Employment Law Information Network
Push for the Paycheck Fairness Act and the Death of the “Any Other Factor” Defense
The Paycheck Fairness Act is proposed legislation that has been floating around Congress for a few years, with occasional flair-ups of interest. Just last week, Labor Secretary Hilda Solis hosted a webcast with co-host Lilly Ledbetter (as in the Ledbetter Fair Pay Act, and Supreme Court case Ledbetter v. Goodyear Tire and Rubber Co.) promoting the Paycheck Fairness Act (PFA). The PFA (Paycheck Fairness Act) significantly amends the Equal Pay Act. Read the rest of this entry »
TWO LESSONS LEARNED FOR EMPLOYERS FROM MANCHESTER, CT SHOOTING
Employers need to understand and better prepare for violence in the workplace when they plan on imposing discipline on employees. Of course, this is especially true when management terminates employees or asks an employee to resign. Such was the case this morning when management at a Hartford beer distributorship in Manchester, CT asked an employee, Omar Thornton, to resign. Clearly upset about the discipline imposed, Mr. Thornton chose to take matters into his own hands and immediately took out a gun and started shooting in a group of 50-70 workers during a shift change in the early morning hours. Apparently, eight employees including the gunman are dead from this incident.
This type of response to employers imposing discipline is unfortunately not a new occurrence. In April 2007 an employee in Houston, Texas was merely given a poor job performance by his manager at NASA. His response was similar to the response of Mr. Thornton today. Somehow he managed to sneak a gun into the highly secure NASA facility and shot and killed both his supervisor and himself.
The Post-New Process Steel World – What Happens Now?
In New Process Steel v. National Labor Relations Board (NLRB), the United States Supreme Court held that the NLRB needs at least three members to exercise its authority. This poses quite a problem because the Board had been acting with only two members for over two years. With this one opinion, the Supreme Court effectively invalidated about 600 cases decided by the NLRB. This leads to the question: what now?
Some Circuit Courts were quick to act. For example, the Sixth Circuit sua sponte remanded Galicks, Inc. v. NLRB, a case challenging the Board’s authority, within a week of New Process Steel. Only eight days after the Supreme Court’s decision, the Second Circuit simply denied the NLRB’s petition to enforce one of its two-member orders in NLRB v. Talmadge Park. Even the Supreme Court itself reacted to its own holding in New Process Steel by issuing summary dispositions on June 28, 2010. The dispositions granted certiorari, vacated the judgments, and remanded to the Circuit Courts from whence they came.
Learning Lewis but Remembering Ricci
Last month, the Supreme Court issued a unanimous opinion in Lewis v. City of Chicago. The Court held that a fire department’s decision to keep using results from an application exam in subsequent hiring decisions created Title VII liability. Why? Because the test had a disparate impact on African-American firefighters.
The City had argued that the statute of limitations had already run because the only discriminatory act was the placement of applicants into pools based on the test results. The Supreme Court rejected that argument, holding instead that the application of those classifications in subsequent hiring decisions constituted the start of the statute of limitations. In short, disparate impact liability attaches upon the application of a practice, not just its initial adoption.
GINA COMES TO LIFE AS FIRST CASE IS FILED UNDER THIS NEW FEDERAL LAW
GINA (Genetic Information Nondiscrimination Act) is a federal law that was signed by President Bush two years ago on May 21, 2008 . It applies to employers with 15 or more employees. It was prompted by concerns that fear of being fired or treated unfairly by employers and insurers based on the results of their genetic testing would prompt employees to forego obtaining important genetic testing that they required. Accordingly, Congress passed and President Bush signed the newest of the federal anti-discrimination laws prohibiting employers from discriminating against employees based on the results of their genetic tests.
DOL Regulation Requires Federal Contractors to Post Notice of Unionization Rights
Federal contractors and subcontractors are now required to inform employees of their rights under the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers in the private sector.
The President signed an executive order in January 2009, which has now become a Department of Labor regulation effective May 20, 2010.
The notice, prescribed in the Department of Labor’s regulations, informs employees of Federal contractors and subcontractors of their rights under the NLRA to organize and bargain collectively with their employers and to engage in other protected concerted activity. Additionally, the notice provides examples of illegal conduct by employers and unions, and it provides contact information to the National Labor Relations Board (http://www.nlrb.gov), the agency responsible for enforcing the NLRA.
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3rd Cir. Addresses ADA Claims Based on Side Effects of Medication
In Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. Apr. 12, 2010), the Third Circuit addressed when an employee may bring suit under the Americans with Disabilities Act (ADA) based on conditions caused by medication. Employee Ed Sulima needed more time than most employees for restroom breaks. How much time you ask? Well, on one day in 2008 he spent approximately two hours in the restroom in one shift! While Mr. Sulima was morbidly obese and suffered from sleep apnea, these conditions did not create his bathroom issues. Instead, the culprit was Mr. Sulima’s weight loss medication.
So, are Mr. Sulima’s medication-induced gastrointestinal problems a disability under the ADA? It turns out they are not. But more importantly, the side effects from treatment and medication can constitute a disability under the three-prong test utilized by the Court in Sulima:
(1) the treatment is required “in the prudent judgment of the medical profession,”
DOL Publishes Updated Model Notices for Extended COBRA/ARRA Subsidy
The Department of Labor’s Employee Benefits Security Administration COBRA page now has available updated Model Notices, Application for Expedited Review of Denial of COBRA Premium Reduction, Fact Sheet, and Frequently Asked Questions (FAQs) that reflect the provisions of the Continuing Extension Act of 2010. They are available at http://www.dol.gov/COBRA. The new model notices include the recently extended eligibility deadline of May 31, 2010. The model notices may be adapted by employers and health plans to provide notice to ARRA eligible terminated employees.
Cat’s Paw Coming to Supreme Court
The cat’s out of the bag. Well, maybe not the whole cat, but at least its paw. Yesterday, the Supreme Court granted certiorari in Staub v. Proctor Hospital (09-400). In doing so, the Court agreed to decide an employer’s legal duty under the “Cat’s Paw” theory. The Question Presented is:In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?Staub comes to the Supreme Court from a Seventh Circuit opinion (.pdf) addressing the Uniformed Services Employment and Reemployment Rights Act (USERRA). While USERRA protects military service members from discrimination in civilian jobs, the Supreme Court opinion will likely prove applicable to a host of other employment discrimination statutes such as Title VII.
The name, “Cat’s Paw,” comes from 17th century poet Jean de La Fontaine’s fable, “The Monkey and the Cat.” In the story, a manipulative monkey convinces an unsuspecting cat to steal chestnuts from a fire. As the cat burns its paw stealing the chestnuts, the monkey devours them one by one. In employment law, Cat’s Paw arises where a plaintiff seeks to impute the discriminatory animus of a nondecisionmaker to an innocent decisionmaker to hold the employer liable.
MANAGERS BEWARE: TIPS TO AVOID LIABILITY UNDER THE ADA
Bob has been out on FMLA for 12 weeks. 12 weeks I have had to keep his job open and now that he left me one employee short for 12 weeks he calls and tells me that he can’t come back to work yet. I told him enough is enough. If he does not come back tomorrow, I am going to fire him.
No problem right? WRONG! FMLA is only the first issue when an employee is out on leave. Managers also have to keep in mind the ADA. Because when an employee tells a manager that he/she might not be able to return from leave, such a statement could constitute a request for a “reasonable accommodation” under the ADA.
The ADA requires employers with 15 or more employees to provide disabled employees with a “reasonable accommodation” when an employee requests such an accommodation. Requesting an additional leave of absence even after 12-weeks of FMLA leave could be a request for a “reasonable accommodation” under the ADA even if the employee does not use the exact words “reasonable accommodation” and even if the employee does not mention the ADA at all.
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COBRA Subsidy Eligibility Extended To May 31, 2010
On April 15, 2010, President Obama signed H.R. 4851 into law. Among other matters, the new law amends the American Recovery and Reinvestment Act of 2009 (“ARRA”) to extend through May 31, 2010, premium assistance for COBRA benefits (health insurance continuation benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985).
The COBRA subsidy was originally provided as part of the ARRA in 2009. Generally, the subsidy pays for 65% of the former employee’s health insurance premium under COBRA (the employee pays the remaining 35%). Employers or the group health plan provider pay the 65% and can then apply for a tax credit.
Congress has extended the subsidy eligibility period several times. Earlier this year, the 2010 DOD Act extended the COBRA premium reduction eligibility period for two months until February 28, 2010. Additionally, the legislation increased the maximum period for receiving the subsidy for an additional six months (from nine to 15 months). A subsequent amendment extended the coverage period to March 2010, and yesterday’s legislation extends it to the end of May.
A LEGAL LANDMINE: PRIVACY ISSUES IN THE 21ST CENTURY
By: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
A hot topic for employers right now is keeping up with all the new technology and creating policies and practices to ensure lawful compliance with the employment discrimination laws as they intersect with all the new types of technology. We have noticed that one of our most popular webinars now is our webinar on drafting policies for the new social media including creating legally compliant policies for blogging, cell phones and text messaging. This webinar is so popular because employers are literally scrambling to figure out how to handle this explosion of social media in the workplace.
SEXUAL HARASSMENT CLAIMS: AN OVERVIEW *
By John P. Mahoney, Esq., Partner, TULLY RINCKEY, PLLC, Washington, DC†
Under the Civil Rights Act of 1964, as amended, employers may be found liable for sexual harassment of their employees. There are generally two types of sexual harassment claims. Traditionally, the first type is quid pro quo harassment, which occurs when a supervisor demands sexual activity in exchange for some workplace benefit. The second type, which traditionally referred to as “hostile work environment” harassment, is defined as unwanted conduct of a sexual nature that is severe and pervasive enough so as to alter a term or condition of the employment or result in the creation of a hostile work environment. Employees who engage in such unwanted conduct like sexual comments or gestures that interfere with the victims’ ability to do their jobs, may be guilty of sexual harassment. Same gender sexual harassment is also prohibited by the Act.
FEDERAL OVERTIME PAY: WHO GETS IT AND HOW
By John P. Mahoney, Esq. Partner, TULLY RINCKEY, PLLC, Washington, DC† (http://www.FedAttorney.com)
Since 1974, federal government employees have been eligible to receive overtime pay under the Fair Labor Standards Act (FLSA). The Office of Personnel Management (OPM) administers the FLSA in the federal government. Generally, the FLSA requires that employers pay one and one-half times the regular hourly rate of pay to employees for any worked performed in excess of 40 hours in a given workweek. However, the FLSA does not apply to everyone. The statute identifies several categories of employees exempted from the overtime provisions of the Act. The group of exempt personnel includes those “employed in a bona fide executive, administrative, or professional capacity.”
FLSA exemptions are to be “narrowly construed,” and limited to those employees plainly and unmistakably within their terms and spirit. The FLSA, in effect, presumes non-exempt (covered) status. The employing federal agency clearly has the burden of establishing an exemption. This means that the agency must prove each element of a claimed executive, administrative, or professional exemption. Otherwise, the agency is required to pay time and one-half overtime pay.
Federal Security Clearances:Fighting to Get & Keep One
FEDERAL SECURITY CLEARANCES: FIGHTING TO GET & KEEP ONE*
By John P. Mahoney, Esq., Partner, TULLY RINCKEY, PLLC, Washington, DC† (http://fedattorney.com)
The Federal Government is pretty good at keeping secrets. When it comes to national security, the Feds do their best to ensure that only trustworthy people have access to classified government information and operations. In order for federal employees and federal contractor company employees to have access to national security secrets, their personal backgrounds must be thoroughly investigated and they must be granted security clearances. Since September 11, 2001, most workers on federal government facilities are required to qualify for and possess a security clearance as a condition of their continued employment. For such employees, the loss or suspension of their security clearance means the loss of their jobs. There are due process rights that apply when a federal agency proposes to suspend, revoke, or deny an employee’s security clearance. However, unlike most federal employment due process procedures, there is no right to court review of an adverse federal agency’s security clearance decision, as the privilege to possess a federal security clearance is solely within the discretion of the Executive Branch of the Government of the United States. Given that, an employee fighting to get or hold on to a security clearance must convince the Executive Branch that he or she qualifies for that employment privilege.
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