Tuesday, August 03, 2010

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.
Not necessarily the proper response when your employer disciplines you.  Yet it appears to be happening more and more these days.  Take for instance the case of workplace violence that occurred in Orlando, Florida on November 6, 2009 when Jason Rodriguez who had been fired from his engineering firm, Reynolds Smith & Hills more than two years earlier returned to his formed workplace and walked into his former office and began shooting, killing one and wounding five other employees.  He obviously was quite upset about his termination and told a reporter who asked him why he had done this that it was “because they left me to rot”.  Apparently, he had never forgotten the anger nor moved on from the resentment caused by his termination.  In addition, his marriage had ended, he could not pay the child support for his son, his home was taken in foreclosure and he had to declare bankruptcy.  Faced with all of these stresses, Mr. Rodriguez was driven over the edge and on November 6, 2009 walked into his former office and began shooting. 

More recently, there is the case of the University of Alabama neurobiologist and professor who was faced with a group of fellow-professors who decided to deny her tenure at the University.  This decision meant that her employment at the University would have come to an end in May 2010.  This employment decision was so devastating to Ms. Bishop that on February 12, 2010 she took out a gun at a faculty meeting with her colleagues and ended up shooting six of her colleagues and killing three of them.  She is now facing the death penalty.

How can employers be better prepared?  Each instance of workplace violence has to be used as a lesson for employers.  A lesson to be better aware of the warning signs of workplace violence.  Employers also need to be better prepared by ensuring that they have well drafted workplace violence prevention policies as well as providing workplace violence prevention training to all of their managers.  Such training will help familiarize the managers with the warning signs of workplace violence, inform managers of some possible resources within the workplace to assist employees that display warning signs of workplace violence and advise managers on methods to provide discipline that can help to avoid instances of workplace violence. 

In addition to employers learning to be better prepared for the possibility of workplace violence when disciplining employees, employers also need to be aware that harassment that is not dealt with can escalate and result in workplace violence.  Such appears to be the case in this morning’s shooting massacre.  Apparently, the gunman Omar Thornton, a 34 year-old African American had been upset by and complained to management about being racially harassed in the workplace.  Allegedly he had complained about a picture of a hangman’s noose and a racial epithet that had been placed on a wall in the bathroom at the beer distributorship.  Allegedly management did nothing to respond to his harassment complaints and may have in fact retaliated by asking him to resign.  Employers need to understand that when an employee complains about workplace harassment, the employer has a legal responsibility to respond to the complaint by undertaking an investigation and then taking prompt corrective action to stop the harassment.  Failure on management’s part to respond promptly can lead to liability.  Moreover, disciplining an employee after the employee has filed a harassment complaint can lead to claims of retaliation.  Management should ensure that they respond promptly to all claims of workplace harassment and take prompt corrective action which can include discipline of the harasser, up to and including termination.  Management should also provide training to all managers so that they understand what to do when they receive a harassment complaint, observe harassment in the workplace and/or have an employee that has filed a harassment complaint so they can better understand how to best avoid retaliation against the employee. 

Hopefully, today’s deadly and unfortunate incident of workplace violence will serve as a lesson to employers to ensure that they are better prepared to protect their workplace from incidents of workplace violence and to ensure that their employees are provided with a workplace free of harassment of any kind.

Submitted by: Melissa Fleischer, Esq.
President
HR Learning Center LLC
http://www.hrlearningcenter.com
(JavaScript must be enabled to view this email address)
914-417-1715

© 2010 HR Learning Center LLC

Wednesday, July 07, 2010

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.

On July 1, 2010, the NLRB itself weighed in on the all important question: what now? The NLRB issued a press release summarizing its plan for “considering 2-member cases in wake of Supreme Court ruling:”

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration. Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber (the original decision-makers). Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear how many of the remaining decisions can or will be contested, but this is a start.

It will take some effort for the NLRB to work through these cases. And that’s assuming the federal courts comply with the request to remand to the Board. The NLRB is now at full strength for the first time since 2007 so we need not worry about unauthorized decisions for the time being. Given the shockwaves from New Process Steel, the Board will probably not be permitted to fall below three again. For now though, the plan moving forward is starting to become clear.

Submitted by:
Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Monday, June 07, 2010

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.

The lesson for employers is pretty simple: Stop employment practices that have a disparate impact. So, if you’re an employer and you discover that the results of a promotion or hiring test disproportionately favor whites, should you stop? Having just discussed Lewis, you might be tempted to say “yes.” But, don’t forget about Ricci!

Last summer, the Supreme Court decided Ricci v. DeStefano. The Court held that New Haven was liable for race-based discrimination under Title VII for refusing to certify the results of a promotion exam. The City refused to certify the results when it discovered a racial disparity in the results. In short, the Court told the employer that it couldn’t ignore the test results based on race, and needed to keep going with the exam.

The trick for employers is knowing when to honor the test results and when to stop using the test. In Ricci, the Court held unequivocally that disparate statistics alone are not enough. The employer must have a “strong basis in evidence” to believe that the practice will result in disparate impact liability. Remember that an employer may successfully defend a disparate impact claim by demonstrating that the complained of practice is “job related for the position in question and consistent with business necessity.”

The combined lesson for employers from Lewis and Ricci is to examine ongoing practices and make an effort to assess the possibility of disparate impact liability. Just because an exam, or other practice, was adopted a long time ago doesn’t mean employers can just keeping using it. Meanwhile, employers cannot discriminate against a race by changing course when the racial statistics don’t come out as planned, unless there’s a strong basis in evidence to believe that the practice will result in disparate impact liability.

Submitted by:
Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Monday, May 24, 2010

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. 

The first known case in this country to be filed under this new law exemplifies the very concerns that prompted Congress to pass this law.  Pamela Fink of Fairfield, Connecticut decided to have a double mastectomy in response to discovering through genetic testing that she had the gene that made her much more prone to develop breast cancer than others.  Ms. Fink worked for the MXenergy Company, a natural gas and energy supplier located in Stamford, CT.  Allegedly she had been a great worker and had received glowing performance appraisals from her employer year after year.  However, not long after she disclosed that she was having this voluntary double mastectomy as a precaution in light of the results of her genetic testing, everything seemed to change drastically for her at work.  She began being targeted at work for poor performance causing her to be demoted and ultimately discharged from her job for poor performance. 

If true, this is precisely what this new federal law was intended to prevent.  Employers are required to make employment decisions based on job-related factors such as whether employees are doing a good job rather than whether the employer believes that their insurance costs will go up because an employee is likely to develop breast cancer or other diseases.  This case will likely be followed closely by others to determine how the court handles such a case and what type of precedent will be created under this new federal law. 

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
914-417-1715
http://www.hrlearningcenter.com
info@hrlearningcenter.com

©2010 HR Learning Center LLC

DOL Regulation Requires Federal Contractors to Post Notice of Unionization Rights

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

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. Federal contractors and subcontractors are required to post the prescribed employee notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted both physically and electronically. Government contractors must also include provisions requiring posting of the prescribed notice in all subcontracts. (Source: http://www.dol.gov/olms/regs/compliance/EO13496.htm)

OFCCP may conduct evaluations to determine compliance. Contractors who violate the regulations may be subject to sanctions for non-compliance, including suspension or cancellation of an existing contract; debarment from future Federal contracts and subcontracts; and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of non-compliance with these requirements. A contractor will have an opportunity for a hearing and an appeal before the imposition of any sanctions.

In his executive order, President Obama justified the rule as a measure to protect the government against labor unrest: “When the Federal Government contracts for goods or services, it has a proprietary interest in ensuring that those contracts will be performed by contractors whose work will not be interrupted by labor unrest. The attainment of industrial peace is most easily achieved and workers’ productivity is enhanced when workers are well informed of their rights under Federal labor laws, including the National Labor Relations Act (Act).” (Source: http://edocket.access.gpo.gov/2009/E9-2485.htm )

A copy of the poster may be downloaded by following this link: Government Contractor NLRA Poster 

Sunday, May 02, 2010

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,”

(2) the treatment is not just an “attractive option,” and

(3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices.

This test was first laid out by the Seventh Circuit in Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051 (7th Cir. 1997). It is now the test in the Third Circuit as well.

In Mr. Sulima’s case, his medication was not “required in the prudent judgment of the medical profession” as evidenced by the fact that his doctor took him off the medication when learning of the side effects.

Other Issues
Sulima included a few additional interesting tidbits. First, in addition to addressing whether Mr. Sulima had an actual disability, the Court also analyzed whether he was “regarded as” having a disability. He was not. His employer knew his problems were side effects of medication and Mr. Sulima explained to them that his medication could be changed.

Second, Mr. Sulima argued that he was retaliated against for requesting an accommodation under the ADA. This does not require an actual disability but does require a “reasonable, good faith belief that [he] was entitled to request the reasonable accommodation [he] requested.” The Court found that Mr. Sulima lacked this “good faith belief” because he knew his condition was temporary and that he could change medications.

Finally, the Court applied the “old ADA” and not the new ADA Amendments Act (ADAAA). The Court did not analyze the issue, noting only that “[t]he parties here have not argued that these amendments have retroactive effect.”

Submitted by:
Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Wednesday, April 28, 2010

DOL Publishes Updated Model Notices for Extended COBRA/ARRA Subsidy

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

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.

General Summary of Subsidy:

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit. To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee’s employment. The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010. (An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.) The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. (Source: DOL website)

Tuesday, April 20, 2010

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.

The Seventh Circuit held that the Cat’s Paw theory requires the discriminating nondecisionmaker to possess “singular influence” over the decision maker who responds with “blind reliance.” The decisionmaker merely relying in part on the nondecisionmaker is insufficient. Trial judges must make “a threshold determination of whether a reasonable jury could find singular influence before admitting evidence of nondecisionmaker animus.”

The Supreme Court will now likely establish the contours of the Cat’s Paw theory for courts to apply to employment discrimination cases in the future.

Submitted by:
Philip K. Miles III, esq.
Attorney, McQuaide Blasko
Publisher of Lawffice Space

Monday, April 19, 2010

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. 

Managers need to understand that once a disabled employee requests a reasonable accommodation by asking for an additional leave of absence, the employer’s obligation to engage in the “interactive process” is triggered and if the employer fails to engage in the interactive proves and/or worse terminates the employee, the employer subjects itself to claims that it has violated the ADA. 

What does the interactive process require?  It requires a back and forth between the employer and the employee to determine:
1.  Whether the employee is a “qualified individual with a disability” and
2. If he/she is, then what accommodation based on medical information from the employee’s health care provider together with the job description, will enable the employee to be able to perform the “essential functions” of the job?

Keep in mind that the employer is not obligated to always give the employee the precise accommodation that the employee requested.  Rather, the employer is required to provide an accommodation that will enable the employee to perform the essential functions of the job.  Managers don’t really need to worry about determining what accommodation should be provided to the employee.  This is usually the job of Human Resources and the in-house legal counsel.  But managers do need to know that when the employee calls at the end of their FMLA leave saying they are still sick and need additional time out of work, the manager may not fire the employee.  Moreover, the manager should consult with and advise human resources so that human resources and the in-house counsel can engage in the interactive process with the employee and provide a “reasonable accommodation” which might be additional time out on a leave of absence. 

The manager should also be careful to adequately document all of this so that if the employee later claims violation of the ADA, the employer can defend its actions by demonstrating in a court of law that it engaged in the “interactive process” and that it provided the employee with a “reasonable accommodation” in accordance with the ADA.

Leave of absence issues can be tricky for employers.  However, understanding the employer’s requirements under both the FMLA and the ADA will enable the employer to ensure compliance with these important leave laws and help avoid liability in any future litigation that may arise. 

Submitted by: Melissa Fleischer, Esq.
President
HR Learning Center LLC
http://www.hrlearningcenter.com
(JavaScript must be enabled to view this email address)

As President of HR Learning Center LLC, Ms. Fleischer provides proactive solutions to management including on-site seminars and on-line webinars on a variety of employment law issues including sexual and unlawful harassment, workplace violence, FMLA and ADA. Ms. Fleischer can be contacted at 914-417-1715 or via e-mail at (JavaScript must be enabled to view this email address)

© 2010 HR Learning Center LLC

Friday, April 16, 2010

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.

Therefore, employees who are involuntarily terminated on or before May 31, 2010 may be eligible for the subsidy.

The text of the legislation can be found here.

<u>Related Articles:</u>

Congress Extends COBRA Subsidy

COBRA Obligations Expanded

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Saturday, April 10, 2010

Pregnancy At Work: A Review Of California Employer Obligations

Q: How common is pregnancy discrimination?

Although most companies protect against pregnancy discrimination, the EEOC has recorded an increase in claims between 2001, when 4,287 charges were made, and 2009, when 6,196 charges were made. The chart below illustrates the trend.

Q: I own a California business with 20 employees. A new employee, who I hired three weeks ago, just announced that she is pregnant. Do I need to provide a leave of absence to this employee?

The answer depends on the details. Because your business employs fewer than 50 employees, the pregnant employee is not eligible for 12 weeks of FMLA or CFRA leave. However, California’s Pregnancy Disability Leave, which covers employers with five or more employees, and has no prerequisite length of employment, does cover your employee.

Unlike the FMLA and CFRA, which do not cover employees until they have worked for the company for at least 12 months, and until they have worked at least 1,250 hours during the year before the start of leave, California’s PDL has no waiting period. Employees are eligible for the leave immediately upon hire.

If your employee becomes medically disabled on account of her pregnancy (i.e. she is unable to perform her job duties) then she may take leave during that period of disability, for up to four months of PDL leave. At the end of the disability period, if she is able to return to work you must guarantee reinstatement to the same position.

If the disability ends, and the baby is born, you won’t be required to provide additional time off for baby bonding because PDL provides disability leave only. Although CFRA provides for up to 12 weeks off for baby bonding, your company is not subject to that leave law.

Your employee may use any accrued paid time off to take care of the baby. Your company can also voluntarily offer unpaid time off for the new mother. She may also qualify for state wage replacement benefits from the EDD.

Q: I am a California employer with 60 employees. I have a pregnant employee in the warehouse who states that on her doctor’s advice she should avoid lifting more than 40 pounds. In her current position in order fulfillment she must lift 50 pound boxes and she has asked to move to an open position in shipping where she wouldn’t do any lifting. Do I need to transfer her?

Although the FMLA does not require a transfer to light duty, under the California law, an employer must transfer a pregnant employee to less strenuous or hazardous position, where based on advice of a doctor, and where the transfer can be reasonably accommodated. 

Also, under the federal Pregnancy Discrimination Act (PDA) an employer should temporarily transfer a pregnant employee to light duty if the same right is available to other similarly non-occupationally disabled employees.

Here, your employee states that she cannot lift over 40 pounds. You are entitled to ask for medical confirmation of this restriction. Assuming lifting boxes is an essential part of her job, she cannot perform her duties. Since you have an open position which the employee is qualified to fill, it would be a reasonable accommodation to temporarily transfer her.

After the restriction is lifted, you should transfer her back to her original job.

Related Article: Pregnancy Discrimination Update: Sea Captain Unlawfully Terminates Pregnant Shipmate

Submitted by:
(JavaScript must be enabled to view this email address)
Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Monday, March 01, 2010

A LEGAL LANDMINE: PRIVACY ISSUES IN THE 21ST CENTURY

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. 

Of course, together with this social media explosion come a host of legal issues that employers are exposed to and need to plan for.  One interesting issue that has arisen is the issue of an employee’s right to privacy when their employer monitors and reviews their text messages.  The US Supreme Court has recently agreed to hear such a case which should lend some guidance on this technologically advanced legal issue.  However, since this case involved an action by an employer that was a city, it involved the Fourth Amendment prohibition against unreasonable search and seizures which would not be applicable if this situation arose with a private employer.  Nevertheless, many employment lawyers are awaiting the outcome of this case to provide some direction on this interesting issue.

In this case, Quon v. Arch Wireless Operating Co., the Supreme Court will decide whether the City of Ontario in California violated Seargent Quon’s,  constitutional right to privacy when it reviewed text messages that he sent on his pager provided by the City.  Mr. Quon was a Seargent on Ontario’s SWAT Team.  The employer in this case, the City of Ontario, had the standard language in its e-mail policies stating that employees should not have any expectation of privacy and that the electronic messages could and would be monitored by the City.  When the pagers were given to the employees, they were given a copy of the e-mail policy and told that it applied to the text messages on the pagers. 

However, it turned out that there were statements by Seargent Quon’s supervisor to Seargent Quon stating that the text messages would not be monitored as long as any employee that went over in the amount of text messages they were allotted for the month paid for the overages. In addition, it turned out that the City had not actually monitored Mr. Quon’s pager or any of the other police officers’ pagers for a period of approximately eight months after the employees were given the pagers. 

When the City started monitoring Quon’s text messages, they found that he had used the pager and text messages for his own personal use which was a violation of the City’s e-mail policy and that there were some sexually explicit text messages.  The Seargent and his wife sued the City of Ontario claiming a violation of their right to privacy.  The Ninth Circuit issued a decision in this case holding that the City of Ontario had violated Mr. Quon’s right to privacy.  Crucial to the Ninth Circuit were the fact that although the City’s policy stated that employees should have no expectation of privacy, this had been negated by both the supervisor’s statements as well as the practice of the City of not monitoring the text messages for such a long period. 

It will be interesting to see what happens when the Supreme Court decides this case which should happen by June 2010.  One thing is clear.  Employers need to be extremely careful to not take any action that would be inconsistent with the declaration in their policy that employees should not have any expectation of privacy.  Just as with at-will employment, it appears that a supervisor’s statements that are contrary to an employer’s policy and an employer’s actions that are inconsistent with that policy can negate the statement in the policy and destroy the employer’s defense in such cases.  Moreover, it is important for employers to not just use the e-mail policies they have as the City of Ontario did in this case, but rather to develop and create legally sound social media policies that adequately address all of these important issues.

The lesson for employers is clear.  Not only is it important to have well-drafted social media, cell phone and texting policies but it is equally important to provide training to your managers so they understand how to avoid making any statements that could negate the no expectation of privacy statement in your policy.  The training should also help employers ensure that their practices and actions are consistent with the policy and don’t defeat the representations in the policy.  If you state that you will be monitoring employees’ text messages, clearly you should ensure that you are doing this on a consistent basis to prevent an employee’s arguments that your failure to do so provided him with a reasonable expectation of privacy despite the statement to the contrary in the policy.

It is not easy for employers to stay one step ahead in this ever changing technologically advanced world we live in.  However, with proper guidance on how to draft effective policies and proper training, employers can manage to ensure that their workplaces are legally compliant and that they are protected from the legal landmines that the 21st century social media and technologies have brought.

Copyright© 2010 HR Learning Center LLC
Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
info@hrlearningcenter.com

As President of HR Learning Center LLC, Ms. Fleischer provides proactive solutions to management including on-site seminars and on-line webinars on a variety of employment law issues including sexual and unlawful harassment, workplace violence, FMLA and ADA. Ms. Fleischer can be contacted at 914-417-1715 or via e-mail at Melissa.fleischer@hrlearningcenter.com
 

Thursday, February 11, 2010

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. 

Employers are strictly liable for sexual harassment by their supervisory employees whenever the victim employee suffers some tangible employment action due to the harassment.  Tangible employment actions include such concrete personnel actions as terminations, demotions, suspensions, or adverse changes to working conditions.  If the harassment does not result in a tangible job action, the employer is still liable for supervisory harassment unless it can show that it used reasonable care to prevent and correct any harassment; and that the victim employee unreasonably failed to take advantage of the employer’s harassment complaint procedure. 

The keys for liability are whether the complained of conduct was unwelcome and whether it was severe and pervasive.  Isolated incidents, unless they are extremely serious, will not suffice to establish liability.  Occasional use of abusive language, gender-related jokes, or teasing, standing alone, is not sufficient to prove actionable sexual harassment.  The conduct must be both severe and pervasive, so the frequency of the alleged misconduct is relevant to establishing liability. 

Employers must realize that they can also be liable for sexual harassment by their non-supervisory employees, and even by customers of the employer, if the employer had knowledge of the harassment and failed to take necessary steps to correct the harassment.  Necessary steps may include promptly removing the harasser from the victim’s workplace, by disciplining the harasser, or by taking other actions to put the victim back to where they were, in terms of working conditions, before the harassment began. 

Employees who are the victims of sexual harassment or other actionable discrimination may be able to obtain awards of compensatory damages, and, in some cases, punitive damages, in either state or federal court.  Another important lesson for employers to keep in mind is that it is also unlawful under the Act to retaliate against any employee who files a complaint or otherwise opposes discriminatory or harassing conduct.  Harassment claims can also be brought under the Act for harassment based upon the victim’s race, color, national origin, religion, disability, age, or prior EEO activity.  Harassment claims must be taken seriously by employers, as they risk significant liability for ignoring or failing to correct such misconduct. 

Workplace harassment can result in severe damage to the victim in terms of emotional distress, and even physical symptoms.  In addition to discrimination claims, workplace harassment cases can also lead to actionable workers’ compensation claims.  Many states have anti-employment discrimination statutes that provide for unlimited damages awards in harassment cases.  To support claims of compensatory damages, it is important for the victim to seek proper medical attention.  Training employees and supervisors is a very effective way for employers to reduce and hopefully avoid workplace harassment claims.  Promptly investigating and correcting harassment may save a company lots of money, as well as the bad publicity that often results from meritorious workplace harassment claims. 

* Copyright© 2010 by TULLY RINCKEY, PLLC.  All rights reserved.

† John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (http://www.fedattorney.com).  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including sexual harassment cases.

Thursday, February 04, 2010

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.

OPM has issued regulations that supplement the FLSA.  See 5 C.F.R. Part 551.  Those regulations state that if an employee is properly classified at the GS-4 level or below (or the equivalent level in other white collar pay systems), they are automatically considered nonexempt, which means they must be paid overtime, pay at time and one-half their regular hourly rate.  Employees properly classified at the GS-5 through GS-10 levels, or their equivalent, may be exempt only if they are an executive, administrative or professional employee.

Executive employees are managers and supervisors who have the authority to select, promote, advance in pay, or remove employees while exercising discretion and independent judgment.  If you are a GS-5 or 6, or a law enforcement employee at the GS7-9 levels, you must spend 80% or more of your work time on supervisory duties.

Administrative employees are those who are considered advisors, assistants, or representatives of management, such as management consultants, systems analysts, and human resources specialists, employees who perform work that is intellectual and varied in nature or of a specialized or technical nature that requires considerable special training, experience, and knowledge, and frequently exercise discretion and independent judgment under only general supervision.  To be exempt as an administrative employee, someone graded at the GS-5 or 6 level must spend 80% or more of his/her work time performing essentially administrative functions.

Professional federal employees, teachers, and school administrators are also exempt under the FLSA.  Professionals are those employees who require knowledge in a field of science or learning usually acquired through education or training at the bachelor’s degree or higher level or in a recognized field or artistic endeavor that is original or creative in nature.

Federal employees exempt under the FLSA receive overtime pay under Title 5 of the United States Code.  Under Tile 5, overtime pay is computed at the rate of one and one-half times the employee’s rate of basic pay or the GS-10, step 1 rate of basic pay, whichever is lower. 

Employees who want to challenge their status under the FLSA can file a grievance under their union’s collective bargaining agreement with their federal employer or in an overtime pay claim with their employing federal agency or OPM.  OPM encourages non-union federal employees to first obtain a decision on the claim from their employing agencies before filing an OPM overtime claim, although employees are not required to do so.  Going to the employing federal agency first may give the employee “two bites at the apple,” but OPM will generally side with the agency anyway, so it may not be worth going to the employing agency first. 

Federal employees not covered by union contracts may file overtime claims under the FLSA with the United States Court of Federal Claims or the appropriate U.S. district court.  However, the district courts can only hear claims that are less than $10,000.  If the claim is for more than that, it must be filed in the Court of Federal Claims.  Moreover, filing an administrative claim with an agency or OPM does not stop the running of the two-year statute of limitations (three years if the violation was willful or intentional) governing claims filed in court from when the claim arose.  The date on which the employing agency or OPM receives the claim is the date used to determine whether the claim is timely. 

If an FLSA claim is successful, the prevailing employee will be entitled to double pay (called “liquidated damages”) for a period of up to two or three years back from the date on which the claim is received, plus an award of attorney’s fees.  However, under certain circumstances, federal agencies may grant compensatory time off instead of overtime pay for an equal amount of time off.  The key is to secure the advice of a qualified attorney to assess the merits and value of your overtime pay claim before you file it.   

* Copyright© 2010 by TULLY RINCKEY, PLLC.  All rights reserved.

† John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (http://www.fedattorney.com).  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including overtime pay litigation.

Tuesday, January 26, 2010

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. 
   
Federal employees and contractors are often hired for their secured jobs before all their background checks have been completed.  On occasion, the government may ultimately determine that a provisionally hired employee or contractor is not suitable to possess a security clearance.  If the employee is unsuccessful in convincing the government to change its initial determination, he or she will be terminated.  People who are ultimately terminated by the federal government based upon a denial or revocation of a security clearance will often find it very difficult to secure another job, either in the federal or private sectors, as getting fired by the federal government based upon national security concerns does not make one very employable thereafter.

For most federal employees, the process of deciding to revoke a security clearance is governed by Executive Order 12968, which was signed by President Clinton on August 2, 1995.  Under that Executive Order, a federal employee has the right to a “personal appearance” before a federal administrative judge, which is akin to an oral reply in a federal disciplinary case.  Federal contractors actually have more due process rights than do federal employees, as contractors have the right to a full contested evidentiary hearing before a judge.  In the case of a federal employee, the judge’s decision is merely recommended, as the employing agency has the final decision as to who receives a security clearance from that particular agency.  For a contractor, the judge’s decision is final, although it can be appealed to the Department of Defense’s Office of Hearings and Appeals. 

When an agency initially determines that an employee does not meet the standards for access to confidential information, that employee shall be:

1. Provided as comprehensive and detailed a written explanation of the reasons for the denial of the clearance as national security interests and applicable law permit, usually called the “Intent to Revoke Access Eligibility” or the “Statement of Reasons”;
2. Provided documents, records and reports upon which the clearance denial is based, to the extent such documents would be provided under the Freedom of Information Act and the Privacy Act, within 30 days;
3. Informed of their right to counsel or other representative, to request documents, and to request the entire investigatory file,  If requested, these materials shall be promptly provided prior to the time set for the written reply;
4. Provided a reasonable opportunity to reply in writing to the determination, and to request a review of that determination;
5. Provided written notice of and reasons for the results of the review, the identity of the deciding official, and written notice of the right to appeal;
6. Provided an opportunity to appeal in writing to a high-level panel appointed by the agency head.  The panel shall be compromised of three members, two of whom shall be selected from outside the security field.  Panel decisions are to be in writing and are final; and
7. Provided an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudication or other authority, other than the investigative authority, as determined by the agency head in an ex parte nonadversarial hearing.  A written summary or record of such appearance shall be made part of the employee’s security record, unless the appearance occurs in the presence of the panel.
 
The purpose of the security clearance review process is to give the employee or contractor the opportunity to convince the federal government that, when considered as a “whole person,” any security concerns that the agency had against the employee are sufficiently mitigated by corrective action taken by the employee in a timely fashion so as to convince the government that it is clearly in the national security interests of the United States that the employee’s clearance be granted or restored.  Given the complexities and stakes of a federal security clearance decision, it is advisable that someone facing the denial or revocation of their security clearance seek representation by a qualified attorney who specializes in security clearance representation.

* Copyright© 2010 TULLY RINCKEY, PLLC.  All rights reserved.

† John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (http://www.fedattorney.com).  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including security clearance litigation.