Wednesday, September 8, 2010

Weighing in On Weight Discrimination

In 2009 and 2010 the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of employment discrimination than ever before.  The increase in discrimination charges is likely the product of a poor U.S. economy.  Employees being laid off from work are turning to the EEOC, complaining that their employer's decision to separate them from employment was motivated by unlawful discrimination.  Of course, not every employment decision is based upon discriminatory motivation or animus.  To the contrary, companies struggling to make ends meet often are left with no choice but to reduce the number of employees on the payroll. In many instances, persons selected for layoffs are just the victim of lagging sales or cash flow problems.

Of late, there has been discussion about adding weight to list of protected classes (such as age, sex, religion and race) under federal employment discrimination laws (some states already protect weight under their discrimination laws, such as Michigan).  For example, a potential employee files an EEOC charge alleging that an employer failed to hire him/her because he/she is overweight.

A few years ago, Obesity, a journal, reported that discrimination based on weight increased 66% in the past decade, up from about 7% to 12% of U.S. adults.

Weight is already protected under federal law.  Under the Americans with Disabilities Act (ADA), a person suffering from diagnosed obesity may be considered "disabled" and would be afforded protection under that law.  In addition, there have been cases brought under Title VII of the Civil Rights Act of 1964 where plaintiffs argued that weight standards imposed by an employer that were applied differently to men and women was discriminatory on the basis of sex since such standards adversely impacted women.

Like race, weight is something that is immediately identifiable.  An employer may meet a potential employee and determine that because he/she is overweight, that the person will be lazy or unhealthy.  Further, an employer may simply choose not to hire an overweight person on the basis of customer disdain or for any other reason.  Some commentators argue that weight should not be afforded protection under law since it is a mutable characteristic (a person can lose weight with a better diet and exercise), but in some instances weight gain is a result of medication or a disorder, which is not something that the person can control.

Wednesday, August 25, 2010

Restrictive Covenants

With the economy lagging, and jobless rates still hovering at around 10%, many employers are finding that having employees sign a restrictive covenant agreement is a good idea.  Restrictive covenants can take several forms, including a covenant not to compete (non compete), a confidentiality provision, a covenant not to solicit co-workers to leave their employ and a covenant not to solicit customers.  In many instances, an employer will include one or move restrictive covenants in an employment agreement.

In Georgia, the general rule is that a restrictive covenant in an employment agreement is enforceable when it is limited in scope, duration and geographic territory.  Determining a reasonable scope, duration or geographic territory is usually a case-by-case analysis.  Restrictive covenants that lack reasonable scope, duration or a geographic territory are ordinarily deemed unenforceable.  In an employment context, Georgia courts may not "blue pencil" an agreement, meaning they cannot rewrite the restrictive covenants to scale back the duration, if it's too long, for example. Instead, restrictive covenants tend to be an all or nothing proposition; either they are written properly under Georgia law or they are unenforceable in their entirety.

So, employers looking to retain customers, protect confidential information, and who want to retain valued employees should consider having counsel draft a restrictive covenant agreement for all employees.  Continued employment may be sufficient consideration for signing the agreement, so there's no problem with asking an existing employee to sign one.

Obviously, the value of a well-written restrictive covenant agreement is to deter and prevent any employee who is laid off or quits from going down the street to a competitor with the promise to bring on the company's customers or to bring other staff with them.  In addition, a confidentiality provision can prevent a former employee from taking customer lists, pricing and other sensitive data to a competitor. 

Also, since the job market is tight, some former employees will stop looking for another job and will instead start their own business, essentially becoming a new competitor.

In short, if a company wants to hold onto its market share or to valued employees and customers, having employees sign a restrictive covenant agreement makes good business sense.

Thursday, August 5, 2010

Pitfalls of Monitoring Emails

Most employers have established a policy regarding surveillance in the workplace. Typically, this type of policy states that the employees have no expectation of privacy and that telephones, internet use and emails may be monitored. In Georgia, an employer is permitted to monitor phones, email and internet use. However, case law is beginning to emerge that interpets when an employer may cross a line in interfering with an employee's privacy, such as where an employee uses a private email address for communications while using a company-owned computer, posting on social networking sites such as Facebook, etc.

A New Jersey case is illustrative of the challenges and evoluation of legal issues in this electronic age.  In Stengart v. Loving Care Agency, the New Jersey Supreme court held that an employer was not permitted to read e-mails between an employee and her lawyer, even though she sent them using her work computer. The case is interesting because ordinarly, since the computer belonged to the employer, it had a right to monitor activity on such computer and therefore there was no invasion of privacy.

In addition, most company policies addressing surveillance do not specifically mention whether the use of a personal email address would be prohibited or would be subject to monitoring. And, the email communication was between the employee and her attorney, which raises other issues, such as the attorney-client privilege.

Steingart was using a personal, password-protected web-based e-mail account. She also thought that the e-mails, sent to her attorney (and related to a potential employment discrimination suit against her employer) were private. When Steingart later filed a discrimination suit against her employer, the employer retrieved the emails and attempted to used them as evidence, but the court refuse to allow them into evidence.

“[The employee] plainly took steps to protect the privacy of those e-mails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account’s password on her computer. … In addition, the e-mails bear a standard hallmark of attorney-client messages. They warn the reader directly that the e-mails are personal, confidential, and may be attorney-client communications,” the court said.

The court also found that the employee “had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit. In light of the language of the policy and the attorney-client nature of the communications, her expectation of privacy was also objectively reasonable.”

So, it is important that employers clearly set forth when employees do not have an expectation of privacy and that all modes of communication made from company telephones, BlackBerrys, PDAs, email accounts or from a company-owned computer may be subject to search and that no expectation of privacy exists in using such modes of communication.

Wednesday, July 28, 2010

Break Time for Nursing Mothers under the FLSA

The US DOL has issued a fact sheet to address the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (PPACA) which took effect on March 23, 2010 as an amendment to Section 7 of the Fair Labor Standards Act (FLSA).

The amendment requires an employer to allow "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." The employer must provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk".

Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.

The law is vague as to how many and how long these breaks are permitted since the language of the statute is “reasonable break time” to express the breast milk “each time the employee has the need to do so.” These breaks are at the prerogative of the mother. The mother is not required to take these breaks.

These rest breaks need not be compensated, under the Act. However, other federal legislation requires employers to compensate employees for “rest periods of short duration running from 5 minutes to about 20 minutes…” Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies.

In addition, the “lactation room” must be a place “other than the bathroom that is shielded from view and free from intrusion from coworkers and the public.” The Department of Health and Human services states this room may be as small as 4 feet by 5 feet to comfortably accommodate a chair and table or shelf.

The area need not be a room at all either, with several employers using privacy screens in less traveled areas of the office. While a possible solution, this is definitely not the best, as it does not allow for restricted access via lock and key to prevent accidental intrusion.

Employers should locate private areas other than the bathroom that could operate as a “mother’s room.” Having a lock or some other way to prevent accidental intrusion is recommended. An unused office is a good option.

If there are multiple mothers or the room serves as a multipurpose room, a “reservation” schedule should be organized to best make use of the space and prevent conflicts.

Wednesday, June 16, 2010

Caregiver Issues in the Workplace

Be careful in handling how you treat employees who are caregivers. If a worker must miss time from work as a result of family responsibilities, the employer may be liable for discrimination.

Increasingly, lawsuits have been filed by employees over caregiving responsibilities. Unlike other types of discrimination, which employers prevail in about 90 percent of the cases, plaintiffs have succeeded in about half of these cases. Claims of this sort arise over pregnancy and maternity leave, elder care, care for sick children, care for ill spouse, for newborn care by fathers or adoptive parents, and care for a disabled family member. Most of the cases have been brought by female workers.

In addition, even if an employer settles these type of cases, settlements can be $500,000 or more, making it very expense to be sued, let alone defend, such claims. Claims may arise out of the Family & Medical Leave Act, Title VII, or other state or federal discrimination laws.

It is very important to establish an effective supervisor training program to prevent supervisors from acting with bias when employees have family responsibilities that may conflict with workplace obligations.

Tuesday, June 15, 2010

Small Business Tax Credits

The Patient Protection and Affordable Care Act (PPACA) was signed into law on March 23rd. This law gave small businesses a special tax credit for offering health insurance coverage. A small employer is eligible for the credit if it:

  1. employs less than 25 full-time employees (FTEs);
  2. pays an average wage of $50,000 or less (for tax years 2010-2013); and
  3. provides health insurance under what's called a "qualifying arrangement".

A "qualifying arrangement" is where the eligible employer makes non-elective contributions for employees who enroll in the company-provided health plan for at least 50% of the premium (on a uniform basis).

Employers with 10 or fewer FTEs who pay an average wage of $25,000 or less will receive the maximum tax credit. Those employers with between 10-25 FTEs or who pay an average wage between $25,000 and $50,000 get a reduced credit.

The credit is applied on the employer's tax return against income taxes. But, if the employer has no income tax liability, there is no credit available. The credit can also be carried back (one year) or forward (20 years). However, the credit for 2010 can only be carried forward.

The credit can be up to 50% of the employer premiums paid.