IN THE NEWS – FAIR PAY ACT EXTENDS TIME FOR CLAIMS

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

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

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.”