IN THE NEWS – SUPREME COURT TAKES ON RETALIATION ISSUE

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

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

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

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

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

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”

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?

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

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

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

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

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

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

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:

1. River City, huh? My cousin went to high school there. What year did you graduate?
2. So, you’re new to the area. Do you need any help finding out about schools or churches?
3. I see from your resume that you’ve got over 30 years experience. How long are you planning to work before you retire?
4. You got married recently – congratulations! Are you planning to have kids?
5. That’s a very unusual name. What nationality is that?
6. Some of us are on a company softball team –I bet you’d be a great addition. Could we count on you?
7. Being here on time is important to us. As a single parent, do you think your childcare responsibilities will interfere with your attendance?
8. How do you feel about reporting to a (younger/female) supervisor?
9. I couldn’t help noticing your accent. Are you from the Middle East? What do you think about what’s going on over there?
10. 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

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

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

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

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

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

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.