February 19, 2010

Independent Contractors in the (Bad) News

This week, there have been a couple of big stories involving independent contractors -- more specifically, the classification of workers as independent contractors rather than employees (and vice versa). These stories show that worker classification is still a very hot topic, perhaps even more so in the current economic climate.

First, it was reported this week that President Obama's proposed budget includes a $25 million effort to stop the misclassification of employees as independent contractors, with funding for 100 new enforcement positions at the IRS. The Labor Department estimates that up to 30% of businesses misclassify employees as contractors, according to an article in the New York Times. 

This move isn't so surprising when you consider the economy -- and the money a company can save by classifying workers as contractors, who aren't entitled to benefits, overtime, workers' compensation coverage, or unemployment if they are let go. I've even heard stories of employees being laid off, then brought back months later as independent contractors to do essentially the same work. 

According to a study cited in Inc., about half of the jobs that have been created during the current economic recovery are "contingent," which means they are held not by employees but by temps and contractors. Used properly, contingent workers give companies the flexibility to ramp up quickly for a particular project, using professionals with experience and expertise, then pare back down just as quickly (and with very little legal exposure) once the project is done. Used improperly, turning employees into contingent workers exploits the employees, hurts morale and cohesion in the workplace, depletes state and federal tax coffers, and ultimately leaves workers at far greater risk of hitting bottom -- with no unemployment to protect them -- if the work runs out.

And speaking of hitting bottom and tax coffers, there was a second story about contractors this week. Apparently, the man who crashed a plane into an IRS office in Austin, Texas, yesterday was particularly angry about a provision of the Tax Code involving worker classification. The Times reported that the man's suicide note cited a 1986 law that made it more difficult for companies to classify certain workers who provide technical services as independent contractors. (The pilot of the plane was a computer software engineer.) The law ("Section 1706") essentially takes away certain defenses for these companies if they are audited for misclassification: Other companies can point to past industry practice, court rulings, and similar evidence to show that they had a reasonable basis for classifying workers as contractors, but those defenses aren't available for these technical services workers. The Times cites critics of the law, who say that it has prevented technical workers from becoming wealthy entrepeneurs and stymied technological innovation. The Times also reports that the law was passed essentialy as a way to raise tax revenue. 

Taken together, these two stories show the tension underlying worker classification: Workers are supposed to be classified according to the work they do, but the amount of money at stake seems to cloud everyone's judgment. And, the financial interests of private business and the government are decidedly at odds here. Generally speaking, when workers are classified as contractors, companies save money and the government loses money. When workers are classified as employees, companies pay more and the government collects more. 

While the financial incentives on both sides of the equation are therefore strong (and opposing), they are not supposed to be decisive. The law says that workers are to be classified according to what they do: Is their work essential to the employer's business? Does it require special training, skills, tools? Considering a long list of factors, do the workers truly look like independent business people, who can be expected to bargain at arm's length with the employer and cover their own costs of doing business? Or do they look more like employees, who have less bargaining power and may therefore need some protection against discrimination, on-the-job injuries, potentially oppressive working conditionsg, and job loss? With both business and government going broke, however, these fundamental policy considerations seem to have taken a back seat to financial concerns.    


To get the legal lowdown on how to avoid misclassifying a worker, read Working With Independent Contractors, by Stephen Fishman (Nolo).

February 10, 2010

Victorious Supreme Court Plaintiff Wins $1.5 Million Verdict

About a year ago, the Supreme Court found in favor of an employee, Vicky Crawford, who was fired after she participated in an investigation of workplace sexual harassment. (The case was Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee; you can read my previous post about it here.) The Court held that Crawford could sue for retaliation; Crawford's employer had argued that, because Crawford was only a witness in the investigation and not the person who had originally complained of harassment, she was not protected from retaliation. After the Supreme Court's decision kept Crawford's claim alive, the case went back to the federal district court for a trial on the facts.

A couple of weeks ago, the jury reached a verdict: Crawford was awarded $1.5 million in damages. After losing its legal argument that Crawford couldn't bring a retaliation claim, the employer tried a different tack: It argued that Crawford wasn't fired for participating in the harassment case, but for performance problems. The employer said Crawford was once a good employee, but her performance had been slipping; when an audit revealed problems in the payroll department, including checks that were never deposited, she was ultimately fired.

Of course, we can only know the facts that were recounted in news articles or court decisions about the case. Based on the information I've seen, I think there are a few lessons employers can take from what happened in this case:

  • Timing is everything. Retaliation cases are all about timing, more specifically how much time passed between the employee's protected activity and the employer's alleged retaliation. The shorter the time period, the more it looks like retaliation. Here, the HR person who conducted the harassment investigation reported possible problems in the payroll department on the same day she filed her report in the harassment case. Same day plus same person involved in both issues equals huge mountain for the employer to climb to refute a retaliation claim.
  • Can I get a witness? You don't necessarily need one to decide that harassment took place. It looks like another big problem for the employer in this case was that it fired three employees who participated in the investigation -- in which pretty bad behavior was alleged. Crawford said that the harasser pulled her head into his crotch, asked to see her breasts, and grabbed his own crotch, saying "you know what's up." Two other employees also said that they were harassed, and were also fired. Yet, the employer argued that it couldn't discipline the harasser because there were no witnesses to the behavior. Again, I've got no inside line on what "really" happened, but if three employees all allege that they were harassed, that's ample reason to take action. Often, there are no witnesses to harassment other than the harasser and the harassee. That doesn't relieve employers of their obligation to take action to stop harassment.
  • The work environment affects performance. Here, the employer said Crawford was once a good employee, but her performance declined. We don't know the source of Crawford's performance problems, but in a situation like this, employers should consider whether poor performance might be explained, at least in part, by the harassment. Employees who have been harassed might have higher absentee rates, problems concentrating, and other performance issues. If the problems are attributable to the harassment, the employer should deal with the underlying issue, then work with the employee to help her get back on track.  
February 6, 2010

President's Budget Plan Includes Extension of COBRA Subsidy

We've heard a lot in the past week about President Obama's proposed budget, unveiled in conjunction with his State of the Union speech last week. Topic number one seems to be how the budget plan would affect the national deficit. Apparently of quite a bit less interest, judging by the limited press it's received, is the proposal to extend the COBRA subsidy through 2010.

It's been reported that the budget proposal would make the subsidy available to those who are involuntarily terminated from March 1, 2010, through the end of the year. These folks would be eligible for up to 12 months of subsidized health care continuation (employees who are involuntarily terminated up until the end of February 2010 are eligible for 15 months of the subsidy, based on the first extension, passed by Congress this past December).

Are people taking advantage of the subsidy? The answer is a resounding yes, according to a survey reported in Business Insurance. Large employers reported that more than twice as many laid off employees have opted to continue their health insurance through COBRA since the subsidy first became available.

If the subsidy extension passes, some state legislatures may have to get on the ball in a hurry. A number of states offer "mini-COBRA" laws, which typically provide the right to continue health insurance to those working for smaller employers (COBRA covers only those with at least 20 employees). These laws differ widely in the details, including what counts as a qualifying event and how long continuation coverage can last. But most of them have this in common: As long as former employees meet the other requirements for the subsidy (for example, they were involuntarily terminated and meet certain income restrictions), they are eligible for the COBRA subsidy, even if they are receiving continuation coverage through a state law rather than through COBRA.

To allow employees to take advantage of the subsidy, a number of states amended their laws -- for example, to give employees who originally passed up continuation coverage a second chance to elect coverage once the subsidy was available. However, some states tied their amendments explictly to the original time frame for which the subsidy was available, and so might have to take legislative action to make sure employees of smaller employers are still eligible if the subsidy is extended.

It's interesting to me that, at a time when health care reform has been described as "on life support," unconscious," or in terms of some other unfortunate medical metaphor, the COBRA subsidy -- which is, after all, government-funded health insurance -- enjoys wide popularity, inside and outside of Congress.

UPDATE: After it was blocked temporarily by a Senator, Congress passed -- and the President signed -- a stopgap measure that extends the COBRA subsidy until the end of March 2010. (Congress is currently beginning work on comprehensive jobs legislation which will extend the subsidy to the end of this year.) The stopgap bill also clarifies that employees who initially lost their health insurance because of a reduction in hours are eligible to claim the subsidy if they subsequently lose their jobs. Read about it here.  

January 29, 2010

When One Business Sexually Harasses Another

A few weeks ago, an appeals court in New Jersey decided, in J.T.'s Tire Service v. United Rentals North America, that one business can sue another business for quid pro quo sexual harassment. If you're wondering how one business might make sexual advances toward another, the answer is: the old-fashioned way, with wandering hands and unwanted sexual propositions.

The facts of the case allege that Harold, the manager of an equipment rental company, stopped buying tires from Eileen, owner of a tire service, after she refused his sexual advances. She had been selling to the company for almost ten years, earning about $29,000 monthly from the account. After she rejected Harold's advances, he kissed and groped her, delayed payments to her company, and then stopped doing business with her altogether.

She (and her business) sued under a section of New Jersey's nondiscrimination law that makes it illegal to refuse to contract or do business with any person on the basis of a protected characteristic, including gender. The court found that Eileen faced quid pro quo sexual harassment, a form of gender discrimination that violated the statute. The court added that allowing such conduct would create barriers to a woman's ability to run a business on an equal footing with men, and was therefore exactly what the legislature was trying to get at when it passed this antidiscrimination provision.

To learn more about sexual harassment in the workplace, see Nolo's Preventing Employment Discrimination & Sexual Harassment area.

January 19, 2010

Facebook, MySpace, and Twitter (Oh, My)

There have been a number of legal developments involving Facebook, MySpace, and Twitter lately, all demonstrating that the intersection of traditional employment law and social networking sites has yet to be fully mapped.

Part of the problem seems to be that users of these sites believe themselves to be invisible, at least to their employers. For example, according to an article on Workforce Management (you may have to register to view it), investigators looking into employee workers' compensation claims search social networking sites for photos of employees engaged in activities that are incompatible with their claimed injuries -- such as bowling a perfect game, taking judo classes, or riding a bucking bronco. Then, there's the recently reported case filed by a Canadian woman, who says that her sick leave insurance benefits for depression were improperly cut off after an agent for the insurance company found photos of her on Facebook vacationing and taking in a show at Chippendales.

Even employees who take precautions to make sure employers can't view their posts are finding that management has its ways. In a recent case in the District Court of New Jersey, for example, some employees at Houston's restaurant created a group on MySpace for the stated purpose of venting about their jobs. The group was private and could be joined only by invitation. However, an employee member of the group showed it to a manager (she testified that she felt pressured to do so), a number of managers read it, and the employees who set it up were fired. The court recently upheld the jury's verdict in favor of the employees.

Some companies are so concerned about what employees -- or even the friends of employees -- might be saying about them online that they have instituted content rules or outright bans on social networking. According to an article in the National Law Journal, more than half of the companies responding a survey said that they prohibit employees from visiting social networking sites while on the clock. And, some companies have adopted rules about the content of employee posts. The Associated Press, for example, is reported to have not only set strict rules for employee pages (including that they should not express political affiliations or take a stand on contentious issues, even if their pages are restricted only to friends), but also asked employees to police the content others post on their pages. (You can find an article from Wired about it -- including a link to the actual policy -- here.) 

To learn more about why your company needs a policy on employee use of blogs and social networking sites, read Nolo's article Employee Posts on Facebook, MySpace, Twitter, and Blogs.

January 12, 2010

The Year to Come: How Will Employment Law Change in 2010?

My last post covered some of the many employment law developments of 2009, but what about the future? This could be another big year in the field, mainly because of the recent retirement announcements by Senator Dodd and Senator Dorgan, both Democrats. This means 2010 could be the swan song of the 60-vote Democrat (and Independent) filibuster-proof majority, giving some extra urgency to some of the labor and employee protective measures under consideration, such as:

  • The Employment Nondiscrimination Act (ENDA), which would add sexual orientation and gender identity to the list of protected characteristics under Title VII. I'm putting it first because I think it's most likely to pass. There, I said it.  
  • The Employee Free Choice Act, with or without the card check provision. This bill would increase penalties for labor law violations and require quicker elections, among other things. As currently written, it also requires the NLRB to certify a union if a majority of employees in the bargaining unit sign cards authorizing the union to represent them -- this is the card check provision. Last year, Democrats in the Senate indicated that they were willing to drop this most controversial part of the bill (perhaps in exchange for other rights, such as requiring employers to allow union organizers on company property). Now that unions feel that they are being asked to take the tax hit on their "cadillac" health care plans, however, they might feel they are owed a bit more from the Democrats.  
  • Leave provisions. There are a number of bills that expand employee rights to take leave, including the Healthy Families Act, which would require paid sick leave. There are some changes to the FMLA under consideration (including adding domestic partners, grandparents, siblings, and others as family members and undoing some of the recent revisions to the regulations). And then there's the bill to require time off for swine flu (it's not clear how long the shelf life is on this one).
  • The Civil Rights Act of 2010. OK, so no such bill has been introduced, but there has been enough grumbling about certain Supreme Court cases, including the Ricci case, the Gross case, and the Hulteen case, to make it a possibility.

Then, there are a few Supreme Court cases that should be interesting, including the Quon text messaging case, a case on whether two members of the NLRB have the right to issue decisions, and a disparate impact case on when a claim accrues. The court is also considering whether to hear a case on third-party retaliation, in which a man claims he was fired because his fiance filed a charge of discrimination against their employer with the EEOC.

Put all this together with the grand plans from the regulatory agenda I recently wrote about, and it adds up to another potential blockbuster year.  

January 4, 2010

2009: The Year in Employment Law

Last year was quite eventful when it comes to employment issues: Congress, the Supreme Court, and the crummy economy all did their part to keep things hopping. Here are some of the highlights:

And 2010 could be another big year: In my next post, I'll talk about some of the changes that might be in the pipeline. Stay tuned.

December 21, 2009

Congress Extends COBRA Subsidy

Over the weekend, the Senate passed a defense spending bill that included -- among many other things -- an extension of the COBRA premium subsidy provision that's about to expire. (You can find the entire bill at the website of the Library of Congress; search for the bill number, H.R. 3326, then skip ahead to Section 1010). The House already passed the bill, and it's been sent to the President for signing.

Currently, the COBRA subsidy allows those who are involuntarily terminated from September 1, 2008, through December 31, 2009 to receive a subsidy of 65% of their COBRA premium payments for up to nine months. The subsidy went into effect on March 1, 2009, which means that the first group of eligible folks -- those who had already lost their jobs and have been receiving the subsidy since the effective date of March 1 -- used up their nine months of subsidy coverage on November 30.

The extension would:

  • allow those who are involuntarily through February 28, 2010, to receive the COBRA subsidy, and
  • extend the subsidy period from nine months to a total of 15 months.

The extension to 15 months of subsidy eligibility also applies to those who have already used up their original nine months. For example, someone who was laid off and began receiving the COBRA subsidy on March 1, 2009, would have used up the nine months of subsidized coverage a few weeks ago. Now, that person will be eligible for an additional six months of subsidy payments. And, this coverage can be retroactive: That is, if an employee's subsidy ran out, and the employee didn't pay the full cost of COBRA coverage for December, the employee will have an opportunity to pay the lower amount to receive retroactive continuation coverage.  

December 19, 2009

Supreme Court to Hear Text Message Privacy Case

Last week, the Supreme Court announced that it would hear a case on the privacy of employee text messages, Quon v. Arch Wireless Operating Co. Although the Quon case involves a government employer, it raises a question that comes up all the time in both private and public workplaces: Are there limits to how far employers may go in monitoring their employees' electronic communications? The Quon case got a lot of press when it was initially decided by the Ninth Circuit, mostly because it's one of the very few cases in which a court said the employer had gone too far.

Jeff Quon was a segeant on the Ontario, California SWAT team. He was given a pager with wireless text-messaging capability for work, and was told that the department's email policy -- which gave the city the right to monitor, prohibited personal use, and told employees their messages were not private -- applied to the pagers. However, the lieutenant in charge of administering employee use of the pagers said something different: He told employees that each pager was allotted 25,000 characters per month, and that employee use of the pagers would not be audited as long as employees paid any overage charges for their accounts.

For eight months, the department did not audit anyone's pager messages. During this time, Quon exceeded the overage limit several times, and paid for his extra usage. When Quon and another officer again went over the limit, the chief decided to audit the use of certain pagers (including Quon's) to figure out whether the city should increase its 25,000 character allotment and whether the officers were using their pagers for personal reasons. The city asked its carrier (the Arch Wireless of the case title) to provide transcripts of the messages on the selected pagers, and found that many of Quon's messages were personal and some were sexually explicit. Quon, his wife, and two others with whom he exchanged text messages than sued for violation of their privacy rights.

The Ninth Circuit found against the city. Despite the written policy, the court found that the lieutenant's statement that he would not read their messages, combined with his practice of actually not reading messages for months, gave Quon and the others a reasonable expectation of privacy in their messages. The court also found that, even though the city's rationale for reading the messages was reasonable, it could have achieved that goal without reading the messages by, for example, warning Quon in advance that his pager would be audited, asking Quon to delete his personal messages, or asking Quon to count the work-related characters himself. Because there were less intrusive ways to find out what was going on with the pager accounts, the city's decision to read the messages was a privacy violation.

Because Quon involves a government employer, the Fourth Amendment (which prohibits unreasonable searches and seizures) applies. The Fourth Amendment doesn't protect private employees, so the court's decision in Quon won't explicitly extend to the private sector. But it will be highly influential: Courts have generally followed similar standards in analyzing privacy claims against private employers. The case will also have wide resonance because it will be the Court's first foray (as far as I can tell) into modern workplace monitoring -- the kind that involves electronic and digital communication, not phone calls and locker searches.

It's not surprising that the Ninth Circuit is one of the few courts to find in favor of an employee's privacy claim. The Ninth Circuit is still known as one of the more liberal -- and protective of civil liberties -- in the nation. And, the judges of the Ninth Circuit, themselves federal employees, have not taken kindly to the monitoring of their own communications: Almost a decade ago, the judges disabled the monitoring software on their own computer systems to protest an announced policy stating that court employees had no right to privacy in their email messages and Internet activities. That part of the policy was later withdrawn, in part because of the attention drawn to it by the Ninth Circuit protest.

If you need to create a policy for texting, email, instant messaging, or other employee communications, check out my book Smart Policies for Workplace Technologies (Nolo).

December 11, 2009

Regulatory Agenda: ADA, ADEA, FMLA, and Record Keeping Requirements

The federal agencies have released their Regulatory Plan and Unified Agenda of Regulatory and Deregulatory Actions (known as the "Unified Agenda.") Twice a year, federal agencies must provide this information to let the public know what regulatory actions they're planning and to coordinate rulemaking among the agencies.

The Unified Agenda can be somewhat daunting, both in length and in jargon (OMB Watch, a nonprofit that works to promote greater transparency in federal regulatory and budget matters, has a nice guide to some of the terms used in the Unified Agenda). Each federal agency that's included in the Unified Agenda must indicate what rulemaking it has planned in coming months. The list of agencies in the current Unified Agenda is here; when you click on an agency's link, you can see its statement.

The EEOC has identified two regulatory priorities:

  1. Implementing the employment provisions of the Americans with Disabilities Act Amendments Act (ADAAA). The EEOC issued proposed regulations on the ADAAA in September 2009 (you can check out my blog post reviewing the regs here), and asked for public comments to be submitted by November 23. Now, the agency must review all of those comments and come up with final regulations.
  2. Amending its regulations on the "reasonable factor other than age" defense to an age discrimination claim under the Age Discrimination in Employment Act (ADEA), an issue the Supreme Court addressed last year. (Here's my blog post on that case, Meacham v. Knolls Atomic Power Laboratory.)

The Department of Labor painted with a broader brush: It begins its regulatory plan with a sort of mission statement, lising 12 "strategic outcomes," from improving health benefits to helping injured workers return to the job, all intended to further the agency's goal of "good jobs for everyone." Here are the specific regulatory proposals that interested me:

  1. Updates to the child labor regulations.
  2. A review of the military leave provisions and the 2009 regulations interpreting the Family and Medical Leave Act (FMLA).
  3. Changes to the record keeping regulation for Fair Labor Standards Act (FLSA). 
November 16, 2009

Refusing to Hire Based on Bankruptcy

The economic downturn has caused a lot of numbers to decline, such as take home pay, retirement savings, bank account balances, and home equity. But at least two numbers have been skyrocketing recently: the unemployment rate, which is higher than it's been in more than 25 years (10.2%), and the number of personal bankruptcies filed, which surged past the one million mark for the first three quarters of this year, and is expected to exceed 1.4 million by the end of 2009.

Considered together, these numbers mean that more job seekers are likely to have a bankruptcy filing on their record. Bankruptcy discrimination is illegal, according to 11. U.S.C. Section 525. However, this protection includes a large exception that leaves most job seekers out in the cold. Although government employers may not discriminate in hiring, firing, or other aspects of employment against those who have declared bankruptcy, private employers have more leeway. They may not fire employees because they have declared bankruptcy, but the statute doesn't explicitly prohibit refusing to hire someone who has declared bankruptcy. Nearly every court to interpret this statute has found that private employers may legally reject an applicant solely because of a past bankruptcy.

Plaintiffs who bring these cases don't have much chance of winning -- unless they can prove that they were actually hired. If the applicant manages to become an employee before the employer rejects him or her, that employee may have a viable case.

A case decided last month by a federal district court in Florida is a good example. In Myers v. TooJay's Management Corporation, Eric Myers claimed that he was denied employment by TooJay's once the company received his credit report and learned that he had filed for bankruptcy. Both parties in the case filed for summary judgment, and Myers lost his claim for discrimination in hiring. The judge found that the statute doesn't prohibit refusal to hire based on bankruptcy, so Myers couldn't win on that allegation.

However, the judge found that Myers was entitled to continue to trial on his claim that he was actually hired by TooJay's, then fired once the company learned about his bankruptcy. Everyone agrees that Myers interviewed for the position, then spent two days in an on-the-job evaluation. When the evaluation ended, Myers was told that he had performed well and was asked to sign a number of documents, including a W-4 form, an I-9 form, an order form for an employee uniform, a nondisclosure agreement, and acknowledgment forms for the company's sexual harassment policy and employee handbook. Myers said the manager he spoke to made him an unconditional offer of employment and discussed his start date, hours, and salary range. The manager denied making these statements, and said that he told Myers any offer of employment was contingent on passing a background check. (Myers signed a consent to the background check along with the other forms.) After Myers gave notice at his old job, he received an adverse action form from TooJay's, stating that the company was rescinding its employment offer because he had filed for bankruptcy.

Based on these facts, the judge decided that a jury could find that Myers had been hired, and was therefore an employee protected from bankruptcy discrimination. So, Myers will have his day in court. TooJay's apparently has an official policy of not hiring anyone who has filed for bankruptcy. This seems overly punitive, given the many legitimate reasons why someone might declare bankruptcy, especially in this economic climate. But no matter where you come down on this issue, there's a lesson for everyone here: If you believe you haven't yet hired someone, don't ask that person to sign employment forms. Save the first-day paperwork for the first day of work.   

For more information on firing employees, see Nolo's Firing Employees & Employee Resignations area.

November 9, 2009

Congress Considers Legislation to Overturn Age Discrimination Ruling

Last term, the Supreme Court decided a controversial age discrimination case called Gross v. FBL Financial Services, Inc. You can read my blog post about it here, including my prediction -- which has now proven accurate! -- that Congress would try to overturn the holding in the case. (In fairness, I wasn't alone; plenty of others made the same prediction.)

The Gross case held that employees alleging age discrimination have to do more than show that their age was a "motivating factor" in the decision they're complaining about. They must show that their age was what lawyers call the "but for" cause of the decision -- in other words, that the decision would not have been made if not for their age.

This standard is different than the one used for other types of discrimination. In Title VII cases, if the employee can show that a protected characteristic (such as race or national origin) was a motivating factor in the employer's decision, the burden of proof then shifts to the employer, who must prove that the same decision would have been made regardless. The logic behind this procedure is that any consideration of a protected characteristic is improper and illegal. So, for example, if the employee can prove that the employer was motivated, even in part, by the employee's race, the employer bears the responsibility of defending its actions and proving that race was ultimately not the deciding factor. The employer bears this burden because the employer is already at fault for taking race into account at all.

The Gross decision is just the latest indication that age discrimination is treated differently than other kinds of discrimination. In part, that's because age discrimination is prohibited by a different statute, which uses slightly different language than Title VII. But it's also due to our societal belief that age discrimination just isn't as bad as other types of discrimination. (For an interesting take on the reasons that might motivate this belief, check out this editorial from The New York Times this weekend.)

Anyone who has practiced employment law will tell you that you have to prove a lot to win an age discrimination case. Biased comments that would be the smoking gun in a sex or race discrimination case seem to barely raise an eyebrow. There's a long line of cases dismissing statements about workers being "too old," having "senior moments," or needing to get out of the way to make room for "younger, more energetic" employees as stray comments, not sufficient -- and sometimes, not even considered relevant -- to prove discrimination.

Last month, the "Protecting Older Workers Against Discrimination Act" (HR 3721) was introduced in Congress. Its stated purpose is to overturn the Gross decision. It would require courts to follow the same burden shifting procedure in age discrimination cases as they follow in Title VII cases: Once the employee shows that age was a motivating factor in the decision, the employer would have to show that the decision would have been made even if age had not been considered. 

If this bill passes, it could make a big difference. As our population ages and competition for scarce jobs increases, age discrimination claims are on the rise. In 2008, the EEOC reported that charges of age discrimination increased more than 28% from the previous year, the largest increase of any type of claim.    

To learn more about age discrimination in employment, see The Essential Guide to Federal Employment Laws, by Lisa Guerin & Amy DelPo (Nolo).

November 6, 2009

Emergency Sick Leave Bill: Congress Considers Time Off for the H1N1 Virus

Earlier this week, Representatives George Miller and Lynn Woolsey, both from the San Francisco Bay Area, introduced a bill in the House of Representatives that would require employers to provide five paid sick days per year to workers who are sent home (or asked to stay there) because of a contagious illness, such as the H1N1 flu virus. The bill would apply to full-time and part-time employees; part-timers would receive a prorated number of hours off. The bill also protects employees who are directed to stay home, by providing that their employers may not discriminate or retaliate against them for following these directions.

Lately, the news has been filled with stories of workers who don't get paid time off and can't afford to stay home when they are ill. As the press release for the bill points out, many of the estimated 50 million Americans who don't get paid sick leave work in low-wage jobs, such as food services, hospitality, school work, and health care, where they are likely to have contact with the public. And, the Centers for Disease Control (CDC) has said that every worker who comes to work sick will infect one in ten coworkers.

The CDC has recommended that those who have the H1N1 virus stay home until 24 hours have passed since they last had a fever. (Those in the healthcare field are advised to stay home for seven days after they first get sick, or 24 hours after their symptoms go away.) However, the CDC has also said that those who have been sick may continue shedding the virus (that is, they will continue to be contagious), although at lower levels, for up to ten days. 

The bill, called the "Emergency Influenza Containment Act," would apply only to employers with at least 15 employees. It's intended as an emergency provision, and would sunset (expire) two years after enactment. The House Committee on Education and Labor is scheduled to hold a hearing on the bill in a couple of weeks.




November 3, 2009

Supreme Court Will Hear Case on Two-Member NLRB Decisions

Yesterday, the Supreme Court announced that it has agreed to decide an issue that has had the Courts of Appeals tied up in knots: whether decisions issued by only two members of the National Labor Relations Board (which has five members at full strength) are valid. (The case the Court will decide is called New Process Steel v. National Labor Relations Board; you can find the petition for certiorari -- the brief lawyers must file arguing that the Supreme Court should hear the case -- here.)

The National Labor Relations Board, or NLRB, has had only two members since the end of 2007. President Obama has nominated three new members, who are awaiting a floor vote in the Senate. Meanwhile, the two members of the NLRB have issued hundreds of decisions in representation and unfair labor practices cases. And, now that the Supreme Court has agreed to decide whether two members may act for the NLRB, the outcome of all of those cases may once again be in doubt.

The case turns on the NLRB's authority to delegate its powers to a smaller group, and how large that smaller group must be. The National Labor Relations Act, which created the NLRB, allows the full Board to delegate any of its powers to a group of at least three members (a quorum). The Act also says that two members may constitute a quorum on issues that the full Board delegates to a three-member group. For those of us who skipped the student council and model U.N. meetings, all this talk of delegations and quorums can numb the brain. But the issue boils down to this: Can the NLRB act with only two members or does it need at least three? Or, as the petition for certiorari put it more dramatically, "Does the NLRB exist?"  

The federal Courts of Appeal have split on the issue. In fact, the Seventh Circuit Court of Appeals and the D.C. Circuit issued decisions on the same day, reaching opposite conclusions. The NLRB should be back at full strength by the end of this year, but the Supreme Court's decision will determine whether almost two years worth of NLRB cases should be upheld or thrown out. There's a lot at stake, in other words. 


October 27, 2009

FMLA Amendments in Defense Authorization Bill

It looks like the military family leave provisions of the FMLA are about to be amended. The National Defense Authorization Act of 2010, which is currently awaiting the President's signature, includes the Supporting Military Families Act. (You can find it at Section 565 of this massive piece of legislation, about 120 pages in.)

This provision would make four key amendments to the FMLA:

  1. Qualifying exigency leave would be available to family members of those in the regular Armed Forces as well as those in the National Guard or Reserves. This type of leave allows family members to take some time off to handle important matters (such as setting up temporary childcare, drafting a will, or making financial arrangements) relating to a child, spouse, or parent's impending call to active duty military service. If this bill passes, family members of career military personnel who are deployed would also have the right to take qualifying exigency leave.
  2. Qualifying exigency leave would be available to family members of all those deployed to a foreign country. In other words, the bill removes the requirement that a member of the National Guard or Reserves be serving "in support of a contingency operation." This would expand the number of employees eligible for this type of leave.
  3. Family members would be eligible to take caregiver leave to care for a veteran suffering a service-related serious illness or injury, as long as the veteran was a member of the Armed Forces, National Guard or Reserves within five years of requiring care. This new provision is intended to allow leave to care for a family member with an injury that might not manifest right away, such as post-traumatic stress disorder. Currently, the FMLA allows military caregiver leave only for current service members.
  4. Military caregiver leave would be available when a family member has a preexisting serious illness or injury that is aggravated by active duty in the military. The law currently allows caregiver leave only for serious illnesses or injuries incurred while on active duty. It seems possible (to me) that this new provision could be interpreted to allow multiple 26-week periods of leave for the same injury -- first, when the service member is initially injured, and later if the service member returns to active duty and aggravates the injury. This scenario is something the current regulations explicitly disallow.