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Legal Briefs for HR

Posted on July 31, 2012

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 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 under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” 

Here’s what’s smokin’ hot, so try to stay cool:

1.  How SAD – In what appears to be the final chapter in this SAD story, the 7th Circuit has upheld a jury’s findings that a Wisconsin school failed to reasonably accommodate a teacher by refusing to transfer her from a windowless classroom to one with natural light.  Ekstrand v. School Dist. of Somerset (7th Cir.  June 2012).  The disability at issue is Seasonal Affective Disorder (SAD), a type of depression triggered by the lack of exposure to natural sunlight.  The employer initially won on summary judgment, but upon appeal the 7th Circuit affirmed on the constructive discharge claim but  reversed and remanded on the failure to accommodate.  Once in the hands of a jury, they decided moving her to a vacant schoolroom with windows was not an undue hardship and awarded the teacher/plaintiff $2 million (which the court reduced to $133,00 plus $375,000 in attorneys’ fees and costs).   I first wrote about this case in the October 2009 issue of LB4HR, when it was remanded to the district court. The jury’s decision came on October 5, 2010 and the most recent chapter was penned on June 26, 2012. The End.  I think.

2.  Really Sad – If you can stomach discussion of child molestation and don’t mind digging into a 267-page report, the Report of the Special Investigative Counsel Regarding the Actions of The Pennsylvania State University Related to the Child Sexual Abuse Committed by Gerald A. Sandusky (aka the Freeh Report) presents a tale of woefully inadequate investigation of and response to disturbing reports, further complicated by a lack of control exercised by several departments, including human resources.  The report concludes with a tidy list of recommendations, starting on page 127, that may give many organizations (not just universities) a “to do” list to tackle, pronto.  You can find the report posted at

3.  Politically Correct – The onslaught of candidates’ ads signals that an election year is in full swing and, as an employer, if you are not aware of related employee rights, that swing just might hit you in the face.  As a reminder:

1.  Protected Activity – Certain states (i.e., CA, CO, CT, DC, LA, NY, ND, SC and WA) offer employees statutory protection from employer interference with their right to run for or hold office, some political activities in the workplace, some political speech in the workplace or broadly prohibit employment discrimination based on lawful activities that occur after hours and off premises. 

2.  Time Off to Vote Most states require job-protected time off to vote (in some cases, with pay) if the employee does not have “x” nonworking hours during which to vote on election day.  Some states (e.g., CA) require posting a notice that details employees’ voting leave rights.

3.  Solicitation and Distribution of Campaign Materials – The NLRB generally will recognize a carefully worded  policy that bans solicitations and distribution of materials related to nonwork causes and organizations, and will allow an exception for a limited number of charitable causes.  If the policy is consistently enforced, refusing a labor organizations campaign efforts will usually not result in a viable unfair labor practice claim.  If you have a such a solicitation/distribution policy, apply it to the political campaign solicitations and distribution in your workplace, too. 

4.  Hot Stuff – The other season we are enduring is the hot blast of summertime.  Although not every state has a statute like CA’s (which requires employers to provide breaks with shade and cool water for those who work outside) OSHA takes the position that employers’ general duty to provide a workplace free from recognized hazards includes managing exposure to extreme heat.  If you want to go high tech, OSHA is offering a smartphone app which combines heat index info from NOAA with the individual’s location to determine a heat risk index and suggests measures to avoid heat-related illness.  The app is available for use with Android, Blackberry and iPhone at

5.  HR Mgr as Cat Woman? – Ever heard the story of the cat’s paw?  In legal circles, the cat’s paw theory means that an employer can be held liable for discrimination where the final decision maker had no bias, but relied on input from a non-decision maker who did.  The theory has been used by plaintiffs, with success, in Title VII cases and was recently utilized in a Section 1981 case.  Section 1981 is a Civil War-era statute to protect the rights of all persons, regardless of their race, to “make and enforce contracts.”  Courts have held that these “contracts” could also be employment relationships (even at-will ones) and that the law could be used to seek a remedy for termination of employment and/or retaliation based on race.  Section 1981 has some appeal to plaintiffs since both the employer and individual defendants can be named in the lawsuit, unlike Title VII which defines the employer as the entity to be sued, and not individuals.  The Company and related entities went bankrupt, so that left a supervisor and the HR Mgr as logical targets of the peeved former employee.  Supervisor settles pre-trial, so the HR Mgr is the lone person on the hook at trial.  The bad news is that the court found that the cat’s paw theory could be used in Section 1981 claims.  The good news, at least for the HR Mgr, is that the plaintiff was lacking evidence and was unable to show retaliatory intent in the HR Mgr passing along the paperwork to corporate that resulted in termination of plaintiff’s employment.  Smith v. Bray (7th Cir. May 2012).

6.  NLRB Nitpick – I hope you are sitting down and have no blood pressure concerns, because this one may have steam coming out of your ears.  The NLRB’s Acting General Counsel has opined that a policy or employment agreement that creates an at-will relationship and says that it can only be altered by a writing signed by (usually, the CEO or other officer) is an unfair labor practice.  How?  Because it does not account for the possibility that a union might negotiate a different relationship between employer/employee and that omission creates a chilling effect on employees, who may think voting for a union would be futile.  This doesn’t say much for the Acting GC’s opinion of the brain power of the average American worker, does it?  To further make the point, unfair labor practices were filed against two employers in AZ.  The ALJ agreed with the NLRB in one and the employer conceded defeat via settlement in the other.    This interpretation seems destined to falter if/when subject to scrutiny by the full Board and/or the courts, so most employers are not scrambling to modify that provision in their handbooks, offer letters and employment agreements.  If you are a pessimist and want immediate cover, just change the language to “unless modified by a written agreement signed by the [CEO] or other duly authorized representative” since this does not specify the parties to the agreement and could mean a labor union.

7.  More Board Bits – Here’s what happens when two federal agencies are the “rock and hard place” with an employer in the middle.  ICE audits I-9s of employer, which voluntarily agrees to enroll in E-Verify but fails to inform the union which reps their employees.  Employer initially tells union it had to enroll, based on federal contractor status. That’s not right, so union files complaint with NLRB alleging unilateral repudiation and/or modification  of the CBA.  Employer settles with NLRB by agreeing to withdraw from E-Verify, reinstate individuals who were discharged while tentative non-confirmations (TNCs) were pending (or who were not allowed to contest their TNCs) and provide them with backpay and lost benefits. Lesson learned?  Check your CBA before signing up for E-Verify . . . there’s a decent chance the union must be informed before you do.  And make sure the folks who effect discharges know the rules pertaining to the TNC process, so that they don’t pull the trigger too soon.

8.  Don’t Mess With Mama – Mama returns to work at a convenience store after the birth of her child.  Mama is nursing, and the PPACA amendment to the FLSA provides that employers  must provide nonexempt workers with a private place, other than a restroom, to express breast milk.  Employer offers the store managers’ office.  New owner buys the store and within weeks, installs a live video camera in the office.  Mama says the camera makes her uncomfortable and she is told to put a bag over it.  Mama complains some more and store owner does nothing.  Mama says her milk production is dropping and store owner writes her up for unsatisfactory job performance.  Mama quits.  Mama sues under the PPACA and later amends her complaint to include retaliation and constructive discharge.  That was smart, mama, because the PPACA has no private right of action for violations of the requirements (of providing unpaid time off to express breast milk) . . . her only recourse is to complain to the U.S. Dep’t of Labor.  However, there is a remedy for retaliation under both PPACA and the FLSA, and those write-ups were not long after mama complained.  Mama just provided another classic example where there is no violation of the substance of the underlying statute, but the employer’s allegedly retaliatory response to an employee complaint creates a fresh claim.  Salz v. Casey’s Marketing Co. (N.D. Iowa July 2012).

9.  One Size Does Not Fit All IL based company had three employees in CA sign employment agreements containing noncompetes, with an IL choice of law provision (presumably to avoid the effect of CA statute banning noncompetes between employee/employer except in very narrow, identified circumstances (e.g., sale of a business)).  CA court held that the noncompetes were not only unenforceable, but their mere existence results in the employer’s affirmative liability for unfair business practices under the CA Business and Professional Code, section 17200 et seq.  Arkley v. Aon Risk Services Companies, Inc. (C.D. Cal. June 2012).  This is a great example of why multi-state employers should be wary of trying to create a single noncompete to use in every state where they have employees.  To refresh on the basics, [1] noncompetes are a creature of state law, either via statute or common law; [2] each state has its own definitions of what interests are protectable, what type of consideration is adequate, the permissible scope of the restrictions and whether or not an overbroad agreement can be “fixed” by a court wielding its “blue pencil” to pare back the offending language; and [3] your choice of law provision will likely not have the desired effect if the jurisdiction where the covered employee resides is more protective of individual’s “right to mobility” than the law you chose.  For another example of a noncompete quirk, see New Hampshire, below.

10.  Stated Differently – Here are some hot topics for you multi-state employers:

1.  Delaware – Eff. July 12, the DE Dep’t of Labor has been statutorily authorized to begin identifying construction industry employers found to have misclassified employees as independent contractors by posting their names on the agency website.  Apparently public shaming is back in vogue.

2.  New Hampshire – Eff. July 14, noncompete and nonpiracy agreements are void and unenforceable unless provided to the applicant or employee prior to or concurrent with an offer of employment or an offer of change in job classification.  Signatures are not discussed, but the signing and dating of the agreement by the employee will provide evidence of compliance with this new requirement.  An employee subject to a change in job classification who is already bound under an existing agreement probably does not need to sign a new one, but make sure the language reflects the employee’s continuing obligation under that circumstance.

3.  New York – Eff. July 1, 2013, the Dignity for All Students Act (DASA) is expanded to address cyber-bullying and actions occurring off campus that create an actual or foreseeable risk of substantial disruption with the school environment.  Students and their parents can make verbal or written reports of harassment to the school and districts are required to promptly investigate.

4.  Ohio – Eff. Sept. 6, 2012, OH creates a six-year trial program which will offer employers a tax credit for employees who will work from home and be paid at least  131% of the federal minimum wage.

5.  Pennsylvania – Eff. January 1, 2013, E-Verify is mandated for all new hires of construction contractors/subcontractors on public works projects.  Prior to beginning work on the project, the contractor/subcontractor must provide the awarding agency a certification of compliance.

6.  Rhode Island – Eff. January 1, 2013, the state minimum wage will increase to $7.75/hour.  The current rate is $7.40/hour.

7.  South Carolina – Eff. June 7, 2012, SC beefs up its “right to work” statute with fines of $1000 to $10,000 for violations, treble damages to individuals harmed by a violation and allowing posted notices that explain employees’ rights under the law.  For an explanation of right to work laws and a map showing which states have such laws, check out

8.  West Virginia – Eff. July 1, 2012, texting while driving is a primary offense which can result in a citation.  Speaking on a phone without hands-free equipment remains a secondary offense (meaning no citation unless done at the same time as a primary offense, like running a red light) until July 1,2013 when it will also become a primary offense.  There are exceptions to these prohibitions for emergency responders in the course of their duties and for others using their device to report a fire, traffic accident, road condition, or other emergency.

11.  For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State), follow me on Twitter.  I’m at @amross.

Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
600 Banner Place
12770 Coit Road
Dallas, TX  75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)

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