Is your wellness program discriminatory?

It is no secret that health care costs for employers and their employees are out of control in this country. Many employers have attempted to hold down these rising costs by offering wellness-program incentives — insurance premium reductions to employees who meet certain health-related incentives such as tobacco-use cessation, BMI goals, or minimum cholesterol levels.

Yesterday, however, the Obama administration made these wellness incentives more difficult for employers to implement. Pursuant to the Affordable Care Act, the administration issued final regulations on Incentives for Nondiscriminatory Wellness Programs in Group Health Plans [pdf].

Among other restrictions, these regulations require companies to provide “reasonable alternatives” to employees who cannot meet health benchmarks but still want the discounts. The regulations further clarify that this “reasonable alternative” standard is different than an ADA-required reasonable accommodation, and providing a reasonable alternative to achieve a wellness-program incentive does not mean that an employer has met its obligations under the ADA. Note that earlier this month, the EEOC held a public meeting discussing the treatment of employer wellness programs under the ADA.

These new rules will affect all group health plans for plan years beginning on or after January 1, 2014.

If you are among the many of employers that has implemented a wellness program, these regulations are required reading to ensure that your program meets these new nondiscrimination rules.

(an)G(el)INA

The Earth stopped rotating on its axis earlier this month when Angelina Jolie announced that she is undergoing a voluntary double mastectomy. Her rationale? Because she carries the BRCA1 gene, she is 87 percent likely to contract breast cancer at some point in her life.

Have you heard of GINA, the Genetic Information Nondiscrimination Act? As Phil Miles points out on his Lawffice Space blog, Ms. Jolie “just became the poster-child for GINA.”

Among other things, GINA prohibits employers from:

• making an employment-related decision with respect to an employee because of genetic information; or
• requesting or requiring that an employee disclose their own genetic information, or that of a family member.

It is fortuitous for the EEOC that Ms. Jolie has done so much to raise the profile of genetic profiling, since earlier this month, that agency announced that it settled the very first case it ever filed alleging genetic information discrimination. In its lawsuit, the EEOC alleged that the employer violated GINA when it asked an employee for a family medical history as part of its post-offer pre-employment medical examination. The EEOC’s press release quotes EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Ms. Seely is correct. Even though GINA has been law for more the four years, it is seldom discussed or understood. Employers need to take this lesson to heart. Genetics—both an employee’s and that of one’s family members—is off limits in employment.

Photo by Georges Biard [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

This post originally appeared on The Legal Workplace Blog.

There are no magic words to invoke the FMLA

The Family and Medical Leave Act does not require an employee to use the word “FMLA” to request leave under, and invoke the protections of, the FMLA. Instead, an employee only needs to do the following:

• For foreseeable leave, an employee only needs to provide “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.”

• For unforeseeable leave, an employee only needs to provide “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”

In either instance, this informal notification triggers an employer’s designation obligations under the FMLA.

How vague can verbal notice by an employee be to trigger an employer to consider the notice a request for FMLA leave? In Wiseman v. Awreys Bakeries LLC (6th Cir. 5/22/13) [pdf], the plaintiff, an employee with a history of back problems, verbally complained that he was “injured” and “couldn’t work.” The company fired him for unexcused absences, claiming that he provided no explanation or medical reason.

The appellate court reversed the trial court’s dismissal of the FMLA claim, finding that an issue of fact existed over whether the employee provided FMLA-qualifying notice. The court held that the employee’s verbal statement that he was “injured” and “couldn’t work,” coupled with the company’s knowledge of his history of back injuries and the employee’s request to see the company’s doctor, could lead a jury to conclude that the employee had invoked the FMLA.

Cases like Wiseman should rarely happen. The FMLA provides protections for employers who, in good faith, doubt whether the FMLA covers an employee’s request for time off. When there exists any doubt over whether an employee is seeking time off for a reason that could qualify under the FMLA, there is no harm in treating the request as one for FMLA leave. In fact, an employer has greater protection in an FMLA-covered scenario than not.

• If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

• If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools  to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

photo credit: ShellyS via photopin cc

“Fire me. … Make my day” does not equal protected concerted activity (thank god)

The Rolling Stones famously sang, “You can’t always get what you want.” One employee recently got exactly what she wanted (and needed) from her employer, yet filed a claim anyway. After taking to Facebook and pleading to be fired, she sought the help of the NLRB, claiming that she had been fired in retaliation for protected concerted activity. Thankfully, the NLRB concluded that she should not be entitled to proceed with her case.

In a group discussion with some co-workers, the employee said the following about her employer:

“They are full of shit … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FUCK … FIRE ME. … Make my day…”

When an annoyed colleague took a print-out of the rant to management, the disgruntled employee was fired.

Earlier this month, the NLRB Office of General Counsel issued an advice memo [pdf], opining that a termination under these circumstances is legal, and recommended the dismissal of the unfair labor practice charge:

In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions. … These comments merely reflected her personal contempt …, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual “griping,” and boasting about how she was not afraid to say what she wished at work.

Even the NLRB had no sympathy for this devil of any employee. An employee who begs to be fired cannot seek satisfaction when her employer takes her up on her offer.

This case illustrates that a line of reasonableness does exist between protected concerted conversations about working conditions and a lone wolf spouting off at the mouth. Thankfully, the NLRB is not always a beast of burden for employers.

Regardless of the employer’s victory in this case, however, businesses should still tread carefully when considering terminating an employee for speech (online or offline) about working conditions. The NLRB remains active in this area, and a mis-step could prove costly (especially in light of Lafe Solomon’s recent re-nomination as general counsel of the NLRB).

For more on this case, you can read the following:

• Eric Meyer’s Employer Handbook Blog — Employee posts “FIRE ME…Make my day…” on Facebook. And guess what?
• Employer Law Report — When Employee Taunts Employer via Facebook to “FIRE ME. ...Make my day…” NLRB Memo Concludes the Employer Can Go For It

WIRTW #275 (the “reality bites” edition)

Last night, Fox debuted its new reality show, Does Someone Have To Go?, which Entertainment Weekly bills as Survivor meets The Office. Here’s the premise:

 

Needless to say, the New York Times is not impressed, unflatteringly calling the show “a victory” for companies and horrible for employees:

The squabbles are petty, ill-informed and sometimes personal, and seemingly dredge up unacknowledged tensions around race and age…. The stakes, as they are presented, are dramatic. For signing up to be on this show, employees … run the risk of conflict, humiliation and, possibly, unemployment. (Presumably, these workplaces are not unionized.)

As for me, I was glued to the TV, and will be through this show’s run. Yet, I couldn’t help but think about the scope of the release agreement these employees had to sign before appearing on the show.

Did you watch? Share your opinion in the comments below, or on Twitter with the hashtag #WorkplaceReality

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

Discrimination

• Dear Evil Skippy: Was It Harassment For My Boss To Talk My Underwear? — from Evil Skippy at Work
• When an Employer Provides More Parental Leave to Mom than Dad, is this Gender Discrimination? — from FMLA Insights
• Sixth Circuit Upholds Summary Judgment for Employers in Two Cases Brought by Terminated Pregnant Employees — from Employer Law Report
• EEOC: no post-offer inquiries about family medical history — from Overlawyered
• Inquiring about Family Medical History Violates Genetic Information Nondiscrimination Law — from Maryland Employment Law Developments
• Pointers on avoiding Diabetes Discrimination — from Mike Haberman’s Omega HR Solutions
• Lawffice Links - New EEOC Publications Galore! — from Phil Miles’s Lawffice Space
• EEOC talks employer wellness programs; provides an ADA Q&A — from Eric Meyer’s The Employer Handbook Blog
• A sanctions award in EEOC v. Spitzer, the “don’t have your lawyer investigate” case — from Warren & Associates Blog

Social Media & Workplace Technology

• The Latest Social Media Concern for Employers — from WSJ.com
• Can an LLC member violate the Stored Communications Act by accessing other members’ email? — from Internet Cases
• Using Computer Forensics to Investigate IP Theft — from Law.com
• SMBs embrace BYOD, but slow to manage mobile devices — from ZDNet
• Act On Clarifying Ownership of Work-Related Social Media Accounts Before You Become “Dinner” — from Dan Schwartz’s Connecticut Employment Law Blog
• Sitting on Big Data: The Evolution of the Mobile Workplace — from Innovation Insights

HR & Employee Relations

• Do You Know the Seven Factors That Comprise “Just Cause”? — from Trade Secret / Noncompete Blog
• What About Office Romances? — from Evil HR Lady
• The Price Of Being Pregnant at Work — from HuffPost Live
• Debunking The 'No Friends At Work' Rule: Why Friend-Friendly Workplaces Are The Future — from Forbes
• Bullying bosses beware: Your targets may undermine you — from Minding the Workplace

Wage & Hour

• USDOL "Misclassification" Focus Continues — from Wage and Hour Laws Blog
• W.H.D.?: Here We Go Again … Independent Contractors Targeted Once More — from The Wage and Hour Litigation Blog
• 8th Cir: FLSA Plaintiffs Must Spell It Out — from Molly DiBianca’s Delaware Employment Law Blog
• Proposed Overtime Legislation Passes House, Faces Uphill Battle in Senate — from Impact Litigation Journal
• Wages, Salaries & Overtime – Oh My! 4 Myths About Employee Pay — from TLNT

Labor Relations

• NLRB takes aim at employer electronic communications and social policies — from EmployerLINC
• Senate Committee Approves President’s Nominations to the NLRB — from Wyatt Employment Law Report
• It’s a Little Too Little: Is The NLRB Headed Towards Irrelevance? — from Employment Essentials

Until next week:

(Bonus points if you know the link between the new wave hit My Sharona, by The Knack, and this post.)

When state law conflicts with the EEOC on criminal background checks, who wins?

Last year, the EEOC issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. While the Guidance was much more fair and balanced than many employer advocates (me included) expected, it does include some head-scratchers for businesses. One such conundrum is how regulated employers are supposed to act when across-the-board criminal background searches are required by state law, as the EEOC takes the position that a blanket requirement violates Title VII.

Per the EEOC:

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

How is an employer supposed to handle this conflict? Waldon v. Cincinnati Public Schools, currently pending in the Southern District of Ohio, may provide some future guidance.

That case concerns the application of Ohio H.B. 190, which became law in 2007. That law requires criminal background checks of all current school employees, regardless of whether their duties involve the care, custody, or control of children, and mandates the termination of any employee with a certain number of historical convictions, regardless of the convictions’ age.

Two African-American employees challenge that H.B. 190 has an unlawful disparate impact because of race. Both were terminated based on decades-old convictions. All told, the Cincinnati Public Schools fired 10 employees as a result of background checks conducted pursuant to H.B. 190; nine of the 10 fired were African-American.

It is early in the litigation of the Waldon case. The court denied the employer’s motion to dismiss.

First, it concluded that it was clear that the Plaintiffs pleaded a prima facie case of disparate impact.

Although there appears to be no question that Defendant did not intend to discriminate, intent is irrelevant and the practice that it implemented allegedly had a greater impact on African-Americans than others.

The existence of statistically significant disparate impact, however, if only the first step in the analysis. An employer can avoid liability if the challenged practice is justified by business necessity. While the court believed this issue to be “a close call,” it ultimately concluded that it could not make that call on a motion to dismiss:

Obviously the policy as applied to serious recent crimes addressed a level of risk the Defendant was justified in managing due to the nature of its employees’ proximity to children. However, in relation to the two Plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when Plaintiff Britton’s offense was insubstantial, and when both had demonstrated decades of good performance. These Plaintiffs posed no obvious risk due to their past convictions, but rather, were valuable and respected employees, who merited a second chance.… Under these circumstances, the Court cannot conclude as a matter of law that Defendant’s policy constituted a business necessity.

Talk about a tough position in which to place an employer. Does the employer violate state law or violate Title VII? Ultimately, I think the correct answer should be neither. Shouldn’t the need to follow state law provide the employer’s “business necessity?” If not, employers will be faced in the untenable position of following one law and violating the other.

photo credit: kevin dooley via photopin cc

This post originally appeared on The Legal Workplace Blog.

Email surveillance as evidence of retaliation

Employees should not operate under any false ideas that they enjoy an expectation of privacy in their work email accounts. Just because an employer has the right to snoop through an employee’s email, however, does not mean the practice does not carry some degree of risk.

Consider, for example, Fields v. Fairfield County Board of Developmental Disabilities (6th Cir. 12/6/12). Fields claimed that her employer retaliated against her after it discovered an email she sent to some co-workers threatening a lawsuit against the Board. The court concluded that the email surveillance was insufficient evidence of pretext.

Simple enough? What if, however, the claim was that the company only started watching her email after it learned of the protected activity, and used evidence of misconduct in the email to support the termination decision. Could the email surveillance, in and of itself, be an adverse action sufficient to support a claim of retaliation? The legal standard for an adverse action sufficient to support a claim of retaliation is very broad. Anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” qualifies as a retaliatory adverse action. If you don’t regularly review employee email accounts, and only start examining an employee’s electronic activities after that employee engages in some protected activity, might that dissuade others from engaging in protected activity?

If you are going to enforce a policy or exercise some employer right (like surveillance of corporate email or computer systems), do it consistently, not selectively and only after an employee complains about discrimination. Otherwise, you could change a legal and reasonable act (e.g., email surveillance) into evidence of unlawful retaliation.