Here’s the latest:
1. Fun with FMLA – How does an employee who is not eligible for FMLA make a viable claim for FMLA interference and retaliation? By showing that while the request for time off (for impending motherhood) was made before she had 12 months with the employer, the anticipated start of leave would occur after her one-year anniversary. Pereda v. Brookdale Senior Living Communities (11th Cir. Jan. 2012). In denying the employer’s motion for summary judgment, the court observed that FMLA requires employees to give advance notice of foreseeable leave and if they accepted the employer’s argument, it would create a loophole that would allow employer retaliation with no recourse for the fired employee. The regulation is quite clear . . . “The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.” 29 CFR sec. 825.110(d).
2. Flush With Cash – A 36-year employee of American Standard is in the money, now that an appeals court upheld an award of more than $200,000 for FMLA interference and reversed the lower court’s denial of liquidated damages (effectively doubling the money) by finding that the employer had not acted in good faith. The administrative process that tripped up this employer was a change from a calendar-year to a rolling-year basis, when calculating individual FMLA eligibility, without adequately communicating the change to the affected employee. Under the prior method, his absence due to shoulder surgery in the spring was entirely protected under the FMLA. Under the new method, his 12 weeks of job-protected leave ran out a few days before his return to work (since a FMLA leave in autumn of the prior calendar year was within the rolling 12-month period). It did not help the employers cause that the employee received written approval of both the FMLA leave and the return-to-work date from HR and he had no “actual notice” of the changed policy. Thom v. American Standard Inc. (6th Cir. Jan. 2012).
3. How Low Can They Go? – Employers have been observing, in dazed wonder, as the NLRB has treated employees’ disparaging remarks about the company, customer, bosses and co-workers via social media as protected activity under Section 7 of the NLRA. On January 25, the NLRB issued a second report on this topic, explaining its views on employer policies and terminations of employment relating to employees’ use of social media. The Operations Management Memo was prepared by the Board’s Acting General Counsel and covers 14 cases, showcasing outcomes where the employer was found in violation of the NLRA as well as instances where no violation was found. Check it out at www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report. The cover letter contains a link to the first report, in case you missed reading it last August. Read together, they provide a decent roadmap toward avoiding overreactions to employee grumblings and overbroad policy statements that might get you an unwelcome invitation to chat with the Board.
4. Mama Mia! – Texas Dep’t of State Health Services amended its “Register of Mother-Friendly Businesses” regulation, to offer new silver or gold designations to businesses that take extra steps to meet the needs of breast-feeding moms while they are at work. Explanation of the standard is at 25 TAC 31.1 and the application form is available at www.dshs.state.tx.us/wichd/lactate/mother.shtm. For you government contractors who are working on your written affirmative action plans, this is a “good thing” you can list as part of your Action Oriented Programs that support women at work.
5. Don’t Forget GINA – Employers may continue to use FMLA Certification of Health Care Provider forms (i.e., WH-380-E for employees, WH-380-F for family members) that expire Jan. 31, 2012 but if you do, add the GINA safe harbor language which informs employees and their health care providers that they should not provide genetic information when completing the form. Here’s the blurb: “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.” While you do not need to explain what “genetic information” includes as part of this form, employers should understand that the GINA definition is very broad, to include genetic test results, disease/disorders of family members, request/receipt of genetic services, participation in clinical research and even genetic info of a fetus carried by a family member.
6. Private Eyes –A recent Supreme Court decision that the 4th Amendment’s ban on search and seizure was violated by monitoring an individual’s movements via GPS attached to the underside of her car (where the observer was the government and the observed was a criminal defendant’s wife) may not catch the eye of private sector employers, but it should. United States v. Jones (S. Ct Jan. 2012). While it’s true that private sector employers don’t take “state action” and are generally not subject to the 4th Amendment prohibition, the varying way the Justices explained their holding opens the door for a similar ruling on the private side of fence, using trespass or invasion of privacy arguments in lieu of the Constitutional argument. So, before you use cell phones, laptops and/or GPS on company cars (and especially if such monitoring will encompass employees’ nonwork movements after the workday ends), talk to your counsel. Consider announcing the monitoring (vs. doing it on the sly) and disclaiming, via policy, employees’ expectation of privacy. But if you’re in CA, forget about it! They have a statute which prohibits installation of a tracking device on a vehicle without the vehicle owner’s/lessor’s consent.
7. Hiring Policy Fizzes Out – Pepsi Beverages (fka Pepsi Bottling Group) agreed to pay $3.13 million and provide job offers and training to settle a claim that its background checking procedure, specifically the criminal inquiry, had a disparate impact on Black applicants for jobs. As part of the settlement with the EEOC, the employer revised the policy which had denied consideration of those who had been arrested pending prosecution and those who had been arrested or convicted of certain minor offenses. The EEOC reiterated its long-standing advice of avoiding blanket refusals to hire based on arrest/conviction history and instead consider the nature/seriousness of the offense, the time that has elapsed between the offense and the application for employment and the relation of the type of offense to the nature of the job being sought. States and cities are jumping on this “don’t ask” bandwagon, too (see 11.2 below), so your policy/procedure may be due for an overhaul.
8. Ax the AAP? – Some healthcare service providers may no longer be subject to affirmative action plan (AAP) requirements, thanks to the National Defense Authorization Act (NDAA) which took effect Dec. 31, 2011. OFCCP had taken the position that hospitals, pharmacies and other healthcare service providers who contracted with TRICARE (a DOD insurance program for active duty and retired military personnel and their dependents) were subcontractors as defined under E.O. 11246, the Rehab Act and VEVRAA. Flash forward to passage of the NDAA, which expressly carves out those same healthcare service providers from the OFCCP’s jurisdiction. Those same requirements may apply to you via other means (e.g., receipt of Medicare funds) so check your contracts carefully before axing your AAPs.
9. Simply the Best – My hat’s off to the many LB4HR subscribers honored in Fortune magazine as “The 100 Best Companies to Work For!”
10. Gentle Reminders –
January 1 – New E-Verify mandates took effect for certain employers in AL, GA, LA, SC and TN
January 1 – State minimum wage rates increases in AZ ($7.65), CO ($7.64), FL ($7.67), MT ($7.65), OH ($7.70), OR ($8.80), VT ($8.46), WA ($9.04); municipal minimum wage rate increase in San Francisco, CA (to $10.24/hour, the highest rate in the U.S.) You can find a complete chart of state minimum wage rates at www.dol.gov/whd/minwage/america.htm
February 1 – If your company is subject to OSHA recordkeeping requirements, your 2011 summary of workplace injuries and illnesses should be posted, using Form 300A, on February 1 and remain up until at least April 30. The Injury and Illness Report (Form 301), the Log of Work-Related Injuries and Illnesses (Form 300) and the Summary of Work-Related Injuries and Illnesses (Form 300A) should be kept on file for five years, so don’t toss last year’s info. For more info, go to www.osha.gov.
11. Stated Differently – Here are some hot topics for you multi-state employers:
Indiana – The House and Senate have approved legislation which would make IN the 23rd “right to work” state, and the first one to do so since OK went “right to work” 12 years ago. To read more about the right to work movement and see which states are and aren’t, go to www.nrtw.org.
Pennsylvania (Philly) – Eff. Jan. 13, it is unlawful for an employer of 10+ employees to inquire about or require an applicant to disclose any criminal convictions during the application process and first interview. It is also unlawful for the employer to knowingly and intentionally inquire about, require a person to disclose, or take any adverse action against any person on the basis of an arrest or criminal accusation not pending against the person and that did not result in a conviction.
Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
Used by permission – Legal Briefs for HR (“LB4HR”) is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters. For answers to your specific questions, please consult with counsel.