Legal Briefs for HR - January 2012

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 HR professionals, in-house counsel and business owners all over the U.S. to help them stay in the know about employment issues.  Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in!  Back issues are posted at www.munckcarter.com under Media Center/Legal Briefs.   I look forward to speaking at the January 18 lunch meeting of the SMA, a special interest chapter of SHRM, at the Prestonwood County Club.  For info on the meeting and to register, go to www.dfwsma.org.

 

Out with old and in with the new!

 

1.             Posting Date Pushed Back (Again)– On Dec. 23, the NLRB announced it was again pushing the deadline for employers to display a new employee rights poster, to April 30, 2012, in order “to facilitate the resolution of the legal challenges that have been filed with respect to the rule.” During a hearing of legal challenges made by employer organizations, the judge suggested the Board might want to do this and they complied.

 

2.             Heads’ Up, Government Contractors – You may want to read and comment on an OFCCP NPRM published on Dec. 9 and having a comment period that runs until Feb. 7, 2012.  Proposed revisions to the Rehab Act include requiring covered federal contractors and subcontractors to set a hiring goal of having 7% disabled workers in each job group, initial and annual issuance of invitations to self-identify using new OFCCP-provided language, new record-keeping requirements relating to disabled applicants and employees, formal accommodation policies and procedures, expanded outreach for recruitment purposes and annual review of HR processes and job descriptions.  FYI, the 7% hiring goal was derived from census data which estimates that 5.7 % of the U.S. population has a disability as defined by the Census Bureau’s American Community Survey and that disabilities are defined more broadly under the Rehab Act, so 7% sounded good to OFCCP. To comment, just go to www.regulations.gov and put OFCCP in the Search box.

 

3.             No Diploma, No Worries –In response to a query from the State of TN, the EEOC opines that the lack of a high school diploma for a job that requires one is not always a bar to employment, where the individual could not complete end-of-course assessment or “gateway” test due to a learning disability, resulting in the denial of a diploma.  Under the ADAAA, the prospective employer must [1] prove that a high school diploma requirement is justified by business necessity; and [2] even if the requirement is justified, it must prove the applicant cannot perform the job, with or without reasonable accommodation of the disability.

 

4.             No Kidding!– There’s an interesting article in the January 9 edition of Business Week, suggesting that states may be inclined to relax their child labor laws and pointing to two states which already have, Maine and Wisconsin.

 

5.             Companionship Exemption Under Fire– In 1975, the DOL created an exemption to the FLSA’s minimum wage and overtime requirements for employees who were “employed in domestic service employment to provide companionship services for individuals who, because of age or infirmity, are unable to care for themselves . . . .”  Based on a perception that individual wages are out-of-step with industry profits, DOL proposes to narrow the scope of that exemption.  One way is to limit the exemption to individuals who are directly employed only by the individual, family or household who uses the services, and there is no end-run around this requirement by claiming a joint employer relationship between the caregiver and a third party employing entity.  Another way is to limit the type of services that fall within the exemption to “fellowship and protection” which means going on walks, watching TV together and some incidental help with dressing and grooming.  Expressly excluded are general household work such as vacuuming and doing laundry and personal care (e.g., dressing, grooming) which exceeds 20% of all hours worked.  The comment period on this proposed regulation remains open until February 27 and comments can be made via the e-rulemaking portal at www.regulations.gov.  Comments on this issue should be labeled RIN 1235-AA05.

 

6.             Teachable Moment– A teacher has no ADA claim because she cannot meet the minimum obligations for her desired job and is therefore not a “qualified individual” per the 9^th Circuit.  The story begins with a special ed teacher in Idaho who has bouts of depressions and bipolar disorder.  She did not have a state-mandated teaching certificate for the next school year, in part because she suffered a “major depressive episode” during the summer when one would normally take the three semester hours of professional development needed to attain the certificate.  Her beef was that the school district did not apply for a provisional authorization from the State and she characterized this as a failure to accommodate her disability.  The Court disagreed, noting that the EEOC’s regulations define a “qualified individual as a disability” as one who [1] satisfied the requisite skills, experience, education and other job related requirements of the employment position such individual holds or desires; and [2] who, with or without reasonable accommodation, can perform the essential functions of such position.  The Court observed that the accommodation requirement applies to only part [2] of the definition, which shows the EEOC did not intend to require employers accommodate individuals in satisfying part [1].  The duty to accommodate only applies if the person satisfies those prerequisites.  Johnson v. Board of Trustees of the Boundary County School Dist. (9^th Cir. 12-11).

 

7.             Tick Tock– The new year is a great time to revisit your time-keeping procedures for FLSA nonexempts and make sure they are being paid properly.  Call centers have been the focus of DOL investigations for several years and a recent settlement shows they are not finished in their quest.  Hilton Reservations Worldwide LLC dba Hilton Reservations and Customer Care is paying $715, 507 to 2,645 current and former employees because the time they spent prior to scheduled shifts booting up their computers, opening work-related programs and reading relevant emails was “off the clock.”  The workers were in four locations around the U.S., including one in Carrollton, TX. Other call center employers have been tagged for the exact same mistake, so listen and learn.

 

8.             That’s Sick– Sniffle season is upon us and employees will proffer all sorts of reasons for staying away from work. To compare notes and read a list of the most unusual excuses for missing work, check out the October 2011 list on careerbuilder.com.  Personal favorite?  A deer bit the employee during hunting season.  You go, Bambi!  For plain silliness, consider the dude who had a fake obituary on his mom published because he was afraid he would be fired for taking time off from work without that excuse.  Guess he forgot that he could be fired for telling a lie, too.

 

9.             That’s Heavy– A district court in Louisiana  relied on the EEOC compliance manual in holding that severe obesity is an ADA disability, whether or not there is an underlying physiological cause for the condition.  The decision arose in denying the employer’s motion for summary judgment and is troubling since the employee told the EEOC that she was not disabled (“organization treats me as if I am disabled”). EEOC v. Resources for Human Dev. Inc., (E.D. La. 12-11).  The EEOC is proceeding to trial, on behalf of the estate of the deceased 527-pound employee, claiming she was fired due the perception of disability and a failure to accommodate her disability.

 

10.           Stated Differently– Here are some hot topics for you multi-state employers:

1.     Massachusetts– A Florida-based sales rep sued his Massachusetts employer for unpaid commissions, expenses and accrued vacation under MA’s Wage Act, and won (including automatic trebling of damages resulting from any violation).  The court first noted that the law contains no language limiting its scope to residents of MA or otherwise addressing the location of the employer or the employee.  The court then looked at the employee’s “regular and sufficient contacts” with MA, to include multiple trips to the HQ in MA, many customers in MA, his use of the HQ business address, telephone and fax numbers in his dealings with customers, daily communication with his boss in MA and the MA HQ serving as the nexus for all sales-related paperwork, in determining that MA should apply. 

2.     New Jersey – Employers of 10+ employees must annually distribute the Conscientious Employee Protection Act (CEPA) “Whistleblower Act” notice to employees and post it in the workplace.  There is a new version (dated 8/11), so be sure and go to http://lwd.dol.state.nj.us/labor/forms_pdfs/lwdhome/CEPA270.1.pdf to retrieve it.  It’s available in English and Spanish.

3.     New York – The NY Attorney General announced a new Religious Rights Initiative Project on Nov. 9, 2011 to educate employees and employers about reasonable accommodation of religious needs.  There is a website with a list of rights, a brochure, a complaint form and more at www.ag.ny.gov/bureaus/civil_rights/religious_rights/home.html.  Unlike federal law, NY law requires employers to permit workers to observe holy days unless doing so would cause an undue hardship.

11.           For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State), follow me on Twitter.  I’m at @amross.

 

Until next time,

Audrey E. Mross

Labor & Employment Attorney

Munck Carter LLP

 

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