Tag: employee

Employer’s Use of DNA Test to Catch Employee Engaging in Inappropriate Workplace Behavior Violates Federal Law

If someone continually, yet anonymously, defecated on the floor of your workplace, you’d probably want to use any and all legal means at your disposal to identify and discipline the perpetrator.  Your methods might include surveillance or perhaps some form of forensic or other testing to link the offensive conduct to a specific individual.  You would probably not be overly concerned that your efforts to rid the workplace of this malefactor might give rise to a discrimination claim, but is that really a safe assumption?

Background

In a case exemplifying the gentility of labor-management relations, a Georgia federal court grappled with how far an employer may go in this situation.  In Lowe v. Atlas Logistics Group Retail Services, LLC, (N.D.Ga. May 5, 2015), the employer, Atlas Logistics Group Retail Services (Atlanta), LLC, which provides long-haul transportation and storage services for the grocery industry, discovered in 2012 that one or more employees had been using a common area in one of its warehouses as a lavatory.  As part of its investigation into this matter, the company retained the services of a DNA testing lab and requested cheek swabs from two employees it considered suspects so that it could compare their DNA with that of the mystery defecator.  After Atlas determined that neither employee was responsible for the unwelcome contributions to its workplace, the employees filed a lawsuit alleging that the company violated the Genetic Information Nondiscrimination Act (GINA) by requesting and requiring them to provide genetic information.

GINA prohibits discrimination on the basis of genetic characteristics and makes it unlawful for an employer to request, require or purchase genetic information with respect to an employee.

The Court Finds Atlas Violated GINA

The court held that Atlas’ argument that GINA only prohibited genetic testing that revealed an individual’s propensity for disease – which the test in this case did not do – was inconsistent with the statute’s text and legislative history as well as the applicable EEOC regulation.  In the court’s view, this argument “render[ed] other language in GINA superfluous.”  In particular, the court noted that the statute contained specific exceptions permitting certain testing that did not involve an individual’s propensity for disease, and if testing revealing a propensity for disease were the only prohibited testing, then those exceptions would not have been necessary.  The court further rejected Atlas’ argument that GINA’s legislative history demonstrated an intent to limit violations to testing that revealed a propensity for disease, explaining that although a group of senators favored this interpretation during the legislative debate, all of the evidence indicated that Congress chose to reject this view in favor of a broad construction.  Finally, the court held that an EEOC regulation listing eight examples of “genetic tests” did not support Atlas’ narrow definition of that term because the list included testing that also did not relate to one’s propensity for disease and, therefore, “would go beyond the scope of the statute” if the law were as narrow as Atlas claimed.

Conclusion

This case’s distasteful facts, which will undoubtedly remind many human resource specialists how coarse employee relations challenges often are in practice, should not distract employers that currently perform DNA tests from the fact that GINA may apply more broadly than some initially believed.  Although the decision should not have a significant impact on the narrow range of situations where workplace DNA testing is a legitimate practice, such as those involving health and safety concerns, it should serve as notice to employers investigating misconduct that they should find methods other than DNA testing to identify culpable employees.

ARTICLE BY George M. Patterson of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Vacation Policy Pitfalls for Illinois Employers

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The Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq., governs the payment of wages—including vacation pay—in Illinois.  While most employers understand that they must pay their workers on a regular basis for the wages the employees have earned, many do not consider how vacation policies may create a heightened risk of a wage class action lawsuit.

Simply put, employers must pay the wages earned by an employee at least semi-monthly, or no more than 13 days after they are first earned.  Departing employees must be paid all earned wages by the next regular pay period.  The Act defines wages to include vacation pay.  This is where things can get tricky.  An employer is not obliged to provide any vacation time to its employees.  However, once it chooses to provide vacation, the vacation time becomes earned wages that must be paid under the Act to the employee, even if the employee terminates their employment.

Employees receive vacation time in one of two ways.  First, an employer can award vacation time without requiring employees to first work some period of time.  Such a policy is called an “inducement for future service” policy and immediately vests.  Hence, employees may take vacation time under an “inducement for future service” policy without meeting any length of service criteria (and with no obligation to repay the vacation time should the employment end).  Such “inducement for future service” policies are unusual.

The other alternative is where the vacation is earned based on service.  For example, the employer can award two weeks of vacation for each year of employment.  This is considered a “length-of-service” policy and the law requires that employees earn “length-of-service” vacation time on a pro rata basis, even where the employer’s policy says they do not.  In other words, the vacation time vests as the employee works.  Thus, an employee who would earn two weeks of vacation after completing a year of employment is entitled to be paid for one week of vacation wages if he/she leaves the employer six months into the year, regardless of what the employer’s policy says.  Most employers have “length-of-service” policies.

An employer with a “length-of-service” policy must pay a departing employee the vacation wages they earned on a pro rata basis.  This is where a vacation policy can become dangerous.  If the employer has a policy that an employee only gets their vacation if they are employed in the following year, the employer is at risk with regard to every employee who left or, in the future leaves, its employment without getting paid vacation pay on a pro rata basis.  Such policy flaws lend themselves to class action lawsuits because the employer’s liability to the class will usually turn on a single question, such as whether the vacation policy is legal or not.

A class action lawsuit can be filed by one departing employee on behalf of all employees who left the employment without getting vacation pay.  A class action lawsuit is dangerous because it aggregates all employees’ claims into a single lawsuit brought by just the class representative.  In 2010, the Illinois legislature amended the statute of limitations under the Act to allow a class representative to file on behalf of a class that goes back in time up to ten years.  Because of the large number of unnamed, but represented, employees that can be in a class, the situation can create potentially disastrous financial exposure for an employer.  And, if the representative employee prevails, she is entitled to recover from the employer her attorneys’ fees, which are usually substantial.  As if this were not enough, the 2010 amendment also permits employees to collect damages of two percent per month—of 24 percent per annum—on any unpaid wages.  Willful refusals to pay wages can also be criminal.

Even if the class action lawsuit settles for a set amount of money, the employer usually must also pay the class representative’s attorneys’ fees.  Under the 2010 amendment, a prevailing employee is entitled to recover her attorneys’ fees, even she did not file her case as a class action.

Recognizing the risk, some employers have tried to limit their exposure by requiring that employees sign an agreement that they will make any claims within a short period of time—for example, six months.  Importantly, the plaintiffs’ bar and the Illinois Department of Labor take the position that the Act prevents an employee from agreeing to limit any of the rights bestowed on the employee by the Act.  Thus, an employee’s written agreement that they will bring any claims for unpaid wages within six months is unenforceable as a matter of public policy.

Employers should be careful to ensure that their policies comply with each state law in which they have employees, including the 2010 amendments to the Act.  If an employer is unfortunately named in a class action lawsuit, they should promptly seek legal advice from a law firm with experience in defending against class action lawsuits.

Copyright 2014 Schopf & Weiss LLP
ARTICLE BY

Insurance Coverage Practice Group
OF
Heyl, Royster, Voelker & Allen, P.C.

Employee Codes of Conduct: Really? Requiring Someone To Use Information “Fairly And Lawfully” Can Be Illegal?

Allen Matkins Law Firm

Companies have lots of very good reasons for adopting codes of conduct.  These reasons include:

  • Ensuring compliance with applicable exchange listing rules (e.g., NYSE Rule 303A.10 and NASDAQ Rule 5610);
  • Minimizing the risk of securities law violations (e.g., Regulation FD and Rule 10b-5);
  • Protecting company assets (trade secrets as well as reputational assets);
  • Complying with contractual obligations requiring confidentiality; and
  • Complying with customer and employee privacy laws and regulations.

Thus, I was amazed to see a recent decision by a panel of the National Labor Relations Board finding the following language in a code of conduct to be unlawful:

Keep customer and employee information secure.  Information must be used fairly, lawfully and only for the purpose for which it was obtained.

Fresh & Easy Neighborhood Market and United Food & Commercial Works Int’l Union, Cases 31-CA-077074 and 31-CA-080734 (July 31, 2014).   The NLRB found that this language violated employees’ rights under Section 7 of the National Labor Relations Act which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”.  Reversing the administrative law judge, the panel found that employees would reasonably construe the above language “to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment”.  Really?  This admonition was included at page 16 of a 20 page booklet primarily dedicated to a variety of ethical matters.  In my view, it is arbitrary and capricious, if not just plain bizarre, to interpret this language as conveying any limitation on employees’ Section 7 rights.

ARTICLE BY

Keith Paul Bishop
OF
Allen Matkins Leck Gamble Mallory & Natsis LLP

Difficult Situation Know-How: What To Do If an Employee Seems Suicidal

Steptoe Johnson PLLC Law Firm

As people in the world, we face difficult situations all the time.  If someone seems sad or depressed, we may want to help but not know how.  When it’s your employee who is going through tough times, you may have legal concerns to worry about too.  It’s good to be as prepared as possible beforehand.  For example, let’s imagine that one of your employees seems depressed and starts making comments around the workplace about hurting him or herself.

A condition causing an employee to become suicidal may be covered under the Americans with Disabilities Act (“ADA”).  In that case, it would be an unlawful discriminatory practice to take adverse employment actions based on the employee’s condition, and the employee may be entitled to a reasonable accommodation.  If an employee makes a statement or does something that causes you to think that he or she may be suicidal, it is best to initially address the situation under the assumption that the employee has a condition covered under the ADA.

The first thing to do is to have a private conversation with the employee.  Do not ask if the employee has a medical condition.  Rather, ask the employee if there is anything you or the company can do to help.  You can also ask if anything at work is causing or contributing to the employee’s problem and ask if the employee has any ideas for what could change at work to help.  If the employee has reasonable requests for accommodation, then accommodate the employee. Later, follow up with the employee to ensure that the accommodation helped the problem.  If not, it may be time to seek advice from your attorney to determine whether the employee is suffering from a condition covered by the ADA.

Be sure to document this entire process: keep written documentation of (1) the employee’s complaint(s), (2) that you asked how you could help, (3) that you did not ask whether the employee has any medical conditions, (4) that the employee suggested a certain accommodation, (5) that you provided the accommodation, and (6) that you followed up with the employee to see if the accommodation worked.  Keep this documentation confidential.

Although you generally do not want to ask about whether the employee has a medical condition (such as depression), you can listen if the employee brings personal problems up and wishes to talk about them.  It’s better not to offer advice, but you can offer hope that the employee will find a solution to his or her problems.  You can also let the employee know that counseling is available, for instance, through an Employee Assistance Program, a crisis intervention or suicide prevention resource in your community, or a suicide-prevention hotline. Be careful not to pressure the employee or to imply that counseling is required or in any way a penalty.  Again, keep your conversation confidential.

As a final note, the only time it may be alright to ask your employee whether they have a medical condition is when asking is job-related and consistent with business necessity.  For example, this may be the case when the employee’s ability to perform essential job functions is impaired because of the condition or when the employee poses a direct threat.  However, it is a good idea to consult your attorney before making such an inquiry as it can be fraught with legal perils.

ARTICLE BY

Kaitlin L. Hillenbrand
OF
Steptoe & Johnson PLLC

Paid Sick Leave: Connecticut Tweaks and Newark Speaks

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The Connecticut Paid Sick Leave Law has been tweaked in three respects: (1) to allow employers to determine the 50-employee applicability threshold in the same manner as under the state’s Family and Medical Leave Act, i.e., by determining whether the employer has at least 50 employees on its payroll for the week containing October 1; (2) to allow accrual of paid sick leave hours on any annual basis, not just a calendar year, and (3) to add one additional job title—radiologic technologists—to the list of “service worker” titles that are eligible for paid sick leave. The law adopting the tweaks— An Act Creating Parity between Paid Sick Leave Benefits and Other Employer-Provided Benefits (Public Act 14-128)—is effective January 1, 2015.

Newark, N,J. whose  Paid Sick Leave Ordinance became effective on June 21, 2014, has issued FAQs about the ordinance. There are 24 FAQs–a dozen directed to employers and a dozen directed to employees. The FAQs address a myriad of questions on topics such as employee eligibility, accrual of paid sick leave, employer notice obligations, appropriate uses of paid sick leave and the law’s integration with collective bargaining agreements.

Also on the paid sick leave issue, the Massachusetts Secretary of State announced last week that voters in November will be asked whether to approve a mandatory earned sick time law. If the issue passes, Massachusetts would become the second state and ninth jurisdiction to adopt a paid sick time law.

Article By:

Michael J. Soltis
Of:
Jackson Lewis P.C.

The Walls Shouldn’t Have Ears: Ruling on Eavesdropping Puts Burden of Prevention on Illinois Employers

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Are your employees surreptitiously recording conversations? It’s a frightening thought. But based upon a new Illinois Supreme Court ruling, they are now free to do so. To discourage this behavior, Illinois employers should consider implementing a policy prohibiting such surreptitious recordings.

In People v. Clark, the Illinois Supreme Court ruled that the state eavesdropping statute, which had made it illegal to record conversations in Illinois without the consent of all parties, was unconstitutionally overbroad under the First Amendment. The state Supreme Court reasoned that audio and audiovisual recordings are “medias of expression commonly used for the preservation and dissemination of information and ideas and thus are included within the free speech and free press guarantee” of the First Amendment.

Consider for a moment how your employees might use secretly recorded conversations against you. An employee who has previously complained to your human resources department about another employee who made inappropriate sexist or racist comments, may now freely record all conversations with the colleague, and can use those recordings in a lawsuit against the company. Or, an employee might surreptitiously record everything said during an internal investigation of alleged wrongdoing by the company, and could then provide third parties with those recordings.

Given the removal of statutory barriers, Illinois employers are now forced to create their own systems for preventing this objectionable conduct. One such avenue would be to implement a policy prohibiting the recording of conversations absent the consent of all parties.

Under certain circumstances, employers may want to record workplace conversations. However, the employer, not each individual employee, should dictate when recording conversations is appropriate. Company policy should be unequivocal and forbid the recording of any conversations with colleagues or business conversations with third parties, regardless of where such conversations take place, without the consent of all parties to the conversation.

Note that such a policy would not prohibit an employee from using such surreptitious recordings in a lawsuit against the company, or from sharing such recordings with others, because Illinois law no longer requires the consent of all parties. But with clear guidelines in place, Illinois employers would at least have the option of taking disciplinary action against employees who violate the company’s policy. Employees generally don’t want to risk losing their jobs by violating such rules, and may therefore think twice before making secret recordings.

In response to the concerns of employers and others, the Illinois General Assembly is already considering new legislation that would limit the recording of conversations in a way that does not violate the Constitution. And while Illinois employers should monitor the progress of such prospective legislation, adoption of a company policy prohibiting the secret recording of conversations can help reduce the likelihood of such behavior in the interim.

Article By:

Robert K. Neiman
Of:
Much Shelist, P.C.

Wisconsin’s Password Protection Law Mandates Review of Policies and Practices

Godfrey Kahn

Wisconsin has joined the ranks of other states who have limited the circumstances under which employees or applicants can be required to provide access to his or her personal Internet account. The Social Media Protection Act (2013 Wisconsin Act 208) became effective April 16, 2014. The new law makes it illegal for an employer to request or require an employee or applicant to disclose personal Internet account access information. A parallel prohibition within the Act applies to educational institutions and landlords.

A “personal Internet account” is defined as an Internet-based account that is created and used by an individual exclusively for purposes of personal communications. With the passage of the Act, employers are now prohibited from:

  • Requesting or requiring an employee or applicant, as a condition of employment, to disclose access information to the individual’s personal Internet account or to ask the individual to grant access to or allow observation of that account.
  • Discharging or otherwise discriminating against an employee for exercising his/her right to refuse to disclose personal Internet account access information.
  • Refusing to hire an applicant because the individual did not disclose personal Internet account access information.

While the law primarily protects the privacy of employees and applicants, it also offers employers a limited degree of protection. Specifically, employers can:

  • Request or require an employee to disclose access information to the employer in order for the employer to gain access to or operate an employer-provided (or employer-paid) electronic communications device provided by virtue of the employee’s employment relationship or used for the employer’s business purposes.
  • Discharge or discipline employees for transferring proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.
  • If the employer has reasonable cause, conduct an investigation or require an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account or to conduct an investigation of any other alleged employment-related misconduct, violation of the law or violation of the employer’s work rules. During the investigation, the employer can require the employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
  • Restrict or prohibit an employee’s access to certain Internet sites, while using an employer-provided (or paid for) electronic communications device, or while the employee is using the employer’s network or other resources.
  • View, access or use information about an employee or applicant that can be obtained without access information or that is available in the public domain.
  • Request or require an employee to disclose his or her personal electronic mail address.

A person who has been discharged, expelled, disciplined, or otherwise discriminated against for reasons provided under this law may file a complaint with Wisconsin’s Department of Workforce Development (the “DWD”).

Employers should make sure that their employment policies and practices conform to the requirements of 2013 Wisconsin Act 208. In particular, employers should make sure that employees using employer-provided or paid for electronic communication devices for business purposes do not have any expectation of privacy in such devices or the communications that flow from them.

In addition, employees should be informed that they are prohibited from disclosing proprietary or confidential information or financial data to anyone using personal Internet accounts and only for legitimate business reasons if using an employer-provided account. Lastly, employers should make sure that their employment policies are clear in reserving the right to conduct, and in expecting employees to cooperate in, investigations concerning the unauthorized transfer of proprietary, confidential or financial information.

Article By:

Jon E. Anderson
Of:
Godfrey & Kahn S.C.

Keeping Current – Recent Changes in Employment Laws

vonBriesen

Is your FMLA policy up to date?

The federal Family Medical Leave Act regulations were revised in 2013, primarily to expand the circumstances under which employees can take military leaves. For example, leave is now available to care for covered veterans and for service members or veterans who aggravated an existing illness or injury while on active duty (as opposed to suffering a new injury while on duty). Qualifying exigency leave is now also available to care for a covered service member’s parent.

The Department of Labor is increasing the number of complaint-driven on-site audits it conducts under the FMLA. Auditors will come in with a checklist of updates they expect to see in an employer’s FMLA policy to comply with the 2008 and 2013 regulatory changes, as well as the DOL’s informal guidance. Having updated policies will show an auditor or investigator that you are up to speed on the latest changes in the law and may lend credibility to your FMLA practices.

If you are a federal contractor, are you preparing to comply with the new OFCCP regulations regarding veterans and individuals with disabilities?

The Office of Federal Contract Compliance (“OFCCP”) issued regulations in 2013 substantially increasing the obligations of federal contractors relating to veterans and individuals with disabilities. Many of these new requirements, including language to be included in all job postings and subcontracts, go into effect March 24, 2014. Additional requirements go into effect at the start of an employer’s next plan year after March 24, 2014, but may require substantial planning in advance. For example, federal contractors will now be required to conduct statistical analysis of the number of veterans and disabled individuals in their workforce, much like what was already required for race and gender. This requires inviting individuals to self-identify as a veteran or disabled. The regulations require this invitation be made to all applicants and again to those offered jobs. It also requires that an employer’s existing work force be invited to self-identify as disabled every five years. Tracking this information can be complicated, as it must be kept separate from general personnel files and treated as confidential. This is not only required by the regulations but is also essential to avoid increased risk of discrimination claims on the basis of disability.

Companies that provide products or services under contracts with the federal government should review their obligations to ensure they are complying with these new OFCCP regulations.

Was your employee terminated for misconduct or “substantial fault” on the job?

Wisconsin’s 2013 Budget Bill made changes to the statutes governing unemployment insurance, which took effect January 5, 2014. Even before these changes, employees would be ineligible for unemployment insurance benefits if they were terminated for misconduct. The definition of misconduct previously came from case law. The new statute defines misconduct and includes examples, which include:

  • Two or more absences (without notice or without valid reason) in 120 days, unless employer policy is more generous
  • Falsifying business records

The statute also adds a second basis under which employees may be disqualified for benefits, if they are terminated for “substantial fault” in their performance. This still does not disqualify an employee from unemployment benefits for minor infractions or inadvertent errors, but on its face it would disqualify an employee who was terminated for major failures. This basis is largely undefined and untested, so we will have to monitor the decisions of administrative law judges and the courts to determine how it will be defined in practice. The updated statutes also narrow the circumstances in which an employee can quit his/her job and still qualify for unemployment benefits.

These changes may mean that employers are more likely to prevail if they challenge a former employee’s unemployment compensation claims. This may be of particular benefit to non-profit employers who participate in the unemployment insurance system as reimbursing employers, and therefore pay dollar-for-dollar on each unemployment claim.

Article by:

Sarah J. Platt

Of:

von Briesen & Roper, S.C.

Employee’s Complaint About Union Officials Watching Porn is Deemed “Human Imperfection” But Not Grounds for Retaliation

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A union employee was suspended then terminated after being indicted – as part of an identity theft investigation by the prosecutor – which involved the public posting of names, salaries and Social Security numbers of the company’s managers during a previous strike. During her suspension, the employee claimed that she witnessed the union president and vice president looking at pornography during business hours, which she then reported to the union’s regional leaders. The employee also alleged that the union sabotaged her post-termination grievance process.

As a result, the employee sued the union under section 101 of the Labor-Management Reporting and Disclosure Act, alleging that she was retaliated against for raising a matter of union concern relating to the general interest of its members (i.e., her complaint about union officials watching porn during business hours). The Fourth Circuit found that the employee’s complaint did not rise to the level needed to meet the test and added that “human imperfection must be kept in some perspective.”

On Monday, the United States Supreme Court denied the employee’s bid for certiorari. (see Melissa H. Trail v. Local 2850 United Defense Workers of America et al., case number 13-332).

Article by:

Adam L. Bartrom

Of:

Barnes & Thornburg LLP