceptions.  In Gross v. Hale-Halsell Co., the employer successfully relied on the "unforeseeable business circumstances" exception to WARN.  In that case, the employer--a grocery wholesaler and distributor--was forced to lay off over 200 employees when its largest customer suddenly dropped its account.  The court held that the employer had no choice but to lay its employees off (the employer subsequently declared bankruptcy), and that it gave as much notice as was practicable under the circumstances. 

Notwithstanding the outcome of Gross, courts are notoriously reluctant to apply the WARN Act exceptions; before relying on an exception to bypass giving notice of a qualifying layoff or plant closure, it is probably a good idea to consult legal counsel.  There is also good, free information from our friends at the U.S. Department of Labor to help guide you through troubled times and to determine whether the WARN Act may apply to you.  Just click below to download the information:

Senate Passes Lilly Ledbetter Bill 61-36

The Senate voted 61-36 yesterday to pass the Lilly Ledbetter Fair Pay Act, which is intended to overturn a U.S. Supreme Court decision that limited the time frame for bringing pay discrimination claims.  The bill now will have to be reconciled with the House's version of the bill (H.R. 11), approved on a 247-171 vote Jan. 9, before President Obama can sign it into law. 

The bill is named after Lilly Ledbetter, a former supervisor at a Goodyear tire plant in Alabama, who discovered that she had been receiving less pay than her male counterparts who were doing the same work. She discovered this by an anonymous note after working for the company for nearly 20 years.  Her subsequent lawsuit was fought all the way to the U.S. Supreme Court.  In May 2007, the Court ruled in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), that the time limits for filing a discrimination charge with the Equal Employment Opportunity Commission start to run when the employer makes a discriminatory decision about the employee's compensation, not each time the employee receives a paycheck affected by discrimination.  Though she lost her lawsuit, Ms. Ledbetter became a champion for equal pay for women

The bill would reverse the Ledbetter ruling by amending most federal anti-discrimination laws to provide that the charge-filing periods—300 days in most states and 180 days in the few states that do not have a fair employment agency—would be triggered whenever an employee is affected by application of a discriminatory compensation decision or practice.

Oregon BOLI: No Changes to OFLA Regulations (yet...)

As previously reported here at the Stoel Rives World of Employment, new federal Family and Medical Leave Act (FMLA) regulations went into effect on January 16, 2009.  Oregon has its own analog to FMLA, the Oregon Family Leave Act (OFLA), with its own regulations.  FMLA applies to employers with 50 or more employees, while OFLA applies to employers with with 25 or more employees; Oregon employers with 50 or more employees are required to follow both laws.

Historically, OFLA and its regulations have tracked federal law (with a few notable exceptions that are more generous to employees).  However, following implementation of the new FMLA regulations, there is now a disconnect between the two laws.   The Oregon Bureau of Labor and Industries (BOLI) announced recently that even though there are new discrepencies between the two laws, it will not immediately update the OFLA regulations to match the new FMLA rules. (Click here to read BOLI's press release on its decision.)  Instead, BOLI will conduct informational hearings in February 2009 to determine whether updates to the OFLA regulations are warranted.  In the meantime, BOLI issued this brief on implementing OFLA under the new FMLA rules, which provides an overview of the new differences between OFLA and FMLA and how employers can safely navigate the two laws. 

Where does that leave Oregon employers that are covered by both OFLA and FMLA?  The rule of thumb is to apply both sets of laws, and then follow the one most generous to employees.  The Stoel Rives World of Employment will follow the hearings on the OFLA regulations and provide updates to let you know when and if there are any changes. 

Reminder: New FMLA and Military Leave Regulations Take Effect Today

In case you haven’t heard, new Family and Medical Leave Act (FMLA) regulations take effect today, Friday, January 16. Some highlights of the new regulations include:

  • Regulations covering the recently instituted military family leave laws
  • Expanded FMLA general notification requirements
  • New individual eligibility notification and leave designation requirements
  • New forms for eligibility notification, leave designation, and health care provider and military family leave certifications
  • New fitness-for-duty certification requirements
  • New leave tracking and notification requirements
  • New certification and recertification requirements and procedures

There are too many changes to explain in detail in this email message, but we have you covered: Follow this link to download our detailed memorandum on the new regulations. Follow this link to download the new FMLA forms and poster.  Or if you're really into reading lengthy goverment regulations (and who isn't, really?) you can download the new FMLA regulations here

New FMLA Forms and Poster Now Available For Download

As previously reported in the Stoel Rives World of Employment, new Family and Medical Leave Act (FMLA) regulations will take effect January 16, 2009.  The DOL has now published six new optional forms contemplated by the new regulations, and as promised, the Stoel Rives World of Employment has them for you right here (just click on the form number to download):

  1. Employee’s Serious Health Condition (WH-380E)
  2. Family Member’s Serious Health Condition (WH-380F)
  3. Notice of Eligibility and Rights and Responsibilities form (WH-381)
  4. Designation Notice to Employee of FMLA Leave (WH-382)
  5. Certification of Qualifying Exigency for Military Family Leave (WH-384)
  6. Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)

And as if that's not enough, there's a new mandatory FMLA poster to put up in your workplace, which you can download here:  2009 FMLA Poster.  As you know, every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions - this new poster will meet those requirements. 

Minnesota Wal-Mart Employees Get $54 Million Christmas Present

Wal-Mart Stores Inc. announced yesterday that it will pay $54.25 million to settle a class-action lawsuit over allegations that Wal-Mart made its employees work during break time and off the clock after regular working hours.  The class consists of approximately 100,000 current and former hourly employees who worked at Minnesota Wal-Marts and Sam's Clubs between September 11, 1998 and November 14, 2008.  Click here to read MSNBC's coverage of the settlement

This isn't Wal-Mart's first major settlement, and it might not be the last:  according to Wal-Mart's 10-K filings with the SEC, it has to date settled 76 similar class-action lawsuits across the country.  The lesson for employers?  Carefully follow the wage and hour laws of each state in which you do business.  If you have employees in Minnesota, the state's Department of Labor and Industries has a great website with lots of valuable compliance tips and information. 

Washington's Minimum Wage To Rise to $8.55 January 1, 2009

Washington employers get ready to give your minimum-wage employees a raise:  effective January 1, 2009, Washington's minimum wage will increase to $8.55 per hour, allowing Washington to maintain the highest minimum wage in the country.  For more information, click here to read the Department of Labor and Industries' Press Release.  Washington's current minimum wage is $8.07 per hour.

As previously reported in the Stoel Rives World of Employment, Oregon's minimum wage will increase to $8.40 also effective January 1, 2009.  Following voter initiatives, both Oregon and Washington now tie their minimum wages increases to the Consumer Price Index

The federal minimum wage is now $6.55 per hour, but will go up to $7.25 per hour effective July 24, 2009.  For information on minimum wages in other states, check out this interactive map of the United States showing minimum wage rates, available from the U.S. Department of Labor

Cosmetology Teachers, Not Day Care Teachers, Overtime Exempt

Cosmetology teachers, but not day care teachers, are exempt from the Fair Labor Standards Act's (FLSA's) overtime and minimum wage rules, according to two recent opinion letters from the Department of Labor.

The FLSA contains an exemption for professional employees, including any “teacher in elementary or secondary schools.”  Cosmetology teachers qualify for the exemption, according to the DOL, because they teach in an accredited secondary school and because their primary duty is "teaching and instructing students in cosmetology theory."  Yes, you read that correctly:  cosmetology theory.  Click here to read the DOL's opinion letter on cosmetologists

Day care teachers, on the other hand, do not qualify for the exemption because they do not teach in a qualifying institution.  According to the DOL, “[u]nless the daycare center provides grade school curriculums, introductory programs in kindergarten, or nursery school programs in elementary education of the sort described in [the act], the instructors are not within the scope of the teacher exemption of the FLSA.”  Click here to read the DOL's opinion letter on day care teachers.

What lesson can we learn from these opinions?  The FLSA exemptions are highly technical and not always intuitive.  If you are classifying your employees as FLSA-exempt, not only should you make sure the employees meet all of the duties tests under the statute and regulations, but also that your organization meets any requirements that may be imposed as well.  For more guidance on the FLSA exemptions, read this compliance guide on the FLSA from our friends at the DOL. 

Employee Free Choice Act Tops List of Anticipated L&E Legislation

In case you missed it, Barack Obama will be the next President of the United States!  And both houses of Congress will be controlled by Democratic majorities.  Wondering what this will mean for labor and employment law?  So are we!  But we've gone a step further and made some educated guesses on what to watch out for.

  • The Employee Free Choice Act (EFCA).  The EFCA would be the most wide-ranging revision to federal labor law in 50 years. It would, among other things, require employers to recognize a union as the exclusive bargaining agent for its employees based solely on a "card check" process rather than a secret ballot election.  If passed, it is expected to drastically increase union organizing and unionization rates.  The Stoel Rives World of Employment will be watching this one very closely.  
  • The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act  (RESPECT).  No, it's not an Aretha Franklin song.  The "RESPECT" Act would reverse the NLRB’s recent rulings that clarified the requirements to be a "supervisor" under federal labor law. RESPECT would dramatically increase the number of employees who could unionize. Sock it to me!
  • The Paycheck Fairness Act and the Equal Remedies Act.  These statutes—competing versions to address the same issue—would reverse the U.S. Supreme Court’s recent Ledbetter ruling addressing the statutes of limitations under Title VII. Both would enable plaintiffs to press viable claims going back much further in time.
  • The Civil Rights Act of 2008.  The proposed amendments to the civil rights laws would make numerous changes including removal of damage caps on sex, religion, and disability discrimination, as well as retaliation lawsuits.
  • The Employment Non-Discrimination Act (ENDA).  ENDA would amend Title VII to add sexual orientation as a protected class. 
  • The FOREWARN Act. This amendment to WARN would increase the notice period for plant closings or mass layoffs from 60 to 90 days.
  • Minimum wage.  President-elect Obama has also expressed his support for raising the minimum wage to $9.50 per hour by 2010.
  • Family and Medical Leave Act (FMLA).  President-elect Obama has also indicated his support for expanding the Family and Medical Leave Act to cover companies with 25 or more employees (currently 50).

The World of Work will be watching this legislation closely and will bring you updates as they occur.  For more information now, check out this update on pending legislation from Stoel Rives.
 

DOL Issues Final FMLA Regulations

Today the Department of Labor published its Final Regulations Implementing the Family and Medical Leave Act (FMLA). They go into effect on January 16, 2009 (60 days after publication).  Click here to download the final FMLA regulations.   (Warning!  The document is 762 pages long!  However, much of that is a handy explanation of the changes and the comments the DOL received.)

The final regulations address many aspects of FMLA, the federal law that provides eligible employees the right to take unpaid leave for certain absences, such as:  the birth or adoption of a child; to care for a child, spouse, or parent with a serious health condition; or because of the employee’s own serious health condition. The final regulations also address new military family leave entitlements enacted as part of the National Defense Authorization Act, which provides leave rights to employees who provide care for covered servicemembers with a serious injury or illness.

Highlights of the final regulations include:

  • Incorporation of new military family leave requirements into the regulations, with specific guidance on administering military leave
  • Clarification on administering intermittent leave, including an explanation of when an employee may be transferred during intermittent or reduced schedule leave
  • Clarification on employee eligibility following breaks in employment such as extended leaves
  • Clarification on what constitutes a "serious health condition," including revised definitions of "incapacity" and "continuing treatment"
  • Clearer guidelines for administering pregnancy and childbirth leaves
  • Consolidated guidelines on adoption leave
  • Clarification of how to count holidays in cases where an employee takes leave in increments of less than a full workweek.
  • Clarification on administering leave to care for a parent
  • A new requirement that when an employee gives less than 30 days' notice of a foreseeable leave, the employee must explain the reason for failing to give 30 days' notice
  • An explanation of how much information an employer can obtain in the medical certification to substantiate the existence of a serious health condition and the employee’s need for leave due to the condition

There are many more minor changes, too many to list in a single blog post.  To get the full picture, download the final regulations

ADAAA Update: Senate Approves ADA Amendments Act

The U.S. Senate yesterday approved the ADA Amendments Act (ADAAA) by unanimous consent, making enactment of the ADAAA likely.  As the Stoel Rives World of Employment previously reported, the ADAAA would overturn several U.S. Supreme Court decisions that many critics claim have too narrowly interpreted the Americans with Disabilities Act's coverage.  To read the Senate version of the ADAAA, click here

The ADAAA passed the House of Representatives in June by a 402-17 vote.  There are minor differences between the House and Senate versions of the bill, and the House is expected to adopt the Senate version on September 17.  After that, it's on to President Bush to sign the bill, which he is expected to do.  Keep watching the Stoel Rives World of Employment for further updates. 

Hang Up and Drive! Washington and California Ban Cell Phone Use While Driving

Last night I was riding home and was almost run off the street by a woman reading a novel while driving, when I remembered:  Effective July 1, 2008, new laws in California and Washington prohibit the use of hand-held cell phones while driving.  Drivers may, however, use a cell phone if the communication is made using hands-free device such as a bluetooth headset or wired headset.  Earlier this year, another Washington law went into effect banning text messaging while driving. 


In Washington, both the cell phone and the text messaging laws are "secondary enforcement " laws, meaning that offenders will only receive a ticket if pulled over for another traffic violation such as speeding or running a stop sign.  California law enforcement, however, is authorized to ticket drivers only for cell phone use.  As far as I know, Oregon does not yet prohibit reading while driving (but it should!)


Want more information?  The California DMV has a great Q&A site on its new law.  Don't live in Washington or California but want to know what the law is in your state?  Check out this handy chart of state cell phone laws from the Governor's Highway Safety Association. 


Employers should alert their employees who may drive in California or Washington as part of their job duties.  And employers in all states might consider implementing a cell phone policy that restricts the use of cell phones while driving.  Recent years have seen a large upswing in lawsuits against employers who supply their employees with cell phones, if the employee is then in an accident while using the phone. 

No Gattaca? Bush Signs Genetic Information Nondiscrimination Act

On May 21, President Bush signed the Genetic Information Nondiscrimination Act, which prohibits discrimination against individuals on the basis of their genetic information in both employment and health care. If you really want to genetically test your employees (and who doesn’t?) act now: The employment discrimination provisions won’t take effect until November 2009, and the health care provisions aren’t effective until May 2009.  (For those baffled by the reference, "Gattaca" is a great movie about genetic information discrimination (with Ethan Hawke and Uma Thurman!).   

Continue Reading...
Tags: