Welcome to Legal Briefs for HR, an update on employment issues sent to over 4800 HR professionals, in-house counsel and business owners all over the U.S. to help them stay in the know about employment issues. Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in! Back issues are posted at www.munckcarter.com under Media Center/Legal Briefs. I’m looking forward to speaking at the April 28 meeting of Lubbock SHRM chapter. And for those who may need CLE this spring, yours truly will be among the speakers at the University of Texas School of Law 2011 Labor and Employment Law Conference in Austin on May 12 and 13. An agenda and registration info is available at www.utcle.org or call 512.475.6700.
Here’s what’s springing up:
1. New Meaning of “File” – Savvy employers know that retaliation claims are on the rise in part because a motivated plaintiff may find that claim easier to establish than the underlying alleged statutory violation. And if the employee’s complaint stems from the Fair Labor Standards Act (FLSA), the U.S. Supreme Court has made it even easier by holding that an oral complaint can support an FLSA retaliation claim. The case involved a manufacturing and production worker in WI who claims he made multiple verbal complaints to his supervisor and to HR about the location of the time clock. In his opinion, its position prevented employees from being “on the clock” while donning/doffing protective gear. The employee received several warnings about failing to properly use the time clock prior to his suspension and then termination from employment. He claimed the termination violated the FLSA’s anti-retaliation provision which states, in part, that employers are prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” The district court (W.D. Wisc.) and appeals court (7th Cir.) sided with the employer in their argument that “filed any complaint” means a written complaint, which the employee did not do. The U.S. Supreme Court, however, looked to the dictionary, Congressional intent and the U.S. Dep’t of Labor’s interpretation in finding that the complaint need not be in writing to support a retaliation claim. Kasten v.Saint-Gobain Performance Plastics Corp. (U.S. 3-11). What they didn’t decide (because the issue was raised too late by the employer) is whether FLSA retaliation protection applies only when the employee complained to a government agency, or if it also applies when the complaint is made internally, to the employer. This case provides another example of why it’s so important to train your managers and supervisors in the basics of employment law, and to revisit your HR procedures to provide a safety net against claims resting upon undocumented complaints. I provide Supervisor’s Toolkit training that can be done in blocks over time or as a “get ‘er done” seminar, so let me know if I can help you.
2. Self-ish?– As a follow-up to last months’ LB4HR announcement that USCIS would launch an E-Verify self check service, the service was launched a few days later than planned (March 21 vs. March 18) and will initially be limited to individuals in AZ, ID, CO, MS, VA and DC. The agency hopes to roll out the service, in blocks, and go nationwide in one year.
3. Finally! – Final regulations implementing the ADA Amendments Act (“ADAAA”) of 2008 have arrived. The law took effect January 1, 2009 and the new regs will take effect 60 days after publication in the Federal Register on March 25. Commentators are generally relieved that the list of per se disabilities is gone but it’s been replaced with a list of conditions that should be “easily concluded to be disabilities” while emphasizing that individual assessment is still needed. Is that progress?
4. Doggin’ it and Horsin’ Around – The portion of the ADA which deals with places of public accommodation has been amended to address concerns about what type of “service animals” must be allowed in, as an accommodation to a disabled individual. For starters, animals which are intended only to provide emotional support are no longer considered service animals. Further, the definition of a service animal is now limited to dogs that have been individually trained to do work that benefits the individual with a disability. Other animals no longer qualify except for miniature horses, in certain limited circumstances. This change does not apply to the portion of the ADA which deals with employment, so check with legal counsel if you have concerns over an employee’s request to bring a small horse or other service animal to work.
5. Take That! – In response to NLRB decisions that have generally displeased employers, the National Right to Work Act (S. 504) was filed in Congress on March 8. If passed, the NRWA would prohibit union security agreements in collective bargain agreements, thereby making union membership and paying of dues a condition of employment for employees covered under the CBA. The current hedge against union security agreements exists in 22 states which have passed “right to work” laws. If you’re not sure whether the states your business has employees in are right to work or not, go to www.nrtw.org. to find out. H.R. 1047 was filed to protect those states which enacted amendments designed to ensure that union representation voting is done via secret ballot and not via a card check procedure. This bill is the latest salvo in the battle between the states that have already passed such laws (i.e., AZ, SC, SD, UT) and the General Counsel of the NLRB, who has vowed to sue those states. [Note: There is a similar bill pending in the Texas legislature, H.B. 471]. And H.R. 972, if passed, would require use of secret ballots in all union representation elections. To read full text and follow the progress of these bills, go to http://thomas.loc.gov.
6. It’s No Joke – Think you can’t be held responsible when your employee is harassed by your customers’ employees? One employer thought so and disregarded a route driver/vending machine stocker’s complaints that yahoos at a hospital on his route assumed he was gay, made daily unwanted sexual comments, groped themselves and propositioned him. He told several supervisors and a manager but his employer’s response was to the effect of “they’re not our employees” and “it’s a joke . . . don’t take it seriously.” After the EEOC got involved, a settlement attempt (shift change) failed because it would interfere with the driver’s child care duties and cut his pay. He quit and the EEOC sued. The trial court felt the employer had insufficient notice and should not be liable, but the circuit court said they knew enough to be deemed to have actual or constructive notice of the harassment and failed to take any remedial action. EEOC v. Cromer Food Services (4th Cir. 3-11).
7. Tax Tips – The IRS states that breast pumps and lactation supplies qualify as “medical care” under IRC sec. 213(d). Amounts reimbursed for these expenses under an FSA, Archer MSA, HRA or HSA are not income to the taxpayer. The announcement is posted at www.irs.gov/irb/2011-09_IRB/ar11.html.
8. It’s Not Fair – A recent $5.9 million settlement is a stark reminder that failure to follow the federal Fair Credit Report Act’s technical requirements can be a pain in the pocketbook. Hunter et al v. First Transit, Inc. (N. D. Ill. 3-11). For starters, do not be lulled into thinking that the law applies only to credit checks. The FCRA comes into play whenever you use a third party to provide info you’ll use to determine an individual’s fitness for hire, advancement or other employment purposes. Then, make sure you are getting the info for an allowed purpose (e.g., employment) and that you’ve signed off on the necessary certifications with your info provider(s). Next, be sure you provide your applicant or employee with a compliant notice form and get written authorization BEFORE you request that background check. And if the ensuing report is used, in whole or in part, to deny the hire, advancement, etc., there is a two-step written notice process to follow before you rescind the offer or take other adverse employment action. The settlement in the aforementioned case arose out of failures to provide pre-check disclosure and post-check notices.
9. Marriage Penalty – Under the FMLA, new parents who are married and work for the same employer are limited to taking 12 weeks of job-protected leave between them. If, however, the new parents are not married, each can take 12 weeks of FMLA leave for the event. Some states recognize and address this unintended consequence in their state FMLA clone laws. For example, the CA Family Rights Act provides 12 weeks of leave (not 24) for new parents employed by the same employer to bond with the baby, whether they are married or not.
10. Stated Differently – Here are some morsels for you multi-state employers:
1. California – Prospective plaintiffs who want to sue their employer under the CA Fair Employment and Housing Act have one year from the date the Right to Sue notice is issued by the CA Dep’t of Fair Employment and Housing, not one year from the date the notice is received. The statute says the limitations period is “one year from the date of that notice” and the CA Court of Appeals decided that means the date the notice was mailed. The date the aggrieved employee claims to have received the notice is not relevant. Hall v. Goodwill Industries of Southern California (Cal. App. 4th 3-11).
2. Nebraska – Add the Cornhusker state to the list of those that have a law protecting the right of women to breastfeed in public and private locations. For a complete list of states with similar (and additional) protections, go to the La Leche League website at www.llli.org/law/lawus.html.
3. Pennsylvania (Philadelphia) – The Philadelphia Fair Practices Ordinance has been amended to add three new protected categories, mandate a workplace poster and beef up enforcement. The new protected categories (i.e., genetic info, domestic or sexual abuse victim status and familial status) add on to the current list which includes race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability and marital status. The familial status category is extraordinarily broad, to include the individual’s spouse, life partner, parents, grandparents, siblings, in-laws, children, grandchildren, nieces and nephews, including those obtained via adoption or other dependent or custodial relationships. The expanded ordinance takes effect June 22, 2011 and a copy can be obtained at www.phila.gov/humanrelations/.
11. For the Birds – If you like being tweeted and want breaking news on employment law changes, follow me on Twitter. I’m at @amross.
Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Carter LLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
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