The 5 most interesting things about GINA

To have Gina, Gina all for my very own
It’s much too wonderful, so very wonderful
To know that Gina is mine alone
 – Gina, Johnny Mathis

Yesterday, the EEOC published the long-awaited regulations to the employment provisions of GINA [pdf], the Genetic Information Nondiscrimination Act. According to the EEOC, GINA has 4 stated purposes:

1. To prohibit the use of genetic information in employment decisions;
2. To restrict employers and others from requesting, requiring, or purchasing genetic information;
3. To require that employers maintain genetic information as a confidential medical record, with strict limits on disclosure; and
4. To provide remedies for individuals whose genetic information is acquired, used, or disclosed in violation of the Act. 

After taking a day to digest these regulations, here’s what I found to be the 5 most interesting things the regulations provide:

1. GINA does not just cover employees’ genetic information. It also covers the genetic information of relations as attenuated as great-great-grandparents, great-great-grandchildren, and first cousins once-removed (the children of first cousins).

2. GINA is intended to be a broad anti-discrimination statute. It not only prohibits discrimination against employees on the basis of genetic information in hiring, firing, compensation, terms, conditions, or privileges of employment, but also harassment on the basis of genetic information, and retaliation where an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge.

3. GINA’s prohibition against the request of genetic information about an employee or family member includes Internet searches in a way that is likely to result in obtaining genetic information, even if the information is publicly available. However, if an employer “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue” (such as an employee who posts family medical history on his Facebook wall, and his supervisor, with whom he is a Facebook friend, sees it), GINA has not been violated. Employers are similarly protected for genetic information employees inadvertently disclose during casual “water cooler” conversations.

4. GINA permits employers to obtain genetic information as part of employer-provided health or genetic services, such as voluntary wellness programs. While the regulation do not define “voluntary,” they do provide that employers can offer certain financial incentives to employees without stripping the wellness program of its voluntariness.

5. GINA requires that employers keep all genetic information confidential, stored in separately maintained confidential medical files, consistent with the medical information storage obligations of the ADA. There is, however, a grandfather provision for genetic information obtained before November 21, 2009. Employers need not strip that information from non-confidential files.

As I noted above, there has been a lot of coverage around the blawgs about these regulations. If you are looking for more information and analysis on GINA’s regulations, I recommend the following:

• EEOC Issues Final GINA Regulations – from Washington D.C. Employment Law Update (the most comprehensive summary I’ve seen)
• Social Media and GINA – from Philip Miles’s Lawffice Space
• Final GINA Regulations (Finally!) Published: Addresses Treatment of Acquisition of Genetic Information Via Social Media – from the Social Networking Law Blog
• Finally, EEOC Issues Final GINA Regs – from Kiernan’s Corner: Preventive Law for Employers
• EEOC Issues Final GINA Regulations – from the Iowa Employer Law Blog
• EEOC Issues Final GINA Regulations for Employers – from the Delaware Employment Law Blog
• EEOC Issues Final GINA Regulations – from Human Resources News
• Final GINA Regulations Address Online Searches, Wellness Programs, and More – from Nolo’s Employment Law Blog
• Final GINA Regulations Published: Impact in Connecticut Still Unclear – from Dan Schwartz’s Connecticut Employment Law Blog

In the face of these regulations, expect to see genetic discrimination claims as a growing trend in 2011.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? FMLA & bereavement leave (or, what to do when a supervisors calls an unauthorized leave request “cool”)

The FMLA covers a lot of family emergencies. Death, however, is not one of them. There is no situation in which the FMLA, on its face, provides for a leave of absence for bereavement. Lots of employers allow for bereavement leave for lots of situations, but it is not required by the FMLA.

That is, it is not required by the FMLA unless you promise otherwise. In Murphy v. FedEx National (8th Cir. 8/26/10), an employee sought and received FMLA leave to care for her hospitalized husband. When he died a week later, she took three days’ bereavement leave. Thereafter, she told her supervisor she needed 30 more days to “take care of things.” The supervisor responded, “OK, cool, not a problem, I’ll let HR know.” As it turns out, the extra 30 days was a problem for HR, which denied the request and terminated the employee, who had not returned to work.

The 8th Circuit was not all that sympathetic to FedEx’s claim that Murphy didn’t qualify for FMLA leave. The court focused on the supervisor’s statement, “OK, cool, not a problem, I’ll let HR know.” It concluded that one could easily interpret that statement to be an approval of the request for leave.

This is known as coverage by estoppel. While the FMLA does not cover bereavement leave, an employer’s representation, on which an employee reasonably relies to his or her detriment, will create coverage under the statute. In other words, if an employee, based on all the facts the circumstances, reasonably believes that the employer approved the FMLA leave, the employer cannot deny the leave request.

How do you avoid situations like these from cropping up in your workplace? You cannot require all leave requests be in writing, but there are certain steps you can take.

1. Train all managers and supervisors on the minutia of your leave policies. Anyone with any authority of any kind over employees must know what leave is authorized and what is not.
2. Require that all leave requests of any kind go through a designated central person or persons, like an HR manager.
3. Place a statement in your handbook that only leave granted by that central person or persons is authorized, and that no one else within the company has the authority or discretion to grant a leave of absence of any kind. That way, even if a supervisor tells an employee that leave is “cool,” it will not be reasonable for her to rely on that statement.

Do you want to read more on coverage by estoppel?

• Court adopts no-harm, no-foul approach to employer misstatements about FMLA coverage
• Don’t estop yourself into coverage
• Mind your (mis)representations
• Sixth Circuit holds that estoppel can bind a small employer to provide COBRA coverage

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Are businesses cracking down on bandwidth?

I cannot work in silence. I never could, and I likely never will be able to. In high school, I did all my homework with the stereo blaring in my bedroom. In college, I studied in the common area of my dorm, with activity buzzing all around. And in law school, the student lounge was my study area. So, it comes as no surprise to me that I’ve never been able to practice law in silence either. These days, it’s either my iPod, or XM radio streaming through my desktop. The latter, however, is a bandwidth hog. Do the math. If you multiply me times a few dozen employees (or a few hundred, or a few thousand, depending on the size of the organization), it’s no surprise that corporate networks are being strained.

It’s also no surprise that employers are starting to fight back. According to the Silicon Valley Mercury News, Lockheed Martin Aeronautics announced to its employees that it would begin blocking music-streaming sites, online radio stations and gaming sites, and sites that stream sports and entertainment audio or video. Lockheed estimates that these recreational uses consumed up to 10% of its Internet bandwidth.

Decisions such as those taken by Lockheed are difficult ones. It’s often a struggle to balance corporate resources and employee morale. There is no right or wrong answer. You could frame the dilemma simply as “more bandwidth costs more money, ergo, bandwidth restrictions.” Or, you believe that happy employees are more productive employees, and determine that what you spend in extra bandwidth you will recoup in added productivity. Or, you can act like the HR manager in Dilbert and reward serious offenders by promoting them.

Bottom line – businesses need to make decisions about the appropriate allocation and use of bandwidth, and incorporate that decision into a workplace technology policy that sets out the dos and don’ts of workplace Internet use.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #151 (the election recap edition)

Here’s my 140-character recap of Tuesday’s election: Obama did not learn from Clinton’s 92 – 94 mistakes. Cost Dems huge. We’ll see if Boehner learned anything from Gingrich’s post-1994 gaffes. Craving a more substantive analysis of the 2010 mid-term elections?

• State Secret Ballot Measures – from Workplace Prof Blog

• Post-elections Implications for Labor Bills in Congress – from Joe’s HR and Benefits Blog

• Impact of Midterm Election on Employment Law – from The Word on Employment Law with John Phillips

• Ohio: More Business-Friendly Approach Is Likely – from HR Hero’s Human Resources News

• Now That the Election is Done and Republicans Own the House, What Does that Mean for Labor? – from Wisconsin Employment & Labor Law Blog

• What did Election Day 2010 mean for the Healthy Workplace Bill? – from David Yamada’s Minding the Workplace

Here’s the rest of what I read this week:

Discrimination

• Parents Need Not Apply – from WorkLife Law Blog

• Among Recent Lawsuits Filed By The EEOC, Disability, Retaliation Claims Most Prevalent, Employer Size Varies – from Hunton Employment & Labor Law Perspectives™

• Patience Is A Virtue With Workplace Investigations – from Colorado Employer’s Law Blog

• What Does Climbing the St. Louis Arch Have To Do With Proving Discrimination? Learning Employment Discrimination Law Basics From a Classic Civil Rights Story – from George’s Employment Blawg

• Halloween Harassment – from Abovethelaw.com

• Muslim Truck Driver Refuses to Deliver Alcohol – from Philip Miles’s Lawffice Space

Employee Relations

• “Use good judgment in all situations” – from Walter Olson’s Overlawyered

• Fired and Need Legal Advice? There’s an App for That – from Robert Ambrogi’s LawSites

• Business Case for Work/Life Balance--Really? – from The Careerist

• HR Plays Too Much Defense – from Fistful of Talent

• “Hire Attitude vs Aptitude”: A Lesson from Disney – from Michael Haberman’s HR Observations

• Referring to Former Boss as Slimebag Does Not Constitute Disparagement, At Least in Ohio – from Fitzpatrick on Employment Law

• Ohio School Employees Can Still Be Fired for Criminal Past – from employeescreenIQ Blog

Social Networking and Technology

• NLRB Alleges that Connecticut Company Illegally Fired Employee Over Comments on Facebook – from Dan Schwartz’s Connecticut Employment Law Blog

• Judge Obtains Protective Order Based on a Tweet – from Molly DiBianca at the Delaware Employment Law Blog

• Florida Issues New Jury Instructions: No Tweeting, Blogging, Net Research, etc. – from Sharon Nelson’s Ride The Lightning

Wage & Hour

• Strippers Claim Coverage Under FLSA And File Class Action! – from Wage & Hour - Development & Highlights

• USERRA coverage may be triggered prior to formal military orders – from Employment Law Matters

Trade Secrets & Competition

• Hire a Great Candidate, But Hopefully Avoid a Lawsuit – from Trade Secret / Noncompete Blog

• Just Because Trade Secrets Were Misappropriated Doesn’t Mean Unjust Enrichment Occurred – from Trade Secrets Blog

• Non-competition covenants’ restriction on innovation – from Maryland Employment Law Developments

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

6th Circuit holds that an individual must be disabled to challenge a selection criteria under the ADA (but does it matter?)

Employee use of prescription drugs has been in the news lately. Last week, the New York Times ran a piece discussing the drug testing of employees for prescription medications. The article discussed Dura Automotive Systems, which, over concerns about drug use and worker safety, hired an independent company to administer random drug tests of its employes. It chose to screen for 12 types of drugs, including hydrocodone and oxycodone. Seven Dura employees tested positive for lawful prescription medications and sued following their terminations.

Yesterday, in Bates v. Dura Automotive Systems, Inc. (6th Cir. 11/3/10) [pdf], the 6th Circuit dismissed the claims of any of the plaintiffs who are not disabled under the ADA.

Section 12112(b)(6) of the ADA prohibits discrimination based on qualification standards, employment tests or other selection criteria. It provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual [by] using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

The 6th Circuit concluded that the plain language of the statute barred non-disabled employees from pursuing a claim:

Although non-disabled individuals may bring claims under some provisions of the Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The text of subsection (a) and (b)(6) specifically refers to “qualified individual[s] with disabilit[ies],” and not … a broader class of individuals such as “employees.” … A straightforward reading of this statute compels the conclusion that only a “qualified individual with a disability” is protected from the prohibited form of discrimination described in subsection (b)(6)…. Although other sections of the Act apply to non-disabled individuals, the Act’s primary purpose is to prevent discrimination against disabled individuals…. Interpreting subsection (b)(6) as being limited to individuals with disabilities better gives effect to Congress’s decision not to use the word “employees” in this subsection.

This case may end up being much ado about nothing. Because terminations occurred before Jan. 1, 2009, the 6th Circuit decided this case under the pre-amendment ADA, which had a might tighter definition of “disability.” As I have previously discussed, the ADA Amendments Act expands the definition of “disability” so broadly that virtually every employee with a medical condition could be considered “disabled.” Therefore, future drug testing cases likely will not be decided on the issue of whether the tested employees were “disabled.” Instead, courts will decide future cases on whether the drug testing was job related and consistent with business necessity—an affirmative defense under the ADA. For this reason, it is important for businesses to contemporaneously document the job nexus and business need for all employee drug testing.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Does your social networking policy violate federal labor laws?

It was only a matter of time before the NLRB inserted itself into the intersection of social networking and employment relations. It has Twitter account. Now, it has issued its first complaint challenging an employer’s social networking policy.

The NLRB has issued a complaint against a company that fired an employee after posting negative comments about her supervisor on her personal Facebook page. The Blog of Legal Times reports that the NLRB not only alleges that the employer illegally fired the employee for the posting, but that the company “maintained and enforced an overly broad blogging and Internet posting policy.”

An NLRB investigation found that the Facebook postings were “protected concerted activity,” and that the company’s blogging and Internet posting policy contained unlawful provisions, including one that barred employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission.

“Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity,” the NLRB found.

This case could have far reaching implications for all employers—not just those that are collectively bargained. If the NLRB concludes that a singular posting on a personal website constitutes protected concerted activity, then it will be nearly impossible for an employer to regulate off-the-clock Internet activity. The NLRB will hold a hearing on this case on January 25, 2011. I will be very interested to read the ALJ’s decision.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Reading the tea leaves: Staub v. Proctor Hospital and the “Cat’s Paw”

Before we get into the specifics of the Staub case, let’s first discuss the relationship between a cat’s appendage and employment discrimination law. The “cat's paw” derives from a 17th century fable by French poet Jean de la Fontaine. In “The Money and the Cat,” a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another’s bidding. Drawing the parallel between la Fontaine’s fable and discrimination law, one seeks to hold an employer (the cat) liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence (the monkey). As Mike Maslanka put it on his Work Matters blog, the question is what is an employer’s liability “when the guy who pulled the trigger is pure, but the guy who loads the gun is not?”

Thus, the argument in the case is framed like this:

• Employers argue that federal discrimination laws make the employer liable only for the actions of the employee or supervisor who takes the discriminatory action.
• Employees,  however, argue that the is enough that the person with the discriminatory animus (the money) played some role in the process, even if the decision maker (the cat) is completely unaware of the animus.

As for the specifics of the case, Staub brought his claim under USERRA, which, among other things, protects those in military service from discrimination upon their return to employment from active duty. Staub had been a long-time employee of Proctor Hospital before being called upon to serve in Iraq. Many at the hospital were critical of Staub’s military service because of the strain it put on those who had to cover from him in his absence. When the Vice President of HR, who held no hostility towards Staub, terminated him, he sued, claiming that although the decision maker was not personally biased against his military service, she fired him based on the hostility of Staub’s direct supervisors.

The 7th Circuit reversed a jury verdict for Staub, holding:

[W]here an employee without formal authority to materially alter the terms and conditions of a plaintiff’s employment nonetheless uses her “singular influence” over an employee who does have such power to harm the plaintiff for racial reasons, the actions of the employee without formal authority are imputed to the employer…. [W]here a decision maker is not wholly dependent on a single source of information, but instead conducts its own investigation into the facts relevant to the decision, the employer is not liable for an employee’s submission of misinformation to the decision maker.

In other words, under the 7th Circuit’s pronouncement of the cat’s paw, the employer can only be liable if the decision maker is only influenced by the animus of the non-decision makers.

Yesterday, the Supreme Court held oral argument [transcript, in pdf] in this case. It’s hard to read Supreme Court Justices at oral argument. Sometimes they play devil’s advocate, and sometimes they genuinely challenge the attorney. Regardless, I found the following question from Justice Breyer (one the Court’s more liberal justices) to the employer’s attorney to be insightful:

You have A and B, they are both supervisors; in the one case B fires the employee because he is in the Army, and he says it: Ha, ha, that’s why I’m doing it. In the second case he fires the employee … for a perfectly good reason, but A has lied about it. And the reason A lied about it was because she wanted to tell him a lie so B would fire the employee, and her reason is because he’s in the Army. Those two situations, the second seems to me one of … 80 million situations, fact-related, that could arise, and I don’t know why we want a special standard for such a situation. Why not just ask the overall question, was this action an action that was -­ in which the bad motive was a motivating factor. Forget psychoanalysis of A. B is good enough -- or vice versa.

I also found insightful the following exchange between Justices Alito and Kennedy and the employee’s attorney:

   Justice Alito: Even -- even if the employer at that time did every -- made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?

   A: Yes. There is nothing in the statute or in the common law that creates a special rule for thorough investigation.

   Justice Kennedy: Well, that's a sweeping rule. I was going to ask a related hypothetical. Suppose the -- the officer who is in charge, charged with the decision to terminate or not to terminate says: I'm going to have a hearing. You can both have counsel. And you have who, is it -- suppose Buck -- suppose the two employees that were allegedly anti-military here testified and they said there was no anti-military bias, and the person is then terminated. Later the employee has evidence that those two were lying. Could he bring an action then?

   A: Yes. Yes.

   Justice Kennedy: That’s sweeping. That's almost an insurer’s liability insofar as the director of employment is concerned…. He has to insure. He has -- he has done everything he can, he has an hearing, and he has almost absolute liability.

Reading the tea leaves, it is likely that the cat’s paw will survive the Supreme Court’s review in a narrow form. I predict that the court will derive a standard that looks to the ultimate decision and the role that the animus of the non-decision maker played in that decision. I also think that the Court will craft an affirmative defense or other means to rebut the inference of the cat’s paw, such as the decision maker's independent investigation of the circumstances leading to the termination.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.