Thursday, April 19, 2012
NRLB Posting Rule Now Enjoined
As a further update to the NLRB posting rule discussed at length in this blog, on April 17th, an emergency motion for injunction pending appeal was granted by United States Court of Appeals for the District of Columbia. Essentially, this means that the posting rule will not go in effect at the end of April. The Court ruling also states that the case will be set "for oral argument on an appropriate date in September 2012", so employers will not be required to comply with the posting rule until after the hearing. A copy of the opinion can be found here.
Thursday, March 29, 2012
NLRB Decision on Appeal
As a further update, on March 5, 2012 the National Association of Manufacturers (NAM), and other plaintiffs in the U.S. District Court lawsuit against the National Labor Relations Board (NLRB) filed a Notice of Appeal to challenge the Court's ruling upholding the NLRB's right to implement the“Posting Requirement” rule. The parties are in the process of submitting briefs on the legal issues.
Friday, March 9, 2012
NLRB Poster Rule Upheld
As previously reported, on August 25, 2011 the
National Labor Relations Board (NLRB) issued a final rule called “Notification
of Employee Rights under the National Labor Relations Act”. The rule was to be
effective 75 days from publication, putting the effective date as either November
9, 2011 or November 14, 2011 (the NLRB put out a press release creating some
confusion on the effective date). The NLRB then postponed the implementation
date with a new effective date of January 31, 2012.
The effective date got postponed again when the National
Association of Manufacturers brought a challenge to the rule in a U.S. District
Court in Washington, DC. On March 2, 2012, U.S. District Court Judge Amy Berman
Jackson ruled that the NLRB has the authority to implement the rule, although the
court struck down the provision that would have made noncompliant employers
guilty of an automatic unfair labor practice charge.
A copy of the court ruling can be found here.
Tuesday, February 21, 2012
Workplace Bullying
Bullying is a prevalent problem in the workplace and can be considered a form of harassment. For instance, there have been cases that have found “sexual animus” in violation of Title VII where a male is more comfortable bullying women than men.
Very few, if any, state laws protect against bullying in the workplace. But, in the Federal context, at least one court has recognized “an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.” E.E.O.C. v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 845 (9th Cir. 2005) Hence, bullying could be a form of unlawful harassment under Title VII.
Another case held that a co-workers' sporadic use of abusive language, gender-related jokes, occasional teasing, and workplace bullying did not create hostile work environment. Vito v. Bausch & Lomb Inc., 403 F. App'x 593 (2d Cir. 2010)
According to a New York District Court, “to be actionably hostile, a workplace must be rendered hostile by workplace-altering conduct attributable to some statutorily prohibited factor (race and national origin are the relevant factors for our purposes here)—not simply incivility or nastiness. When we say that Title VII, and corresponding state and local laws, are not a civility code, See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), we are saying even if mean-spiritedness or bullying render a workplace environment abusive, there is no violation of the law unless that mean-spiritedness or bullying is rooted in race or national origin discrimination. An abusive workplace that is not discriminatory does not violate the law. For purposes of this case, harassment at the Westin that was not based on Plaintiff's race or national origin is not illegal, even if it was offensive. Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp. 2d 575, 606 (S.D.N.Y. 2010)
Finally, another New York District Court held that mere workplace bullying is not enough to give rise to an actionable hostile work environment claim; rather, there must be a showing that the conduct occurred because of the employee's membership in a protected class. De la Cruz v. City of New York, 783 F. Supp. 2d 622 (S.D.N.Y. 2011)
Very few, if any, state laws protect against bullying in the workplace. But, in the Federal context, at least one court has recognized “an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.” E.E.O.C. v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 845 (9th Cir. 2005) Hence, bullying could be a form of unlawful harassment under Title VII.
Another case held that a co-workers' sporadic use of abusive language, gender-related jokes, occasional teasing, and workplace bullying did not create hostile work environment. Vito v. Bausch & Lomb Inc., 403 F. App'x 593 (2d Cir. 2010)
According to a New York District Court, “to be actionably hostile, a workplace must be rendered hostile by workplace-altering conduct attributable to some statutorily prohibited factor (race and national origin are the relevant factors for our purposes here)—not simply incivility or nastiness. When we say that Title VII, and corresponding state and local laws, are not a civility code, See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), we are saying even if mean-spiritedness or bullying render a workplace environment abusive, there is no violation of the law unless that mean-spiritedness or bullying is rooted in race or national origin discrimination. An abusive workplace that is not discriminatory does not violate the law. For purposes of this case, harassment at the Westin that was not based on Plaintiff's race or national origin is not illegal, even if it was offensive. Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp. 2d 575, 606 (S.D.N.Y. 2010)
Finally, another New York District Court held that mere workplace bullying is not enough to give rise to an actionable hostile work environment claim; rather, there must be a showing that the conduct occurred because of the employee's membership in a protected class. De la Cruz v. City of New York, 783 F. Supp. 2d 622 (S.D.N.Y. 2011)
A best practice to avoid workplace bullying:
- Train and educate management and staff on what is/isn't appropriate behavior;
- Encourage witnesses to bullying to report the conduct to the appropriate management person without fear of retaliation or reprisal;
- Encourage victims to report bullying, which will be promptly and appropriately investigated;
- Take appropriate remedial action.
Thursday, January 19, 2012
Expired FMLA Forms Extended
You may notice
that the most current versions of the Family and Medical Leave Act (FMLA) forms
from the US Department of Labor (DOL) bear an expiration date of December 31,
2011. Of course, the deadline has
passed, yet the DOL has not issued new forms.
The DOL must
submit the new forms to the Office of Management and Budget (OMB). At first, OMB had not yet approved the new
FMLA forms, so DOL was advising that employer could still use the expired
forms. However, on Saturday, January 14,
2012, the DOL changed the expiration date for the most current forms to January
31, 2012, extending the use of the existing forms.
The most current
forms are subject to updating in part because they do not address the Genetic
Information Nondiscrimination Act (GINA) safe harbor notice employers can
provide when seeking medical information from employees or employees’ medical
providers. The safe harbor notice states that “GINA prohibits employers and
other entities covered by GINA Title II from requesting or requiring genetic
information of employees or their family members. In order to comply with this
law, we are asking that you not provide any genetic information when responding
to this request for medical information. ‘Genetic information,’ as defined by
GINA, includes an individual’s family medical history, the results of an
individual’s or family member’s genetic tests, the fact that an individual or
an individual’s family member sought or received genetic services, and genetic
information of a fetus carried by an individual or an individual’s family
member or an embryo lawfully held by an individual or family member receiving
assistive reproductive services.”
Wednesday, January 18, 2012
What's the Real Cost?
With the increase in Federal agency initiatives targeting employers, such as I-9 audits or independent contractor classification audits, employers face increased scrutiny. In addition, disgruntled current or former employees are free to lodge complaints with State and Federal agencies that may spark an investigation. In either case, an employer faces potential liability, as very few employers are capable of keeping up with the myriad of employment laws. In reality, most employers try to remain compliant with employment laws, but if the government looks hard enough, it is likely to find a violation or two.
What’s the cost of a claim? It might be fines for incomplete I-9s, unpaid taxes for misclassification of workers, overtime for unpaid wages or a need to change employment practices. But, the biggest cost is usually legal fees. It is a best practice to hire counsel when an employer faces a government investigation, employee claim or audit. Contacting counsel before reacting/responding to a claim is prudent, but it does create an expense. Moreover, a disgruntled employee is likely to have an attorney herself. When an employee has an attorney, that attorney will likely make a demand for some kind of monetary compensation for whatever wrong the employee alleges. The demand ordinarily includes the payment of that employee’s attorney’s fees.
Most Federal discrimination laws allow for the recovery of attorney’s fees to the “prevailing party”. In a case that goes to litigation, this can mean that the employee’s attorney will ask the court to award “reasonable attorney’s fees”. Typically, the employee’s will ask that the court award attorney’s fees in excess of $100,000. Even in cases that settle, employees expect their attorney’s fees to be paid by the employer, which again can add up to significant amounts of money even in a case that is considered suspect.
In a recent Federal employment discrimination case, a jury awarded an employee $110,000 in damages for the employer’s retaliation for her protesting unlawful employment practices. The employee asked the court for an award of attorney’s fees. Although the employee also brought two other unsuccessful claims (one for gender discrimination and one under the FMLA) that the jury rejected, the judge in that case awarded the employee $250,000 in attorney’s fees and expenses. Think about it: her attorney’s fees award more than doubled the amount of actual damages that the jury awarded to her. The judge reasoned that the winning claim (retaliation) was “intertwined” with her other discrimination claims such that she was entitled to all of her attorney’s fees.
What is the lesson learned from this illustrative case? Be proactive as an employer. Conduct regular training for both employees and management, including on topics such as harassment. In addition, conduct a self-audit of internal recordkeeping, policies and procedures, etc. If you find violations on your own, it’s cheaper and easier to correct with the assistance of counsel than when your company is facing a claim or audit. Finally, while not all claims are avoidable despite best efforts, if the company has taken proactive steps such as those mentioned above, it can mitigate its exposure and can reduce the number of claims. After all, paying someone else’s attorney’s fees doesn’t exactly help the bottom line.
Monday, November 7, 2011
Sexual Harassment Revisted
Sexual harassment has taken over headlines again.
First, the 20th anniversary of the Anita Hill/Clarence Thomas controversy just passed. To rewind, in 1991 when U.S. Supreme Court Justice Marshall decided to retire, then-President George Bush appointed Thomas to the U.S. Supreme Court. During the the Senate's confirmation process, Hill went public with her allegation that Thomas had sexually harassed her while both worked for the Equal Employment Opportunities Commission (EEOC).
Second, in the past few weeks, Republican presidential hopeful Herman Cain's campaign has had to answer charges that he sexually harassed several women while he was the head of the National Restaurant Association in the 1990s.
Sexual harassment has always existed in the workplace, although it receives much more attention in legal circles than it does in mainstream dialogue. By law, a company is supposed to train and educate management and staff on what harassment is, what do if a worker is a victim or witness to harassment, and how the company will handle the report or complaint. Generally, a company should have a written anti-harassment policy covering all forms of harassment, including sexual harassment. Typically, a company puts such a policy in an employee handbook or on a company intranet. The key elements of an appropriate investigation include:
First, the 20th anniversary of the Anita Hill/Clarence Thomas controversy just passed. To rewind, in 1991 when U.S. Supreme Court Justice Marshall decided to retire, then-President George Bush appointed Thomas to the U.S. Supreme Court. During the the Senate's confirmation process, Hill went public with her allegation that Thomas had sexually harassed her while both worked for the Equal Employment Opportunities Commission (EEOC).
Second, in the past few weeks, Republican presidential hopeful Herman Cain's campaign has had to answer charges that he sexually harassed several women while he was the head of the National Restaurant Association in the 1990s.
Sexual harassment has always existed in the workplace, although it receives much more attention in legal circles than it does in mainstream dialogue. By law, a company is supposed to train and educate management and staff on what harassment is, what do if a worker is a victim or witness to harassment, and how the company will handle the report or complaint. Generally, a company should have a written anti-harassment policy covering all forms of harassment, including sexual harassment. Typically, a company puts such a policy in an employee handbook or on a company intranet. The key elements of an appropriate investigation include:
- interviewing the alleged victim, harasser and any witnesses; and
- taking prompt remedial action if the allegations can be substantiated.
The law also creates a strict liability situation (i.e., no defense) in some situations, such as where a supervisor is the alleged harasser and the company has failed to provide any form of policy or guidance on how to report the conduct. A company can also be held liable where a member of management learned of alleged harassment and failed to take action to investigate or address the complaint.
A best practice is for a company to bring in outside assistance, such as legal counsel, to perform annual training on harassment and to review existing policies and procedures. During training, it is a good idea to explain the current state of the law, to review the company's anti-harassment policy and to reiterate a zero tolerance for any form of harassment.
Wednesday, October 5, 2011
NLRB Posting Deadline Now Delayed
After I posted the information on the NLRB final rule called “Notification of Employee Rights under the National Labor Relations Act”, the NLRB issued a statement on its website that:
So, the NLRB still intends to implement the rule. Curiously, the NLRB made no mention of the federal court litigation challenging the rule.
The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.
The new effective date of the rule is Jan. 31, 2012.
So, the NLRB still intends to implement the rule. Curiously, the NLRB made no mention of the federal court litigation challenging the rule.
NLRB Posting Rule and Current Status
On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date).
In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:
• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.
• Discuss terms and conditions of employment or union organizing with co-workers or a union.
• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.
The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means, however.
Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.
A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement. But for now, employers should presume that they are to comply with this rule.
In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:
• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.
• Discuss terms and conditions of employment or union organizing with co-workers or a union.
• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.
The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means, however.
Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.
A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement. But for now, employers should presume that they are to comply with this rule.
Thursday, February 24, 2011
ICE turning up the heat
Last week, the U.S. Immigration and Customs Enforcement ("ICE") announced a new initiative targeting over 1000 employers in all 50 states. This initiative will include site visits for document inspections. According to ICE, "the inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny". Essentially, this means that ICE is stepping up its efforts to audit employers. Any company is potentially subject to being audited.
Over the past few years there has been a shift from seeking to punish undocumented workers to the pursuit of employers that knowingly hire undocumented workers or who fail to comply with immigration laws. This trend began with employer audits in July 2009, when ICE announced more than 650 firms were being investigated. Another 1,000 notices were issued in November 2009, with 200 more in March and an additional 500 notices of inspection in September 2010.
A concern for employers should be ensuring the form I-9 is properly completed each time it hires a new worker. The I-9 form is used to verify that a worker is authorized to work in the U.S. and is to be completed within three days of initial hire.
If an employer fails to properly complete an I-9 or does not retain I-9s for all employees, it can be subject to ICE enforcement. Civil fines for violations range from $100 to $1,100 for each violation, and fines for substantive violations - employing an unauthorized worker - range from $375 to $16,000.
In line with the previous blog posting, conducting a self-audit to identity and correct any violations is the best way to avert violations. If your company is contacted by ICE, you should contact counsel immediately.
Over the past few years there has been a shift from seeking to punish undocumented workers to the pursuit of employers that knowingly hire undocumented workers or who fail to comply with immigration laws. This trend began with employer audits in July 2009, when ICE announced more than 650 firms were being investigated. Another 1,000 notices were issued in November 2009, with 200 more in March and an additional 500 notices of inspection in September 2010.
A concern for employers should be ensuring the form I-9 is properly completed each time it hires a new worker. The I-9 form is used to verify that a worker is authorized to work in the U.S. and is to be completed within three days of initial hire.
If an employer fails to properly complete an I-9 or does not retain I-9s for all employees, it can be subject to ICE enforcement. Civil fines for violations range from $100 to $1,100 for each violation, and fines for substantive violations - employing an unauthorized worker - range from $375 to $16,000.
In line with the previous blog posting, conducting a self-audit to identity and correct any violations is the best way to avert violations. If your company is contacted by ICE, you should contact counsel immediately.
Monday, February 21, 2011
No surprise: EEOC charges way up
The EEOC reported last month that the number of discrimination charges was at record levels. The report was not a surprise given the high unemployment rate, continued company layoffs and general economic climate.
A greater number of EEOC charges also means that it is likely that a greater number of EEO lawsuits will be filed in the courts. Now more than ever, it is imperative for employers to be cognizant of the potentail for cases of this sort being filed against them, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Our firm is recommending that employers engage in proactive self-audits, in order to seek out and eliminate vulnerability. We do not want our clients to be among the list of targeted businesses, nor do we want our clients to be found in violation of any laws, paying fines, being sued, etc. We engage in an interactive interview process, examine records and review policies and procedures to ensure that a company is compliant with the various employment laws.
A self-audit can mitigate potential penalties and fines that a government investigator might uncover. In addition, the audit process can lead to identifying weak areas and problems with record keeping and certain employment practices. In turn, the audit process can lead to the development of "best practices" and can function as a long-term cost savings, as a single lawsuit can cost over $100,000 to defend.
If your company hasn't reviewed policies and procedures in some time or hasn't had an audit, now is a good time to do so.
A greater number of EEOC charges also means that it is likely that a greater number of EEO lawsuits will be filed in the courts. Now more than ever, it is imperative for employers to be cognizant of the potentail for cases of this sort being filed against them, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Our firm is recommending that employers engage in proactive self-audits, in order to seek out and eliminate vulnerability. We do not want our clients to be among the list of targeted businesses, nor do we want our clients to be found in violation of any laws, paying fines, being sued, etc. We engage in an interactive interview process, examine records and review policies and procedures to ensure that a company is compliant with the various employment laws.
A self-audit can mitigate potential penalties and fines that a government investigator might uncover. In addition, the audit process can lead to identifying weak areas and problems with record keeping and certain employment practices. In turn, the audit process can lead to the development of "best practices" and can function as a long-term cost savings, as a single lawsuit can cost over $100,000 to defend.
If your company hasn't reviewed policies and procedures in some time or hasn't had an audit, now is a good time to do so.
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.
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.
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.
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.
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.
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:
- employs less than 25 full-time employees (FTEs);
- pays an average wage of $50,000 or less (for tax years 2010-2013); and
- 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.
Tuesday, December 22, 2009
Jobless Rate Down? Good News for the Economy?
Bloomberg News has reported that the unemployment rate decreased in 36 states in the month of November. The states with the biggest decline in unemployment were Kentucky (from 11.3% down to 10.6%) and Connecticut (from 8.8% to 8.2%).
However, some states have bucked the trend, such as Georgia, where the U.S. DOL reports the jobless rate increased in November to 10.2%,, up one-tenth of a percent.
The overall U.S. unemployment rate is close to a 26-year high, with economists forecasting that the rate will exceed 10% through June 2010 (in November it fell from 10.2% to 10% nationwide). Ten states currently have an unemployment rate of 10% or more, which experts say will continue to stagnate consumer spending.
With 7.2 million jobs lost during this current economic downturn, the market for labor should be strong for employers who take the time to carefully screen and scrutinize candidates for jobs. In addition, the vast labor pool might serve as an incentive for employees to perform their very best, knowing that many qualified individuals are available for work as replacements.
However, some states have bucked the trend, such as Georgia, where the U.S. DOL reports the jobless rate increased in November to 10.2%,, up one-tenth of a percent.
The overall U.S. unemployment rate is close to a 26-year high, with economists forecasting that the rate will exceed 10% through June 2010 (in November it fell from 10.2% to 10% nationwide). Ten states currently have an unemployment rate of 10% or more, which experts say will continue to stagnate consumer spending.
With 7.2 million jobs lost during this current economic downturn, the market for labor should be strong for employers who take the time to carefully screen and scrutinize candidates for jobs. In addition, the vast labor pool might serve as an incentive for employees to perform their very best, knowing that many qualified individuals are available for work as replacements.
Monday, December 21, 2009
EEOC To Get More Resources
Employers beware: the EEOC is getting more ammunition to process and move along backlogged cases - $23 million worth.
The 2010 version of the omnibus appropriations bill, first passed in the House on December 10th and then the Senate on December 13th, would provide $23 million in funding to help the EEOC resolve more than 70,000 backlogged employment discrimination charges. The EEOC has reported that it experienced a 35% increase in the volume of backlogged cases, from 54,970 in 2007 to 73,951 in 2008. Combined with a record number of new discrimination complaints (95,402 - a 20% increase), the EEOC, with its current financing, is ill-equipped to meet the current volume of current and backlogged charges. At the same time, EEOC staffing has fallen 25% over the past decade.
So, while the EEOC may have taken several years to address and resolve complaints, expect a more expedited process in the future.
The 2010 version of the omnibus appropriations bill, first passed in the House on December 10th and then the Senate on December 13th, would provide $23 million in funding to help the EEOC resolve more than 70,000 backlogged employment discrimination charges. The EEOC has reported that it experienced a 35% increase in the volume of backlogged cases, from 54,970 in 2007 to 73,951 in 2008. Combined with a record number of new discrimination complaints (95,402 - a 20% increase), the EEOC, with its current financing, is ill-equipped to meet the current volume of current and backlogged charges. At the same time, EEOC staffing has fallen 25% over the past decade.
So, while the EEOC may have taken several years to address and resolve complaints, expect a more expedited process in the future.
Monday, July 27, 2009
Federal Minimum Wage Increased
The Federal minimum wage increased on July 23rd from $6.55 per hour to $7.25 per hour. This wage increase is proscribed by 2007 amendments to the Fair Labor Standards Act. While the increase brings good news to workers making minimum wage, it also creates an added burden on business owners who must now pay higher wages in a struggling economy. Some small business asked Congress to defer the wage increase to some time after the U.S. recovers from the recession.
As a reminder, employers must update their labor law posters to reflect the new wage increase.
Interestingly, even with the increase to $7.25 per hour, a full-time employee making minimum wage only earns about $15,080 per year, hardly enough to live on.
Thirty states, including Georgia, have had to raise their minimum wage as well (states can have a higher minimum wage than the Federal, but not less). Nineteen states already have minimum wages laws that mandate a higher minimum wage than the Federal.
Some economists are predicting that the increase in minimum wage will have a negative effect on the consumer, as many businesses are expected to raise prices to offset increased labor costs.
As a reminder, employers must update their labor law posters to reflect the new wage increase.
Interestingly, even with the increase to $7.25 per hour, a full-time employee making minimum wage only earns about $15,080 per year, hardly enough to live on.
Thirty states, including Georgia, have had to raise their minimum wage as well (states can have a higher minimum wage than the Federal, but not less). Nineteen states already have minimum wages laws that mandate a higher minimum wage than the Federal.
Some economists are predicting that the increase in minimum wage will have a negative effect on the consumer, as many businesses are expected to raise prices to offset increased labor costs.
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