Category: Labor & Employment

When Coworkers Invade Your Space re: Personal Privacy in the Workplace

Raymond Law Group LLC Connecticut, and Boston law firm

Invasion of personal privacy in the work place concerns all of us, but can you sue for that? A Connecticut trial court recently addressed this compelling privacy issue.  A Board of Education employee sued her coworkers for intentional infliction of emotional distress and for invasion of privacy. The employee alleged that her co-workers had, for several months, gathered together without her knowledge or permission to open and read her personal materials that she had stored on her work computer. The Waterbury Superior Court held that the employee had not stated a claim for intentional infliction of emotional distress, as the alleged conduct was only “undesirable and inappropriate”, and thus did not meet the “extreme and outrageous” standard of an intentional infliction of emotional distress claim. However, the court held that the employee had stated a claim for invasion of privacy, since her coworkers’ uninvited intrusion into her personal material was behavior that a reasonable person would find highly offensive. Referencing a 2009 District of Connecticut case, where the court held that employees have a reasonable expectation of privacy for their work emails, the Waterbury Superior Court noted that although the employee’s computer was a work computer, and not a personal device, this fact did not preclude her from bringing an invasion of privacy claim.

The right of privacy was first recognized by the Connecticut Supreme Court in 1982, when the Court adopted the standards for invasion of privacy listed in the Restatement (Second) of Torts. The Restatement explains that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person.” 3 Restatement (Second), Torts, Invasion of Privacy § 652B, p. 378 (1977). Following the Restatement, Connecticut law now categorizes four classes of invasion of privacy: 1) unreasonable intrusion upon the seclusion of another; 2) appropriation of the other’s name or likeness; 3) unreasonable publicity given to the other’s private life; or 4) publicity that unreasonably places the other in a false light before the public. Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 127-28 1982). A few years later, a Connecticut Appellate Court adopted the invasion of privacy damages listed in the Restatement (Second) of Torts. In that decision, the court held that a plaintiff who has established a cause of action for invasion of his privacy is entitled to recover damages for: 1) the harm to his interest in privacy resulting from the invasion; 2) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and 3) special damages of which the invasion is a legal cause. Jonap v. Silver, 1 Conn. App. 550, 557 (. 1984)

This raises an interesting legal question. If a plaintiff’s claim is found to have fulfilled the standards of an invasion of privacy claim, yet not the standards of an intentional infliction of emotional distress claim, what damages can the plaintiff recover? An intentional infliction of emotional distress claim must involve “extreme and outrageous” conduct, while an invasion of privacy claim must involve conduct that is “highly offensive to a reasonable person.” It seems incongruous that a plaintiff is unable to recover for emotional distress under an intentional infliction of emotional distress claim, yet is able to recover for “mental distress” arising from an invasion of privacy claim. However, it appears that courts have determined that conduct qualifying as invasion of privacy needs to meet a less stringent standard of distress than conduct qualifying as intentional infliction of emotional distress. If this is true, then it makes sense that a plaintiff could be unable to recover for emotional distress under an intentional infliction of emotional distress claim, while still being able to recover for mental distress under a less stringent invasion of privacy claim.

ARTICLE BY

Bruce H. Raymond
Raymond Law Group LLC
Connecticut Workplace Privacy Law

President Obama Urged to “Ban the Box” for Federal Contractors

Proskauer Rose LLP, Law Firm

In a letter this past week, nearly 200 interest groups urged President Obama to issue an executive order “banning the box” for federal contractors and to implement other “fair chance” hiring reforms protecting ex-offenders. “Ban the box” refers to a movement that has swept across state and local legislatures in recent years requiring contractors (and employers more broadly) to remove the check box from job applications asking whether prospective employees have a criminal history.

To date, several state and local jurisdictions have “banned the box” for contractors, including California (for construction contractors), Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Indianapolis (IN), Louisville (KY), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY) (for human services contractors), Pittsburgh (PA), and Syracuse (NY). Delaware and Madison (WI) have “encouraged” the same.

In addition, six states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and twelve localities— Baltimore (MD), Buffalo (NY), Chicago (IL), Columbia (MO), D.C., Montgomery County (MD), Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY), Seattle (WA), and San Francisco (CA)—have “banned the box” for private employers (either expressly or implicitly covering government contractors).

At the federal level, the Office of Federal Contract Compliance Programs (OFCCP) also has issued a directive on criminal background checks. The Directive cautions contractors that the consideration of criminal records in hiring or other personnel decisions may have a disparate impact on racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964.

If President Obama issues an executive order that “bans the box” for federal contractors, the executive action will add to an already growing patchwork of laws and orders restricting criminal background checks on job applicants and employees of government contractors. Stay tuned to see what the President decides.

ARTICLE BY

Connie N Bertram
Daniel L. Saperstein
Proskauer Rose LLP

Are Employees in Pennsylvania Bound by their Contractual Commitments?

Steptoe Johnson PLLC

With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.

To be enforceable, such agreements must:

  1. Relate to a contract for the sale of goodwill or sale of property or a contract for employment;

  2. Be supported by adequate consideration; and,

  3. Be reasonably limited in both time and territory.

Initial employment is sufficient consideration for such an agreement. If not entered into at or about the commencement of employment, then, to be enforceable, such an agreement must be supplemented by additional consideration – i.e., a monetary payment or benefit, change in job status, or conversion of an at-will relationship into a contract of employment for a specific period of time. All of these items are possible points of contention by a former employee seeking to avoid his commitment and to engage in competitive activity.

The Uniform Written Obligations Act (UWOA), however, provides that a signed, written promise is not unenforceable for lack of consideration if the writing contains an expressed statement in any form of language that the signer “intends to be legally bound.”  Insertion of such language into a covenant not to compete thus raises the issue of whether an employer can prevent a former employee from trying to avoid his contractual obligation by claiming that his commitment was not supported by consideration (or additional consideration for such agreements made after the commencement of employment).

Pennsylvania courts generally will not review the adequacy of consideration in determining the enforceability of a contract. Courts, however, regularly do make such an inquiry when a covenant not to compete is at issue. Only new, valuable consideration will support the enforcement of such an obligation – not continued at-will employment, a contract under seal, or nominal consideration.

Thus, there is tension between the UWOA and the inherent reluctance of Pennsylvania courts to review the adequacy of consideration on one hand, and these courts’ inclination to ensure that the employee receives something of value in exchange for his post-employment commitment not to compete on the other hand.  When called upon to resolve this conflict, both a Pennsylvania trial court and the Superior Court sided with the employee and held that the mere insertion of “intending to be legally bound” language from the UWOA into a covenant not to compete did not prevent the court from considering whether the agreement was supported by adequate consideration. Since the agreement at issue in that case was entered into after the commencement of employment without any additional consideration, both courts refused to hold the employee to his commitment.

These decisions clearly are inconsistent with the terms of the UWOA. The Supreme Court of Pennsylvania, therefore, has agreed to review the underlying case and determine whether the inherent dislike of covenants not to compete by courts will trump the literal language of the UWOA.  If the Pennsylvania Supreme Court reverses the decision of the two lower courts, then all employers with a nexus to Pennsylvania will be well-advised to insert such “magic language” in all present and future covenants not to compete, thereby taking any question of consideration off the table.

ARTICLE BY

Martin Saunders
Steptoe & Johnson PLLC

Employers Take Note: The Supreme Court’s Game-Changing Decision in Young v. UPS Requires Review of Pregnancy Accommodation Policies and Practices

Neal, Gerber & Eisenberg LLP

Earlier today, the Supreme Court issued a much-anticipated decision in the closely watched case of Young v. UPS, holding that a plaintiff may be able to prove unlawful failure to accommodate a pregnancy-related condition through evidence that other non-pregnant employees were provided with the requested accommodation.  As further explained in this Alert, theYoung v. UPS decision promises dramatic changes in how pregnancy discrimination and accommodation claims are viewed and handled by courts nationwide, and requires employers to review and, if necessary, change their relevant policies and practices.

Young v. UPS involves former UPS driver Peggy Young, who, upon becoming pregnant, was put on a lifting restriction by her doctor:  no lifting of more than 20 pounds during the first 20 weeks of pregnancy, and no lifting of more than 10 pounds through the remainder of the pregnancy.  At that time, UPS required its drivers to be able to lift a minimum of 70 pounds.  As a result, the company told Young that she could not return to work until the restriction was released.  The lower federal court granted summary judgment in favor of UPS, holding that no pregnancy discrimination had occurred, and the Fourth Circuit Court of Appeals affirmed.  In one of its most important employment discrimination decisions in decades, today the Supreme Court vacated the Fourth Circuit’s decision, allowing Young to proceed in her pregnancy discrimination claim.

The Supreme Court held that an individual may establish a prima facie case of pregnancy discrimination by “showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion.” Put another way, an employee may establish her prima faciecase of pregnancy discrimination by pointing to some evidence that the employer’s actions were discriminatory.  As the Court explained, the burden of making this showing is “not onerous,” and, significantly, does not require the plaintiff to show that non-pregnant employees who were allegedly treated more favorably were in similarly situated positions.  Rather, the employee needs only to show that: (1) she was pregnant at the relevant time; (2) her employer did not accommodate her; and (3) her employer did accommodate others who are similar only “in their ability or inability to work.”  The Court reasoned that Young could satisfy her prima facie burden by pointing to evidence that UPS had policies accommodating non-pregnant employees’ lifting restrictions – for example, its Americans with Disabilities Act (ADA) and job injury policies provided for light duty-type arrangements – but the same accommodation was not extended to pregnant employees.

The Court went on to explain that once the plaintiff meets the initial burden of establishing her prima facie case, then, as is typical in discrimination cases, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for denying the requested accommodation.  While this burden traditionally set a comparatively low bar for employers to overcome, the Court cautioned that an employer’s reasoning that “it is more expensive or less convenient” to extend protection to pregnant women will not suffice, though the Court did not elaborate as to what articulated reasoning will, in fact, be deemed to be legitimate and sufficient.  If an employer is able to satisfy its burden of articulating a legitimate, non-discriminatory reason, the final burden shifts back to the plaintiff to show that reason to be pretextual.  While showing “pretext” traditionally has presented a comparatively high bar for plaintiffs to overcome, here again the Court lent a helping hand to plaintiffs in pregnancy discrimination cases by holding that this burden may be met if the employee can point to evidence that the employer’s policies “impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, non-discriminatory’ reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.”  In Young’s case, for example, the Court reasoned that if the facts are as Young says they are, she may be able succeed in her claims by proving “that UPS accommodates most non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations,” thereby giving rise to an inference of intentional discrimination based on pregnancy.

Today’s Supreme Court’s decision in Young v. UPS is a game changer for pregnancy discrimination and accommodation cases.  Setting lower burdens for plaintiffs and a higher burden for employers to overcome than, arguably, ever before seen from the Court in employment discrimination cases, at a minimum employers can expect that going forward it will be substantially easier for plaintiffs to succeed in pregnancy discrimination and accommodation claims, and that policies that tend to negatively impact pregnant employees – particularly where there is evidence that the requested accommodations have been provided to non-pregnant employees – are likely to be scrutinized and may well be deemed to be unlawful.  It is important for employers to review their policies and practices with today’s ruling in mind, and to make whatever changes necessary to ensure appropriate accommodation of, and no adverse effect with respect to, pregnant employees.  Any requests for pregnancy-related accommodations must be taken seriously and evaluated thoughtfully, so as to ensure compliance and help prevent claims.

ARTICLE BY

Sonya Rosenberg
Neal, Gerber & Eisenberg LLP

USCIS Resumes H-2B Adjudications

Jackson Lewis P.C.

The Department of Homeland Security (DHS) has announced that it will resume adjudications of H-2Bpetitions, even though it will continue to suspend premium processing until further notice.

The March 17, 2015, announcement follows the filing of an unopposed motion on March 16 by DOL to stay until April 15the U.S. District Court ruling in Perez v. Perez. That order vacated DOL’s H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue them. DHS suspended H-2B adjudications while it reviewed the decision. As stated in the motion, DHS will resume adjudicating H-2B petitions based on temporary labor certifications issued by DOL.

The DHS announcement follows pressure mounted by stakeholders to resume processing of H-2B petitions already filed, and to accept and process H-2B petitions supported by temporary labor certifications issued prior to March 4, 2015. The court in Perez enjoined DOL from enforcing DOL’s 2008 H-2B regulations. It did not invalidate H-2B temporary labor certifications already issued by the DOL, nor did it direct USCIS to end processing of H-2B petitions supported by previously issued temporary labor certifications. The stakeholders have argued that Perez does not require USCIS to cease processing of their H-2B petitions. They have lamented that the suspension of processing could potentially have a significant impact on a wide range of industries, including resort and hospitality, seafood, landscaping, grounds maintenance, and forestry, to name but a few. Businesses that use the H-2B program to supplement workforce needs will face serious labor shortages, and the potential for significant economic loss across several industries is tremendous.

To fill the regulatory gap occasioned by the court order, DOL and DHS announced on March 13, that they intend to issue a joint interim final rule by April 30, 2015.

ARTICLE BY

Otieno B. Ombok
Jackson Lewis P.C.

NLRB Issues Critical Guidance On Employer Handbooks, Rules and Policies, Including “Approved” Language

Epstein Becker & Green, P.C.

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issuedGeneral Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This GC Memo is highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

Because the Office of the General Counsel investigates unfair labor practice charges and the NLRB’s Regional Directors act on behalf of the General Counsel when they determine whether a charge has legal merit, the memo is meaningful to all employers and offers important guidance as to what language and policies are likely to be found to interfere with employees’ rights under the Act, and what type of language the NLRB will find does not interfere and may be lawfully maintained, so long as it is consistently and non-discriminatorily applied and enforced.

As explained in the Memorandum, the Board’s legal standard for deciding whether an employer policy unlawfully interferes with employees’ rights under the Act is generally whether “employees would reasonably construe the rules to prohibit Section 7 activity” – that is action of a concerted nature intended to address issues with respect to employees’ terms and conditions of employment. As we have noted previously, this General Counsel and Board have consistently given these terms broad interpretations and have found many employer policies and procedures, in handbooks and elsewhere, that appear neutral and appropriate on their face, to violate the Act and interfere with employee rights.  Many of these cases have involved non-union workplaces where there is not a union present and there is no union activity in progress.

There are two sections to the Memo. Part 1 of the Memorandum, which begins at page 2 and runs to page 20, offers a recap of NLRB decisions concerning 8 broad categories of policies, with summaries of the Board’s holdings and examples of policy language that the NLRB has found to unlawfully interfere with employees’ Section 7 rights and policy language that the Board has found did not unlawfully interfere with employees’ rights.  Section 2 reports on the General Counsel’s settlement with Wendy’s International LLC following an investigation of charges in which the General Counsel found portions of Wendy’s employee handbook unlawfully overbroad, with an explanation as to why the General Counsel found the policies in question to interfere with employees’ rights under the Act and a description of the language Wendy’s adopted to replace the problematic policies as part of its settlement of the charges. Both parts of the Memorandum will be of interest to employers and attorneys who draft, apply and enforce handbooks and other workplace policy documents.

Part 1: Examples of Handbook Rules found by the Board to be Lawful and Unlawful in recent decisions

  • Employer Handbooks Rules Regarding Confidentiality – The Memorandum reviews the Board’s precedents holding that “Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as nonemployees such as union representatives.” Interestingly, the Memorandum also states that “broad prohibitions on disclosing ‘confidential’ information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, because employers have a substantial and legitimate interest in maintaining the privacy of certain business information.”  The Memorandum further “clarifies” by advising that “an otherwise unlawful confidentiality rule will be found lawful if, when viewed in context, employees would not reasonably understand the rule to prohibit Section 7 protected activity.”

  • Employer Handbooks Rules Regarding Employee Conduct toward the Company and Supervisors – As explained in the Memorandum, “Employees also have the Section 7 right to criticize or protest their employer’s labor policies or treatment of employees.”  The Memorandum offers an overview of decisional law, with particular attention to cases involving rules that “prohibit employees “from engaging in ‘disrespectful,’ ’negative,’ ‘inappropriate,’ or ‘rude’ conduct towards the employer or management, absent sufficient clarification or context.”  As further noted, employee criticism of the employer “will not lose the Act’s protection simply because the criticism is false or defamatory.”

  • Employer Handbooks Rules Regulating Conduct Towards Fellow Employees – This section of the Memorandum focusses on language and policies that the Board has found to interfere with the Section 7 right employees have ‘to argue and debate with each other  about unions, management, and their terms and conditions of employment,” which the General Counsel explains the Board has held will not lose their protection under the Act, “even if it includes ‘intemperate, abusive and inaccurate statements.” Of particular interest in this portion of the Memorandum is the examination of policies concerning harassment.  The Memorandum notes that “although employers have a legitimate and substantial interest in maintaining a harassment-free workplace, anti-harassment rules cannot be so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding Section 7 protected subjects.”

  • Employer Handbooks Rules Regarding Employee Interaction With Third Parties – This section of the Memorandum focuses on employer policies and provisions that seek to regulate and restrict employee contact with and communications to the media relating to their employment.  The General Counsel notes that “(A)nother right employees have under Section 7 is the right to communicate with the new media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment,” and that rules “that reasonably would be read to restrict such communications are unlawful.” The General Counsel acknowledges however that “employers may lawfully control who makes official statements for the company,” any such rules must be drafted so as “to ensure that their rules would not reasonably be read to ban employees from speaking to the media or third parties on their own (or other employees”) behalf.

  • Employer Handbooks Rules Restricting Use of Company Logos, Copyrights and Trademarks – The Board has found many employer policies, whether contained in employee handbooks or elsewhere, that broadly prohibit employees from using logos, copyrights and  trademarks to unlawfully interfere with employees’ Section 7 rights.  While the General Counsel acknowledges that “copyright holders have a clear interest in protecting their intellectual property,” the Board has found, with the approval of such courts as the Fourth Circuit Court of Appeals, that “handbook rules cannot prohibit employees’ fair protected use of that property.”  In this regard the General Counsel states in the Memorandum that it is his office’s position that “employees have a right to use the name and logo on picket signs’ leaflets, and other protected materials,” and that “Employers’ proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.”

  • Employer Handbooks Rules Restricting Photography and Recording – While many handbooks and policies prohibit or seek to restrict employees from taking photographs or making recordings in the workplace and on employer policy, the Memorandum states that “Employees have Section 7 right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures make recordings.”  The Memorandum further notes that such policies will be found to be overbroad “where they would reasonably be read to prohibit the taking of pictures or recordings on non-work time.”

  • Employer Handbooks Rules Restricting Employees from Leaving Work – With respect to handbook or other policies that restrict employees from leaving the workplace or from failing to report when scheduled, the Memorandum notes that “one of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike,” and therefore “rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.”  Not all rules concerning absences and leaving the workstations are unlawful.  A rule would be lawful if “such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions’ or the like” since employees should “reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity.”

  • Employer Conflict of Interest Rules – The Memorandum states that under Section 7 of the Act, employees have the right to engage in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests.  It cites as examples of such activities that could arguably be in violation of broad conflict of interest policies as protests outside the employer’s business, organizing a boycott of the employer’s products and services and solicitation of support for a union while on non-work time.  The Memorandum notes that when a conflict of interest policy “includes examples of otherwise clarifies that it limited to legitimate business interests (note: as that term is defined by the General Counsel and the Board) employees will reasonably understand the rule to prohibit only unprotected activity.”

  • Part 2: The Wendy’s International LLC Handbook Cases

    The second part of the Memorandum relates to the Board’s settlement of a series of unfair labor practice charges against Wendy’s International LLC (Wendy’s) alleging that various provisions of the handbook were overbroad and unlawfully interfered with employees’ rights under the NLRA.  The company entered into an “informal, bilateral Board settlement agreement.  In this section, the GC explains why various provisions were found unlawful and then sets forth negotiated replacement policies that the GC found did not violate the Act.  While not a formal “safe harbor” since this is the position of the General Counsel and not the Board, it offers very good advice for employers and attorneys in this area.  The Wendy’s policies that the General Counsel argued violated employees’ Section 7 rights and the replacements that the General Counsel found acceptable concerned the following areas:

    • Handbook Disclosure Provision – The handbook in issue contained a broad prohibition against disclosure of the handbook and the information it contained without the company’s express prior written permission.  The General Counsel found this to be unlawful because it prohibited disclosure of employment practices to third parties such as a union or the NLRB.

    • Social Media Policy – While the General Counsel acknowledged that employers have “a legitimate interest in ensuring that employee communications are not construed as representing the employer’s official position,” the General Counsel found the company’s rule to be overbroad since it prohibited a much broader range of communications that would be protected by Section 7.  This included photography and recording and no retaliation provisions.

    • Conflict of Interest Policy

    • Company Confidential Information Provision

    • Employee Conduct

    • Walking Off the Job Without Authorization

    • No Distribution/No Solicitation Provision

    • Restaurant Telephone; Cell Phone; Camera Phone/Recording Devices Provision

    While Memorandum GC 15-04 arguably does not contain “new” information or changes in policy or case law, it should be useful for employers and practitioners (and employees) in that it provides a concise summary of the General Counsel’s views on this wide range of matters and examples of language that is likely to be found lawful in future proceedings.  OF course it is important to note that each charge is decided on its own facts and the actions and statements of employers and their supervisors in connection with the application and enforcement of the particular provision will almost always be relevant to the determination of whether the Board will issue a complaint on a particular ULP Charge.

    ARTICLE BY

    Steven M. Swirsky
    Adam C. Abrahms
    Epstein Becker & Green, P.C.

Utah Passes Law Prohibiting LGBT Employment Discrimination

Squire Patton Boggs (US) LLP law firm

On March 12, Utah Governor Herbert signed into law S.B. 296, which amends the Utah Antidiscrimination Act to prohibit discrimination in employment by Utah employers on the basis of sexual orientation and gender identity. Notably, and perhaps not surprisingly given that 60% of Utah residents identify as Mormons, although the law had the support of the Church of Jesus Christ of Latter-Day Saints, it exempts from coverage religious institutions, organizations, and affiliates (as well as the Boy Scouts of America) from its definition of employer.

It also allows for employee expression of religious or moral beliefs in the workplace – which would appear to include opposition to LGBT issues or lifestyles – as long as such expression is “reasonable, non-disruptive and non-harassing.” In passing this law, Utah becomes the 18th state (including the District of Columbia) to adopt LGBT anti-discrimination legislation. (LGBT discrimination is also prohibited against federal employees pursuant to Executive Order 13672, signed by President Obama in June 2014.)

ARTICLE BY

Daniel B. Pasternak
Squire Patton Boggs (US) LLP

Supreme Court: DOL Can Flip-flop on its Interpretation of Its Own Regulations

Godfrey & Kahn S.C. Law firm

In 2010, the United States Department of Labor (DOL) issued an “Administrator’s Interpretation” stating that DOL would no longer consider employees who perform duties typical of mortgage loan officers to be exempt from the Fair Labor Standards Act’s overtime pay requirements.  This particular ruling revolved around the FLSA’s exemption for administrative employees.

Supreme court DOL FLSA

The DOL’s 2010 stance represented a change of course, as DOL had previously issued an “Opinion Letter” in 2006 stating that mortgage loan officers were generally exempt from the FLSA’s overtime pay requirements under the administrative exemption.  Litigation ensued following the 2010 Administrator’s Interpretation.  The focus of that litigation was a rather technical issue:  Should DOL have followed the formal rulemaking process before it could flip-flop on its interpretation of its own regulations?  You can read more about the details of the litigation here.

On Monday, March 9, 2015, the United States Supreme Court ruled that DOL was not required to follow the formal rulemaking process whenever it took a position that was contrary to previous guidance issued by DOL.

Why does this ruling matter to employers of mortgage loan officers?  Those businesses should classify those employees as non-exempt and evaluate their compensation structures immediately to comply with DOL’s interpretation of the administrative exemption.  Otherwise, these employers run the risk of DOL enforcement actions and private litigation.  Of course, these employers can disregard the DOL’s interpretation and rely on individual merits of their classifications, but they would do so at their peril.

Why does this ruling matter to employers generally?  Based on the Court’s ruling, DOL can arguably change its tune about any interpretation of its own interpretive regulations without any warning to employers.  An emboldened DOL could revisit regulatory interpretations that currently favor employers and flip those interpretations on their head, without warning.  More importantly, the Court’s ruling was not limited to the DOL, which means that other federal administrative agencies (e.g., OSHA) could follow suit, leaving employers with little recourse to challenge such changes of heart.

ARTICLE BY

M. Scott LeBlanc
Rufino Gaytán
OF
Godfrey & Kahn S.C.

Oklahoma Federal Court Denies Summary Judgment to Employer on Professor’s Allegations He Was Denied Tenure After Reporting Inappropriate Facebook Posts by Fellow Professors

Allen Matkins Leck Gamble Mallory & Natsis LLP

A federal court in Oklahoma recently denied summary judgment to Northeastern State University, finding that a professor’s discrimination and retaliation claims, among others, could proceed to trial. The professor, Dr. Leslie Hannah, was appointed chair of his department in 2009. The previous assistant chair, Dr. Brian Cowlishaw, was ineligible for the chair position pursuant to the University’s nepotism policy (his wife, Dr. Bridget Cowlishaw, was a professor in the department). During that period, Dr. Brian Cowlishaw posted the following comment on his Facebook page:

“Brian Hammer Cowlishaw /salutes in NSU’s direction / Good luck with that, then! [translation: I won’t be entering the ‘election’ for department chair, because what I offer, no one wants] Good luck! / salute!”

Then in response to a comment, he wrote:

“There will be an ‘election’ the first week of February. They’re making a f*****g indian chair.”

In 2010, Drs. Brian and Bridget Cowlishaw, and another professor, Dr. Donna Shelton, made disparaging comments on Facebook after Dr. Hannah scheduled a department meeting to be held outdoors by the river. In response to a post by Dr. Bridget Cowlishaw about not looking forward to the beginning of the academic year, Dr. Shelton wrote:

“Wonder if they sell body armor for use under regalia…”

In response to a post by Dr. Brian Cowlishaw about the camping trip, Dr. Bridget Cowlishaw wrote:

“Nah, our chair will bring all the handbaskets we need. He’s probably woven them himself.”

In response to a post about whether anyone attended, Dr. Bridget Cowlishaw wrote:

“Maybe they were all eaten by wolves.”

Dr. Hannah reported the posts to the University. The University found that the posts were inappropriate, and reprimanded the professors. Dr. Bridget Cowlishaw entered into a settlement agreement with the University whereby she resigned.

In 2011, Dr. Hannah reported to Human Resources: “I think the time has come for me to leave NSU. This seems to be an unsafe place for American Indians. I will be submitting my resignation . . . ” He then did not resign his position, but he did resign as department chair.

Dr. Hannah ultimately submitted his application for tenure and early promotion when he became eligible in late 2012. The committee that reviewed his application consisted of seven people, including Dr. Brian Cowlishaw and Dr. Shelton. The vote regarding Dr. Hannah was split 3/3 with one abstention, with Dr. Brian Cowlishaw and Dr. Shelton voting to deny the application. Thereafter, in early 2013, the University’s Dean reviewed the committee’s findings and denied Dr. Hannah’s application, stating that Dr. Hannah had “polarized the Department and displayed hostility toward other faculty and staff.” The Dean later stated that, while he was aware of past conflicts in the department, he was unaware of the inappropriate Facebook posts. Dr. Hannah filed a complaint with the University, and the University placed Dr. Hannah on administrative leave with pay for the remainder of his contract.

Dr. Hannah filed suit, including for discrimination and retaliation. The University brought a summary judgment motion. With respect to the discrimination and retaliation claims, the University’s main argument was that there was no causal connection between the Facebook posts in 2009 and 2010 and the denial of Dr. Hannah’s tenure in 2013.

The court was unconvinced that the passage of time between the Facebook posts and the denial of tenure defeated causation, stating: “Two years is not a significant amount of time. It is more than plausible and rather likely that after two years, Dr. Cowlishaw and Dr. Shelton still held some animosity toward Dr. Hannah for his reporting their Facebook posts, which resulted in their reprimands and possibly in the resignation of Dr. Cowlishaw’s wife.”

The Hannah case is another reminder for employers regarding the importance of implementing a good social media policy and training all employees to abide by it. Training employees not to make inappropriate posts in the first place trumps effective corrective action once the employer becomes aware of such posts. Although inHannah, the University’s initial response to the inappropriate posts was sufficient, the fact that the professors had made the posts in the first place played a key role in precluding the University from prevailing on summary judgment during later litigation.

ARTICLE BY

Alexander Nestor
Nisha Verma
Allen Matkins Leck Gamble Mallory & Natsis LLP

Still Waiting for ADA and GINA Guidance on Wellness Incentives

Jackson Lewis P.C.

March is here. The EEOC’s perspective on wellness program incentives is not. Yet again.

In its Fall 2014 regulatory agenda, the EEOC stated it would be issuing in February 2015 amended regulations concerning the size of incentives an employer may offer, yet still have a “voluntary” wellness program under the ADA and GINA.  The EEOC listed these same amendments on its Spring 2014 regulatory agenda. The regulatory agenda is a preliminary statement of priorities under consideration and is not a binding commitment to issue the regulations on the stated date.

The EEOC noted on its agenda that these amendments were needed to address whether an employer’s compliance with HIPAA rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), also complies with the ADA. The EEOC added that an amendment would also address the size of inducements allowed under GINA “to employees’ spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments.”

The allowed size of wellness incentives matters to the growing number of employers with wellness programs. The ACA has a clear compliance standard for such incentives.  Until 2014, the EEOC had stayed on the sidelines of the wellness incentive debate, not offering any guidance beyond its general view that if the incentive was too large, the program was not “voluntary.”

In 2014, the EEOC sued three employers, claiming the size of their wellness incentives (or penalties, depending on your perspective) transformed otherwise voluntary wellness programs into involuntary programs. In the third case, the EEOC sought to enjoin the company from continuing the incentives in its wellness plan. There was no claim that the incentives violated the ACA standard. Our report on that case is here.

At the oral argument on the injunction hearing, the court asked the EEOC numerous times to define the line between a lawful and unlawful incentive under the ADA and GINA. The EEOC declined to define a specific line. The court denied the EEOC’s injunction request.

More than a year ago, we posted that waiting for the EEOCs guidance on incentives under wellness programs is like waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow. The waiting continues.

ARTICLE BY

Michael J. Soltis
OF
Jackson Lewis P.C.