Breastfeeding Breaks Now Mandatory, March 29, 2010
By now, most of you have heard that President Obama signed the Patient Protection and Affordable Care Act last week. This is the landmark health care reform law that is still working its way through Congress. One item, however, that may have not made it on most employers’ radar screens is legislation from that Act which amends the Fair Labor Standards Act (29 U.S.C. § 207(r)(1)), and provides that all employers covered by the FLSA are required to furnish “reasonable” breaks to mothers to express milk for their infants age one or younger. The breaks need not be paid, however, which is contrary to the general FLSA rule that employees be paid for breaks of less than 20 minutes.
The new amendment also requires employers to furnish a private space for expressing milk, other than a restroom. This required private space provision will not apply to employers with fewer than 50 employees if it would impose an undue hardship on the employer (defined as causing the employer significant difficulty or expense).
Employer Concerns Over Proposed OSHA Changes Continue To Mount, March 25, 2010
Congress has proposed amendments to the forty year old legislation that is OSHA. Protecting America’s Workers Act (PAWA), which has failed to pass in prior Congressional sessions, was reintroduced in April 2009. Congressional hearings on PAWA were held last week. The bill would amend OSHA to, among other things, expand coverage to additional workers, increase protections for whistleblowers, and increase penalties for certain violations. Employer groups, not surprisingly, have been urging Congress to back off and are begging proponents of the legislation to realize PAWA’s changes would create even more of an adversarial relationship between OSHA and employers than already exists.
Similarly, employers continue to protest against the recently announced proposed expansion of OSHA’s recordkeeping requirements that would require employers to track musculoskeletal injuries or disorders (MSDs) on the OSHA 300 work-related injury log. OSHA originally had a column on the form for MSDs when it rolled out the 2001 recordkeeping regulations, but ultimately removed it prior to publishing the final rule and forms. The opportunity for public comment ended last week so we should know sometime soon (this year?) whether the MSD column will become part of OSHA’s recordkeeping obligations.
Bank Ordered To Pay $1 Million to an Illegally Fired Employee! March 24, 2010
In 2008, a complaint was filed with OSHA, pursuant to the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002 (SOX), alleging that Tennessee Commerce Bank (the Bank) had wrongfully fired a corporate officer after he raised concerns about internal controls, employee accounts, insider trading and other issues. OSHA conducted its investigation and announced on March 18, 2010, that it has ordered the Bank to reinstate the former officer and pay more than $1 million in back wages, interest, attorneys’ fees, compensatory damages and other relief. The Bank has already announced it will immediately appeal OSHA’s decision and in fact, was anticipating the decision as an “expected step in a lengthy regulatory process that sometimes requires appeal in order to provide complete information.” Either way, there are not many companies out there who can boast of a $1 million OSHA fine. Good luck to the Bank on appeal.
Alcoholic Police Chief Fired After Drunk Driving Accident Not ADA Protected, March 23, 2010
A former police chief of Kane County Forest Preserve District, Charles Budde, had five glasses of wine one evening, drove home, and rear-ended another car, sending both the driver and passenger to the hospital. Budde had a blood alcohol level of .23, nearly three times the legal limit in Illinois. His driver’s license was revoked because of the accident and he was terminated. At the time of his termination, he had not yet been convicted of a DUI.
Budde sued his former employer under the ADA, alleging discrimination because of his alcoholism, failure to accommodate his alcoholism and retaliation for requesting a reasonable accommodation. Both the trial court and Seventh Circuit ruled against Budde, holding that his claims failed because his violation of a workplace rule (in this case, not breaking the law), even if caused by his disability (alcoholism), was not a defense to discipline. Further, his employer was not required to wait for the outcome of his criminal case before it terminated him. Thankfully, the courts agreed that Budde’s choice to drive while intoxicated and causing a crash that sent two to the hospital were sufficient facts to support his employer’s decision that Budde had failed to comply with workplace rules. The court held Budde was not a qualified individual, despite his contention that the essential job function of operating vehicle differed from not having valid driver’s license, where he violated standard operating procedures that prohibit public intoxication and violating public laws, he was unable to operate vehicle due to his revoked driver’s license, and his misconduct (not his disability) was the basis for his discharge.
DOL Issues Updated COBRA Model Notices, March 22, 2010
On March 17, 2010, the Department of Labor (DOL) released health care continuation coverage model notices to help plans and individuals comply with the notification requirements for certain current and former participants and beneficiaries of the COBRA premium reduction subsidy. The subsidy provides for the government to pay sixty-five percent (65%) of COBRA premiums. “Each model notice is designed for a particular group of qualified beneficiaries and contains information to help satisfy. . . [COBRA] notice provisions,” according to the DOL.
Under COBRA provisions, plans must provide the updated General Notice to “all qualified beneficiaries (not just covered employees) who experienced a qualifying event at any time from September 1, 2008, through March 31, 2010, regardless of the type of qualifying event, and who have not yet been provided an election notice.” The notice contains more current detail on the premium reduction subsidy and necessary information for a COBRA election notice. The model notices are available at http://www.dol.gov/ebsa/COBRAmodelnotice.html.
State Lawmakers Look to Bar Employers From Using Credit Checks, March 18, 2010
Maryland lawmakers have proposed legislation that would ban employers from using credit checks for hiring and firing decisions. The proposed legislation would not apply to financial institutions or businesses required by law to check credit. Proponents of the bill say that workers are being unfairly discriminated against because of their poor credit history, and that permitting employers to conduct credit checks only perpetuates a cycle of joblessness and hinders economic activity. Business groups are fighting the measure, arguing that the bill denies employers of a valuable screening tool. Moreover, business groups contend that employers need to know the financial backgrounds of people working not only in banks and other financial institutions, but in stores, restaurants, hospitals and customers’ homes.
Detroit Attempts to Clear The Air Following Settlement Of Fragrance Sensitivity Case, March 17, 2010
Proving once again that government is the only known vessel that leaks from the top, the City of Detroit has enacted new regulations aimed at eliminating the scent of perfume in state buildings. The new regulations are the result of the city's settlement of a 2008 lawsuit filed by a city planner, who claimed she experienced difficulty breathing due to a co-worker's perfume. The lawsuit, filed under the Americans with Disabilities Act, is representative of several fragrance sensitivity cases that have been filed in recent years. Placards will be put up in the three Detroit buildings detailing the restrictions on employees' use of such scented items as cologne or perfume. The notices due at the Cadillac Square Building, Coleman A. Young Municipal Center, and First National Building will also ask employees to refrain from using air fresheners and scented candles while on the job.
Senate Passes Measure to Extend Unemployment and COBRA Assistance, March 12, 2010
On Wednesday, the Senate passed a $140 billion measure that would extend unemployment benefits and COBRA subsidies for up to a year. The bill also includes provisions to renew expired tax cuts and provide states with additional money for Medicaid. The measure now goes to the House of Representatives.
Supreme Court to Hear Informational Privacy Claims, March 12, 2010
On March 8, 2010, the Supreme Court agreed to hear an appeal by NASA over informational privacy claims filed by low level contract employees. The United States Court of Appeals for the Ninth Circuit had previously entered an injunction against NASA and the California Institute of Technology prohibiting them from using certain questionnaires and disclosures for their security and background checks. At issue are a questionnaire that asks employees about, among other things, prior drug treatment or counseling, and a disclosure that would allow NASA to broadly question third parties about nearly every aspect of the employees’ lives. Noting that such background checks implicate the employees’ right to informational privacy, the Ninth Circuit ruled that they were not narrowly tailored and enjoined their future use.
The Supreme Court will likely weigh the limits of an employee’s right to guard personal information versus the government’s interest in full disclosure of an employee’s past.
COBRA Subsidy Program Extended Once More, March 8, 2010
On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010, which extends through March 31, 2010 the COBRA subsidy program (originally passed as part of the American Recovery and Reinvestment Act of 2009). This is the second extension of the subsidy program. A new option with this latest extension: for individuals who lost health coverage because of reduced hours, and did not make a COBRA continuation coverage election (or made an election but then discontinued COBRA coverage), if the employee is later involuntarily terminated from employment, the involuntary termination will be treated as a qualifying event for COBRA continuation coverage purposes. While the extension remains temporary, Congress is working to extend the subsidy program through 2010.
Pregnant Bartender the New Attraction at NY Strip Club, March 4, 2010
It isn’t often that a champion of women’s rights is found working at a business that derives its income from the blatant objectification of women. But according to attorney Jack Tuckner, his client (and former strip club bartender) Jennifer Paviglianiti “stands for all women.” Paviglianiti recently filed charges of discrimination against the Café Royale Gentleman’s Club located in central Long Island, New York, alleging that she was unfairly let go from her bartending job based once it was revealed to her boss, John Doxey, that Paviglianiti was pregnant. In an effort to bolster her case, Paviglianiti tape recorded Doxey, who stated (among other unpleasant things) “[e]ach week you’re getting bigger and bigger, and uh, more unsexy, unsexy” and further that “customers don’t wanna [sic] come in and see a pregnant woman behind the bar.” Undeterred, Paviglianiti confronted Doxey with the tape, and was hired back at the club as a cashier on the overnight shifts, where she claims to make less than half of what she made while working as a bartender. Although Paviglianiti’s case is based on the loss of her bartending position, she hopes to get her master’s degree in childcare and find work at a day care or nursery school once her daughter is born next month.
Not Too Old to Be a Jerk, March 4, 2010
A federal appeals court has ruled that an employee, who was referred to as an “old, gray-haired fart,” cannot prove that he was the victim of age discrimination. The evidence was overwhelming that the 69-year-old employee had sexually harassed a female employee. The harassment included inappropriate comments, as well as inappropriate touching.
While the court said that ageist comments could help to prove discrimination, they must bear some relationship to the discipline being imposed. Just because someone mentions your age during your employment does not give you the right to do anything you want. Jackson v. Cal-Western Packaging Corp., No. 09-20411 (5th Cir., March 2, 2010).
Vice President Biden Bows to Unions, March 2, 2010
At the annual winter meeting of the AFL-CIO Executive Council, Joe Biden assured organized labor that administration attempts to pack the National Labor Relations Board and pass the card check bill are not dead. The Vice President’s remarks come at a time when the economy is still struggling. Amazing.
Diabetes Not Necessarily an ADA Disability, March 2, 2010
A federal appeals court has confirmed that easily controllable diabetes is not a disability under the ADA. Noting that diabetes can be severe, which can raise it to the level of a disability, the Court found that a mild case was more an impairment under the ADA. As such, it was not covered. Carreras v. Sajo, Garcia & Partners, No. 08-2068 (1st Cir., February 23, 2010).
Obama Administration Continues Strong Ties to Unions, March 1, 2010
The Economist, a very liberal weekly newspaper, has been complaining lately that organized labor has too much influence on the President. The newspaper also notes that government employees continue to unionize at an alarming rate, with unions providing significant campaign contributions to the government officials who should be controlling the rising salaries of unionized government employees.
President Obama last week announced that Andy Stern, president of the Service Employees International Union, is being appointed to the recently created bipartisan National Commission on Fiscal Responsibility and Reform. Stern, a huge proponent of trashing secret ballot elections for selection unions in the private sector, would not show up as “bipartisan” on anyone’s list.
Pants-On-The-Ground Complaint Basis For Retaliation Claim, March 1, 2010
Thumb Correctional Facility (TFC) is located in Lapeer, Michigan. In 2008, a deputy warden decided to hold a rap music contest in which the winner would receive airplay on a local radio station. Ruth Mosholder, a correctional officer at TCF, claimed the competition created a potentially volatile situation. She saw prisoners flashing gang signs and singing about prison gangs. She also saw violations of the prison dress code, including some inmates wearing their pants too low. In October 2008, Mosholder wrote to state legislators claiming that the rap competition at TFC was ill-advised and created a very volatile situation that was on the edge of exploding.
Several months later Mosholder was transferred from her job as a school officer to position as a general corrections officer. TFC consider the reassignment a lateral transfer, because the two positions had the same rank and pay grade. However, Mosholder claimed the school officer job was preferable, because it involved less contact with inmates and came with a set schedule that did not require working weekends or holidays. In April 2009 Mosholder filed a lawsuit claiming the reassignment was retaliation for her complaints to state lawmakers and that it had violated her First Amendment right to free speech.
TFC argued that Mosholder's “lateral” assignment to general corrections officer was “trivial” and therefore was not an adverse employment action that would have deterred a reasonable employee from engaging in protected activity. The Court disagreed, finding “[a] reasonable jury could find that the Plaintiff's involuntary transfer which resulted in, for example, a loss of guaranteed holidays and weekends off, a change in job responsibilities, and a move to a more dangerous position, constitutes an adverse action sufficient to ‘deter a person of ordinary firmness from continuing to engage in that conduct.
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