The Equal Employment Opportunity Commission (” EEOC”) on July 14, 2014 issued an Enforcement Guidance on Pregnancy Discrimination   The document, which was not published for public comment prior to its release, purports to provide guidance regarding the Pregnancy Discrimination Act (“PDA”) and the Americans With Disabilities Act (“ADA”) as it applies to pregnant workers.  The fact that the EEOC issued this guidance is not surprising given its inclusion of pregnancy discrimination as one of the priorities outlined in its Strategic Enforcement Plan.  This is the first such guidance issued by the EEOC since 1983.

The document is extensive and covers a number of issues. One of the primary areas of focus is likely to be the EEOC’s position that the PDA requires employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy, even if the employee does not qualify as disabled or is not regarded as disabled under the ADA.  This particular issue is also the subject of acase recently accepted by the United States Supreme Court, Young v. UPS.

Other highlights of the guidance include the following:

-The PDA prohibits discrimination based on current pregnancy, past pregnancy, potential or intended  pregnancy, and medical conditions related to pregnancy or childbirth.

– Employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and /or pregnancy. Employers can also violate Title VII , by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.

– There are various circumstances in which discrimination against a female employee who is lactating or breast feeding can implicate Title VII.

– Title VII, as amended by the PDA, requires employers to provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions. Liability can result from the conduct of a supervisor, coworker or non-employee, such as a customer or business partner over whom the employer has some control.

The guidance also contains the EEOC’s recommended best practices for avoiding unlawful discrimination against pregnant workers and those otherwise covered by the PDA. For the most part, the guidance is consistent with existing law, but certain provisions, particularly those related to the use of contraceptives and providing accommodation to all pregnant employees regardless of disability status, are likely to stir up controversy and require future examination by the courts.

 

Coach, Inc. is the latest company to be sued for alleged misclassification of employees as unpaid interns.  I just wrote about the trend in these class action lawsuits for the Union Leader’s Know The Law.  These cases are often high profile because they involve a large number of former and current interns seeking monetary relief against a company for violations of labor practices.  With this new lawsuit, the trend continues.

In that action, ex-intern, Johnetta Campbell, has alleged she was misclassified as an intern when she worked in Coach, Inc.’s Manhattan Office from January 2012 through March 2012.   She contends she worked five days each week, routinely five to eight hour days.  During that time, she created trend boards, “researching new trends or fabrics, working in the warehouse, and other similar tasks necessary to the operation” of the business.  She seeks minimum wage compensation for all hours worked during that time as well as liquidated damages under state law for herself and all similarly situated employees.

While NY’s law for internships is different from the Fair Labor Standards Act (US Department of Labor), this recent case is another reason companies should carefully review their internship programs to confirm compliance under the law.  For more information, visit dol.gov/whd/regs/compliance/whdfs71.htm.  New Hampshire law is similar to federal law in the restrictions it places on unpaid internships at for-profit businesses and more school-to-work facts can be obtained at nh.gov/labor/faq/school-to-work.htm.

The US Supreme Court recently found President Obama lacked the authority to make 3 recess appointments to the National Labor Relations Board in January 2012.  It held the appointments invalid because the Senate was not in a “recess” at the time but rather was holding pro forma sessions every three days for weeks in a row.  NLRB v. Noel Canning (6/26/2014).

In Noel Canning, the Supreme Court unanimously affirmed a federal appeals court decision finding an NLRB order against an employer invalid because the board lacked a quorum.  Because the recess appointments in 2012 violated the Constitution, 3 of the 5 members of the board had no authority to act.  The decision followed the Supreme Court’s earlier ruling in New Process Steel LP v. NLRB, 130 S. Ct. 2635 (2010), where it held the NLRB board cannot act with fewer than 3 members.

How this decision will impact other NLRB decisions remains to be seen.  NLRB Chairman Mark Gaston Pearce issued a statement indicating that they are ” analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.”   About 700 published and unpublished NLRB decisions were issued between January 2012 and August 2013 by votes of the recess appointees.  Some of those decisions modified or overruled prior precedent, including the Banner Health System case restricting general confidentiality requirements during internal investigations, which my colleague Charla Stevens discussed in an earlier post.

It is expected that many who lost a case during that time period will ask to be reheard.  Some predict, however, that the Democratic majority on the current Board may not result in any changes of opinions.  And other decisions made by those recess appointees – for example any regional director appointments or authorizations given to General Counsel – will likely be challenged as well.

At issue in Noel Canning was the interpretation of the US Constitution’s recess-appointments clause.   The clause, in Article II, reads:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

While unanimous in finding the appointments invalid, the Court divided 5-4 on defining the powers of a president to make recess appointments that normally require the consent of the Senate.  Justice Breyer who wrote the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan found that the president may make appointments without Senate confirmation during recesses but cannot act during Senate recesses of less than three days, and “presumptively” cannot make a recess appointment during a recess of less than 10 days.  Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, wrote a concurring opinion and argued that the language only allows recess appointments between Senate sessions and then limited only to vacancies that arise during the recess between Senate session in which they are filled.

At this point, we will wait and see what happens to the decisions made in that 20 month period.

 

DOMA’s defeat in the United States v. Windsor continues to have a ripple effect when it comes to other federal regulations. On June 20, 2014, the Department of Labor (DOL) issued a proposed rule that would extend the protections of the Family and Medical Leave Act (FMLA) to all eligible employees in legally-recognized same-sex marriages, regardless of where the employees live.  The proposal is in light of the Supreme Court’s decision in United States v. Windsor, which struck down the Defense of Marriage Act’s provision that limited “marriage” to opposite-sex unions and “spouse” to individuals of the opposite-sex who are married for purposes of federal law.  DOL’s proposed change would expand the FMLA’s definition of “spouse” so that it applies to an employee legally married in any state (the so-called “state of celebration” rule), as opposed to the state in which the employee resides (“state of residence” rule). Continue Reading DOL Proposes Rule Aimed At Expanding FMLA Coverage for Same-Sex Couples

The New Hampshire Legislature passed HB 1407 which will prohibit employers from obtaining an employee’s personal social media account user name and password. The bill passed both the House and the Senate. The governor is expected to sign it into law.

This bill applies to both employees and prospective employees for employment. Employers found to be in violation will be subject to the penalties under RSA 273:11-a, including a fine of up to $2,500 per violation.

HB 1407 does not prevent an employer from monitoring company equipment and email, adopting workplace policies on the use of employer property (including Internet use, social networking site use or electronic mail use), or requesting disclosure of login information where the social media account is paid for by the employer or provided to employee as part of employment relationship.

Also, nothing in the bill prohibits an employer from: (a) Obtaining information about an employee or prospective employee that is in the public domain; or (b) Conducting an investigation: (1) To ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct based on information about activity on an employee’s personal account or service received from an employee or other source; (2) Of an employee’s actions based on the receipt of specific information about the unauthorized transfer of an employer’s proprietary information, confidential information, or financial data to a personal online account or service by an employee or other source.

Once signed into law, NH will join over a dozen other states with laws limiting an employer from requiring or obtaining passwords to personal social media accounts of employees.

 

The New Hampshire Commission for Human Rights has released data on discrimination charges filed by employees in 2013.  Last year, the Commission received 222 discrimination charges against employers.  This number was slightly down from the year before at 257.  Retaliation across all categories topped the list at 93 claims.  Following closly behind with 89 charges was disability discrimination.  There were 64 claims based on sex discrimination and 31 claims based on age.  Of the sex discrimination claims, the charges included 17 gender, 36 harassment, and 11 pregnancy.

The Commission found probable cause to proceed with a hearing in 3 cases — 2 for disability discrimination and 1 for sex (pregnancy) discrimination.   No probable cause was found in 37 of the cases.  Additionally, 13 cases were removed to federal court; 34 were removed by the complainant to state court and 2 were removed by the respondent to state court.  The Commission closed 199 cases in 2013.

With the report of these statistics, it is a good time for employers to review, redistribute, and reinforce their anti-harassment and non-discrimination policies to all employees.  Employers should confirm their handbooks cover all protected categories under federal and state laws.  Companies should also provide training for employees on their nondiscrimination and anti-harassment policies.  Supervisors and managers need to be trained on the policies as well as receive an overview of the laws relevant to the workplace.  All of these steps can help companies safeguard against liability for harassment and discrimination in the workplace.

An administrative law judge (“ALJ”) writing on behalf of the National Labor Relations Board (“NLRB”) reviewed the social media/on line communications policy of The Kroger Co. of Michigan, a retail grocery chain, in the context of an unfair labor practices complaint.  In the decision issued on April 22, 2014, the ALJ ruled that portions of Kroger’s policy were unlawfully broad and in violation of Section 7 of the National Labor Relations Act.

 What was the offending language?

If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.”

It is fairly common for employers to establish policies requiring that employees use disclaimers of this nature when posting on line.  The ALJ, however, stated that “there is no question but that this rule implicates much Section 7 activitiy.  While not all work-related information is potentially protected by Section 7, a great deal of it is.”

The ALJ conceded that an employer has a legitimate interest in stopping unauthorized employees from speaking on behalf of the company and even from being perceived as speaking on behalf of the company.  He determined that in evaluating the employer policy, it was necessary to consider what the risk is that, in the absence of a disclaimer, section 7 activity, i.e. discussing the terms and conditions of employment, would be mistaken for employer sanctioned speech.  The ALJ concluded that a disclaimer is problematic under the Act if it is likely to chill legitimate and protected employee speech.

In striking down the disclaimer language the ALJ stated that “Given the breadth of online communications to which the rule applies, it would be extremely burdensome to have to post the disclaimer in each instance or on each new page, and this would have a reasonable tendency to chill Section 7 activity in this regard.”  The Decision itself is worth the read in that it gives startling insight into the reasoning of at least this one ALJ.

The question of whether obesity meets the definition of a “disability” under the Americans with Disabilities Act (“ADA”) has received significant play over the past few years.  The issue first emerged in 2011 when the EEOC filed suit on behalf of the estate of a very obese woman who was terminated from her employment with a long term residential treatment facility for chemically dependent women. Lisa Harrison had filed a charge of discrimination with the EEOC claiming her termination was as a result of the defendant “regarding” her as disabled due to her obesity.  She passed away shortly after the termination; the cause of death was listed as “morbid obesity” and also listed hypertension, diabetes and congestive heart failure as significant conditions contributing to her death. The EEOC filed a Motion for Summary Judgment in 2012 requesting that the court find as a matter of law that it had established a prima facie case of disability.  The court found that Lisa Harrison was indeed “disabled” under the ADA.

In  August 2013 the American Medical Association announced a change in the classification of obesity from a “condition” to a disease, further opening the door to possible claims by employees under the ADA.  According to the Centers for Disease Control and Prevention one third of Americans fall under the definition of obese, 30 pounds over the recommended weight for their age, gender and weight. Claims under the ADA include discrimination (failing to hire or promote), harassment (disparaging comments about weight) and failure to accommodate (different furniture, time off).

Now, a Missouri federal judge just last week denied the motion to dismiss  of a car dealership whose former employee claimed he was fired for his weight.  The court found that the employee had produced sufficient evidence that he is disabled within the meaning of the ADA.   Attorneys for the company had moved to dismiss the case, arguing that obesity was not a disability and citing language from an EEOC guidance stating that “except in rare circumstances, obesity is not considered a disabling impairment.”

The court rejected that argument, reminding the litigants that the lanuguage at issue predated the Americans with Disabilities Act Amendments Act of 2008, which “rejected the unduly restrictive approach” to determining whether a plaintiff suffered from a disability. The judge refused to dismiss the case because “plaintiff has sufficiently pled a claim that he is disabled within the meaning of the ADA.”

Employers should keep these developments in mind when making employment related decisions concerning employees who might meet the AMA definition of obese.

Perhaps one of the biggest and most unexpected pieces of news for employers came on March 13, 2014 when President Obama signed a memorandum instructing the USDOL to undertake its first overhaul of the FLSA since 2004.  The agency is charged with the responsibility to update the regulations of who qualifies for overtime pay.  The FLSA requires employers to pay employees at least minimum wage for each hour worked and at a rate of time and a half the regular rate of pay for each hour over 40 unless the employee qualifies as exempt.

Exemption is determined based on whether an employee meets the criteria set out in certain “white collar exemptions” which take into account both the salary and the duties of the individual.  The memorandum focuses first on increasing the salary threshold of $455 per week for the salary-basis test to account for inflation.  It then suggests that the executive, administrative and professional exemptions should be reviewed to determine whether the second aspect of the test for exemption, the primary duties test, should be revised.

The thinking is that the so-called “white collar” exemptions which were originally meant for highly compensated employees with the power to negotiate favorable salaries and benefits for themselves should not apply to workers earning as little as $23,660.00 per year.  This review is likely to have significant implications for businesses, especially small businesses, and employees; and it will be completed without legislative action.  The expectation is that large numbers of currently exempt employees, particularly retail and restaurant managers, will be reclassified.

The Society for Human Resource Management (“SHRM”) on April 30, 2014 sent out a call to its members asking for volunteers to speak on the impact to business when the rulemaking process begins.  The rulemaking is likely to begin in the fall with the expectation of completion within one year.

Businesses should keep a watchful eye on this process as it unfolds since the impact of the changes is likely to be significant.

Again in the spotlight, the National Labor Relations Board punted the ball down field in a ruling that stunned the college sports world.  The NLRB Regional Director, Peter Sung Ohr, ruled last month that the Northwestern University scholarship football players were employees.  As employees, the players may vote to unionize.  The impact of this decision on collegiate sports is significant.

In a 24 page decision, Ohr found the scholarship athletes were employees because they were compensated by the school and under the strict and exacting control of the school.  Ohr’s decision highlighted the substantial amount of revenue the players bring into the university and the benefits they add in allowing the school to have a national reputation.  He found the monies received by the players in scholarship were not for financial aid to attend the university but instead to pay them for playing football.  Ohr also spent time reviewing the hourly and daily control the university has over the players’ lives, which he found was the type of control you would see an employer have over an employee.  He noted that the players adhered to schedules for workouts, practices, meetings, and studies; the players were subject to special rules; the players needed approval for living arrangements and time spent off campus; Ohr also noted the 40 to 50 hours per week devoted by the players to football-related activities.

Ohr distinguished the facts in the football player matter from those in Brown Universtiy, 342 NLRB 483 (2004).  In Brown University, the NLRB found that graduate student assistants were primarily students and not employees.   Ohr held that contrary to the graduate assistants, the scolarships for football players at Northwestern were not primarily for their roles as students or for a core element of their education.  He also noted that the football players were not overseen by  members of the academic faculty.

Finding the scholarship football players employees, Ohr ruled that the players shall conduct an election by secret ballot to vote on whether the players desire to be represented for collective bargaining purposes by the College Athletes Players Association (CAPA).  An election is set for April 25th.

Taking the ball and running with it up the field, Northwestern appealed the decision to the full NLRB Board in Washington, DC, by the April 9th deadline.  On appeal, Northwestern alleges a host of errors by the Regional Director, including, inter alia, that the NLRB ignored the Brown University precedent, relied too heavily on the testimony of one athlete, and ignored key evidence supporting the student activities of the athletes during the year.  Northwestern contends that there was overwhelming evidence that its football program is “fully integrated with its academic mission, and that it treats its athletes as students first.”

Whether Northwestern returns the ball to the end-zone and successfully over-turns the decision or is stopped short of it, it appears this case is headed to the United States Supreme Court.