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Q: Does the passage of the ADA Amendments Act of 2008, which went into effect on January 1, 2009, diminish the importance of having detailed, well-written job descriptions for the purpose of helping employers defend against claims brought under the Americans with Disabilities Act (ADA)?
A: No. In fact, the passage of the ADA Amendments Act of 2008 (ADAAA) greatly increases the importance of job descriptions. The Americans with Disabilities Act (ADA) protects qualified individuals with a disability only if they can perform the essential functions of the job with or without a reasonable accommodation. Individuals who cannot perform the essential job functions are not considered qualified individuals with a disability under the ADA, and therefore are not protected by it. Thus, determining a job's essential functions is critical in determining whether an individual who is applying for or occupying a particular position is protected by the ADA. Despite the significance of this determination, the ADA gives employers considerable discretion in determining which functions are essential to a position. Specifically, the ADA provides that "consideration shall be given to the employer's judgment as to what functions of a job are essential." Moreover, the ADA provides that "if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job."
Given these provisions, job descriptions have always served as a first line of defense against ADA claims. However, the passage of the ADAAA has made job descriptions even more important because the issue of whether an individual is disabled under the ADA "should not demand extensive analysis." Prior to the ADAAA, employers have generally succeeded in arguing that an individual's impairment does not qualify as a disability under the ADA. Since employers may be limited in making this argument under the ADAAA, establishing that an employee is unable to perform the job's essential functions takes on even greater significance when defending against ADA claims. Thus, employers who fail to prepare detailed, well-crafted, and up-to-date job descriptions may not be able to avail themselves of the defenses afforded by the ADA in the context of essential job functions. Therefore, employers should commit the time and effort to drafting such job descriptions for all positions.
Learn more about the ADA in our course "Understanding the ADA, Ed. 4," recently updated to include changes to the law brought about by the passage of the ADAAA.
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Q: Our company, which is subject to the Americans with Disabilities Act, is in the process of adjusting our internal policies and procedures to comply with the ADA Amendments Act of 2008 (ADAAA). Does the ADAAA provide employers with a grace period to work out potential issues before an employer may be held liable under the law's new requirements?
A: No. The ADA Amendments Act of 2008 (ADAAA), which was signed into law on September 25, 2008, will take effect on January 1, 2009. The ADAAA does not contain a grace period or any other safe-harbor provision; thus, all covered employers will be required to comply with the ADAAA beginning on January 1, 2009. Generally, an amendment to an existing law increases the possibility of liability against those who fail to adequately prepare for the change. However, in the context of the ADAAA, the consequences for failing to anticipate the breadth of the changes could be severe because the ADAAA expands the scope and applicability of the ADA in several respects.
The underlying theme of the ADAAA was Congress' disappointment with the manner in which courts, specifically the U.S. Supreme Court, have improperly narrowed the broad scope of protection originally intended by the ADA. To that end, the ADAAA expressly overruled several U.S. Supreme Court opinions that limited the scope and applicability of the ADA. Further, the ADAAA expands the scope of the ADA by providing that the definition of 'disability' is to be construed in favor of broad coverage of individuals to the maximum extent permitted by law. The ADAAA also expanded the list of 'major life activities' and relaxed the 'substantially limits' requirement. These specific changes, coupled with Congress' directive that courts interpret the ADA broadly, will likely increase the number of people protected by the ADA. Consequently, the number of alleged ADA violations is also likely to increase. Therefore, employers must take care to be compliant with the ADAAA as of January 1, 2009.
To learn more about the ADAAA, read this article about the new law by a member of our Risk Management Group.
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Q: One of my employees was recently diagnosed with a form of epilepsy that makes it unsafe for him to drive his delivery truck. Does this employee’s inability to drive due to his epilepsy entitle him to protection under the Americans with Disabilities Act?
A: No. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with a disability. The ADA, which generally applies to employers with 15 or more employees, defines disability as a physical or mental impairment that substantially limits one or more major life activities. Under this definition, protection under the ADA hinges on whether an individual’s ability to perform a major life activity is substantially limited by the impairment. The regulations interpreting the ADA state that major life activities are those basic activities that the average person in the general population can perform with little or no difficulty, including caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not intended to be exhaustive.
In this situation, determining the employee’s eligibility for protection under the ADA requires a determination of whether driving is considered a major life activity. Recently, the Tenth Circuit Court of Appeals joined the Second and Eleventh Circuits in holding that, despite its importance in today’s society, driving is not, in and of itself, a major life activity. Accordingly, it does not appear that the individual in this situation is protected by the ADA. However, the recently passed ADA Amendments Act of 2008 may compel courts to rule differently on this issue when it becomes effective on January 1, 2009 because the list of major life activities has been expanded. Until the ADA Amendments Act undergoes judicial interpretation, however, it will be difficult to gauge the precise scope and impact of the amendments. Thus, it would be wise for employers to familiarize themselves with the new law by consulting a licensed professional.
Learn more about the expanded scope of the ADA by reading our article The ADA Amendments Act of 2008: Another Effort to Eliminate Discrimination Against the Disabled.”“
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Q: Our company, which has offices in 11 states, has received numerous inquiries from employees regarding our time-off policy for the purpose of voting in the upcoming general election. Is there a single law with national applicability that governs how employers must accommodate employees wishing to take time off from work to vote?
A: No. Although a citizen's general right to vote is established by federal law, the manner in which employers must accommodate employees wishing to take time off from work to vote is governed by state law. Unfortunately, since states are left to establish their own voting accommodation standards, there are significant differences in how employees may exercise their voting rights. For example, the time allotted to employees wishing to vote can vary from Nevada's "sufficient time," to Ohio's "reasonable time," or to Alabama's "one hour." Although Minnesota's statute does not set an express limit on the amount of time that an employee can take off to vote, it does provide that an employee has the right to be absent from work for the purpose of voting "during the morning of the day of that election." In some states, if the polls are open for a minimum period of time before the employee's regular shift begins, or if they remain open for a minimum period of time after the employee's shift ends, then the employee is not entitled to time off from work to vote. For example, in Georgia, an employee does not have the right to vote during his or her work hours if the polls are open for at least two hours before or two hours after the employee's regular work hours.
Other relevant issues include whether employees must be paid for the time they take off from work to vote and whether employees must give employers notice before taking time off to vote. However, some states have not enacted any laws addressing an employee's right to take time off from work to vote. Such a lack of uniformity among the states increases the likelihood that an employer will unwittingly violate an employee's right to vote. This is particularly relevant in cases involving employers that operate in several states because these employers may be required to afford their employees different rights depending on the state in which the employees work. Since the right to vote is widely regarded as fundamental, any violation of this right, even if unintentional, may be considered a serious legal infraction. Therefore, employers should consult with a licensed attorney before implementing a policy on an employee's right to take time off from work to vote.
Make sure your managers and supervisors are properly educated on employee rights by training them with our online course, "An Overview of Employment Liabilities."
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Q: We recently hired a full-time employee to assist our warehouse manager, who earns a salary of $500 per week, supervises and directs the assistant's work, and has the authority to report on the assistant's performance to management. Since our warehouse manager now supervises an employee, can we classify him as exempt from the Fair Labor Standards Act's overtime pay requirements?
A: No. Subject to specific exemptions, the Fair Labor Standards Act (FLSA) is the federal law requiring that employees be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek. One such exemption is the executive exemption, which applies to employees: 1) who are compensated on a salary basis at a rate of not less than $455 per week; 2) whose primary duty is management of the business or of a recognized subdivision of the business; 3) who customarily and regularly direct the work of two or more other employees; and 4) who have the authority to hire or fire other employees or to recommend the hiring, firing, advancement, or promotion of other employees.
Although the employee in this situation appears to satisfy the first, second, and fourth requirements of the executive exemption, he clearly fails to satisfy the third requirement. The warehouse manager directs the work of only one employee, the newly-hired assistant, rather than the required minimum of two employees. Accordingly, the warehouse manager does not qualify for the executive exemption. While in some cases the facts clearly support the conclusion that the employee in question does not qualify for the executive exemption, as in this one, determining eligibility in other situations may require a detailed and fact-specific inquiry. This is especially true in cases in which either an evaluation of the employee's primary duties or of the employee's authority over subordinates is an issue. Employers who improperly classify an employee as exempt when that employee does not in fact qualify for the executive exemption face a much higher risk of being sued for unpaid overtime compensation and stand a much greater chance of losing that suit.
Become well-versed in FLSA guidelines and avoid damaging and costly lawsuits over compensation issues by taking our course "Wage and Hour Regulations: The FLSA."
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Q: Due to the slowing economy, our company has been forced to downsize its workforce in the past two years, and, as a result, we are no longer large enough for our existing employees to qualify for coverage by the Family and Medical Leave Act (FMLA). Should we delete any references to the FMLA from our employee handbook?
A: Yes. The Family and Medical Leave Act (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing eligible employees to take reasonable leave for medical, health, or family reasons. The FMLA normally provides eligible employees with a total of 12 workweeks of leave during any 12-month period. However, the FMLA contains an exception to the statutory definition of "eligible employee" that applies to those employees at worksites where an employer employs fewer than 50 people-but only "if the total number of employees employed by that employer within 75 miles of that worksite is less than 50." This rule, known as the "50/75" provision, is an exception to the FMLA's general eligibility provision, which premises eligibility on an employee's having worked for the employer for at least 12 months and having worked a minimum of 1,250 hours during the previous 12-month period. Accordingly, employees who fall within the 50/75 exception are not entitled to FMLA leave.
However, the Seventh Circuit Court of Appeals recently held that an employee handbook may entitle an employee to FMLA leave even though, as a result of the 50/75 exception, the employee is clearly not eligible for it. The court relied on a provision in the company's employee handbook which stated that "all employees" who were employed with the company for at least 12 months and who had worked a minimum of 1,250 hours during the prior 12-month period were entitled to FMLA leave. The handbook did not contain any reference to the 50/75 exception. Under general contractual and reliance principles, the court held that the employee handbook may be considered a binding promise by the company to give FMLA-like leave benefits using eligibility requirements less restrictive than those in the FMLA. In other words, because of a poorly written employee handbook, the court held that the employee may be entitled to FMLA leave benefits even though he is not eligible for such benefits under the FMLA. If a company does not employ the number of workers required for FMLA eligibility, then the best way to avoid inadvertent extension of FMLA benefits is to remove any reference to the FMLA from the company handbook- after consulting legal counsel.
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Q: Some of my mid-level supervisors have a habit of hastily and inattentively preparing performance appraisals for employees they supervise. Might their carelessness eventually prove harmful if an employee terminated for cause files a discrimination lawsuit against my company?
A: Yes. Several federal laws make it illegal for an employer to discriminate against an employee, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Under such laws, an aggrieved employee may file a lawsuit to recover potentially significant damages from a former employer, and, in some of these lawsuits, the employee's performance appraisals may be the most significant pieces of evidence supporting his or her case. Supervisors who do not take seriously their responsibility to complete performance appraisals properly may place their employers in jeopardy of either losing a discrimination lawsuit or may increase the difficulty of successfully defending against such a lawsuit. If a supervisor automatically gives all employees average or above-average grades and gives little thought to each employee's actual job performance, then a company's assertion that the employee was in fact terminated for cause may ring hollow with a jury. Similarly, if a supervisor routinely gives other employees below-average grades, then the company would be forced to explain to a jury why these employees were not terminated for the same reason as the plaintiff.
By allowing employers to identify which employees are doing a good job, which employees need to improve, and which employees must be terminated for performance-related reasons, job performance appraisals serve an important purpose in any organization. If a supervisor is considering terminating an employee because of poor performance, then appraisals of the employee's work, or other documentation of his or her inadequate job performance, should reflect the poor quality of the individual's work. When supervisors fail to evaluate employees' work honestly and appropriately, they not only set a bad example and damage employee morale, but they also place their organization in greater jeopardy of losing a discrimination lawsuit.
Train your managers and supervisors to evaluate their employees' work fairly and candidly by assigning them our course Establishing Performance Standards: What Standards Work Best for You?"
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Q: Pursuant to the Fair Labor Standards Act's executive exemption, our salaried store managers are not eligible for overtime compensation. One such manager left the store for five hours to run some personal errands without permission. Although she has already been disciplined, may we also deduct her pay to reflect the unexcused absence?
A: No. The Fair Labor Standards Act (FLSA) is the federal law requiring that non-exempt employees be paid overtime compensation for all time worked over 40 hours in a workweek. The FLSA contains several exemptions to the overtime pay requirement, including the executive exemption. One of the requirements of the executive exemption is that the exempt employee be paid on a salary basis. According to the regulations interpreting the FLSA, an employee will be considered as being paid on a salary basis if the employee regularly receives a predetermined amount constituting all or part of the employee's compensation, an amount that is not subject to reduction because of variations in the quality or quantity of the work performed. Significantly, the regulations provide that the employee must receive the full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. The consequences for violating this requirement can be drastic.
An employer who makes an improper deduction from an employee's salary may lose the ability to exempt not only the employee in question but also all employees in the same job classification working for the same manager who made the improper deduction from the employee's salary. As a consequence of making an improper deduction from a salaried employee, the employer may be forced to pay significant amounts of overtime compensation to employees who may not otherwise be entitled to receive overtime pay. There are some limited exceptions that give an employer the right to make deductions from an exempt, salaried employee's pay. One such exemption allows an employer to make salary deductions when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability. However, the exception would not apply in this case because the manager in question missed only five hours, not a full day. The complexity of the rules governing salary deductions, as well as the consequences of improperly doing so, highlights the need for employers to seek professional guidance before implementing a policy of salary deductions.
Avoid costly violations of the FLSA by training your managers and supervisors with our online course, "Wage and Hour Regulations: The FLSA."
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Q: Our outside sales employees travel to prospects' places of business for the purpose of making sales. They are paid strictly on a commission basis and do not receive a fixed salary. Are these employees exempt from the Fair Labor Standards Act's overtime pay requirements?
A: Yes. Subject to specific exemptions, the Fair Labor Standards Act (FLSA) is the federal law requiring that employees be paid not less than time and one-half the employee's regular rate of pay for time worked over 40 hours in a workweek. One such exemption is the outside sales exemption, which applies when: the employee's primary duty is making sales, or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and the employee is customarily and regularly engaged away from the employer's place of business. If an employee satisfies these requirements, then he or she will be exempt from the FLSA's overtime pay provisions.
A unique characteristic of the outside sales exemption is that it does not have a salary requirement, whereas some exemptions, such as the executive or administrative exemptions, require that the employee be paid on a salary basis of not less than $455 per week. Since the outside sales exemption does not contain such a salary requirement, the fact that the employees in this situation are not paid a fixed salary does not call into question their status as exempt from the FLSA's overtime pay provisions.
The recent increase in the federal minimum wage is just one of many provisions of the FLSA that employers need to be aware of. Our online course, "Wage and Hour Regulations: The FLSA," teaches professionals how to correctly apply FLSA regulations in their organization.
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Q: Our organization plans to implement a program that reimburses employees the cost of participating in a smoking cessation program. Although we hope all employees who participate in the program will succeed, their status in our group health plan will not be affected if they continue to smoke. Will this plan violate the Health Insurance Portability and Accountability Act's nondiscrimination provisions?
A: No. The nondiscrimination provisions of the Health Insurance Portability and Accountability Act (HIPAA) generally prohibit group health plans from charging similarly situated individuals different premium or contribution amounts, or imposing different deductible, copayment, or other cost sharing requirements, because of an individual's health factors. Health factors include health status, medical condition, claims experience, receipt of health care, medical history, genetic information, evidence of insurability, and disability. However, there is an exception to HIPAA's nondiscrimination provisions that allows group health plans to offer wellness programs, which are designed to promote health or prevent disease.
Under this exception, if none of the conditions for obtaining the reward under a wellness program are based on whether an individual satisfies a standard related to a health factor, and if participation in the program is made available to all similarly situated individuals, then the program will not violate HIPAA's nondiscrimination provisions. A diagnostic testing program that provides a reward for employee participation rather than the outcome qualifies for the exception because the condition for receiving the reward is not based on a health factor. Similarly, in this situation, the employees receive the reward, whether they succeed in quitting smoking or not. Thus, the condition for receiving the reward is not based on a health factor. Accordingly, this reimbursement program will not violate HIPAA's nondiscrimination provisions.
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Q: After her spouse decided to return to work following the birth of their child, one of my employees requested 12 weeks of leave under the Family and Medical Leave Act (FMLA) to care for her healthy 13-month old daughter. Is my employee entitled to FMLA leave under these circumstances?
A: No. The Family and Medical Leave Act of 1993 (FMLA), which generally applies to employers with 50 or more employees, was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. Under the FMLA, an eligible employee is entitled to take time off from work following the birth of a son or daughter to care for the child. However, an employee's entitlement to FMLA leave following the birth of a child expires at the end of the 12-month period beginning on the date of the birth. This 12-month expiration period also applies to FMLA leave that is taken following the placement of a child for adoption or foster care.
Once the 12-month period expires, this employee would be entitled to FMLA leave to care for her child only if the child suffered from a serious health condition. Since the child in this situation is healthy, the employee in question is not entitled to FMLA leave.
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Q: One of my employees asked for time off to attend Samhain Sabbat, an important Wiccan festival. Given that the employee's beliefs are sincerely held, does Title VII of the Civil Rights Act require me to make a reasonable accommodation for a so-called non-traditional religion such as this?
A: Yes. Title VII of the Civil Rights Act (Title VII), which generally applies to employers with 15 or more employees, requires an employer, once on notice, to reasonably accommodate an employee's sincerely held religious belief, practice, or observance that conflicts with a work requirement, unless providing the accommodation would create an undue hardship on the employer. Title VII defines religion to include "all aspects of religious observance and practice, as well as belief." The Equal Employment Opportunity Commission (EEOC) has interpreted the definition of religion to include not only traditional organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, subscribed to only by a small number of people, or that seem illogical or unreasonable to others. According to the EEOC, a belief is "religious" for Title VII purposes if it is religious in the person's own scheme of things, "i.e., it is a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by...God."
Under this interpretation, employers cannot routinely dismiss requests for religious accommodations simply because the employer does not recognize the proffered belief as a religion. Doing so would violate Title VII's prohibition against discrimination on the basis of religion, which protects the sincerely held religious beliefs of the employee, not the employer.
As the workforce becomes increasingly diverse, employers must take even greater care to avoid policies and practices that might be discriminatory. Get the knowledge and guidance you need by taking our course "Discrimination and Harassment Prevention: Promoting Workplace Diversity without Conflict."
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Q: Do employers have seven days to notify the Occupational Safety and Health Administration of a work-related incident that has resulted in the death of an employee?
A: No. All employers covered by the Occupational Safety and Health Act of 1970 are required to notify the Occupational Safety and Health Administration (OSHA) within eight (8) hours after the death of any employee from a work-related incident. This requirement also applies to any work-related incident resulting in the in-patient hospitalization of three or more employees. Employers must provide this notice by telephone or in person at the OSHA Area Office nearest to the site of the incident. Employers may also notify OSHA by using the toll-free central telephone number, 1-800-321-OSHA. For each incident, an employer must provide OSHA with the name of the establishment; the location of the incident; the time of the incident; the number of fatalities or hospitalized employees; the necessary contact information; and a brief description of the incident.
In addition to notifying OSHA, employers in some states may have additional notification requirements following the death of an employee. For example, in Florida, an employer must report the fatality by telephone or telegraph within twenty-four hours to the Department of Financial Services. In Minnesota, employers have forty-eight hours to report a death or serious injury that occurred during the course of employment to the state commissioner. Given such variations in reporting requirements, employers should consult with a licensed professional in their jurisdiction to determine all applicable reporting requirements before the need ever arises.
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Q: A former employee is currently interviewing for a new job, and the prospective employer is now asking me for a reference. This employee quit during our busiest time of year without giving any advance notice. Is it legally permissible for me to reveal this information to the prospective employer if I am asked about the circumstances surrounding the employee's separation from the company?
A: Yes. There have been many instances in which former employees have sued their former employers for giving a bad or negative job reference to a prospective employer. These cases, which typically include some form of defamation claim, allege that the negative job reference has prevented the former employee from obtaining gainful employment. However, lawsuits brought on these grounds are generally unsuccessful for two reasons. First, although defamation cases are typically governed by a state's common law and are thus subject to inter-state variations, the fact that the challenged statement is true generally remains a valid defense. Second, many states have enacted "reference immunity" statutes that may provide employers with immunity from liability for any consequences flowing from a truthful, good-faith response to a request for a reference.
For example, Indiana's reference immunity statute states that "an employer that discloses information about a current or former employee is immune from civil liability for the disclosure and the consequences proximately caused by the disclosure, unless it is proven by a preponderance of the evidence that the information disclosed was known to be false at the time the disclosure was made." In Maine, the employer is entitled to immunity if the disclosure was made in good faith. Other states, including Florida, Utah, and Pennsylvania, also have some form of reference immunity statute. Despite these protections, many employers maintain a policy of giving very little information about former employees beyond verifying dates of employment. Given the litigiousness of ex-employees vis-à-vis their former employers, such caution is understandable and prudent. Nevertheless, employers wishing to give a good-faith, detailed, and accurate reference about a former employee should consult an attorney to learn which, if any, protections are afforded such disclosures.
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Q: One of my employees has requested a modified work schedule to care for his wife, who was rendered paraplegic by an automobile accident. Am I required to provide such an accommodation under the "association discrimination" provision of the Americans with Disabilities Act?
A: No. In addition to prohibiting discrimination against qualified individuals with a disability, the Americans with Disabilities Act (ADA) also prohibits discrimination against an individual because of his or her association with a disabled person. Specifically, the ADA's "association discrimination" provision makes it unlawful for a covered employer to exclude or otherwise deny "equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." This provision is intended to protect any qualified individual, with or without a disability, from discrimination because that person is known to have an association or relationship with an individual who has a known disability. This protection is not limited to those who have a familial relationship with an individual with a disability.
To illustrate the scope of this provision, the regulations interpreting the ADA provide the example of a qualified applicant without a disability who discloses that his or her spouse has a disability. The employer thereupon declines to hire the applicant because the employer believes that the applicant would frequently have to leave work early or miss work entirely to care for the spouse. Such a refusal to hire would be prohibited by this provision. However, though employers are prohibited from discriminating because of such an association, employers are not required to provide a reasonable accommodation for an applicant or an employee without a disability because that duty applies only to qualified applicants or employees with disabilities. Thus, in this situation, the employee would not be entitled to a modified work schedule or any accommodation enabling him to care for his spouse.
Because ADA applicability is extremely fact-specific, employers need to tread carefully when attempting to satisfy its provisions. For comprehensive training in applying this complex employment law in your workplace, take our course: Understanding the Americans with Disabilities Act.
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Q: When terminating an employee, I try to prevent a negative or humiliating confrontation by giving a neutral reason for the termination rather than stating outright that the actual cause is the employee's poor performance. Might such an approach be harmful if the terminated employee later files a discrimination lawsuit against my company?
A: Yes. Several federal laws make it illegal for an employer to discriminate against an employee, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Under such laws, an aggrieved employee may file a lawsuit to recover potentially significant damages from a former employer. During the litigation process, if an employee makes a preliminary case of unlawful discrimination, then the employer is compelled to articulate a legitimate, nondiscriminatory reason for the termination. At this point, employers routinely assert that poor performance, not inclusion in a protected classification such as race, religion, or age, was the actual reason for the employee's termination. This assertion provides the terminated employee with the opportunity to try to prove that the proffered reason for termination was nothing more than a pretext to conceal the actual reason for the termination.
It is at this point in the litigation that the employer wishes the real reason for the employee's termination had been given at the outset. Why? Because courts have routinely noted that when an employer offers divergent reasons for a termination, the initial reason may have been a pretext for some other reason. Offering multiple explanations for a termination suggests the possibility that none of them are true. One court noted that "a rational trier of fact could find [that] varying reasons show that the stated reason was pretextual, for one who tells the truth need not recite different versions of the supposedly same event." This logic makes it clear that it is unwise to "sugarcoat" the truth when terminating an employee. Although the termination should be done in a professional and respectful manner, employers must give an employee the true reason for the termination. Otherwise, the terminated employee's attorney may one day have reason and opportunity to ask the employer: Were you lying then, or are you lying now?
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Q: It is not uncommon for assistant managers in our organization to spend a considerable portion of their workday performing non-managerial tasks. Will doing so jeopardize their status as exempt employees under the Fair Labor Standards Act's executive exemption and require that they be paid overtime when they work more than 40 hours in a workweek?
A: Yes. Subject to specific exemptions, the Fair Labor Standards Act (FLSA) is the federal law requiring that employees be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek. One such exemption is the executive exemption, which applies to employees: 1) who are compensated on a salary basis at a rate of not less than $455 per week; 2) whose primary duty is management of the business or of a recognized subdivision of the business; 3) who customarily and regularly direct the work of two or more other employees; and 4) who have the authority to hire or fire other employees or to recommend the hiring, firing, advancement, or promotion of other employees. Typically, an employee's title is irrelevant in determining the applicability of the executive exemption.
In a situation in which assistant managers spend a significant part of the workday performing non-managerial tasks, the propriety of exempting them seems to turn on whether or not their "primary duty is management of the business or a recognized subdivision of the business." In determining whether an employee's primary duty is management, courts consider five factors: 1) the amount of time spent performing managerial duties; 2) the relative importance of an employee's managerial and non-managerial duties; 3) the frequency with which an employee may exercise discretionary powers; 4) the employee's relative freedom from supervision; and 5) the relationship between the purportedly exempt employee's wages and the wages paid to other employees performing similar, non-exempt work. These five factors necessarily make determining whether or not an employee qualifies for the executive exemption a fact-specific inquiry. As one court has noted, "when it comes to deciding whether an employee is an executive within the meaning of the FLSA, the answer is in the details." An employee's duties, not title, determine the applicability of the executive exemption, and employers should not automatically assume that all "managers" are exempt from the FLSA's overtime provisions.
Professionals who need help understanding and applying the FLSA can take our online course, "Wage and Hour Regulations: The FLSA," offering both HR Certification Institute and CLE credits.
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Q: One of my employees, a white man, has been harassed and threatened with termination by his supervisor because he is married to an African-American woman. Should I be concerned about potential liability under Title VII of the Civil Rights Act?
A: Yes. Title VII of the Civil Rights Act of 1964 (Title VII), which generally applies to employers with 15 or more employees, makes it unlawful to discriminate against an individual because of such individual's race. Some courts have held that in cases involving interracial marriages, Title VII does not provide any protection because the alleged discrimination is not based on the individual's own race but on the race of such individual's spouse. However, other courts have rejected such a restrictive reading of Title VII, reasoning that, in such cases, the employee suffers discrimination because of the employee's own race. Had the employee been of the same race as his or her spouse, the reasoning continues, his or her marriage would not have been interracial, and, presumably, the employee would not have been subject to discrimination based on race. Noting that Title VII generally proscribes race-conscious discriminatory practices, one federal appellate court stated that "where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race."
Although not all jurisdictions have adopted this position, it would be prudent for every employer to prohibit discrimination against employees for involvement in interracial relationships. Also, given the disparities among jurisdictions on this issue, employers should seek the advice of their local counsel should the matter arise.
Protect your business's reputation and avoid costly litigation by training your employees to work with individuals of all backgrounds with our online course "Discrimination and Harassment Prevention: Promoting Workplace Diversity without Conflict."
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Q: One of my employees, after alleging that a popular supervisor sexually harassed her, has also claimed to have been repeatedly harassed by several coworkers angry at her for filing a complaint against this supervisor, with whom they are friends. Could the coworkers' actions lead to a claim of retaliation under Title VII of the Civil Rights Act?
A: Yes. In addition to prohibiting sexual harassment in the workplace, Title VII of the Civil Rights Act (Title VII) makes it illegal to retaliate against an employee for making a claim of sexual harassment. Title VII's anti-retaliation provision protects employees from conduct that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination" under Title VII. The fact that an employer can be held liable for the retaliatory actions of a supervisor is well settled. However, the process for determining whether or not Title VII liability exists for the retaliatory actions of a coworker (i.e., someone without supervisory authority) is not as clear. Noting the inconsistent manner in which this issue has been handled by the federal courts, the Sixth Circuit Court of Appeals recently joined the majority of federal circuit courts that have determined that Title VII does, in fact, protect against coworker retaliatory harassment that is known to, but not restrained by, the employer.
Specifically, the Sixth Circuit agreed that there was "no reason 'why a different form of retaliation - namely, retaliating against a complainant by permitting her fellow employees to punish her for invoking her rights under Title VII - does not fall within [Title VII's protection].'" Thus, employers in the majority of jurisdictions must protect their employees against retaliation by coworkers. However, each federal circuit requires a different standard of behavior for determining whether to impose liability on employers for coworkers' retaliatory acts. Accordingly, employers should consult a licensed professional to learn the applicable standard followed in a specific jurisdiction.
The EEOC has reported a 9% increase in workplace discrimination claims, the largest annual increase since the early 1990s. Avoid costly and damaging discrimination and retaliation litigation by training your employees with one of our courses in preventing sexual harassment, including courses for managers, employees, California managers and employees, and Spanish-speaking employees.
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Q: One of my employees has recently been diagnosed with diabetes. Does this employee automatically become entitled to protection under the Americans with Disabilities Act as a result?
A: No. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with a disability. Protection under the ADA is limited to individuals with a physical or mental impairment that substantially limits a major life activity of such individual. Determining whether or not an individual qualifies for protection under the ADA requires a fact-specific analysis of the impairment suffered and the impact such impairment actually has on the individual in question. An individual's diagnosis, by itself, is rarely conclusive in determining the applicability of the ADA.
This directive is particularly relevant in cases involving employees who have been diagnosed with diabetes, a condition whose symptoms vary widely from person to person. Some diabetics can control their condition by making minor modifications to their eating habits, while others may require constant monitoring of blood sugar levels, multiple insulin injections, the use of insulin pumps, or even regular hospital visits. Given the difficulty of defining a "typical" case of diabetes, employers should not adopt or implement a single rule for all diabetic employees. Instead, employers, with the assistance of professional counsel, should conduct an in-depth analysis of the degree of impairment suffered by each employee with diabetes to determine if the protections of the ADA apply to that employee.
Complying with the ADA requires a comprehensive understanding of the regulations it imposes on employers. Make sure your HR professionals get the training they need in this complex area of employment law with The Human Equation's "Understanding the Americans with Disabilities Act, Edition 3."
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Q: During a recent pay period, one of my non-exempt employees, because she worked on a paid holiday within that workweek, became entitled to 40 hours of regular pay plus eight hours of holiday pay. Since she is technically being compensated for 48 hours in a single workweek, am I required to pay her time and one-half for the additional eight hours?
A: No. The Fair Labor Standards Act (FLSA) is the federal law requiring that covered, non-exempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek. The FLSA does not, however, require employers to give their employees time off for holidays, either with or without pay. If an employer allows an employee to take paid time off for a holiday, the time off is not considered "hours worked" and need not be included in the "hours worked" total used to calculate overtime pay. This is because, under the regulations interpreting the FLSA, certain payments made to an employee for periods during which he or she performs no work because of a holiday are not regarded as compensation for working.
Under this framework, an employer, when determining whether or not overtime compensation is due, need only consider the hours actually worked by an employee. In this situation, although the employee is being paid for the eight hours of holiday time, she did not actually work those hours; she actually worked only a total of 40 hours during the workweek. Accordingly, she is not entitled to any compensation at the overtime rate.
Ensure your organization's compliance with all aspects of the FLSA by training your HR professionals with our HR Certification Institute-accredited online course "Wage and Hour Regulations: The FLSA."
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Q: Some of my employees have voluntarily "swapped" shifts with their coworkers because of religious commitments. Can such voluntary "swaps" be considered reasonable accommodations in response to employees' requests for religious accommodations under Title VII of the Civil Rights Act?
A: Yes. Title VII of the Civil Rights Act of 1964 (Title VII), which generally applies to employers with 15 or more employees, makes it an unlawful employment practice for an employer to discriminate against an employee (or prospective employee) on the basis of such employee's religion. Unless the accommodation places an undue hardship on the employer, Title VII requires that an employer provide an employee with a reasonable accommodation for the employee's religious observances. Unfortunately, as the Supreme Court has observed, Title VII provides no guidance for determining the degree of accommodation that is required of an employer because, although an employer's obligation to make a reasonable accommodation is clear, the precise reach of that obligation has never been spelled out by Congress.
Such imprecision may be even more problematic in the context of religious accommodation since, as one court has noted, "this is not an area for absolutes [because] religion does not exist in a vacuum in the workplace." Nevertheless, employers seeking guidance in this area may look to the regulations interpreting Title VII, which provide that the use of "voluntary swaps" may constitute a reasonable accommodation for an employee's religious observances. In addition to merely allowing voluntary swaps, the Equal Employment Opportunity Commission suggests that employers: publicize policies regarding accommodation and voluntary swaps; promote an atmosphere in which such swaps are favorably regarded; and provide a central file (e.g., a bulletin board) for employees seeking voluntary swaps with other employees. However, given the uncertainty surrounding an employer's responsibilities to provide reasonable accommodations, employers facing such issues should seriously consider consulting a licensed professional.
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Q: In light of recent military-related amendments to the Family and Medical Leave Act (FMLA), should I update the FMLA notice currently posted in my employees' break room?
A: Yes. The Family and Medical Leave Act (FMLA), which generally applies to employers with 50 or more employees, was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. On January 28, 2008, President Bush signed into law the National Defense Authorization Act (NDAA), which includes a provision that allows eligible employees to take up to 26 workweeks of leave during a 12-month period to provide needed care for a family member who suffers a serious illness or injury while on active duty in the Armed Forces. The NDAA also provides that eligible employees are entitled to a total of 12 workweeks of leave "because of any qualifying exigency (as the Secretary shall, by regulation, determine)" arising out of a family member's active duty in the Armed Forces.
The regulations interpreting the FMLA, as originally enacted, require that every covered employer "post and keep posted on its premises, in conspicuous places where employees are employed...a notice explaining" the FMLA's provisions and providing information concerning the procedures for filing complaints of violations of the FMLA. Even though the Department of Labor (DOL) has yet to address the NDAA in its regulations, the DOL did create the "FMLA Poster Insert for Military Leave Amendments," which generally describes the recent military-related amendments to the FMLA. Until the DOL amends the general FMLA Poster to include the NDAA amendments, covered employers would be wise to post both the original poster and the insert in a conspicuous place on their premises.
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Q: I have 13 full-time employees, each of whom works 40 hours per week, and 10 part-time employees, each of whom works 20 hours per week. Do I qualify as a "small-employer plan" under the Consolidated Omnibus Budget Reconciliation Act (COBRA)?
A: Yes. After a qualifying event, COBRA gives certain former employees the right to elect temporary continuation of health care coverage at the employer's group rates. COBRA's continuation of coverage requirement does not apply to a small-employer plan, which is a group health plan maintained by an employer who normally has employed fewer than 20 employees during the preceding calendar year. Although all full-time and part-time employees are taken into account when determining whether an employer had fewer than 20 employees, each group of employees is counted differently. A full-time employee counts as one employee. However, each part-time employee counts as a fraction of an employee, with the numerator (the top number) of the fraction equal to the number of hours worked by the part-time employee, and the denominator (the bottom number) equal to the number of hours that must be worked on a typical business day to be considered a full-time employee.
Though this formula may sound complicated, it's fairly easy to apply.
In the situation at hand, the employer's 10 part-time employees work 20 hours per week out of the 40 hours per week ordinarily worked by full-time employees, thus producing a fraction of 20/40, or 1/2. Therefore, each part-time employee is counted as 1/2 of an employee. Ten employees counted as "half" an employee equals 5 "whole" employees, which, when added to the number of full-time employees, 13, total 18 employees. Since this number is fewer than 20, this employer may qualify as a small-employer plan.
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Q: One of my employees who is over 40 years old believes he has suffered discrimination as a result of his age. Must this aggrieved employee wait a specific period of time before filing a lawsuit against my organization under the Age Discrimination in Employment Act?
A: Yes. The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful for an employer with 20 or more employees to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment. However, before filing a lawsuit against his or her employer, an aggrieved employee must first file a charge with the Equal Employment Opportunity Commission (EEOC). Specifically, the ADEA provides that "no civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC." Under this provision, an aggrieved employee must file a charge with the EEOC and wait at least 60 days before filing a lawsuit against the employer. The purpose of this 60-day waiting period is to give the EEOC time to work with prospective defendants (employers) to "promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion."
Although there has been some confusion as to what constitutes the filing of a "charge" with the EEOC alleging discrimination under the ADEA, the United States Supreme Court recently ruled that, so long as the regulatory requirements have been met (i.e., an allegation has been made that includes the name of the charged party), a filing by an aggrieved employee will be deemed a "charge" if it can be reasonably construed as a request for the EEOC to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee. According to the Supreme Court, whether or not the EEOC takes any action in response to the "charge" is generally inconsequential and does not affect the employee's right to file a lawsuit against his or her employer.
For more guidance on how to comply with the ADEA and other laws against discrimination, take our course: "An Overview of Employment Liabilities."
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Q: Can an employee prevail on a claim of retaliation under Title VII of the Civil Rights Act even if she has lost her underlying claim of sexual harassment?
A: Yes. In addition to prohibiting sexual harassment in the workplace, Title VII of the Civil Rights Act (Title VII) makes it unlawful for a covered employer to retaliate against an employee. Specifically, Title VII makes it unlawful for an employer "to discriminate against any of his employees or applicants for employment...because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Unlawful retaliation generally occurs when: an employee engages in a statutorily protected activity; the employee suffers an adverse employment action, such as a demotion or dismissal; and there is a causal link between the protected activity and the adverse action.
Courts have held that because retaliation constitutes a separate offense under Title VII, an employee does not have to prove the underlying claim of discrimination for the retaliation claim to succeed. Under this interpretation, employers wishing to avoid claims of retaliation must proceed cautiously with an employee who has engaged in a protected activity, even though the underlying claims of discrimination or harassment may seem frivolous or unfounded.
For the most comprehensive, up-to-date information about sexual harassment in the workplace, check out our various training options, including online courses for managers, California managers, employees, and Spanish-speaking employees, as well as an e-Book and a manual, all available in our catalog.
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Q: Before starting work, employees at my silicon chip manufacturing facility must change into specialized suits necessary for maintaining a sterile environment in our "clean room." Must I compensate these employees for the time they spend changing into and out of these suits?
A: Yes. Under the Fair Labor Standards Act (FLSA), employees must be paid for all hours worked. Work is the "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer." The United States Supreme Court has found that activities performed either before or after the regular work shift are compensable if those activities are an integral and indispensable part of the principal activities for which the employees are employed.
Courts have found that donning and doffing protective gear satisfies the "integral and indispensable" standard if the gear was necessary to the principal work performed and done for the benefit of the employer. Since the specialized suits in this situation are necessary to maintain a sterile environment and are worn for the benefit of the employer, it appears that the "integral and indispensable" standard has been satisfied and that the employees will have to be compensated for the time spent changing into and out of their suits. Employers who may be required to compensate employees for time spent donning and doffing protective gear should seek the advice of experienced counsel because such situations are highly fact-specific and may vary among jurisdictions.
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Q: One of my employees recently asked for a 20-week leave of absence to care for her son, who was critically injured while on military duty in Iraq. Am I permitted to limit the length of her leave of absence to the 12-week period that the Family and Medical Leave Act requires employers to offer?
A: No. The Family and Medical Leave Act (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. As originally enacted, the FMLA allowed an eligible employee a total of 12 workweeks of leave during any 12-month period to care for the eligible employee's spouse, son, daughter, or parent suffering from a serious health condition. However, on January 28, 2008, President Bush signed into law the National Defense Authorization Act (NDAA). Under the NDAA, an eligible employee who is the spouse, son, daughter, parent, or next of kin of a "covered service member" shall be entitled to a total of 26 workweeks of leave during a 12-month period to provide needed care.
The NDAA defines a "covered service member" as a member of the Armed Forces, including the National Guard or Reserves, who, as a result of a serious injury or illness, is undergoing medical treatment, recuperation, or therapy; is otherwise in outpatient status; or is otherwise on the temporary disability retired list. The NDAA defines "serious injury or illness" as one incurred by the member, in the line of active duty, that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating. When these definitions are applied to this situation, it does not appear that the employer is justified in limiting the employee's leave request to 12 weeks.
Employers covered by the FMLA should proceed cautiously when dealing with FMLA leave requests involving members of the Armed Services because the NDAA has significantly broadened the protections afforded such individuals. Additionally, since the NDAA is new and has not been interpreted by either the courts or the Department of Labor, employers should err on the side of caution and consult a licensed professional before taking any action regarding a leave that involves a service member.
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Q: My company, which manufactures t-shirts for retail sales nationwide, employs only salaried employees. Does the Fair Labor Standards Act require me to post a minimum wage notice even though none of my employees are paid by the hour?
A: Yes. The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA), a federal law that is administered and enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL). DOL regulations interpreting the FLSA provide that "every employer employing any employees subject to the [FLSA's] minimum wage provisions shall post and keep posted a notice explaining the [FLSA]...in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy." Under this standard, the fact that the employer does not employ any hourly employees is irrelevant. The critical question is whether or not the employer has any employees who are subject to the FLSA.
An employee is subject to the FLSA's minimum wage requirements if he or she i) is engaged in commerce or in the production of goods for commerce; or ii) is employed in an enterprise engaged in commerce or in the production of goods for commerce (i.e., annual gross volume of sales made or business done of at least $500,000). The employees of this t-shirt manufacturer are covered by the FLSA because they satisfy the "engaged in commerce/production of goods for commerce" standard, which has been broadly interpreted by the courts to encompass virtually any commercial activity. Therefore, the employer must post a minimum wage notice in accordance with the regulations. Additionally, many states have their own laws that require the conspicuous posting of state-specific minimum wage notices; these laws should be consulted to ensure compliance with all applicable notice requirements.
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Q: One of my long-term employees recently returned from a one-year deployment in the Army. Since the amount of paid-time-off awarded to each employee of my company is based on seniority, must I count the veteran's year of military service when calculating the amount of paid-time-off she is entitled to this year?
A: Yes. The Uniformed Services Employment and Reemployment Rights Act (USERRA) is intended to encourage non-career uniformed service (e.g., service in the Army) by, among other things, prohibiting employment discrimination against persons because of their uniformed service. One form of discrimination is the loss of any seniority-based rights that would have been earned by the employee if he or she had not been absent from work in the performance of uniformed service. Under the USERRA, an employee is entitled to the seniority and seniority-based rights and benefits that he or she had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if he or she had remained continuously employed.
This requirement illustrates the "escalator" principle that applies to seniority-based rights under the USERRA. This principle states that returning service members do not step back on the seniority escalator at the point they stepped off but rather at the precise point they would have occupied had they kept their position continuously during the period of service. In determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. In this situation, since the amount of annual paid-time-off the employee receives is based on seniority, the employer must include the year of military service when calculating the amount of paid-time-off the employee is owed this year.
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Q: My company's health benefits plan has different terms for older, Medicare-eligible retirees than for younger retirees. Is this permissible under the Age Discrimination in Employment Act?
A: Yes. The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful for an employer with 20 or more employees to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including benefits. One area in which disparate treatment on the basis of age historically prevailed was in the context of retiree health benefits plans provided by employers. Historically, employers routinely "coordinated" retiree health benefits plans with Medicare (or similar state-sponsored health plans) to reduce the amount employers had to pay because, under a coordinated plan, the employer would pay only for health care expenses not covered by Medicare. By relying on Medicare to shoulder part of the health care burden, employers' retiree health benefits plans were cheaper to maintain. However, in 2000, a Federal appellate court held that the ADEA requires that the health-insurance benefits received by Medicare-eligible retirees be the same, or cost the employer the same, as the health insurance benefits received by younger retirees.
Fearing that the court's ruling would result in a dramatic reduction, and probable elimination, of employer-sponsored retiree health benefits plans, the U.S. Equal Employment Opportunity Commission created a specific exemption for coordinated retiree health benefits plans. The Commission issued the rule that employers can continue to coordinate their retirees' health benefits with Medicare or similar state-sponsored health plans. However, the exemption, which went into effect on December 26, 2007, does not require employers to provide retiree health benefit plans and does not affect the benefits that employers provide to their current employees. The exemption, by its own terms, is to be narrowly construed; therefore, employers should consult a licensed professional before making any significant changes in their policies.
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Q: Occasionally, one of my non-exempt, hourly employees voluntarily works extra hours to impress his supervisor and improve his chances of advancement. Must I pay the employee overtime wages for all hours worked over 40 even though he has not been asked to work these extra hours?
A: Yes. The Fair Labor Standards Act (FLSA) is the federal law requiring that covered, non-exempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek. Under the FLSA, the term "employ" includes "to suffer or permit to work." It does not matter that, as in this situation, the employee is working voluntarily to impress his supervisor. An employee's reasons for working overtime are immaterial; if the employer knows or has reason to believe that an employee is continuing to work, that time is considered compensable working time.
According to the regulations interpreting the FLSA, it is the duty of management to exercise control and ensure that work is not performed if management does not want it to be performed. The FLSA does not allow management to sit back and accept the benefits of the work without compensating the employee for the time used to perform that work. The mere promulgation of a rule against such extra work is not enough to avoid liability for overtime pay. To comply with this standard, effective and proactive managers should monitor their employees' stop-times just as diligently as they monitor their start-times.
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Q: One of my male employees recently complained that he is being sexually harassed by several male co-workers. Should I be concerned about a potential hostile work environment claim under Title VII of the Civil Rights Act?
A: Yes. Title VII of the Civil Rights Act of 1964 (Title VII) is the federal law that prohibits hostile work environment sexual harassment, which occurs when unwelcome comments or conduct based on sex unreasonably interfere with an employee's work performance or create an intimidating, hostile, or offensive work environment. Despite the common belief that sexual harassment can take place only between a man and a woman, the United States Supreme Court has stated clearly that Title VII's prohibition against discrimination on the basis of sex protects men as well as women because "it would be unwise to presume...that human beings of one definable group will not discriminate against other members of that group." Consequently, same-sex sexual harassment, as found in this situation, is actionable under Title VII, and the supervisor should proceed no differently than if a female employee had made the complaint.
For expert guidance in preventing and managing sexual harassment in your workplace, take our recently updated online course, "Preventing and Managing Sexual Harassment in the Workplace: A Guide for Managers and Supervisors." We also offer customized versions of the course for employees, California residents, and Spanish speakers.
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Q: One of my employees, though raised by his parents, has asked for time off under the Family & Medical Leave Act (FMLA) to care for his gravely ill grandmother. Is he entitled to FMLA leave under these circumstances?
A: No. The Family and Medical Leave Act of 1993 (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. Under the FMLA, one of several reasons an eligible employee is entitled to take time off is to care for the "spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." Although the FMLA does not expressly authorize leave to care for a grandparent with a serious health condition, this fact alone does not end the employer's inquiry. When faced with an FMLA leave request to care for a grandparent, an employer must determine if the grandparent could qualify as the employee's "parent" under the FMLA.
The FMLA defines "parent" as the "biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter." Persons who are in loco parentis include those who had had the day-to-day responsibilities of caring for and financially supporting the employee when the employee was a child. In this situation, the employee's grandmother did not stand in loco parentis to the employee because the employee was in fact raised by his parents; therefore, the employee is not entitled to FMLA leave to care for his grandmother.
While the employee in question is not eligible for FMLA leave, employers should be aware that a biological relationship is not necessary to establish an in loco parentis relationship. That is why employers, when faced with such situations, should confirm the nature of an employee's family relationship by requiring the employee to provide reasonable documentation or a statement of the family relationship before denying or granting leave time under the FMLA.
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Q: As a result of an ongoing investigation into inventory theft, my organization has identified one employee as the sole suspect. Does the Employee Polygraph Protection Act have an exemption that allows me to give this employee a voice stress analyzer test?
A: No. Subject to some very limited exemptions, the Employee Polygraph Protection Act of 1988 (EPPA) makes it unlawful for any employer engaged in or affecting commerce to, directly or indirectly, require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test. One such exemption is reserved for ongoing investigations involving economic loss or injury to the employer's business, such as theft or embezzlement. If all of the conditions are strictly satisfied, the employer may request that the reasonably suspected employee submit to a polygraph test, but not to a voice stress analyzer test.
The exemption for ongoing investigations allows only a polygraph test, which is defined as an instrument that records-continuously, visually, permanently, and simultaneously-changes in cardiovascular, respiratory, and electrodermal patterns as minimum instrumentation standards and that is used for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual. Other types of lie detector tests are not allowed under this exemption, including a voice stress analyzer. Accordingly, employers wishing to administer a form of lie detector test to an employee under the ongoing investigations exemption are limited only to polygraph tests because no other form of lie detector test is allowed under this exemption.
For expert guidance in complying with the EPPA, take our course, "Lie Detectors in the Workplace."
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Q: Our organization's human resources department maintains paper copies of every employee's health insurance application in a file cabinet. Does this mean that we are required to comply with the Health Insurance Portability and Accountability Act's (HIPAA) Security Rule?
A: No. The Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), including the Security Rule, were passed by Congress to protect the privacy and security of certain health information. Specifically, HIPAA seeks to protect health information that relates to the past, present, or future physical or mental health condition of an individual; the provision of health care to an individual; or any payment for the provision of health care to an individual. This type of information is called Protected Health Information, or PHI. While PHI can exist in any form or medium, whether verbal or recorded, the Security Rule applies only to Electronic Protected Health Information (EPHI), which is information that is transmitted by, or maintained in, electronic media.
Since the organization in this situation maintains its employee's health insurance information in paper format, as opposed to some form of electronic media, such as a hard drive or another digital memory medium, HIPAA's Security Rule does not apply. Nevertheless, the company is in possession of PHI; accordingly, it must comply with HIPAA's Privacy Rule, which generally applies to all PHI, regardless of the form in which it is stored.
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Q: One of my employees requested one workweek of leave under the Family & Medical Leave Act (FMLA) to care for her ailing mother; the week includes a paid legal holiday. Am I required to adjust her remaining FMLA leave and credit her for a holiday she would have had off anyway?
A: No. The Family and Medical Leave Act (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing eligible employees to take reasonable leave for medical, health, or family reasons. Under the FMLA, an eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period. Although calculating the amount of FMLA leave taken by an employee can sometimes be problematic, the fact that a holiday falls during an employee's leave is of no consequence to an employer. The regulations interpreting the FMLA clearly state that "the fact that a holiday may occur within the week taken [by an employee] as FMLA leave has no effect; the week is counted as a week of FMLA leave."
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Q: My highest-paid vice-president has just requested leave under the Family and Medical Leave Act (FMLA). I must replace her during her absence but cannot afford to keep two vice-presidents when she returns. Am I automatically required to restore this person to her same position when she returns from her FMLA leave?
A: No. The Family and Medical Leave Act (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. Upon return from FMLA leave, an employee must generally be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. However, under specified and limited circumstances in which restoration to employment will cause "substantial and grievous economic injury to [a business's] operations," an employer may refuse to reinstate certain highly-paid "key" employees after they have used up their FMLA leave while maintaining their employer-provided health coverage.
This exemption to the FMLA's restoration provision applies only to key employees, defined as salaried FMLA-eligible employees who are among the highest-paid 10 percent of all employees employed by the employer within 75 miles of the employee's worksite. In addition to being limited only to "key" employees, employers intending to rely on this exemption must follow strict procedures, among which are notifying the employee of his or her status as a "key" employee in response to the employee's notice of intent to take FMLA leave; notifying the employee as soon as the employer decides to deny job restoration; and explaining the reasons for this decision. In this situation, assuming the employer has met all of the statutory requirements, the employer does not have to restore the employee to her original position of vice-president.
Nonetheless, since the "key employee" exemption runs counter to the FMLA's restoration provisions, employers would be wise to consult a licensed professional to ensure strict compliance with all FMLA requirements.
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Q: One of my employees suffers from a documented case of post-traumatic-stress-disorder (PTSD) that causes him to react threateningly, sometimes violently, to loud noises. Despite our efforts, my organization has been unable to make the area of the factory where he works sufficiently quiet to prevent these outbursts. Does the Americans with Disabilities Act (ADA) require me to retain this employee, who poses a threat to other employees?
A: No. The ADA, which prohibits discrimination against qualified individuals with a disability, generally requires covered employers to provide a reasonable accommodation to such individuals so they may actively participate in the workforce. However, employers may impose limited workplace qualification standards, including a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. The ADA defines a "direct threat" as a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation. Accordingly, employees who pose such a threat to others are not protected by the ADA.
Determining whether an individual poses a direct threat requires an individualized assessment based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. The duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of potential harm are all factors that must be considered on a case-by-case basis. In this situation, if it is determined that the employee's PTSD is severe, long-term, and likely to cause harm to his coworkers, you may be justified in dismissing the employee for posing a "direct threat" to others.
Since employers generally have the burden of proving the defense of a direct threat in a potential wrongful termination lawsuit, experienced counsel should be consulted prior to taking any adverse action.
For more assistance with complying with the various provisions of the ADA, take our recently updated course, "Understanding the Americans with Disabilities Act," a clear, thorough tutorial on this complex employment law.
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Q: If I receive a No-Match letter from the Social Security Administration (SSA) about one of my employees, informing me that the social security number the employee provided on his W-2 form does not match SSA records, should I follow the Department of Homeland Security's "Safe-Harbor Procedures for Employers who Receive a No-Match Letter?"
A: No. On September 14, 2007, new regulations issued by the Department of Homeland Security (DHS), entitled "Safe-Harbor Procedures for Employers who Receive a No-Match Letter," were to go into effect. These regulations set forth a procedure to be followed by employers receiving a no-match letter from the SSA or the DHS. Employers adhering to the regulation's procedures would be entitled to a limited safe harbor against alleged violations of the Immigration Reform & Control Act. However, on August 31, 2007, the United States District Court for the Northern District of California entered a temporary restraining order in a lawsuit filed by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). The court held that the AFL-CIO "raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration." Based on this finding, the court enjoined and restrained the DHS from giving any effect to or otherwise taking any action to implement the new regulations.
The parties are scheduled to appear before the court on October 1, 2007 to present additional arguments. However, until the court issues another order, the safe-harbor regulations do not go into effect.
To receive expert instruction on the laws governing hiring practices and background checks, take our course: Background Screening and the Fair Credit Reporting Act, updated in 2006.
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Q: Is my company automatically exempt from the requirement to file an annual Employer Information Report EEO-1 (EEO-1) because it has fewer than 100 employees?
A: No. The Equal Employment Opportunity Commission (EEOC) conducts an annual survey under the authority of Title VII of the Civil Rights Act of 1964 (Title VII) to track diversity in the workforce. Under this authority, qualifying employers are required each year to file an EEO-1 report, a government document that requires them to provide a count of their employees by job category and then by ethnicity, race, and gender; this report must be submitted to both the EEOC and the Department of Labor's Office of Federal Contract Compliance Programs. Private employers with at least 100 employees are required to file EEO-1 reports.
However, in some cases, private employers with fewer than 100 employees must also file an EEO-1 report. Non-exempt private employers with at least 50 employees may also be required to file an EEO-1 report if the employer is a prime government contractor or a first-tier subcontractor (a subcontractor holding a subcontract with a prime contractor), operating under a contract, subcontract, or purchase order amounting to $50,000 or more. An EEO-1 report must be filed by such employers before September 30th of each year; 2007 is the first year that the modified EEO-1 report is due. So if your business has any contracts with the government and if you have at least 50 employees but fewer than 100, you may still be required to file an EEO-1. You should consult an employment law specialist to make sure that you meet applicable filing requirements; the failure to file an EEO-1 on time could result in substantial penalties for your business.
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Q: Many customers of my grocery store seem to prefer female cashiers over male cashiers. Given this customer preference, can I rely on Title VII's bona fide occupational qualification exception to give preference to females when hiring cashiers in the future?
A: No. Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin." However, Title VII has a limited exception to this prohibition-the bona fide occupational qualification (BFOQ) exception. Under the BFOQ exception, an employer may make employment decisions on the basis of an individual's religion, sex, or national origin "in those circumstances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise...." In the context of sex-based BFOQs, courts will consider (1) whether the particular job under consideration requires that the worker be of one sex only; and if so, (2) whether that requirement is reasonably necessary to the essence of the employer's business. The concept of necessity is critical in the BFOQ analysis, and courts apply a business necessity test, not a business convenience test. Under this approach, discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively, such as in the jail or prison context, where some courts have held that only women can adequately take charge of female inmates. However, with respect to simple customer preference, courts have routinely held that the condition of necessity is lacking.
Given the fact that the BFOQ exception essentially allows discrimination on the basis of an individual's religion, sex, or national origin (but never race), employers invoking the exception should proceed cautiously. The BFOQ exception is strictly construed by the courts, thus making it available in only very few circumstances. Accordingly, employers should obtain the advice of a licensed professional before relying on this Title VII exception.
For a comprehensive explanation of Title VII's rules aimed at eliminating workplace discrimination, take our course "Discrimination and Harassment Prevention: Promoting Workplace Diversity without Conflict."
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Q: One of my employees has asked that an accommodation be made for the employee's legally recognized disability. If no reasonable accommodation exists for this employee, does the Americans with Disabilities Act (ADA) require that I accommodate the employee anyway, even with an unreasonable accommodation?
A: No. The ADA, which prohibits discrimination against qualified individuals with a disability, generally requires covered employers to provide a "reasonable accommodation" to such individuals so they can actively participate in the workforce. Although the phrase "reasonable accommodation" is not specifically defined in the ADA, it may include the act of making existing facilities used by employees readily accessible to and usable by individuals with disabilities also. Employers are required to participate in an interactive process with disabled individuals to determine what, if any, accommodation(s) can be made. If, after participating in the interactive process and considering all possible reasonable alternatives, it is determined that no reasonable accommodation exists, then the employer cannot be found liable for failing to accommodate the disabled individual.
However, whether or not an accommodation is considered "reasonable" under law is highly fact-specific and usually determined on a case-by-case basis. Therefore, employers need to make absolutely certain that no reasonable accommodation exists before refusing a request by an employee with a disability.
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Q: It has come to my attention that my best cashier recently filed for bankruptcy. I no longer feel comfortable letting him operate the checkout line without supervision, however, I am finding it difficult to watch him all the time. Can I fire this employee based on his bankruptcy filing?
A: No. The United States Bankruptcy Code ("Code") prohibits private employers from discriminating against individuals because they filed for bankruptcy. Specifically, the Code provides that "no private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under [the Code]...solely because such debtor:" 1) filed a bankruptcy case; 2) was insolvent prior to, or during, the bankruptcy case; or 3) has not paid a debt that is dischargeable or that was discharged under the Code.
It is important to note that this provision prevents discrimination "solely because" the individual filed for bankruptcy. This has been interpreted to mean that private employers cannot fire an employee "solely and only because they applied for bankruptcy protection." To do so would constitute a violation of federal law, and culpable employers will be hauled into bankruptcy court to explain their actions.
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Q: Does the Americans with Disabilities Act (ADA) require me to provide a reasonable accommodation for a probationary employee who qualifies as an individual with a disability?
A: Yes. The ADA prohibits private employers from discriminating against a qualified individual with a disability. One way the ADA combats such discrimination is by requiring employers with 15 or more employees to make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would impose an undue hardship on the operation of the employer’s business. Although many employers classify new employees as probationary for a specific time (typically 90 days), the ADA makes no such distinction. Accordingly, the ADA’s reasonable accommodation requirement applies to all qualified employees, regardless of how long ago they were hired or whether they are considered probationary employees.
Do your managers and HR professionals need training in ADA regulations and policies? Have them take our course, Understanding the Americans with Disabilities Act, for a more detailed explanation of this important law affecting many employers.
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Q: Can I apply the tip credit provision of the Fair Labor Standards Act (FLSA) for all hours worked by my restaurant wait staff, even though they spend part of their shifts performing duties wholly unrelated to waiting on customers?
A: No. Employees who are engaged in an occupation in which they customarily and regularly receive more than $30 in tips each month are considered "tipped employees" under the FLSA. Employers are required only to pay a fraction of the minimum wage to these employees, so long as the employees' wages and tips together equal at least the minimum wage. This difference between the amount an employee must be paid under the minimum wage law and the amount directly paid to a tipped employee is commonly referred to as a "tip credit."
Employers may take a tip credit only "for hours worked by an employee in an occupation in which he qualifies as a 'tipped employee.'" According to the Department of Labor, an employee qualifies as a tipped employee in two situations: 1) when the employee is performing tip-producing duties (i.e., waiting on tables); or 2) the employee is performing tasks that are incidental to the tip-producing activity (e.g., setting and clearing tables or making coffee), so long as such incidental duties do not exceed 20 percent of the employee's overall duties. In all other situations in which an employee's incidental duties exceed that 20 percent threshold, employers may not take advantage of the tip credit. Under this statutory framework, it is not uncommon to have a worker employed in a dual job in which the tip credit can be applied only to a portion of the hours worked. Therefore, employers must consider an employee's duties, and the percentage of time spent performing those duties, when calculating the appropriate wage for that employee.
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Q: If my state's current minimum hourly wage is higher than the increased federal minimum wage recently authorized by Congress, must I adjust the minimum wage I pay when the law takes effect on July 24, 2007?
A: No. Pursuant to the Fair Labor Standards Act (FLSA), the current federal minimum wage is $5.15 per hour. However, effective July 24, 2007, the federal minimum hourly wage will be increased to $5.85, the first increase since 1997. This increase will not affect employers whose state minimum wage is already higher than $5.85 per hour because the FLSA's minimum wage provisions, as adopted, were intended only to establish an absolute minimum wage. States were, and continue to be, free to set their own minimum wage as long as it is not lower than whatever is the current effective minimum wage set forth in the FLSA. Therefore, employers paying state minimum wages greater than $5.85 do not have to adjust their minimum standard hourly wage--for now.
The July 24, 2007 increase is but the first of three incremental raises Congress has authorized to take place over the next two years. On July 24, 2008, the federal minimum hourly wage will rise to $6.55 and then to $7.25 on July 24, 2009. Under this format, employers must verify that their state's minimum wage continues to be equal to or higher than the federal minimum wage as it progressively increases. For example, though a state's current $6.25 hourly minimum wage is higher than the increased 2007 federal minimum wage, it will not be higher than the 2008 minimum. Therefore, when the 2008 federal minimum wage increase takes effect, employers in states with minimum wages below the new federal rate will have to raise their minimums accordingly.
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Q: Can I avoid personal liability for violations of the Fair Labor Standards Act (FLSA) by operating my business as a corporation?
A: No. Although many individuals choose to operate their business as some form of corporate entity, such as a corporation or a limited liability company, to protect against exposure to personal liability, this strategy is typically unsuccessful when a violation of the FLSA is alleged. According to the FLSA, the federal law regulating minimum wage and overtime payments, an "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee...." Courts have interpreted this language to hold that a corporate officer with operational control of the covered enterprise is considered an employer along with the corporation and therefore is both jointly and severally liable under the FLSA. Under this interpretation, officers who control the day-to-day operations of a corporation can be personally liable for violations of the FLSA. This exposure to personal liability should serve as additional motivation for employers to comply with the FLSA, particularly its minimum wage and overtime pay provisions.
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Q: Must discriminatory conduct be specifically directed at an employee for that employee to be considered a victim of hostile work environment harassment?
A: No. Pursuant to Title VII of the Civil Rights Act of 1964, hostile work environment harassment occurs when unwelcome comments or conduct based on sex, race, or other legally protected characteristics unreasonably interfere with an employee's work performance or create an intimidating, hostile, or offensive work environment. The fact that an employee is not the intended recipient of discriminatory remarks or behaviors is not determinative of whether that employee has been subjected to a hostile work environment. For example, an employee may overhear a co-worker making derogatory comments about the employee, or such comments may be relayed to the employee by a third party. In both of these instances, a court will consider the discriminatory conduct in its analysis of the claim and will ultimately make determinations based on the totality of the circumstances surrounding the alleged harassment.
Discriminatory conduct, even when not explicitly directed at an individual employee, may still unreasonably interfere with that employee's work performance or create an intimidating, hostile, or offensive work environment. As such, it is important for employers to have policies in place that make clear the types of conduct and comments that are inappropriate and prohibited.
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Q: Must I pay overtime compensation to an employee who worked more than 40 hours in one week, despite not being given authorization to do so?
A: Yes. The Fair Labor Standards Act (FLSA) is the Federal law that governs the payment of overtime wages. Unless otherwise exempt, employees must be paid overtime compensation for all hours worked in excess of forty hours in a workweek. Many employers have a policy of prohibiting employees from working overtime unless they receive explicit authorization to do so beforehand. However, the FLSA's overtime provisions do not concern themselves with overtime authorizations or permissions. Once a non-exempt employee crosses the 40-hour threshold, the FLSA requires that said employee receive overtime compensation, even if the overtime work was not explicitly authorized by the employer. Employees who routinely violate internal overtime authorization policies may be exposed to various disciplinary measures under an organization's internal policies, but such measures should never include a denial of overtime compensation.
To learn more about the Fair Labor Standards Act and the guidelines for compensation that it imposes on employers, take our course Wage and Hour Regulations: The FLSA.
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Q: To satisfy the "reasonable accommodation" requirement of the Americans with Disabilities Act (ADA), am I required to honor a disabled employee's request to work from home?
A: No. The ADA, which prohibits discrimination against qualified individuals with a disability, generally requires covered employers to provide a reasonable accommodation to such individuals so they can actively participate in the workforce. A "qualified individual with a disability" is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Although the phrase "reasonable accommodation" is not specifically defined in the ADA, it may include the act of making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
Whether or not an accommodation is considered reasonable is highly fact-specific and usually determined on a case-by-case basis. However, courts regularly hold that an employee's request for at-home accommodation is not reasonable. "Except in the unusual case where an employee can effectively perform all the work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise." This, however, is not an absolute rule. Therefore, when confronted with such a request, employers should always perform the necessary inquiry into its reasonableness. For example, if an employer allows some workers to work from home, then there is likely no valid reason to deny the same opportunity to a disabled individual doing the same job.
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Q: Can I avoid paying my cashiers overtime wages merely by raising their salaries to just above $455 per week, which is one of the FLSA's requirements for exempting employees from overtime pay?
A: No. The Fair Labor Standards Act (FLSA) is the Federal law that governs the payment of overtime wages, among other employment-related topics. Unless otherwise exempt, employees must be paid overtime compensation for all hours worked in excess of forty hours in a workweek. The applicability of some exemptions depends, in part, on the amount an employee is paid per week. For example, the administrative and executive exemptions require that the employee in question be paid not less than $455 per week. However, this minimum earnings requirement is just one of several conditions that must exist before an employer can properly classify an employee as exempt from the FLSA's overtime provisions. Merely raising an employee's salary to satisfy the earnings threshold does not by itself excuse an employer from having to pay overtime. Acknowledging that employers may consider such a practice an easy way to control overtime costs, the Department of Labor has stated that it will view such increases in pay with greater scrutiny than before.
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Q: I discovered recently that one of my employees spends a considerable amount of time playing Internet poker while at work. When I confronted this individual, he claimed that he was currently seeing a therapist for his compulsive gambling and that he has been regularly attending 'Gamblers Anonymous' meetings. Does the Americans with Disabilities Act prevent me from firing this employee?
A: No. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with a disability. An actual disability under the ADA is a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." Typically, determining whether an individual has a disability under the ADA requires a fact-specific analysis into the precise impairment suffered and the impact such impairment has on the individual in question. There are few instances in which an individual's diagnosis alone is determinative of ADA applicability. Compulsive gambling, however, is one such instance. The ADA specifically excludes compulsive gambling as a qualifying disability. Accordingly, employees suffering from compulsive gambling are not protected by the ADA because they are not considered disabled.
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Q: Can I treat an employee returning from a one-year tour of duty in the military as an "at-will" employee, which would allow me to terminate the employee with or without notice or cause?
A: No. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits "adverse employment actions in which the employee's membership in the uniformed services is a 'motivating factor' in the employer's action." The USERRA was enacted to encourage non-career service in the military by minimizing the potential negative repercussions to employees in the civilian workplace prompted by their military service. One way to encourage such service was to provide returning employees with greater protection from being fired than the protection afforded by the "at-will" doctrine, which typically allows employers to terminate employees with or without notice or cause.
The USERRA provides that "a person who is reemployed by an employer...shall not be discharged from such employment, except for cause." If the employee has served for more than 180 days, then this protection lasts for one year from the date of reemployment. If the employee has served for more than 30 but less than 181 days, the protection lasts for 180 days. During these time frames, an employer cannot discharge a covered employee without cause. Although the USERRA does not define "cause," the test that must be applied is whether or not the discharge by the employer was a reasonable one under the circumstances.
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Q: Can I request supporting documentation from an employee seeking time off to care for a spouse suffering from a serious health condition?
A: Yes. The Family and Medical Leave Act of 1993 (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. Under the FMLA, an eligible employee is entitled to take time off to, among other things, care for the "spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." Rather than rely solely on an employee's word, an employer may require that a request for leave to care for a spouse with a serious health condition be supported by a certification issued by the health care provider of the appropriate individual, who in this case would be the employee's spouse.
Although the FMLA specifies the information required to constitute a sufficient certification of the need for FMLA leave, the Department of Labor has prepared a Certification of Health Care Provider form intended to simplify the certification procedure. Despite this standardized form, employers wishing to avoid claims of discrimination must be careful in the way they request certifications from their employees. For example, employers who ask for medical certifications from men requesting leave to care for a child, but who do not do so for women making the same request, could find themselves responding to allegations of unlawful discrimination on the basis of sex.
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Q: Can I require all newly-hired employees to produce a United States passport to prove their eligibility to work in the United States?
A: No. Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to verify the identity and employment eligibility of all employees within three business days of the date employment begins. Employers can accomplish this by examining one of the legally acceptable forms of identification and by completing, under penalty of perjury, the Department of Homeland Security's Employment Eligibility Verification (Form I-9). Form I-9 lists the acceptable documents that an employer must review to verify identity and eligibility, and although a U.S. passport is an acceptable form of documentation, it is not the only one. For example, an employee can provide an alien registration card or a permanent resident card. Employers cannot specify which documents they will accept from an employee. To do so could be considered unlawful discrimination against individuals who are otherwise eligible to work in the United States. In order to prevent this type of discrimination, employers cannot make a U.S. passport the only form of acceptable identification.
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Q: Are my employees required to give me two weeks' notice prior to quitting their job?
A: No. Absent an employment contract, employees are typically not legally required to give notice of any kind to their employers before leaving their job. The employer/employee relationship is generally considered to be "at-will," which means that an employee is employed at the will of the employer for as little or as long as the employer wishes. Therefore, so long as an employer does not violate an employment contract, a collective bargaining agreement, or an applicable State or Federal law, an employer may fire an employee at will. In turn, the same at-will doctrine also allows employees to quit their jobs whenever and for whatever reason they want. Although it is customary for employees to give two weeks' notice when leaving a job, employees are typically under no legal obligation to give their employers any prior notice when doing so.
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Q: Can I use an automated employee report-line to supplement my sexual harassment policy?
A: Yes. Employers wishing to limit their liability under Title VII of the Civil Rights Act of 1964 (Title VII) for claims of sexual harassment, would be wise to implement an automated reporting mechanism that would allow aggrieved employees an alternative avenue for submitting complaints of sexual harassment. The Supreme Court has provided employers with an affirmative defense in cases of sexual harassment that do not involve tangible employment actions. The availability of this defense can hinge on the avenues of communication available to a disgruntled employee who feels they have been victims of sexual harassment. For example, if the person designated to receive complaints of sexual harassment is the same person committing the harassing acts, then an employee may likely be excused from reporting the behavior at all. This situation can preclude an employer from availing itself of the affirmative defense to claims of sexual harassment. However, a properly implemented and managed automated report-line can eliminate this problem, thereby making it very difficult for an employee to justify not reporting alleged instances of sexual harassment.
For information on our workplace grievance reporting system, Employee Report Line, visit The Human Equation website, www.thehumanequation.com.
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Q: Does Title VII of the Civil Rights Act of 1964 (Title VII) address "English-only" rules in the workplace?
A: Yes. Title VII, which generally applies to employers with 15 or more employees, prohibits employment discrimination because of "race, color, religion, sex, or national origin." According to the Equal Employment Opportunity Commission (EEOC), a rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. In addition to potentially creating an atmosphere of inferiority, isolation, and intimidation, the EEOC's position is that "prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin."
The EEOC does, however, allow an employer to have a rule requiring that employees speak only in English at certain times "where the employer can show that the rule is justified by business necessity," so long as the employer gives the employees sufficient notice of the rule and the consequences for violating it. Despite some uncertainty regarding the EEOC's position on this topic, employers wishing to implement an "English-only" policy should avoid absolute bans on the use of other languages and should enforce such a rule only to the extent it is justified by a business necessity.
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Q: Does the law protect employees who cannot work because they have jury duty?
A: Yes. Employers must proceed cautiously when dealing with an employee who has been assigned jury duty. Because jury duty is generally mandatory, laws have been enacted to ensure that individuals performing this civic service are protected from adverse employment actions. For example, federal law provides that "no employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee by reason of such employee’s jury service." Failure to abide by this prohibition can result in reinstatement of the employee, a civil penalty of up to $1,000, and attorneys’ fees and costs. Some state laws give employees serving as jurors even greater protection. For example, in addition to prohibiting adverse employment actions against employees serving as jurors, Tennessee requires that an employee serving on jury duty "shall be entitled to such employee’s usual compensation received from such employment, less the amount of the fee or compensation the employee received for serving as a juror." Although applicable laws may vary, it is generally safe to conclude that an employer cannot take any adverse employment action against an employee on account of that employee’s jury service.
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Q: When determining whether a recently hired employee is eligible for
leave under the Family and Medical Leave Act's (FMLA) 12-month eligibility requirement, must I consider the employee's prior period of employment with the company?
A: Yes. The FMLA provides that an "eligible employee" is entitled to
leave for, among other things, a serious health condition that makes an employee unable to perform the functions of his or her position. An "eligible employee" is an employee who has been employed for at least 12 months and for at least 1250 hours of service during the previous 12-month period. As to the 12-month eligibility threshold, how should employers deal with an employee who worked for a company for a period of time, left, and then subsequently resumed working for the same employer?
Although the language of the FMLA and the interpretive regulations are somewhat ambiguous on this point, the First Circuit Court of Appeals recently addressed this issue in the context of an employee who rejoined his employer after a five-year break in employment. The First Circuit held that "the complete separation of an employee from his or her employer for a period of years, here five years, does not prevent the employee from counting earlier periods of employment toward satisfying the 12-month requirement." Although the Department of Labor conceded that a break in service of over five years would be at the "outer bounds of what is permissible," this opinion should place employers on notice of their requirement to consider potential FMLA applicability to "new" employees who were previously employed by the same company.
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Q: When requesting leave from work, does an employee have to mention the Family and Medical Leave Act (FMLA) by name in order to be protected by it?
A: No. Although employees are generally required to notify their employers of their desire to take FMLA leave, an employee need not expressly mention the FMLA in his or her leave request or otherwise invoke its protections. In fact, an employee can be completely ignorant of the benefits conferred by the FMLA and still be entitled to its protections. The employee’s notice obligation is satisfied so long as he or she provides information sufficient to show that he or she likely has an FMLA-qualifying condition. This may be enough to trigger an employer’s duty to request such additional information from the employee as may be necessary to confirm the employee’s entitlement to FMLA leave.
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Q: Some of my warehouse employees work four 10-hour shifts per week instead of the standard five 8-hour shifts. Do I need to pay them overtime for the extra two hours per day they are working?
A: No. The Fair Labor Standards Act (FLSA) is the federal law requiring that covered, non-exempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek. Under the FLSA, the overtime pay provisions do not come into play until the 40-hour threshold is reached. The fact that an employee is working 10 hours per day (as opposed to the standard 8-hour day) does not implicate the FLSA’s overtime provisions. So long as your employees do not work over 40 hours per workweek, they are not entitled to overtime payments under the FLSA. However, you should verify that your employees are not entitled to any additional payments under your state’s wage and hour laws.
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Q: One of my employees told me that she was "freaked out" by the way one of her male co-workers looked at her. Should I consider this somewhat vague statement a complaint of sexual harassment?
A: Yes. Under Title VII of the Civil Rights Act of 1964 (Title VII), an employer may be liable for the acts of non-supervisory individuals if the employer fails to discover and prevent the hostile work environment sexual harassment of an employee. Upon being put on notice of a potentially hostile work environment, an employer is required to take reasonable responsive action. Typically, an employer will not be deemed on notice of sexual harassment until an employee makes a concerted effort to inform the employer that a problem exists. However, employers should be conscious of the fact that they may be placed on sufficient legal notice of an improper situation even though the employee makes a somewhat vague complaint.
In a recent decision by the Seventh Circuit, the appellate court stated that a jury could have reasonably found negligence on the part of an employer who failed to take action following an employee’s complaint that the actions of a non-supervisory individual "freaked her out" at work. The employer who failed to respond to the complaint was found liable after the complaining employee was later sexually assaulted by the individual who "freaked her out." The court determined that it was reasonable for a jury to conclude that the employee’s story about her unnerving encounter with this individual presented an implicit threat of sexual harassment that put her supervisors on notice that there was some probability that "a problem" existed and that a risk of sexual harassment was present. This opinion underscores the fact that complaints of sexual harassment do not have to include specific or concrete references to "sexual harassment" or "hostile work environment" in order to effectively put an employer on notice that a potential problem exists.
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Q: Can I require that an employee requesting FMLA leave use his remaining sick and vacation days as part of the 12-week leave period provided by the FMLA?
A: Yes. The Family and Medical Leave Act (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. Under the FMLA, an eligible employee is entitled to a total of 12 workweeks of leave during any 12-month period. Although the FMLA explicitly permits employers to provide leave on an unpaid basis, employers are given the option of requiring that employees exhaust any available paid time off, such as sick and vacation days, as part of the 12-week leave period. Employers who fail to take advantage of this option run the risk of employees taking 12 weeks of FMLA leave in addition to any time they have off under the employer’s time-off policy. If such a consequence poses an undue burden on employers, they should consider rewriting their sick leave / vacation time policies to require that employees taking FMLA leave use any available sick and vacation days first.
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Q: Is it permissible to require that a former employee pay an administrative fee for providing the employee with continuing health care coverage under COBRA?
A: Yes. The Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) contains provisions that give certain former employees the right to elect temporary continuation of health care coverage at the employer's group rates. Employers with 20 or more employees are usually required to offer COBRA coverage and to notify their employees of the availability of such coverage. Former employees electing to continue their health care coverage are generally required to pay the entire premium for the insurance, including the amount that may have been previously paid by the employer. Under COBRA, employers may charge the former employee up to 102 percent of that employee's applicable premium. This additional 2 percent is permitted so that the employer can offset some of the administrative costs associated with complying with COBRA.
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Q: Now that my company has more than 15 employees, does Title VII compel my company to implement a sexual harassment policy?
A: No. But you definitely should. Title VII of the Civil Rights Act of 1964 (Title VII) is the federal law that prohibits sexual harassment in the workplace. The statute itself does not expressly compel the implementation of a sexual harassment policy. Nevertheless, employers who fail to do so will likely encounter significant difficulties in defending against claims of hostile work environment sexual harassment. An employer can assert the United States Supreme Court’s affirmative defense to a hostile work environment sexual harassment claim only if “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior....” Under this standard, an employer’s failure to implement even a rudimentary sexual harassment policy will generally fail to satisfy the reasonable care requirement, thus precluding the applicability of the defense. In practice, the implementation and enforcement of a sexual harassment policy may allow you both to prevent or address unlawful harassment and to preserve a critical defense mechanism in the event a hostile work environment sexual harassment lawsuit is filed against you.
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Q: Are an employee’s claims of religious employment discrimination and retaliation against a hospital that is sponsored and operated by a religious organization likely to be successful?
A: No. Claims of religious employment discrimination and retaliation are typically brought under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII, which generally applies to employers with 15 or more employees, prohibits employment discrimination on the basis of "race, color, religion, sex, or national origin." However, "in recognition of the constitutionally-protected interest of religious organizations in making religiously-motivated employment decisions," religious organizations are exempt from Title VII’s prohibition against making employment decisions on the basis of religion.
Specifically, the law provides that Title VII "shall not apply...to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its operations." This "religious organization" exemption allows religious institutions to employ only those persons whose beliefs are consistent with the employer’s when the work is connected with carrying out the institution’s activities. While this exemption essentially allows religious organizations to discriminate on the basis of religion, its applicability is well defined and situation-specific. Therefore, employers should verify their entitlement to this exemption before making any employment-related decisions that may otherwise run afoul of Title VII.
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Q: Although my regional manager is charged with supervising 5 full-time employees, he cannot personally supervise all of them because they work in different locations. Since he still performs all of the traditional managerial functions, can I avoid paying overtime to the regional manager under the executive exemption of the Fair Labor Standards Act?
A: Yes. Under the Fair Labor Standards Act (FLSA), specific categories of employees are exempt from FLSA’s overtime pay provisions. In other words, if an employee falls within one of the exemptions, then that employee is not entitled to receive overtime pay from his or her employer. One such exemption is the executive exemption, which applies to employees: 1) who are compensated on a salary basis at a rate of not less than $455 per week; 2) whose primary duty is management of the business or of a recognized subdivision of the business; 3) who customarily and regularly direct the work of two or more other employees; and 4) who have the authority to hire or fire other employees or to recommend the hiring, firing, advancement, or promotion of other employees. Answering the question raised by this hypothetical situation requires the interpretation of the phrase "customarily and regularly" as used in the third element of the exemption.
In addressing this issue, the Department of Labor has concluded that a store manager does not have to work at the same time or within the same establishment as his or her subordinate employees to satisfy the requirement that an employee "customarily and regularly direct the work of two or more other employees." According to the Department of Labor, a store manager, even when not present in a store, may satisfy this standard so long as he or she does, in fact, customarily and regularly direct the subordinate employees’ work by, for example, enforcing company policies; ensuring that the supervisor’s instructions are carried out by all subordinate employees; following up daily on the completion of assigned tasks; monitoring employee productivity; and ensuring that sales goals are met. The manager must also plan the workload, set and adjust employee schedules, appraise employees’ productivity and efficiency, address complaints and grievances, and discipline employees. Although the outcome of any particular case ultimately depends on the specific facts, the Department of Labor has stated that so long as the individual in question does what managers customarily and regularly do, the manager’s physical presence or absence is not necessarily determinative of the exemption’s applicability.
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Q: Even though we are all younger than 35, my employer is systematically laying off my entire team of software programmers and replacing them with recent college graduates. Isn’t this unlawful under the Age Discrimination in Employment Act?
A: No. The Age Discrimination in Employment Act (ADEA), which generally applies to employers having 20 or more employees, is the federal law prohibiting age discrimination in the employment context. While the ADEA makes it unlawful to discharge (fire/lay off) an individual because of his or her age, the ADEA’s protections are "limited to individuals who are at least 40 years of age." Individuals who do not satisfy the 40-year-old threshold simply cannot sue their employers under the ADEA. Accordingly, given the fact that the fired programmers are under 40, the ADEA does not provide them with any recourse against their employer.
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Q: I learned recently that one of my employees has been stealing inventory from my warehouse for some time. When I informed him of my decision to fire him, he told me that he has been diagnosed as suffering from the psychological condition known as kleptomania, which is the inability to resist impulses to steal. Is this employee protected by the Americans with Disabilities Act?
A: No. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with a disability. An actual disability under the ADA is a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." Typically, determining whether an individual has a disability under the ADA requires a fact-specific analysis into the precise impairment suffered and the impact such impairment has on the individual in question. There are few instances in which an individual's diagnosis alone is determinative of ADA applicability. Kleptomania, however, is one such instance. The ADA specifically excludes kleptomania as a qualifying disability. Accordingly, employees suffering from kleptomania are not protected by the ADA because they are not considered disabled.
To learn more about the responsibilities employers have to disabled employees, take our course Understanding the Americans with Disabilities Act.
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Q: In performing my annual Fair Labor Standards Act (FLSA) audit, I noticed that in the past year my "accounting specialist," who earns a salary of $400 per week, has taken on some new primary duties related to the management of my business, most of which require him to exercise significant discretion and independent judgment. Can I stop paying him overtime pay under the FLSA's administrative exemption?
A: No. Unless otherwise exempt, the FLSA requires that employees be paid overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. One such exemption is the bona fide administrative exemption. According to Department of Labor regulations, an employee must satisfy all three of the following tests in order to be exempt from the FLSA's overtime provisions under this exemption: 1) the employee must be compensated on a salary or fee basis at a rate not less than $455 per week; 2) the employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and 3) the employee's primary duties include the exercise of discretion and independent judgment with respect to matters of significance.
In our hypothetical, even assuming the accounting specialist satisfies the second and third tests as a result of the position's additional primary duties that entail the exercise of significant discretion and independent judgment, the employer cannot claim this employee as exempt from the FLSA's overtime pay provisions because the employee's salary is less than the required $455 per week. All three tests must be satisfied before an employer can properly rely on the administrative employee exemption. Accordingly, until the employee's salary meets the FLSA's minimum salary requirement, the employer must continue to comply with the FLSA's overtime pay provisions.
To ensure that you are in compliance with all of the provisions of the Fair Labor Standards Act, take our course Wage and Hour Regulations: The FLSA.
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Q: For the last three years, my company has employed over 30 people. After losing a major client a few months ago, I had to lay off 20 employees. Last week, one of my current employees filed a sexual harassment claim against my company. Is the employee filing the claim still protected under Title VII of the Civil Rights Act of 1964 even though my company now has fewer than 15 employees?
A: Yes. Title VII of the Civil Rights Act of 1964 ("Title VII") is the federal law prohibiting sexual harassment in the workplace. By its terms, Title VII applies to employers engaged in an industry affecting commerce who have 15 or more employees. However, employers who relax their sexual harassment policies or standards because they have recently reduced their workforce below the 15 employee threshold do so at great peril.
In determining Title VII applicability, courts will look to see if the employer has 15 or more employees "for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." Under this standard, the number of employees an employer currently has is not determinative of Title VII applicability. A court may look at an employer's payroll records from the prior year to see if Title VII's minimum employee standards are met. Therefore, in conducting internal risk assessments under Title VII, employers must look beyond the number of individuals currently employed. If the records reflect 15 or more employees during the current or preceding calendar year, then employers should not flippantly ignore their responsibilities under Title VII.
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Q: After learning that one of my pizza delivery drivers was ticketed for reckless driving while off-duty, I reviewed his current driving record and discovered that this was his third moving violation citation within the past three years. Can this driver’s record increase my exposure to liability in the event of an on-duty accident?
A: Yes. Two separate, but related, torts may increase an employer’s exposure to liability: negligent hiring and negligent retention. Under Florida’s common law, for example, negligent hiring occurs when, prior to the time the employee is actually hired, the employer knew or should have known of the employee's unfitness. The issue of liability primarily focuses upon the adequacy of the employer's pre-employment investigation into the employee's background. Negligent retention, on the other hand, occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigation, discharge, or reassignment.
Under these facts, the employer may be liable under both theories of liability if the employee injures someone while driving. The employee’s driving record, which must always be reviewed prior to hiring any delivery driver, probably should have excluded him as a candidate in the first instance. In the event of an accident, the employer’s failure to review the record will likely result in increased exposure to negligent hiring liability. Additionally, although the employer may be considered lucky that no such accident has occurred to date, having now learned of the employee’s driving record, the employer should seriously consider either terminating the driver or transferring him to a non-delivery position; otherwise, a negligent retention claim is likely in the event of an injury resulting from the delivery person’s driving. From a risk management standpoint, these two theories of liability demand employer vigilance when deciding to hire an individual and when deciding to retain that individual.
To learn more about the issues concerning organizations with employees who drive for business purposes, take our course Fleet Safety.
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Q: Can an employee alleging hostile work environment employment discrimination under Title VII of the Civil Rights Act of 1964 receive an award of back pay even though the employee did not quit his or her job as a result of the hostile work environment?
A: No. Title VII of the Civil Rights Act of 1964 does, in some circumstances, allow a successful plaintiff to recover a back pay award for hostile work environment discrimination. However, according to several federal appellate courts, in the absence of employment termination, a plaintiff cannot receive an award of back pay unless the plaintiff can successfully prove constructive discharge. A constructive discharge occurs when an employer knowingly permits conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign. Absent termination or constructive discharge, the employer cannot abandon his or her job and expect to be paid.
If an employee continues to work, despite the hostile work environment, then the plaintiff has not been deprived of any pay. If an employee decides to quit his or her job, such abandonment must be reasonable under the law. Put simply, the courts reason that "if a hostile work environment does not rise to the level where one is forced to abandon the job, loss of pay is not an issue."
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Q: My company operates two factories and has 30 employees at each factory, which are 72 miles apart "as the crow flies." When I drive the shortest possible route from one factory to the other, the distance is exactly 77 miles. Does the Family and Medical Leave Act's 75 mile proximity requirement exclude my employees from coverage?
A: Yes. The Family and Medical Leave Act of 1993 ("FMLA") was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. To be covered by the FMLA, an employee must work for an employer with: 1) at least 50 total employees; and 2) with at least 50 employees working within 75 miles of the employee's worksite. With 60 total employees, our hypothetical employer satisfies the first requirement of at least 50 total employees. To determine whether or not the "within 75 miles" requirement is satisfied, we need to know how to measure the distance between the two factories.
Although the FMLA is silent on this issue, the Secretary of Labor adopted an interpretive regulation providing that "the 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route...." This regulation expressly rejects a linear, or "as the crow flies," method of measurement in favor of a surface miles approach. Under this approach, our hypothetical employees are not covered by the FMLA because the company does not employ at least 50 employees within the requisite 75 surface miles.
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Q: Is a person who was dishonorably discharged from the military reserves protected from adverse employment actions by the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA")?
A: No. The USERRA, like its predecessor, the Veterans' Reemployment Rights Act, was enacted to encourage non-career participation in the uniformed services by minimizing negative repercussions in the civilian workplace that were potentially prompted by military service. Fundamentally, this law seeks to remove any barriers in the employment context that would influence an individual against joining the uniformed services on a non-career basis. To that end, the USERRA prohibits any adverse employment action in which the employee's membership in the uniformed services is a motivating factor in the employer's action. Additionally, under some circumstances, an employer's ability to fire an individual is limited by the USERRA.
However, although the USERRA is to be liberally construed for the benefit of those who left private life to serve their country, Congress explicitly limited its scope to those individuals who were not dishonorably discharged from the uniformed services. Upon receipt of a "dishonorable or bad conduct discharge," any such person's entitlement to the benefits and protections of the USERRA terminates. Accordingly, by its own terms, the USERRA is not implicated when employers are dealing with individuals who suffered a dishonorable or bad conduct discharge.
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Q: My boss often insults, criticizes, and belittles me in front of my coworkers by calling me stupid and incompetent. The other day she resorted to profanity after I was late for a meeting. Do I have a good case for damages against my boss?
A: No. Federal laws do not make being rude, insensitive, or even insulting in the workplace illegal or actionable. For example, when discussing the scope of protections afforded by Title VII of the Civil Rights Act of 1964, courts routinely note that federal anti-discrimination laws were not intended to create a general civility code for the American workplace. Absent discrimination based on race, sex, or one of the other protected classifications, federal laws do not protect employees from this type of criticism in the workplace.
Common law tort cases brought in state court are also unlikely to provide a legal remedy for a rude, insulting boss. For example, although your state's law may recognize a cause of action for the intentional infliction of emotional distress, a plaintiff must typically prove that the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. Mere insults, indignities, annoyances, petty oppressions, or other trivialities rarely, if ever, satisfy this burden. The alternative would be lawsuits based on hurt feelings, an unrealistic option according to legal scholars: "Plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt." Until your boss's actions satisfy this threshold, it is unlikely that you have any legal recourse.
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Q: Unbeknownst to a female employee, a male worker had been repeatedly observing her through a hidden peephole in the women's restroom over a three-year period. The female employee first learned of the peephole after management had fired the male worker and covered the peephole. Does the female employee have a case for hostile work environment?
A: No. To successfully prove a case of hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII"), a plaintiff must establish, among other things, that the harassment "was sufficiently severe or pervasive as to affect a term, condition, or privilege of employment." In considering whether or not a plaintiff sufficiently established this fact, courts will consider the totality of the circumstances, including the frequency and severity of the harassing conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance.
To satisfy this burden, an aggrieved employee must establish that the sexually objectionable environment was both objectively and subjectively offensive. In other words, a plaintiff must prove that the environment was "one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." How can the female employee prove that she was subjectively offended by conduct she was not aware of? She cannot. Although conceding that such conduct was "reprehensible," the Eight Circuit Court of Appeals recently rejected a plaintiff's similar hostile work environment claim because she could not prove that she was subjectively offended by the conduct. The court reasoned that "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Even though the United States Supreme Court refused to reconsider the case, the offending manager was arrested and ultimately pleaded guilty to a felony invasion of privacy charge.
For more information on what constitutes hostile work environment harassment, see our course Preventing and Managing Sexual Harassment in the Workplace: A Guide for Managers and Supervisors.
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Q: Can an employer be held liable under Title VII of the Civil Rights Act of 1964 ("Title VII") for absolutely refusing to hire job applicants with arrest records?
A: Yes. Title VII prohibits actions that disparately impact a protected class or individual. Under this disparate impact theory of liability, despite being facially neutral (because it applies to all individuals regardless of race, national origin, etc.), a policy will be deemed illegal if, in practice, it disparately impacts a protected class.
According to the Equal Employment Opportunity Commission ("EEOC"), using arrest records as an absolute bar to employment may fall within this category because it can disproportionately exclude certain racial or ethnic groups. The EEOC has said that "unlike a conviction, an arrest is not reliable evidence that an applicant has committed a crime." It is illegal, the argument continues, for an individual to be discriminated against in the employment context solely on the basis of an arrest record, which itself may have resulted from that individual's inclusion in a protected class. In order to limit potential exposure in this context, employers should avoid excluding applicants solely on the basis of an arrest record unless it appears not only that the conduct is job-related and relatively recent, but also that the applicant or employee actually engaged in the conduct underlying the arrest. Having directly addressed this topic, the EEOC unequivocally states that "such records should not be used in this manner unless there is a business need for their use."
To learn more about employment decisions based on arrests, take our course Background Screening and the Fair Credit Reporting Act.
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Q: Beth, her company’s ERISA plan administrator, failed to provide the statutorily required COBRA notice to a covered employee who was laid off through no fault of his own. Can Beth be found personally liable for her failure?
A: Yes. The Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA"), which amended, among other things, the Employee Retirement Income Security Act of 1974 ("ERISA"), requires ERISA plan administrators to give notice to covered employees of their rights under COBRA upon the occurrence of a "qualifying event." One such qualifying event is the termination of a covered employee for any reason other than that employee’s gross misconduct. In our hypothetical, the employee was entitled to receive timely COBRA notice following termination. Failure to receive this notice may be grounds for a lawsuit.
Although lawsuits filed in such cases typically name the employer as the defendant, under ERISA a plan administrator who fails to provide the requisite notice may also be found personally liable to the employee for "up to $100 a day" from the date of the administrator’s failure to comply with the notification requirements. In interpreting this provision, courts have noted that this statutory penalty is intended to provide plan administrators with an incentive to comply with the requirements of ERISA and to punish noncompliance. In exercising its discretion to impose statutory damages, courts typically consider the prejudice to the plaintiff and the nature of the plan administrator’s conduct. If a court finds that Beth acted in bad faith or that the employee suffered significant harm, then Beth may very well be held personally liable for her failure.
If you would like more information on these issues, take our course, Complying with COBRA.
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Q: Jane, a receptionist who requires a wheel-chair to get around, believes she was unlawfully discriminated against when she lost her job after only three months. Is her case weakened by the fact that the manager who fired her is the same person who hired her?
A: Yes. In order to win her lawsuit, Jane would have to prove that she was unlawfully discriminated against because of her disability despite the fact that she was capable of performing the essential functions of her job. The fact that she was hired and fired by the same person in a relatively short period of time actually makes her case more difficult to prove. Under the same actor inference doctrine, courts have stated that where "the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer."
Courts addressing similar situations have noted that allegations of employer animus existing at termination, but not at hiring, seem irrational. "From the standpoint of the putative discriminator, 'it hardly makes sense to hire workers from a group one dislikes, only to fire them once they are on the job.'" Since the employer actually hired the plaintiff in the first instance, courts reason, it is unlikely that discrimination existed when the plaintiff was ultimately fired a short time later. However, this doctrine creates only an inference, not an absolute defense. A plaintiff still has the opportunity to present evidence of discrimination.
If you would like more information on discrimination and harassment in the workplace, you may be interested in our new course: Discrimination and Harassment Prevention: Promoting Workplace Diversity without Conflict.
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Q: John works 35 hours a week for Mike's Garage, Inc., and 25 hours a week for Mike's Towing Company, Inc. Both companies are owned by the same person, operate out of the same location, provide the same services, use the same phone number, and share the same bank account. Is John entitled to overtime pay under the Fair Labor Standards Act even though he does not work more than 40 hours a week for either company?
A: Yes. Under the Fair Labor Standards Act of 1938 ("FLSA"), covered employers are required to pay employees working more than 40 hours in a single workweek, "a rate not less than one and one-half times the regular rate." When an employee works for more than one company at a time, it is necessary to determine whether the employee's employers should be treated separately or jointly for purposes of determining the employers' responsibilities under the FLSA. The regulations interpreting the FLSA state that, if after considering all the facts, it appears that employment by one employer is not completely disassociated from employment by the other employer, all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the FLSA.
In our hypothetical scenario, although John does not work more than 40 hours a week for either company, the facts show sufficient association between both companies to consider them joint employers under the FLSA. Therefore, John should be entitled to 20 hours of overtime pay (35 + 25 = 60 - 40 = 20). This is consistent with the Department of Labor's interpretation that "where two or more employers stand in the position of 'joint employers' and permit or require the employee to work more than [40 hours], both the letter and the spirit of the statute require payment of overtime."
If you would like more information on these issues, take our course, Wage and Hour Regulations: The FLSA, available in our Course Catalog.
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Q: Despite believing his termination violated age discrimination laws, a 57 year old employee signed a release agreement in order to obtain a severance package. Three days later, the employee changed his mind and decided to fight his termination under the Age Discrimination in Employment Act. Does the release agreement prevent the employee from doing this?
A: No. The Older Workers Benefit Protection Act of 1990 ("OWBPA"), which was added as a collection of amendments to the Age Discrimination in Employment Act ("ADEA"), imposes multiple requirements that must exist in order to have a valid waiver of an employee's rights and claims under the ADEA. These provisions implement a strict, unqualified statutory stricture on ADEA waivers, thus reflecting Congress' policy of protecting the rights and benefits of older workers. Specifically, the OWBPA states that an "individual may not waive any right or claim under the [ADEA] unless the waiver is knowing and voluntary." In order to satisfy this "knowing and voluntary" standard, any ADEA waiver must contain, at a minimum, the elements enumerated in the statute.
One of these elements requires that a valid waiver of rights agreement under the ADEA must include a revocation period of at least 7 days following execution of the agreement, during which time the employee can revoke the agreement, thereby rendering it unenforceable and invalid. Some of the other elements require that the agreement be written in a manner calculated to be understood (plain language), that the agreement specifically refer to the ADEA, that the individual be given at least 21 days to consider the waiver agreement prior to executing the agreement, and that the individual be advised, in writing, to consult with an attorney prior to executing the agreement. In our hypothetical, the employee changed his mind about releasing his rights three days after signing the release. This falls within the minimum 7 day period required under the OWBPA. Therefore, the employee is not precluded from asserting his rights under the ADEA by the release agreement.
To learn more about the ADEA, read the article "Old Practices, Big Problems: What You Can Do to Avoid the Next Generation of Employment Practices Claims" in our News Archive.
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Q: Does an employer need to keep alien employment verification documents for more than one year even though the employee was fired after ten days on the job?
A: Yes. The Immigration Control and Reform Act of 1986 ("ICRA") requires employer verification of an employee's identity and authorization to work in the United States within three business days of hiring a new employee. Employers can accomplish this by reviewing one or more of the statutorily authorized documents, such as a United States passport, a resident alien card, a social security card, or a driver's license. After reviewing and verifying the appropriate documentation, employers must complete, under penalty of perjury, the Department of Homeland Security's Employment Eligibility Verification Form I-9.
Regardless of how long the employee works, employers are required to retain Form I-9 for "three years after the date of such hiring, or one year after the date the individual's employment is terminated, whichever is later." Under this provision, employers are required to retain the form for at least three years, no matter how long an employee stays with the employer. For employees with longer tenures, five years for example, the employer is required to retain the form for one year after the employment is terminated, or 6 years.
Employers' obligations under this provision have taken on a greater significance following the events of September 11, 2001. A review of recent news articles reveals that now, at the five year anniversary of the terrorist attacks, I-9 audits and raids by federal authorities, are playing a larger role in protecting national security.
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Q: Can XYZ Corp. reject a job applicant who has been denied a position because of information contained in their credit history, providing little if any detail for the reason of such denial?
A: No. The Fair Credit Reporting Act ("FCRA"), which was enacted in 1968 to improve the accuracy and fairness of credit reporting procedures, governs the use of consumer reports, including credit histories. Under FCRA, not only is authorization to obtain a report required, but among other things, any person who takes an adverse action "that is based in whole or in part on any information contained in a consumer report," must provide that individual with the following information: 1) notice of the adverse action; 2) the contact information of the consumer reporting agency furnishing the report along with a statement that such agency did not take the adverse action and has no information regarding the reasons for the adverse action; and 3) notice of the individual’s right to obtain a free copy of the consumer report and to dispute, with the consumer reporting agency, the accuracy or completeness of any information contained therein. FCRA allows such notice to be provided in oral, written or electronic format.
In our hypothetical, XYZ Corp. took an adverse action against the applicant because of information contained in their credit history. However, since the applicant received little if any detail of the reason for such denial, the notice provisions of FCRA could not have been satisfied. In order to avoid liability, XYZ Corp. must provide an individual rejected, in whole or in part, on the basis of their credit histories all the information required under FCRA.
For more information on this topic, you may want to take our course: Background Screening and the Fair Credit Reporting Act.
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Q: Can the use of code words, as opposed to explicitly derogatory racial epithets, form the basis of a Title VII claim for racial harassment?
A: Yes. Title VII of the Civil Rights Act of 1964 ("Title VII") makes it unlawful for a covered employer to discriminate on the basis of an individual's race, color, religion, sex, or national origin. Although typically evidenced by the use of inflammatory racial slurs, such specificity is not necessarily required to display improper racial animus. Code words and subtle inferences may trigger Title VII liability.
In addressing the propriety of a manager's use of the word "boy" when referring to African American employees, the Supreme Court recently noted the "although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign." The Equal Employment Opportunity Commission ("EEOC") recently released directives noting that race-related statements "include not only slurs and patently biased statements, but also 'code words' that are purportedly neutral on their face but which, in context, convey a racial meaning." How seriously are these directives being taken? The EEOC recently filed suit against an employer whose white manager was using a racial slur backwards when referring to an African American employee.
If you would like more information on discrimination and harassment in the workplace, you may be interested in our new course: Discrimination and Harassment Prevention: Promoting Workplace Diversity without Conflict.
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Q: In a lawsuit brought under the Americans with Disabilities Act for intentional discrimination, can the jury make the plaintiff-employee a multi-millionaire?
A: No. Under the Americans with Disabilities Act of 1990 ("ADA"), a plaintiff is allowed to recover both compensatory and punitive damages in cases of unlawful intentional discrimination if the jury so decides. However, under a separate federal statute, 42 U.S.C. §1981a, a plaintiff's recovery of such damages, exclusive of any back pay award, may not exceed specific statutory limits. Determining which limit applies in any given case depends on the number of employees employed by the defendant. There is a $50,000 limit if the defendant employs more than 14 and fewer than 101 employees; a $100,000 limit if the defendant employs more than 100 and fewer than 201 employees; a $200,000 limit if the defendant employs more than 200 and fewer than 501; and the maximum limit of $300,000 applies to a defendant who employs more than 500 employees.
These limits apply as to "each complaining party," which means that they apply on a per plaintiff basis. If multiple plaintiffs are involved, then the overall limit, from the defendant's perspective, will increase. However, from the plaintiff's perspective, the limits will not increase no matter how many other plaintiffs may be involved. These limitations are consistent with the ADA's underlying philosophy of removing barriers to employment. Although designed to prevent windfall recoveries to individual plaintiffs, the statutory scheme allowing for significant liability to employers with multiple plaintiffs remains an effective tool for dissuading employers from discriminating against qualified individuals with disabilities in the work place. Interestingly, juries are not informed of these limitations. If they happen to award more than the applicable statutory limit, the court will simply reduce the amount accordingly.
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Q: Due to a steady yet slow decrease in business over a period of several years, can a corporation with 250 full-time at-will employees decide that today is going to be the last day of work for 100 of them?
A: No. Under the Worker Adjustment and Retraining Notification Act, ("WARN"), an employer with 100 or more full-time employees may not order a mass layoff without providing at least sixty (60) days written notice to each affected employee. WARN defines a "mass layoff" as a reduction in force (not from a plant closing) resulting in an employment loss of (1) at least 33% of the full-time employees and (2) at least 50 full-time employees. In our example, the employer is firing 100 out of 250 employees, or 40%, and is firing more than 50 employees. Accordingly, both elements are satisfied, and compliance with WARN is required unless the employer can legitimately invoke an exception to the 60-day notice provision.
WARN provides an exception to the notice provision and allows for a mass layoff with less than 60 days notice if it is "caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required." Although a corporation may be able to argue a business circumstance warranting the mass layoff, it is unlikely that the corporation in question could successfully argue that the need for the layoff was "not reasonably foreseeable," because, in this hypothetical situation, the decline in business has been slow and steady for a period of years. Therefore, it looks like the corporation must provide at least 60 days notice prior to terminating 100 of its employees, which, consistent with WARN’s purpose, would provide affected employees and their families some transition time to adjust to the prospect of loss of employment, to seek and obtain alternative jobs, or, if necessary, to enter skills training that will allow these workers to successfully compete in the job market.
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Q: Can an organization covered by the Americans with Disabilities Act fire an employee who is currently in a drug rehabilitation program?
A: No. Individuals with qualified disabilities are protected against discrimination by the Americans with Disabilities Act ("ADA"). In addressing the issue of addiction to illegal drugs, the ADA specifically includes a provision protecting an individual who is participating in a supervised rehabilitation program and who is no longer engaging in the use of illegal drugs. Under this provision, it is unlawful to discriminate against the employee for merely being in a drug rehabilitation program. However, there are some limitations to this protection.
For example, the ADA does not protect an individual who is currently engaging in the illegal use of drugs. It is also permissible for the employer to adopt or administer reasonable policies or procedures, including drug testing, designed to ensure that the individual in a rehabilitation program is no longer engaging in the illegal use of drugs. Moreover, the employer may hold the employee who engages in the illegal use of drugs to the same standards of performance and behavior as it holds other employees, even if the unsatisfactory behavior or performance is related to the drug use of the employee. This essentially allows the employer to respond to addiction-related misconduct in a way that they cannot respond to other disability-related misconduct. Generally speaking, the ADA tries to find a balance between giving those individuals who are successfully dealing with their addiction a fair chance of employment and protecting employers from unwarranted lawsuits by employees who are currently engaging in the illegal use of drugs.
For more information on this topic, you may want to take our course: Understanding the Americans with Disabilities Act.
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Q: Can an employer be held liable under Title VII for racial discrimination even though the decision-maker who fired the employee did not know he/she was African American?
A: Yes. Under the subordinate bias theory of liability, also known as the "cat’s paw" or "rubber stamp" doctrine, an employer can be held liable under Title VII of the Civil Rights Act of 1964 for discrimination even though the employer was not aware that the employee was a member of a protected class. Relying on agency principles, an overwhelming number of courts have endorsed the doctrine of imposing liability where a biased subordinate uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action (cat’s paw) or where a decision-maker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate (rubber stamp). Under this theory, an employer’s liability comes not from intentionally discriminating against an employee, but from failing to discover that the subordinate recommending the adverse employment action is improperly relying on bias rather than performance.
How can an employer avoid being held liable under the subordinate bias theory? Investigate. Hear both sides of the story rather than taking the subordinate’s recommendation as gospel, because simply asking the employee for his/her version of the events may defeat liability. Ultimately, by simply conducting an independent investigation of the allegations against an employee prior to taking any adverse employment action, employers can protect against inadvertent violations of Title VII, which can be just as costly as intentional ones.
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Q: Can an employee attempt to use policy statements contained in an employee manual or handbook against his or her employer?
A: Yes. Disgruntled employees have sued employers to enforce "contractual rights" allegedly contained in their employee handbooks, even though such handbooks were only provided to communicate or clarify the employer’s general practices or policies. Poorly drafted handbooks containing statements amounting to promises of specific treatment in specific situations can create binding, enforceable contract rights that must be adhered to by the employer to avoid potentially costly litigation.
Typically, employees rely on provisions addressing discipline and termination to argue that the handbook limited or modified the "at-will" employment status, which allows an employer to terminate the employee at any time, with or without cause. However, a properly drafted employee manual or handbook can significantly reduce the likelihood of such a suit. Accordingly, any such manual or handbook must contain conspicuous disclaimers that employment is at-will and that under no circumstances will the handbook, or any statements contained therein, create a contract for duration of employment. Additional language may address an employer’s right to modify or cancel any policies or procedures, or a signed acknowledgment that the employee understands and accepts that his or her employment is, and shall remain, at-will. In any event, employers must include clear and conspicuous disclaimers in any employee manual or handbook in order to limit the possibility of successful breach of contract claims brought by disgruntled employees.
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Q: Does Title VII provide a remedy to an employee who is passed over for a promotion because it was given to the supervisor’s girlfriend/boyfriend?
A: No. The vast majority of courts addressing this issue have held that Title VII of the Civil Rights Act of 1964 does not recognize a cause of action for isolated instances of favoritism based upon consensual romantic relationships. This "paramour" theory of liability was also rejected in the EEOC’s 1990 Policy Guidance opinion, which stated that isolated instances of paramour favoritism, while potentially unfair, do not discriminate against women or men in violation of Title VII, "since both are disadvantaged for reasons other than their gender." In other words, a female who is denied a promotion because of her supervisor’s sexual favoritism towards the paramour (or spouse or friend), would not have been treated more favorably had she been a man and is not being overlooked because she is a woman. Ultimately, the employee’s gender plays no role in the supervisor’s decision, and, accordingly, there is no actionable discrimination. Title VII does not create a remedy for every unfair action taken by an employer. If the reason for passing an employee over for a promotion has nothing to do with that employee’s sex, then Title VII is not implicated. However, covered employers should monitor such instances closely because, while isolated instances of favoritism may not be actionable, widespread favoritism that is sufficiently severe or pervasive, may create a hostile work environment that is actionable under Title VII.
For more information on what Title VII deems actionable discrimination based on sex, see our course: Sexual Harassment: An Employee’s Guide.
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Q: It is true that actionable retaliation is not limited to ultimate employment decisions such as hiring, firing, promoting, or granting leave, but could a work reassignment following a claim of discrimination be considered retaliatory conduct?
A: Title VII of the Civil Rights Act of 1964 forbids a covered employer from retaliating against an employee for making or supporting a charge of discrimination under Title VII. In the context of employee reassignment, the Supreme Court recently opined that one good way to discourage employees from bringing or supporting discrimination charges would be to "insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable." The ultimate standard that will hereafter apply in Title VII retaliation cases is whether or not the employer’s challenged action was materially adverse in that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Therefore, although an employee’s decision to make or support allegations of discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience, employers should proceed cautiously when dealing with an employee who made or supported charges of discrimination.
For more information, see the article "Employers Beware: Supreme Court Broadens Scope of Title VII's Anti-Retaliation Provision" in our News Archive.
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Q: If an employee refuses to take a lie detector test in connection with being a suspect in rampant office theft, can the employer compel him/her to take it as a condition of continued employment?
A: Without specific additional supporting evidence, federal law prohibits an employer from discharging an employee for refusing to take a lie detector test. The Employee Polygraph Protection Act of 1988 ("EPPA") makes it unlawful for a covered employer to discharge any employee who refuses, declines, or fails to take or submit to any lie detector test. Despite EPPA’s broad prohibitions on lie detector test usage, there are a few limited exceptions. However, their invocation by employers wishing to submit their current or prospective employees to a lie detector test requires strict compliance with multiple procedural and notice requirements, the failure of which may expose an employer to severe and costly civil penalties and liabilities.
New to our Demo Center: "Lie Detector Tests in the Workplace."
This course aims to increase knowledge and awareness of the acceptable uses of lie detector tests in the workplace, and to enable the learner to administer lie detector tests that are lawful.
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Q: Do deeply peculiar behaviors from employees require an accommodation under the Americans with Disabilities Act?
A: Peculiar behaviors, if they result in an employer regarding an employee as disabled and substantially limited in a major life activity, may qualify the employee for protection under the ADA. Such potential exposure under the ADA’s "regarded as" definitional element of "disability" stems from Congress’ acknowledgement that society’s myths and fears about disabilities can be as handicapping as the physical limitations that flow from actually having a disability. Thus, in order to protect against discrimination based solely on the myths or stereotypes associated with a disability, Congress drafted the definition of disability under the ADA to include an individual being "regarded as" having an impairment that substantially limits one or more of the major life activities of such individual.
Although relatively narrow in scope, the Supreme Court identified two ways in which individuals may fall within the purview of the "regarded as" definitional element of disability: (1) a covered entity mistakenly believes that a person has an impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities. In both instances, the Supreme Court noted, it is necessary that an employer entertain misperceptions about the individual. The potentially actionable discrimination comes from the manner in which an employer regards an employee, not necessarily on any impairment the employee may have. Accordingly, employers must be conscious of the manner in which they regard their employees’ abilities and should proceed cautiously when making significant employment decisions based on perceived limitations.
If you would like more information on these issues, you may be interested in our course: Understanding the Americans with Disabilities Act.
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