Legal Briefs for HR
Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 individual HR professionals, in-house counsel and business owners plus HR and legal professional organizations (who have been given permission to republish content via their newsletters and websites), 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.munckwilson.com under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” Welcome, to new subscribers who attended my sessions at the Texas Workforce Commission Business Conferences in Texarkana and College Station!
This military brat salutes our men and women in the Armed Forces, on the solemn anniversary of an unspeakable act that occurred in NY, PA and DC but touched us all. Thank you to all who serve our nation and who have successfully prevented a repeat of that awful day. That includes the employers of our citizen soldiers, who see them off to battle and then welcome them home. Bless you, one and all.
1. Heads’ Up Federal Contractors– U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published final rules for affirmative action plans, as they relate to protected veterans (under VEVRAA) and the disabled (under Section 503 of the Rehabilitation Act). The new regs take effect 180 days after publication in the Federal Register, on 2-25-14, but the trickier requirements in Subpart C can wait until your next AAP cycle, if you have an existing AAP in place on that date. Some of the key changes are:
1. Contractors have an aspirational nationwide goal of 7% disabled workers in each job group; contractors with 100 employees or less apply the goal to the entire workforce, rather than by job group
2. Contractors are to set annual hiring benchmarks for protected veterans based on either national or state data
3. Offer both pre-offer and post-offer invitations to self-identify, as a protected veteran or disabled individual; all employees given opportunity to self-identify as a disabled individual every five years
4. Mandated language to include in contracts and purchase orders
5. Expanded data collection requirements and record-keeping requirements
6. New training required for employees involved in recruitment, selection and disciplinary actions
While you’re at it, you may want to print out OFCCP’s updated Federal Contract Compliance Manual, which was posted to its website on August 23. Fill your printer up with paper . . . it’s 487 pages plus three appendices. You’ll find it at www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf.
2. Believe Me– What is your IQ when it comes to religious accommodation under Title VII? One employer learned the hard way that a declined request for time off to attend a funeral can end up in the courthouse. Here’s the story. Employee hails from Nigeria and makes a written request for five weeks of unpaid leave to return to Africa to participate in funeral rites for his father. He explained the events surrounding the funeral and said that if he, as the first child and only son, did not lead the rites, he and his family would suffer at least spiritual death. Request denied. Employee makes a second request, this time for one week of vacation plus three weeks without pay, to attend the rites, with further explanation of what they entailed. Request denied. Employee goes anyway and is discharged upon his return to work. Employee sues. The lower court granted summary judgment to the employer, finding insufficient notice of the religious nature of the funeral. The 7th Circuit Court of Appeals reversed and employee wins his Title VII religious discrimination claim. The 7th Circuit found the lower court erred by not fully considering the religious nature of what the employee had asked for. By specifically referencing a “funeral ceremony” and a ‘funeral rite” plus animal sacrifice and the spiritual damnation resulting from his failure to attend, the employee had put his employer on fair notice of a need for religious accommodation. While some religious requests may be unusual, all that is needed to implicate Title VII is a “genuinely held belief” involving matters of the afterlife, spirituality or the soul among other things. Religious accommodation may be on the table if these elements are satisfied:  the belief necessitating the accommodation must be actually religious;  the religious belief must be sincerely held; and  accommodation of the belief must not impose undue hardship on the employer. Adeyeye v. Heartland Sweeteners LLC (7th Cir. 7-13).
3. FMLA Fine Print – On August 9, the U.S. Department of Labor issued guidance clarifying that employees who are same-sex spouses in states that recognize same-sex marriage may take FMLA leave to care for a spouse with a serious health condition, if the employee is otherwise eligible to take FMLA leave. Fact Sheet 28F: Qualifying Reasons for Leave under the Family and Medical Leave Act has been modified to reflect this change, as required under the Supreme Court’s decision in United States v. Windsor.
4. HIPAA Hint: Erase the Hard Drive– Affinity Health Plan, Inc. will pay a $1.2 million settlement to the U.S. Department of Health and Human Resources for disclosing protected health information. The company had returned several leased copiers to an office equipment vendor without first erasing the hard drives, which contained an estimated 344,579 individuals’ medical records. Further, the company’s risk assessment process failed to add the copier hard drives into its definition of electronic protected health information (ePHI), as required under the HIPAA Privacy and Security Rules. The subsequent owner of one of the leased copiers, CBS, informed the company what they found on the copier and Affinity self-reported the breach to DHHS’ Office for Civil Rights. Similar violations have occurred when companies which handle ePHI have donated their copiers to charitable organizations without first scrubbing the hard drive.
5. COBRA Clue: Monitor Your TPA– An employer was assessed a $1.8 million penalty for failure to timely issue COBRA election notices to at least 741 employees. The employer had contracted with various third party administrators to handle payroll, benefits and COBRA notices but due to a breakdown in communications, notices were not property issued upon a qualifying event. The discretionary penalty can be as high as $110 per day, per person, and this employer was hit with the max because it lacked an internal system to track the status of each employee, did not exercise oversight over its TPAs and generally failed to accept its responsibility to ensure COBRA notices are sent out in a timely manner (i.e., within 44 days of the qualifying event). Pierce v. Visteon Corp. (S.D. Ind. 6-13).
6. I-9 Info: Fill Out the Form Completely– A small drywall company will pay a $173,250 fine for failing to properly complete the Form I-9 on all employees. While the employer argued that the missing info was on attached copies of employee documents, the ALJ ruled and the 9th Circuit affirmed that neither the statute nor the regulations allow employers to make copies in lieu of filling out the forms. Copying and retaining documents is neither necessary nor sufficient for compliance. Also, these were substantive violations, not mere technical violations. Ketchikan Drywall Services Inc. v. ICE (9th Cir. 8-13).
7.OSHA Takes Wing –After 39 years of claiming sole responsibility for safety in airborne workplaces, the FAA now has to allow OSHA to have a role, based on Congressional action in 2012. FAA issued a new policy that allows OSHA to enforce its standards relating to hazard communication, bloodborne pathogens and hearing conservation to aircraft cabin crewmembers (but not pilots). FAA may preempt any OSHA standard, if it determines that enforcement of the standard interferes with aircraft safety. The new policy takes effect 9-23-13 but OSHA is deferring enforcement for six months, to allow time for outreach and education.
8. Party a Little Less Hearty– Company-sponsored social and recreational functions which include employees’ consumption of alcohol are not new. Most employers understand that they can minimize or eliminate their liability for a post-party car accident involving their employee(s) if they control the flow of alcohol and provide alternate means to transport an inebriated worker home. What most employers will be surprised to learn is that they can be held liable for an accident that occurs after the juiced employee arrives home safely but then decides to go out again and is in an accident. Some jurisdictions will hold the employer liable, using respondeat superior (aka “let the master answer”), when the accident occurs while the employee is within the course and scope of his or her duties. Others, like CA, HI, OR and WA, find it sufficient that the alcohol consumption occurred within the scope of employment, since such consumption was the proximate cause of the accident. You may be thinking . . . a party is not within the scope of employment! And in some cases, you would be wrong. This court observed that in this case, hotel employees regularly consumed alcohol in job-related circumstances, such as consuming left-over alcohol after parties in the hotel had concluded, tasting new drinks and having drinks purchased for them. It was also damaging that managers at the employer-hosted party served hard alcohol and did shots with employees. Further, this court (and many others) take the position that such gatherings benefit the employer by enhancing employer-employee relations and boosting morale. So now you’re asking . . . jeez, am I supposed to take all employees home after an employer-hosted party and sit on them until they sober up? The court countered that the employer created the risk at its party by allowing employees to drink to the point of intoxication and suggested that they should’ve reduced the risk by issuing a limited number of drink tickets, serving drinks for a limited amount of time, serving food and prohibiting smuggled alcohol (since the guy who crashed and killed the other driver brought a flask of Jack Daniels from home and the flask was refilled by his peers, at the party). Purton v. Marriott International (CA Ct. App. 7-13). Just a little food (or drink) for thought before we get into the holiday season.
9. There’s an App for That – The NLRB is likely perturbed that two federal appellate courts have invalidated their “notice of employee rights” poster. Months ago, they beefed up the content on their website to covey the same info that was slated to be in the mandatory poster. Now, they’ve launched a mobile app to relay that same message. The free app was released on August 30 and is available for iPhone and Android.
10.Stated Differently– Here are some hot topics for you multi-state employers:
1. California– Effective 1-1-14, the FEFHA’s prohibition against workplace sexual harassment is expanded/clarified to apply to situations where the conduct is not motivated by sexual desire. The change is in response to a 2011 case involving a homosexual male worker who was harassed by his male supervisor and co-workers via sexually demeaning words and gestures. The employer’s motion for summary judgment was granted in that case, on a finding that the supervisor was not gay and had no sexual feelings for the plaintiff.
2. Colorado– A federal court dismissed the claims of an employee fired for testing positive for marijuana, even though the employee was using medical marijuana to abate the symptoms of Hepatitis C and osteoarthritis. The employee claimed disability discrimination, discrimination for engaging in a lawful activity and invasion of privacy. The court countered that the state anti-discrimination law does not shield workers from employers’ standard policies against misconduct, including use of drugs. The lawful activity claim failed since marijuana use is still illegal under federal law. And there was no invasion of privacy because the employee failed to report his status as a medical marijuana user (so no intrusion) and the drug test via oral swab was not a “physical invasion.” Curry v. MillerCoors (D. Colo. 8-13).
3. Illinois– Effective 1-1-14, a four-year pilot program will legalize the use of medical marijuana for registered users. Unlike other states which allow medical marijuana, but permit employers to prohibit using or being under the influence of marijuana while at work, Illinois is providing some job protection for registered users who test positive.
4. Maryland –Adding to the arsenal of remedies for employees who are not paid their wages, effective 10-1-13 Maryland will have a law which allows such employees to file a lien against the real and personal property of the employer for the owed wages. Once the employee serves notice upon the employer, the employer must begin legal action to contest the claim within 30 days or the lien automatically begins. “Employer” is defined broadly enough to create personal liability for decision-makers within the company. The statute of limitations on this law is 12 years and this right may not be waived by contract.
5. New Jersey –Effective 8-29-13, employers may not require applicants or employees to provide their social media user names and passwords. Penalties are $1000 for a first violation and $2500@ for subsequent violations.
6. Rhode Island –
1. The law which required that all employees be paid on a weekly basis has been amended, to allow bi-monthly payments if certain criteria are met, effective 1-1-14.
2. Also effective on 1-1-14, there is a new Temporary Caregiver Insurance Program which will be funded via employee wage deductions and will provide all Rhode Island employees with up to four weeks off (with wage replacement paid to them by the State) to care for an ill or injured child, spouse, domestic partner, parent, parent-in-law or grandparent OR to bond with a newborn or adopted child. There is no small employer exclusion to this program, which mimics the Temporary Disability Insurance Program.
3. Also effective on 1-1-14, employers may not ask about criminal convictions on their employment application forms. Existing RI law also precludes asking about arrests and criminal charges on the employment application.
4. Also effective on 1-1-14, the state minimum wage will increase by .25 to $8.00 per hour.
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 . . . are you ready for some football???), 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
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