Employment Law Update

TIP OF THE DAY – WHAT “RIGHT TO WORK” REALLY MEANS

2012-02-09T16:49:00.000-05:00

“But Florida is a right to work state” is a phrase frequently uttered by employees protesting everything from a termination to the enforcement of a noncompete. The common misconception is that “right to work” means an employee cannot be fired without cause, and that a company cannot restrict a former employee from going to work for a competitor. Neither statement is true.

In fact, “right to work” is a union term. A “right to work” state, such as Florida, is a state where an individual has the right to apply for and accept employment at a unionized company regardless of whether that individual has a union card. Once hired, the employee has the option of either joining the union, or not joining the union. By contrast, a “closed shop” is a workplace where, once the employees have voted in a union, all employees must join – even those who voted against having a union – and anyone applying for a job must join the union as a condition of employment.

Florida is a “right to work” state. That means an individual has a right to accept a job and go to work regardless of whether they choose to join the union and pay union dues. Florida is also an “employment at will” state, which means that a company can fire an employee at any time for any reason or for no reason at all (so long as the firing is not based on unlawful discrimination or retaliation for protected activity, or in violation of a written employment contract). And Florida has one of the most employer-friendly noncompete statutes in the country, allowing a company to protect its legitimate business interests by restricting employees from going to work for a competitor.

Unfortunately, misunderstanding of the term “right to work” often leads to feelings of entitlement by employees, and a false sense of security in the workplace.

TIP OF THE DAY – WEED OUT OLD POLICIES

2012-01-27T17:45:00.004-05:00

The start of a new year is an excellent time to pull your employee handbook off the shelf and make sure the policies are up to date legally, and that they accurately reflect your practices in the workplace.

Potential problems include:

Policies that violate state or federal law (like a rule against bringing firearms on company property that runs afoul of Florida’s 2008 Right to Keep and Bear Arms in Motor Vehicles Act, a smoking policy that violates the Florida Clean Indoor Air Act, or a rule that violates the Fair Labor Standards Act by declaring that employees don’t receive overtime pay unless the extra work hours were approved in advance);
Policies that are rarely enforced (lack of uniformity in enforcement can lead to claims that you discriminated or retaliated against a particular employee by selectively enforcing a rule);
Policies that are outdated (does your handbook include a dress code that looks like it was written in 1980?);
Policies that are ambiguous (leading to misunderstandings, morale issues, and disgruntled former employees who are more likely to file a legal action against the company); and
Policies that are simply missing (often-overlooked policies include legal rights of reservists and employees returning from active duty in the military, job protection during jury duty, and mandatory reporting procedures to be followed if an employee witnesses the sexual harassment of another employee or observes an illegal practice).

Make sure all employees have signed an acknowledgment that they have read, understand, and agree to follow the rules in your employee handbook. And make sure any third parties dealing with employee issues have been given instructions that are consistent with the policies in your handbook (for example, if you use an outside payroll company, make sure they know if any portion of PTO should be carried over from last year, or if all balances are cleared effective January 1).

Don’t wait until a problem arises. Take time now to review your employee handbook. It’s your best defense against misunderstandings and claims of unfair treatment that often lead to costly litigation.

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EMPLOYER ALERT – SOME FMLA RIGHTS ACCRUE PRIOR TO ELIGIBILITY FOR LEAVE

2012-01-25T15:07:00.001-05:00

Can an employee who has worked for a company less than one year sue the company for violating the Family and Medical Leave Act (“FMLA”)? The answer, according to January 10, 2012 decision of the federal Eleventh Circuit Court of Appeals, is yes.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff, Kathryn Pereda, had been employed by Brookdale for eight months when she told her employer that she was pregnant and would be requesting FMLA leave upon the birth of her child. By the time of her expected delivery date, she would have been employed by the company for 13 months, thereby satisfying the one-year of employment requirement for leave eligibility under the FMLA.

After 11 months of employment, however, she was terminated, allegedly to prevent her from becoming eligible for leave. She sued in federal district court in Miami, claiming that her employer violated the FMLA by interfering with her right to leave and by retaliating against her for requesting FMLA leave. The district court dismissed the case, stating that she had no right to bring a suit under the FMLA because at the time the events occurred, she was not an eligible employee under the FMLA since: (1) she had not worked for the company for more than one year; and (2) the triggering event that would entitle her to leave – the birth of her child – had not yet occurred.

On appeal, the Eleventh Circuit reversed that decision and remanded the case to the trial court for further proceedings. Recognizing that Pereda had a right to file a lawsuit under the FMLA even though she was not yet eligible to take leave on the date she was fired, the court stated as follows: “We are simply holding that a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.”

In the underlying case, the plaintiff claimed that prior to advising her employer that she was pregnant and would be requesting FMLA leave, Pereda was considered “a top employee.” Afterward, according to the allegations in the lawsuit, her employer began harassing her “and denigrating her job performance and placed her on a performance improvement plan with unattainable goals.” She was then written up for excessive absenteeism (absences for medical appointments that she claimed had been authorized by her supervisor), and was fired during her 11^th month of employment. Based upon the Eleventh Circuit’s ruling, this case will now proceed to trial, and a jury will determine whether or not the employer in fact did interfere with Pereda’s FMLA rights, and fired her in retaliation for her intention to take leave.

The best approach for employers is to review carefully any sudden change in performance evaluations for an employee who has provided notice of intent to take leave under the FMLA, regardless of whether the employee is eligible for FMLA at the time the request is made. If there has been a decline in performance, make sure it is objectively documented, and be certain that the supervisor is not biased by the fact that an employee who has been with the company less than one year is planning to take up to 12 weeks leave as soon as they become FMLA-eligible.

www.towzey.com

IN THE NEWS - CHURCH SCHOOL’S RIGHT TO FIRE “CALLED” TEACHER UPHELD OVER CLAIMS OF DISCRIMINATION UNDER ADA

2012-01-19T15:12:00.001-05:00

In a January 11, 2012 ruling, the U.S. Supreme Court held that under the “ministerial exception” to employment discrimination laws, grounded in the First Amendment, a “called” teacher fired by a Lutheran school could not challenge her termination as a violation of the American With Disabilities Act (“the ADA”).

The Plaintiff, Cheryl Perich, was employed as a teacher at a school run by Hosanna-Tabor Evangelical Lutheran Church and School, a member of the Lutheran Church Missouri Synod. Under the Synod’s rules, there are two types of teachers: “called” teachers and “lay” teachers. Although both types of teachers perform basically the same duties, called teachers must complete a course of theoretical study at a Lutheran college, pass an oral examination by a faculty committee, and be accepted by the church’s congregation as a called teacher. The teacher then receives the formal title “Minister of Religion, Commissioned.” Lay teachers are only hired by schools in the Synod when called teachers are not available.

Perich became a called teacher, and was employed by Hosanna-Tabor for a number of years. She then was diagnosed with narcolepsy, and took a medical leave of absence. When her physician cleared her to return to work, however, her employer advised her that a lay teacher had already been hired to finish out the year, and that she could not return at this time. The congregation of the church voted to offer her a “peaceful release” from her call, which included paying a portion of her health insurance premiums in return for her resignation. Perich refused to resign. She hired an attorney and demanded that she be reinstated in her position. Hosanna-Tabor responded by telling her she would likely be fired if she wouldn’t resign. She said she intended to “assert her legal rights,” and was terminated immediately thereafter.

The EEOC filed a lawsuit on behalf of Perich claiming that she had been wrongly terminated in violation of the ADA based on her disability, and in retaliation for exercising her rights under the ADA. Hosanna-Tabor argued that under the First Amendment the courts could not interfere with the employment relationship between a religious institution and one of its ministers.

The First Amendment provides, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” According to Hosanna-Tabor, Perich had been fired for a religious reason – namely, her threat to sue the church, which was inconsistent with the Synod’s belief that disputes between Christians should be resolved internally.

In its ruling, the Supreme Court did not focus on whether the decision to terminate Perich was based on the purported violation of the Synod’s alleged religious tenet of resolving disputes internally, or whether she was terminated due to her disability. Rather, the Court held that analysis irrelevant, because “[r]equring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By employing an unwanted minister, the state infringes the Free Exercise Clause [of the First Amendment], which protects a religious group’s right to shape it’s own faith and mission through it’s appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause [of the First Amendment], which prohibits government involvement in such ecclesiastical decisions.”

The Supreme Court concluded: “The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit.” In reaching it’s decision, the Court rejected arguments that term “minister” should be more narrowly defined to include only the head of a religious organization.

The interesting thing about this case is that it did not involve a direct conflict between discrimination law and church doctrine. It was not, for example, a challenge to the right of the Catholic church or an Orthodox Jewish seminary to ordain only men as priests and rabbis, respectively. Nor did it involve the right of a religious school to hire only individuals of the same faith. Rather, the factual circumstances in this case centered on whether a disabled employee could be refused reinstatement and ultimately fired under circumstances which, in the secular world, would constitute a violation of the ADA.

Indeed, the EEOC argued in this case that such a decision would open to door to widespread employment discrimination, including possible violations of everything from Whistleblower statutes protecting those who expose illegal activity, to child labor laws.

The Court dismissed those arguments as unduly alarmist, noting “[w]e express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”

TIP OF THE DAY – RECENT COLLEGE GRADS ATTRACTED TO SOCIAL MEDIA AND OTHER WORKPLACE BENEFITS

2012-01-16T15:35:00.001-05:00

A recent survey of college students and recent college graduates conducted by Cisco, concluded that young professionals are looking beyond salary when they enter the workforce. See Cisco news release at: http://www.cisco.com/en/US/solutions/ns341/ns525/ns537/ns705/ns1120/cisco_connected_world_technology_report_chapter2_press_release.pdf

This is good news for companies that are not in a position to offer top salaries to recruit new talent. According to the Cisco study, other factors that heavily influence whether young professionals accept a position with a company – and choose to remain there – include:

The ability to use social media in the workplace
Flexibility in choosing mobile devices (iPhone, Blackberry, etc.) to use for work
Opportunity to work remotely some of the time, accessing work computers from their mobile device or home computer
Ability to blend business use and personal use of company-issued devices like smartphones, iPad, etc.

Make sure, however, that use of increased flexibility in these areas to recruit and retain employees is still tempered by reasonable policies governing the use of social media and mobile devices.

EMPLOYER ALERT – “CAT’S PAW” THEORY OF DISCRIMINTION CAN TAINT IMPARTIAL FIRING DECISION

2012-01-09T13:19:00.001-05:00

The phrase ‘garbage in, garbage out’ doesn’t just apply to the computer business, where it’s long been recognized that if you input faulty data into a computer program, it will process that information and yield a predictably faulty result. Likewise, an impartial decision-maker can still subject your company to liability for violation of one of the federal employment discrimination laws if their hiring or firing decision was based on “facts” or “opinions” that were tainted by another employee’s discriminatory intent.

A March 2011 decision of the U.S. Supreme Court, Staub v. Proctor Hospital, describes this as the “cat’s paw” theory of discrimination, and in the nine months since that decision was rendered it has been relied upon by federal courts throughout the country in allowing discrimination clams to move forward even though the actual decision-maker was admittedly unbiased. In a nutshell, the “cat’s paw” theory allows a plaintiff to prove his or her case by demonstrating that the otherwise impartial decision was tainted by discriminatory animus on the part of the plaintiff’s supervisor. The name is derived from a fable in which a monkey persuades a cat to reach into the fire to retrieve chestnuts. The cat burns its paws, and the money makes off with the chestnuts, unscathed.

In Staub, a case arising under USERRA (the federal law that protects members of the armed forces from discrimination in employment based on their military service), a supervisor fabricated a disciplinary action, based on the supervisor’s animosity toward the military obligations of the employee, who was a member of the U.S. Army Reserve. The employee’s file was later reviewed by an HR manager, who made the decision to terminate the employee without researching the underlying merits of the disciplinary action. The employee, Straub, filed a grievance about the dismissal, claiming that his boss had fabricated the disciplinary action because he was angry that Straub’s military reservist obligations interfered with scheduling in the department. The HR manager, however, failed to investigate that allegation, and refused to reconsider the termination of employment. A jury found in favor of Straub, but the case was reversed on appeal due to the lack of any intentional discrimination by the HR manager who made the firing decision. Straub then appealed to the Supreme Court, and won.

The Supreme Court held that the HR manager’s lack of intent to discriminate – and lack of knowledge that the underlying disciplinary action was contrived – did not insulate the company from liability for wrongful termination in violation of USERRA.

The decision is Straub is not limited to USERRA cases. Rather, the “cat’s paw” approach it articulates has been used uniformly by federal courts in all types of employment discrimination cases.

The best approach for an employer is not to make a hasty termination decision. If you are the decision maker and you don’t have personal knowledge of the alleged misconduct by the employee, you should investigate the facts before making the decision to terminate. Make sure your disciplinary forms provide a space for employee comments on any write-up, and that there is an internal reporting procedure for employees to follow if they believe they are the victims of discrimination.

TIP OF THE DAY – THE DO’S AND DON’T’S OF PERFORMANCE REVIEWS

2012-01-03T15:52:00.000-05:00

Effective performance reviews are an excellent tool in rewarding good performance, correcting problems, and shielding your business from potential liability. Unfortunately, if not done correctly, they can be your worst enemy in litigation with an employee who claims to have been wrongly discharged in violation of one of the federal, state or local employment discrimination laws.

Follow these tips to ensure that performance reviews are done properly:

DO conduct performance reviews on a regular basis.

DON’T wait until there is a problem with an employee before giving them their first performance review in five years.

DO include positive comments. Employees who feel they’ve been recognized and appreciated for their positive contributions to the workplace are more likely to be receptive to addressing areas that need improvement.

DON’T write a glowing review for an employee who is doing a bad job. If you later fire that employee for performance deficiencies, a performance review that said nothing but good things about their performance could be used against you if the employee claims the reason stated for termination was a “pretext” for unlawful discrimination or retaliation for protected activity.

DO counsel your employees on an ongoing basis about areas that need improvement.

DON’T make the performance review be the first time an employee has ever heard about an issue. For example, an employee who is habitually tardy should be counseled about that in between reviews. Then the performance review can point out that being on time is a continuing problem, despite previous warnings.

DO investigate any sudden radical change in an employee’s performance review prepared by their supervisor. Find out if the employee made an internal complaint or if any unusual incident occurred shortly before the performance review was conducted. Discuss the performance issues with the supervisor and the employee (separately), so you can be assured there is no claim of retaliation. Draft a memo to the file documenting the conversation.

DON’T just ignore a performance review that is completely inconsistent with all prior reviews for this employee.

DO stick to performance issues and avoid personal comments or any reference to health issues or personal problems outside the workplace when completing a review.

DON’T tie performance deficiencies to use of sick leave, FMLA, or membership in a protected class. For example, don’t criticize an employee for “being sick all the time” or “missing a deadline due to time off for surgery.” Don’t accuse an older employee of “slowing down” or use other phrases that might be construed as age bias.

TIP OF THE DAY – FIVE REASONS NOT TO MEDIATE AN EEOC CHARGE

2011-12-27T14:02:00.006-05:00

EEOC charges are on the rise, filed by former employees hoping for a large settlement check and current employees trying to reverse a personnel action and avoid being fired. Of course there are cases where employees actually were wrongly discriminated against, but many, many claims are completely without merit. When an employee loses their job, it’s human nature to look for someone or something to blame; people rarely look in the mirror and admit, “I deserved to be fired.” Instead, some are quick to assume it must have been discrimination, while others feel they are simply “entitled” to whatever they can force the employer to pay.

As an employer, once you are notified that a charge has been filed against your company, the EEOC will invite you to participate in pre-investigation mediation. Here are five reasons to think twice before agreeing.

Show me the money. Your willingness to participate in an EEOC mediation signals the employee that you are bringing your check book and there will be money on the table. The employee is dreaming of huge verdicts they’ve read about in the press (and they don’t realize most of those awards were either reversed on appeal or significantly reduced by the trial judge). If you have no intention of paying a settlement to the employee, don’t go to the mediation. You will not convince them that they have not been wronged. Instead, they will be disappointed that that they are not leaving with a large check, and your logical and well-reasoned argument explaining that the company did nothing wrong will only inflame them and make them more likely to press the case forward.
People are watching. Yes, EEOC mediation settlements are supposed to be confidential. But when you pay money to an employee to settle a claim, word gets out. You do not want everyone whom you fire or even discipline to think they can get easy money quickly by filing an EEOC charge and going to mediation.
Validation. Even if you don’t pay the employee a settlement at mediation, your mere participation validates that there is something to the claim. This encourages the employee to press forward, because you have now made it an interactive process. The better strategy is to take a hard line now; you can always reevaluate later whether this is a claim that should be settled.
Most employees won’t file a lawsuit. Filing an EEOC charge is easy. The EEOC even does the paperwork for the employee. There are no filing fees and they don’t need a lawyer. But the majority of employees who file EEOC charges won’t end up suing the company. There are several reasons for this. First, most individuals can’t afford to hire an attorney and pay an hourly fee. They will have to find a lawyer who will take their case on contingency. And most contingency lawyers are reluctant to take a case that doesn’t have a strong settlement value, particularly against a company that has a reputation for not settling claims. If you are aggressive in preparing a position statement with documents and affidavits during the EEOC investigation process, your chances are good that the EEOC will find in your favor. A decision from the EEOC that there was insufficient evidence of discrimination makes it even more unlikely a plaintiff’s lawyer will be interested in taking the case. Once the EEOC issues its determination and notice of right to sue, the employee only has 90 days to file a lawsuit, or the claim is gone forever.
Time is on your side. EEOC investigations take a long time. Although the employee has the right to request a right to sue letter after 180 days have passed, most don’t and some claims languish for two years or more at the agency. If you’ve done your job with the position statement, you already have all the documents and sworn witness statements you need. The employee, on the other hand, will be relying on former coworkers to testify and remember events from several years ago, by the time a lawsuit would ever be filed. And meanwhile, the employee has likely moved on with their life, and their commitment to pursing the matter tends to lessen over time.

So, when should you mediate? There are exceptions to every rule, and there are exceptions to the general strategy of avoiding pre-suit mediation of an EEOC charge. Here are some examples of when it does make sense to go to mediation:

When it can only get worse. Sometimes there just isn’t any way to avoid liability. You’ve conducted an investigation, and discovered to your dismay that the employee in question was indeed sexually harassed by her supervisor, that she followed your HR policy regarding complaints, and that for whatever reason nothing was done to correct the situation. The more you look into it, the worse it gets, as you discover that after complaining to HR she was retaliated against by her supervisor. Her file documents that she had exceptional performance ratings prior to the complaint, and lousy ones afterwards, ultimately leading to her termination. Your best option is to go to the EEOC mediation, and resolve the case earlier rather than later. At this juncture, you can explore other options, including firing the harasser and reinstating the employee. Alternatively, you can offer severance, a positive reference and some outplacement services in exchange for a release – if the employee was recently fired, she is likely to be more optimistic about her future job prospects now than she might be six months or 12 months down the road when she’s become frustrated by a challenging job market, and her unemployment benefits are running out. She's likely to be much more reasonable now about a settlement number than she would be after months have gone by and she's applied for 150 jobs and still not been hired. And with facts like these, if you don’t settle, she’ll have no trouble obtaining counsel to file a lawsuit, and you could end up paying a substantial money judgment plus both your attorney’s fees and her attorney’s fees.
When the situation can be salvaged. You may have a policy or practice that is in violation of law and can easily be corrected. If, for example, a disabled current employee is requesting a reasonable accommodation, this is something that might be able to be worked out in mediation and does not involve you writing a settlement check. In a perfect world, an issue like that would have been resolved internally, but it doesn’t always work that way, particularly since the recent amendments to the ADA went into effect. Many managers do not understand what is and is not a disability under the new regulations, and taking a fresh, objective look at the situation across the mediation table could mean the difference between clearing up a misunderstanding, and defending a costly lawsuit.

TIP OF THE DAY – HOW TO HAVE A GREAT HOLIDAY OFFICE PARTY AND NOT GET SUED

2011-12-21T13:13:00.008-05:00

Holiday office parties are a great morale booster but can also get your company in hot water. Follow these tips for a fun event that doesn’t unnecessarily expose you to a risk of liability.

(1) Social Host Liability. The problem: If an employee leaving your function is involved in a DUI causing bodily injury or property damage, you could be held liable. The solution: Limit alcohol consumption. Suggestions include having the event earlier in the day, offering lots of alternative non-alcoholic beverages, provide food, don’t have an unlimited open bar. Be alert, and if an employee seems to be under the influence, have someone drive them home.

(2) Sexual Harassment. The problem: People speak more freely in an informal, party atmosphere, especially if alcohol is served. “Jokes” get out of hand, and can be misinterpreted. The solution: Remind all supervisors prior to the party that inappropriate comments and interactions with employees will not be tolerated. If you or another manager sees or overhears something inappropriate, step in immediately to diffuse the situation (ignoring it gives the appearance that you are condoning it). Suggestions include making the party a family event (if spouses, significant others, and kids are in attendance, inappropriate behavior is less likely to occur), plan appropriate activities, have a definite beginning and ending to the festivities, and limit alcohol consumption.

(3) Discrimination. The problem: Employees with different religious beliefs may feel left out, and later use the party as an example of the company’s intolerance for their belief system. In addition, well-meaning gift spoofs can backfire when they focus on stereotypes about age, race, religion, disability or gender. The solution. Be inclusive. Suggestions include delivering a speech to employees that mentions a variety of religious and ethnic holidays and wishes everyone well, in printed announcements refer to the event as a “Holiday Party” rather than a “Christmas Party” or “Hanukkah Party” or “Kwanza Party,” etc., include decorations that are representative of different traditions, and solicit employee suggestions in planning the event. If you receive a complaint, take it seriously and listen to what the employee has to say. Discourage “gag” gifts that could be perceived as offensive.

The best advice is for you to be a good role model. You set the tone for how employees are expected to conduct themselves at an office party, and they will be looking to you to take the lead.

EMPLOYER ALERT – DOL AND IRS CRACK DOWN ON INDEPENDENT CONTRACTOR VS EMPLOYEE CLASSIFICATIONS

2011-12-16T18:15:00.003-05:00

The IRS and the Department of Labor (DOL) are working together conducting random audits of companies looking for workers who have been improperly classified as independent contractors instead of employees. In 2011, the DOL hired an additional 250 investigators to conduct audits.

The IRS goal is to raise additional tax dollars, since employers do not withhold income taxes or FICA from independent contractors. The DOL goal is to require companies to pay improperly classified workers back pay for all overtime that would have been due if they were classified as employees. The consequence can be economically disastrous for your business, in terms of back overtime, liquidated damages, penalties, and tax liability. In addition, the improper classification of workers as independent contractors instead of employees has implications in unemployment compensation and workers compensation.

One of the red flags to both agencies is an employer who reclassified a group of workers during the year, resulting in issuance of both a W-2 and a 1099 to the same worker for performing, basically, the same services. If your company has made a decision to reclassify workers as a cost-saving measure, make sure those workers can legitimately be hired as independent contractors under the law, or the cost-cutting effort may backfire.

Both the IRS and the DOL look at the following factors.

How closely do you supervise and instruct the worker? Workers who must comply with your instructions as to when, where, and how they work are more likely to be employees than independent contractors. It’s the difference between telling them what to do, and telling them how to do it.

Do you control the hours of work? Although there are situations when the work by its nature must be performed at a certain time or in a certain sequence, in general workers for whom you establish set hours of work are more likely employees. In contrast, independent contractors generally can set their own work hours. Also, an independent contractor usually doesn’t work for you full-time, although there are exceptions.

Do you provide training or did the worker obtain specialized knowledge from outside your business? The more training your workers receive from you, the more likely it is that they're employees. The underlying concept here is that independent contractors are supposed to know how to do their work and, thus, shouldn't require training from the purchasers of their services.

Where does the worker fit in your organization? The more important the worker’s services are to your business's success, the more likely it is that they're employees.

Does the worker need to perform the services personally? Workers who must personally perform the services for which you're paying are more likely employees. In contrast, independent contractors usually have the right to substitute other people's services for their own in fulfilling their contracts. Also, workers who are not in charge of hiring, supervising, and paying their own assistants are more likely employees.

Is the worker performing a specific project with an expected end-date, or do they provide continuing services? Workers who perform work for you for significant periods of time or at recurring intervals are more likely employees. Someone brought onboard for a particular project is more likely to be an independent contractor.

Where is the work performed? Workers who work at your premises or at a place you designate are more likely employees. In contrast, independent contractors usually have their own place of business where they can do their work for you.

Is the worker paid by the hour or by the job? Although there are exceptions, most independent contractors are paid by the job, not by the hour.

Who pays for expenses? Workers whose business and travel expenses are paid by the company are more likely employees. In contrast, independent contractors are usually expected to cover their own overhead expenses, as they factor it into their total charge as a cost of doing business.

Are you providing the tools and equipment? Workers whose tools, materials, and other equipment you furnish are more likely employees. Independent contractors, by contrast, usually have their own tools and equipment.

Does the worker have an investment in his or her business and the opportunity for profit or loss? The greater the worker’s investment in the facilities and equipment they use in performing their services, the more likely it is that they're independent contractors. Similarly, the greater the risk the worker takes of either making a profit of suffering a loss in rendering their services, the more likely it is that they're independent contractors.

Do they work for more than one client? The more businesses for which your workers perform services at the same time, the more likely it is that they're independent contractors. Workers who hold their services out to the general public (for example, through business cards, advertisements, and promotional items) are more likely independent contractors. By contrast, an individual who works exclusively for your company is more likely an employee.

Are there restrictions on your right to fire the worker, or the worker’s right to quit? Workers whom you can fire at any time are more likely employees. In contrast, your right to terminate an independent contractor is generally limited by specific contract terms. Likewise, an independent contractor who has signed a contract to perform a specific project for your company will be in breach of contract if they abandon the project. An employee, however, is generally free to resign at any time.

Remember, no single one of these factors is determinative. The DOL and the IRS look at the combination of factors to determine whether the relationship is an employment relationship or an independent contractor relationship. How these factors are weighed can also vary based upon the specific type of business or industry.

IN THE NEWS – FEDERAL COURT RULES SEVERE OBESITY PROTECTED UNDER ADA

2011-12-09T12:38:00.002-05:00

Firing an employee because they are severely overweight violates the Americans With Disabilities Act Amendment Act of 2009 (“the ADAAA”), according to a decision by a federal district court in Louisiana on December 6, 2011, denying an employer’s motion for summary judgment. The EEOC brought the case on behalf of Lisa Harrison, an employee who weighed 400 lbs when she was hired and weighed 527 lbs when she was fired, allegedly because her employer thought her excessive weight limited her ability to perform her job.

This is one of only a few court cases to tackle this issue since the ADA was amended in 2009, expanding the definition of an impairment that constitutes a disability. Under the new regulations, the definition of impairment does not include weight that is within a “normal range” unless it is the result of a physiological disorder. The EEOC (which investigates employment discrimination claims), states in its compliance manual for employers that although “being overweight, in and of itself, is not generally an impairment, . . . severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” The EEOC has also noted that other recognized disabilities, such as diabetes, hypertension or thyroid disorders, often go hand-in-hand with obesity.

Recently, the EEOC filed another obesity case in federal court in Texas against BAE Systems, Inc., alleging that the company fired employee Ronald Kratz, II, from his job as a material handler because he was morbidly obese. No ruling has been entered yet in that case.

It seems clear, however, that we can expect a growing number of obesity discrimination cases to be filed under the ADAAA. Some cases will involve individuals who clearly fit the definition of severe obesity. Whether the law applies in other cases, where the employee is simply overweight, will hinge on whether or not the employee’s weight is a result of an underlying physiological disorder. And still others will involve “perceived disability” – the law also protects individuals who, although they are not actually disabled, are discriminated against by their employer because their employer regarded them as having a disability. Accordingly, if a supervisor assumes that an overweight person is substantially limited in the ability to perform their job and discriminates against the employee on that basis, your company could be liable under the ADAAA regardless of whether the employee’s weight problem actually was severe enough to qualify as a disability.

More than one-third (33.8%) of Americans are obese, according to a study released by the Center for Disease Control (“CDC”) this year. And the number has been increasing steadily over the past 20 years. See http://www.cdc.gov/obesity/data/trends.html. The CDC measures obesity using height and weight to calculate a person’s body mass index (“BMI”). An adult with a BMI over 25 is considered overweight. If their BMI is 30 or higher they are considered obese. For example, an individual who is 5’9” and weighs 169 lbs. is overweight, according to the CDC. And if they weight 203 lbs. or more, they are obese. See http://www.cdc.gov/obesity/defining.html.

What does this mean for your business? It means roughly one-third of your workforce (and one-third of your job applicants) fall into the definition of obese. Those individuals may or may not be actually considered disabled under the ADAAA. But remember – even if they are not severely obese, they still may be protected under one of two other ADAAA qualifiers: (1) if their excessive weight is a result of a physiological disorder (not something you’ll be inquiring about during a job interview); or (2) if you perceive them to have a weight-based disability.

The bottom line: although weight is not a “protected class” like race, sex, age, national origin and religion under Title VII, it is being increasingly recognized by the courts as a disability under the ADAAA, a law which prohibits discrimination against individuals based on their disability. And the EEOC has made it abundantly clear that it views obesity as the new frontier for enforcement.

The best practice is to make sure all hiring and supervisory personnel in your organization are instructed not to make any employment decisions based on an individual’s weight or any stereotypes about overweight workers. Of course, employees must be able to perform the actual physical requirements of the job, but you should steer clear of making assumptions about an individual’s ability based on obesity. And employee requests for reasonable accommodations based on weight should be taken seriously.

EMPLOYER ALERT – FLORIDA MINIMUM WAGE INCREASES JANUARY 1

2011-12-08T14:18:00.002-05:00

Effective January 1, 2012, Florida's minimum wage for non-tipped employees will increase to $7.67 an hour, a 4.9 percent increase from the $7.31 an hour minimum for 2011, according to an announcement by the Florida Department of Economic Opportunity. Wages for tipped employees will increase to $4.65 an hour.

This increase is based on the increase of the federal Consumer Price Index for urban wage workers in the southeastern United States.

In accordance with a 2004 constitutional amendment, Florida automatically raises the minimum wage rates based on the CPI. The federal minimum wage (currently $7.25 an hour) cannot be raised except by an act of Congress.

Florida employers must pay the higher, Florida minimum wage rate.

EMPLOYER ALERT – FACEBOOK FIRINGS COULD PROMPT LEGAL ACTION

2011-12-02T20:39:00.000-05:00

Companies who fire employees for making negative comments about their jobs on a social media site could end up in hot water with the NLRB – even if the company’s employees are not unionized.

The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act, a federal law pertaining primarily to union activity, which has been around since the 1930s. In the past, courts have held that, to a limited extent, this law also protects non-union employees, in areas such as the right to have another employee present during an employee disciplinary meeting (these are called “Weingarten Rights”), and the protection of “concerted activity” – i.e. the right of employees to meet and discuss issues such as wages, benefits and workplace safety, and to approach management to discuss those issues.

Recently, the term “concerted activity” has been applied to social network postings by employees, and civil complaints have been filed and are pending before the NLRB against companies that fired employees for positing certain comments. Not all comments are protected – they have to fall within traditional definitions of concerted activity, qualifying as a discussion between employees regarding protected activities. A recent article appearing in the Chicago Tribune provides details and insights into this evolving issue. See: http://www.chicagotribune.com/business/breaking/chi-workers-fired-over-facebook-twitter-posts-turn-to-1935-labor-law-20111202,0,6526315.story

The best approach is to review your current HR policies to ensure that they do not prohibit protected “concerted activity” by employees, and obtain legal advice on this issue before you terminate an employee based on their use of social media to air complaints about a supervisor or other workplace issues.

EMPLOYER ALERT – CHANGES IN UNEMPLOYMENT LAW

2011-11-30T17:19:00.000-05:00

Florida’s Unemployment Compensation Law now has a broader definition of misconduct which will result in more employees being held ineligible for benefits based on the reason for their termination. As an employer, you need to be familiar with this change so that you can adjust your HR policies accordingly, and make an informed decision whether to contest a former employee’s application for benefits.

In general, an individual is entitled to benefits if they are laid off, terminated without cause, fired for poor performance, or resign with “good cause attributable to the employer” (i.e. if conditions at work are so bad that any reasonable person would feel they had no alternative but to resign). Individuals are ineligible for benefits if they are terminated for misconduct. Conduct which results in termination “for cause” under a company’s internal policies, however, does not always equate to conduct that is considered “misconduct” under the unemployment compensation law. That definition has now been expanded to include conduct that would not previously have resulted in a denial of benefits.

Under the new law, misconduct is defined as any action that demonstrates conscious disregard of an employer’s interests and is found to be a deliberate disregard or violation of reasonable standards of behavior, and may include activities that did not occur at the workplace or during working hours. This change broadens misconduct and makes it easier for an employer to deny benefits. Misconduct now includes violation of an employer’s policy that affects behavior outside the workplace (such as a rule prohibiting employees from making negative statements about the company on an employee’s personal facebook page).

The best practice is to review your current policies, and make sure you are providing written warnings for violations that would qualify as misconduct if repeated.

Other changes in the law, which primarily affect the procedures for claimants seeking benefits, include the following:

Benefit Payments: New claims must be paid by either the Florida Unemployment Compensation Debit Card or by direct deposit to the Claimant’s bank account (i.e. paper checks will no longer be used to pay benefits).

Online Filing and Certification of Weeks: All claims must now be filed electronically, and continuing claims must be updated electronically. The unemployment hotline is still available to answer questions about filings.
Work Search: Claimants are required on a weekly basis to contact five potential employers and provide this information via the Internet during their bi-weekly certification for benefits. You can use the Employ Florida Marketplace website (employflorida.com) to search thousands of postings and apply for jobs. If you are unable to make at least five employment contacts in a week, meeting with a representative at a local One-Stop Career Center for reemployment services can satisfy the requirement for that week.
Skills Review: Claimants must now complete an initial skills review over the Internet. The result of the review will be used by local One-Stop Career Centers to assist claimants with job searches.
Severance Pay: If a claimant’s severance pay per week is equal to or greater than the claimant’s weekly benefit amount, the claimant is not entitled to benefits for that week. Severance pay does not impact the total amount of benefits that can be paid on the claim.
Duration of Benefits: Effective January 1, 2012, The duration of benefits adjusts from the current maximum of 26 weeks to a range from 12 to 23 weeks, based upon the average unemployment rate in Florida for the third calendar quarter of the previous year. For example, the maximum number of weeks for 2012 will be based on the average unemployment rate in Florida for July, August and September 2011. When the average unemployment rate is 5 percent or less, the maximum duration of benefits will be 12 weeks. For each half-percent increase in the average unemployment, an additional week will be added to the calculation of the benefit duration beginning January 1 of the following calendar year. Should the average unemployment rate reach 10.5 percent or higher, a maximum of 23 weeks would be payable on a claim established during the following calendar year.

EMPLOYER ALERT - BEFORE YOU HIT SEND

2011-07-19T13:07:00.003-04:00

Technology means you can be on top of business activities 24/7, and so can your employees. But stop and think before you send that after hours email or text. Unless your employee is properly classified as exempt from overtime pay under the Fair Labor Standards Act, the time that employee spends reading and responding to your email or text is compensable work time. And if they are already putting in a 40-hour week, then it's overtime.

There has been a recent growth in wage and hour claims arising from off-premises work done by employees. Similar problems arise when employees are able to log into their work computer remotely - you as the employer are responsible for keeping a record of all hours worked by nonexempt employees. The FLSA has strict guidelines regarding which employees may be classified as exempt; you can't solve this problem simply by giving an employee a title and paying them a salary.

Other concerns: If the employee checks email on their smart phone or even responds to text messages in the morning before leaving for the office, when does their compensable work day actually begin?

The best practice is to have clear policies on when it is - and isn't - acceptable for employees to work outside of normal business hours. And be sure to enforce them.

IN THE NEWS – THE BUCK STOPS HERE ON HIRING

2009-09-14T15:52:00.003-04:00

One way to avoid claims of discrimination in hiring is to use an independent contractor or recruiter to screen and interview potential employees, right? Wrong! In a decision rendered September 10, 2009, a federal court of appeals in New York ruled that an apartment complex could be held liable for violations of the Age Discrimination in Employment Act (“the ADEA”) when an independent contractor told an applicant he was “too old” for the job showing apartments. Because the apartment complex delegated the hiring process to a third party, the apartment complex could be held liable for its “agent’s” conduct, even if it had no knowledge that the discriminatory hiring practices were occurring.

The court pointed out that this ruling only applies if the outside firm or agent is hiring applicants to work directly for the employer. You will not be held liable if an independent contractor hired to perform services for your company discriminates against its own employees.

If you do decide to use an outside firm or agent to assist you in screening applicants for a position in your company, however, you should make certain they are following EEO guidelines

EMPLOYER ALERT – ARE YOU FOLLOWING THE NEW FMLA NOTICE REQUIREMENTS?

2009-07-30T11:46:00.008-04:00

The FMLA’s notice requirements for employers have been the subject of considerable confusion in the past. Under the Department of Labor regulations that went into effect January 2009, the notification requirements are consolidated into a single section (29 C.F.R. §825.300), and conflicting provisions and time periods in the former regulations have been eliminated.

Employers who fall under the FMLA (50 or more employees within a 75 mile radius) must provide the following notifications:

(1) General Notice to Employees. The employer must provide general information about the FMLA through a poster (available from the DOL) placed in a conspicuous place, and by including the information either in the employee handbook or in written material given to the employee at time of hire. A notice that may be used by employees is available from the DOL at:
www.dol.gov/esa/whd/fmla/index.htm.

(2) Eligibility Notice. Once an employee requests FMLA leave, or the employer has a basis to believe that the employee’s leave maybe for an FMLA-qualifying reason, the employer must provide an “Eligibility Notice” to the employee within five (5) days, absent extenuating circumstances. This notice must either advise the employee that they are eligible for FMLA leave, or explain why they are not. A form eligibility notice is available for download at the DOL website referenced above.

(3) Rights and Responsibilities Notice. The employer must also provide a “rights and responsibilities notice.” This notice can be combined with the eligibility notice, and is a single document on the DOL form described above. Part A of the form is the eligibility notice, and Part B explains the rights and responsibilities of the employee. This notice should include the following, as applicable:

a. a statement that the leave is counted against the employee’s 12-month entitlement under the FMLA, and an explanation of which method the employee uses to calculate the FMLA year (i.e. calendar, rolling, etc.);

b. any obligation for the employee to provide a certification of serious health condition, exigency (military), etc. and the consequences of failing to provide such certification. A copy of the certification form required by the employer may be included with this notice;

c. the employee’s right to substitute paid leave (consistent with the company’s leave policies), or the employer’s requirement that paid leave be substituted;

d. any requirement that the employee pay a portion of the health insurance premium during leave, and the consequence should the employee fail to do so;

e. any designation of the employee as a “key employee” under the FMLA, and the effect of that status on job restoration;

f. the employee’s right to maintain health insurance benefits during leave and restoration after leave;

g. the employee’s liability for health insurance premiums paid by the employer during leave, in the event that the employee fails to return to work after the leave;

h. any other appropriate information that should be communicated to the employee – for example, a requirement that the employee make periodic reports to the employer regarding intent to return to work.

(4) Designation Notice. The designation notice must be sent within five (5) days of the determination that in fact the leave is covered by the FMLA. This determination can be made in some cases when the initial request for leave if submitted by the employee, and in other cases will not be made until the employer receive a certification of serious health condition. This form must specify the number of hours, days and weeks that will be counted against the employee's FMLA leave entitlement (if known). If the employer requires a fitness-for-duty certificate for the employee to return to work, that requirement should be stated in this notice. A form designation notice (with boxes to check off) is also available at the DOL website.

Don’t wait until an employee requests FMLA leave - take time now to review your company’s FMLA notice procedures to make sure they are in compliance with the current regulations.

EMPLOYER ALERT – MINIMUM WAGE INCREASES JULY 24

2009-07-10T12:06:00.002-04:00

Effective July 24, 2009 the federal minimum wage increases to $7.25 per hour, an increase of four cents above the current Florida minimum wage of $7.21 per hour. Employers are required to pay the higher of the federal minimum wage, or the minimum wage required by state statute.

Accordingly, Florida employers should adjust their payroll practices no later than July 24 to ensure that all employees are paid a minimum of $7.25 per hour. An exception is tipped employees, whose hourly rate continues to be governed by the Florida law permitting a reduced wage of $4.19 per hour, provided that the employee's wage plus tips equals total compensation of at least $7.25 per hour.

IN THE NEWS – WALKING THE TIGHTROPE – SUPREME COURT DECISION RAISES QUESTIONS FOR BUSINESSES ON TITLE VII COMPLIANCE

2009-06-29T19:44:00.003-04:00

On Monday, June 29, the Supreme Court decided a hotly debated case attempting to reconcile the dual prohibition in Title VII of the Civil Rights Act against “disparate treatment” discrimination and “disparate impact” discrimination. Disparate treatment discrimination is the intentional different treatment of an individual or group of individuals in the workplace based on their race, color, religion, sex or national origin. Disparate impact discrimination occurs when a facially neutral employment practice has a disproportionally negative effect on the members of one of these protected classes. Title VII also provides, however, that liability for disparate impact discrimination does not exist if the employer can show that its practice was “job related for the position in question and consistent with business necessity.”

An example of the type of policy that has been upheld in prior cases under the disparate impact analysis would be weight and height requirements for firefighters – although those minimum requirements have a disparate impact on female job applicants, they are job related and consistent with business necessity, as the job requires the physical ability to carry an unconscious person out of a burning building. An example of a policy that failed the disparate impact analysis was a particular employer’s requirement that all job applicants have a high school diploma. This policy disproportionately eliminated minority applicants, but there was no evidence that having graduated high school bore any relationship to the ability to perform the job duties.

The case decided today, Ricci v. DeStefano, involved the use of a written and oral test to determine the eligibility of firefighters in the city of New Haven, Connecticut, for promotion. Under the City’s rules, an available promotion to captain or lieutenant could only be offered to individuals with the top three highest scores. The City and the consulting firm it hired to develop the test apparently went to great lengths to design a test that had content relevant to the job, and was nondiscriminatory. Nonetheless, when the test results were in, a disproportionate percentage of black and Hispanic employees taking the test scored lower than white employees taking the test. A public debate ensued and, ultimately, the City threw out the test results to avoid violating the disparate impact prohibitions of Title VII. A group of white and Hispanic employees who received high scores on the test and would likely have been eligible for promotion filed suit, claiming that discarding the test results based solely on a statistical analysis of the racial outcome constituted disparate treatment discrimination against them.

The U.S. Supreme Count (in a narrow 5-4 decision) held that by throwing out the test results the City failed to correctly apply Title VII’s disparate impact analysis – specifically, whether the test was job related and consistent with business necessity. After reviewing the testimony and other evidence presented at trial as to the content of the test and the steps undertaken by the consulting company to create it, the Court concluded that the test was job related and that there was no equally valid, less discriminatory alternative that the City had refused to adopt. Accordingly, in the words of the Court, there was no “strong basis in the evidence” to conclude that the City would have been liable for disparate impact discrimination if it had allowed the test results to stand. Therefore, the City’s conduct amounted to disparate treatment discrimination against the firefighters whose high scores were disregarded.

The challenge for employers in the aftermath of this decision is to find a balance between eliminating facially neutral policies that have a disparate impact on minority workers without inviting allegations that the very act of removing such policies itself discriminates against nonminority workers based on race. Great care should be taken to avoid implementing any employment practices that could have a disparate impact in the first place. Of course, as the City of New Haven discovered, it’s not always possible to predict whether a disparate impact will occur.

The financial consequences of a misstep can be devastating to a business. The New Haven firefighters test at issue in the case was administered to employees in 2003. The results were thrown out shortly thereafter, and six years of costly litigation ensued.

EMPLOYER ALERT - 10 TIPS FOR AVOIDING LIABILITY IN LAYOFFS

2009-05-27T17:52:00.003-04:00

The downturn in the economy has forced many businesses to take serious steps to reduce overhead, including payroll costs. In some cases, costs can be reduced or at least contained by adopting hiring freezes, reducing staff by attrition, temporarily discontinuing pay increases, cutting back on hours, starting a job-sharing program, or offering unpaid leave while maintaining health benefits. Sometimes, however, the only alternative is to implement layoffs.

While layoffs are on the rise, so are employment discrimination claims filed through the EEOC and other administrative agencies, and in the courts. You should be aware that despite obvious economic reasons for reducing staffing, these claims continue to be filed, and defending them can be expensive. Terminated employees who have difficulty finding a new position in this economic climate are even more likely to seek legal advice regarding their termination, and raise claims alleging a discriminatory motive in their selection for layoff.

The following strategies will help you avoid those claims, and significantly reduce the costs of those that are filed.

1. Don’t give false assurances to employees about their job security. It’s fine to be optimistic about the future of your business, but you should avoid making promises that employees may rely on in turning down other job opportunities, only to find themselves out of work a few months later.

2. Consider other options first. Can you accomplish the necessary cost-cutting by less drastic measures? Some of the strategies mentioned above may work for your company. You can also consider changing the manner of paying employees – moving, for example to a higher commission rate and a lower base pay for sales staff, or utilizing another type of incentive-based compensation. (Make sure, however, that your pay practices remain in compliance with the federal wage and hour laws.)

3. Use selection criteria you can defend. Although it is legal to factor in performance in determining which employees to include in a layoff, you do so at your own risk. A safer approach is to first determine which job functions you can eliminate or consolidate, then terminate employees based on seniority (i.e. last in, first out). Resist the temptation to discard an older employee in favor of a newer employee who is more promising – especially if the “older” employee is over 40.

4. Once you’ve identified certain employees for layoff, don’t dredge up performance issues you failed to deal with in the past as a way to try to avoid an unemployment compensation claim. Employees who are laid off are entitled to receive unemployment benefits, and by contesting their claim you are opening the door for other claims against your company. Keep it simple.

5. Before implementing the layoff, look at the list of selected employees to see if there appear to be any patterns or “red flags” in your selections. Are all employees selected for termination over age 40? Have you included anyone who recently returned from a medical leave under the FMLA? Has an employee selected for layoff recently complained about any type of discrimination or harassment in the workplace, or objected to a company practice on the grounds that it violates a statute? If any of the foregoing is true, you may want to discuss your situation with an employment law attorney before making a final decision. Remember, even if your decision was made fairly and impartially, you need to be careful about giving the appearance of discriminatory or retaliatory employment action. Even a completely baseless wrongful discharge complaint can be costly to defend. If you cut $50,000 from your payroll but end up spending $50,000 in legal fees and costs defending your firing decisions, you really haven’t accomplished anything.

6. If your business employs more than 100 employees, you may have notice obligations under the federal WARN Act. Check with an employment law attorney to see if this applies to your situation.

7. Employees who are laid off are entitled to continuing group health insurance coverage under federal COBRA or Florida’s Mini-COBRA, which applies to small employers. Make sure former employees receive all required notices, and be careful not to provide inaccurate information about their rights.

8. Consider paying severance to terminated employees in exchange for them signing a release. The upfront cost of paying severance is a small price compared to the costs of defending frivolous claims. If you do decide to pay severance, either set a flat number of weeks that applies to all employees who have worked for the company for one year or longer, or establish a formula based on position and/or years of service. For example, you might pay line employees one week’s severance for every year of service, and pay supervisory personnel two weeks. Most companies also apply a cap on the total number of weeks of severance that will be paid to any employee. Make sure any release signed by an employee over age 40 complies with the requirements in the Older Workers Benefits Protection Act (“OWBPA”) for release of claims under the Age Discrimination in Employment Act (“ADEA”), and do not make signing the release of condition for receiving amounts that would otherwise be due under established company policy (for example, a policy of paying accrued and unused PTO to anyone terminated without cause).

9. Do not hold the employee’s last paycheck “hostage” pending return of company-owned equipment, etc. An employee who does not receive his or her last paycheck can file suit in federal court under the Fair Labor Standards Act (“FLSA”). Many plaintiffs’ lawyers representing individuals in “last paycheck” cases provide no notice or demand to the employer before filing suit. Under the FLSA, you will be liable not only for payment of wages due to the employee, but also for the attorney’s fees of the plaintiff’s lawyer. As a result of withholding a last paycheck of a few hundred dollars, you could end up owing thousands of dollars to the employee’s attorney, plus paying your own legal fees as well.

10. Provide references and any other “outplacement services” you can to employees who are being laid off. An employee who is able to move on successfully is less likely to harbor ill will against the company.

IN THE NEWS – FAIR PAY ACT EXTENDS TIME FOR CLAIMS

2009-01-30T18:14:00.002-05:00

President Obama signed into law on January 29, 2009 the Lilly Ledbetter Fair Pay Act, extending the time period for filing of wage discrimination claims. This legislation was passed specifically in response to a 2007 decision of the U.S. Supreme Court dismissing as untimely an employee’s Title VII sex discrimination claim that for many years she was paid significantly less than her male counterparts for performing the same job.

Most discrimination claims require timely filing with the EEOC or applicable state agency. In Florida, claims under Title VII and/or the Florida Civil Rights Act must be filed with the EEOC within 300 days, and with the Florida Commission on Human Relations (the FCHR) within 365 days, of the incident giving rise to the claim.

While this rule makes sense with respect to discreet acts of discrimination, such as termination of employment, many critics of the U.S. Supreme Court’s decision in the Ledbetter case (including Justice Ruth Bader Ginsburg, who wrote a strong dissenting opinion in the 5-4 decision), have pointed out that because workers generally treat salary information as confidential, an employee may be unaware for years that a pay disparity exists. In the Ledbetter case the plaintiff, who had worked as a supervisor at a Goodyear Tire and Rubber Company plant for 19 years, started out at the same salary as her male counterparts. By the time she discovered the pay difference as she neared retirement, her salary was 40% lower than male supervisors, who had received significantly higher raises over the years.

Under the new law, the statute of limitations period is restarted every time the employee receives a paycheck.

As a practical matter, this decision means that more employees will have the opportunity to file wage claims under the sex discrimination prohibition in Title VII (which provides higher damages), and will no longer be limited to the remedies under the Equal Pay Act (which has a lower cap on damage awards and no provision for punitive damages).

EMPLOYER ALERT – PITFALLS OF EMPLOYEE FREE CHOICE ACT

2009-01-21T18:03:00.001-05:00

Touted by organized labor as the solution to a struggling economy, the Employee Free Choice Act, if passed by Congress, will pave the way for rapid unionization of many workforces, large and small. For employers, there are some very troubling aspects of this legislation to consider.

Currently, in order for a workforce (or category of employees) to join a union, 30% of the employees must sign an authorization card. The National Labor Relations Board (“the NLRB”) then schedules an election and, after a reasonable period of time has passed for discussion and consideration by the workers, the election is held by secret ballot.

Under the new proposed law, however, there is no period for discussion, and no secret ballot election is held. Instead, once a majority (51%) of the employees signs an authorization card, the union is put in place. And stiff monetary penalties will be levied against an employer who “interferes” with the process.

Under the current system, once a union is established in a business, collective bargaining begins and continues until an agreement is reached. If negotiations break down, workers can strike. The company can then either negotiate further to bring them back, or permanently replace the striking employees. The employer cannot be forced to sign an agreement with terms it objects to, and the union cannot be forced to sign an agreement it objects to. Under the new legislation, however, if a collective bargaining agreement is not reached within 90 days, either party can request mediation. If mediation does not result in an agreement within the next 30 days, the issues are decided by an arbitration panel, whose decisions are mandatory for both the employer and the workers for up to two years. The issues decided by the arbitration panel can include wages, work hours, benefits, and other terms of employment. The employer is bound by that “agreement,” notwithstanding the inclusion of terms it never agreed to.

Another problem with the legislation is the total elimination of employee privacy. Under the current system, a worker who feels pressured by colleagues to sign an authorization card can still vote “no” in the secret ballot election. Under the “card check” mechanism of the proposed bill, once that worker signs the authorization card, his “vote” is cast.

This bill was passed by the House of Representatives last year, but died in the Senate under threat of veto by President Bush. President Obama has already indicated he will readily sign this bill into law if it is placed before him. In light of the support the legislation has received, it is likely it will be passed this year.

Although historically Florida has not been a union state and, for the most part, only large employers have had a unionized workforce, the prerequisite of “concerted action” to form a union requires only two employees in a place of business. Accordingly, this legislation poses concerns for all Florida employers, regardless of size.

Because Florida is a “right to work” state, an employee can get a job regardless of whether they have a union card. Once employed, they are not required to join the existing union at their worksite – the payment of union dues is not mandatory. But the terms and conditions of their employment will still be subject to whatever collective bargaining agreement is in place.

IN THE NEWS – SUPREME COURT TAKES ON RETALIATION ISSUE

2008-10-07T16:02:00.006-04:00

A significant employment law case involving retaliation under Title VII is on the docket for the U.S. Supreme Court, which opened its 2008-2009 term on October 6. Oral arguments will be heard on the case of Crawford v. Metropolitan Gov’t of Nashville. In that case the Sixth Circuit Federal Appeals Court held that an employee who is fired in retaliation for statements made during a company’s internal investigation of sexual harassment allegations falls outside the protection of Title VII.

In the underlying case, Plaintiff Vicky Crawford claimed that she was fired because of statements she made to the company’s H.R. representative when Crawford was questioned about sexual harassment allegations another employee had made against Crawford’s supervisor. Crawford was not the employee who made the original complaint. However, when called into H.R. and questioned, she confirmed that she too had been sexually harassed by the supervisor.

Crawford was fired shortly thereafter, and filed a lawsuit claiming retaliatory discharge in violation of Title VII, which prohibits retaliation against an employee because that employee “has opposed any practice made an unlawful employment practice by this subchapter [of Title VII],” or because the employee “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

The court in the Crawford case held that even if Crawford’s employer fired her in retaliation for statements she made in the company’s internal investigation, that investigation was not an investigation “under this subchapter” because it was purely internal. In other words, no EEOC complaint had been filed, nor was any lawsuit pending.

That outcome, though counterintuitive at first blush, does have a certain logic behind it. The court in Crawford reasoned that if Title VII’s retaliation protection were extended to cover every internal investigation conducted regardless of whether any formal charges had been filed, employers would be less likely to conduct full investigations based solely on internal complaints for fear that they would be blanketing every employee interviewed with immunity from firing. And indeed, it is not difficult to imagine situations where nonperforming employees could take advantage of the fact that their supervisor has been accused by another employee and attempt to shield themselves from disciplinary action by confirming completely baseless allegations.

Employee advocates and some academics, on the other hand, view the outcome in Crawford as having a profound chilling effect on the willingness of employees to speak truthfully about a supervisor’s harassment if interviewed by H.R., rendering the company’s investigation completely ineffectual, and impeding the employer’s legitimate objective of ridding the workplace of sexual harassers.

It will be interesting to see how the Supreme Court rules on this case.

IN THE NEWS – CONGRESS EXPANDS ADA DEFINITION OF DISABILITY

2008-09-18T13:54:00.000-04:00

The ADA Amendments Act of 2008, a compromise bill that expands ADA coverage to employees with a variety of disabilities previously excluded by the courts, has been passed by Congress, and it is anticipated that President Bush will sign it into law shortly.

According to the summary of the legislation posed on the Library of Congress’ online public access “Thomas” page (http://thomas.loc.gov/), the amendment:

Sets forth rules of construction regarding the definition of "disability," including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

What does this mean for employers? Primarily, this means taking a closer look at how your HR policies define “disability,” taking steps to ensure compliance in your hiring, discipline, promotion and firing policies, and ensuring that the new criteria is used when viewing requests for accommodation or employee complaints under the ADA on a case-by-case basis.

As a practical matter, the amendment may bring clarity to gray areas that were previously the subject of judicial interpretation, such as whether an individual with cancer has a disability under the ADA, and whether employees who suffer from serious medical conditions that are controlled by medication – like diabetes and epilepsy – are eligible for coverage. Under the amendment, both would be entitled to protection. The amendment also lays to rest disputes over whether individuals with prosthetic devices, such as artificial limbs, are qualified individuals with a disability under the ADA. (They are.)

Whether the new amendment – which has been lauded by business groups and employee rights advocates alike – will reduce litigation over the definition of a covered disability or simply lead to new issues to be litigated remains to be seen.

IN THE NEWS – WORKPLACE BULLYING

2008-08-07T11:10:00.000-04:00

If your company’s work environment is a reminiscent of a trip back to middle school, it may be time to update your policies and take a stand against “workplace bullying.”

Although conventional wisdom has been that rude and intimidating conduct between co-workers and even by supervisors falls outside the arena of legal liability for employers, recent court decisions have taken a closer look at workplace bullying as a component of more traditional claims like assault. An August 4 article by Cari Tuna in the Wall Street Journal notes that the Indiana Supreme Court recently upheld a $325,000 jury verdict awarded to a medical technician who was bullied by his supervisor, a cardiovascular surgeon. According to the allegations in that case, a pattern of verbal abuse culminated in a confrontation where the accused bully walked toward his victim with clenched fists while yelling at him. The jury found that conduct threatening enough to fall within the definition of assault, a finding the higher court upheld because it viewed that incident in the context of the pattern of bullying.

An earlier article in the New York Times by Tara Parker-Pope (3/25/08) reported that a surprising 37% of all workers surveyed by a national research firm admitted they had been the victim of workplace bullying.

Several state legislatures are reviewing “anti-bullying” legislation. Although none has been passed into law to date, companies may want to take a proactive stand against conduct that researchers have identified as a leading cause of workplace stress, loss of productivity and high turnover, by adding a ban on nondiscriminatory bullying to their HR policies.

IN THE NEWS – IMPACT OF NEW GUN LAW ON WORKPLACE SAFETY POLICIES

2008-07-08T16:07:00.000-04:00

Are your employees keeping loaded guns in their cars on company property? Under a new Florida law, you can’t ask. On July 1, the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 went into effect. Under this law, an employer can no longer prohibit its employees from bringing loaded guns onto company property – so long as those guns remain locked in the employee’s vehicle.

Certain exceptions do apply – schools, prisons, nuclear power plants, Defense Department contractors, and business that maintain explosives – but unless your company falls into one of those categories, your employees (with valid concealed weapons permits) must now be permitted to keep firearms in their cars, and you cannot take disciplinary or retaliatory action against them for doing so. The Act also applies to “invitees” to your business premises, thereby including customers, volunteers, student interns, vendors or anyone else with a legitimate reason to park their vehicle in your parking lot.

But before you begin polling your employees to determine whether they are keeping guns in their vehicles, you should know that the new law also provides: “No public or private employer may violate the privacy rights of a customer, employee, or invitee by verbal or written inquiry regarding the presence of a firearm inside or locked to a private motor vehicle in a parking lot…”

Many employers and commentators have raised concerns about the possibility that this new law may lead to an increase in workplace violence, by making weapons more accessible to disgruntled and unstable employees or customers. Although the new law is reportedly facing several challenges in the courts, for now it is the law.

Any employee handbook that prohibits employees from bringing firearms onto company premises should be revised to make an exception for firearms that are lawfully stored in an employee’s locked vehicle.

EMPLOYER ALERT – LISTEN TO THE MUSIC

2008-07-02T10:43:00.000-04:00

A Silicon Valley engineering firm is paying $168,000 in damages and amending its anti-harassment policy to include the playing of music with offensive lyrics, as part of the settlement of a racial harassment case filed by the EEOC.

According to the EEOC’s statement released June 24, the lawsuit was filed based on the failure of the company’s supervisors to respond appropriately to complaints by a black employee that a co-worker, a 27-year-old Vietnamese American, played and sang along with rap music that had racial slurs in the lyrics, including the “N-word,” within his earshot in the workplace.

Do you, as an employer, now need to monitor the musical taste of your workers and pre-approve what’s playing on their radio or iPod, even in the break room? Or prohibit employees from listening to music at work altogether? No. But you do need to train your supervisors to take complaints of this nature seriously, and make a distinction between music that simply reflects different tastes, and music that could reasonably be perceived as offensive based on race, ethnicity, sex or any of the protected classes under federal, state and local discrimination laws.

EEOC District Director Michael Baldonado had this to say about the case. “This is the kind of situation that many workplaces [in the country] face: How do you manage the culture clash – across generations, race and ethnicity, you name it – in a workplace that gets more diverse every day? I think it’s critical to try to put yourself into the shoes of the other person and take all complaints of discrimination seriously. Together we can try to defuse tensions and prevent situations from developing into discrimination and harassment.”

TIP OF THE DAY – SAFETY IN ADVERTISING

2008-06-25T20:49:00.000-04:00

Targeting your message may make sense in advertising, but it can signal trouble if the ad you’re placing is for an employment opportunity. Be careful not to use language that could be interpreted as an age or gender preference.

Describing the ideal candidate as a “recent graduate” or the position as “entry level” could signal a preference for a young candidate, and result in EEOC filings by older job applicants who believe they were rejected for discriminatory reasons.

IN THE NEWS – SUPREME COURT RULING PUTS THE BURDEN ON EMPLOYERS TO PROVE POLICIES IMPACTING OLDER WORKERS ARE “REASONABLE”

2008-06-20T11:33:00.000-04:00

In a decision hailed by employee advocates as a triumph, the U.S. Supreme Court ruled yesterday that in age discrimination cases the employer bears the burden of proof that employment decisions having a “disparate impact” on older workers are based on a reasonable factor other than age.

Three years ago, in March 2005, the Supreme Court ruled in the landmark case of Smith v. City of Jackson that the Age Discrimination in Employment Act (“the ADEA”) protects workers when an employer implements a policy which, on its face, has nothing to do with age, but in practice disproportionately impacts employees over age 40 in a negative way. (Notably, this marked a significant change for Florida employers because until that ruling, federal courts in Florida had held that the “disparate impact” theory was not applicable to age discrimination cases. To win a case, an ADEA plaintiff had to prove the employer’s alleged discriminatory policy was intended to harm older workers.) In Smith the Supreme Court held that such claims were in fact actionable under the ADEA, but did give the employer a “safe harbor” for their policies. Once an employee was able to show that the policy did in fact have a disparate impact, the employer could avoid liability by bringing forward evidence that the policy was based on “reasonable factors other than age,” a standard referred to by the Court as “RFOA.”

By requiring only an RFOA in the Smith case, the Court gave employers an advantage they did not have in disparate impact cases that traditionally arose in the contest of sex discrimination claims under Title VII of the Civil Rights Act. It has long been held that to avoid liability for a policy that has a disparate impact against a protected class under Title VII, the employer must show that the job requirement is a “bona fide occupational qualification,” referred to as a “BFOQ.” The classic examples in those early cases were height and weight restrictions which disproportionately excluded women from jobs as firefighters, but were held to be BFOQ’s because a certain minimum height and weight was deemed necessary to the ability to carry an overweight, unconscious victim out of a burning building. By interpreting the ADEA as requiring a lesser standard – the reasonableness standard of the RFOA instead of the absolute job necessity standard of the BFOQ – the Court made it much easier for an employer who was not intentionally discriminating to defend policies that had a disparate impact on older workers, so long as those policies were otherwise reasonable.

The question that remained after the Smith decision, however, was what happened procedurally after the employer brought forward evidence of the RFOA? To prove discrimination, did the employee have to prove that the employer’s asserted justification for the policy was in fact unreasonable? Or did the employer have the burden of proving that it was reasonable? While this distinction may appear at first blush to be a minor question of semantics, the question of who has the burden of proof can drastically change the outcome of a trial.

Until yesterday, federal courts were split on this issue. The Supreme Court has now resolved the question in Meacham v. Knolls Atomic Power Laboratory, holding that the employer must not only bring forward evidence that its policy was based on an RFOA, but also prove that the factor relied on is a reasonable one.

What this case means as a practical matter for employers is that care should be taken to examine any policies that appear to disproportionately impact older workers, and be prepared not merely to articulate a reasonable, nondiscriminatory basis for that policy but also to prove that the policy is reasonable.

IN THE NEWS – SLEEPING ON THE JOB?

2008-06-19T13:59:00.000-04:00

In most workplaces, sleeping on the job can get you fired. But according to recent news reports and commentaries, a growing number of employers are not only permitting employees to take naps but actually encouraging the practice. Some are even providing a designated area, complete with couches, blankets, nature cds and privacy screens. Those employers argue that tired employees are less productive, and allowing workers to take a 15-20 minute “power nap” actually increases their productivity and cuts down on absenteeism resulting from fatigue and related heath issues, as well as reducing on-the-job accidents.

Boston University clinical psychologist William A. Anthony, PhD, has written a book on the topic, The Art of Napping at Work. In his book, Anthony suggests that Americans are sleep-deprived, not due to irresponsible habits but rather as a result of the expanding demands of their jobs, lengthy commutes, and household responsibilities. According to a recent ABC news report, the typical American needs 8 hours of sleep per night, but only gets about 6.7. In a poll conducted in late 2007 by the National Sleep Foundation, a surprising one-third of those surveyed admitted having fallen asleep at work at least once in the last month. In a earlier survey by the same group, more than 51% of workers surveyed admitted that sleepiness on the job was interfering with their productivity. According to a study by Cornell University, 40% of workers are sneaking naps at their desks or in their cars during lunch.

Is allowing employees to take an afternoon nap the answer? For some companies, perhaps. But before embarking on such a policy, you should consider the costs and logistics of administering a “nap” program, how to prevent the policy from being abused, and whether naps would be “on company time” or “off the clock.”

EMPLOYER ALERT – USE OF SOCIAL NETWORKING SITES CAN BACKFIRE

2008-06-17T11:20:00.000-04:00

Many employers are looking at social networking sites like MySpace and Facebook for additional information in screening job applicants. The conventional wisdom has been that searching for and reviewing these sites can provide useful information about an applicant’s judgment and character. Have they been blogging about frequently calling off work at their last job after a long night of partying? Do their photos and comments indicate a lifestyle of excessive alcohol consumption or use of illegal drugs? Have they “trashed” their previous employer online? Are they posting the sort of photographs that you would find embarrassing if one of your customers “Googled” their name as a representative of your company?

All of the foregoing is information that certainly could be relevant to your hiring decision. But when does information obtained online become “too much information,” placing your company at risk?

This issue is discussed at length by Lester Rosen, head of a California-based national background screening company, in a two-part series published in Recruiting Trends®, an online newsletter for HR professionals. Mr. Rosen cautions that privacy issues may be involved if you or your background screener access these sites by setting up a cover identity, and that in some circumstances Fair Credit Reporting Act notifications may be required by law for including review of these sites in a background investigation.

The most troubling issue noted in the article, however, is that reviewing an applicant’s social networking site may give you information about their disability, age, race, national origin, religion, sexual preference or other characteristics which of course can not be considered in making employment decisions. If you decide not to hire the individual, they may assume that you have discriminated against them based on that information. Mr. Rosen’s article appears at http://www.recruitingtrends.com/online/thoughtleadership/969-1.html

EMPLOYER ALERT – DISABILITY DISCRIMINATION CLAIMS ON THE RISE

2008-06-11T11:01:00.000-04:00

The EEOC reports that disability discrimination claims increased by 14% last year, and now account for one out of every five discrimination charges filed against private employers. In the past year, the EEOC settled two cases against national retailer Wal-Mart. In the most recent case, Wal-Mart paid $250,000 in damages and agreed to provide training to its supervisors in a case involving failure to provide a reasonable accommodation to a pharmacist who was disabled from an earlier gunshot wound. In the other case, Wal-Mart paid $300,000 to settle a claim that it failed to hire a job applicant because she has cerebral palsy. Because the ADA applies to all businesses with 15 or more employees, small employers are equally at risk for claims, and the financial impact of a significant settlement or jury verdict can be devastating.

Protect your company from liability by following these guidelines:

Make sure job descriptions include the “essential functions” of the job, and leave out extraneous duties that could eliminate a disabled applicant from consideration.
Do not include requirements such as lifting, standing, etc. unless they really are essential to the job.
Avoid descriptions that favor a particular manner of performing physical tasks. For example, use “communicate with” instead of “speak with,” and “move” between locations instead of “walk” between locations.
In interviews, do not ask questions about a disability. Focus instead on the essential functions of the job. Ask all applicants – not just those who appear outwardly to have a disability – whether they can perform the essential functions of the job.
If a current employee requests a reasonable accommodation under the ADA, give careful consideration before making a decision. You are not required to provide the specific accommodation requested by the employee, nor are you required to provide an accommodation when doing so would cause an undue hardship on your company. You are also not required to eliminate an essential function of the job, or create a new job for the employee. However, you are required to provide a reasonable accommodation which would enable the employee with a disability to perform the essential functions of the job.

IN THE NEWS – PROPOSAL FOR COMP TIME IN THE PRIVATE SECTOR

2008-06-09T11:11:00.000-04:00

Legislation is currently pending in the House of Representatives which would allow employers to offer “comp time” in lieu of overtime for nonexempt employees working in excess of 40 hours per week. Titled “The Family-Friendly Workplace Act,” the bill would give employees the option receiving one-and-one-half hours of paid leave for every hour worked over 40 in a given week, instead of receiving time-and-one-half overtime pay. Currently, the Fair Labor Standards Act (“the FLSA”) prohibits private-sector comp time, permitting only federal government employees to receive time off in lieu of overtime pay.

Comp time legislation resurfaces every few years, but its proponents have never been successful in bringing about a change in the FLSA. Critics – primarily labor unions and employee advocacy groups – argue that providing an alternative to mandated overtime payments would be subject to abuse, and employees’ elections to receive time off in lieu of pay might be coerced rather than voluntary.

Representative Cathy McMorris Rodgers (R-WA), the sponsor of the current bill, feels differently. In her recent press release, she states:

“Time is one of our most precious resources. We all want more of it and yet we only have 24 hours in a day. That means we have to figure out how to work a full day, run errands, pack lunches, make dinner and spend quality time with our kids, spouse, or elderly parent,. Giving employees more flexibility in their workweek is key to increasing retention as well as attracting great employees that will help increase our country's competitiveness.”

The ability to offer comp time would provide welcome flexibility for employers and employees alike, particularly in the small business arena. Whether this bill has any better chance of succeeding than its predecessors remains to be seen.

TIP OF THE DAY – KEEP UNEMPLOYMENT PREMIUMS DOWN BY DOCUMENTING EMPLOYEE DISCIPLINE

2008-05-27T10:14:00.000-04:00

Because Florida is an “employment at will” state, an employer does not need “good cause” to terminate an employee. An employee terminated without good cause, however, will be entitled to receive unemployment compensation benefits. Because the number of claims awarded to your former employees has a direct impact on increases to your company’s unemployment compensation insurance premium, you should take steps to ensure that benefits are not awarded to employees who were fired for misconduct.

An employee who is terminated because their performance is not up to your standards, or because they are simply unable to perform the job, is entitled to benefits. Likewise, an employee whose excessive absenteeism is a result of a health issue is eligible for benefits. However, an employee who repeatedly, after warning, violates company policy is not entitled to unemployment compensation. That behavior qualifies as misconduct under the statute.

The key issue in unemployment compensation hearings (conducted when the employee applies for benefits and the company contests their entitlement) involving policy violations is whether the employee had notice that their behavior was unacceptable and was warned that future violations could result in termination. The best evidence you can present is a written warning, signed by the employee.

Remember to do the following:

(1) Put a warning in writing so that there is no dispute about what information was given to the employee.

(2) Note in the warning whether the employee has been verbally counseled for the same behavior in the past.

(3) State whether the conduct violates a company policy, and identify that policy.

(4) Have all employees sign a form acknowledging that they have received, understand and will abide by company policies.

(5) Have the employee sign the written warning, acknowledging receipt of it. You can include a space for the employee to make a statement if they disagree with the warning.

By following these steps, you can protect your company from being charger higher unemployment compensation premiums as a result of benefits awarded to former employees who continued to willfully violate company policy after repeated warnings.

IN THE NEWS – PRESIDENT SIGNS BILL PROHIBITING GENETIC TESTING DISCRIMINATION IN EMPLOYMENT

2008-05-23T09:02:00.000-04:00

President Bush signed legislation on Wednesday, May 21 making it illegal for employers to refuse to hire, fail to promote, or discharge employees based on the results of genetic testing. The Genetic Information Nondiscrimination Act of 2008 protects individuals whose test results reveal a propensity for a certain type of medical condition, or identify that person as a carrier for a genetically transmitted disease or disorder, from having that information used to deny them either employment or insurance coverage.

There are already genetic tests available that predict the future onset of Huntington’s disease, and a predisposition toward various forms of cancer. Genetic tests identify whether a person is a carrier for Tay-Sachs disease or Sickle Cell Anemia. Other genetic tests predict the likely effectiveness of various forms of drug treatments for conditions such as heart disease, asthma and cancer, providing a valuable aid to doctors in determining a personalized course of treatment. Researchers are currently developing genetic tests that will identify risk factors for a wide range of conditions, including Alzheimer’s disease, various forms of mental illness, heart disease and diabetes. Preventative genetic testing has the potential to assist many people in lifestyle changes that could delay, reduce or even stop altogether the onset of these conditions.

The problem in the workplace is that this information could also be used to screen employees, weeding out individuals who are statistically more likely to cause a disproportionate burden on the company’s health insurance plan, or be less productive in the future due to the need for medical leave. Until this week, the law was unclear and often contradictory on the issue of what, if any, use of this information was acceptable in the employment arena. Although the EEOC has taken the position that genetic predisposition to certain diseases qualifies as a disability protected under the Americans with Disabilities Act, courts had not uniformly adopted that view. Various states enacted laws in this area (Florida, for example, has a statute prohibiting employment discrimination based on the presence of the sickle-cell trait, but requires only that the individual receive notice that any other results of genetic testing were used as the basis for denial of insurance coverage or employment).

This new law will at least provide uniformity in the restriction of use of genetic testing results in the employment context, and hopefully pave the way to a healthier workforce through personalized preventative measures.

TIP OF THE DAY – 10 FRIENDLY QUESTIONS YOU SHOULDN’T ASK

2008-05-21T12:09:00.000-04:00

A job interview is an opportunity to get to know the candidate on a personal level, and assess whether he or she will be a good fit in your organization. Often, however, friendly questions asked with the best of intentions stray into a protected area, causing the candidate to reveal information about their age, health, marital status, sexual orientation,* national origin or religion that, by law, cannot be considered in the hiring process. When that candidate is not offered the job, they may well make assumptions about your decision-making process that are completely incorrect, and you could be in the position of defending yourself and your company from allegations that the failure to hire was discriminatory.

Friendly questions that seem harmless on their face but can get you into trouble include the following:

River City, huh? My cousin went to high school there. What year did you graduate?
So, you’re new to the area. Do you need any help finding out about schools or churches?
I see from your resume that you’ve got over 30 years experience. How long are you planning to work before you retire?
You got married recently – congratulations! Are you planning to have kids?
That’s a very unusual name. What nationality is that?
Some of us are on a company softball team –I bet you’d be a great addition. Could we count on you?
Being here on time is important to us. As a single parent, do you think your childcare responsibilities will interfere with your attendance?
How do you feel about reporting to a (younger/female) supervisor?
I couldn’t help noticing your accent. Are you from the Middle East? What do you think about what’s going on over there?
Would you be relocating here yourself, or do you have a spouse or significant other who’d be coming with you?

None of these questions are necessarily asked with bad intentions. Each of them, however, has the potential for either eliciting information about membership in a protected class that would not otherwise be apparent pre-hiring, or creating the impression that certain protected characteristics are preferred over others in an employee.

By training your supervisory employees on proper interviewing, you can avoid unnecessary exposure to claims that your hiring practices are discriminatory.

*Although sexual orientation is not a protected class under federal law or Florida state law, numerous counties and municipalities have adopted ordinances which prohibit employment discrimination based on sexual orientation.

IN THE NEWS – RESTAURANT CHAIN PAYS $1MILLION SETTLEMENT TO MALE SERVERS, BARTENDERS AND JOB APPLICANTS

2008-05-19T11:36:00.000-04:00

Hiring preferences based on gender can result in significant liability for your company, as illustrated by a recent federal court case filed against Razzoo’s Cajun Café, a Texas-based restaurant chain. As part of its image, Razzoo’s told restaurant managers to maintain an 80/20 ratio of women to men bartenders. This resulted in a low number of male servers who were promoted to work behind the bar, and low hire rates for male job applicants. Even those men who were promoted to bartender were excluded from working at the high-paying “girls only” bartending events. The company’s website depicts servers and bartenders predominantly as young, attractive women, with only an occasional male employee shown.

The EEOC filed suit under Title VII on behalf of the male servers, bartenders and job applicants, and settled the case last week for $1 million, primarily to be distributed among the affected applicants and employees. A portion of the settlement proceeds is also earmarked to establish company-wide HR policies and training to prevent future gender-based discrimination.

The lesson to be learned from this case is that efforts to create a marketing image do not excuse excluding employees based on gender. The same principle applies to age, race, disability, religion and national origin. Caution should also be used not to bring preconceived notions about the stereotypical applicant best suited for the job into the interviewing and hiring process.

EMPLOYER ALERT -- SUMMER JOBS FOR TEENS

2008-05-16T10:54:00.000-04:00

Employment of teens under age 18 can provide a valuable summer work experience for students and an enthusiastic addition to your workforce. Be wary, though, of running afoul of federal and state laws that regulate the ages, hours and type of work performed by minors. More stringent rules regarding hours worked apply during the school year.

Some facts you should know about summer employment of teens:

If you employ any minors (under age 18), you must conspicuously display a poster that notifies them of the Child Labor Laws. Posters are available from the Florida Department of Business and Professional Regulation, and may be downloaded at: http://www.myflorida.com/dbpr/reg/documents/child_labor_laws poster_legal.pdf
All employees under age 18 must be given a 30-minute break after every 4 hours of work.
Children under 14 years old cannot be employed, except in the performing arts, newspaper delivery, baby-sitting, as legislative pages, or in a non-hazardous family business.
Teens age 14 and 15 cannot work more than 40 hours per week, and cannot work after 9:00 p.m.
Restrictions on the type of work done by 14 and 15-year-olds include the following. They may not: operate any power-driven machinery (including power mowers and cutters) other than office machines; use meat grinders, vegetable slicers, food choppers or bakery mixers; do cooking and baking (some exceptions); load or unload trucks; operate motor vehicles; conduct door-to-door sales; do spray painting; or work in construction.
Restriction on the type of work done by 16 and 17-year-olds include the following: They may not: operate motor vehicles; use forklifts or similar equipment; work on scaffolding, roofs or ladders over 6 feet; operate circular saws or band saws; use power-driven meat and vegetable slicers or a variety of other power-driven machinery; or work with electrical apparatus or wiring.

Penalties for violations of the Florida child labor laws include fines of $2,500 per offense, and criminal prosecution. Federal fines can be assessed at $11,000 per minor per violation. In addition, under Florida’s workers compensation statute, an employer may be charged double the compensation otherwise payable if an injured teen was employed in violation of any of these laws.

The best practice is to know the restrictions that apply, and make sure appropriate safety procedures are followed.

Additional information about summer safety for teen employees is available from the Department of Labor at: http://www.osha.gov/SLTC/teenworkers/employers.html

TIP OF THE DAY – EMPLOYEES ON JURY DUTY

2008-05-14T10:48:00.000-04:00

What is your responsibility when an employee is summoned for jury duty? Under both federal law and Florida state law, an employee cannot be fired, threatened with termination or otherwise retaliated against based on their service on a jury, or the length of such service. Violate these laws and your company – and individual managers as well – could be held in contempt of court and fined. Additionally, the aggrieved employee can sue the company to recover lost wages, other compensatory damages, punitive damages and attorney’s fees.

Although you are not required to pay employees during jury service, if you do choose to pay employees you must notify them of any limitations on pay before jury service begins.

The best practice is to have a clear provision in your employee handbook stating your policy on whether jury duty is paid or unpaid leave, and explaining any limitations. (For example, some policies provide for paid leave for a specified number of days, and unpaid leave thereafter.) Require employees to notify the company when they are summoned, and provide updates as to the anticipated length of service. Under certain circumstances, an employee can be excused from jury duty if their absence would cause a hardship to the employer or the employee.

IN THE NEWS - EEOC HOLDS MULTIPLE COMPANIES LIABLE ON JOINT EMPLOYER THEORY

2008-05-12T08:27:00.000-04:00

The EEOC announced last week a $1.65 million settlement in a case involving a primary contractor and four subcontractors, holding each company liable under a “joint employer” theory for racial harassment that occurred at a construction site. The key question was not which company actually employed the harassers; instead, the EEOC looked at whether supervisors in each company were aware of the harassment and failed to take appropriate action to stop it.

EEOC District Director Marie Tomasso commented: “Employers risk intervention by the EEOC when supervisors ignore racially offensive working conditions and fail to take prompt and effective remedial action to stop it.” Blatantly offensive conduct at this construction site included derogatory racial comments directed toward black employees, use of the “n-word,” repeated references to the Ku Klux Klan, and, in one instance, a noose suspended from a beam.

Although this case is an extreme example of workplace harassment, the lesson to all employers is to take immediate corrective action when an employee first complaints about a racially hostile work environment, regardless of whether your company has primary responsibility for the worksite. Harassment – whether it emanates from your own employees, a vendor, a contractor or a customer of your company, and regardless of whether it occurs in an office setting or out in the field – must be dealt with swiftly and effectively.

For additional information on this case, see: http://www.eeoc.gov/press/5-5-08.html.

TIP OF THE DAY – PROBATIONARY PERIOD FOR NEW HIRES

2008-05-09T17:40:00.000-04:00

Many employers question the need for a probationary period for new hires, since Florida is an “employment at will” state.

One good reason to establish a 90-day probationary period is to protect the company from rate increases caused by unnecessary unemployment claims. “Employment at will” means that you can discharge an employee at any time with or without good cause, as long as you don’t run afoul of federal or state discrimination laws and whistleblower protections. However, employees who are terminated for legitimate business reasons where no employee misconduct is involved do qualify for unemployment compensation benefits. The exception to this is termination of employment during an established, initial 90-day probationary period that the employee was advised of at the time of hire.

Have new employees sign an acknowledgement that they are subject to a 90-day probationary period and will not become regular employees until the period is completed. This protects your company from rate increases resulting from unemployment compensation benefits paid to newly-hired employees who simply were not a good fit, or were let go for unsatisfactory performance in the first 90 days.

EMPLOYER ALERT – FMLA COVERAGE EXPANDED

2008-05-08T18:23:00.000-04:00

The Family and Medical Leave Act provides for 12-weeks of unpaid leave for individuals working for companies with 50 or more employees. New legislation has expanded the total amount of leave to 26 weeks for any employee who is the spouse, son, daughter, parent or “next of kin” of a member of the armed forces who needs care resulting from a serious injury or illness incurred while on active duty.

The expanded leave may only be used during a single 12-month period, and the 26 weeks is cumulative to standard FMLA. Accordingly, an employee who uses 12 weeks of FMLA leave for their own medical condition, would have a balance of 14 weeks of expanded leave to use for a relative in the armed forces during that same 12-month period. The addition of the term “next of kin” applies only to this expanded leave, and is defined by the FMLA as “closest blood relative.”

In related news . . .

The Department of Labor (“DOL”) recently proposed a number of changes to the FMLA regulations. Key changes that would benefit employers include the following:

Medical Certifications: The new regulations would allow employers, under limited circumstances, to directly contact the employer’s health care provider for clarification or authentication of FMLA medical certification forms. Employers would still have to comply with the privacy requirements of HIPAA, but would no longer be frustrated by medical certifications which, in the DOL’s words, are “vague, ambiguous or non-responsive.”

Continuing Treatment: Employees with a serious health condition requiring continuing treatment but no prescribed medication would have to receive follow-up care from their health care provider within 30 days of the initial visit to qualify under FMLA.

Notice Requirements Tightened: The open-ended notice requirement for employees who become aware of the need for FMLA leave less than 30 days from the anticipated commencement of the leave would be shortened to the same day or next business day.

Fitness-for-Duty: The current FMLA regulations severely limit the circumstances under which an employer can require a “fitness-for-duty” certification from a returning employee’s health care provider. The new regulations would increase employer rights in demanding fitness-for-duty certificates, and also expand the type of information an employer can require.

These proposed regulations are currently under review while the DOL considers comments that have been received from the public and various advocacy groups.