President Obama Outlines Executive Action on Immigration

POSTED BY SCOTT BETTRIDGE ON NOVEMBER 21, 2014

President Obama has ambitiously announced several executive actions that have the potential to impact undocumented immigrants, as well as employers, foreign national workers, and their spouses. While these efforts are focused on administrative relief for undocumented immigrants who apply to remain in the United States, these executive actions potentially offer significant benefits to the employment-focused immigration community.

The following is an analysis of the potential benefits that may arise from President Obama's initiatives, which he announced on November 20, 2014.

  • Expand "Deferred Action" programs. President Obama signed an Executive Order that offers certain undocumented immigrants the opportunity to apply for an employment authorization document, or EAD, which would allow them to work legally in the United States. The Department of Homeland Security ("DHS") would also agree not to remove the applicant during this period. Note: This three-year grant does not provide for any temporary immigration status, nor any pathway to a green card or citizenship.
  • Extend work authorization to the spouses of H-1B visa holders. Currently, the spouses of H-1B workers (H-4 visa holders) are ineligible for employment. President Obama's plan notes that DHS will finalize new rules to allow for H-4 visa holders to work while waiting for their spouses’ green card applications to be approved.
  • Enhance options for foreign entrepreneurs. Certain foreign entrepreneurs who conduct business that is in the "national interest" of the United States can apply for a green card. To encourage economic growth, the President announced that his immigration plans would expand the availability of this option for foreign entrepreneurs.
  • Enhance options for employers of foreign workers. The proposal also reduces the backlog by eliminating annual country caps and adding additional visas to the system. DHS will also extend the use of "Optional Practical Training," a State Department program that allows for certain periods of work authorization while enrolled or for a short time following graduation.
  • Clarify application processes that impact employers of foreign workers. The President's plan also calls for DHS to issue clear guidance on the L-1B specialized knowledge category and on AC21 "same or similar" adjustment portability, as well as for modernization of the Department of Labor's labor certification, or PERM, process.
  • Improve the family-based immigration system. The President's plan also proposes raising annual caps on family-based green cards, which would reduce the wait times that qualifying family members face while waiting for their applications to be approved.

While the President's executive actions are likely to benefit employers and their foreign national employees and their families, in addition to those who are currently undocumented, a more permanent legislative solution is still very much in need. It is expected to be at least early 2015 for expansions of deferred action to take effect, and possibly several more months to implement and clarify the proposed regulatory changes and administrative guidance.

We will continue to monitor the items outlined in the President's initiatives and provide any updates and clarification as they become available.

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Court Slaps Down EEOC Subpoena, Refusing to Allow Agency to Expand its Investigation

POSTED BY RICHARD D. TUSCHMAN ON NOVEMBER 14, 2014

The Equal Employment Opportunity Commission has broad authority to investigate allegations of employment discrimination. But there are limits to that authority, as illustrated by a recent Eleventh Circuit Court of Appeals decision affirming the district court's denial of the EEOC's application to enforce an administrative subpoena that would have expanded its investigation of a single EEOC charge.

In EEOC v. Royal Caribbean Cruises, Ltd. (11th Cir., November 6, 2014), Jose Morabito, a former assistant waiter on one of RCCL's cruise ships, alleged that RCCL fired him in 2010 in violation of the Americans with Disabilities Act ("ADA") because he had been diagnosed with HIV and Kaposi Sarcoma, even though his physician had declared him fit for duty. RCCL admitted discharging Morabito because of his medical condition, but contended that because RCCL's ships are registered under the law of the Bahamas, RCCL was required to follow the Bahamas Maritime Authority ("BMA") medical standards for seafarers, which disqualified Morabito from duty at sea.  

During its investigation, the EEOC requested a list of all employees discharged by RCCL since 2010 pursuant to the BMA medical standards. RCCL objected, asserting that the ADA did not cover foreign nationals working on foreign-flagged ships and that the information sought was irrelevant to Morabito's charge. The EEOC then issued an administrative subpoena that demanded a list of all employees who were not hired, who were discharged, or whose contracts were not renewed, from August 25, 2009 through the present because of a medical condition. RCCL partially complied by providing records for employees or applicants who were U.S. citizens, and the EEOC sought to compel enforcement of the subpoena for the remaining records.  The district court denied the application on the grounds that the information sought was not relevant to Morabito's charge and that compliance would be unduly burdensome.

The Eleventh Circuit affirmed the district court's decision. Noting the EEOC's broad authority to investigate alleged discrimination, the court nevertheless ruled that the EEOC's subpoena went too far. "It is not immediately clear," the court wrote, "why company-wide data regarding employees and applicants around the world with any medical condition, including conditions not specifically covered by the BMA medical standards or similar to Mr. Morabito's, would shed light on Mr. Morabito's individual charge that he was fired because of his HIV and Kaposi Sarcoma diagnoses." The court went on to reject the EEOC's argument that the EEOC is entitled to expand its investigation to uncover other potential violations and victims of discrimination on the basis of disability. "The relevance that is necessary to support a subpoena for the investigation of an individual charge," the court held, "is relevance to the contested issues that must be decided to resolve that charge, not relevance to issues that may be contested when and if future charges are brought by others."

Normally an employer is well-advised to cooperate fully during an EEOC investigation. But a red flag should go up when the EEOC wants to expand its investigation beyond the charge at issue. In such cases, an employer may want to consider resisting the EEOC's requests and asking a federal court to rein in the EEOC. An "expanded" EEOC investigation is the last thing most employers need.  

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Failure to Disclose Procedures Dooms Arbitration Agreement

POSTED BY RICHARD D. TUSCHMAN ON OCTOBER 23, 2014

As a general rule, courts will uphold agreements that require employees to arbitrate their employment disputes. But an employer seeking to compel arbitration must show that the employee signed a valid written arbitration agreement. And according to a recent decision by Florida's Fourth District Court of Appeals, an arbitration agreement is not valid if the employer fails to disclose the arbitration procedures to the employee when the employee signs the agreement.

Shelby Ann Spicer signed an employment agreement with Tenet Florida Physician Services, LLC ("Tenet") on December 15, 2011. The agreement stated that any disputes regarding her employment "would be subject to the Tenet Fair Treatment Process ("FTP"), which includes final and binding arbitration." But the FTP was not attached to the employment agreement, and the agreement did not provide any specific directions as to how the employee could obtain a copy or locate the FTP. On January 1, 2012, Spicer was given directions as to how to access the website where the FTP was posted. The FTP described the arbitration procedure in detail.

In February 2013, Spicer filed a complaint against Tenet under the Florida Whistleblower's Act. Tenet moved to compel arbitration, and the trial court granted the motion. Spicer appealed.

In Spicer v. Tenet Florida Physician Services, LLC (Fla. 4th DCA, October 22, 2014), the Fourth DCA reversed, holding that Spicer had not signed a valid arbitration agreement. The court noted that to be valid, an arbitration agreement "must be definite enough so that the parties at least have some idea as to what particular matters are to be submitted to arbitration and set forth some procedures by which arbitration is to be effected." The employment agreement, standing alone, did not meet this test because it contained no description of the procedures to be used in arbitration. And while the agreement referred to the FTP, Spicer had not been given access to the FTP until 17 days after she signed the agreement. Therefore, the court reasoned, the FTP was not incorporated into the agreement, and the agreement was invalid.

Spicer is not the only recent case in which a Florida court has invalidated an employer's arbitration agreement. In December 2013, we reported on a ruling by Florida's Second DCA that an arbitration agreement containing a prevailing party attorney's fee provision was invalid because it had a "chilling effect" that discouraged employees from bringing Fair Labor Standards Act claims.

The takeaway for employers is to treat the process of mandatory arbitration of employment disputes with great care. If you are unsure whether your mandatory arbitration agreements pass legal muster, obtain the advice of a qualified employment lawyer.

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E-Cigarettes in the Workplace

POSTED BY SARAH J. LIS ON OCTOBER 16, 2014

Employers should be aware of the new electronic cigarette fad, and the need to address workplace policies accordingly.

Electronic cigarettes, also known as e-cigarettes, are battery-powered devices that heat up nicotine-laced liquid, turning it into a vapor that users inhale, or "vape," and then exhale. Most look like conventional cigarettes, cigars, or pipes, but some e-cigarettes resemble everyday items such as pens and USB memory sticks. According to a recent World Health Organization report, since the invention of the e-cigarette just over a decade ago, the e-cigarette industry has grown into an estimated $3 billion global business market with 466 brands of e-cigarettes and related items available to consumers.

Research regarding the health effects of e-cigarettes, especially the safety of secondhand vapor, is still in its infancy. According to the Food and Drug Administration, because e-cigarettes have not been fully studied, the following things are not presently known: (1) the potential risks of e-cigarettes when used as intended, (2) how much nicotine or other potentially harmful chemicals are inhaled during e-cigarette use, and (3) whether there are any benefits associated with using e-cigarettes and related products. While some people believe that smoking e-cigarettes is safer than smoking traditional cigarettes, and may help smokers reduce or altogether quit their use of traditional cigarettes, others claim that secondhand vapor is generally harmful to one's health and that it irritates the eyes, exacerbates respiratory conditions and could lead to allergic reactions. In the employment context, some claim that e-cigarette use could increase employee productivity and, to the extent smokers switch from traditional cigarettes to electronic cigarettes, decrease the health and medical costs associated with employees who smoke.

Even though current research does not yet provide a definitive response to these particular claims, dozens of states and numerous municipalities have already passed laws and regulations relating to e-cigarettes. For example, more than three dozen states currently prohibit the sale of e-cigarettes to minors (including Florida), and about a dozen states have enacted some form of usage ban in public places such as schools and government buildings. Florida does not have such a statewide ban, but a small number of counties and cities in Florida have enacted limited bans of e-cigarette use in certain public places. New Jersey, North Dakota and Utah are the only states that have gone so far as to forbid the use of e-cigarettes everywhere that smoking is banned. This move to regulate e-cigarette use is in line with the World Health Organization's recommendation to ban the use of e-cigarettes indoors in public places as well as at places of work "until exhaled vapor is proven to be not harmful to bystanders."

So, in light of this hazy legal and medical landscape, what is an employer to do if an employee asks to "vape" at work? The employer should first check to see if any state or local laws address the use of e-cigarettes at their workplace. If laws exist that require a ban of e-cigarette use at places of work, the answer is clear. If there is no such law regarding e-cigarette use in the workplace, the employer should nonetheless strongly consider amending its existing smoking policy to include e-cigarettes or any other electronic, nicotine-delivery device that simulates the use of tobacco. At this point, the risk of liability to the employer due to permitting e-cigarette use in the workplace outweighs the potential, limited benefits.

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The Cost of Security for Employers: Is Time Spent Going Through Security Compensable?

POSTED BY NEFERTARI RIGSBY ON OCTOBER 14, 2014

The Supreme Court will soon decide whether employers will be required to pay their employees for time spent going through a security clearance at the end of each shift. The case is Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir. 2013). The Court heard oral arguments on October 8, 2014.

Integrity Staffing Solutions, a Nevada corporation, provides warehouse space and staffing to clients like Amazon.com. The plaintiffs, Jesse Busk and Laurie Castro, are former hourly employees of Integrity Staffing in two Nevada warehouses. Integrity Staffing required its employees to pass through a security clearance at the end of each shift. During these security checks, the employees were searched, required to remove their wallets, keys and belts, and passed through metal detectors. The security clearances were utilized to minimize theft of products in the warehouse—a daily loss prevention measure. However, the employees were not paid for the time it took for them to go through this security clearance, which required employees to wait up to 25 minutes.

Additionally, on their 30-minute lunch periods, the employees spent 10 minutes of the meal period walking to and from the cafeteria and/or undergoing security clearances. The employees were not paid for the 10 minutes that it took to go through security during their meal periods and received less than 30 minutes for lunch, receiving warnings from managers to eat quickly so they could clock back in.

The plaintiffs filed suit against Integrity Staffing, alleging that the employer violated the Fair Labor Standards Act, which requires employers to compensate employees for postliminary activities if they are an integral and indispensable part of the employee's principal activities. The plaintiffs alleged the security clearances that they were required to go through, both during their lunch breaks and at the end of their shifts, were necessary to their work as warehouse employees and done for Integrity Staffing's benefit. The lower Court dismissed the plaintiffs' claims for unpaid wages, but the Ninth Circuit reversed the dismissal of the plaintiffs' claims and found that they stated a plausible claim for a FLSA violation as to security clearances. The Court upheld the dismissal of the FLSA claims related to the shortened meal periods.

The decision was appealed to the Supreme Court who must now determine whether time spent going through required security clearances at work is compensable. Depending on the Supreme Court's ruling, employers may have to consider whether the cost of security is worth the additional compensation that must be paid to its hourly employees who are subjected to such security measures.

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Reasonable Accommodations Under the ADA Do Not Require Changing a Job's Essential Functions

POSTED BY ANDREW LOEWENSTEIN ON OCTOBER 20, 2014

Weldon Williams, a pharmacist, suffered from diabetes which limited his ability to stand for extended periods of time. Williams sued his former employer Revco Discount Drug Centers, Inc., d/b/a CVS Pharmacy, Inc. ("CVS") alleging that CVS failed to accommodate his requests for an accommodation under the Americans With Disabilities Act ("ADA"). Williams "acknowledged that his position involved extended standing over the course of an eight-hour shift and frequent movement around the pharmacy," which CVS argued were essential functions of his job. The accommodation Williams requested would have required CVS to hire a fulltime pharmacy technician to assist him when his disability prevented him from performing his job duties.

In the case of Williams v. Revco Disc. Drug Centers, Inc., 552 Fed. Appx. 919, 920 (11th Cir. 2014) cert. denied, 83 USLW 3005 (U.S. 2014), the Eleventh Circuit Court of Appeals affirmed the U.S. District Court's ruling which held that CVS was not required to modify the essential functions of Williams's job to comply with the ADA's requirement that employers provide a "reasonable accommodation" to qualified individuals with a disability. The court noted that to succeed on a claim under the ADA, a plaintiff must prove that: (1) he or she is disabled; (2) he or she is a "qualified individual;" and (3) he or she was subjected to unlawful discrimination because of his disability. To be considered a "qualified individual," the plaintiff must "show that he can perform the essential functions of his position with or without reasonable accommodations." Courts will look to a variety of factors in determining whether a job requirement is an "essential function" of the position including (but not limited to): a) what the employer believes to be the essential functions; (b) written job descriptions for the position; (c) the amount of time spent performing a specific function; and (d) the "consequences of not requiring the employee to perform the function."

Such a determination is made on a case-by-case basis and there are no hard and fast rules. However, the employee has the burden of identifying the accommodation sought, which is not considered reasonable if it would cause an undue hardship on the employer. This was a burden Williams simply could not meet, especially because he "admitted that his physician never submitted any paperwork outlining the types of accommodations that [he] might require."

Williams sought "certiorari" of the Eleventh Circuit's ruling, which is a petition to the Supreme Court requesting review of an appellate court decision. On October 6, 2014, the Supreme Court denied Williams' petition.

While a victory for employers who abide by the ADA's requirement, the Williams case reminds us of the complexities of this law. While the Eleventh Circuit agreed with the employer here, the court's opinion also underscored the importance of the "interactive process" employers are required to undertake to determine the appropriate reasonable accommodation for a disabled employee. While this process may be informal, it must "identify the employee's limitations and any possible accommodations." Involving experienced H.R. professionals early in the process is a must, and consultation with labor and employment counsel is advisable if there are any questions as to whether a job function is "essential," if an employee is "qualified," or if an accommodation is "reasonable," under the ADA.

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Opening of the 2016 Diversity Immigrant Visa Program Announced

POSTED BY SCOTT BETTRIDGE & MICHAEL STEVENSON ON OCTOBER 1, 2014

The State Department has announced that it will accept applications for the FY 2016 "diversity immigrant visa" lottery beginning October 1, 2014. Applicants who are selected and approved may submit their green card applications starting on October 1, 2015.

The State Department annually accepts "diversity immigrant visa" applications from qualified individuals born in certain countries with historically low rates of immigration to the United States. Congress made 50,000 of these "diversity immigrant visas" (or "DVs") available for fiscal year 2016, drawn from a randomized computer lottery of all applicants. This year, the State Department will accept applications from October 1, 2014 until November 3, 2014.

Eligibility requirements are as follows. First, applicants must be born in countries who have historically low immigration rates. Individuals born in the following countries are ineligible to apply for a DV for fiscal year 2016:

Bangladesh, Brazil, Canada, China (mainland-born)**, Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Nigeria, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. **Note: people born in Taiwan, Hong Kong, and Macau may apply.

Those not born in an eligible country may still be able to apply for a DV through a spouse (if that spouse was born in an eligible country) or, in certain circumstances, through a parent. An applicant must also have a high school education (or its equivalent) or, alternatively, two years of work experience in certain positions to qualify.

Employers are often interested in having a qualifying employee apply for a DV in order to avoid the costly and intensive employment-based "green card" application process.

Registering to apply for the diversity visa program is done online at the program site. The State Department encourages applicants not to wait until the last week of the registration period to enter, as heavy demand may result in website delays. Applicants will be able to check if they were selected in the randomized lottery starting May 1, 2015. Applicants should carefully follow the online instructions in order to avoid having their applications disqualified.

Prospective applicants are advised to contact immigration counsel for more information on the benefits of the DV program and for answers to any questions they may have about whether they qualify for the program.

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Are Websites Places of Public Accommodation?

POSTED BY ARLENE KLINE ON SEPTEMBER 30, 2014

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.

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Fantasy Football's Impact on the Workplace

POSTED BY ERIC A. GORDON ON SEPTEMBER 17, 2014

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!

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

POSTED BY CHRISTOPHER S. DUKE ON SEPTEMBER 10, 2014

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 StPetePolls.org 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.

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

POSTED BY VENUS A. CARUSO ON SEPTEMBER 3, 2014

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.

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

POSTED BY MATTHEW L. RANSDELL ON AUGUST 28, 2014

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.

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

POSTED BY RICHARD D. TUSCHMAN ON AUGUST 25, 2014

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.

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EEOC Broadens Pregnancy Discrimination Protections

POSTED BY SCOTT T. SILVERMAN  ON JULY 28, 2014

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.

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

POSTED BY SHAYLA N. WALDON ON JULY 17, 2014

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.

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