Employers Left in Flux Over FMLA Obligations After Supreme Court’s United States v. Windsor Decision

By Stearns Weaver Miller on July 17, 2013 Posted in Disability & Leave, Legislation & Regulations

On June 26, 2013, the United States Supreme Court in United States v. Windsor struck down the Defense of Marriage Act (“DOMA”) which had defined “marriage” as a legal union between one man and one woman as husband and wife, and “spouse” as a person of the opposite sex who was a husband or a wife. As a result, same-sex couples who are legally married are considered “spouses” for federal law purposes and may take advantage of government benefits and tax breaks previously reserved for heterosexual spouses. The Windsor decision also effects employers’ obligations under the Family and Medical Leave Act (“FMLA”).

The FMLA allows eligible employees to take leave to care for a family member with a serious health condition. Family member includes an employee’s “spouse”, which is defined under the FMLA regulations as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” While this definition refers to state law, FMLA leave had not been previously available to same-sex spouses because the U.S. Department of Labor (“DOL”) had taken the position that it was bound by DOMA’s definition of “spouse.”

Following the Windsor decision and according to a literal reading of the FMLA’s definition of “spouse”, an employer would be obligated to provide FMLA leave to a same-sex spouse residing in a state that recognizes same-sex marriage to care for his or her spouse who is suffering from a serious health condition. It is important to note that pursuant to the definition the employee need not work in a state that recognizes same-sex marriage as long as he or she resides in one. Under the current regulations, however, an employer does not appear to have an obligation to a same-sex spouse residing in a state that does not recognize same-sex marriage like in Florida. For national companies, this may create an uneven distribution of employment benefits where some of an employer’s workforce resides in states that recognize same-sex marriage and some reside in states that do not. Hopefully, the DOL has plans to provide employers with guidance on these issues.

A Busy Week at the Supreme Court – Three Important Decisions for Employers

By Glenn Rissman on June 25, 2013 Posted in Discrimination & Harassment, Employment Litigation, Legislation & Regulations

In the past few days, the United States Supreme Court has issued three decisions that significantly impact employment law. We offer a brief summary of the Court’s decisions and how they impact employers.

American Express v. Italian Colors. The case was not an employment law case and dealt with the less-than-sexy issue of arbitration clauses. We have written about arbitration clauses in the past and how employers can use arbitration clauses to try to avoid class action or collective action litigation. Click here for posts. In the American Express case, the Supreme Court said that a valid arbitration agreement can require a plaintiff to arbitrate a claim arising under federal law. Also, the Court said that an arbitration clause that waives the right to class arbitration in not invalid just because the plaintiff’s cost of arbitrating individually exceeds the potential recovery. The decision is significant because it offers employers the ability to require employees to arbitrate employment disputes and to waive their right to pursue a claim collectively or as a class action. If properly drafted, the arbitration clause could help prevent the dreaded collective action under the Fair Labor Standards Act, forcing disgruntled employees or former employees to pursue their claims individually and removing the leverage associated with a collective action.

University of Texas Southwest Medical Center v. Nassar. The issue in Nassar was the standard of proof for a retaliation claim under Title VII of the Civil Rights Act of 1964. There had been a split among the lower courts whether a plaintiff could prevail by proving that retaliation was one of several motivating factors for the adverse action or whether the plaintiff had to prove that retaliation was the “but for” cause for the adverse action. A majority of the Court held that the “but for” standard is the proper standard for retaliation under Title VII. The “but for” is a harder standard for the employee or former employee to meet. The decision is viewed as a victory for employers and could make summary judgment on Title VII retaliation claims easier for employers. For now, the “but for” retaliation standard is limited to Title VII, but courts might be receptive to applying the standard to claims under the ADA and the FMLA. (The Court previously ruled that the “but for” standard applies to claims under the ADEA.)

Vance v. Ball State University. The Court’s decision in Vance provides a bright-line test for who qualifies as a supervisor for purposes of a Title VII harassment claim. The Court adopted a narrow test and said that a supervisor must be empowered by the employer to take tangible employment actions, such as hiring, firing, promoting, reassigning significantly different tasks, or causing changes to benefits. The plaintiff had argued that a supervisor can be any person who directs an employee’s day-to-day activities. The Court rejected the lesser standard. The Court’s decision is significant because it reduces the number of people who will qualify as supervisors. Under Title VII, the employer can be liable for the conduct of its supervisors, including creating a hostile work environment. The employer has more defenses to the Title VII harassment claim when a non-supervisor is accused of creating the hostile work environment. The Court’s narrow definition of the concept of “supervisor” should help employers defend Title VII claims and tailor harassment training to those employees empowered to take tangible employment actions.

Court Turns Searchlight on Unpaid Interns in Film and Entertainment Industry

By Stearns Weaver Miller on June 13, 2013 Posted in Employee Benefits & Compensation, Employment Litigation, Wage & Hour/Employee Classification

On Tuesday, a federal court judge in New York ruled that Fox Searchlight Pictures violated federal and state wage laws by not paying production interns. The production interns, Eric Glatt and Alexander Footman, worked on the psychological thriller “Black Swan” performing work such as reconciling purchase orders and invoices, drafting cover letters, filing, making copies, arranging travel plans, answering phones and running errands. Glatt and Footman sued Fox Searchlight in September 2011, claiming the company merely labeled them as “interns” for free labor.

Glatt and Footman moved for summary judgment asking the court, among other things, to determine that they were employees (rather than interns) of Fox Searchlight and, therefore, should have been paid. Applying the Department of Labor’s (“DOL”) criteria for internships (see our previous blog post discussing the criteria, Unpaid Internships = Cheap Labor? Think Again), the court found that Glatt and Footman were employees pursuant to the Fair Labor Standards Act and New York law. Click here for court order.

The court concluded, they worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training. The benefits they may have received–such as knowledge of how production or accounting office functions or references for future jobs–are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer.

The court also granted class certification to a group of unpaid interns in New York who worked in several divisions of the Fox Entertainment Group.

The ruling is a blow to the film and entertainment industries which rely heavily on unpaid internships. However, the court’s decision could have broader implications for all employers with unpaid internships. In a weak job market it may seem enticing to hire a recent grad for “free” but, as this case warns, employers need to make sure that an internship is for the benefit of the intern and not the employer.

Uggh – Humidity, Heat and Hurricanes

By Glenn Rissman on June 12, 2013 Posted in Employment Contracts & Corporate Issues, Wage & Hour/Employee Classification

It is that time of year again and time for the obligatory “get ready for hurricane season” blog posting. Fortunately, it has been a while since we had to run through the hurricane drill. Let’s hope our string of good fortune continues and there is no need to gas up the generators or empty the shelves at local hardware and grocery stores. Below are some steps and policies to prepare the workplace.

1. Update the home address, home telephone number, cell phone number and personal email address for each of your employees. You may need to use cell phones, texting, and personal email to communicate with employees after a storm if the equipment in your office is not functioning. Consider having an analog telephone on hand because today’s digital telephone systems will not work if the power is out.
2. Designate an emergency response team and provide each team member with a list of employees for whom he or she is responsible for contacting after the storm has passed.
3. Provide information on the company’s voice mail system and website so that employees can check the status of the business’s operations and receive updates.
4. Are you a business that must remain open even during natural disasters, such as a hotel or hospital? If so, you must identify essential personnel who are required to remain at work during the disaster. You may also want to ask for volunteers to work during the storm. The employer should consider incentives to encourage employees to volunteer to work, such as increased pay or earned days off. Consider whether your place of employment can accommodate the household members and/or pets of employees who are required to work or who volunteer to work during the storm. Employers may wish to assess whether inviting household members to “ride out the storm” at the workplace will ease the minds of employees, allowing them to focus on their duties, or serve as a distraction.
5. Employers should consider in advance whether they will compensate employees if a disaster prevents the workplace from operating. Under the Fair Labor Standards Act (FLSA), employers only need to pay non-exempt employees for the hours they actually work. However, if an exempt employee works part of a day, the FLSA prohibits the employer from docking the employee for a partial day absence. If the exempt employee is precluded from working because the business is not operational, the employer may still have to compensate the employee and may not be permitted to require the employee to use paid leave for that day off. If the exempt employee is unable to report to work for a personal reason, including inability to travel to the workplace, the employer may be able to dock the employee for that day’s pay or require the employee to substitute paid leave for the day’s absence.
6. Consider how the company will distribute paychecks if the business is not functioning. Employers may wish to consider asking employees to enroll in a direct deposit program so that wages can be electronically transferred into their accounts, assuming of course that the financial institutions involved in the transaction are operating. Employers in Florida cannot require employees to enroll for direct deposit of wages.
7. Require employees working from home in the storm’s aftermath to track and log their hours worked. Non-exempt employees who are working from home must be paid for all hours worked. The employer will need some mechanism to track and limit the hours spent working remotely. If the company does not want non-exempt employees working from home, the employer should communicate that clearly before the storm arrives.
8. After Hurricane Katrina, some employees wished to donate accrued leave time to their co-workers who were more dramatically impacted by the storm. Consider whether your company will allow such donations of accrued time and what tax implications, if any, there may be.

Click here to see a video on hurricane prep and FLSA, including an interview with our own Labor and Employment Department Co-Chair, Robert S. Turk.

Form I-9 Tips from USCIS and ICE

By Glenn Rissman on June 11, 2013 Posted in Immigration

The Verification Division of the U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement Homeland Security Investigations have offered some practical tips and clarifications regarding the completion of Form I-9.

Pre-Population of Employee Information in Section 1 of the Form I-9. For employers who use electronic I-9 systems, particularly those systems integrated with other human resources software, Immigration and Customs Enforcement warns that pre-population of Section 1 of the Form I-9 is not permissible, even if the employee provided the original information that is pre-populated. An electronic I-9 program that pre-populates any employee information in Section 1 exposes the employer to a Form I-9 violation.

Mistaken Use of Expired Form I-9. Employers were required to start using the new Form I-9 beginning May 7. If an employer mistakenly used an older version of the Form I-9 on or after May 7, it is a technical violation which the employer can correct by either executing a new Form I-9 using the current form or by attaching an acknowledgement and explanation of the reason for the error.

Full Instructions Required. Employers must provide employees with the full set of instructions for the Form I-9 – instructions for both the employee and employer portions of the form. Employers may not restate or reformat the Form I-9 instructions.

Using “N/A.” The new Form I-9 has optional fields for the employee’s telephone number and email address. If the employee chooses not to provide the information, employers should write “N/A” in the empty fields and any other field in Sections 1 and 2 where there is no applicable information.

Use New Form for Reverification. Employers may not use Section 3 of an outdated Form I-9 for reverification. Employers must use Section 3 of a valid Form I-9 for all reverifications.

Employees with New Identities. Employers should establish a policy of how to address the situation when an employee comes forward with a new identity. The USCIS recommends that the employee and employer complete a new Form I-9 and, if enrolled in E-Verify, submit a query through the E-Verify system. In the alternative, employers may update the existing Form I-9 with the new identity information. Employers should apply the policy consistently.

Fifth Circuit Reverses Trial Court and Says Title VII Covers Lactating Moms

By Stearns Weaver Miller on June 3, 2013 Posted in Disability & Leave, Discrimination & Harassment

A little over a year ago we blogged about a Texas federal trial court ruling that Title VII did not cover lactation in the case EEOC v. Houston Funding II, Ltd.. Click here for link to post. Now, the Fifth Circuit Court of Appeals, which has jurisdiction over Texas, has reversed the trial court and issued a landmark decision in finding that interference with lactation at work is a type of sex discrimination covered under Title VII. Click here for Fifth Circuit’s opinion.

The plaintiff, Donnica Venters, took a three-month leave of absence following the birth of her child. During her leave of absence, Venters told her supervisor that she was breast feeding her child and asked if she could use a breast pump when she returned to work. The supervisor said “No” and suggested that she stay home longer. When Venters was released to return to work she called her supervisor and, again, mentioned that she was lactating and asked whether she could use the back room to pump milk. The supervisor responded that the company had already filled her spot. Three days later Houston Funding mailed Venters a termination letter stating that she was discharged due to job abandonment.

Venters filed a charge of discrimination and on her behalf the Equal Employment Opportunity Commission filed a lawsuit against Houston Funding. As discussed in our earlier blog post, the trial court issued summary judgment for Houston Funding finding that lactation or breast pumping is not a type of sex discrimination under Title VII.

The Fifth Circuit disagreed. It analyzed that the Pregnancy Discrimination Act amended Title VII to expand “sex” to include “because of or on the basis of pregnancy childbirth, or related medical conditions…” The court then found that lactation is a “related medical condition” of pregnancy and held that there was “triable evidence from which a factfinder may conclude that Houston Funding violated Title VII by discharging Ms. Venters.”

The court was careful to note that Title VII did not require an employer to offer special accommodations to lactating employees. But, for example, if an employer had allowed break time to non-lactating employees due to a disability unrelated to pregnancy, it might be be obliged to offer a lactating employee a similar accommodation. Regardless of accommodations for other non-lactating employees, current federal law requires an employer to provide break time for an employee to express breast milk and Florida law permits breastfeeding if, for instance, the child is being cared for onsite.

If not doing so already, employers need to be cognizant of these protections for women who are breastfeeding and/or pumping breast milk. The EEOC has recently stated that addressing issues regarding pregnancy-related limitations is one of its national priorities.

DHS Extends Temporary Protected Status for Eligible Salvadorans

By Glenn Rissman on June 3, 2013 Posted in Immigration

Following the extension of Temporary Protected Status (TPS) for certain nationals of Nicaragua and Honduras, the Department of Homeland Security has extended the program for El Salvadorans. Currently, TPS status for qualifying El Salvadoran nationals expires on September 9, 2013. With the extension, Temporary Protected Status for eligible El Salvadoran nationals is extended through March 9, 2015.

TPS is a temporary immigration status granted to eligible nationals of designated countries because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of that country from returning safely or prevent the country from handling their return adequately. There are currently several countries designated for TPS, including Haiti, El Salvador, Nicaragua, and Honduras. Qualified nationals of the designated countries may remain in the United States and are given authorization to work.

El Salvadoran nationals already in TPS status must re-register with DHS during the 60 day re-registration period that runs through May 30, 2013 through July 29, 2013. These individuals can also file Form I-765 application for employment authorization. However, because it is unlikely that they will receive a new Employment Authorization Document (EAD) before the current EAD expires, the DHS has automatically extended the EADs of these TPS registered El Salvadorans for six months, through March 9, 2014. (The EADs would otherwise expire on September 9, 2013.)

Employers may accept the expired EAD card that has been automatically extended for proof of work authorization or continued work authorization through March 9, 2014, for Form I-9 purposes. Employers can recognize the automatically extended EAD because the notation “A-12” or “C-19” will appear on the face of the card under the word “Category.” In the case of qualified El Salvadoran nationals, the EAD will have an expiration date of September 9, 2013. When updating the Form I-9 for a current employee, in Section 1 and in Section 2, the employer should draw a line through the September 9, 2013 expiration date, write March 9, 2014 above the crossed-out expiration date, write “TPS Ext.” in the margin, and date and initial the change. Employers will need to reverify the employee’s work authorization on or before March 9, 2014. The employee may present any List A or List C document to establish his or her continued work authorization. The employer may not specify that the employee present a new EAD as proof of work authorization. When reverifying the employee’s work authorization, employers must use the new Form I-9 and cannot use the expired version of the form.

EEOC Focuses on Plethora of Legal Issues Raised by Employer-Sponsored Wellness Programs

By Stearns Weaver Miller on May 20, 2013 Posted in Legislation & Regulations

On May 8, 2013, the U.S. Equal Employment Opportunity Commission (EEOC) held a meeting with representatives from employers, advocacy groups and insurance providers to discuss issues raised by employee-sponsored wellness programs in the context of the Americans With Disabilities Act and Genetic Information Non-Discrimination Act as well as age, national origin, race and sex discrimination. EEOC Commissioners said that they wanted to explore whether and how the EEOC could provide employers with clarification on the design and implementation of wellness programs consistent with the federal equal opportunity laws.

In providing any such guidance, one Commissioner noted that the EEOC should consider the guidelines for wellness programs established by the regulations for the Health Insurance Portability and Accountability Act and the Affordable Care Act, which permit employers to offer financial incentives to participate in wellness programs. While the meeting is a signal that the EEOC will be reviewing the legal issues involved with employer-sponsored wellness programs, the EEOC has not formally committed to issuing a guidance on wellness programs.

The EEOC is holding the meeting record open until May 23, 2013. If you would like to submit written comments on any issue discussed at the May 8, 2013 meeting, you may do so by email (Commissionmeetingcomments@eeoc.gov) or mail (Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, DC 20507). A copy of the written testimony from the meeting is available online at: http://www.eeoc.gov/eeoc/meetings/5-8-13/.

No Need to Dust Off That NLRB Poster, Yet

By Stearns Weaver Miller on May 10, 2013 Posted in Employment Contracts & Corporate Issues, Labor Law

Earlier this week, the United States Court of Appeals for the D.C. Circuit struck down the National Labor Relations Board’s (“NLRB”) poster rule. In 2011, the NLRB issued a rule requiring private employers (union and non-union) to post a specific notice informing employees of their right to unionize under the National Labor Relations Act (NLRA). See blog post “NLRB Issues Final Rule Requiring Posting of Notice to Employees.” Last year, a federal district court in South Carolina held this rule to be invalid and prevented the NLRB from implementing the rule pending the outcome of that appeal before the Fourth Circuit Court of Appeals.

In National Association of Manufacturers v. NLRB, the D.C. Circuit held that the NLRB did not have the rulemaking authority to require employers to post this notice because employers have the “right not to speak” about unions and compelling them to do so would violate the NLRA. It is possible that the NLRB will seek an en banc review of the D.C. Circuit or appeal the decision to the United States Supreme Court but in the meantime you can keep that NLRB poster filed away.

Manna From Heaven? – NLRB Has Provided Confidentiality Language That Complies With the Law

By Stearns Weaver Miller on May 3, 2013 Posted in Employee Handbooks & Policies, Labor Law

Employers, union and non-union alike, have been spinning their wheels every time the NLRB comes out with a new case, general counsel memorandum or advice memorandum slamming a generally accepted employment policy. This past year, we have seen the NLRB take on social media policies, collective action waivers, at-will disclaimers and confidentiality rules. This time, the NLRB has provided “approved” language for a confidentiality rule in response to its Banner Health ruling in July that invalidated an employer’s blanket confidentiality rule and required instead a case-by-case analysis on whether employers can instruct employee-witnesses to not discuss the subject matter of an ongoing internal investigation. See Employers Beware: NLRB Says Your Confidentiality Rules And At-Will Employment Disclaimers May Violate The Law.

In its Advice Memorandum, the NLRB found that the employer, Verso Paper, had an overly broad confidentiality rule because it prohibited employees from discussing any ongoing investigation. This, the NLRB said, could reasonably chill employees in the exercise of their Section 7 Rights, which includes discussing working conditions. The NLRB reiterated its position in Banner Health that for an investigation to be confidential an employer must make a case-by-case determination that employee-witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated or there is a need to prevent a cover up. The NLRB provided a modification of Verso Paper’s confidentiality rule that would comply with the law:

Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Manna from heaven? Not exactly but thank you, NLRB, for some specific direction on drafting lawful employment policies.