Healthcare Employers Beware: OSHA Campaign Is Targeting You

POSTED BY HEATHER L. MACDOUGALL ON AUGUST 8, 2013

On July 16, 2013, the Occupational Safety and Health Administration (OSHA) announced that it is launching a campaign that aims to protect healthcare workers from musculoskeletal disorders (MSDs).  While this campaign expressly targets the District of Columbia and three nearby states, it is part of a broader campaign by OSHA, unions, and health worker advocates to put increased pressure on inspections in the healthcare industry.

As part of this effort, on July 17, the Washington-based pro-union, advocacy group Public Citizen released a report — "Health Care Workers Unprotected" — that criticized OSHA for not inspecting more healthcare industry establishments and lacking standards addressing healthcare industry hazards.  Officials from the Service Employees International Union and American Nurses Association appeared on a Public Citizen telephone news conference to endorse the report.

The Public Citizen report states that healthcare workers suffer more injuries and illnesses on the job each year than those in any other industry, but OSHA conducts relatively few inspections of healthcare facilities and is stymied in its ability to take action to address unsafe conditions by an absence of needed safety standards. 

The Public Citizen report also argued that the lack of regulations applicable to healthcare hinders inspectors, who are hesitant to cite employers under the general duty clause for a violation that does not correspond to a specific safety standard. The report noted that OSHA issued an ergonomic standard that could have protected healthcare workers in 2000, but Congress repealed it before it could take effect.  In the report, Public Citizen recommended that OSHA increase the number of inspections of the healthcare industry facilities and pursue standards to ensure that workers are protected from the risks posed by MSDs, workplace violence, and other threats. The report also recommends that Congress significantly increase funding of OSHA. 

In addition to MSD injuries, the report states that workplace violence is another serious hazard in the healthcare industry. Public Citizen recommended that OSHA develop a standard for workplace violence.  This standard, according to Public Citizen, should require employers to adopt zero-tolerance policies for violence and threats, provide protection for employees to deter co-worker retaliation, and develop workplace safety plans.  [In 2004, OSHA published guidance on preventing workplace violence in healthcare settings.]

The report identified injuries from surgical instruments and needles as a third major concern.  Although Public Citizen praised OSHA's bloodborne pathogen standard, it said the agency should update that rule to require injury logs that are reviewed by both managers and workers to assess potential hazards. The updated standard, according to Public Citizen, should also mandate employers purchase best available technology in needles and instruments, and that they consult with workers before making those purchasing decisions.  [OSHA has begun a review of the standard and has said it will end its review and issue findings in later this year.]

These union-backed efforts follow the release of a little publicized OSHA letter of interpretation, dated April 5, 2013, wherein the agency announced for the first time that during an inspection of non-union worksites, employees can be represented by anyone selected by the employees, including outside union agents.  OSHA's new policy will undoubtedly encourage unions to get involved in OSHA inspections in non-organized facilities as a means of gaining access to the facility.  In short, these OSHA developments provide an open door to many union organizers targeting the healthcare industry — an industry sought after by labor organizations in recent years. 

Now more than ever, healthcare employers should engage in vigorous compliance with federal and state safety standards. 

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NLRB Has Full Complement Of Board Members

POSTED BY SCOTT T. SILVERMAN ON AUGUST 6, 2013

The Senate confirmed all five of the President's nominees to serve as National Labor Relations Board (the "Board") members on July 30, 2013.  This gives the Board a full complement of Senate-confirmed members for the first time in a decade. 

The Board now includes Democrats Board Chairman Mark Gaston Pearce, whose term was set to expire in August, Kent Hirozawa, who has served as Pearce's chief counsel, and Nancy Schiffer, a retired associate general counsel at the AFL-CIO. The two Republican members are Philip Miscimarra, a partner at Morgan Lewis & Bockius LLP, and Harry I. Johnson III, a partner at Arent Fox LLP.  

The nominations of Hirozawa and Schiffer on July 16, 2013 were part of a Senate deal to avert a filibuster showdown.   Hirozawa and Schiffer replaced the previous renominations of Richard F. Griffin, Jr. and Sharon Block, on February 13, 2013.  One may recall that it was their appointment as Board Members on January 4, 2012, during what the President considered to be a recess, that led to the D.C. Circuit's Noel Canning decision that the Senate was not actually in recess and the appointments were unconstitutional.   That decision is currently on appeal to the U.S. Supreme Court. 

Republicans engaged in efforts to block the Griffin and Block nominations, as well as several other nominations, and Democrats countered by threatening a rule change to end filibusters of executive nominations. As a compromise, Democrats agreed not to force the rule change, and Republications agreed  not to  filibuster the two new nominees or Pearce's renomination.

The new nominations remove any doubt about Board authority going forward and are not expected to cause a shift in the Board's approach to labor law issues, because the Board still contains a Democrat majority.  Further, even if Noel Canning is upheld on appeal to the U.S. Supreme Court, the new Board will be able to reissue all the decisions called into question.

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Don't Forget To File Your EEO-1 Reports

POSTED BY SCOTT T. SILVERMAN ON AUGUST 2, 2013

All private employers who are subject to Title VII and have at least 100 employees must file the Employer Information Report ("EEO-1 Report"). The Equal Employment Opportunity Commission ("EEOC") requires that the EEO-1 Report must be filed by September 30, 2013.  In addition, private employers who have fewer than 100 employees, but are owned or affiliated with one or more other companies, or who have centralized control or management with other companies, such that the group of companies is a single enterprise may also have to file the EEO-1 Report.  Where such an enterprise employs at least 100 employees, the company must file an EEO-1 Report.  Most federal contractors and first-tier subcontractors are also required to file an EEO-1 Report.

The EEO-1 Report requires the disclosure of various types of company information, including federal contractor status, and employment data by job category, race/ethnicity, and gender.  The EEOC prefers that employers file the EEO-1 Report online using the EEOC's website.  For more information, click here to access the EEOC's website about EEO-1 Reports.

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Employer's Back Door Settlement of FLSA Claim Backfires

POSTED BY RICHARD D. TUSCHMAN ON JULY 31, 2013

An employer's settlement of a Fair Labor Standards Act claim directly with a former employee rather than with the former employee's attorney was invalid and should not have been approved by the federal district court, according to a recent decision by the Eleventh Circuit Court of Appeals, Nall v. Mal-Motels, Inc. (11th Cir., July 29, 2013). 

Candace Nall worked for Mal-Motels, which is owned by Mohammad Malik.  Nall quit her job because she was not being paid overtime.  She then hired an attorney and filed suit against Mal-Motels and Malik. Malik, who apparently did not want to pay an attorney any more than he wanted to pay Nall overtime, filed an answer.  Malik then met with Nall to discuss a settlement of her lawsuit.  Malik told Nall she was "ruining his business" and proposed a settlement of two thousand dollars in exchange for a dismissal of the lawsuit.  Nall, who was homeless and needed the money, accepted the settlement and filed a voluntary dismissal of the case.  The court rejected the dismissal because it had not been filed by her lawyer.  Malik then hired a lawyer, who moved to enforce the parties' settlement.  At the hearing on the motion to enforce the settlement, Nall's attorney objected to the settlement. Nevertheless, the court approved the settlement as "a fair and reasonable resolution of a bona fide dispute under the FLSA" and dismissed her complaint. 

On appeal, the Eleventh Circuit reversed.  The court began by reaffirming the rule stated in Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982) that back wage claims arising under the FLSA can be settled or compromised only by the Department of Labor or by a court-supervised settlement that results in a "stipulated judgment" after the court has scrutinized the settlement for fairness.  The settlement did not meet the Lynn's Food Stores requirement of a stipulated judgment because "it takes two (or more) to stipulate," the court wrote, "and a judgment to which one side objects is not a stipulated one."  Although Nall had agreed to the settlement, the fact that Nall's attorney objected to the settlement was significant: 

When a plaintiff's attorney asks the district court to reject a settlement agreement that was reached without the attorney's knowledge or participation, whatever else the judgment approving the agreement may be, it is not a "stipulated judgment" within the meaning of Lynn's Food.

Employers should take a couple of lessons from the Nall decision.  First, hire a lawyer if your company is sued under the FLSA.  A non-lawyer cannot represent a corporation and is probably unqualified to understand the rules regarding the settlement of FLSA cases.  Second, if the plaintiff is represented by an attorney, do not attempt a "back door" settlement directly with the plaintiff.  Cutting out the plaintiff's attorney may seem like a clever idea, but the plaintiff's attorney will not simply go away.  In the long run, you will pay more by doing what Malik did than by defending the case the right way.  But you don't have to take my word for it. The Eleventh Circuit's opinion in Nall begins with this observation:

This appeal grew out of an effort by two people to settle an FLSA lawsuit involving an overtime claim.  They attempted to settle the litigation without the advice and assistance of attorneys, which only led to the involvement of attorneys and more litigation.  The case presents issues about how a lawsuit involving an FLSA claim can be settled, and it demonstrates how a few dollars saved can lead to a lot more dollars spent.

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Supervisor Misconduct Alone is Insufficient to Impute Employer Liability Under the OSH Act

POSTED BY HEATHER L. MACDOUGALL ON JULY 29, 2013

On July 24, 2013, in Comtran Group, Inc. v. U.S. Department of Labor, the U.S. Court of Appeals for the Eleventh Circuit overturned a final decision of the Occupational Safety and Health Review Commission ("Review Commission") and issued an important decision affecting employer liability under the Occupational Safety and Health Act ("OSH Act") in a case involving supervisor misconduct.  

A supervisor for the employer, Comtran Group, was digging in a six-feet deep trench with an unprotected five-feet high "spoil pile" at the edge of the excavation — a violation of an OSHA standard.  The case on appeal before the Eleventh Circuit involved the Department of Labor's contention that it is appropriate to impute a supervisor's knowledge of his own violative conduct to his employer under the OSH Act, thereby relieving the Secretary of Labor of her burden to prove the "knowledge" element of her prima facie case.  In reversing the Review Commission's decision, the Eleventh Circuit answered the question of first impression for this circuit in the negative.

In disagreeing with the Review Commission, the Court found that the Secretary failed to show that the employer knew or should have known that the OSH Act was being violated.  To establish employer liability for OSH Act violations, the DOL must show all of the following:

  • The regulation cited applied; 
  • It was violated;
  • That an employee was exposed to the hazard that was created; and
  • The employer "knowingly disregarded" the OSH Act’s requirements.

In Comtran, the DOL established the first three prongs of the four-prong test, but the Eleventh Circuit found that the DOL failed to prove the knowledge element. Even more importantly, the Eleventh Circuit decided that the DOL cannot meet its burden under the fourth prong by supervisory misconduct alone.  

The Court noted that there's a distinction between a supervisor's knowledge of a subordinate's misconduct, which can be imputable to an employer, and the supervisor's knowledge of his own misconduct. An employer can only act through its agents, of course, and the supervisor is the employer’s "eyes and ears," such that his knowledge is the employer’s knowledge. However, when the misconduct is the supervisor's own, the employer in such instance has no "eyes and ears," the Court stated. "It is, figuratively speaking, blind and deaf. To impute knowledge in this situation would be fundamentally unfair." The result would be arbitrary and capricious, the Court said, and not in accordance with the law;  thus, it reversed the Review Commission’s decision.

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Yes, You Can Fire an Employee Because She is Hot, Iowa Supreme Court Affirms

POSTED BY RICHARD D. TUSCHMAN ON JULY 16, 2013

Last year we reported on the Iowa Supreme Court's decision in Nelson v. James H. Knight, DDS (Iowa, December 21, 2012), in which the court held that a dental practice did not discriminate against a female assistant by terminating her because her good looks and personal relationship with the dentist triggered jealousy on the part of the dentist's wife.  The court rejected the claim of Melissa Nelson that her boss, Dr. Knight, terminated her because of her gender and would not have terminated her if she had been male.

Recently, after some negative media coverage and a petition for rehearing filed by Nelson, the Iowa Supreme Court reconsidered its decision and issued a revised opinion. But the result was the same. The court affirmed the district court's decision to dismiss Nelson's claim. 

On first blush the court's decision may seem unjust.  But, in fact, it is well-supported by precedent and consistent with the purpose of Title VII – to prevent discrimination on the basis of certain protected statuses, not on the basis of personal relationships. The court noted that there is a substantial body of case law holding that sexual favoritism, where one employee is treated more favorably than members of the opposite sex because of a consensual relationship with the boss, does not violate Title VII.  Following the same logic, treating an employee unfavorably because of such a relationship does not violate the law, either.  

The court acknowledged the unfairness of the situation to Nelson, who did not initiate any sexually suggestive conduct with Dr. Knight or do anything wrong.  But the court noted that "Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee's protected status."  The court concluded that Nelson was fired not because of her gender – there were several other women in the office who were not let go – but because of her good looks and personal relationship with Dr. Knight.  Nelson's termination was undoubtedly unfair, but it was not illegal.

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Employer Affordable Care Act Mandate Delayed

POSTED BY SCOTT SILVERMAN ON JULY 3, 2013

The Treasury Department has just announced that the employer penalty provisions of Health Care Reform, which were set to go into effect on January 1, 2014, will now be delayed until 2015. The delay applies only to the employer penalty provisions and certain related information reporting requirements. At least for now, the implementation of the Health Insurance Marketplaces (Exchanges) and the requirement that individuals obtain coverage (the Individual Mandate) are still scheduled to go into effect in 2014, along with other scheduled requirements. It also appears that, as of now, employers will still be required to provide Marketplace Notices to employees as of October 1.
 
The delay will be welcome news for employers that have been struggling with the complexities of the penalty provisions and the lack of guidance on key issues. We are expecting further guidance on how the rest of Health Care Reform will work before the end of summer. For more information about the announcement, please see Health Law RX Blog.
 

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Employees Asserting Retaliation Must Meet Higher Causation Standard, Supreme Court Rules

POSTED BY KAREN M. BUESING ON JUNE 26, 2013

The explosion of retaliation claims may skid to a halt or at least slow down after the Supreme Court's decision this week holding that plaintiffs making Title VII retaliation claims must establish that their protected activity was a "but-for" cause of the alleged adverse action by the employer.

In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that the text, structure, and history of Title VII demonstrated that merely showing that an employee's conduct in engaging in protected activity was "a motivating factor" in the employer's action was not enough.

That holding should eliminate what's become a standard practice from the employee playbook: when the employee senses discipline or termination on the horizon, the employee files a claim of discrimination based on a protected category/status such as age, sex, or race. Then, when the discipline or termination comes to pass, the employee asserts it was in retaliation for complaining of discrimination.

Employers should be thrilled that the Supreme Court saw that play clearly and removed it from the employee arsenal.  As the Court noted, the number of retaliation claims has nearly doubled in the last 15 years and has outstripped every kind of status-based discrimination except race.  The Court paid heed to the burden those claims place on employer and court resources, noting that the "proper interpretation" of the causation standard is "of central importance to the fair and responsible allocation of in the judicial litigation systems."

The Supreme Court also refused to give credence to the EEOC guidance manual's interpretation of Title VII that an employee could show retaliation merely by establishing that engaging in protected activity was "a" motivating factor. The Court said the agency's guidance on this issue was not entitled to deference under applicable law because it failed to address the statutory scheme, lacked a persuasive discussion and involved circular reasoning.  This could open the door to further challenges to claims that the EEOC's guidance on an issue is entitled to deference from the courts.

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Supreme Court Affirms Narrow Definition of Supervisor Under Title VII

POSTED BY RICHARD D. TUSCHMAN ON JUNE 24, 2013

The Supreme Court has ruled in Vance v. Ball State University that the authority to take tangible employment actions is the defining characteristic of a supervisor, and that without such authority an employee is not a supervisor for purposes of analyzing an employer's liability under Title VII of the Civil Rights Act of 1964. 

The significance of the Vance case turns on the fact that under Title VII, the analysis of an employer's liability for unlawful harassment depends on the status of the harasser. If the harassing employee is a co-worker, the employer is liable only if it was negligent in controlling working conditions. But a different analysis applies if the harasser is a supervisor. If the supervisor's harassment results in a tangible employment action, the employer is strictly liable. If no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that: (1) the employer exercised reasonable care to prevent and correct any harassing behavior; and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

Maetta Vance is an African-American woman who worked for Ball State University (BSU). She alleged that a fellow BSU employee, a white woman named Saundra Davis, subjected her to a racially hostile work environment in violation of Title VII. Although Vance alleged that Davis was her supervisor, it was undisputed that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. The trial court ruled that a negligence standard governed the case because Davis was not a supervisor as the Seventh Circuit had defined that term in previous decisions. Applying the negligence standard, the trial court ruled that BSU could not be found liable because the evidence showed that BSU was not negligent – it had responded reasonably to the allegations of racial harassment. The Seventh Circuit Court of Appeals affirmed the trial court's dismissal of the case. 

The Supreme Court affirmed the Seventh Circuit's bright-line test for defining a supervisor:

We hold that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

In so holding, the Court rejected as "nebulous" the "open-ended approach advocated by the EEOC's Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another's daily work." The Court also addressed the dissenting justices' concern that the majority opinion will leave employees unprotected against harassment by co-workers who, though they are not supervisors, still have the authority to assign unpleasant tasks or alter the work environment in objectionable ways. In these cases, the majority noted, a victim of harassment can still prevail by showing that the employer was negligent in preventing the harassment. Negligence can be shown by evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed. The negligence standard, the court noted, "is thought to provide adequate protection for tort plaintiffs in many other situations."

Here are a few quick takeaways for employers in understanding the Vance decision:

  • For employers in the First, Seventh and Eighth Circuits, Vance reaffirms the existing, narrow definition of supervisor that applied in those circuits before the Supreme Court decided Vance.
  • For employers in the Second and Fourth Circuits, and in other circuits that had not addressed the issue squarely, the Vance decision's narrow definition of supervisor is good news and makes a finding of employer liability for harassment less likely. 
  • All employers should nevertheless remain vigilant against unlawful harassment, as even co-worker harassment can result in employer liability if the employer is found negligent. Indeed, the Court in Vance expressed skepticism that there are many cases in which the actions of a co-worker who is able to direct the victim's daily work activities in a meaningful way, and who creates an unlawful hostile environment, would not result in a finding of negligence by the employer. 
  • Vance may not be the final word on who is a supervisor under Title VII. In her dissenting opinion, Justice Ginsburg stated that "[t]he ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." The last time Justice Ginsburg said that, the Lily Ledbetter Fair Pay Act was born.

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Email Policy Cannot Be Used to Squelch Protected, Concerted Activity

POSTED BY DEBORAH A. CATALANO ON JUNE 19, 2013

Employers must ensure that their email policies advise employees of the appropriate use of email.  Likewise, employers must enforce appropriate use policies in a consistent matter.  However, employers do not have unfettered discretion to discipline employees for "inappropriate" email content.  In a recent ruling, the NLRB found that an employer had committed an unfair labor practice when disciplining employees over emails that constituted concerted activity protected by section 7 of the National Labor Relations Act.   

The underlying facts date back to April 2007, when NASA advised all of its facilities, including its Jet Propulsion Laboratory ("JPL") operated by Caltech, that employees would have to undergo background checks or they would be terminated.  In 2007, 28 employees filed suit against NASA and other entities seeking to enjoin the background check procedure.  In January 2011, the court ruled JPL could proceed with the background checks.  JPL notified employees of the court's ruling and advised them they would need to complete the background checks to obtain the badges required to enter the Pasadena facility.  

Following JPL's email concerning the lawsuit, several employees emailed co-workers about the court's ruling.  JPL concluded that several of these employees' emails violated its email policies and issued written warnings.  The written warnings prompted a barrage of subsequent emails from employees objecting to the discipline.  JPL eventually had to send an email requesting that the employees cease hitting "reply all" -- because 4600 individuals were receiving emails about disciplining certain employees over email content.  In one email, JPL practically begged: "Out of respect for people's time, the … management team would like to ask you not to reply to this email address until we can fix the situation."  Unfortunately, this only prompted more employee responses.  One employee shot back (hitting "reply all") -  "I for one have found the responses enlightening."   

The employees who received the written warnings filed an unfair labor practice charge with the NLRB.  Caltech was found to have committed unfair labor practices for issuing warnings to employees over emails expressing objections to the mandatory background check process or the court's ruling.  Caltech appealed the outcome but it was affirmed by an Administrative Law Judge, who noted that the employer had offered no evidence of disciplining employees following other mass emails, involving the sale of Girl Scout cookies, lunch specials at a local restaurant, United Way campaigns, etc.  "[A]n employer may not allow use of its computers for non-work related activities and discriminate against use of the computers for similar Section 7 activities[,]" the ALJ noted.

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Silence is Golden for Employee Suspended Without Pay

POSTED BY RICHARD D. TUSCHMAN ON JUNE 14, 2013

Employers:  Read and understand your employment agreements with your employees, and don't assume you have contractual rights that are not spelled out in the agreements.  Those are among the lessons to take from a recent decision by Florida's Second District Court of Appeal, Nancy Havens, D.D.S. v. Coast Florida, P.A., Case No. 2D12-1047 (June 12, 2013).

Nancy Havens is a dentist who had a five year employment agreement with Coast Florida, P.A. ("Coast"). Three years into the agreement, Coast suspended her without pay pending an internal investigation.  Havens demanded that her compensation be reinstated during her suspension.  When Coast refused, Havens resigned her employment and sued Coast.  The trial court dismissed the complaint, but the Second DCA reversed and remanded the case to the trial court, ruling that Havens stated a claim for breach of the agreement.  The result is that Coast may have to pay Havens out for the remaining two years of the agreement.

The reason?  The agreement was silent on the issue of suspension.  Ruling that the substantive right to suspend could not be read into the contract, the Second DCA noted that if there was an ambiguity on the right to suspend, the ambiguity must be construed against Coast, the drafter of the agreement.  

So what did Dr. Havens do to prompt an internal investigation?  The Second DCA's opinion does not say, and it does not matter.  Even if Dr. Havens engaged in egregious wrongdoing, her employment agreement did not give Coast the right to suspend her without pay.  It is that simple.  The employment agreement contained a "cause" termination provision.  If Coast had cause to terminate Havens, it should have invoked that provision rather than suspending her without pay.  Coast's decision to suspend Havens without pay despite the agreement's silence on this issue may cost the dental practice dearly.  Employers should take heed.

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An Ounce of Prevention: Employers Should Take Precautions Now to Prepare for the 2013 Hurricane Season

POSTED BY JENNIFER T. WILLIAMS ON JUNE 6, 2013

In the wake of Hurricane Sandy last Fall and the recent tornadoes in Oklahoma, forecasters are predicting an aggressive 2013 hurricane season, which started on June 1st.  Employers should take time before the storm hits to review and update workplace pay and leave policies:  

Fair Labor Standards Act ("FLSA")

The most frequent issues that arise from hurricanes and other natural disasters relate to the circumstances under which employers must pay employees during or after the storm. 

  • Exempt Employees: Employees (such as executives, managers, and professionals) who are exempt from the FLSA's overtime requirements must generally be paid their regular salary regardless of the number of hours worked in a particular work week. One of the limited permissible deductions is the occasion when an employer remains open in the wake of a natural disaster but the employee chooses not to report to work – in which case full-day wage deductions are allowable.  On the other hand, exempt employees who are ready and willing to work, but are prevented from working because of an employer's decision not to operate must be paid.  If an employer is forced to cease operations for a full work week, however, exempt employees do not have to be paid in those weeks when they perform no work.
  • Non-Exempt Employees: Under the FLSA, employees who are paid on an hourly basis and who are entitled to overtime wages only have to be paid for actual time worked. Therefore, if an employee is unable or refuses to report to work because of a natural disaster, these employees do not have to be paid. Likewise, if an employer is unable to open its doors or operate, non-exempt employees do not have to be paid.  
  • Working From Home: Exempt employees who work from home during or after a storm must be paid for that day. Non-exempt employees who work from home during or after a storm must also be paid, but only for actual time worked.  For example, non-exempt employees should be paid for time spent responding to emails, participating in conference calls, or returning telephone calls. Employers should implement a timekeeping system for non-exempt employees who are unable to clock-in and out in the office.

Family and Medical Leave Act ("FMLA")

In addition to wage issues, employers must commonly address employee leave requests in the wake of a hurricane or other natural disaster.  Employees requesting leave following a storm may qualify for leave under the FMLA – either for their own serious health conditions or to care for the serious health conditions of FMLA-covered family members. For example, employees may sustain injuries during or after the storm and need to take an FMLA-qualifying leave. Additionally, employees may qualify for FMLA leave to care for a child, spouse, or parent who suffers an injury caused by a hurricane or other natural disaster.  All such leave requests should be addressed in the same manner as non-storm-related leave requests.  

Americans With Disabilities Act ("ADA")

If employees sustain injuries resulting from a hurricane or other natural disaster, they may be entitled to protection under the ADA – especially in light of the expansive nature of medical conditions covered by the ADAAA amendments.  Employers must continue to make provisions for reasonable accommodations to qualified employees with a disability after a storm, unless undue hardship is shown.  In some instances, extended leave may constitute a reasonable accommodation; however, employers may also be required to consider accommodations other than leave. 

Inclement Weather Policy

An effective inclement weather policy will aid employers in addressing these and other workplace issues that arise before, during, and after a natural disaster.

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Skinsmart Dermatology Avoids a Legal Blemish Over Facebook Posting

POSTED BY DEBORAH A. CATALANO ON JUNE 4, 2013

The "Facebook Firing" cases continue with the NLRB deciding more often than not that employees fired for Facebook postings engaged in "protected concerted activity" under the National Labor Relations Act ("NLRA") and are entitled to reinstatement.  

However, a break from the typical outcome occurred in May, 2013, when an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director upholding the firing of an employee who had made derogatory remarks about her job in a group message on Facebook. In Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222 (May 8, 2013), the group of ten individuals included seven current and three former Skinsmart employees.

Initially, the postings involved a social event. Then, one of the current employees commented on a conversation she had with a supervisor where she told the latter to "back the freak off." The employee went on to say that certain supervisors "are full of shit" and "FIRE ME . . . Make my day. . . .". No other current employees participated in this portion of the conversation. 

The next day one of the group's other current employees showed the conversation to the employer. Skinsmart fired the employee who made the derogatory comments. Following the termination, the employee filed an unfair labor charge, claiming her termination violated federal law. As expressed by the Associate Counsel: "[t]he Board's test for concert is whether the activity is engaged 'in with or on the authority of other employees, and not solely by and on behalf of the employee himself." In reviewing the claim, an Associate Counsel issued an Advice Opinion in which he characterized the employee's actions as "merely express[ing] an individual gripe" – as opposed to conveying "shared concerns."

Note that while the outcome in Skinsmart was favorable to the employer, it was because the employee's postings failed to include communications showing any "shared employee concerns," such as wages, work schedules, and or "other terms and conditions of employment."

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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

POSTED BY ARLENE K. KLINE ON MAY 29, 2013

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.

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

POSTED BY NEFERTARI RIGSBY ON MAY 10, 2013

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.

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