Category Archives: legal issues

EEOC’s Honeywell Suit Draws Protest

124666886 -- wellness biometricsThe National Business Group on Health says the Equal Employment Opportunity Commission’s recent lawsuit against Honeywell International over that company’s use of biometric screening in its wellness program “will have profound implications for any employer that offers employees wellness programs with incentives for biometric screenings.”

Employees at Honeywell could face as much $4,000 in lost incentives and surcharges in 2015 should they decline to participate in voluntary screenings of their cholesterol levels, body mass index and other measures, the Wall Street Journal reports. Other companies have similar programs in place; at Honeywell, it’s the potential size of the penalties that caught the EEOC’s attention, says the WSJ.

However, the EEOC is at least partly to blame for failing to provide the business community with clear guidelines regarding how to ensure their wellness programs comply with laws such as the Genetic Information Nondiscrimination Act and the Americans with Disabilities Act, said NBGH President Brian Marcotte.

In a statement, Marcotte said employers have been “seeking guidance from the EEOC for years” regarding this issue, yet the EEOC has failed to provide it. “Their lack of clear guidance, plus the recent legal action, conflicts with the message of HIPAA and the Affordable Care Act, which encourages the adoption and expansion of programs that benefit the health of employees and their families,” he said.

Honeywell’s troubles are just the latest example in what appears to be an ongoing battle between employers and the EEOC over what companies can and can’t do with regard to wellness programs. Last month we reported on the agency’s lawsuit against Orion Energy Systems — the EEOC contends the company’s policy of requiring medical exams and screenings violates the ADA.

What should HR leaders do? Well, in addition to working closely with legal counsel when designing and implementing wellness programs, they need to ensure they’re being applied uniformly, regardless of age, race or disability, attorney Anna Maria Tejada of Kaufman Dolowich & Voluck told reporter Kecia Bal.

“You can’t just say everyone can do it and then require a health screening or blood test. Then you exclude certain people. You can’t, in my view, make the wellness program a requirement that will affect the terms and conditions of a person’s employment. And, if someone refuses to do it, you can’t fire them.”

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Lost in the Email

emailEmployers may be starting to feel as if they’re running out of acceptable ways to send FMLA disclosures to employees.

In August, we reported on Lupyan v. Corinthian Colleges. In that case, an appeals court left a jury to settle a dispute over whether an employee ever received an FMLA Designation Notice that her employer claimed to have sent via first-class U.S. mail.

At the time, Ellen Storch, a Woodbury, N.Y.-based partner at Kaufman Dolowich & Voluck, told HRE that employers and HR should “do more than the law requires when providing employees with FMLA notices,” sending them in multiple ways that create evidence of receipt, such as certified mail or an overnight carrier.

Just don’t send them by email. Or at least not only by email, anyway.

That’s what a Michigan district court recently said in Gardner v. Detroit Entertainment, LLC, sending the case to be decided by a jury, after determining that email is not a reliable way to ensure an employee has received FMLA notices, as the defendant company couldn’t provide proof the employee had gotten them.

Some background:

According to the suit, Summer Gardner, who had been an employee at the Detroit Entertainment-owned MotorCity Casino since 1999, “was on and off intermittent medical leave for various reasons” from 2004 to 2011. In September 2011, Gardner was absent on intermittent FMLA leave nine times, which was “five more than anticipated by her physician, and … she also had called off work every Sunday that month,” court records indicate.

On Oct. 7, the casino sought recertification of Gardner’s degenerative spine disorder, emailing a letter to Gardner requesting that her healthcare professional re-certify the basis of her leave by Oct. 25, 2011. Gardner maintains that she did not open—and thus did not effectively receive—the email in time to respond by the specified deadline.

As such, Gardner did not submit the recertification paperwork in time. An automatically generated follow-up letter was sent to Gardner, advising her that her intermittent leave was now only approved from July 1, 2011 to Oct. 6, 2011, and that her leave request from Oct. 7, 2011 to Dec. 12, 2011 was denied, “due to the lack of recertification documentation.”

Gardner was ultimately let go for what were now considered unexcused absences. She sued, claiming her firing violated the Families and Medical Leave Act.

I asked Storch for her thoughts on this case, and her message for HR leaders was much the same as it was in August: use multiple channels to send disclosures, ensure that notices were received, keep meticulous notes and documentation, and carefully consider the intended purpose of the FMLA before terminating an employee who has exceeded the leave entitlement or has failed to comply with a technical obligation under the Act.

“Use multiple methods of communication, at least one of which can be used to prove receipt by the employee,” says Storch, noting the employer in both the Gardner and Lupyan cases used just one way to send notices, which created an issue of fact precluding dismissal of the complaints on summary judgment.

“Make every reasonable effort to ensure the notice is actually received by the employee before terminating an employee on an FMLA technicality,” she adds. In MotorCity Casino’s case, the organization “could have simply asked the plaintiff in person about the requested recertification.

“Had the employer done so,” continues Storch, “it would have learned the employee had not received the request, and the suit could have been avoided.”

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Microsoft CEO Touts Equal Pay after Apology

Satya_NadellaIt seems Microsoft Chief Executive Officer Satya Nadella (at right) is still in apologetic mode after making some ill-advised comments at a recent conference that, in essence, discouraged female employees from asking for raises.

Apologizing immediately afterward, Nadella now says in this Oct. 20 Time magazine online article, that men and women at Microsoft are paid equally. Clearly, the need for more positive spin is still there.

Here, in case you missed it, is Josh Eidelson’s Oct. 13 post on Bloomberg Businessweek‘s Politics & Policy site about whether Microsoft’s female employees have grounds for a complaint with the National Labor Relations Board, based on what Nadella said onstage at the recent Grace Hopper Celebration of Women in Computing Conference in San Francisco.

The post also mentions that Nadella apologized and retracted what he said just hours later in a companywide email, calling his gaffe “completely wrong.” For the record and according to Eidelson, here was his egregious response to a question someone at the conference posed about what he would tell women who are hesitant to ask for a raise:

“It’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along. And that, I think, might be one of the additional superpowers that quite frankly women who don’t ask for a raise have. Because that’s good karma. It’ll come back, because somebody’s going to know that’s the kind of person that I want to trust. That’s the kind of person that I want to really give more responsibility to.”

Wilma Liebman, who chaired the NLRB during President Obama’s first term and now lectures at Cornell University, says in the post, “You could make a very clear argument that [such a comment] means, ‘Don’t ask for a raise, and if you ask for a raise, you’re not going to be trusted.’ And ‘you’re not going to be trusted’ translates to ‘you could be in some jeopardy.’ ”

The issue raised in the Businessweek piece, of course — since it considers NLRB review and possible enforcement of Section 7 of the National Labor Relations Act — is whether Nadella’s message explicitly chills a protected concerted activity; i.e., a group of Microsoft women banding together in search of higher pay.

Lawyers are mixed on that one. “If a group of women said these comments chilled them from seeking together to get better pay in the workplace, they could file an unfair labor practice claim with the NLRB,” Paul Secunda, director of the Labor and Employment Law Program at Marquette University Law School, is quoted as saying in that story.

On the other hand, the story says, Samuel Bagenstos, a University of Michigan law professor and former Department of Justice official, doubts Nadella’s comments would merit NLRB review, considering he didn’t specifically address that kind of group activism. “Asking for a raise for oneself only would count as concerted activity if there was an argument that the employee was asserting a grievance that was or could be expected to be shared by others,” Bagenstos is quoted as saying.

Hope B. Eastman, principal at Bethesda, Md.-based Paley Rothman and co-chair of its employment law group, who I spoke with about this, concurs. “The fact that Nadella has apologized and retracted his statement, and the fact that his comment was in the context of an individual woman asking for a raise,” she says, “makes it unlikely that the NLRB would take this on … .”

That said, she adds, “there have been studies suggesting that women do not negotiate salaries as well as men; this is an issue that needs attention.” So the silver lining, I guess, is that this issue was given new light through Nadella’s comments.

The Businessweek piece also brings up another story we followed in 2011 on this blog, when the NLRB issued a complaint against Boeing, claiming executives’ public comments about striking employees in the state of Washington suggested they were to blame for the company’s intended move to a new South Carolina site at the time. (Here’s one other mention of that story on this blog.)

As Eidelson points out, that Boeing story establishes “precedent for investigating public comments from an executive as alleged discrimination.”

And — aside from staying on that apparently long, arduous road toward equal pay — what’s the message for HR in all this? I guess check with your C-suiters on absolutely everything they intend to say publicly before they take the podium or stage …

If that’s even possible.

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Cannabis Business Charges Full Steam Ahead

It came to my attention recently — actually in the writing of a news analysis last month — that there’s a big business growing around 465923899 -- cannabismarijuana, with 23 states now allowing for its medical use and two, Colorado and Washington, allowing for its recreational use.

(For the record, here’s that Sept. 29 news analysis — which actually aired Sept. 30 — examining the issue and what employers can really expect as more laws are passed. It was written just before the Colorado Supreme Court was to hear the case of Coats v. Dish Network and the issue of whether the plaintiff’s positive drug test should have been allowed under the state’s medical-marijuana statute. The court has yet to decide.)

With a keener understanding of this railroad coming down the tracks that is marijuana legalization and the business opportunities on board that train, I took special notice of the Hartford Courant‘s recent coverage of callback selections for a new web series called “The Marijuana Show,” aimed at giving specially selected and very “lucky ganjapreneurs” the chance to become “the next marijuana millionaire,” as the story puts it.

I also happened to notice in the piece that a handful of even-luckier finalists just finished participating in “an intense three-day business boot camp” that ended last Sunday, Oct. 12, prior to the finalists then pitching their marijuana-money-making ideas to investors in hopes of receiving financing, mentorship and attention on the show after the entire process has been filmed. (Here, too, is the Cannabis Business Times’ version of all this.)

So I reached out to co-producers Wendy Robbins, also the show’s director, and Karen Paull, to find out what I could about the boot camp. Their comments did nothing to quell the notion that there’s a most-definite marijuana-business movement afoot.

The camp, says Robbins, included “attorneys, an accountant [and] a branding expert [among others, and focused on] financial help with valuations, regulations, business-plan help, pitching advice and [of course] social media too.” Five out of the 10 finalists were even offered financing and some got mentoring help with their ideas — which ran the gamut from cannabis retail or leisure outlets to supply and distribution centers to growing establishments.

“Most shows have one winner, so we were blown away that half of the contestants got some sort of deal,” Robbins says.

“This is not a scripted show, nothing is predetermined,” adds Paull. “It’s a very organic process.” Indeed.

Looks like airing begins in December.

My story in September also references a Cannabusiness Accelerator job fair held in Seattle Sept. 19, “with the support of the [fast-growing marijuana] industry’s leaders to serve as a locus of networking and informational know-how [for job seekers], as well as a showcase for program partners, all suppliers to the new industry,” according to that company’s release about the event.

But the story does also include employment attorneys’ cautionary comments about the need for employers to not get too worked up. They needn’t, they say, ready themselves for all this marijuana-legalization and cannabis-business momentum to lead to across-the-board pot-induced workplaces (though statistics do show more employees are showing up for work under the influence).

Marijuana, they say, is still against federal law and employers still have every right, and responsibility, to maintain zero-tolerance policies because of that, and for safety and productivity reasons.

As Mark A. de Bernardo, executive director of the Institute for a Drug-Free Workplace and a Reston, Va.-based senior partner at Jackson Lewis, told me for that piece:  “This is not a crisis for employers. Their backs are not up against the wall.”

Not yet anyway, legalization supporters and cannabusiness entrepreneurs would probably say.

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Non-Competes for Sandwich-Makers?

Fast-food chain Jimmy John’s Sandwich Shops bills itself as a place that makes good sandwiches “freaky fast.” Perhaps the formula behind “freaky fast” is so vital and unique that it’s worthy of being shielded behind the walls of Fort Knox, Ky.? That seems to be the gist behind an interesting issue revealed via a class-action lawsuit filed against Jimmy John’s and its franchisees: They apparently require employees to sign a non-compete agreement stipulating that, should they leave (or be fired from) Jimmy John’s employ, they will not seek employment for at least two years with any other establishment that derives at least 10 percent of its revenue from selling sandwiches that’s within a three-mile radius of any Jimmy John’s location.

The lawsuit in question is Brunner v. Jimmy John’s Enterprises Inc., and the details were first reported by the Huffington Post. The plaintiffs accuse the sandwich-chain’s franchisees and its corporate parent of violations under the Fair Labor Standards Act. In the lawsuit, the plaintiffs assert that the non-compete clause “effectively restricts an employee ‘from working in an area that is over 6,000 miles large, at innumerable types of business … in any capacity for a period of two years in 44 states and the District of Columbia,” according to the Workplace Prof blog, which analyzes the details of the non-compete clause.

Is a non-compete clause for fast-food workers enforceable? Unlikely, according to two attorneys interviewed by Politico. Rochelle Spandorf, a business-franchise attorney, said non-competes for low-level workers are quite rare and “very hard to enforce in court.” “I don’t think it’s a smart policy for any employer to apply a non-compete to lower-level employees who are taking directions from supervisors and who are not given independent access to really classified information,” she said.

However, Jimmy John’s and its franchisees — and indeed, many other organizations that require large numbers of their employees to sign these agreements — may have an ulterior motive that’s linked to the traditionally high turnover rates in their field, said Eric Fink, a professor at Elon University Law School.

“It’s not uncommon for employees to extend non-competes that are far broader than the law allows,” he told Politico. “Employees may be scared by this.”

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Screening in a Peer-to-Peer World

Does background screening have a role to play in shaping the future of peer-to-peer marketplaces?  HireRight certainly thinks so.

At this week’s HR Tech, the Irvine, Calif., company announced a new practice that aims to address the needs of “sharing” businesses.

Lyft_Pink_MustacheIn recent years, peer-to-peer marketplaces have been gaining traction, with big bets being made on enterprises like Uber, Lyft and Airbnb. But in order for these organizations to thrive, HireRight CEO John Fennelly believes participants are going to want to know that those they’re entering into a business relationship with are trustworthy.

Through its technology platform, HireRight is looking to provide those individuals with some level of comfort.

In some cases, HireRight’s press release says, a marketplace might mandate screening to help ensure consumer safety and mitigate risk, such as for drivers belong to a ride-sharing service. In other cases, it might offer screening as an option so providers can differentiate themselves, such as for clerical or personal-assistant services.

In the world of background screening, Fennelly says, self-verification is pretty much nonexistent today. But if it begins to catch on in the peer-to-peer world, he says, the approach could eventually transition into more traditional workplace settings.

It should be interesting to see if this indeed turns out to be the case.

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SCOTUS to Hear Headscarf Case

courtWhile the upcoming caseload for the United States Supreme Court’s fall term may not be as heavy on HR issues as in the past, there is at least one case that will examine the role of religious freedom in hiring .

The Court has announced it will hear the case of a Muslim woman who was denied employment at trendy clothing retailer Abercrombie & Fitch because she wore a headscarf.

The company has faced more than one discrimination suit in recent years over the policy, which has subsequently been amended, according to the Baptist Joint Committee for Religious Liberty.

In this case, according to the MSN News story:

Samantha Elauf, then 17, was refused a job at the retailer in Tulsa, Oklahoma in 2008 because she wore a headscarf, violating the company’s “look policy,” which outlines how store staff should be groomed and dressed.

While a federal judge hearing the case found Abercrombie & Fitch was liable for discrimination — to the tune of $20,000 — that decision was later appealed, where the 10th US Circuit Court of Appeals in Colorado ruled that the 1964 Civil Rights Act only protects employees who provide “explicit notice of the need for a religious accommodation.”

Under the act, no one can be refused employment based on their religion, unless the employer cannot accomodate the person’s religious beliefs without adversely affecting business, and court documents said she did not ask about how the company’s “look policy” could be adjusted to accommodate her religious dress at the time of the interview.

“Before her interview, Ms. Elauf knew the position required her to model the Abercrombie style, knew the style of clothing that Abercrombie sold, and also knew that Abercrombie did not sell headscarves,” Abercrombie said in its court brief.

The EEOC said its cases involving complaints of religious discrimination have more than doubled in the past 15 years, according to MSN News.

SCOTUS is expected to take up the case in January, with a decision expected in June.

Stay tuned…

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Yes, a ‘Cantankerous Jerk’ Can Be Fired

177030950 -- angry bossCan a person be lawfully terminated just for being a hard-core grump? Yes, says the U.S. Court of Appeals for the Ninth Circuit in the case of Matthew Weaving v. City of Hillsboro.

Weaving, an officer with the Hillsboro (Ore.) Police Department, was cited several times over a period of years for conflicts with fellow employees. A formal report — issued after a departmental investigation of an officer’s grievance about him — concluded he was “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” (That’s quite a list.)

Based on the investigation, which also found Weaving had created a hostile work environment and did not possess the emotional intelligence to work in a team environment, he was fired Dec. 11, 2009, after three years with the force.

He sued under the Americans with Disabilities Act, claiming he had been diagnosed with attention deficit hyperactivity disorder, and this condition caused his work conflicts and limited his ability to work or interact with others (a requirement of his job).

He contended his ADHD was a disability, which a district court upheld, but the appeals court reversed. (For everything you ever wanted to know about Weaving’s contention and how both courts viewed the ADHD/ADA issue, see both links above.)

Considering Weaving’s argument that ADHD falls under the ADA, I thought I’d share several earlier blog posts from some of us at HRE that delve into other expansions of, or attempts to expand, the definition of disability under the law.

This one, by David Shadovitz, delves into an appeals court ruling establishing that temporary impairments are now allowed under the law so long as they’re severe enough.

This post, by Mark McGraw, also gets into the temporary-condition allowance, in a different lawsuit, and mentions the American Medical Association’s new definition of obesity as a disease, adding exponentially to the ranks of the disabled.

And this from me a few years back highlights an informal letter issued by the Equal Employment Opportunities Commission warning that requiring a high-school diploma from a job applicant might violate the Americans with Disabilities Act because the requirement could effectively screen out anyone unable to graduate because of a learning disability.

Meanwhile, in this latest case, employers have good reason to breathe a sigh of relief, says Myra Creighton, a partner with Atlanta-based Fisher & Phillips. The case, she told me, “upholds the principle that employers can enforce their employee-conduct standards governing personal interaction without worrying that the employee will blame his or her bad behavior on his or her disability.”

The ruling doesn’t, however, rule out ADHD as a disability if the plaintiff can prove the condition limits his or her ability to work.

As the Practical Law piece in the first link above puts it, the Ninth Circuit majority held “that the employee’s condition … did not rise to the level of disability [and argued] that a different holding … would open employers to potential liability each time they take an adverse-employment action concerning a hostile employee.”

The dissenting minority, however, it says, notes that “employers are [still] left in the complicated position of having to determine whether an individual, who has been properly diagnosed with ADHD, should be deemed disabled or just a jerk.”

 

 

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Getting Out the Vote

Business groups are looking to make a difference in November’s midterm elections.

As a recent piece on the The Hill website reports, “Heavyweight groups such as the National Retail Federation, the National Federation of Independent Business, the National Association of Manufacturers, the Associated General Contractors of America and BIPAC are among those seeking to increase engagement in the political process this year.”

According to The Hill, more than 90 companies and industry groups are taking part in the Employee Voter Registration Week (which ends today), including the American Forest & Paper Association, Anadarko Petroleum, Caterpillar, eBay and a slew of state-level organizations.  Their hope is to break the gridlock and get employees registered and involved.

About 54 percent of American voters went to the polls two years ago, compared to around 38 percent in the 2010 midterms.

David French, the senior vice president of government relations at the National Retail Federation who discussed the initiative at a press conference the other day (see video), notes that …

“Any of these races could be decided by a few hundred votes, so a strong turnout from the business community could make the difference between a candidate who understands our concerns and a candidate who’s tuned to other voters’ interests.”

As The Hill piece explains, “trade groups and corporations will not be instructing their members and employees how to vote or who to vote for … but will be providing information about deadlines, how to register and where to vote.”

I asked Littler Shareholder Michael Lotito (who is based in San Francisco, but always keeps a watchful eye on what policymakers are up to in Washington) to share his thoughts on the significance of this effort.

Lotito sees it as a counter weight to what the American Federation of Labor does in getting out the vote through registration drives and email solicitations.

“Businesses have been largely quiet in this regard,” he says. “But often, the employees would benefit from hearing from their employer as to how the positions of candidates and state and local propositions may impact the company and, either directly or indirectly, the employees who depend on the company.  Many companies are not engaged in this process, not even encouraging their people to register and vote, let alone modify work schedules on election day to make sure people can vote.”

Lotito also suggests that HR might want to be more than just a bystander in this regard. “Let HR be the leader for the identification of issues, how those items will impact the company, which candidates (regardless of party) advances those interests, and then advising how a person can register to vote, obtain absentee ballots and go to the polls on election day.”

At the end of the day, it’s probably going to be tough to know how much of an impact any of this will have, but with voter turnout for the midterms being as pitiful as it is, it would seem to me that any effort to get citizens more engaged (if I can borrow a word from the HR lexicon) in our electoral system should be viewed as a good thing.

In case you’re wondering, the midterms are November 4—so, if you haven’t yet, mark it down.

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A Hospital Employee’s Offensive Tweets

We’ve written before about the “bring your own device to work” trend, commonly referred to as BYOD. Experts have cautioned about the potential risks employers face when allowing employees to bring devices that can be easily used to share and disseminate potentially confidential information. Now comes news of a Philadelphia-area hospital employee whose Twitter postings will no doubt cause more sleepless nights for medical-center HR and legal staffers.

Kathryn Knott, an emergency room technician at Lansdale Hospital in Lansdale, Pa., apparently liked to write about the patients and their medical conditions she encountered — and her personal opinion of their conditions — during the course of her work. Her Twitter posts include these gems (as reported by the Philadelphia Daily News):

“Babysitting a 36 yo 30pillxanax overdose and holding the urinal for him is definitely what I wanted to do today #winninglikeVegas.”
Knott’s June 10, 2013, photo of an X-ray of a busted pelvis is captioned, “why would you clean your gutters in the rain? #ouch.”
Another, on Feb. 20, 2013, shows a clear bag containing something lumpish. Its caption reads, “A patient gave me a bag of ice with his two fingers in it!” Yet another, posted on New Year’s Day 2013, shows a small spring – X-rayed in what appears to be an abdomen – captioned, “Kid had way too much fun at lacosta last night. Swallowed a pen spring. #rage.”
Knott’s Twitter postings came to light during the course of a police investigation of a brutal event involving her and a large group of friends, who were captured on video allegedly beating and verbally abusing a gay male couple in downtown Philadelphia recently. Knott, whose Twitter posts also included ones denigrating homosexuals, has been suspended from her job by Abington Health, which owns Lansdale Hospital:

 We can confirm that Kathryn Knott has been employed at Lansdale Hospital since May 2011. Because of the nature of the charges against her, she has been suspended from her job as an Emergency Room tech.”

Abington Health is also investigating her Twitter account.The tweets could violate the hospital’s patient-privacy and social-media policies, according to the statement from Abington Health

Daily News columnist Ronnie Polaneczky interviewed a nurse who’s also a lawyer, who told her that while Knott’s tweets may be deeply unprofessional, they don’t appear to violate the Health Insurance Portability and Accountability Act because “patients’ names and other identifiable was not shared.” However, medical ethicist Art Caplan told Polaneczky that he disagrees. If there’s information in the tweets for others to deduce who’s being discussed, he said, then it’s a clear HIPAA violation and a legal liability.
Now is probably a good time for HR leaders in the healthcare industry to review their BYOD and social-media policies, and perhaps schedule some refresher training.
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