Category: Labor & Employment

EEOC Loses on Procedural Grounds in Hotly Contested Case Challenging CVS Pharmacy Separation Agreement

SchiffHardin-logo_4c_LLP_www

Employers should continue to proceed with caution despite the recent pro-employer decision in EEOC v. CVS Pharmacy, Inc., a closely-watched case in which the EEOC alleged that CVS’ standard separation agreement interfered with the rights of former employees to file an EEOC charge or participate in an EEOC investigation. Although summary judgment was granted in favor of CVS by Judge John W. Darrah of the Northern District of Illinois, the court chose not to address the merits of the case, and instead dismissed the lawsuit on procedural grounds based on the EEOC’s failure to conciliate the case prior to filing its lawsuit.

This lawsuit was unique because there was no allegation that CVS had engaged in discrimination or retaliation under Title VII of the Civil Rights Act of 1964 (Title VII). Rather, the EEOC alleged that CVS’ mere use of its standard separation agreement constituted a “pattern or practice” of resistance under Section 707 of Title VII. Among several challenged provisions, the separation agreement required former employees to release all waivable claims against CVS, prohibited them from filing any lawsuits or claims against CVS, and required former employees to notify CVS if they participated in an agency investigation. A disclaimer expressly stated that execution of the separation agreement was not intended to interfere with the right to participate in an agency proceeding or from cooperating with such agency.

The court granted summary judgment to CVS due to the EEOC’s failure to conciliate prior to filing suit. Yet, this decision provides little comfort for employers that utilize separation agreements with similar terms. Although the issue of whether the agreement constitutes a “pattern or practice” violation of Title VII remains unsettled, a resolution may be forthcoming as the EEOC is currently pursuing a similar theory in a case pending in the District of Colorado.

The court’s opinion includes a footnote that may prove helpful to employers. Judge Darrah noted that it was unreasonable to interpret CVS’ separation agreement as prohibiting employees from filing an EEOC charge and that, even if the agreement did prohibit the filing of a charge, that provision would simply be unenforceable and “could not constitute resistance to [Title VII]” such that the agreement would violate Title VII. However, this comment is non-binding dicta and not precedential.

ARTICLE BY

Lauren S. Novak
OF
Schiff Hardin LLP

United States Supreme Court Round-Up: Key Opinions from 2013 to 2014 and Upcoming High-Profile Business Disputes

Andrews Kurth

The 2013–2014 term of the United States Supreme Court resulted in a wide range of decisions of importance to business. In this article, we highlight some of the key opinions and explore their likely impacts. We also preview a few of the high-profile business disputes the Supreme Court has agreed to hear next term.

Key Business Cases from the 2013–2014 Term

American Chemistry Council v. Environmental Protection Agency: Holding: The Environmental Protection Agency (EPA) reasonably interpreted the Clean Air Act to require sources that would need permits based on their emission of chemical pollutants to comply with “best available control technology” for greenhouse gases. Effect: The decision reinforces the Supreme Court’s previous recognition that the EPA has the power to regulate greenhouse gases as pollutants. However, portions of the decision strongly cautioned the EPA against overreach, stating that the agency may not “bring about an enormous and transformative expansion in [its] regulatory authority without clear congressional authorization.” These comments suggest that the Supreme Court may take a hard line when the Obama Administration’s other climate regulations eventually go to court.

Daimler AG v. Bauman: Holding: A foreign company doing business in a state cannot be sued in that state for injuries allegedly caused by conduct that took place entirely outside of the United States. Effect: Daimler makes it much harder for plaintiffs to establish general jurisdiction over foreign entities. The opinion re-characterizes general jurisdiction as requiring the defendant to be “at home” in the state, a circumstance that the Supreme Court suggested will generally be limited to the places where the defendant is incorporated or where it has its principal place of business. Moreover, the fact that a domestic subsidiary whose activities are imputed to the foreign parent may be “at home” in the state will not make the foreign parent “at home” in that locale for purposes of general jurisdiction.

Halliburton v. Erica P. John Fund, Inc.: Holding: Plaintiffs in private securities fraud actions must prove that they relied on the defendants’ misrepresentations in choosing to buy stock. Basic v. Levinson’s holding that plaintiffs can satisfy this reliance requirement by invoking a presumption that the price of stock as traded in an efficient market reflects all public, material information, including material misstatements, remains viable. However, after Halliburton, defendants can defeat the presumption at the class certification stage by proving that the misrepresentation did not in fact affect the stock price. Effect: While investors will continue to pursue class actions following large dips in stock prices, the Halliburton decision helps to level the playing field by providing defendants a mechanism to stop such suits at the class certification stage.

Lawson v. FMR LLC: Holding: Employees of privately held contractors or subcontractors of a public company are protected by the anti-retaliation provision of the Sarbanes-Oxley Act of 2002 (SOX). Effect: Following Lawson, there will likely be an increase in SOX litigation against public and non-public companies. Because many of the issues concerning the scope and meaning of SOX have yet to be resolved, lower courts will continue to wrestle with defining the parameters of the law. Questions left unanswered byLawson include whether the whistleblower’s accusation must be related to work he or she performed for the company and whether the contract with the public company must have some relation to public accounting or securities compliance.

Chadbourne & Park LLP v. Troice: Holding: The Securities Litigation Uniform Standards Act of 1988 (SLUSA) does not preclude state-law class actions based on false representations that the uncovered securities that plaintiffs were purchasing were backed by covered securities. Effect: SLUSA bars the bringing of securities class actions “based upon statutory or common law of any state” in which the plaintiff alleges “a misrepresentation or omission of a material fact in connection with a purchase of sale of covered securities.” The statute defines “covered securities” to include only securities traded on a national securities exchange or those issued by investment companies.

U.S. v. Quality Stores: Holding: Severance payments to employees who are involuntarily terminated are taxable wages for purposes of the Federal Insurance Contributions Act. Effect: Employers should, under most circumstances, treat severance payments to involuntarily terminated employees as wages subject to FICA taxes. There are exceptions, however, and employers should therefore seek legal counsel to assist in determining the tax status of a particular severance arrangement.

Business Cases to Watch in the 2014–2015 Term

Integrity Staffing Solutions v. Busk: Whether time spent in security screenings is compensable under the Fair Labor Standards Act.

Mach Mining v. Equal Employment Opportunity Commission: Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.

Omnicare v. Laborers District Council Construction Industry Pension Fund: Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, a plaintiff may plead that a statement of opinion was untrue merely by alleging that the opinion itself was objectively wrong, or must the plaintiff also allege that the statement was subjectively false through allegations that the speaker’s actual opinion was different from the one expressed.

Young v. UPS: Whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are similar in their ability or inability to work.

As in recent years, the Supreme Court continues to grant review on more and more cases involving matters of concern to U.S. businesses. Andrews Kurth attorneys are available to provide further detail and guidance on the decisions highlighted here, and on any other issues of concern to your company that have reached the high court.

ARTICLE BY

Kelly Sandill
OF
Andrews Kurth

Managing Ebola Concerns in the Workplace [PODCAST]

Jackson Lewis Law firm

Many employers are struggling to understand the potential workplace implications of Ebola hemorrhagic fever (EHF).  We invite you to listen to a complimentary 48-minute podcast during which three Jackson Lewis practice group leaders discuss some of the legal and practical issues relating to the virus.  Among the issues discussed are:

  • Steps employers should consider taking to ensure OSHA and state workplace health and safety laws are satisfied;

  • ADA, GINA and FMLA compliance challenges that may arise as employers attempt to lawfully identify and manage employees who are or may have been exposed to Ebola; and

  • HIPAA and other sources of privacy and medical confidentiality obligations that should be considered as employers respond to workplace Ebola concerns.

You can access the podcast here.

ARTICLE BY

Bradford T. Hammock
OF
Jackson Lewis P.C.

The Unions Are Coming…The Unions Are Coming! We Don’t Need Paul Revere’s Lantern To See Who’s Coming!

Michael Best Logo

On December 16, 2014, the term of NLRB Board Member Nancy Schiffer ends.  This is a critical date for the union movement because on that date the pro-Union members of the Board will lose their 3-2 majority status and their effective control over the NLRB. So what’s coming next for private employers?

On July 29, 2014, the General Counsel of the NLRB issued an advice memorandum to the NLRB Regional Directors identifying his game plan regarding re-establishing a new definition for joint employer, to make it easier for unions to organize:

“The new broader standard will allow employees to use traditional economic weapons to exert lawful economic pressure on those parties to realistically control the economics of their relationship even if they do not directly control working conditions.”

Prior to that public announcement, the General Counsel had stated that the objective of the Board has been to consistently uphold unions organizing very small subsets of employees, called “micro-units,” instead of the traditional wall-to-wall bargaining units.  Quite simply, these “micro units” are easier for unions to gerrymander and, ultimately, to organize.

The final step in this trifecta is the most troubling for employers – the new NLRB Election Rules.  Through rule-making, the NLRB is seeking to re-write the NLRA in such a way as to greatly speed up the elections.  The new rules reduce the timeline for elections from over 35 days to under 20 days between the time of the petition and the election.  These “quickie” or “ambush” elections will undoubtedly benefit unions, because it gives the employer less time to explain to the employee the pros and cons of joining a union.  These rules are on a fast track and clearly support the union movement.

So, undoubtedly, the unions are indeed coming after management!  This is a watershed moment for the unions.  The union’s financial coffers have been depleted as the union membership numbers continue to plummet. If they don’t get their act together and start to effectively unionize, then they will have to stop blaming employers and/or the NLRB for their organizing failures.

Under the new NLRB Election Rules, nearly all election-related issues will be resolved after the election.  This process would be similar to the approach taken in the recent Northwestern University football players’ case, in which the NLRB held the election and then impounded the ballots.  The NLRB will sort out any issues after the fact so long as the objections don’t impact more than 20% of the bargaining units.

Employers had better gear up and get ready because the unions are locked and loaded and ready to attack. The stage has been proactively set by the NLRB to give unions their best-ever opportunity to succeed in union organizing. If employers don’t prepare now, they will jeopardize their freedom to deal directly with their employees and reduce their flexibility in running their company. The NLRB Regional Offices are already gearing up to explain the new changes in NLRB election procedure, starting in November, so here come the unions!

© MICHAEL BEST & FRIEDRICH LLP
ARTICLE BY

Amy O. Bruchs
Carlos R. Pastrana-Torres
Robert W. Mulcahy
Farrah N.W. Rifelj
Brian P. Paul
OF
Michael Best & Friedrich LLP

2015 COLAs (Cost of Living Adjustments) for Employee Benefit Plans

Varnum LLP

The Internal Revenue Service has announced the 2015 cost of living adjustments to various limits on employee benefit plans. The adjusted amounts generally apply for plan years beginning in 2015. Some of the adjusted amounts, however, apply to calendar year 2015:

1. he limit on an employee’s contributions made during the 2015 calendar year to a 401(k) or a 403(b) tax-sheltered annuity increases to $18,000. Participants who are age 50 or older by the end of 2015 may make an additional $6,000 catch-up contribution, which also increases from the 2014 limit.

2. The limit on an employee’s contributions made during the 2015 calendar year to a 457 plan sponsored by a governmental unit or a tax-exempt organization also increases to $18,000. Participants who are age 50 or older by the end of the 2015 plan year may make an additional $6,000 catch-up contribution, which also increases from the 2014 limit.

3. The limit on an employee’s compensation that may be considered for retirement plan purposes increases to $265,000 for plan years beginning in 2015.

4. The limit on annual benefits payable under defined benefit plans remains the same at $210,000 for plan years beginning in 2015.

5. The limit on allocations to individual accounts in defined contribution plans increases to the smaller of $53,000 or 100% of compensation for plan years beginning in 2015.

6. The taxable wage base for Social Security increases to $118,500. This figure may affect the “integration level” for plans that are integrated with Social Security.

7. Employees will be classified as highly compensated employees for the plan year beginning in 2015 if their compensation in the 2014 plan year exceeded $115,000.

8. Health savings accounts (HSAs) are a means of paying health care expenses under a high deductible health care plan. To be a high deductible health care plan, the deductible must be at least a minimum amount for the year and out-of pocket expenses cannot exceed a maximum amount for the year. Contributions to an HSA may be made by the employer or the employee, but the total annual contribution amount from both sources cannot exceed the smaller of the plan’s deductible for the year or the maximum contribution amount for the year. For 2015, the adjusted amounts for HSAs are:

  • Maximum contribution: Family: $6,650 Self: $3,350
  • Minimum deductible: Family: $2,600 Self: $1,300
  • Maximum out of pocket: Family: $12,900 Self: $6,450

9. Participants who attain age 55 by the end of the 2015 plan year may make an additional $1,000 “catch-up” contribution to their HSAs.

The maximum amounts that Social Security recipients may earn during 2015 without loss of Social Security benefits are as follows:

  • Recipients ages 62 through full retirement age: $1,310/mo. ($15,720/yr.)
  • Year recipient reaches full retirement age: $3,490/mo. up to the month the recipient reaches full retirement age. ($41,880/yr.)
  • There is a special rule that applies to earnings for one year, usually the first year of retirement, in which you can get a full social security check for any whole month you are retired, regardless of your yearly earnings.
  • “Full retirement age” for Social Security is:

Year of Birth

Full Retirement Age

Prior to 1938

Age 65

1938

Age 65 & 2 months

1939

Age 65 & 4 months

1940

Age 65 & 6 months

1941

Age 65 & 8 months

1942

Age 65 & 10 months

1943 – 1954

Age 66

1955

Age 66 & 2 months

1956

Age 66 & 4 months

1957

Age 66 & 6 months

1958

Age 66 & 8 months

1959

Age 66 & 10 months

1960 and later

Age 67
© 2014 Varnum LLP

California Class Action Suit Alleges LinkedIn Violated Fair Credit Reporting Act (FCRA) By Providing Employers With Reference Reports

Allen Matkins Law Firm

Another interesting case filed in California recently highlights the myriad risks employers face when using social media as part of their hiring process.

A class action lawsuit was filed in the Central District of California against LinkedIn based on allegations that thereference reports LinkedIn generates for premium subscribers, including many employers, violate the Fair Credit Reporting Act(“FCRA”). According to the plaintiffs in Sweet, et. al. v. LinkedIn Corporation, an employer who is a premium subscriber can generate a report containing the names, locations, employment areas, current employers, and current positions of all persons in a user’s network who may have worked with a job applicant and also contact the applicant’s “references.” An employer, according to the allegations, can run such a “reference report” on a job applicant without the applicant receiving any notification whatsoever. Thus, as the complaint alleges, “any potential employer can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained.” The complaint claims this activity potentially violates both the FCRA’s purposes, which include safeguards as to the accuracy, fairness, and privacy of the information that a potential employer obtains, and the FCRA’s customer notification requirements.

This latest lawsuit against LinkedIn serves as another example of the complex legal issues and risks that an employer faces when using social media to make recruiting and hiring decisions.

© 2010-2014 Allen Matkins Leck Gamble Mallory & Natsis LLP
ARTICLE BY

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

Paid Sick Leave Spreads Throughout New Jersey

Sheppard Mullin Law Firm

While the New Jersey Senate and Assembly continue to debate state-wide sick leave laws, four more New Jersey municipalities have enacted mandatory sick leave laws for private employers.  Effective January 2015, East Orange, Paterson, Irvington and Passaic will join Newark and Jersey City in requiring paid sick time for employees.

Under the recently passed ordinances of those municipalities, most employees of private employers who work a total of 80 hours or more in a covered municipality will accrue at least one hour of paid sick time for every 30 hours worked.  For employees who are exempt from the overtime requirements of the Fair Labor Standards Act, employers should assume a 40 hour workweek, unless the employee’s normal workweek is less than 40 hours.  If the exempt employee’s normal workweek is less than 40 hours, accrual may be based on the employee’s normal workweek.

Employees who work for employers with 10 or more employees in the municipality may accrue up to 40 hours of paid sick time in a calendar year, while employees who work for employers with less than 10 employees in the municipality may accrue up to 24 hours of paid sick time per calendar year, with some exceptions.  For example, home health care workers and food service workers may accrue up to 40 hours per calendar year regardless of the size of the employer.

Paid sick time accrual begins upon the effective date of the applicable ordinance and thereafter upon the date of hire.  However, accrued time may not be used until after the 90th calendar day of employment.  After 90 calendar days of employment, employees must be permitted to use accrued sick time for several reasons including:

  • To care for their own or a family member’s sickness, need for medical diagnosis, care or treatment of a sickness, or need for preventative medical care; or

  • Due to a forced closing of the employee’s place of business or to care for a child whose school or place of care has a forced closing, or to care for a family member when a health authority or a health care provider has determined that the family member’s exposure to a communicable disease would jeopardize the health of other’s in the community.

The ordinances allow an employer to require reasonable advance notice where the leave is foreseeable and as soon as practicable where it is not.  The ordinances also permit an employer to request that the employee confirm in writing that the time was used for a permissible purpose, and where the employee has been out for three or more consecutive days, the employer may request reasonable supporting documentation from a health care professional.  An employer may not, however, require that the documentation explain the nature of the illness.  To the extent any health information is disclosed, such information must be treated as confidential and only disclosed to the affected employee or with the affected employee’s permission.

Once accrued, up to 40 hours of paid sick time may be carried over into the next calendar year.  An employer may, however, elect to pay its employees for unused sick time at the end of the calendar year in lieu of carry over.  Note that even where an employee does carry over accrued paid sick time, an employer is not required to permit the employee to take more than 40 hours of paid sick time in a calendar year.  The “calendar year” may be defined by the employer as any regular consecutive 12-month period.

Employers who already have paid time off policies that provide sufficient paid time to satisfy the total annual accrual requirements of the applicable ordinance, and permit such paid time off to be used for the same purposes identified in the ordinance, are not required to provide additional paid time.  Employers should be mindful, however, that if their current policy only provides paid time off to full-time employees, either their policy should be modified to extend such paid time off to all employees who work more than 80 hours in a covered municipality or a separate policy should be implemented for part-time and temporary employees that satisfies the minimum requirements of any applicable ordinance.

While none of the ordinances require an employer to pay employees for accrued but unused sick time upon separation, if an employee is rehired within six months, any accrued but unused sick time must be reinstated.  Likewise, if an employee is transferred within the municipality the employee retains any unused sick time.

Each of the ordinances provide expansive protections against retaliation and require employers to provide individual employees with notice of their rights under the law.  Notice to individual employees must be in English and in the employee’s primary language, provided the employee’s primary language is the primary language of at least 10% of the employer’s workforce.  Employers are also required to display a poster in a conspicuous and accessible place in each covered business establishment.  In addition, employers must maintain records documenting their compliance with the applicable ordinance.

Failure to comply with these ordinances may result in fines, civil penalties, or a private action by a current or former employee.  As such, employers in the covered municipalities should familiarize themselves with the applicable ordinances and take steps to ensure compliance.

ARTICLE BY

Lisa M. Harris
OF
Sheppard, Mullin, Richter & Hampton LLP

A Guide to Dealing with Illnesses in the Workplace

Godfrey Kahn Law Firm

As a result of all of the media coverage surrounding the Ebola issues, many of our clients have wondered whether they need to do anything, as employers, to prepare for similar issues and to address related employment issues. Whether it is the Ebola virus or another virus or pandemic, the general rules for employers remain the same.

The Ebola Virus Basics

The key to contracting the Ebola virus is direct contact (through broken skin or mucous membranes in, for example, the eyes, nose or mouth) with someone who is carrying the virus.  The Centers for Disease Control and Prevention (“CDC”) has a website dedicated to understanding, preparing for and preventing the spread of the Ebola virus.  For additional information regarding the Ebola virus, including symptoms and other useful information, please visit the CDC’s website.

For employers, the key is not to panic.  Given that we are at the early stages of flu season, employers should avoid overreacting at the first sight of an employee with flu-like symptoms.  Employers concerned about particular employees should consult with legal counsel before taking any steps that may lead to liability under various employment laws (more on this below).

Important Employment Issues Each Employer Should Consider

Pandemics (whether the Ebola virus, the 2009 H1N1 virus or influenza) implicate a number of employment laws.  Employers must strike a proper balance between protecting employees from infection and operating within the confines of applicable law.

1. Consider the requirements of the Americans with Disabilities Act before requiring employees to undertake a medical examination.

The Americans with Disabilities Act (“ADA”) prohibits, among other things, medical examinations for applicants and employees.  An employer cannot require a current employee to undergo a medical examination unless the examination is job related and consistent with business necessity.  According to the Equal Employment Opportunity Commission (“EEOC”), medical examinations of an employee are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions of his/her job will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.  “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. § 1630.2(r).  For additional guidance on direct threats, please see the EEOC’s website.

The EEOC’s 2009 guidance specific to the H1N1 virus sheds additional light on how employers should make direct threat assessments before requiring a medical examination.  The EEOC states that whether a pandemic virus rises to the level of a direct threat depends on the severity of the illness.  Helpful data points to determine the severity—and associated direct threat—of a virus are the warnings and guidance from government agencies such as the CDC, state health departments and other recognized authorities on illness and disease.

2. Consider the Occupational Safety and Health Act when accessing your workplace practices.

In addition to the ADA’s medical inquiry restrictions, most employers must follow the safety and health regulations dictated by the Occupational Safety and Health Administration (“OSHA”) under the Occupational Safety and Health Act (“OSH Act”).  Although OSHA does not specifically regulate Ebola or other pandemics, employers may trigger workplace safety violations under OSHA’s General Duty Clause if they do not take proper steps to protect their employees.

Employers run the risk of receiving citations under the General Duty Clause if they expose employees to a hazard that the employer could reasonably have reduced and that the employer recognized would cause or likely would cause serious physical harm to employees.  Employers in industries with a high risk of disease contamination (e.g., healthcare employers) should therefore evaluate potential hazards and determine whether they can take steps to reduce the risk of exposure to employees.

Employers should also keep in mind that an employee who reasonably refuses to report to work because of a dangerous work condition—including contracting a pandemic virus—may be protected from retaliation.

OSHA’s guidance about Ebola and pandemic influenza provides useful information for employers who want to prepare for and respond to contagious disease risks in their workplaces.

3. Employees may be entitled to leave under the Family and Medical Leave Act.

Federal and state (where applicable) family and medical leave laws (“FMLA”) complicate the web of responsibilities an employer has to navigate when it comes to dealing with ill employees.  For employers covered by these laws (generally employers with 50 or more employees under federal law), an eligible employee who has contracted the Ebola virus or another pandemic virus may qualify for leave based on a serious health condition.  Similarly, an eligible employee may qualify for leave if an eligible family member contracts a virus that qualifies as a serious health condition.

If an emergency situation prompts the need for FMLA leave, administering the leave in a lawful manner gets more complicated than under normal circumstances.  For example, it may not be practical to solicit and review medical certification forms.  In these situations, employers must have sufficient information (including the employee’s statements) that the underlying condition qualifies as a serious health condition.  Designating leave as FMLA without sufficient information establishing a serious health condition can result in a retaliation claim.  In emergency situations, employers may also need to exercise forbearance on the return of medical certification forms, particularly if an employee needs to assist a family member who is ill.  For additional FMLA guidance, please visit the United States Department of Labor website.

Steps Employers Should Take to Minimize Workplace Safety and Health Issues

As with any other workplace safety and health issues, the recent Ebola-related news has raised many questions about what employers should do when facing similar situations.  Although each employer is unique and each industry must confront different obstacles and risks, employers should, at a minimum, follow the steps outlined below.

  • Have a plan.  Consult with internal safety experts and review the guidance provided by government agencies regarding specific safety issues.  Create a plan (preferably with the assistance of legal counsel) that addresses issues specific to your workplace and your industry.

  • Communicate your plan to employees.  Your company’s protocols for dealing with safety issues should not be a secret to any of your employees.  Publicize the plan internally and ensure that employees have ready access to the plan.

  • Train your employees.  Train your employees about your company’s safety protocols on a yearly basis.  If you are concerned about a particular risk that is not usually common to your workplace or if you update your plan, provide additional training as needed to address these issues.

  • Supervise implementation of the plan.  Having a plan in place and training your employees to follow certain procedures is meaningless if no one supervises the process.  Designate individuals to review employee actions to ensure that the plan’s protocols are followed and to identify potential shortcomings of/improvements to the plan.  Whenever necessary, update your plan to ensure that it addresses all major safety risks and train employees on the changes made to the plan.

Employers that consult government and other advocacy organization websites to adopt ideas, disseminate information and prepare practices and procedures for addressing workplace safety and health issues will be in a good position to protect against unwanted legal action.

ARTICLE BY

Rufino Gaytán
OF
Godfrey & Kahn S.C.

Ebola and Potential Labor Relations Issues

Proskauer Law firm

The Ebola panic presently sweeping the U.S. raises a host of potential issues for employers.  We recently provided guidance to help employers ensure employee safety while also complying with legal obligations under the Americans with Disabilities Act and similar laws.  In addition, the Occupational Health & Safety Administration (OSHA) recently released a comprehensive summary of requirements, recommendations and guidelines for employers and workers.  The escalating concern over Ebola also raises potential labor relations issues.  Many of the workplaces with the potential for employees to come into contact with infected persons or material – health care providers, cleaning services, waste disposal firms, ambulance and other transportation services, to name a few – are unionized, and unions have begun to seek greater protections for their members.  Non-union employers may be affected as well, as at least one group of non-union employees has engaged in a strike to protest inadequate safety measures.

An important step all employers can take, whether unionized or not, is to share information disseminated by the Centers for Disease Control (CDC) and other public health agencies to educate their employees.  Indeed, a recent Washington Post article highlighted the information gap that is fueling public fears.  Sharing accurate, up to date information should help address employee concerns and avoid potential workplace disruptions based on unfounded fears.

Beyond the dissemination of information, in workplaces where employees may have some potential to come into contact with persons or material infected with the Ebola virus, employers must comply with applicable workplace health and safety laws and regulations, including making sure that effective protocols are in place, that protective equipment and clothing are available, and that employees receive appropriate training.  Not surprisingly, healthcare workers – nurses in particular – have been at the forefront in demanding increased protection and training.

National Nurses United (NNU) has been especially outspoken.  In addition to its criticism of the Texas Health Presbyterian Hospital, where two nurses caring for an Ebola patient became infected themselves, it has launched a multi-pronged campaign to achieve increased training and protection for nurses who may be called upon to treat Ebola patients.  As part of their campaign, they have released an Ebola Toolkit that includes a guide to state and federal whistleblower laws and a comprehensive set of collective bargaining demands.  Their demands include detailed proposals for Ebola-specific protocols, training and protective equipment, creation of a joint labor-management infectious disease task force, medical services for exposed or potentially exposed employees, and full paid time off for nurses exposed to an infectious disease.  Healthcare employers should expect to be presented with comparable demands from the unions representing their employees, if they have not done so already.

Other unions are engaging in similar activities.  As the largest union in the U.S. representing healthcare workers, cleaners, and other service employees who could potentially come into contact with a person or material infected by Ebola, the SEIU has been particularly active.  Its public efforts to date have been focused largely on educating union members and training them to use protective equipment.

In addition to union advocacy and education, there has been at least one work stoppage arising from employees’ Ebola concerns.  At LaGuardia airport, a group of more than 200 non-union aircraft cabin cleaners recently engaged in a one-day strike to protest what they claimed were inadequate protections from exposure to Ebola.  In that case, the SEIU is attempting to organize the striking cleaners, but regardless of whether non-union employees are seeking union representation, they have the right under the National Labor Relations Act to engage in concerted activity for their mutual aid and protection, such as a strike to protest working conditions related to Ebola risks.

Education and communication are critical to addressing employees’ Ebola-related concerns and avoiding workplace disruptions based on unfounded fears.  In unionized workplaces, union representatives should be included in the education and communication process. Of course, all employers must comply with applicable workplace safety and health laws and regulations.  Depending upon the circumstances, unionized employers may have bargaining obligations with respect to additional measures they seek to implement in response to Ebola concerns.  They may also be faced with bargaining demands by employees seeking greater protection.  Finally, it is important for non-union employers to understand that their employees also have the right to act in concert for their mutual aid or protection.

ARTICLE BY

Scott Faust
OF
Proskauer Rose LLP

EEOC Sues Florida and Michigan Companies for Transgender Discrimination

McBrayer NEW logo 1-10-13

The Equal Employment Opportunity Commission (“EEOC”) has just filed suit against two companies for alleged discrimination against transgendered employees. The suits were filed separately in Florida and Michigan, against Lakeland Eye Clinic and G.R. Harris Funeral Homes, Inc., respectively. In both cases, employees alleged that they were fired after they disclosed they were undergoing gender transitions.

Title VII does not specifically protect against transgendered persons. In 2012, however, in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC ruled that employment discrimination against employees because they are transgender, because of gender identity, and/or because they have transitioned (or intend to transition) is discrimination based on sex, and thus violates Title VII.

The EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as one of their top enforcement priorities in its 2012 Strategic Enforcement Plan. Thus, these suits should not be surprising. Earlier this year, President Obama also issued an Executive Order prohibiting federal contractors from discrimination against lesbian, gay, bisexual and transgender workers.

In light of the recent emphasis on the protection of these individuals, employers should take extra precautions to ensure that no discriminatory practices are in force in the workplace. Further, all adverse employment decisions should be properly documented and managers and supervisors should be properly trained about what to do should a discrimination-related issue arises.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.
ARTICLE BY

Benjamin L. Riddle
OF
McBrayer, McGinnis, Leslie and Kirkland, PLLC