Author: James Denis

After repeated complaints that Gene Hughes, an employee relations director, was allegedly sexually harassing female employees, the Metropolitan Government of Nashville and Davidson County (known as Metro) conducted an internal investigation. Vicky Crawford, a payroll coordinator for 30 years, was interviewed as part of the sexual-harassment investigation. When asked by the Metro about alleged harassment by Hughes, Crawford told Metro’s human resources manager that Hughes had asked to see her breasts on numerous occasions, grabbed his genitals in front of her and once pulled her head toward his genitals.

   Metro fired Crawford, alleging embezzlement. No action was taken against Hughes.

   Crawford filed suit in U.S. District Court in Tennessee under Title VII of the Civil Rights Act of 1964, claiming that Metro retaliated against her for reporting on Hughes’ behavior. The court found in favor of Metro, and the U.S. Court of Appeals for the 6th Circuit in Cincinnati affirmed, holding that the “opposition” clause of Title VII demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation.

   On review, the U.S. Supreme Court reversed and remanded, ruling that Title VII’s anti-retaliation protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Crawford’s statement is covered by the “opposition” clause, as a disapproving account of Hughes’ “sexually obnoxious” behavior toward her represented “active, consistent” opposition to unlawful actions. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595 (1/26/09).

    Impact: Title VII covers an employee’s report of discrimination, whether on his own accord or in response to the employer’s internal investigation of such matters.

Workforce Management, February 16, 2009, p. 23 — Subscribe Now!

Employer-sponsored health care plans are subject to new requirements created by a number of federal laws enacted in 2008, including the Genetic Information Nondiscrimination Act, the Mental Health Parity and Addiction Equity Act, and “Michelle’s Law.”

    The Genetic Information Nondiscrimination Act (H.R. 493, P.L. 110-233) prohibits employers and group health plans from discriminating on the basis of genetic information and limits the collection of information by employers and group health plans. The law prohibits enrollment restrictions and premium adjustment on the basis of genetic information or services and bars employers from requesting or requiring that an individual take a genetic test. Employers and group health plans can be held liable for the unlawful collection of genetic information. The law takes effect in November 2009 (18 months after enactment on May 21, 2008).

    The Mental Health Parity and Addiction Equity Act (H.R. 1424, 110 P.L. 343) requires employers with 50 or more employees that provide mental health and substance abuse benefits to extend benefits on the same level as they provide for traditional medical and hospital benefits. It does not require employers to provide benefits for mental health and substance abuse services. This law applies to plan years beginning on and after October 3, 2009, and beginning January 1, 2010, for calendar-year plans. For collective-bargaining-agreement plans, the law applies to plan years beginning after January 1, 2009, or the date on which the last collective bargaining agreement terminates.

    “Michelle’s Law” (H.R. 2851) ensures that dependent college students who take a medically necessary leave of absence for up to one year do not lose health insurance coverage.

    Impact: Plan sponsors should review their plans to ensure that appropriate mental health and substance abuse benefits are available and that limitations imposed on mental health, substance abuse, medical and hospital benefits are the same.

Workforce Management, January 19, 2008, p. 8 — Subscribe Now!

The Department of Labor has issued revised regulations for the Family and Medical Leave Act that will take effect January 16, 2009. Among the changes are regulations to implement statutory amendments signed into law by President Bush in January 2008 allowing new leave entitlements for family members of military personnel.

    The FMLA now permits family members of wounded military personnel to take up to six months of unpaid leave to care for them during their rehabilitation in a single 12-month period. It also entitles family members to take time off to manage short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities and any additional activities agreed to by the employer and employee.

    Also, obtaining medical certification regarding a “serious health condition” has been extended to allow employer representatives to contact the employee’s health care provider for this certification. However, if the certification is incomplete, the employer must notify the employee in writing and give the employee seven calendar days to provide the employer with this information. The employer may also require employees to provide a new certification every 12-month FMLA period if a condition lasts longer than one year, or to require recertification of an ongoing condition every six months.

   In addition, the new rules also require employers to provide employees with a general notice about the FMLA, an eligibility notice, a notice of rights and responsibilities, and a designation notice. The time period for various notices has been extended from two business days to five. Additionally, it allows employers to require employees to exhaust paid leave before taking unpaid leave. The new rules treat vacation and personal and sick leave the same way. 29 CFR, Part 825.

    Impact: Employers are advised to consult the new regulations’ entitlements and notice requirements. An employer may now be liable when it fails to follow the notification rules and the employee is caused harm as a result of this failure.

December 2008 — Register Now!

Donald Sullivan was among many out-of-state employees who worked as software instructors for Oracle in California, training customers on the use of the company’s software products. Oracle classified its instructors as “teachers” and considered them exempt from overtime provisions of the Fair Labor Standards Act and the California Labor Code until 2003, when it reclassified employees nationwide as being eligible for overtime pay. Oracle settled claims brought by California resident instructors, but refused to pay any settlement to employees who had worked in the state of California but were not residents of California.
Sullivan and two other employees who worked either daily or weekly overtime for Oracle in California while living in another state filed suit in a California state court seeking overtime pay. The case was removed to U.S. District Court for the Central District of California. The court found in favor of Oracle, and Sullivan appealed.
The U.S. Court of Appeals for the 9th Circuit ruled that Sullivan and other out-of-state residents who worked in California were entitled to overtime pay under the FLSA and state law because California intended to apply its labor code to out-of-state residents working in the state.

    The court held that “California’s employment laws govern all work performed in the state, regardless of the residence or domicile of the worker.” The court also stated: “[W]e fail to see any interest Colorado or Arizona have in ensuring that their residents are paid less when working in California than California residents who perform the same work.”

    The 9th Circuit held that the company’s failure to pay overtime violated California unfair-competition law, but that it “does not apply to the claims of nonresidents of California who allege violations of the FLSA outside California.” Sullivan v. Oracle Corp., 9th Cir., No. 06-56649 (11/6/08).

    Impact: Overtime pay required by California law applies to California residents and residents of Colorado and Arizona.

December 2008 — Register Now!

The National Labor Relations Board on October 3 reaffirmed that when litigating whether illegally discharged workers conducted a reasonable search for work, an employer must demonstrate that substantially equivalent jobs were available in the relevant geographic area.

    In 2007, the NLRB for the first time placed on its general counsel the burden of rebutting an employer’s evidence that the worker failed to mitigate back-pay damages, by producing competent evidence that the employee took reasonable steps to seek those jobs. St. George Warehouse, 351 N.L.R.B. No. 42, 183 LRRM 1235 (2007); 196 DLR A-6 (10/11/07).

   The NLRB general counsel’s office last month explained that its attorneys bear the initial burden of proving the amount of gross back pay the worker would have earned had he or she not been illegally discharged. The employer then has the opportunity to prove an affirmative defense to reduce the amount of back pay owed, which includes arguing that the worker did not make reasonable efforts to mitigate damages by finding interim work. The general counsel explained that its attorneys should be prepared to rebut the employer’s evidence by showing that “differences in specifics, such as location, type of work, rate of pay and other working conditions may demonstrate that the employer’s proffered evidence does not establish that the jobs were substantially equivalent.” Guideline Memorandum Concerning St. George Warehouse, Office of Gen. Counsel, GC 09-01 (10/3/08).

    Impact: Employers retain the ultimate burden of proof in showing a lack of diligence on the employee’s part in looking for work. To prove an employee’s failure to mitigate back-pay damages, an employer must show that substantially equivalent jobs were available in the relevant geographic area during the relevant period. When conducting an investigation regarding the availability of jobs, employers are encouraged to obtain data from the Labor Department’s Bureau of Labor Statistics and to interview state and local government officials about the availability of employment for those with similar skills and experience.

Workforce Management, November 3, 2008, p. 8 — Subscribe Now!

In July 2006, the San Francisco Board of Supervisors passed the San Francisco Health Care Security Ordinance to “prioritize services for low and moderate income persons,” requiring all medium and large employers in the city to make minimum health care expenditures on behalf of covered employees, either by paying into their own employee benefits plans or into a fund maintained and administered by the city.

    Covered employers are those that have an average of at least 20 employees performing work for pay during a quarter and nonprofit companies with an average of at least 50 employees performing work for pay during a quarter. Under the ordinance, for-profit employers with 20 to 99 employees and nonprofit employers with 50 or more employees must make health care expenditures at a rate of $1.17 per hour. For-profit employers with 100 or more employees must make health care expenditures at a rate of $1.76 per hour.

    The Golden Gate Restaurant Association sued the city in the U.S. District Court for the Northern District of California, asking the district court to declare that ERISA pre-empts the employer spending requirements, and seeking a permanent injunction against enforcement of the provisions relating to those requirements. The district court entered judgment for Golden Gate, and the city appealed.

    The U.S. Court of Appeals for the 9th Circuit in Pasadena, California, reversed and held that ERISA does not pre-empt the ordinance. “An employer’s obligation to make monetary payments based on the amount of time worked by an employee, over and above ordinary wages, does not necessarily create an ERISA plan.” Golden Gate Rest. Ass’n v. San Francisco, 9th Cir., No. 07-17372 (9/30/08).

    Impact: As the issue of health care coverage and availability continues, employers should anticipate further efforts by state and local governments to mandate such matters.

Workforce Management, November 3, 2008, p. 11 — Subscribe Now!

The Legal Arizona Workers Act, a state law that went into effect January 1, 2007, required Arizona employers to use the federally operated E-Verify employment verification system, a database for checking work eligibility and Social Security numbers, to confirm their employees’ work authorization, and penalized employers for hiring illegal immigrants by revoking their business licenses. The use of E-Verify is voluntary under current federal immigration law, but became mandatory under the Arizona law.

    A coalition of business and immigration rights groups filed suit in the Phoenix-based U.S. District Court for the District of Arizona, alleging that the act was pre-empted by federal immigration laws and violated due process by denying employers the opportunity to challenge any determinations of the work authorization status of employees before sanctions were imposed. After the district court rejected the claims and upheld the act, the plaintiffs appealed.

    The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, upheld the district court’s determination that Arizona’s law is a “licensing law” as permitted under a savings clause in the federal immigration law, and thus not pre-empted by federal immigration law. It also held that due process rights were not violated because “an employer’s opportunity to present evidence at a hearing in a superior court, in order to rebut the presumption of the employee’s unauthorized status, provides the employer a meaningful opportunity to be heard before sanctions are imposed.”

    The 9th Circuit also observed that, with respect to the Legal Arizona Workers Act, “other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.” Chicanos por la Causa Inc. v. Napolitano, 9th Cir., No. 07-17272 (9/17/08).

    Impact: Employers should monitor state and local regulations as they impose legal obligations with regard to obligations to confirm the work status of applicants and employees.

Workforce Management, October 20, 2008, p. 9 — Subscribe Now!

Brian Petty worked as a police sergeant, supervising patrol officers, for the Metropolitan Government of Nashville, Tennessee, known as Metro. When Petty was called to active duty in 2003 with the U.S. Army and stationed in Kuwait, he was accused of manufacturing and offering wine to other soldiers. The Army dismissed charges against Petty in exchange for his resignation, and he was discharged “under honorable conditions.”

When Petty requested reinstatement to his job, Metro required Petty to complete a questionnaire about whether he had been charged in any military disciplinary proceeding. Petty admitted charges had been made against him, but he did not disclose the substance of those charges. Believing Petty was concealing information, Metro refused to reinstate him to his former position, but assigned him to work in an office position for the police department with significantly fewer responsibilities than his former position.

Petty sued Metro in the U.S. District Court for the Middle District of Tennessee under the Uniformed Services Employment and Reemployment Rights Act, alleging that Metro unlawfully delayed his re-employment, failed to restore him to his full patrol sergeant’s job and discriminated against him based on his military service. The district court dismissed the lawsuit in favor of Metro, and Petty appealed.

The U.S. Court of Appeals for the 6th Circuit reversed, holding that USERRA prohibits an employer’s adoption of a “policy, plan or practice” that creates additional prerequisites to a service member’s statutory right to re-employment. Petty’s failure to provide the separation papers he had received from the military, which were “statutorily unnecessary,” did not prevent Petty from exercising his right to re-employment. Petty v. Metro. Gov’t of Nashville & Davidson County, 6th Cir., No. 07-5649 (8/18/08).

Impact: Protections under USERRA extend to employees who have left military service under “honorable conditions,” make a timely request for reinstatement and provide the employer with a signed authorization allowing access to the employee’s military and medical records.

Workforce Management, October 6, 2008, p. 11 — Subscribe Now!

In May 2004, Angela Harper, an African-American Muslim, was working as a dishwasher at Starlight Restaurant in Ellensburg, Washington. As a part of her religion, Harper wore a head scarf, or hijab. After Harper became a waitress, she was allowed to work only breakfast and lunch shifts and was denied the more lucrative dinner and cocktail shifts, even though her immediate supervisor considered her qualified.

    Harper attempted to transfer to the position of cocktail waitress, but said she was told “It wasn’t about your race, it was more about your scarf thing.” The restaurant owner, Doris Morgan, made negative comments about Harper’s scarf, expressed a preference for white waitresses and said that restaurant patrons would not want “a girl like that” serving cocktails. Harper was offered a job as a cocktail server, but considered the offer “insincere” and resigned.

    On Harper’s behalf, the Equal Employment Opportunity Commission filed suit in U.S. District Court for the Eastern District of Washington, alleging claims for discriminatory refusal to promote and constructive wrongful termination in violation of Title VII of the Civil Rights Act of 1964.

    The district court denied Starlight’s motion for summary judgment on a Title VII claim. The EEOC presented evidence that Morgan had asked Harper to “wear a fancier headdress” and stated that she did not understand “the whole Muslim thing.” Morgan also told the dining room manager that she wanted only “really gorgeous girls” serving cocktails and preferred “hot white girls.” The court ruled that the evidence was more than sufficient to show unlawful discrimination on the basis of religion or race and for constructive termination because a reasonable jury could find that Harper was “driven from the workplace.” EEOC v. Starlight, LLC, 2008 U.S. Dist. LEXIS 60257, E.D. Wash. (8/4/08).

    Impact: An employer’s derogatory comments about an employee’s religious clothing may provide direct evidence that its refusal to promote was prompted by the employee’s religious beliefs.

 

Workforce Management, September 22, 2008, p. 13 — Subscribe Now!

On April 10, Florida approved a bill that prevents employers from asking workers if they carry guns in their cars, from searching employee vehicles, from taking action against workers for possessing guns in locked vehicles, and from conditioning employment on whether a job applicant holds a “concealed-carry” gun permit.

The Florida Retail Federation, the Florida Chamber of Commerce and other business groups challenged the law, asserting that it was unconstitutional because it violated the Occupational Safety and Health Act by endangering workers and because it forced property owners to make their property available for unsupported purposes. The business groups sought a preliminary injunction in the U.S. District Court for the Northern District of Florida.

Denying in part and granting in part the preliminary injunction, the district court refused to block the law’s provisions that limit an employer’s right to ask an employee about the presence of a gun in his or her car at work, search employee vehicles for guns, or condition employment on whether an applicant holds a “concealed-carry” permit.

The district court found that the law was not an unconstitutional taking because the law did not affect an employer’s right to continue to operate a business. The only change created by the law was that “if a business chooses to provide parking, the business may not keep guns from being secured in a vehicle.” Florida Retail Fed’n Inc. v. Attorney General of Fla., N.D. Fla., No. 4:08-CV-179-RH/WCS, preliminary injunction (7/28/08).

    Impact:Several states have laws that protect the right of individuals to possess guns at work. In this case—at least in Florida—employers are advised to follow an unofficial “don’t ask, don’t tell” policy concerning whether an employee has a gun in a locked vehicle at work.

Workforce Management, September 8, 2008, p. 19 — Subscribe Now!