Are Websites Places of Public Accommodation?


By now, most lawyers are aware that Title III of the ADA applies to activities of an entity whose operations "affect commerce" and is a "place of public accommodation" as defined by statute.  42 U.S.C. § 12181(7)(A)-(L).  Commerce is defined as "travel, trade, traffic, commerce, transportation, or communication (A) among the several States; (B) between any foreign country or any territory or possession and any State; or (C) between points in the same State but through another State or foreign country."   42 U.S.C. § 12181(1).  But, are the websites of these "places of public accommodation" subject to the requirements of Title III?  Certainly, one could argue that websites are the virtual cyberspace extensions of physical places, so why not?  Plaintiffs' attorneys certainly think so and are filing more and more lawsuits to make these electronic showrooms accessible to persons with disabilities.  However, the issue is not that settled.

In 2010, the Department of Justice ("DOJ") issued an advanced notice of proposed rulemaking regarding the ADA's coverage of websites and solicited comment on the issue.  Well, it is now almost the end of 2014 and the DOJ has yet to issue formal regulations concerning website access, although it has in the intervening years taken the position that websites generally should be made accessible to individuals with disabilities.  The DOJ has engaged in a host of enforcement actions in Title II cases (cases that require that governmental entities adhere to Rehabilitation Act standards) regarding the accessibility of websites.  In addition, the DOJ has entered into consent decrees with private entities concerning the accessibility of their websites and electronic media, such as Hilton Worldwide in 2010 and H&R Block in 2014.  And so, even absent formal regulations, the DOJ's enforcement history strongly indicates its opinion that the ADA covers access to websites.

But in the courts, the coverage of websites under the ADA remains unsettled.  For example, the Ninth Circuit has held that a "place of public accommodation" must be a physical place, or, at a minimum, involve a physical place.  See Weyer v. Twentieth Century Fox Film, Corp., 198 F.3d 1104, 1114-15 (9th Cir. 2000).  The Weyer case continues to be cited by California district courts for this proposition, even in cases involving access to websites.  The Ninth Circuit in February 2014 certified a question to the California Supreme Court regarding whether its Disabled Persons Act includes websites as "places of public accommodation."  See Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, 742 F.3d 871, 875 (9th Cir. 2014).  The issue has yet to be resolved.  Given the continued controlling nature of Weyer's "physical place" pronouncement, decisions from other courts within the Ninth Circuit have permitted plaintiffs to state a viable claim that the ADA covers a website where the plaintiff alleges that the inaccessibility of a defendant's website prevents the full and equal enjoyment of the goods and services contained within the defendant's physical place.

On the other hand, courts in other circuits, particularly the First and Eleventh, have held specifically that the ADA applies to more than physical places.  See Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (Netflix's website for the rental and viewing of movies, "may qualify as: a 'service establishment' in that it provides customers with the ability to stream video programming through the internet; a 'place of exhibition or entertainment' in that it displays movies, television programming, and other content; and a 'rental establishment' in that it engages customers to pay for the rental of video programming.") (citing Carparts Distrib. Ctr. v. Auto. Wholesaler's Assoc., 37 F.3d 12, 19 (1st Cir. 1994)); Rendon v. Valleycrest Productions , Ltd., 294 F.3d 1279, 1283-84 (11th Cir. 2002) (holding accessibility requirements may extend to platforms beyond physical places, such as a hotline to participate in a television game show).

It seems that until the issue goes before the Supreme Court of the United States (and/or until the DOJ has finally spoken), it will remain unsettled.  However, businesses should be aware of this emerging issue and be proactive in making sure their websites are up to par in this climate of uncertainty.



Fantasy Football's Impact on the Workplace


What do 31 million employees have in common? They all participate in at least one (in many cases more than one) Fantasy Football league! For those of you who are unfamiliar with what has become a national obsession, Fantasy Football is an interactive online competition in which users compete against each other as general managers of virtual "fantasy" teams built from "drafting" real National Football League players. "Owners" are able to draft, trade, add/drop players, and change rosters every week.

Just like your employees' devotion to filling out brackets each year when "March Madness" and the NCAA basketball tournament rolls around, Fantasy Football is a sports fan's obsession. But unlike March Madness, which only requires an initial investment of time and a few days of non-stop basketball games, Fantasy Football lasts four MONTHS and requires its owners to check injury reports, keep up with statistics, and – in recent weeks – monitor arrest records and indictments (thank you, Ray Rice and Adrian Peterson).

Sounds pretty time-consuming, right? A recent study by Challenger, Gray & Christmas estimates that employers will suffer $13 billion in lost productivity due to employees' participation in (obsession over?) Fantasy Football leagues. There was a time not so long ago when employers could control their employees' Internet access and usage simply by placing a block on their access via desktop computer. That time is long past. Employees now have full access to the Internet through their smartphones and tablets, and the Fantasy Football "apps" have gotten better each season. (I've already dropped a QB and added a new WR while writing this article!)

This is not a new phenomenon. For years employees have been making travel plans, on-line shopping and paying personal bills through the Internet while on company time. I even know someone who met their spouse responding to on-line dating ads while at work. But when so many people engage in the same activity for so many hours over so long a time period, employers need to consider the impact.

But how accurate is this $13 billion number? Challenger's estimate is actually a measure of wages paid to unproductive workers. For example, if a company is paying its employee $15 per hour, and one hour of his or her time is spent researching NFL players for Fantasy Football, then that is $15 in lost wages. Challenger calculated the total lost productivity amount using that basic formula and plugging in other numbers like the country's average hourly earnings, total number of working age Americans who play Fantasy Football, and assuming that each participant conservatively spends just two hours per week managing their teams while on the job. Challenger admits it is a non-scientific study. But because it is such a massively popular distraction, employers must take notice.

So is Fantasy Football a bad thing for employers? Not really. It may have some overall, minor impact on workplace productivity, but historically there has been no measurable dip in GDP or productivity in the third or fourth quarters that is directly linked to Fantasy Football.

In fact, there are some positives that come from workplaces where Fantasy Football is part of the proverbial water cooler discussion. Many employers believe that Fantasy Football is a positive influence in the workplace because it increases staff morale and camaraderie among employees. For those employees who participate, it is also a great way to keep in close contact with their customers, clients, and business contacts who also participate in a Fantasy Football league.

Employers should be careful, however, that no employee feels excluded or discriminated against due to Fantasy Football being played in their workplace. Lawsuits have been filed in the past based on sex and religious discrimination stemming from exclusion from Fantasy Football leagues and other social events. Supervisors should be trained to watch for signs of discrimination in workplaces where Fantasy Football is played, and must take responsibility for their employees to ensure no one is excluded for an unlawful reason. And employees must take responsibility for themselves not to let owning their team interfere with their job duties in any way. Winning your Fantasy Football league is a great feeling – but not at the expense of losing your job!


Marijuana Use For Alleged Depression and Anxiety Can Still Get You Fired In Florida


There can be no doubt that Americans' views on the legality of marijuana use for both medicinal and recreational purposes has shifted over the past few years. A recent survey conducted by Fextel, Inc. and found that over 73% of Floridians would support a constitutional amendment to allow the use of medical marijuana to treat debilitating medical conditions, and 58% support the legalization of marijuana for recreational use. Indeed, the Florida Legislature recently passed, and Gov. Rick Scott signed, a bill that now exempts a limited class of individuals with certain medical disorders from criminal penalties for using and possessing low-THC cannabis ordered for patients by their physicians.

Notwithstanding this apparent shift in attitudes, one thing remains clear in Florida: recreational or unauthorized use of marijuana remains illegal and can be valid grounds for termination of an employee.

In the case of Christopher Martin v. Estero Fire Rescue, 30 AD Cases 579 (M.D. Fla. 2014), recently decided in the United States District Court for the Middle District of Florida, the court held that a former city firefighter's depression and anxiety were not ADA-protected disabilities for purposes of his employment bias claim after he was discharged for testing positive for marijuana use allegedly related to his conditions. Firefighter Christopher Martin sued his former employer, Estero Fire and Rescue, alleging that his termination for testing positive for marijuana use constituted unlawful discrimination and retaliation in violation of the Americans with Disabilities Act (ADA) and the Florida Civil Rights Act (FCRA). Martin tested positive for marijuana use and was terminated pending the results of an investigation and due process hearing regarding the positive test. During the employer's investigation into the positive drug test, Martin for the first time informed his employer that he suffered from depression and anxiety with flare-ups of bipolar tendencies, and he admitted using marijuana "in regard" to these conditions. As a requested reasonable accommodation under the ADA and the FCRA, Martin sought a waiver of any discipline for the positive drug test and leave to seek treatment for his ailments, both of which were denied.

The court performed the traditional ADA analysis to determine whether Martin's alleged afflictions constituted a serious health condition that substantially limited a major life activity, and also whether he was regarded as having a disability by his employer. In determining that Martin did not suffer from a condition that substantially limited a major life activity, the court emphasized that he offered no evidence, other than his own testimony, that he suffered from depression or anxiety, and he failed to offer any medical records or testimony from any medical personnel that he had been diagnosed with depression and/or anxiety. The court further noted that Martin failed to provide evidence that his employer regarded him as impaired by depression or anxiety. As a result, the court ruled in favor of Estero Fire Rescue on the disability claims and turned its attention to Martin's claim of retaliation.

In denying Martin's claim for retaliation, the court stressed that the employer had a legitimate, nondiscriminatory reason for Martin's termination, namely the positive test for marijuana. Because Martin was unable to show that his employer's reliance on the positive drug test was merely a pretext for a discriminatory reason, the court ruled in favor of the fire department and against Martin.

The takeaway for employers from this case is that no matter how far public opinion has come with regard to marijuana use in America and the State of Florida, it remains the case that recreational or unauthorized use of an illegal drug by an employee gives an employer a green light for termination.


Fires, Rehires and Non-Competition Agreements: Termination of Employment, No Matter How Brief, May Start the Clock to Run


An Indiana Court of Appeals has ruled that an employer cannot enforce a two year non-compete agreement against an employee who was fired for just 10 days and then rehired because the termination was treated as permanent and there was no writing signed by the employer that extended the duration of the non-compete agreement as required by the express language of the agreement. Nightingale Home Healthcare, Inc. v. Helmuth, No. 29A04-1403-PL-12 (Ind. Ct. App., August 28, 2014).

In 2008, Nightingale, which provides in-home healthcare, hospice care, and private duty care to residents, hired Carey Helmuth as a patient advocate. As a condition of his employment, Helmuth signed a non-compete agreement, which protected Nightingale's proprietary and confidential information and geographically restricted the employee's ability to compete with Nightingale for two years after his separation of employment.

On October 16, 2009, Nightingale terminated Helmuth for substandard work and violation of company policies. Upon termination, Helmuth's compensation, benefits, and duty to perform ceased and Helmuth began the process of obtaining unemployment benefits. However, within days of Helmuth's termination, Nightingale offered to revoke the termination and offered Helmuth to return to work in the same position as patient advocate subject to the prior terms and conditions of his initial employment including the initial non-compete agreement he previously signed. Helmuth accepted and was rehired within 10 days of being terminated. Nightingale did not ask and Helmuth did not sign a new non-compete agreement upon his rehire.

On March 5, 2012, Nightingale fired Helmuth. In May 2012, Helmuth was hired by one of Nightingale's competitors for a position similar to the one Helmuth had while employed at Nightingale and in a similar geographical market.

Upon learning of Helmuth's new employment, Nightingale sued Helmuth for breach of the non-compete agreement. At issue before the court was whether the non-compete restriction became effective when Helmuth was first terminated on October 16, 2009 or subsequently terminated on March 5, 2012. The court found the former for two main reasons.

First, the court rejected Nightingale's argument that its 2009 termination of Helmuth was voided by Nightingale's revocation of the termination. The court found that the termination was unconditional and intended to be permanent. Second, the fact that Helmuth returned to work on the same terms he previously agreed upon was found irrelevant because the non-compete agreement expressly provided that any extension or modification had to be in writing and signed by Nightingale, and no such executed writing by Nightingale existed. Accordingly, Helmuth's restrictive period was found effective as of October 16, 2009. When Helmuth began employment with Nightingale's competitor in May 2012, the non-compete had expired and was therefore unenforceable.

The Nightingale decision should serve as a reminder to employers to know and comply with the operative language of an employee's non-compete agreement to ensure that the employer's interests remain protected as initially intended. Accordingly, if an employee's non-compete agreement expressly provides that it can only be extended by a signed writing, then a signed writing extending the non-compete must be obtained, regardless of the circumstance that necessitates the extension.


Federal Appeals Court Says Dodd-Frank Does Not Protect Overseas Whistleblowers


The U.S. Court of Appeals for the Second Circuit has ruled that the Dodd-Frank Act does not protect whistleblowers outside the United States.

In Liu Meng Lin v. Siemens AG, Case No. 13‐4385‐cv (2nd Cir. August 14, 2014), the court affirmed a trial court's dismissal of a Dodd-Frank whistleblower lawsuit filed by a former Siemens compliance officer, Meng-Lin Liu, in China.  Liu claimed that Siemens violated the whistleblower anti-retaliation provisions of Dodd-Frank by terminating his employment because he made internal reports of alleged corrupt sales practices.  Dodd-Frank generally prohibits retaliation against employees who provide information relating to a violation of U.S. securities laws to the Securities and Exchange Commission ("SEC").

The U.S. District Court dismissed the complaint and ruled that the anti-retaliation provisions of Dodd-Frank do not apply to acts outside the United States.  The court also noted that Liu was not entitled to federal whistleblower protection because he did not report anything to the Securities and Exchange Commission until after he was fired.

On August 14, 2014, the U.S. Court of Appeals for the Second Circuit affirmed the trial court's dismissal of the complaint. The court upheld the ruling that Dodd-Frank does not protect whistleblowers outside the United States.  Specifically, the court stated:

Because a statute is presumed, in the absence of clear congressional intent to the contrary, to apply only domestically, and because there is no evidence that the anti-retaliation provision is intended to have extraterritorial reach, we conclude that that provision does not apply extraterritorially. We furthermore conclude that because Liu's complaint alleges that he was a non‐citizen employed abroad by a foreign company, and that all events allegedly giving rise to liability occurred outside the United States, applying the anti-retaliation provision to these facts would constitute an extraterritorial application of the statute.

The court's decision may prompt Congress to explicitly extend Dodd-Frank anti-retaliation protections to whistleblowers who act outside the United States.  But until Congress extends Dodd-Frank, whistleblowers outside the United States will not be afforded protection.


Persuading Employee to Work Rather than Taking Unpaid Leave May Result in FMLA Violation


The Family and Medical Leave Act ("FMLA") requires employers to provide eligible employees with up to twelve weeks of unpaid leave to care for a newborn child (among other reasons), and to offer reinstatement to the employee following her leave.  The FMLA also makes it unlawful for an employer to interfere with an employee's attempt to exercise her FMLA rights.

But suppose an employer persuades an eligible employee not to take FMLA leave because she is needed at work.  This, too, can result in liability under the FMLA, as illustrated by a recent decision by the Eleventh Circuit Court of Appeals, Evans v. Books-A-Million, Case No. 13-10054 9 (11th Cir., August 8, 2014).

Tondalaya Evans was employed by Books-A-Million as Payroll and Insurance Manager.  Evans became pregnant and advised Books-A-Million that she wanted to take FMLA leave. But Evans was involved in the implementation of a new ADP payroll system, and her supervisor, Sandi Meeks, repeatedly told Evans that she "really needed" Evans to continue to work on the new system.  Evans felt she had no choice but to continue to work from home after the birth of her child, and she did so, but Meeks became frustrated with Evans' lack of progress.  Shortly after Evans returned to work, she was told that she was being reassigned to the newly-created position of Risk Manager because Meeks wasn't pleased with the ADP implementation.  Evans declined the Risk Manager position, for which she had no experience and which required travel, and Books-A-Million terminated her employment.  Evans sued under the FMLA.  The district court granted Books-A-Million's motion for summary judgment, reasoning that, even if Books-A-Million interfered with Evans' FMLA rights, she could not state an FMLA claim, because she had been paid during the time she would have been on FMLA leave and therefore suffered no loss of income from the interference.

On appeal, the Eleventh Circuit reinstated Evans' FMLA claim.  Citing the Supreme Court's decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002), the court noted that an FMLA plaintiff can prevail by proving that her employer interfered with the exercise of her FMLA rights "and that she was prejudiced thereby."  Such prejudice, the Eleventh Circuit noted, need not take the form of monetary damages. "It seems plain to us[,]" the court wrote, "that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer's FMLA violation."  In addition, the court noted, "[a] reasonable fact finder could conclude that Evans' reassignment constituted an unlawful act of interference with her FMLA right to be reinstated to her former position."

The Evans case illustrates that interference under the FMLA can take different forms; it can even take place with the employee's consent.  Employers would be well advised not to pressure employees to forego their FMLA rights, even if they are "really needed" at work.  An employee's right to FMLA leave trumps the employer's business needs.


EEOC Broadens Pregnancy Discrimination Protections


On July 14, 2014, the Equal Employment Opportunity Commission ("EEOC") issued an updated enforcement guidance on pregnancy discrimination and related issues, and significantly widened the employee protections. The guidance addresses requirements under the Pregnancy Discrimination Act ("PDA") and the application of the Americans with Disabilities Act, ("ADA"), as amended, to pregnant women.

Initially, the guidance sets out the PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions. An employer may not have policies that disproportionately affect pregnant employees unless they are job-related and consistent with business necessity. Further, an employer may not take adverse action on the basis of a past pregnancy, current pregnancy, potential or intended pregnancy, or medical conditions related to pregnancy or childbirth. Discrimination may take the form of harassment, the failure to provide light duty where provided to other employees who are similarly unable to perform their jobs, forced leave or unequal access to leave.

The guidance states that women affected by pregnancy, childbirth, or other related medical conditions must be treated the same as others not so affected but who have a similar ability or inability to work. In the most dramatic change from current law, an employer must treat a pregnant employee temporarily unable to perform her job the same as other employees temporarily unable to perform due to other circumstances and must provide similar accommodations. Thus, employers may have to provide pregnant employees with the same accommodations provided to employees with comparable disabilities. For example, if an employer offers light duty to disabled employees hurt on the job, the employer must offer the same light duty opportunity to pregnant employees.

Under the ADA, employees may be subjected to discrimination where the pregnancy or pregnancy-related condition qualifies as a disability and the employee has a disability, has a record of a disability, or is regarded as having a disability. Significantly, the guidance states that "[c]hanges to the definition of the term 'disability' resulting from the enactment of the ADA Amendments Act of 2008 make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to reasonable accommodation under the ADA." Such accommodations may include more frequent breaks, altering job functions are performed, or providing a light duty assignment.

The above only highlights the provisions of the thirty-page guidance. Employers are encouraged to read the guidance along with the EEOC's "Questions and Answers" to ensure their policies and practices are in compliance. Akerman's Practice Group Update on the guidance may be accessed here.


FMLA & Medical Certification: When Does An Employer Have A "Reason to Doubt"?


Given the financial and administrative costs that FMLA continues to impose upon employers, HR managers are consulting with counsel to determine what tools are available to ensure that those who truly need FMLA leave are able to get it.  One commonly used tool is to obtain second opinions to verify the accuracy of an initial medical certification.

The FMLA in 29 U.S.C. § 2613(c) and its regulations, 29 C.F.R. § 825.307(b) and (c), permit employers to obtain additional medical opinions regarding the certification of an employee's "serious health condition."  An employer's ability to obtain these opinions is limited, however, as the employer must have some "reason to doubt the validity" of the initial opinion, whether it is the validity of the certification itself or whether the contents of the certification are internally inconsistent.  See 29 C.F.R. §825.307(b); Smith v. Hope School, 560 F.3d 690 (7th Cir. 2009) (affirming the grant of summary judgment to employer where employee added a condition to her certification that her doctor did not diagnose, thereby altering the FMLA certification that her doctor had already completed); Miller v. Northwest Airlines, Inc., 2013 WL 5425420, at *10-11, 26-27 (D. Minn. Sept. 27, 2013) (granting summary judgment on FMLA entitlement claim where employer sought second opinion regarding a certification that presented conflicting information regarding the employee's condition, namely that the employee could work full-time but would need up to 20 hours per week of leave).  

There is little case law explaining specific circumstances that constitute a sufficient reason to doubt the validity of a medical certification.  Many cases simply quote the text of the statute and implementing regulations without providing further explanation or guidance on what the FMLA and the regulations contemplate as a sufficient "reason to doubt the validity of the certification."  Appearing to go against the grain of most cases, however, the court in Albert v. Runyon, 6 F. Supp. 2d 57 (D. Mass. 1998), held the employer to a higher standard, as the employer was criticized (and ultimately received an adverse judgment) for failing to show a "specific" reason that it suspected that the initial medical opinion that the employee could return to work was unworthy of credence.  Id. at 64-65. 

Although neither the FMLA nor its regulations state that a "reason to doubt the validity" of a certification needs to rise to the level of actual fraud by the employee (as in Smith), if an employer wishes to require a second opinion, employers would do well to document the specific reasons that they have to question the initial certification before doing so.  In the case of intermittent leave, a pattern of Monday and Friday absences could justify a second medical opinion.  In this way, employers can ensure that FMLA leave does not become more than what was intended at the time Congress passed it.


Confederate Flag Can Contribute to Hostile Work Environment, Says Eleventh Circuit


Exposure to the Confederate flag in the workplace can support an employee's claim of racial discrimination, according to a recent decision of the United States Court of Appeals for the Eleventh Circuit, Adams v. Austal U.S.A., LLC (11th Cir., June 17, 2014). 

The plaintiffs, 24 African American current and former employees of shipbuilder Austal, U.S.A., alleged that they were subjected to a racially hostile work environment.  The district court granted summary judgment in favor of the company on the claims of 13 of the employees on the grounds that their work environments were not objectively hostile.  On appeal, the Eleventh Circuit affirmed the summary judgments against six of the employees.  The court reasoned that these employees could not rely on evidence of which they were not personally aware to prove that their work environment was objectively hostile. This result makes sense and comports with the decisions of numerous other courts on the same issue.

The Eleventh Circuit reversed the district court's summary judgment against seven of the plaintiffs on the grounds that these employees personally were exposed to numerous incidents of racial slurs, racial graffiti, and, notably, the display of the Confederate flag in the workplace. 

To be clear, the court did not hold that a single instance of an African American employee's exposure to the Confederate flag constitutes actionable discrimination.  Nevertheless, exposure to the Confederate flag was part of the "totality of the circumstances" that may have created a hostile work environment for the seven employees whose cases were reversed. 

Based on the Adams decision, employers may want to consider banning all displays of the Confederate flag in the workplace. 

And in case you were wondering, the display of the Confederate flag is not likely to be deemed protected activity.  In Storey v. Burns International Security Services (3d Cir., December 9, 2004), the plaintiff argued that Title VII's ban on national origin and religious discrimination protected the display of the Confederate flag because being "Confederate Southern-American" is a national origin, and the Confederate flag is a religious symbol because it incorporates the cross of Saint Andrew.  The court rejected this argument, holding that an alleged "personal need to share [one's] heritage cannot be equated with something endemic to national origin or a religiously mandated observance."


Who is a Whistleblower Under Dodd-Frank? Courts Disagree.


The Dodd-Frank Wall Street Reform and Consumer Protection Act protects employees who blow the whistle on possible securities law violations.  But the question of who qualifies as a whistleblower continues to divide courts, as illustrated by two recent cases.

In Englehart v. Career Education Corp., Case 8:14-cv-444-T-33EAJ (M.D. Fla., May 12, 2014), the plaintiff, an employee of publicly traded Career Education Corp. ("CEC"), alleged that she was terminated because she voiced concerns internally at CEC regarding proposed budgets and forecasts that misrepresented student enrollment numbers and placements.

In Bussing v. COR Clearing, LLC, Case No. 8:12-cv-238 (D. Neb., May 21, 2014), the plaintiff alleged that she was terminated from Legent Clearing, LLC (a subsidiary of COR Clearing, LLC) after issuing an internal report on Legent's violations of the Bank Secrecy Act, anti-money laundering laws, and deficits in record-keeping, and participating in an investigation of Legent by the Financial Industry Regulatory Authority ("FINRA").

Neither Englehart nor Bussing provided any information to the Securities and Exchange Commission ("SEC").  So were they whistleblowers under Dodd-Frank?

The statute does not provide a clear answer because of a tension between Dodd-Frank's retaliation provision and the Act's definition of "whistleblower."  The statute prohibits retaliation against whistleblowers for: (i) providing information to the SEC, (ii) participating in an SEC investigation, or (iii) "making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), this chapter, …. and any other law, rule, or regulation subject to the jurisdiction of the [SEC]."  Read alone, subsection (iii) appears to protect an employee who discloses financial improprieties internally, without reporting them to the SEC, as long as they are disclosures required by a law or rule subject to the jurisdiction of the SEC.  On the other hand, Dodd-Frank only protects whistleblowers, and the Act separately defines "whistleblower" as "any individual …. who provides information relating to a violation of this Act to the [SEC], in a manner established by rule or regulation by the [SEC]."  Under this definition, one seemingly cannot be a whistleblower without providing information to the SEC.

The Englehart court, citing the Fifth Circuit Court of Appeals' decision in Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013), dismissed the plaintiff's claim, holding that the statutory definition of whistleblower was controlling and that the plaintiff was not protected under Dodd-Frank.  In Bussing, in contrast, the court concluded that the plaintiff's allegations stated a claim for whistleblowing.  The court reasoned that if "whistleblower" means only what the "narrow" definition states, then "subsection (iii) serves no significant purpose, and its aim of broadly protecting whistleblowers is stifled."  According to Bussing, "whistleblower" must also be accorded a broader, "ordinary" meaning to give effect to subsection (iii).

A consensus has yet to emerge on the question of who is a whistleblower under Dodd-Frank.  An amendment to the statute, or a decision by the United States Supreme Court, may be required to resolve this issue.


Court Grants Deference to Secretary of Labor's Interpretation of OSHA Regulation


When the Secretary of the Department of Labor and the Occupational Safety and Health Review Commission offer competing but reasonable interpretations of a worker safety regulation, the Secretary's interpretation is entitled to deference, according to a recent decision by the Eighth Circuit Court of Appeals, Perez v. Lorenz Cook Co., Case No. 13-1310 (8th Cir., May 9, 2014).

The Lorenz Cook decision is bad news for employers because it gives the interpretive advantage to the DOL's Occupational Safety and Health Administration ("OSHA"), which adopts and enforces safety regulations, rather than to the OSHRC.  The OSHRC ("the Commission") is an independent agency that conducts hearings and renders decisions through its Administrative Law Judges (ALJs) and reviews ALJ decisions through its panel of Commissioners. 

The case involved the interpretation of 29 C.F.R. § 1910.212(a)(1), which sets standards for machine guards.  The Secretary cited Lorenz Cook, a manufacturer of air circulating equipment,  for violating the regulation and imposed $490,000 in fines after a worker was killed when a twelve-pound "workpiece" broke loose from a lathe, shot out, and struck him in the head. A “workpiece” is a metal disc that workers shape into a part.  The Secretary determined that the regulation requires lathes such as those used by Lorenz Cook to have guards to protect workers from ejected workpieces.  Loren Cook challenged this interpretation.  An ALJ ruled in Loren Cook’s favor, holding that the regulation only required guards on the lathes to prevent debris or waste material from being ejected; it was not intended to prevent the ejection of the workpiece, which would entail a malfunction of the machine.  The Commission, which has discretionary authority to review ALJ decisions, declined further review, and the Secretary appealed the case.

The Eighth Circuit reversed the ALJ’s decision, relying on the Supreme Court's decision in Martin v. Occupational Safety & Health Review Commission, 499 U.S. 144 (1991).  In Martin, the Supreme Court held that "a reviewing court may not prefer the reasonable interpretations of the Commission to the reasonable interpretations of the Secretary[.]"  While the Commission has authority to make findings of fact and to apply the Secretary's standards to those facts in making a decision, the Commission has "no more power than this in order to perform its statutory role as 'neutral arbiter.'"  Applying Martin, the Eighth Circuit found that the Secretary's interpretation was reasonable and thus entitled to deference. The regulation, the court noted, "contains no inherent limitation to protections only against ejected debris rather than workpieces and no inherent limitation to situations involving normal machine operation rather than machine malfunctions."  The court rejected Lorenz Cook's argument that the Secretary had for decades acquiesced in a 1982 court decision that had interpreted the regulation more narrowly. The Eighth Circuit reasoned that the Secretary’s "understanding of the effect of an interpretation may develop over time," which itself does not demonstrate unreasonableness.

For employers, the Lorenz Cook decision illustrates one of the fundamental challenges in defending against OSHA violations.  The Secretary of Labor not only adopts and enforces safety regulations, but his interpretation of those regulations is entitled to judicial deference as long as it is reasonable – even when that interpretation departs from the Secretary’s longstanding practice.  Employers seeking to challenge the Secretary's interpretation of a safety regulation therefore face an uphill battle.


New Rules Would Amend COBRA Notification Requirements to Include ACA Alternatives


The U.S. Department of Labor ("DOL") has proposed new rules that would revise an employer’s notification requirements under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") to align them with Affordable Care Act ("ACA") provisions already in effect.  

Under COBRA, group health plans must provide a general notice of COBRA rights to each covered employee and spouse at the time of commencement of coverage under the plan.  In addition, group health plans must provide qualified beneficiaries with an election notice at the time of certain qualifying events, such as termination of employment or reduction in hours that causes loss of coverage under the plan.  The election notice describes a qualified beneficiary’s rights to continuation coverage and how to make an election.  The election notice must be provided to the qualified beneficiaries within 14 days after the plan administrator receives the notice of a qualifying event.  

The DOL had previously issued a model general notice and a model election notice that were available for download on DOL's website.

On May 8, 2013, the DOL issued technical guidance which explained that some qualified beneficiaries may want to consider and compare health coverage alternatives to COBRA continuation coverage that are available under the ACA through a private health insurance market – the Health Insurance Marketplace ("the Marketplace").  The DOL also noted that some qualified beneficiaries may also be eligible for a premium tax credit to help pay for some or all of the cost of coverage in plans offered through the Marketplace.

The proposed regulations issued on May 1, 2014 eliminate the older version of the model general notice and the model election notice and permit the Department to amend the model notices as necessary and provide the most current versions of the model notices on its website.  While use of the new model notices is not required, using them will ensure compliance with COBRA notice requirements, at least until the new rules are finalized.  The proposed rules note that "[u]ntil rulemaking is finalized and effective, the Department of Labor will consider use of the model notices available on its website, appropriately completed, to be good faith compliance with the notice content requirements of COBRA."


Do Employers Have to Offer Telecommuting as a Reasonable Accommodation?


Regular attendance is an essential function of most jobs.  Thus, employers generally do not have to accommodate employees whose disability prevents them from regularly attending their job.

But a recent decision by the United States Court of Appeals for the Sixth Circuit sheds new light on what "attendance" may mean.  In Equal Employment Opportunity Commission v. Ford Motor Company (6th Cir., April 22, 2014), the court held that there was a triable issue as to whether an employee's physical presence at the job site was an essential function of the job, in light of the employee's request that she be permitted to work remotely from home.

Jane Harris worked as a resale buyer at Ford Motor Company.  She suffered from irritable bowel syndrome, a condition that worsened over time and resulted in frequent absenteeism.  Harris requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability.  Ford has a policy that authorizes employees to telecommute up to four days per week, but the policy provides that it is not suitable for all jobs.  Harris's supervisors concluded that her job was not suitable for telecommuting and subsequently terminated her employment.  Harris sued under the ADA, claiming that Ford failed to accommodate her disability.  The district court declined to second-guess Ford's business judgment that telecommuting was inappropriate in Harris's case and granted Ford's motion for summary judgment.

On appeal, the Sixth Circuit reversed, reasoning that attendance does not necessarily require a physical presence at the employer's location:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the "workplace" is anywhere that an employee can perform her job duties.  Thus, the vital question in this case is not whether "attendance" was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.

The court noted that "[d]etermining whether physical presence is essential to a particular job is a 'highly fact specific' question."  Examining the evidence presented, the court concluded that there was a genuine dispute on this issue that precluded summary judgment.

For employers, the Ford Motor Co. case serves as a reminder that there is often no bright-line test for determining what is a reasonable accommodation.  While employers have discretion in defining an employee's essential job functions, courts will not necessarily defer to the employer's judgment, especially where it leads to the termination of a disabled employee.  And as technology advances, courts may increasingly find that telecommuting is a reasonable accommodation for a disabled employee, despite an employer's opinion to the contrary.



Social Media Policies — ALJ Disregards Guidance From NLRB General Counsel


If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: "The postings on this site are my own and don't necessarily represent the positions, strategies or opinions of the Company."

This statement was found to be unlawful in an April 22, 2014 decision by an Administrative Law Judge.  The ALJ reasoned that the word "publish" when using "online communications" would cover employees posting online even when using their own computers on their own time.  The employer's requirement to include the disclaimer in conjunction with these communications was considered unduly burdensome.

A core activity protected by the National Labor Relations Act is the right of employees to discuss, debate, and communicate with each other regarding their terms and conditions of employment.

The ALJ conceded that an employer has a legitimate interest in stopping unauthorized employees from speaking on behalf of a company.  However, the ALJ found that it was not reasonable to believe that all communications by employees would be confused for employer-sanctioned speech.

The ALJ also rejected the opinion from the General Counsel of the NLRB that approved the following Social Media Policy language,   

Any comments directly or indirectly relating to [Employer] must include the following disclaimer: The postings on this site are my own and do not represent [Employer's] positions, strategies or opinions.

It remains to be seen whether the Employer will appeal this decision.  In any event, employers need to keep a close watch on how social media policies are being interpreted.



Whistleblower Claims The Wave Continues


"The cover-up is often worse than the crime" – an apt mantra for employers who are being increasingly forced to defend retaliation and/or whistleblower claims brought in myriad industries under a broad spectrum of federal and state laws.

The United States Supreme Court's recent (and landmark) decision in Lawson v. FMR LLC, broadly expanding the scope of potential whistle-blower claims under the Sarbanes-Oxley Act of 2012 (SOX), highlights employers' enlarged whistle-blower-related exposure.  The Lawson decision meaningfully enhances the number of employees who may seek to bring suit under the SOX whistle-blower provision.  Passed in 2002 on the heels of the Enron scandal, SOX prohibits retaliation against employees who report specific violations of SEC regulations and/or other forms of shareholder fraud.  Based on statutory language, up until Lawson, employers generally operated under the belief that it applied only to employees of publicly-traded companies. 

Not so.  In Lawson, writing for a 6-3 majority, Justice Ginsburg held that the SOX anti-retaliation provision applies not only to employees of publicly-traded companies, but also to employees of non-public companies that provide work for public companies.  Justice Ginsburg reasoned that prohibiting retaliation under SOX against non-public company employees furthered Congress' overarching "aim" of SOX, which was to "safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corp."  

By so holding, the United States Supreme Court unquestionably expanded SOX whistle-blower coverage and stoked fears that a new wave of SOX whistle-blower litigation is imminent.

In addition to expanded SOX whistle-blower coverage, employers throughout the country face whistle-blower-related exposure under various federal statutes such as the Dodd-Frank Act (in the financial services sector), OSHA, the Fair Labor Standards Act, and the Family and Medical Leave Act, as well as numerous state and local civil rights, discrimination and/or public safety statutes.  In this evolving area of law, it is incumbent upon employers to carefully analyze their internal compliance practices for receiving and investigating all types of whistle-blower complaints.  Human Resources representatives and key members of management – in publicly- and privately-held companies – must be trained regarding the broad range of whistle-blower laws and how to recognize and respond to the various forms of protected whistle-blower complaints, which might arise in the workplace.  

Join us at the 19th Annual Akerman Labor & Employment Law Seminar where we will discuss these and other employment law issues.


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