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Saturday, November 14, 2009

Missed Warning Signs of Workplace Violence in Fort Hood and Orlando Shootings

In the wake of the November 5, 2009 Fort Hood tragedy that left 13 dead and 42 wounded, employers can learn an important lesson about not ignoring the warning signs of workplace violence.  Apparently military psychiatrist Major Nidal Hasan had shown warning signs for years even since his residency in medical school.  However, no one picked up on these or recognized them.  Understanding how to recognize the warning signs of workplace violence is an important step that employers can take to avoid workplace violence.

What types of warning signs are there?

In this case, apparently there were many.  For instance, the fact that Hasan had many communications with a suspected terrorist advisor, Anwar al-Awlaki, a former imam at the Dar Al-Hijrah Islamic Center in Falls Church, Virginia.  Anway al-Awlaki was allegedly a “spiritual advisor” to some of the terrorists and hijackers involved in the 9/11 terrorist attacks.  Apparently, the military looked into these communications but then decided they were not important since violence or terrorist plots were not mentioned.  In addition,  a former classmate of Hasan’s who attended school with him in Maryland for two years described him as a “ticking time bomb” and stated that when he was a student in Maryland he gave a presentation justifying sucicide bombings.  Hasan also reportedly told this classmate that he is a Muslim first and then an American. 

In addition, there were many warning signs in the months immediately leading up to the shooting spree that were ignored by all.  Apparently, at the Mosque that he attended he made many comments to Congregants at the Mosque stating that Muslims should not have to be in the military and go over seas to fight against other Muslims in the War on Terror. He had also complained to many about his upcoming deployment because he did not feel comfortable going overseas to fight other Muslims. 

All of these signs were unfortunately missed by the Military.  Had they taken the time to notice them and perhaps connected the dots, they might have seen that Hasan was on the verge of engaging in this violent massacre. 

The next day in Orlando, Florida another workplace shooting took place.  This one by Jason Rodriguez who also had many of the warning signs.  Mr. Rodriguez had been fired from his engineering firm, Reynolds Smith & Hills more than two years ago. 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, 2006 walked into his former office and began shooting, killing one and wounding five other employees.  His neighbors and mother had noticed that he had in recent weeks become dishelved but again no one had done anything about some of the warning signs he showed.  In fact, in many of the workplace violence cases, investigators have always reported that there were telltale signs prior to the violence that should have been noticed by others.  The gunman at Virgina Tech was a loner who rarely spoke to others.  This is a clear warning sign of a person that might be prone to engage in such violence.  He also had been found to be a danger to himself and others by a public agency but no one did anything about this. 

What are some of the warning signs that employers should watch out for?

Employees who display any or some of the following warning signs may be more likely to engage in some sort of violence at work. 

• Confrontational Attitude
• Talking about an attack
• Paranoid thoughts
• Threatening Co-Workers
• Threatening Bosses
• Showing guns or bragging about guns to Co-workers
• Harassment of Other Employees
• Showing Signs of Substance Abuse
• Aggressive Behavior
• Unusual Behavior
• Being a Loner
• Excessive Cursing
• Bullying Others
• Outbursts of Anger
• Frequent Absenteeism
• Sudden Withdrawal

Warning signs are important for employers to not ignore because they signal that the employee may be on the verge of “losing it” and if the employer were to step in and help they might be able to avoid an instance of violence in their workplace.  Employers should have Workplace Violence Prevention Policies and provide training to their employees on workplace violence prevention.  These training seminars can help train employees to be aware of the warning signs of workplace violence and will help educate employees on ways to make the workplace safer.  The efforts that employers put in to avoiding workplace violence can go a long way to protecting their employees and workplaces from unnecessary violence. 

For more information, or to schedule a workplace violence prevention seminar for your workplace, please contact us at .(JavaScript must be enabled to view this email address) or visit our website.  You may also visit our workplace violence prevention page.

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

Posted by Patrick Della Valle on 11/14 at 03:16 PM
Employment Law
Wednesday, November 04, 2009

Department of Homeland Security Rescinds No Match Rules

After much controversy and litigation, the Department of Homeland Security threw in the towel and rescinded its proposed No Match rules.

For years, the Social Security Administration (“SSA”) has been sending “No-Match Letters” to employers who employed individuals whose social security numbers (“SSN”) did not match their personal information. The SSA, however, provided unclear guidance for responding to the letters. Seeking to fill the void, DHS the agency responsible for enforcement of our immigration laws,  issued a new rule describing the steps an employer must take when it receives a “no match” letter from DHS or the Social Security Administration (SSA).

In October 2007, the AFL-CIO labor union obtained a court injunction prohibiting enforcement of the new rule. The DHS subsequently issued amended regulations, seeking to address some of the flaws raised by the union. But the effort lost steam, particularly after the new administration took over.

“After further review,” wrote the agency in its rescission notice, “DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.” The rescission becomes effective November 6, 2009.

DHS notes that employers should still react when receiving a no match letter. An employer who receives such a letter may be seen to be on notice that the worker could be illegal. “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘‘constructive knowledge.’’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.”

“Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.” Thus, the government has put employers between a rock and a hard place, shrugged its bureaucratic shoulders, and said “Too bad for you.”
Employers who receive No Match letters should take action to protect themselves from possible immigration enforcement actions.

First, upon receipt of a No Match letter, the company should research its own records to check for typographical errors.
If no errors are found, the employer should notify the employee that the SSN is incorrect. Ideally the notice should be in writing.

The company should advise the employee to resolve the issue with the SSA within a reasonable period of time.  Thirty to ninety days ought to be sufficient.

If the employee is unable to resolve the discrepancy then the employer should probably terminate the employee.

Employers should be aware that improper terminations may be a violation of federal law. The DHS wrote in its commentary that it “acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the Immigration and Nationality Act of 1952 (“INA”).

Related Articles:

EEOC’s Proposed GINA Regulations Limit ADA Inquiries

New Federal Legislation: GINA

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

Posted by Christopher W. Olmsted on 11/04 at 01:37 AM
Employment LawImmigration
Wednesday, October 28, 2009

EEOC Publishes Poster Supplement For GINA Compliance

The law requires an employer to post notices describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.

EEOC has revised its “Equal Employment Opportunity is the Law” poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

Employers can either download and post the poster supplement, or download a new version of the whole poster. Visit the EEOC’s website at this link:

Submitted by:
{encode=“” title=“Chris Olmsted”}Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 10/28 at 01:51 PM
Employment Law
Friday, September 25, 2009

Protect your Workplace from the Violence and Murder of Annie Le at Yale University

Don’t let an incident like the murder of Annie Le at Yale University happen in your workplace.  Incidents of workplace violence happen regularly throughout the United States and threaten employers with liability on a daily basis.  Yet statistics reveal that most employers fail to provide training on workplace violence and many do not even have a workplace violence policy.  All of these are big mistakes for employers!  Let’s start at the beginning and understand the definition of workplace violence and how it can impact your workplace. 

Workplace violence is considered to be “any physical assault or threatening behavior or verbal abuse occurring in the work setting”.  So, as you can see, it is clearly much broader than just the homicides that get reported in the media.  Some examples of workplace violence include:

• Intimidation
• Harassment
• Bullying
• Shootings
• Threats
• Verbal Abuse
• Stabbings
• Rapes
• Suicides

Since the definition and the types of incidents that workplace violence includes are so broad, it is extremely important that employers have workplace violence policies to protect the employers from liability.  The policy will help managers and employees understand that workplace violence includes instances of bullying and harassment and not just murders.  Once your policy defines that bullies and harassers are included in the definition of workplace violence and once your policy sets forth that all instances of workplace violence must be reported, an employer would be better protected than Yale University was in the Annie Le case.  Because had Yale had such a policy and had they conducted training on their policy (I don’t have any personal knowledge of whether in fact they had such a policy or conducted such training) then perhaps the other workers in the lab would have known that when the lab technician arrested for the murder of Annie Le, Raymond Clark, was allegedly harassing other workers about the cleanliness of their mice cages, that this constituted workplace violence and should have been reported to human resources immediately.  Perhaps if it had been reported to human resources, Mr. Clark would have been disciplined and/or terminated which could possibly have prevented the ensuing violence in which Annie Le lost her life. 

Thus, the best way for an employer to protect itself is to have a policy, to provide workplace violence training and to take affirmative steps to make the workplace safer. 
What are some of those steps?  There are of course the obvious steps such as installing better lighting, security cameras and alarms and then there are the less obvious ways to make the workplace safer.  These usually involve human resources.  HR should strive to conduct background checks on all employees as well as to conduct exit interviews when an employee terminates his/her employment with that company.  This is especially important because of the various theories of legal liability that plaintiff’s lawyers love to use in these cases that include negligent hiring and negligent retention. 

Negligent hiring is based on the theory that the employer failed to conduct a background check on the employee prior to hiring the employee.  The theory surmises that had they conducted a background check they would have known that the violent employee had a history of violence in prior employment situations and thus they would have not hired him/her.  Thus, the employer was negligent in bringing this violent employee into the workplace without checking the employee’s background.  In addition, when the employee during the course of his/her employment has acted in a manner that demonstrates that he/she may be prone to violence, such as the reports that had come out that Mr. Clark allegedly harassed other employees about the cleanliness of their mice cages, and the employer has done nothing to discipline that employee, the negligent retention theory suggests that management was negligent in retaining that employee despite clear indications that the employee had previously been violent in the workplace. 

Another important way that employers can protect themselves from this type of violence is by training their managers and employees to be sensitive to the warning signs of an employee who could likely engage in workplace violence.  Time and time again in the aftermath of these tragedies, the witnesses and friends all agree that in hindsight there were warning signs that people just ignored or brushed off and did not know to report.  Such as Cho, the lone gunman at Virginia Tech who witnesses reported to be a loner who rarely spoke to anyone and someone who had been previously reported to be a danger to himself and others, all clear warning signs that were ignored.  In the recent workplace violence case at the LA Fitness gym in a Pittsburgh, Pennsylvania suburb where a lone gunman entered the gym and started shooting, people who knew the gunman also reported that he was a real loner who always kept to himself.  Such warning signs can tip off others so that they report these warning signs to human resources to be investigated which can help to prevent these instances of workplace violence. 

So employers can take actions to prevent their workplaces from the tragedy that happened to Annie Le at Yale University.  Employers can develop policies prohibiting workplace violence, deliver training on the warning signs of workplace violence and take steps to make their workplaces safer.  For more information or to schedule a workplace violence training seminar for your workplace, please contact Melissa Fleischer, Esq. at 914-417-1715 or via e-mail at .(JavaScript must be enabled to view this email address).  Please feel free to visit our website at

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

Posted by Patrick Della Valle on 09/25 at 03:52 PM
Employment LawHuman Resources
Saturday, July 18, 2009

Important Lesson For Employers in Supreme Court’s Holding in Ricci Case

What really happened in the Ricci v. DeStefano “reverse discrimination” case.  The City of New Haven discovered after administering a test for promotions within the Fire Department that no African-Americans qualified for promotions based on the test.  Only after administering the test and seeing these results did the City for the first time realize that this could be a problem.  Then, stuck between a rock and a hard place, they decided without doing any analysis of the test that they would not grant the promotions to the white and Hispanic firefighters who had scored highest on the test because they feared that to do so would risk a lawsuit for disparate impact by the African-American firefighters. 

This case brought the two types of discrimination under Title VII in conflict with each other when the City of New Haven basically found itself in the situation where if it did not certify the test results and grant the promotions it would be faced with a disparate treatment lawsuit by the white and Hispanic firefighters but if it granted the promotions it would be faced with a disparate impact lawsuit by the African-American firefighters.  Title VII prohibits two separate types of discrimination.  Disparate Treatment discrimination is intentional discrimination based on an employee’s race, color, religion, sex, or national origin.  Disparate Impact discrimination is where a neutral practice or policy has an adverse impact on a protected class and where the practice or policy is not job-related nor justified by business necessity and where there is an alternative policy or practice that has a less discriminatory impact. 

Thus, having failed to do what they should have done before administering this test in the first place, to wit making sure through validation procedures that the test did not have a disparate impact on any protected class of employees, the City of New Haven now made matters even worse by making a decision based solely on race that it would deny promotions to the qualified white and Hispanic firefighters solely because they were white and Hispanic.  This, the Supreme Court of the United States held in a 5-4 decision violated the white and Hispanic’s civil rights under Title VII as disparate treatment discrimination because of the prohibition under Title VII against intentionally making employment decisions based on an employee’s race.  Rather, Title VII requires that employment decisions be based on job-related factors unrelated to the employee’s race.

The City of New Haven alleged that its decision to deny the promotions to the white and Hispanic firefighters based on their race should have not violated Title VII because it did so only because to do otherwise would have subjected it to liability for disparate impact under Title VII by another group of employees, namely the African-American firefighters.  The Supreme Court held that an employer would only have a valid defense and be allowed to do this if “there was a strong basis in evidence” that to deny the promotions and thus intentionally discriminate based on race against the white firefighters was necessary to remedy the disparate impact of the test on the African-American firefighters.

Here, the Supreme Court held, there was not “a strong basis in evidence” because the City acted only on its fear that it might be subject to a lawsuit by the African-American firefighters.  Although the Court did not specify what might satisfy this “strong basis in evidence” test, it seems likely that if the City had done a statistical analysis prior to deciding to not grant the promotions to the white and Hispanic firefighters it might have been in a stronger position to satisfy this test.  The Supreme Court also clearly stated that “a strong basis in evidence” required more than just a showing that a prima facie case of disparate impact could have been established.  Here, the City would only have been liable for disparate impact if even after the plaintiffs had made out a prima facie case of disparate impact discrimination, it was established that the tests for promotion were not job-related and consistent with business necessity or if there was an equally valid less discriminatory alternative that also served the City’s needs but that the City refused to use.  Since this was not the case here, the City could not establish that there was “a strong basis in evidence” that it would have been liable for disparate impact discrimination.  It appears that the new test set forth by the Supreme Court in this case requires an employer to go through the entire analysis a court would make in deciding the disparate impact case and then only if after the entire analysis it appears that the employer would lose the disparate impact case would the employer have a valid defense for engaging in intentional discrimination to avoid this result. 

So what is the important lesson for employers with regard to administering employment tests in the workplace?  Make sure you have your ducks in a row before administering any employment-related tests.  This means that employers should, prior to administering any employment tests, consult with employment counsel who can retain an expert to conduct a validation study to determine if the test would possibly have a disparate impact on any protected class.  If it would, do not administer the test without revising the test to eliminate any disparate impact on a protected class.  In addition, employers should consult with employment counsel post-test administration to assist employers in deciding what action to take if the employer should find itself in the conundrum that the City of New Haven found itself in this case. 

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



Posted by Patrick Della Valle on 07/18 at 11:13 AM
Employment LawHuman ResourcesRace Discrimination
Wednesday, July 01, 2009

EEOC Votes to Amend ADA Regulations

As reported here, the ADA was significantly amended effective January 1, 2009.

The amendment emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

The amendment made changes to the definition of the term “disability,” making it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

On June 17, 2009, the Commission voted to begin the process of drafting new ADA regulations, updated to match the statutory amendment. The EEOC did not specify when the proposed regulations will be published for review and comment. Expect to wait several months.

Expect the new regulations to better define to what extent a physical or mental condition must limit the ability to engage in major life activities in order to qualify as an ADA disability.

The EEOC notice can be found here.

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

Posted by Christopher W. Olmsted on 07/01 at 12:20 AM
Disability DiscriminationEmployment Law
Monday, June 08, 2009

California Appellate Court Adds New Dimension To Tip Pooling Rules

In a case titled Chau v. Starbucks, a California appellate court has added a new dimension to rules regarding tip pooling in California.

Tip pooling is the practice of sharing customer tips among staff. It is a common practice in restaurants. California’s Labor Code has a specific rule that precludes managers or supervisors from taking part in the tip pool distribution.

General Rules For Tip Sharing

Labor Code Section 351 states: “No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron . . . . Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.”

Courts and the California Division of Labor Standards Enforcement (DLSE) have interpreted Section 351 to permit tip pooling. However, owners, managers and supervisors may not share in the pool.

Moreover, according to the DLSE, in the context of table service, only employees providing direct table service may share. Such employees could conceivably include waiters and waitresses, busboys, bartenders, host/hostesses and maitre d’s. Employees who do not provide direct table service and who do not share in the tip pool include dishwashers, cooks, and chefs, except in restaurants where the chefs prepare the food at the patron’s table, in which case the chef may participate in the tip pool. But this interpretation has been recently abrogated by an appellate court case titled Budrow v. Dave & Buster’s California. In that case, the court ruled that the “direct table service” rule was not California law, and that it was proper for bartenders to share in the tip pool.

The Budrow court wrote: “Ultimately, the decision about which employees are to participate in the tip pool must be based on a reasonable assessment of the patrons’ intentions. It is, in the final analysis, the patron who decides to whom the tip is to be ‘paid, given to or left for.’ It is those intentions that must be anticipated in deciding which employees are to participate in the tip pool.” Unfortunately for employers, this is not a bright-line rule.

Section 351 also prohibits employers from requiring wage deductions based on received tips and protects an employee’s rights to tips paid on credit cards.

Through these provisions, the Legislature sought to “prevent fraud upon the public”, and “ensure that employees, not employers, receive the full benefit of gratuities
that patrons intend for the sole benefit of those employees who serve them.”

What About The Tip Jar?

The rule seems clear enough in the context of table service at a restaurant. But what about the collective tip jar often seen near the cash register at Starbucks? Can shift supervisors participate in the tip pool distribution, or does such a practice violate the Labor Code?

In the Chau v. Starbucks case, the question was of great monetary significance. At trial in this class action, the employees prevailed. The court determined that shift supervisors improperly shared in the tip pool. The trial court awarded an estimated $105 million in damages. (See a summary of the case here: Starbucks Tip Case.)

On appeal, the court reversed this award. The appellate court determined that the Labor Code prohibition did not apply to Starbuck’s collective tip jars.

The court reasoned that tips left in the jars were meant for all Starbucks employees who provide the service. The trial record reflected that the shift supervisors spent 95% of their time performing the same tasks as the other workers, and did not have the power to hire, promote or terminate. Moreover, the tip pool was divided weekly among store employees proportionate to the number of hours worked. Also, while shift supervisors shared in the pool, store managers and assistant managers did not.

The court of appeal wrote:

Because—as plaintiffs concede—section 351 does not prohibit a shift supervisor from keeping gratuities given to him or her for his or her customer services, there is no logical basis for concluding that section 351 prohibits an employer from allowing the shift supervisor to retain his or her portion of a collective tip that was intended for the entire team of service employees, including the shift supervisor. In this situation, the shift supervisor keeps only his or her earned portion of the gratuity and does not “take” any portion of the tip intended for services by the barista or baristas. If—as is undisputed here—the tips were left in the collective tip boxes for the baristas and shift supervisors, and it was permissible for Starbucks to require an equitable division of the tips according to the number of hours worked by each employee, it is not a violation of section 351 for the employer to maintain a policy ensuring those service employees benefit from a portion of those tips. Because a shift supervisor performs virtually the same service work as a barista and the employees work as a “team,” Starbucks did not violate section 351 by requiring an equitable distribution of tips specifically left in a collective tip box for all of these employees.

Employers should not simply assume that supervisors can share in the division of tip jars. This decision was fact-dependent. However, where the facts are analogous to the Starbucks case, shift leads or supervisors may properly share in the tip pool. But before implementing a new policy, monitor this case. There have been a number of California appellate cases on the topic of tips, and the issue may be headed for the California Supreme Court.

For more information on tips, see this FAQ.

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

Posted by Christopher W. Olmsted on 06/08 at 10:18 PM
Employment Law
Friday, June 05, 2009

Employee Handbook Red Flags For Multi-State Employers

Employee Handbook Red Flags For Multi-State Employers

Many employers are not aware that when they draft their employee handbook there are many policies that need to be different based upon the state in which the employer is operating.  This can be a real nightmare for HR.  The best thing to do is make a list of all the states in which you operate.  Remember that this includes states in which even just one employee may be working remotely.  You would need to comply with the local laws and regulations for that state as well. 

Let’s assume that you operate in 10 different states.  You should prepare a checklist to mark all the policies in which you will need to check the state laws to ensure that you are in compliance.  The best practice is usually to create an employee handbook that is in compliance based on federal laws.  You should then create a local practices section of the handbook and in this section have local and state laws in each of the 10 states in which you operate that may be different from the main employee handbook. 

What are some of the policies that could cause you problems that you should include in this checklist? 


The first is of course FMLA.  Many, although not all, states have their own FMLA laws that sometimes require more leave than what is required under the federal FMLA.  For instance, Connecticut requires that employers provide eligible employees with 16 workweeks of leave in any 24-month period.  In addition, in Connecticut, an eligible employee only has to have worked for 1000 hours in the 12-month period immediately preceding the leave rather than the 1,250 hours required by federal law.  Also under the Connecticut family leave law an eligible employee can take leave to serve as an organ or bone marrow donor.  New Jersey requires that employers provide 12 weeks of leave in a 24 month period but it is only for the serious health condition of a parent, child or spouse or the birth or placement for adoption or foster care of a child.  There is no New Jersey FMLA for your own serious health condition.  Moreover, this New Jersey family leave law applies to employers with 50 employees anywhere in the country as long as one of the employees is employed in New Jersey.  In addition, to be an eligible employee under New Jersey law as we saw was the case in Connecticut, the employee need have only worked 1,000 hours in the 12 months immediately preceding the leave.  Also, the definition of family member in New Jersey includes leave to care for an in-law or step-parent.  New York does not have its own state family leave law.  Be sure that you check your state’s laws to determine if (1) there is a state family leave law and (2) if it provides something different than does the federal FMLA. 

Jury Duty Leave

Another policy that will have local implications is your jury duty leave policy.  Some states such as New York require that the employee be paid $40 for the first three days of leave.  Massachusetts requires that for employees that were scheduled to work for three months preceding the jury duty leave, that they be paid their regular wages for the first three days of jury duty leave. 

Access to Personnel Files

Another area that is dictated by local state practice would be access to personnel records.  Different states have different laws about whether employees have the right to see or copy their personnel file.  You should make sure that you know the law of each of the states in which you operate and insert all relevant information into the local practices section of your employee handbook.

Vacation and Wage Deductions

Vacation and wage deductions is another big area of concern.  Many times employers allow employees to borrow PTO or vacation time when they have not yet accrued such time.  Then if the employee is terminated prior to accruing the time, the employer requires that the employee pay back the time and sets forth that this will be done by deducting the amount from the employee’s last pay check.  This is unlawful in many states.  Make sure that you check each of the state laws in the states in which you operate to find out what the laws for wage deductions are in that particular state.  In addition, each state has specific laws about an employee’s final paycheck when the employee has been terminated or has voluntarily terminated their employment.  It is important that you are familiar with these state laws so that you can ensure that the employee receives their final paycheck within the time limits specified by the law in your particular jurisdiction. 

Short-Term Disability Benefits

In addition, some states such as New York require that employers provide short-term disability benefits.  Make sure that you know the law in your state regarding whether you will need to provide your employees with short-term disability benefits. 


Other State Laws

States also have a variety of other laws that employers need to be aware of.  These laws can change and/or become law quickly so it is important for you to be aware of new laws in each of the states in which you, as a multi-state employer, operate.  For instance, many states have laws regarding women’s rights to express breast milk in the workplace (i.e. New York recently passed this law); leave to donate blood or be a bone marrow donor and domestic violence leave laws.  Another area that is being regulated by states and local municipalities is cell phone and texting laws.  Be sure to keep abreast of local laws in all the areas in which you operate. 




These local state laws can get employers in deep trouble.  Employers should be proactive and keep abreast of all the relevant state laws in the states in which they operate.  Employers should ensure that their employee handbooks set forth in a local practices section information to ensure that they are in compliance with each state’s laws.

Submitted by:  Melissa Fleischer, Esq.
              HR Learning Center LLC
              .(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 06/05 at 01:21 PM
Employment Law
Thursday, May 14, 2009

More EEOC Commentary on Swine Flu: “ADA-Compliant Employer Preparedness For the H1N1 Flu Virus”

There is an additional web page on the EEOC’s website addressing ADA issues related to employer preparedness for epidemics such as swine flu:

ADA-Compliant Employer Preparedness For the H1N1 Flu Virus

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



Posted by Christopher W. Olmsted on 05/14 at 11:23 PM
Disability DiscriminationEmployment Law
Tuesday, May 12, 2009

EEOC Says: Avoid Swine Flu Discrimination Like The Plague

The EEOC has warned employers to avoid swine flu discrimination. Really? Swine flu discrimination? Did the EEOC sneak in a new protected class?

Well, not exactly. On May 11th the EEOC published on its website a short comment titled “Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu).” The EEOC suggests that employers should refrain from national origin discrimination against Mexicans.

In other words, employers should refrain from making employment decisions based merely on the fact that an individual hails from Mexico. For example, refusing to hire individuals of Mexican origin because of a belief that Mexicans may be ill with swine flu could run afoul of Title VII, not because of swine flu, but because of the nationality factor.

Presumably a neutral swine flu policy would pass muster. A neutral policy that requires any infected individuals, regardless of national origin, to take a leave of absence would probably not violate Title VII. The EEOC’s website would be more helpful to employers if it addressed appropriate neutral policies.

On the swine flu web page, the EEOC also cites the Americans With Disabilities Act (ADA). The EEOC does not expressly state, however, that swine flu would qualify as a disability under the ADA. Again, perhaps the EEOC could help employers by elucidating on this issue.

In most cases a temporary sickness such as the flu will not qualify as a disability. Nevertheless, the EEOC points to its publications addressing disability-related inquiries and medical examinations, as will as pre-hire questions and medical exams.

It is conceivable that employers could delve into medical issues in connection with victims of swine flu, say, perhaps, in connection with an FMLA or other leave of absence. As may be the case whenever employers address medical concerns, medical inquiries associated with swine flu cases should be handled with care. Keep the inquiries narrowly tailored to focus job-related issues. Avoid deviating into a general fitness for duty examination that might inappropriately evaluate disabilities. Avoid singling out protected classes. Maintain confidentiality.

As the nation’s attention is fixed on this topic of public health, the EEOC has appropriately suggested that EEO practices may be implicated. The substance of the comments are a little thin, doubtless due to the spontaneity of the outbreak. Perhaps the EEOC will develop guidelines in preparation for future outbreaks.

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

Wednesday, April 22, 2009

Why Do Employers Need to Document Their Reasons for Terminations when Employment is At-Will?

One question that managers often have is why they need to worry about documentation when terminating employees since everyone is an employee-at-will.  The answer requires a short summary of employment law 101.  Although employment in every state in the country other than Montana is employment-at-will, the answer lies in what most employees do once they have been terminated.  First of all, what is employment-at-will? Employment-at-will means that you can hire or fire an employee for any reason or no reason at all.  However, there is a little exception at the end of that sentence that states that this is so “as long as the reason is not unlawful”.  Herein lies the problem.  Many employees who have been terminated will claim that their termination was unlawful because it was discriminatory based upon their protected class.  As everyone knows, under Title VII of the Civil Rights Acts of 1964 and 1991 there are only 5 protected classes, to wit, sex, color, race, national origin and religion.  If President Obama has his way there may soon be a sixth which will be sexual orientation.  But currently there are five protected classes under Title VII as well as age under the Age Discrimination in Employment Act, disability under the Americans with Disabilities Act, military status under USERRA and genetic information under the Genetic Information Nondiscrimination Act (“GINA”).  In addition, each state usually has a larger number of protected classes than under federal law such as citizenship, marital status, sexual orientation, etc.  So what most terminated employees do is claim that the reason they were terminated was discriminatory based upon one or more of these protected classes such as race, age, disability, etc. 

How then can an employer protect its self against such claims?  The answer is documentation.  Document, Document, Document!  So the employer must be prepared to show, prior to the termination of the employee, that the real reason for the termination was that this was a terrible employee with poor performance or that his attendance was abysmal.  The best way for an employer to demonstrate this is with disciplinary warning letters stating that the employee is a poor performer or has terrible attendance.  Courts have an expectation of fairness, meaning that if an employers is really terminating the employer for poor performance or attendance, the employer who terminates an employee should provide the employee with the reason that they are doing poorly and what they can do to improve.  All of this should be in the disciplinary warning.  The employer should then provide the employee with an opportunity to improve as well as with a warning that a failure to improve his/her performance will lead to further discipline, up to and including termination.  If they fail to improve, provide another warning and another until it is clear that you have given the employee every opportunity to improve and they refuse to change.  Then, when you terminate the employee, it will be clear to a court and/or jury who hears the discrimination case that yes, in fact, the employee’s performance and not discrimination was the actual motive for the termination. 

So this is the reason that although employees are employees-at-will, employers still have to document the reasons that the employees are being terminated.  It is necessary so that employers protect themselves from any future claims that the termination was, in fact, discriminatory.

Submitted by: Melissa Fleischer, Esq.
HR Learning Center LLC
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Posted by Patrick Della Valle on 04/22 at 05:59 PM
Employment Law
Monday, April 20, 2009

Indian Reservation Business Subject to Federal Wage Law

A Ninth Circuit court of appeal has concluded that the overtime provisions of the Fair Labor Standards Act (“FLSA”) applies to a business located on an Indian reservation and owned by Indian tribal members. The court also ruled that the United States Department of Labor has the authority to enter the Indian reservation to inspect the books of that business for enforcement purposes.

The case, titled Solis v. Matheson, pitted the Department of Labor against a retail store known as Baby Zack’s Smoke Shop, located on trust land within the Puyallup Indian Reservation in the State of Washington. 

The court acknowledged that Indian tribes generally operate under the legal shelter of “sovereign immunity.” The court wrote: “Indian tribes have a special status as sovereigns with limited powers. Indian tribes are dependent on, and subordinate to the federal government, yet retain powers of self government.”

Sovereign immunity is a bit of a misnomer, because tribes are not invulnerable to litigation. As the court wrote, “those powers may be limited, modified, or eliminated by Congress.”

Finding the FLSA to be a “statute of general applicability” designed to “achieve certain minimum labor standards with respect to industries engaged in commerce,” the court determined that Baby Zack’s Smoke Shop was regulated by the statute.

The court noted that some of the goods sold by Baby Zack’s have been shipped in from locations outside the State of Washington. Though located on tribal land and operated by a member of the tribe, “Baby Zack’s is a purely commercial enterprise engaged in interstate commerce selling out-of-state goods to non-Indians and employing non-Indians.”

Regulating this commercial enterprise, concluded the court, would not impinge upon matters of tribal self-government. The court added that the tribe had not enacted comparable labor laws, nor did it contend that such laws would preempt federal law.

Although law in the area of Indian sovereign immunity has been slow to evolve in relation to the rapid growth of tribal commercial enterprises, the Ninth Circuit’s decision can be characterized as part of a trend towards regulating labor relations of Indian tribes, particularly where the rights of a non-Indian workforce are at stake.

In 2007, as reported in our Legal Update here (page 2), in 2007 a court found that the National Labor Relations Act (NLRA) applied to an Indian tribe operating a casino. (San Manuel Indian Bingo and Casino v. National Labor Relations Board (D.C. Circuit, February 9, 2007).

The Ninth Circuit in Matheson also noted cases where courts had applied federal labor laws to Indian tribes, including cases where OSHA applied to a tribal farm employing non-Indians and ERISA applied to an Indian-owned saw mill. There are also a number of reported cases where courts have declined to apply federal labor laws to Indian tribal matters.

It is reasonable to expect labor law litigation against Indian tribes to increase, and, further, that the U.S. Supreme Court will sooner or later offer clarification due to conflicting lower court rulings.

Read the Ninth Circuit opinion (pdf)

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

Posted by Christopher W. Olmsted on 04/20 at 10:37 PM
Employment LawFLSA
Thursday, April 16, 2009

EEOC’s Proposed GINA Regulations Limit ADA Inquiries

The Genetic Information Nondiscrimination Act (“GINA”), which becomes effective on November 21, 2009 prohibits employers from acquiring genetic information about its employees, with certain exceptions. (Follow this link for a summary: Summary of GINA.)

The law will require employers to change their current practices regarding the acquisition of medical information. Practices that have been permissible under the ADA will no longer be permissible on account of GINA. The EEOC’s recently published proposed regulations make this challenge apparent.

GINA includes a broad definition of “genetic information.” It includes not only the results of genetic testing, but also information regarding the manifestation of disease in family members. Family medical histories are often found in medical records. It is lawful, under the ADA, to acquire medical information regarding employees, post-hire. Such information may also be acquired in the context of the reasonable accommodation process, or a fitness for duty process.

The EEOC’s proposed regulations state that genetic information inadvertently obtained as part of an ADA accommodation does not violate GINA. “An individual provides genetic information as part of documentation to support a request for reasonable accommodation under Federal, State, or local law, as long as the covered entity’s request for such documentation is lawful.”

Unless the information is truly provided inadvertently, the employer will violate GINA. According to commentary for proposed regulations, an employer “that asks for family medical history or other genetic information as part of an inquiry or medical examination related to an applicant’s or employee’s manifested disease, disorder, or pathological condition will not be considered to have acquired such information inadvertently.”

GINA and the proposed regulations will prohibit practices previously allowed under the ADA. The comments to the proposed regulations state: “Thus, even though the ADA allows an employer to require a medical examination of all employees to whom it has offered a particular job, for example, to determine whether they have heart disease that would affect their ability to perform a physically demanding job, GINA would prohibit inquiries about family medical history of heart disease as part of such an examination. Such a limitation will not affect an employer’s ability to use a post-offer medical examination for the limited purpose of determining an applicant’s current ability to perform a job.”

The commentary continues: “[Employers] should ensure that any medical inquiries they make or any medical examinations they require are modified so as to comply with the requirements of GINA. In particular, we note that at present, the ADA permits employers to obtain medical information, including genetic information, from post-offer job applicants. As we interpret GINA, this will change on the November 21, 2009 effective date of Title II of GINA: Employers no longer will be permitted to obtain any genetic information, including family medical history, from post-offer applicants. Employers will likewise be prohibited from obtaining this type of information through any type of medical examination required of employees for the purpose of determining continuing fitness for duty.”

The comment period for the EEOC’s proposed regulations ends on May 21, 2009. The proposed regulations can be found at this link: EEOC Proposed GINA Regulations

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

Posted by Christopher W. Olmsted on 04/16 at 11:49 PM
Disability DiscriminationEmployment Law
Thursday, March 19, 2009

Department of Labor Publishes Model Notice Forms For Amended COBRA / ARRA Premiums Subsidy

Employers’ obligations under COBRA have been significantly increased by the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama.

In a nutshell, ARRA entitles employees terminated between September 1, 2008 and December 31, 2009 to continue health care coverage through COBRA by paying only 35 percent of their premiums for up to nine months. The remaining 65% is paid by employers, who may deduct the cost from federal payroll taxes. Employers must immediately comply with the law by providing notice to eligible individuals, collecting 35% of the premiums from the employees, paying 65%, and filing quarterly tax returns claiming a credit for the 65% subsidized amount.

ARRA mandates that plans notify certain current and former participants and beneficiaries about the premium reduction. Employers should send notices to employees who are involuntarily terminated between September 1, 2008 and December 31, 2009.

The Department created model notices to help plans and individuals comply with these requirements. Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy ARRA’s notice provisions. The forms were posted on the DOL website on March 19, 2009.

The model forms can be found by following this link.

For more information about the new COBRA / ARRA entitlements, follow this link for an article posted on my law firm’s website.

To join a complimentary webinar scheduled for March 23, 2009, follow this link:

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

Posted by Christopher W. Olmsted on 03/19 at 10:44 AM
Employment Law
Friday, March 13, 2009

Does An Employee Qualify For ARRA/COBRA Subsidy After Reduction In Hours Or Resignation?

Employers are scrambling to understand and implement the COBRA provisions in the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama.

In a nutshell, ARRA entitles employees involuntarily terminated between September 1, 2008 and December 31, 2009 to continue health care coverage through COBRA by paying only 35 percent of their premiums for up to nine months. The remaining 65% is paid by employers, who may deduct the cost from federal payroll taxes. Employers must immediately comply with the law by providing notice to eligible individuals, collecting 35% of the premiums from the employees, paying 65%, and filing quarterly tax returns claiming a credit for the 65% subsidized amount. See my summary here.

Question: Under “regular” COBRA, a reduction in hours such that the employee loses eligibility for benefits will trigger COBRA. What about ARRA? If a company reduces an employee’s hours to part time, must (or may) the employer offer the ARRA premium subsidy?

The text of ARRA specifies that the premium is paid as a result of an “involuntary termination.” A reduction in hours is not a termination, and therefore it would seem that ARRA does not apply.

I called a representative at the Department of Labor’s Employee Benefits Security Administration, and he stated that ARRA would not apply in such circumstances.

Certainly it would be nice if the government put this interpretation in writing. So far as I know, to date this has not happened.

Question: What if the employee quits after receiving a reduction in hours. Does she then qualify for ARRA?

Again, the ARRA premium subsidy applies where there has been an involuntary termination. Resigning would not seem to be an involuntary termination. The same EBSA representative referenced above opined that in such circumstances, ARRA would not apply. Again, no official written interpretation has been published at this time.

While I would agree with the EBSA representative, I also think about state unemployment benefits. Although in California, for example, one is generally disqualified from receiving benefits in the event of a resignation, there are exceptions where the employee had no choice but to quit (e.g., illegal treatment in the workplace, and other such unforgivable sins). So far, I am not aware of any similarly broad interpretation of the phrase “involuntary termination” when it comes to ARRA.

If you hear differently, please let me know!

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

Posted by Christopher W. Olmsted on 03/13 at 11:39 AM
COBRAEmployee BenefitsEmployment Law • • Member Discussion
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