Recent trends reveal that employment retaliation claims are on the rise. Further, courts are taking a hard line on offending employers accused of retaliation in employment. A review of United States Supreme Court decisions in retaliation cases reveals a remarkable degree of agreement among the Justices. Even conservative Justices who are considered supportive of business as a matter of judicial philosophy do not take kindly to retaliation against employees who have asserted workplace legal claims.
But not in Japan. Arnold Schwarzenegger and Dominique Strauss-Kahn are making headlines they probably wish they had never made. While I’m not a man and can, therefore, only surmise that the root of the problem somehow goes back to The Man Gene, as John Phillips so eloquently calls it, their current woes bring to the forefront issues that some employers – or at least their supervisors – sometimes face but don’t often think about, i.e., what happens when a supervisor either engages in or is accused of sexual harassment. When we are faced with such situations, our focus is usually on the company’s potential liability and what we can do to either prevent or limit such liability. Of course, the best case scenario is to not have such accusations in the first place. And, one of the best preventative measures employers can implement is training. Oddly enough, supervisors tend to think twice about their actions when they are reminded of the consequences, which include not only potential civil liability under some state anti-discrimination statutes and other common law theories, but also the nuclear fallout that often occurs. I’m talking about the hurt caused to their families (even if the accusations prove to be wrong), their reputations, and their jobs (assuming they still have one). Schwarzenegger’s indiscretions may cost him at least two of these things and may now lead to an investigation into whether he used campaign money to pay for women. Strauss-Kahn is on suicide watch, appears to have been dismissed from his high-power position, and may be watching his political career explode. While most of our supervisors may not be in as high-profile positions as these two men, the resulting fallout can be just as devastating. Maybe it’s a good time to remind them. - Karen Smith
And it’s exhibit one to the wage and hour lawsuit that has just been filed against your company. The Department of Labor (DOL) has announced the release of its first smartphone app – a timesheet that allows employees to keep track of their work hours and calculate how much they are owed each workweek. With this app, English and Spanish speaking employees can track regular work hours, break times, and overtime hours not only for themselves but for others. The app is currently compatible with the iPhone, iPod Touch, and iPad, but the DOL is exploring updates that could enable similar versions for other smartphone platforms and that would enable other pay features, such as the inclusion of tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest. For those employees who do not have a compatible smartphone, the DOL has a printable work hours calendar available for use that not only provides employees with a means on which to independently record their work hours but also a primer on what their employers may be doing wrong. Of course, the DOL’s number is included at the bottom.
On March 3, in a Southern Mississippi federal court an HR manager was sentenced to six months home detention in a criminal proceeding that involved violation of federal immigration laws in the employment of undocumented workers. Jose Gonzalez had pled guilty in December 2009 to hiring hundreds of illegal aliens while serving as human resources manager for Howard Industries in Laurel, Mississippi. Although facing up to five years in prison, federal judge Keith Starrett decided home detention was a more appropriate penalty than imprisonment for Gonzalez. He was also fined $4000 for his actions. Howard Industries had already paid a $2.5 million fine for its role in these immigration employment offenses.
The U.S. Supreme Court has weighed in on an awaited decision in a case involving a “cat’s paw” theory of liability. In Staub v. Procter Hospital (http://case.lawmemo.com/us/staub.pdf) the Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”
OSHA announced yesterday (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=19158) that it has temporarily withdrawn from review by the OMB its proposal to restore a column for work-related musculoskeletal disorders on employer injury and illness logs citing the need “to seek greater input from small businesses.”
In February 2003, North American Stainless (NAS) received notice that Miriam Regalado had filed an EEOC charge against it. Three weeks later, NAS fired Ms. Regalado’s fiancée, Eric Thompson. Mr. Thompson thereafter brought a Title VII retaliation claim against NAS in federal court in Kentucky. The trial court granted summary judgment in favor of NAS on the theory that Title VII did not allow “third party retaliation claims.” That decision was ultimately affirmed by the Sixth Circuit Court of Appeals. Earlier today, however, the U.S. Supreme Court reversed the Sixth Circuit and held 8-0 (the majority opinion was drafted by Scalia, with Kagan not participating) that Mr. Thompson’s suit could proceed even though it was not he who had engaged in protected activity under Title VII. A link to the decision is below. Bottom line — In 2006, the Supreme Court adopted a pretty broad standard for what types of employment actions could be retaliatory under Title VII. The Court has now used some of the rationale from that decision to essentially prohibit “associational retaliation.” (more…)
The Bureau of Labor Statistics’ annual report on union membership rates came out yesterday and noted the following “highlights” from this year’s data: (more…)
In recognition of OSHA’s decision yesterday not to reconfigure its interpretation of occupational noise standards (http://www.youtube.com/watch?v=eZGWQauQOAQ) (and since we played hooky from the blog during our snow sabbatical), we have an unprecedented “threefer” for you.
With a nod to the recently filed whistleblower lawsuit featuring Lane Kiffin, we have a twofer for the HR Song(s) of the Week.
This week the United States Department of Labor is hosting a series of Q&A sessions regarding its “Plan/Prevent/Protect” regulatory agenda via webcast. (Here’s the link to the schedule: http://www.dol.gov/regulations/.) While all of this may seem wonky (and it is), everyone needs to start paying attention to items like the Office of Labor-Management Standards’ plans to issue a rule to narrow the application of the “advice exemption” of the Labor-Management Reporting and Disclosure Act (i.e., an effort to require more disclosure of employer spending with outside consultants on union avoidance). As they say, the devil is in the details.
The EEOC’s final regulations for the Genetic Information Nondiscrimination Act have been out for a bit- (http://edocket.access.gpo.gov/2010/pdf/2010-28011.pdf). However, we just found this clip:
The NLRB is proposing that all private sector employers subject to the National Labor Relations Act post notices advising employees of their rights under federal labor law (http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2806.pdf). The comment period for this proposed rule is 60 days.
Lafe Solomon, the NLRB’s Acting General Counsel, has just issued a memorandum regarding “Effective Remedies in Organizing Campaigns.” We’ll leave it for you to decide whether this represents the labor law equivalent of Newton’s Third Law (http://en.wikipedia.org/wiki/Newton’s_laws_of_motion) or the administrative equivalent of “the Chicago way” (http://www.youtube.com/watch?v=2ScvAJG51V4). Either way, the announcement that the Board may seek remedies such as union access to employer’s premises, bulletin boards, and e-mail systems or “notice reading” (i.e., actually forcing a manager to read a Board notice of what the employer did wrong to affected employees) will generate some heated discussion in the labor law world. Moreover, Mr. Solomon has given us a reason to bring back the HR Song of the Week:
As part of its stepped-up enforcement process, the EEOC has recently filed a lawsuit under the ADA stemming from an employer’s administration of an alcohol test to an employee. http://www.eeoc.gov/eeoc/newsroom/release/10-5-10.cfm .Challenging the practice of U.S. Steel to administer random breath analysis tests to probationary employees, the EEOC takes the position that such tests run afoul of the Americans with Disabilities Act. Consistent with prior EEOC guidance materials (http://www.eeoc.gov/policy/docs/medfin5.pdf), the Commission takes the position that alcohol tests are medical tests and are therefore limited by the ADA. The facts of the U.S. Steel case appear somewhat tilted against the employer in that the employee allegedly had a medical condition that caused a false positive test result – a fact borne out by a confirmatory blood alcohol test. Given that the ADA does not protect employees under the current influence of drugs or alcohol, the policy issues involved in this debate may prove interesting.
Litigation under the FLSA continues to spread like a cold in a daycare. To further add to our concerns, Congress is entertaining yet another way for employers to find themselves in trouble for wage-hour violations. While the penalties under the FLSA for the misclassification of an employee as an independent contractor can quickly become expensive with backpay, liquidated damages and attorneys’ fees, the proposed “Employee Misclassification Prevention Act (EMPA) may add further salt to the wound. In its present form, EMPA would impose penalties of $1,100 for an initial misclassification, and take that penalty to $5,000 for persistent or willful violators. These penalties are on top of those allowed under the FLSA for any unpaid overtime. EMPA also proposes to add further civil penalties for recordkeeping violations and create a presumption that an employer’s inadequate records the finding of an employment relationship rather than independent contractor status.
With the NLRB recently issuing a complaint, http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2794.pdf, against a Connecticut employer for terminating an employee for posting comments on Facebook (or maybe its because a lot of HR Departments have been watching ”The Social Network,” http://www.thesocialnetwork-movie.com), many employers have been asking whether they need a social media policy or whether they need to change existing policies. (Of course, some employers are still asking, “What is social media?” and “Doesn’t ‘twittering’ violate our sexual harassment policy?”)
I’ve borrowed Garrison Keillor’s sign-off from his Writer’s Almanac as a way of bidding farewell for a while. It’s hard to imagine life without blogging, but I’ll just have to get used to it. I’ve been asked to become General Counsel and Vice President of Human Resources of the newly created CraftWorks Restaurants and Breweries, Inc.
According to the author of this article, as employers cut perks that cost money, they’re looking for new perks that don’t cost money. Some employers are now allowing employees to bring their pets to work. There can be problems with such a perk, but a stressed employee will have a friend with him or her everyday to help alleviate the stress. If this becomes a significant trend, employers may decide to further cut costs by replacing employees with animals. And that’s when the Animal Employment Protection Act comes into play.