Supreme Court's Refusal to Hear Appeal Suggests Companies Must Transfer Newly Disabled Employees to Open Positions as a Reasonable Accommodation, Regardless of Whether There Are More Qualified Candidates


This week, the U.S. Supreme Court refused to review EEOC v. United Airlines, Inc., a Seventh Circuit decision (which overruled its prior precedent) holding that the Americans with Disabilities Act ("ADA") obligates employers to reassign newly disabled workers to open job positions, thus reviving a class action the U.S. Equal Opportunity Employment Commission filed against an airline alleging it violated the ADA by failing to automatically assign disabled workers to vacant positions they were minimally capable of filling.  The Seventh Circuit, agreeing with earlier decisions by the Tenth Circuit and the D.C. Circuit, ruled that the ADA mandates that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.  The airline's position in the appeal was that the Seventh Circuit misunderstood Supreme Court precedent and, in doing so, found that employers had to take affirmative action on behalf of their disabled workers, which was a greater requirement than the laws from which the ADA was modeled.  The initial suit sought an injunction barring the airline from making disabled employees compete with other applicants for jobs they were minimally qualified for and asked the court to force the company to institute new policies, as well as to pay the workers lost income, prejudgment interest, past and future pecuniary losses including medical expenses and compensation for emotional distress and humiliation.  

The takeaway from the Supreme Court's denial of review is that the Seventh Circuit's ruling will stand, at least for now, and may limit an employer's ability to hire the most qualified applicant for a position under certain circumstances.


"My Prior Complaint Was One of the Reasons for the Adverse Employment Action": Mixed Motive Theories for Retaliation Claims Under Title VII


Recently, the Supreme Court heard oral arguments in University of Texas Southwestern Medical Center v. Nassar, which addresses the causation standard for retaliation claims under Title VII. The Supreme Court has already held that Title VII permits plaintiffs to pursue discrimination claims on a mixed motive theory. A plaintiff only needs to prove that discrimination was a motivating factor in the adverse employment action in question. To compare, the Age Discrimination in Employment Act does not permit mixed motive theories under Gross v. FBL Financial Services, Inc. Instead a plaintiff must show that "but for" her age, she would not have suffered the employment action. At issue in Nassar is whether Title VII retaliation claims allow for mixed motive theories like Title VII discrimination claims or whether the plaintiff must show that "but for" her protected activity, she would not have suffered the adverse employment action.

As background, Dr. Naiel Nassar left the University of Texas Southwestern Medical Center in 2006 after he complained that his direct supervisor made discriminatory comments about his ethnic and religious background. Dr. Nassar then sought a new position at an AIDS clinic affiliated with the Medical Center. However, the Medical Center's management prevented the Clinic from hiring Dr. Nassar. As a result, Dr. Nassar filed a lawsuit against the Medical Center, alleging that it prevented his hiring at the Clinic in retaliation for his prior complaints. The case went to trial, and the jury returned a verdict in favor of Dr. Nassar, awarding him back pay and damages. The Fifth Circuit Court of Appeals affirmed the jury's verdict.

Before the Supreme Court, Dr. Nassar argued that Title VII's statutory language and Supreme Court precedent permit mixed motive theories for retaliation claims, just as the statute permits mixed motive theories for Title VII discrimination claims. In opposition, the Medical Center argued that Title VII retaliation claims, unlike Title VII discrimination claims, must meet the "but for" standard of causation. During oral argument, some Justices noted that Congress may want a different causation standard for retaliation claims than substantive discrimination claims. For example, a stricter standard for retaliation claims would discourage groundless lawsuits alleging retaliation against false claims of discrimination. Further, retaliation claims are distinct from Title VII's purpose, which is to prohibit discrimination based on protected characteristics.  

What does this mean for employers? If mixed motive theories are not permissible for retaliation claims under Title VII, disgruntled employees will have a much more difficult time establishing such claims under the strict "but for" standard. However, if the Court determines that this more stringent standard is not required for Title VII retaliation claims, employers should expect employees to continue filing such claims and seeking damages under mixed motive theories.


Florida's Unemployment Process Violates The ADA - Warning For Employers


Florida's requirement that applicants for unemployment insurance apply over the Internet and take an online skills test discriminated against the disabled, because they could not easily access the computerized process, according to the Department of Labor's Civil Rights Center. The determination came in a case lodged by the Miami Workers' Center and the National Employment Project, which claimed that disabled Floridians were being shut out from unemployment insurance. 

In August 2011, Florida eliminated alternative options for paper and telephone filing for unemployment benefits and required all applications to be carried out online. The new rules also required that applicants complete a 45-question skills assessment and fill out other online-only forms.  But, according to the DOL, the program offered no alternatives for unemployed workers with disabilities that prevented them from using a computer. As a consequence of the adverse DOL determination, Florida has entered into voluntary compliance negotiations.

Private employers should take heed of this finding.  To the extent that on-line forms or tests are required as part of an application, employers must provide accommodations for disabled individuals to be able to complete the process.  A failure to do so may result in an ADA claim.



NLRB General Counsel Suggests Language That Complies With Banner Health


In a memorandum dated January 29, 2013, but made public on April 16, 2013, the NLRB's Office of General Counsel, while confirming that an employer's blanket confidentiality rule, which precludes employees from disclosing information about ongoing investigations into employee misconduct, is unlawfully overbroad under the Board's decision in Banner Health, 358 NLRB No. 93 (2012), held that an employer's policy may be lawful where it states that the employer will make an individualized determination of the need for confidentiality and that employees are required to honor the employer's decision.

The memorandum was issued regarding Verso Paper's Code of Conduct, which states in relevant part: 

"Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination."

The Office of General Counsel concluded that because the policy purported to apply to every investigation, it ran afoul of Banner Health, which requires that an employer must show more than a generalized concern for the integrity of its investigations and must demonstrate a particularized need for confidentiality on a case-by-case basis. However, in a footnote, the Office of General Counsel stated that the first two sentences lawfully set forth the employer's interests, and suggested that the policy could be lawfully amended by striking the next two sentences and inserting the following language: "Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action."

The Advice Memorandum reaffirms that employers may not maintain blanket rules of confidentiality as to all investigations.  Rather, employers must tell employees that confidentiality directives will only be issued in particular circumstances where the employer has determined it to be necessary.   Accordingly, employers with confidentiality policies may wish to consider revising them to comply with this Advice Memorandum.



The Supreme Court Holds That Employer's Mooting of Named Plaintiff's Claim Also Moots FLSA Collective Action


On April 16, 2013, in Genesis Healthcare Corp. v. Symczyk, No. 11-1059, the Supreme Court held that when a FLSA plaintiff's claim becomes moot prior to a conditional certification of a collective action, the entire action itself becomes moot and the case should be dismissed. However, the opinion unfortunately did not render a decision on the key question of whether a named plaintiff's claim is actually mooted with a defendant's offer of judgment of full relief.  Rather, the Supreme Court assumed this to be the case. Therefore, the decision leaves open the issue of whether an employer's use of an offer of judgment to the named plaintiff is an effective tool to quickly dispose of an asserted FLSA collective action.  

In this case, the named plaintiff, Laura Symczyk, was a registered nurse employed at a Genesis Healthcare nursing home facility. In 2009, Symczyk sued Genesis on behalf of herself and all other "similarly situated" employees alleging that Genesis failed to pay her for 30 minutes of meal breaks when she had not actually taken all or some of the break. Genesis answered the complaint and made a Rule 68 offer of judgment, offering to satisfy all of Symczyk's claims for $7,500 in unpaid wages, plus attorneys' fees, costs and expenses to be determined by the Court. Symczyk failed to respond to the offer.

Genesis then moved to dismiss the entire suit on the basis that the named plaintiff no longer had a "personal stake" in the outcome, as she had been offered all the relief she was seeking. The district court agreed and granted Genesis' motion to dismiss. However, on appeal, the Third Circuit reversed and remanded the decision, holding that while Symczyk's personal claim was mooted, the collective action was not necessarily moot. The court concluded that the use of offers of judgment before class certification could "short-circuit the class action process" and "prevent a putative representative from reaching the certification stage." Therefore, the plaintiff should be allowed to seek class certification, which if granted, should relate back to the date of the filing of the complaint.  

The Supreme Court granted certiorari and observed that because Symczyk had conceded in prior pleadings that an offer of complete relief will generally moot the plaintiff's interest in the outcome of the litigation, it was procedurally bound by the Third Circuit's conclusion that Genesis' Rule 68 Offer of Judgment mooted Symczyk's individual claim. As Symczyk no longer had an individual claim, the collective action could not survive. Unless others have come forward to participate in the litigation, and actually opted into the class, nothing survives the satisfaction of the plaintiff's claim.

While the Court did not answer the crucial question of when an offer of judgment operates to moot the plaintiff's individual claim, the decision at least provides employers with a litigation strategy to attempt to end FLSA litigation. If a class has not yet been certified, a defendant may still argue that offering the named plaintiff all the relief individually sought through an offer of judgment moots the entire case and ends a potentially lengthy and costly FLSA collective action. There are some important limitations to note: (1) to even make this argument, the offer must be made before the conditional certification of the class; (2) other employees are not barred from later bringing their own claims in subsequent suits; and (3) the offer must satisfy all the plaintiff's claims and provide every form of relief sought.



Think Your Company's Confidential Information is Safe? Think Again!


Password encrypted computers, locked file drawers, swipe cards allowing for restricted access. These are all measures taken by businesses to protect their confidential business information and trade secrets. While these steps are important, they are only part of the solution in protecting your company's valuable business information.  More and more employers today are using restrictive covenants such as noncompete agreements and confidentiality agreements to legally bind their employees and ensure that valuable business information is not compromised or handed over to a competitor.

Disfavored and often prohibited outright by the common law, noncompete agreements are making a resurgence as states throughout the country enact laws designed to protect employers' legitimate business interests. Florida is a prime example, having put into place a statutory scheme setting forth in detail the requirements necessary to enforce noncompete agreements against former employees.  To be enforceable, not only must a noncompete agreement be reasonable in time and geographic scope, it must protect a legitimate business interest and protect information the employer has tried to keep confidential.   

Armed with the right knowledge and properly drafted agreements, an employer can prevent departing employees from taking confidential business information and using that information to compete unfairly against a former employer.  Gone are the days when an employee could defiantly state "My noncompete isn't worth the paper it's written on!" 

At the 18th Annual Akerman Labor & Employment Law Seminar, I will be discussing all aspects of noncompete and confidentiality agreements, including drafting tips and how these agreements can be used to protect confidential business information.  I will also focus on the process of enforcing noncompete agreements, from the initial filings all the way through to a court judgment.


Are You Considering Conditioning a Job Offer on an Agreement that the Applicant's Disabled Dependent Won't Enroll in the Health Plan? Don't.


Traditional employment laws often interact with traditional employee benefit laws. One such example is the Americans with Disabilities Act (ADA)'s impact on employer-sponsored group health plans. As group health plan costs continue to rise, and as federal health care reform legislation focuses additional attention on health plan design and coverage issues, it is important for employers to remain vigilant of the ADA's implications for their health plan eligibility decisions.

Employers recognize that the relative health of their workforce and covered dependents can impact their overall health plan costs. Employers also recognize that among their existing workforce, the ADA and other federal and state laws will protect covered individuals from certain adverse employment actions intended to dissuade disabled individuals from joining or remaining on the employer's group health plan. Similar questions can arise even before individuals are hired.

If an ADA-covered prospective employer learns during the course of the job application process that an applicant happens to have a disabled dependent child, can the employer condition a job offer on an agreement that the applicant will not enroll the child in the group health plan? The answer is NO, as this action would violate the ADA. Such an agreement also raises concerns under other laws, including the Patient Protection and Affordable Care Act (PPACA)'s coverage rules, the Health Insurance Portability and Accountability Act (HIPAA)'s nondiscrimination rules, and the Genetic Information Nondiscrimination Act (GINA)'s disclosure rules.

I will cover this and other similar topics, within a series of practical, real-world examples of benefits compliance challenges facing employers, at the 18th Annual Akerman Labor & Employment Law Seminar. Hope to see you there!


DOL Reports Widespread Wage and Hour Violations at Tampa Area Restaurants


Widespread violations of the Fair Labor Standards Act’s minimum wage and overtime provisions have been found during an ongoing enforcement initiative conducted by the Department of Labor Wage and Hour Division’s Tampa office.  The initiative focuses on full-service restaurants and is being conducted in conjunction with the Florida Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco, according to a statement released by the Wage and Hour Division on March 19, 2013. 

According to the report, during 2012, the division’s Tampa office conducted more than 80 investigations of restaurants, resulting in nearly $500,000 in minimum wage and overtime back wages, as well as additional liquidated damages and civil money penalties, for more than 800 employees. The report cautions that investigators from the division’s Tampa District Office will continue to make unannounced visits to full-service restaurants to assess compliance with all labor standards. During 2012, the most common violations found included: requiring employees to work exclusively for tips, without regard to minimum wage standards; making illegal deductions from workers’ wages for walkouts, breakages and cash register shortages, which reduced wages below the required minimum wage; and incorrectly calculating overtime for servers based on their base rate before tips, instead of the correct minimum wage. 

The report states that, during 2013, if violations are found, the division will pursue back wages, civil money penalties and liquidated damages.  This is a more aggressive approach than  in the past, when, although liquidated damages are a statutory remedy, only back wages would be sought to resolve violations. 

Florida employers should bear in mind that although the FLSA minimum wage for non-exempt employees is $7.25 per hour, the Florida minimum wage is $7.79 per hour. However, employers of "tipped employees," who meet the eligibility requirements for the tip credit under the federal Fair Labor Standards Act (generally, they are able to keep all their tips and receive more than $30 per month in tips), may pay such employees a different direct wage. Such employers are allowed to claim a "tip credit" toward fulfilling the minimum wage requirements, whereby tips satisfy a part of the employer's obligation to meet the minimum wage. The direct wage that must be paid to "tipped employees" is calculated as equal to the minimum wage ($7.79) minus the tip credit allowed under Florida law ($3.02), which equates to a direct hourly wage of $4.77 as of January 1, 2013. This is an increase from $4.65 per hour in 2012. If an employee’s tips combined with the employee’s direct wages do not equal the minimum wage, the employer must make up the difference. Employers also are required to provide employees notice of the tip credit provisions and to maintain accurate time and payroll records. Finally, employees must be compensated at time and one-half their regular rates of pay for hours worked beyond 40 per week

Given the increase in enforcement initiatives and penalties, it is especially important for restaurants, as well as all employers, to ensure compliance with the requirements of wage and hour law.



So You Extended an Employment Offer to the Ideal Applicant. Now What?


After months of sorting through applications, you find what appears to be the perfect applicant.  His application boasts excellent academic credentials, unmatched work experience, and countless awards and accolades.  His interview is "textbook," and you are so excited that within minutes of him leaving your office you authorize the hiring manager to extend an employment offer, conditioned (thank goodness) on the outcome of a background check.  When you receive the background check results, you are surprised to learn that your star applicant has embellished his credentials and has a criminal history, including arrests and convictions for violent crimes.  Sound familiar? 

The background check has been an important tool in the employer's toolbox for years. In these challenging economic (and litigious) times, its importance cannot be underscored enough.  Whether an employee exaggerates his or her qualifications or fails to disclose a violent, criminal past, failure to conduct a background check can expose an employer to loss, liability and/or lawsuits.  Many resumes contain factual discrepancies regarding education and work experience or exaggerated information about skills and attributes.  Failure to identify such errors and omissions before the employment relationship commences can have unfortunate and costly consequences for employers. 

While the practice of conducting background checks on job applicants is certainly not new, it has undergone tremendous transformation in recent years.  The amount of information available about applicants continues to increase and has become less expensive to procure.  In consideration of the wealth of information now available at their fingertips, employers conducting background checks (either in-house or through consumer reporting agencies) must be ever more vigilant not to run afoul of federal and state equal employment opportunity laws, as well as state and federal privacy laws.  This is particularly so, given the EEOC's recent identification of "Eliminating Systemic Barriers in Recruitment and Hiring," including the targeting of "exclusionary policies and practices, . . . restrictive application processes, and the use of screening tools," as the first of five (5) nationwide priorities which will guide its enforcement efforts for Fiscal Years 2013 to 2016.

At the 18th Annual Akerman Labor & Employment Law Seminar, I will be discussing the different types of background checks available to employers in the digital age and the laws regulating same; the applicability of federal and state equal employment opportunity laws to such activities, including, but not limited to, a review of the EEOC Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964; and the overall risks and rewards of knowing whom you are about to hire.  I look forward to seeing you on April 18th!


Latest Developments Under the FMLA


There is some very interesting news in the world of the Family and Medical Leave Act (FMLA)!  The Family and Medical Leave Act is a federal law enacted by President Clinton that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified reasons with continuation of group health insurance coverage under the same terms and conditions as if they had not taken leave. Some examples of the reasons for permissible leave include exigency leave and military caregiver leave for families of military service members, caring for a newborn or recently adopted child or a family member with a serious health condition, or an employee's own serious health condition.  

The U.S. Department of Labor recently released an updated version of its FMLA Advisor. The FMLA Advisor has been updated to reflect the expansions of FMLA protections that became effective on March 8, 2013. The Family and Medical Leave Act was amended to provide families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members and allow more military families to take leave for activities that arise when a service member is deployed. The expansions also address the application of the FMLA to airline personnel and flight crews.  Due to the amendment, employers should ensure that their FMLA policies are up to date and encompass all of the changes to the Act.

I will discuss more on this topic at the 18th Annual Akerman Labor & Employment Law Seminar.



Tweet, Follow, or Get Out of the Way: What All Employers Need to Know About Social Media in the Workplace


Facebook. Twitter. LinkedIn. YouTube. Blogs. Email. Texts. Social media in the workplace has become a fact of life for all employers. Companies are learning that these once feared social media sites can be powerful marketing tools, but also provide an open door for risk.  Employees can post or write things in these media that create liability for their company, cause public relations problems, or damage profits. 

Some companies initially reacted to these threats by shutting down employee access to these social networking tools in the workplace.  Then came "apps" which enabled employees to engage in social media at work, but on their own, personal iPhones and similar devices.  Is creating a policy eliminating access on the employer's network the solution, or does it fail to address the problems that can be caused by employees posting to these sites, and writing personal emails and texts, at work and at home on their own time using their personal devices?

Social media has become a powerful tool for employers to use in the pre-employment and hiring process.  But how far can an employer go?  Google searches may or may not be ok, but what about checking Facebook pages and Twitter feeds?  Some employers request Facebook passwords from applicants – is that appropriate?  Or worse, is it even legal?

Legislation protecting employees' and prospective employees' social media profiles on sites like Facebook and Twitter has already been passed in California, Illinois, Maryland and Michigan.  Password protection laws are moving their way through state legislatures in various other states including New York, Texas, Massachusetts and several others. So far, the Florida legislature has yet to enact a password protection law, and is not currently considering doing so.  Despite the absence of such a law in Florida, it is not recommended to demand social media passwords from your employees and applicants!

Once an applicant is hired, what rights does he or she have to voice complaints about their workplace or supervisor?  Facebook has become the modern day water cooler, a place for employees to vent their frustrations about work and the workplace.  But what restrictions – if any – are placed on the employer for disciplining the employee (like the dreaded "Facebook Firing") for making negative comments through social media?  During the past 2½ years, the National Labor Relations Board – through its Acting General Counsel, Lafe Solomon – has inserted itself into this discussion.  AGC Solomon and the Board have reviewed hundreds of cases involving "Facebook Firings" or similar, disciplinary action against employees based on actions taken by the employees on their personal social media pages.  While in some cases the firings were upheld, in many instances the Board found that the firings violated the National Labor Relations Act.

Join me at the 18th Annual Akerman Labor & Employment Law Seminar where we will discuss these and other issues related to social media.  Hope to see you there!




OSHA Has Been Hard at Work - Will You Be Ready if OSHA Knocks at Your Door?


A look at a recent speech given by OSHA's Assistant Secretary, David Michaels, Ph.D., provides employers with insight into what agency touts as successes over the past several years and its vision for the year ahead.  Addressing OSHA's employees at its "All-Hands Meeting" in February 2013, Dr. Michaels noted that in recent years, the agency has:
  • Launched the new Severe Violator Enforcement Program to target the worst of the worst violators;
  • Issued a record number of significant and egregious enforcement cases including the largest fine in OSHA history;
  • Issued three major standards;
  • Strengthened the protections of whistleblowers;
  • Launched several new National, Regional, and Local Emphasis inspection programs.

Dr. Michaels revealed that in 2012, OSHA conducted nearly 41,000 Federal OSHA inspections, and another 51,000 with its State plan partners.  OSHA provided free on-site assistance to nearly 30,000 small and medium-sized businesses.  As OSHA moves forward,  Dr. Michaels noted, it will make increased use of its data to target high hazard workplaces.  Other areas of focus include protecting temporary workers and employees in hospitals and healthcare, which he stated have an "alarming high rate of worker injuries and illnesses."

Also in 2012, OSHA updated the Hazard Communication standard, which contains new label elements, a new safety data sheet format, and training requirements that must be completed by December 1, 2013.  Moving onto a another standard – albeit one in the early stages – Dr. Michaels reiterated that OSHA's Injury and Illness Prevention Program ("I2P2") remains its number one priority.   I2P2 is OSHA’s initiative to create a standard that would compel employers to find and fix hazards. 

Commenting on OSHA's continuing efforts to expand its Whistleblower Protections Program, Dr. Michaels stated that in 2012, the agency helped award nearly $27,000,000 to whistleblowers.  "But sanctioning employers who retaliate against workers, and making workers whole, are not our only goals," Dr. Michaels explained. "We are working hard to prevent retaliation from happening in the first place; we are sending a message to employers across the country that punishing workers for exercising their rights will simply not be tolerated."  In this regard, Dr. Michaels noted that employer incentive programs based on injury rates or reports can discourage workers from reporting injuries and that the agency is taking a close look at these programs to determine if they unlawfully discriminate or retaliate against workers or result in violations of OSHA's recordkeeping regulations.  Click here to view a copy of Dr. Michael's speech.

Clearly, the take away for employers is that it’s worth paying attention to those things to which OSHA is paying attention.  As we move forward in 2013, and OSHA's agenda under President Obama's second term, employers should ask themselves, "Are we ready?"  I will discuss more on this topic at the 18th Annual Akerman Labor & Employment Law Seminar.


When Bad Things Happen to Good Employers: An Equal Employment Opportunity Update


I've had many clients tell me they can't believe they're being sued for discrimination. They tell me they treat their employees fairly, that they're not bigoted, that they would never discriminate against employees on the basis of their race or ethnicity or age or disability. They tell me they believe in equal opportunity, that their own nephew has a disability, and that their grandfather came to America on a raft, or through Ellis Island, and spoke of the pain of discrimination. They point to their multicultural, multiracial, age-diverse workforce and ask, "Does it look like we discriminate? Are you kidding me?"

I get it. But here's the thing: Even good employers can be accused of discrimination. Even a champion of women's rights such as Oprah Winfrey can have her company be the target of a pregnancy discrimination lawsuit.  Even the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal discrimination laws, can be accused of disability discrimination against one of their own employees. Bad things happen to good employers. 

There are many reasons for this. Here are a few:

  • You don't know your managers as well as you think you do. Sure, that manager you repose so much trust in seems like a really nice guy – when he's around you and other managers. But do you really know how he behaves around his subordinates? If he's a bigot, he's not going to make this obvious, not in this day and age. Bigots used to wear their bigotry on their sleeve. Today discrimination plays out in more subtle ways.
  • Some employees have a persecution complex. These employees have a tendency to attribute disciplinary actions to discrimination rather than their own shortcomings. Treating such employees fairly will not insulate you from a discrimination lawsuit.
  • Some employees claim discrimination in bad faith. Sensing a disciplinary action coming, they claim discrimination as a preemptive strike, knowing that any subsequent action taken against them may be seen as retaliatory.
  • Sometimes employees and employers have legitimate disagreements over whether an action is discriminatory. Take "English-only" policies in the workplace. Generally they are impermissible except when necessary to promote safety or efficiency. But what is "necessary" is often in the eye of the beholder. Similarly, the Americans with Disabilities Act may require an employer to offer a reasonable accommodation to a disabled employee. But reasonable people may disagree over what is reasonable. 

The bottom line is that no employer large enough to be covered by employment discrimination laws is immune from a discrimination lawsuit. But knowing the law, and keeping abreast of enforcement patterns, new legislation and regulations, and developments in case law can help you reduce your risk. I will be discussing these issues on April 18th at the 18th Annual Akerman Labor & Employment Law Seminar. I look forward to seeing you there.


New I-9 Form For Employers


The U.S. Citizenship and Immigration Services (USCIS) has published Introduction of the Revised Employment Eligibility Verification Form in the March 8, 2013, Federal Register. The new Form I-9 is available here. Employers should use the new form as soon as possible but have until May 7, 2013 before they will be penalized for not doing so. In addition, employers do not need to complete the new Form I-9 (Rev. 03/08/13) for current employees for whom there is already a properly completed Form I-9 on file unless reverification applies. The new form must be completed for reverification when the employee's employment authorization or documentation of employment authorization has expired. If the employer rehires an employee within three years of the date that a previous I-9 was completed, the employer may complete the new Form I-9 or complete Section 3 of the previously completed Form I-9. As always, specific questions concerning I-9 compliance should be referred to legal counsel. 


OSHA Announces Whistleblower Protections under the Affordable Care Act


The Affordable Care Act (ACA)'s whistleblower provisions may present a hazard for unsuspecting employers. On February 27, 2013, the Department of Labor's Occupational Safety and Health Administration (OSHA) released an interim final rule prescribing the procedures and time frames for handling whistleblower complaints filed under ACA, which prohibits retaliation against workers who report violations of the law's consumer protections. 

ACA contains various provisions to make health insurance more affordable and health insurance companies more accountable to consumers. Section 1558 of ACA amended the Fair Labor Standards Act adding Section 18C, which provides protections to employees against retaliation by an employer for reporting alleged violations of Title I of the Act or for receiving tax credits that could translate to a tax penalty for certain large employers. Title I encompasses a range of accountability requirements for insurers, such as the prohibition against lifetime limits on coverage, exclusions due to pre-existing conditions or using factors like medical history to set premium rates. It also includes expanded benefits such as the requirement for most plans to cover recommended preventative services with no cost sharing. Workers who give their employer, the federal government or a state attorney general information about acts or omissions that they reasonably believe violate Title I of ACA will be protected from retaliation. 

ACA authorizes the Secretary of Labor to conduct investigations into complaints and issue determinations which are functions delegated to OSHA. OSHA's interim final rule establishes procedures and time frames for the filing and handling of such complaints. 

Retaliation complaints under 18C have to be filed within 180 days of when the alleged violation occurs. The violation is said to occur when the retaliatory decision has been made and communicated to the worker. Therefore, the limitations clock starts ticking when the employee is aware or reasonably should be aware of that decision, though the time for filing of a complaint can be tolled. 

Upon receipt of the complaint, OSHA must provide written notice to the persons named in the complaint alleged to have violated the Act of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation. 

If the complainant makes the required prima facie showing and the respondent employer does not offer clear and convincing evidence that it would have handled the employee the same way absent the worker's alleged protected activity, OSHA will investigate whether there is reasonable cause to believe that retaliation has occurred. 

The assistant secretary for OSHA will issue written findings within 60 days of the filing of a complaint on whether there is reasonable cause to believe that complaint has merit. Complainants can file suit in a district court seeking de novo review within 90 days of getting that written determination or if more than 210 days pass without a final decision.


Useful Resources