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Employment Law Blog

Monday, May 24, 2010

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

Posted by Christopher W. Olmsted on 05/24 at 01:07 PM
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

Posted by Philip Miles on 05/02 at 02:49 PM
Disability DiscriminationEmployment Law
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)

 

Posted by Christopher W. Olmsted on 04/28 at 01:12 AM
COBRAEmployment Law
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

Posted by Philip Miles on 04/20 at 02:44 PM
Employment Law
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
{encode=“melissa.fleischer@hrlearningcenter.com” title=“melissa.fleischer@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 {encode=“melissa.fleischer@hrlearningcenter.com” title=“Melissa.fleischer@hrlearningcenter.com”}

© 2010 HR Learning Center LLC

 

Posted by Patrick Della Valle on 04/19 at 11:55 AM
Employment Law
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

Posted by Christopher W. Olmsted on 04/16 at 03:38 PM
COBRAEmployee BenefitsEmployment Law
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:
{encode=“cwo@barkerolmsted.com” title=“Christopher W. Olmsted, Esq.”}
Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Posted by Christopher W. Olmsted on 04/10 at 08:05 PM
California Employment LawEmployment Law
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
.(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)
 

Posted by Patrick Della Valle on 03/01 at 12:31 PM
Employment Law
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.

Posted by Patrick Della Valle on 02/11 at 02:55 PM
Employment Law
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.

Posted by Patrick Della Valle on 02/04 at 05:57 PM
Employment Law
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.

Posted by Patrick Della Valle on 01/26 at 04:27 PM
Employment Law
Monday, January 25, 2010

WORKPLACE VIOLENCE: EMPLOYERS NEED TO BE BETTER PREPARED

As an employment attorney and President of an HR Consulting Firm who makes my living conducting employment law training, I am hard-pressed to understand why employers are not better prepared for workplace violence.  I guess that one reason is that it takes years of litigation for employers to “get it”.  Similar to sexual harassment that first appeared in the 1970’s which took almost 35 years for most employers “to get” and to come to understand that they had to conduct training to avoid liability under the employment discrimination laws, I assume that the same is true of workplace violence.  Perhaps we are just in its infancy when many employers are not yet aware that it could happen in their workplace and also do not really know how to prepare.  Or perhaps it is due to the fact that many employers just really do not understand the consequences of having an instance of workplace violence occur in their workplace.

What are some of the consequences of workplace violence in a workplace?  Of course there is the immediate consequence of the horrific loss of life and unnecessary violence they and their employees have to endure.  In addition, there is the PR nightmare of being known as a company that failed to prepare for workplace violence and the appearance of your company on the evening news with police crime scene tape all around your workplace.  But perhaps employers don’t understand the deeper implications that failing to prepare for workplace violence can have on them.

What deeper implications you ask.  Well, first of all there is the possible liability under OSHA since all employers have an obligation under the general duties clause to provide a safe workplace for their employees.  Specifically, under OSHA employers must provide a place of employment “free from recognizable hazards that are causing or likely to cause death or serious harm to employees”.
But in addition, there is what is perhaps even more startling for employers, the fact that they can be held liable for the injuries caused by these instances of workplace violence under many creative theories of liability that plaintiff’s attorneys utilize.

First there are the negligent hiring theories of liability.  What does this mean? This means for example that a good plaintiff’s attorney would argue that had your human resources department done their part to check this employee’s background prior to hiring the employee, you would have known that he had been fired from his prior job for an instance of violence or that he had prior criminal convictions.  By failing to check his background, you were negligent in the hiring process and brought this dangerous employee onto your premises where there was a likelihood that he would be violent again.  What kind of damages are we talking about in these cases?  Damages that can be in the millions.  One reason this is such a worthwhile claim for plaintiffs to allege is because they can be awarded punitive damages in addition to compensatory damages.  This makes it very appealing as a claim for many plaintiff’s attorneys.

Then there are the negligent retention theories.  This is where the plaintiff alleges that you the employer were aware of the disgruntled worker’s tendency for violence and for jumping off the deep end and yet you failed to discipline him when he worked for you and failed to terminate him.  Thus, the theory goes that by retaining him without warning him to not continue to engage in discipline and by not getting rid of him, you subjected your employees to a person prone to violence and were thus negligent.

Either theory can lead to liability for employers.  For instance, in Yunker v. Honeywell, Inc., (496 N.W.2d 419 (Minn. Ct. App. 1993)) an employee at Honeywell had been previously fired for strangling an employee. The employee served five years in prison and then when he got out he applied to work for Honeywell again.  Honeywell hired him.  The HR professional who hired the employee hired him knowing he had been terminated for this prior incident of workplace violence.  Once the employee was rehired he engaged in numerous instances of harassing and threatening behavior toward co-workers and also became interested in a female co-worker.  After she rejected his romantic advances toward her, he shot and killed the co-worker in her driveway outside of her house.  The family of the victim sued Honeywell claiming both negligent hiring and negligent retention.  The court rejected the negligent hiring claim because he was rehired as a janitor whose job had very little interaction with other employees.  However, the court upheld the negligent retention claim on the theory that Honeywell had notice of the possibility of violence since the employee had harassed this woman at work and had painted a death threat on her locker door.  She had complained to the company and they had done nothing.  By failing to take action while continuing to retain him as an employee, the Court held that Honeywell had negligently retained the employee and they were held liable.

In another negligent hiring case, B&L Motor Freight was held liable for 4 million dollars for negligently hiring an employee who had prior criminal convictions even though he had stated he had none on his employment application.  This employee had raped another employee.  The court held that the employer should have checked his background for criminal convictions since he had access to interactions with others.  Similarly, in a Goodwill Industries case, the employer was held liable for 5 million dollars when a 15-year old employee was raped and murdered by an employee with a criminal background.  The employer had failed to do a background check on this employee.

What is the lesson for employers?  In my mind it is simple, training.  Training your managers and HR professionals to understand everything they need to know to prevent workplace violence.  Your managers and employees need to be trained on the importance of conducting background checks as well as on how to recognize the warning signs of workplace violence.  They also need to be trained on the importance of taking appropriate disciplinary action against employees for violent behavior they exhibit in the workplace.

Instances of workplace violence clearly are occurring more and more frequently.  Since the beginning of 2010 there have already been two serious incidents of workplace violence.  First there was the recent instance of workplace violence in St. Louis, Missouri on January 7, 2010 that left 4 dead including the shooter, Timothy Hendron.  Apparently Mr. Hendron was a disgruntled assembly-line employee upset about the high cost of his retirement benefits.  He worked at ABB Group, a transformer manufacturing plant in St. Louis.  He was so upset that he apparently had instituted a lawsuit against his company.  Seeking to take matters into his own hands, on January 10, 2010 he walked into the plant carrying an assault rifle and handgun and started shooting.  His actions left 4 dead including himself.  Witnesses described the scene as utter chaos.

Then there was the instance in which a former employee on January 12, 2010 returned to his former workplace, a truck rental company, and opened fire, killing 3.  Five others were also injured in this second instance of workplace violence in 2010.  Although we can never be ready for such instances of violence, I still find myself wondering if such incidents could not have been prevented by simple training and preparation that these employers might have done that could have saved these lives.  Were there missed warning signs by those who managed and worked with these employees?

Missed warning signs has emerged as a major factor in the violence that occurred at the Fort Hood shooting massacre in November 2009.  The Pentagon Report which was recently released indicated that there were numerous warning signs that supervisors did not see or failed to report.  Warning signs that if paid attention to could have possibly prevented the horrific instance of violence that took place in November at Fort Hood.  Warning signs that properly trained managers might have noticed and acted on.  In fact, the Army Report recommended severe reprimands for Hasan’s managers who should have noticed these warning signs and yet failed to act.

What lesson does all of this provide for employers?  I think the message is simple and clear.  Employers that wish to be proactive and protect and prevent workplace violence in their workplaces need to recognize that this is a case where an ounce of prevention can be worth a pound of cure.  What type of prevention?  First and foremost, employers should have a well-drafted workplace violence policy.  Next, they need to provide training as discussed above both on their workplace violence policy as well as on workplace violence in general.  Such training can be essential when it comes to having a viable defense to a case seeking to hold the employer liable for the workplace violence.  It shows that the employer recognized that there could be a problem and took affirmative steps to prevent such a problem.  Employers should also ensure that they thoroughly check references for all candidates including prior criminal convictions, driving records and any other relevant information.  They also need to ensure that they act promptly and impose discipline, up to and including termination if necessary, when an employee has evidenced violent tendencies on the job so that they can avoid any claims of negligent retention.

Clearly, this is where employers need to focus their training efforts in the coming months.  Training your workforce on how to recognize the warning signs of workplace violence and on how to prepare for instances of violence can help you prevent and be better prepared if violence should arise in your workplace.

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

Posted by Patrick Della Valle on 01/25 at 01:16 PM
Employment Law
Tuesday, January 19, 2010

Department of Labor Publishes COBRA Subsidy Extension Model Notices

The government has published updated model forms for the recently extended COBRA subsidy.

Congress passed legislation on December 19th extending the COBRA subsidy eligibility period and coverage period. The extension came as part of the Fiscal Year 2010 Defense Appropriations Act.

The 2010 DOD Act extends the COBRA premium reduction eligibility period for two months until February 28, 2010. This means that employees who are terminated on or before February 28, 2010 may be eligible for the subsidy.

Additionally, the legislation increases the maximum period for receiving the subsidy for an additional six months (from nine to 15 months).

The legislation also helps those who already exhausted their subsidy period under the original legislation. Individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have additional time to pay the reduced premiums related to the extension. To continue their coverage they must pay the 35% of premium costs by 60 days after date of enactment or, if later, 30 days after notice of the extension is provided by their plan administrator.

Individuals who lost their subsidy and paid the full 100 percent premium in December 2009 should be told to contact their plan administrator or employer sponsoring the plan to discuss a credit for future months of coverage or a reimbursement of the overpayment.

In addition to the notice requirements already mandated under ARRA, the 2010 DOD Act requires employers to provide notice of the new rights.

The employer or its group health plan administrator must give notice to any individual who was already eligible for the subsidy as of October 31, 2009. The notice must be given within 60 days of enactment (i.e. by February 21, 2010). The notice must also be given within 30 days to any individual who becomes eligible for the subsidy (i.e. terminated) on or after October 31, 2009. The new notice must provide information regarding the 2010 DOD Act amendments.

The Act also requires notice to individuals who either dropped COBRA or paid the full premium for it when their nine-month subsidy ended. The notice explains that they have two options: to either reinstate their coverage retroactively at the 35% subsidized rate, or to receive a credit or refund.

The DOL has published the updated model forms on its website, which can be found at this link.

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

Posted by Christopher W. Olmsted on 01/19 at 11:21 PM
Employment Law
Thursday, December 24, 2009

DOL Publishes A Safe and Sober Message About Workplace Parties and Drinking

The U.S. Department of Labor has published a message regarding safe and sober workplace parties.

The workplace is frequently a place where employees and employers get together to celebrate special events. Workplace parties typically mean lots of music, food and drinks. If the drinks include alcohol the potential for unfortunate consequences greatly increases. Opinions vary regarding the appropriateness of making alcoholic beverages available at workplace parties or other company-sponsored events. Ignoring the possibility that some employees or guests may drive home “under the influence” invites trouble.

Improper use of alcohol may expose employers to liability under tort, workers’ compensation or other laws. For example, an employer may be held liable if a person consumes alcoholic beverages at a company-sponsored party and subsequently causes a crash. Some employers have been held liable because negligent acts by employees under the influence of alcohol consumed at employer-sponsored events were found to be within the scope of their employment. In other cases, individuals have been held liable merely because they provided alcohol to social guests.

Each time an employee is involved in an impaired driving crash, businesses pay in the form of increased absenteeism and use of health-care benefits. According to the National Highway Traffic Safety Administration’s (NHTSA), the annual employer cost of motor vehicle crashes in which at least one driver was alcohol-impaired is more than $9 billion, including wage-risk premiums. Furthermore, if the employee caused the crash or is arrested for impaired driving even if a crash did not occur, administrative and legal procedures such as court time and traffic school may require further time away from work. And certainly no employer can deny the emotional difficulty and decreased morale employees experience when a colleague suffers from a severe injury or dies-two unfortunate, but not uncommon, outcomes of mixing alcohol and driving.

Depending on the nature of their business, some employers may have additional incentives to ensure their employees are educated about the potential legal vulnerabilities associated with impaired driving. Employers whose businesses serve or sell alcohol may be held liable if an individual consumes alcohol at their establishment and subsequently causes a crash. Employers with employees who drive as part of their job-such as couriers, delivery persons and sales representatives-may also be subject to legal action if the impaired employee causes a crash while conducting business. These employers must consider the costs of insuring and maintaining company vehicles, in addition to the time managers spend taking care of these procedures. The return on investment for employer-sponsored impaired driving prevention is considerable when compared to the financial burden caused by just one crash, especially for small businesses.

All employers run a risk if they serve alcoholic beverages at workplace celebrations and other company-sponsored events because they may be held liable if a person causes a crash subsequent to consuming alcoholic beverages at such an event. However, if an employer does decide to provide or allow alcoholic beverages at an office event, state laws regarding their use and resulting employer legal responsibilities should be consulted and addressed. Also, there are several measures employers can take in attempt to minimize any negative consequences of alcohol consumption.

The good news is that employers have enormous power to protect their businesses from the negative impact of impaired driving by educating employees about its harmful effects and supporting efforts to prevent it in their communities. By doing so, employers do more than just safeguard their business assets-they contribute to the nationwide campaign to eliminate a devastating and preventable crime and play a part in making their communities safer for their friends and families and those of their employees.

The DOL’s publication can be found at this link.

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

Posted by Christopher W. Olmsted on 12/24 at 06:33 PM
Employment Law
Wednesday, December 09, 2009

To salt or not to salt

I am in house counsel to a cell phone company with 300 employees in 8 states.  Our corporate office is in Oklahoma.  Recently the sky opened up and freezing rain soon coated our lovely red dirt and open plains with a lethal layer of ice.  I commute about 100 miles between the corporate office and my home and was lucky enough to be caught on the road when the ice began to fall.  I was frantically avoiding jack-knifing semi’s when my cell phone rang.

The question of the day: should we put salt down on the doorsteps and front walks of our 45 stores in Oklahoma?  Common sense dictated that this would be a good idea.  But, then my little employment lawyer brain began to churn.  What if one of our employees slips and falls while putting down the salt?  Several of my store managers argued that it was worse to put down salt, because it gave customers a false sense of security.  I grappled with the pros and cons of salting.  At about that time, I pulled into Target to buy provisions to endure the storm.  I scrambled out of my vehicle, and as I stepped onto Target’s front walk, the elderly woman in front of me slipped on the ice and bashed the back of her head on the ground.  After calling for help, I made one more call- back to the corporate office - instructing them to have each store put down salt, and lots of it!  Of course, I also dictated a brief email communication asking for employees to use extreme care when putting out salt, to wear appropriate footwear and to contact their manager if they did not feel comfortable participating in this activity.  This is one of those times that common sense was the order of the day.  (I’ll keep you posted on the worker’s compensation claims.)

Posted by Patrick Della Valle on 12/09 at 05:04 PM
Employment Law
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