IN THE NEWS – FOCUS ON OLDER WORKERS

Most employers recognize their obligation to avoid discriminating against their employees based on sex or race, and are careful to include policies in their HR manuals that directly prohibit harassment or other forms of discriminatory treatment.  One group, however,  that feels increasingly discriminated against – and is not usually specifically addressed in employer policies -- is the elderly. Elderly people often strongly believe that their age puts them at a disadvantage in the job market.

What is interesting is that statistically the elderly are actually less likely to lose their job than younger people are, but they are more likely to have difficulty getting another job if they are fired.

One of the difficulties facing elderly workers who feel that they have been discriminated against is that the bar for proving these cases was raised in 2009 when the Supreme Court decided the case Gross v. Financial Services Inc.  As a result of that case, a plaintiff in an age discrimination lawsuit must prove that age was the sole motivating factor for the adverse employment action, instead of having to simply prove it was one of the factors (which was the previous standard).

Because of this, it's very difficult for a plaintiff to win an age-discrimination case, but employers should still be cautious when disciplining or terminating older workers. Because elderly people feel like they are often discriminated against, an employer should be careful to not appear to be taking age into consideration when hiring or firing. It's hard to win an age-discrimination case, but because elderly people often feel victimized, they're very likely to try. The best tactic is to always avoid even the appearance of discrimination.  Remember, the object isn’t to win lawsuits (after spending significant legal fees and costs, and disrupting your business operations); the object is to avoid being sued in the first place.

And it’s not only the elderly who perceive age discrimination in the workplace as widespread.  Congress views age discrimination as a real problem, especially in light of the Supreme Court ruling. In May, Congress held a hearing about age discrimination, and one proposed bill would return age discrimination cases to the old standard. Because of this, it's very possible that changes in the law will make it easier for age discrimination cases to succeed.  You should be prepared. It's always good practice to take every step to avoid appearing discriminatory, because the laws can change, and the fewer people accuse you of discrimination, the better.

Read more about the proposal and the hearing here:

http://www.floridatrialattorneys.net/blog/2012/04/congress-proposes-new-bill-to-reverse-limiting-age-discrimination-decision.shtml

http://www.huffingtonpost.com/2012/05/15/age-discrimination-unemployment_n_1518591.html

EMPLOYER ALERT - NO DIPLOMA, NO JOB?

A hard and fast rule that all job applicants must have a high school diploma can get you in trouble.  The Equal Employment Opportunity Commission has published new rules about how the Americans with Disabilities Act (ADA) applies to people without a high school diploma. Immediately rejecting someone for lacking a high school diploma could be considered discrimination. At first, this sounds like a terrifying and ridiculous rule, but it's much more nuanced than it first seems. As long as an employer is aware of the rule and how it works, there shouldn't be any issue (you don’t have to hire someone who isn’t qualified).

The rule has to do with people who did not complete high school because of some disability that prevented them from doing so. If you require a high school diploma to be hired for a job, and an applicant tells you that they were unable to get a high school diploma because of a disability, then all this rule means is you should allow the applicant to show some other evidence proving that they are qualified.

It’s still your decision who to hire, and you can choose another candidate if they are more qualified or simply a better fit for your organization. What's important though is to give everyone a chance to prove their qualifications, instead of simply rejecting an applicant out of hand solely because they don’t have a diploma.

In practice, this won't actually affect smart businesses much at all (since just allowing someone a chance to prove qualifications in other ways is a pretty minor accommodation), but it could hurt businesses who are unaware of the new rule. Luckily, you now know how this works, and so you know how to avoid getting in trouble with the EEOC.

Read more about this new rule here:

http://www.eeoc.gov/eeoc/newsroom/wysk/high_school_ada.cfm

IN THE NEWS – RESUME, JOB APPLICATION . . . . AND FACEBOOK PASSWORD?

According to recent stories in the media an increasing number of employers are asking job applicants to either provide their login information for Facebook, LinkedIn and other social networking sites, or log onto their private account during the actual job interview. Others ask the applicant to accept a “friend” request from an HR representative or a recruiter.

The following are just a few of the news articles published on this topic recently:

http://www.cnbc.com/id/46792761/page/2/

http://www.wtsp.com/news/article/246040/250/Would-you-share-your-Facebook-password-during-a-job-interview

http://www.valleynewslive.com/story/17204725/facebook-password-needed-for-a-job-interview

http://www.cbsnews.com/8301-500395_162-57400973/should-job-seekers-open-up-their-facebook-page/

Although several states are considering introducing legislation that would limit a public employer’s access to private information on social networking sites, currently there are no laws preventing an employer (either public or private) from requesting access to an applicant’s social media site – or preventing the employer from refusing to hire an applicant who says no.

What type of information are employers looking for? Many are using a social network site as a replacement for character references and a background check. An individual’s Facebook page can reveal information about alcohol consumption, use of illegal drugs, inappropriate photos, and rants about a former employer, just to name a few potential disqualifiers. An employer has every right to make a no-hire decision based on the foregoing.

However, an individual’s Facebook page (or other social network site) may also reveal information the employer legally cannot factor into the hiring decision – information, for example, regarding an individual’s sexual orientation, age, race, marital status, national origin, disability, and religious beliefs. An employer who has access to this information and then decides not to hire the candidate risks being accused of making the decision for a discriminatory reason.

The best practice is for employers to avoid the temptation to request access to an applicant’s social networking sites. Otherwise, you may get more information than you intended.

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

“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

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.

www.towzey.com

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

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

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.”