Employment Law Lookout

#Trending Now — NLRB and Social Media Policy Guidance

Posted in NLRB, Privacy & Social Media

By: Jonathan L. Brophy

Employers know that the National Labor Relations Board may scrutinize their policies to determine if they violate the National Labor Relations Act (the “Act”) – and specifically, Section 7’s protections for “concerted activity.”

When searching for clear guidance on what standards to follow, employers soon find that the NLRB’s most recent fact sheet only addressed cases as recent as 2012 – leaving them to the unenviable task of navigating the myriad Administrative Law Judge Decisions (which are not legal binding precedent unless they have been adopted by the Board on review of exceptions), unpublished Board Decisions (also not binding precedent for anyone other than the parties at issue) and Board Decisions.  Three recent cases from the summer of 2014 demonstrate that the intersection of social media, employer policies and the Act, are still at the forefront of the NLRB’s agenda.  While these decisions do not provide clear standards, they offer valuable take-aways that employers should be aware of when drafting or reviewing their social media policies.

Encouraging Civility Is Not Unlawful

To be protected under Section 7 of the Act, employee conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.”  Policies that restrict those activities can violate the Act.

In June 2014, an administrative law judge issued a decision finding that the employer’s social media policy did not violate the Act.  The primary policy language at issue was as follows: “While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees, which could lead to morale issues in the workplace or detrimentally affect the Company’s business.”

The judge examined whether employees would reasonably construe the language to prohibit Section 7 activity and concluded that the policy language was lawful.  Specifically, it was not the job-related subject matter of the postings that were of concern to the employer, rather it was the manner in which the subject matter was articulated and debated among the employees.  The judge found that the language at issue “urged [employees] to be civil with others in posting job-related material and discussions on social media sites” and that such language did not violate the Act.  The policy could be understood under common parlance to prohibit posting of personal (not personnel) information about social relationships and similar private matters, which could result in morale problems or which could also constitute “harassment” (to which the social media policy referred). The judge also found that the policy did not prohibit posting of “personnel” information or “payroll information” or “wage-related information,” which would be unlawful under the Act.

The take-away here for employers is to ensure that the purposes of the social media policy (and other policies generally) are clearly articulated to ensure that discussion of subject matter protected by the Act (i.e., wages, work environment, job issues, etc.) are not prohibited.

Avoid Overbroad Confidentiality Rules

On August 11, 2014, the Board issued a decision in which it found that an employee had engaged in concerted, protected activity when she enlisted the help of coworkers to report a claim of sexual harassment.

In a footnote to the decision, the Board found that employer’s handbook violated the Act because it contained an overbroad and discriminatory confidentiality clause.  However, the Board also found that the employer’s instruction “not to obtain additional statements from her coworkers in connection with that Complaint” did not, in itself, violate the Act.  Specifically, the employer had instructed the employee to let the Human Resources representative obtain additional statements.  The company did not prohibit the employee from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing subsequent complaints, or obtaining statements from coworkers in the future.  The Board acknowledged that employers have a “legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.”

The take-away here for employers is to ensure that company policies, whether related to social media or not, are not so restrictive as to be construed against employees exercising their Section 7 rights.

Savings Clause For Policy Doesn’t Save Policy

On August 22, 2014, the Board issued another decision where it determined that the employer unlawfully terminated an employee who “liked” a comment about their employer.  (Click here to read Seyfarth’s One Minute Memo on that decision).

The Board also examined whether the employer’s social media policy violated the Act by analyzing three questions, whether: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

The Board found that the employer’s prohibition against “inappropriate discussions about the company, management, and/or coworkers” on social media was “sufficiently imprecise” such that employees would reasonably understand it to encompass protected Section 7 activity.  The employer’s general savings clause that the policy “is of no force or effect” if “state or federal law precludes it” was not enough, especially because the employer had, in fact, terminated two employees whose Facebook discussion of tax withholding issues was concerted, protected activity.  The Board also found it instructive (and harmful to the employer) that the policy provided “no illustrative examples of what the [employer] consider[ed] to be ‘inappropriate.’”

The take-away here for employers is that social media policies (and other policies, generally) should provide fairly specific examples of prohibited conduct under their policies.  Savings clauses likely will no longer survive NLRB scrutiny and policies should be crafted to avoid being overly broad, but specific enough to accomplish the protections desired.

Conclusion

Employers should review their social media policies to ensure that the policies provide the most protection for the employer to enforce its anti-harassment, trade secret and other policies, but that the policies also do not unlawfully prohibit protected concerted activity.

Be sure to download Seyfarth Shaw’s Social Media Desktop Guide by clicking here.  Or contact the author or a member of Seyfarth Shaw’s Social Media Practice Group to get more information.

OFCCP Proposes Anti-Pay Secrecy Regulations for Federal Contractors

Posted in Workplace Policies and Processes

By: Meredith  C.  Bailey, Cassandra Hanley Carroll and Christine Hendrickson

Today, the Office of Federal Contract Compliance Programs (“OFCCP”) issued proposed regulations that would limit covered federal contractors’ ability to take adverse action against applicants and employees who discuss compensation.  The proposed rule is available here.

The protections afforded by the proposed regulations may have a familiar ring to employers covered by the National Labor Relations Act (NLRA).  The NLRA has been interpreted to prohibit covered employers from discriminating against some employees who discuss or disclose compensation information under certain circumstances.  These proposed implementing regulations to Executive Order 13665, would extend much broader nondiscrimination protections for disclosing pay information than the NLRA, and the OFCCP’s proposal brings with it the threat of routine audit by the OFCCP.  The proposed regulations issued today cover:

  •  Both applicants and employees of federal contractors and subcontractors;
  •  Managers and supervisors;
  •  Activity that may not be considered to be “concerted” under the NLRA; and
  •  Information about the amount and type of pay and decisions, statements, and actions related to setting or altering employee compensation.   The OFCCP states in the NPRM that the proposed definition “is meant to be broad enough to cover any information directly related to employee compensation, as well as the process or steps that led to a decision[.]

Highlights of the Proposed Rule

The NPRM proposes to amend the existing Equal Opportunity Clause of Executive Order 11246 to require that all Federal contracts and subcontracts include language prohibiting discrimination against employees and applicants who disclose or discuss compensation.  The proposed regulations still allow that these modifications to be incorporated by reference by citing 41 CFR § 60-1.4(a).  This is good news for federal contractors who likely just completed the painstaking process of modifying their subcontract and purchase order language to be compliant with the VEVRAA and Section 503 regulations.

Most meaningfully, the regulations, if adopted in their current form, will give legal redress to applicants and employees under Executive Order 11246 who can demonstrate that discussing, or disclosing compensation information was a “motivating factor” in their termination or other adverse employment action.  Under this “motivating factor” standard, a complainant need only demonstrate that discussing or disclosing compensation information was one of any number of factors in the employer’s discharge or discipline decision, even if it was not necessarily the only determining factor.  This is a less stringent standard than the “but-for” test that applies to retaliation claims under Title VII, as articulated in the Supreme Court’s recent ruling, University of Texas Southwestern Medical Ctr. v. Nassar, No. 12-484 (June 24, 2013). The OFCCP’s decision to adopt the lower “motivating factor” test is likely to generate significant public comment given that President Obama’s Executive Order, to which these proposed regulations respond, was titled “Non-Retaliation for Disclosure of Compensation Information,” giving the appearance that it intended to impose only non-retaliation prohibitions.

In addition to modifying the equal employment opportunity clause and adding legal protections, the proposed rule would also require that covered contractors incorporate the nondiscrimination provision into their existing employee manuals or handbooks, and disseminate the nondiscrimination provision to employees and job applicants.  Moreover, the OFCCP seeks public comment on a proposal that could require training on these new retaliation requirements for managers during routine new manager training, or subsequent manager meetings.

Limited Defenses Available to Contractors

The regulations, as proposed, give employers two limited defenses.  First, employers will not be found to have violated the new regulations if the employer can demonstrate that the employee or applicant violated a legitimate workplace rule.  For example, the NPRM describes a scenario where an employer that takes adverse action against an employee who violates the employer’s rules against disruptive behavior in the workplace by repeatedly posing unwelcome compensation questions to her colleagues.  By demonstrating that it took action against the employee to enforce a legitimate workplace rule, the employer may rebut any allegation of discrimination under the proposed rules.  The inquiry will then focus on whether the rule was uniformly and consistently applied.

Second, another defense in the proposed rule mirrors a defense set forth in Executive Order 13665, to wit, a contractor will not violate the proposed rule if it takes adverse action against an employee, who is entrusted with confidential compensation information of other employees or applicants “as part of his or her essential job functions,” for disclosing such compensation information.  To rely on this defense, the offending employee must have access to confidential compensation information as part of his or her fundamental job duties, and not marginal functions of the position.

What Should Federal Contractors Do Now?

These executive actions are the latest in a year filled with regulatory initiatives impacting federal contractors, including the new OFCCP disability and veterans regulations that went into effect on March 24, 2014, and four other executive orders impacting federal contractors (see here, here, here, and here).  As a result, if you are in the process of updating your policies to comply with these other regulatory requirements, we recommend that you review your policies in connection with that review.

Further, employers that undertake non-attorney client privileged compensation analyses should take note, as these discussions are likely to be fair game for the OFCCP if the proposed regulations are adopted as written.  The OFCCP proposal does not indicate that it is seeking to disrupt attorney-client privileged discussions so we strongly encourage you to seek legal assistance in making any remedial compensation decisions.

The OFCCP has requested public comment on a number of issues related to these proposed regulations, including whether to require manager training on the new nondiscrimination requirement.  The period for providing public comments on this NPRM starts today and will run until December 16, 2014.

OSHA Head Says OSHA Will Lower Whistleblower’s Burden Of Proof In Investigations

Posted in OSHA Compliance, Whistleblower

By Brent I. Clark, Ada W. Dolph, and Craig B. Simonsen

In remarks before its Whistleblower Protection Advisory Committee, OSHA Administrator Dr. David Michaels said that he will lessen the whistleblower’s burden of proof in investigations.

Dr. Michaels spoke at the September 3, 2014 Whistleblower Protection Advisory Committee meeting. In his introduction, he noted that from 2009 through June 30, 2014, OSHA has issued 3,726 merit determinations, “recovering over $119,000,000 in damages for whistleblower complainants, and reinstated 389 whistleblowers to their positions.” In fact, “in the first three quarters of this year, we’ve already issued 602 merit determinations and awarded approximately $21.5 million in damages to whistleblower complainants.” Dr. Michaels asserted that from 2009 through June 30, 2014, OSHA more than doubled the number of complaints OSHA found to have merit (from 450 in FY2009 to 934 in FY2013). A real question, of course, is whether this extraordinary increase in merit findings by OSHA was actually warranted by the facts of those cases.

Apparently, though, there were not enough complaints that were found to have merit by OSHA’s investigators, as the Administrator believes that the burden of proof in whistleblower investigations was just too high. “We are working on a new policy memo clarifying the Agency’s position regarding burden of proof in whistleblower investigations. The memo will change the burden of proof to be based on a ‘reasonable cause’ that a violation occurred, which is a lesser burden to prove than a ‘preponderance of the evidence.’ OSHA and the office of the Solicitor of Labor are working on this policy memo and it should be completed shortly.”

While the burden of proof in whistleblower cases is a legal standard prescribed in the 21 statutory provisions for whistleblower protections that OSHA administers, including OSHA 11(c), STAA, AIR21, and SOX, Dr. Michaels believes that OSHA should lower the burden needed before OSHA can find a case has merit. The natural consequence of such policy change will be even more cases being found to have merit by OSHA.

Of course, what Dr. Michaels and OSHA cannot change is the actual burden of proof that the courts are required to apply under each statute. If OSHA is constantly using a lower burden of proof to screen and evaluate cases, regardless of the statute, it seems they may be headed for trouble if and when they get to court.

Brent Clark and Ada Dolph are Partners, and Craig Simonsen is a Senior Litigation Paralegal, in Seyfarth Shaw LLP’s Chicago office.  If you would like further information, please contact a member of the Workplace Whistleblower Team, your Seyfarth attorney, Brent Clark at blcark@seyfarth.com, Ada Dolph at adolph@seyfarth.com, or Craig Simonsen at csimonsen@seyfarth.com.

Title VII Religion Plaintiffs Must Prove That Employers Know About Religious Beliefs

Posted in Workplace Policies and Processes

By: Clark Smith

We all know that Title VII prohibits religiously based discrimination.  So at first glance it seems an odd result to hear that the Fifth Circuit recently ruled that a nursing home did not violate Title VII when it terminated an aide for refusing to help an elderly resident pray the Rosary, a Catholic prayer practice.  But when we dig a little deeper, the case highlights an element of a Title VII claim that is unique among religion claims—namely, a plaintiff must prove that the decision maker knew about a specific religious objection before termination.

The employee in this case (we’ll call her Kelsey) worked as an aide at a Nursing facility in southern Mississippi.  She helped the residents with their daily tasks, such as moving them around the facilities.  She was also a former Jehovah’s Witness.  And although no longer a practicing member, she still held many of the faith’s tenets.  A nursing assistant—not Kelsey’s supervisor—instructed her to help a resident who requested that a Rosary be read to her.  Kelsey refused, and stated that she could not participate in a Rosary because it was against her religion.  She did not explain to the nursing assistant what her religion was, nor how the Rosary conflicted with it.

The resident complained to management that nobody had read her the Rosary.  After a brief investigation, management fired Kelsey (and there may have been some evidence that this was not Kelsey’s first rules violation).  Kelsey’s head supervisor called Kelsey into her office and told her that she was fired for insubordination for refusing to read the Rosary to the resident.  Kelsey said that the Rosary violated her religious beliefs, but the supervisor terminated her anyway.  It was undisputed that the supervisor did not know that the Rosary violated Kelsey’s religious beliefs until after she fired her.

Kelsey filed suit in the Southern District of Mississippi, alleging that her employer violated Title VII by terminating her based on her religion.  A jury awarded nearly $70,000 in damages, and the trial court denied the Nursing facility’s motion for judgment as a matter of law.

On appeal to the Fifth Circuit, the Nursing facility argued that the district court should have dismissed the case because Kelsey had no evidence that the Nursing facility knew about her religious objection before it fired her.  The court agreed.  “[W]e simply cannot find evidence that Kelsey ever advised anyone involved in her discharge that praying the Rosary was against her religion.”  Without more, a reasonable jury had no legally sufficient reason to rule against the nursing home.

This was a close call.  The court acknowledged that if Kelsey had presented any evidence suggesting that a decision maker knew that her objection was religiously based, then the jury would have been entitled to find for her.  You can imagine the many ways the case could have come out differently: if Kelsey had voiced her religious beliefs in the past, if the nursing assistant had let the supervisor know that her objection was religious, or even if Kelsey had routinely requested time off for religious holidays.  But in this case, Kelsey had nothing to point to that suggested that the decision maker knew her objection was religious prior to the decision to terminate her employment.

Even though the Nursing facility prevailed, the case should send employers a cautionary message.  Not every court in the country might rule this way.  Many judges could infer that an objection to reading the Rosary is de facto an objection based on religion, and rule that employees are not required to tell their bosses about their specific religious beliefs before claiming Title VII’s protections.

Employers are well within their rights to discipline or even fire employees for insubordination.  But, we should continue to use common sense when defining just what constitutes insubordination.  The decision provides all the more reason to stay out of employees’ private business, like what their religious beliefs may or may not be.  If some management is aware of an employee’s religious beliefs, there need to be mechanisms in place so that that information is not shared with decision makers to avoid religious discrimination claims.

For more information about this subject, please contact Clark Smith or your Seyfarth attorney.

Seventh Circuit Vacates Multi-Million Dollar Jury Verdict Against Nursing Home On Retaliation and Whistleblower Claims; Plaintiffs Seek Rehearing En Banc

Posted in Whistleblower

By: Paul E. Freehling

In a stunning reversal, the Seventh Circuit recently vacated an over $12 million jury verdict against a nursing home and its president, and remanded it to the district court for judgment to be entered in favor of defendants.  U.S. ex rel. Absher v. Momence Meadows Nursing Center, Inc., Nos. 13-1886 and 13-1996 (7th Cir., Aug. 20, 2014).  Two nurses filed claims on behalf of themselves and the government (qui tam) under the False Claims Act, 31 U.S.C. § 3730 (“FCA”) and the Illinois False Claims Act, 740 ILCS 175(1) (2010).  They alleged that, over an eight-year period, a nursing home submitted thousands of false Medicare and Medicaid reimbursement claims and then retaliated against the nurses for reporting evidence of the supposed fraud.  A jury returned a verdict in favor of the nurses for $3 million in compensatory damages, which the trial court trebled, and $412,000 as damages for retaliation.  On September 3, 2014, the nurses filed a motion asking the Seventh Circuit to reconsider en banc the panel’s August 20 ruling.

The FCA precludes a qui tam action where all “critical elements of the fraudulent transactions themselves” are based on facts in the government’s possession at the time the suit was filed, unless the relators were the original source of the information.  Here, the appeals court found that certain of the FCA allegations “were based extensively upon incidents of non-compliant care documented in government [inspection] reports that gave rise to administrative penalty proceedings” prior to the litigation.  The nurses were not the “original source” of information concerning non-compliant care, and so that portion of their qui tam action was barred.   Moreover, courts have held that they are not ideal bodies for resolving disputed issues concerning the adequacy of medical care.  Chesbrough v. VPA, P.C., 655 F.3d 461, 468 (6th Cir. 2011); Hoyle v. American Nat. Red Cross, 518 F.3d 61, 67 (D.C. Cir. 2008); U.S. ex rel. Mikes v. Straus, 274 F.3d 687, 699-700 (2nd Cir. 2001).

The nurses’ qui tam lawsuit also accused the nursing home of providing “worthless services.” The Seventh Circuit said that the “‘worthless services’ theory of FCA liability” requires a deficiency so severe that “it is the equivalent of no performance at all.”  The burden of showing “worthlessness” is not satisfied by proving merely that services rendered were “worth less” than the amounts reimbursed.  Finding that the “worthlessness” standard had not been met, the Seventh Circuit declined to adopt worthless services as a separate theory of liability under the FCA.  The nurses alleged that certifications filed by the nursing home regarding plans to correct deficiencies were knowingly false and that patient data sheets were submitted which did not properly document symptoms, diagnosis or treatment.  Those claims were dismissed because no statistical or other evidence was presented showing even a rough approximation of the number of false certifications, and a jury is not permitted to compute damages based on speculation.  A significant part of the nurses’ motion for rehearing en banc takes aim at these grounds for the reversal of the judgment.

By this ruling, the Seventh Circuit reinforces the common-sense notion that to be protected, whistleblowers must report conduct actually prohibited by the FCA.  This ruling is consistent with the view of other circuits.  See, e.g., Hutchins v. Wilantz, Goldman & Spitzer, 253 F.3d 176, 187 (3rd Cir. 2001) (submission of fraudulent invoices to bankruptcy court not acts in furtherance of a FCA action because payment would have been obtained from bankruptcy estate, not federal government); U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996) (internal report urging compliance with laws, rules and regulations not a protected activity on which a FCA cause of action could be based).

Paul Freehling is a partner in Seyfarth’s Chicago office.  If you would like further information, please contact a member of the Workplace Whistleblower Team, your Seyfarth attorney, or Paul Freehling at pfreehling@seyfarth.com.

OSHA Employee Interviews — Leveling the Playing Field

Posted in OSHA Compliance

By: Mark A. Lies, II

As anyone who has ever experienced an OSHA inspection is well aware, a key element is the agency’s interviews of employees by the compliance officers from the U.S. Occupational Safety and Health Administration (OSHA).  It is generally recognized that a majority of OSHA citations are based upon OSHA interviews of management and hourly employees.  Unfortunately, a lot of confusion has occurred over the respective rights of OSHA, the employer and the employees.  This article will attempt to shed some light on this topic.

Inspection Conduct

During any inspection, the compliance officer will request employee interviews (both management and non-management employees) in order to gather facts as to possible violations of agency regulations.  Employers often fail to advise employees of their rights during such interviews and these rights are never exercised.  If the employee gives inaccurate, incomplete or confusing responses, these statements can be the basis for civil citations with monetary penalties, or worse, criminal liability.  We have prepared a summary sheet that can be used to prepare employees for OSHA interviews.

The general rights of the various parties are as follows:

Employee Rights – Every Employee:

  • Has a right to a private one-on-one interview with the compliance officer which is confidential and is considered “protected activity.”  The employee cannot suffer any “adverse action” from the employer for exercising this right.  The compliance officer cannot disclose the contents of the interview.
  • Has a right to refuse to be interviewed by the compliance officer.  In other words, an employee cannot be forced to have a private one-on-one interview.  These interviews are totally voluntary.  If the employee declines to be interviewed (and the employee need not give any reason for the decision) the agency will have to obtain a subpoena to require the interview.  If the agency obtains a subpoena, the employee has the full scope of rights to respond, including the right to counsel.
  • Has a right to decline to have a one-on-one private interview and the right to have a person of their choice attend the interview and, if the compliance officer refuses to allow this person to attend, decline to be interviewed.  Some employees feel comfortable being interviewed if they have another person present during the interview.  Again, if the compliance officer refuses to allow this other person to attend, the employee can decline the interview for no reason.
  • Has a right to end the interview at any time for any reason.  Since the interview is completely voluntary (unless OSHA subpoenaed the employee) the employee can end the interview at any time and can leave without any explanation.
  • Has a right to refuse to sign a statement, be tape recorded or photographed.
  • Has the right to refuse to provide any private contact information, such as home address and telephone number.
  • Has the right to require the interview to occur at the workplace.

OSHA Rights:

  • The compliance officer has the right to interview the employee in private, if the employee consents.
  • Has a right to have truthful responses to their questions.

Employer Rights:

  • Has the right to inform its employees of their rights during the inspection.
  • Must allow the employee to be interviewed by OSHA if the employee consents.
  • Has the right to participate in non-private employee interviews (those attended by a third party, such as a union representative) and, if the compliance officer refuses, require that the interviews occur on non-paid work time.
  • Has the right to attend interviews of employer management representatives since they are agents of the employer.
  • Has the right to end the interviews if the interviews become disruptive, that is, unreasonably interfere with ongoing work, or become confrontational, in which case the employer should consult legal counsel regarding the termination of the inspection.

Employee Right to Legal Counsel

As noted, any employee can decline a private interview unless the employee is allowed to have a person of their choice attend the interview.  This also means that the employee can select legal counsel as their person of choice.  Remember, as citizens, we have a fundamental right to representation by counsel in any administrative or judicial proceeding.  Additionally, in most jurisdictions, the employer has an obligation to defend its employees if they are faced with liability for their acts that may have occurred within the scope and course of their employment.  In other words, the right to legal counsel (if requested) is unquestionable.  If OSHA refuses this request, the employee can decline to be interviewed.

Employee Potential Criminal Liability

Another significant issue which may arise in an OSHA inspection after a serious accident involving a fatality or multiple injuries is potential criminal liability for the employer and individual employees.  A basic right under the United States and state constitutions is against self-incrimination (under the Fifth Amendment).

Unfortunately, when the inspection occurs, it is impossible to determine whether criminal charges may result, months or years later, by which time an employee may have incriminated him/herself in the OSHA interviews and exposed themselves to criminal liability.  For this reason, it is extremely important that legal counsel be consulted for the OSHA interviews.

No Criminal Miranda Warnings

Another potential problem which warrants legal counsel is the fact that the OSHA compliance officer is not required to give the employee the Miranda warnings, which inform employees of their rights against self-incrimination (among other rights).  Recall that an OSHA compliance officer is not a police officer and the employee has not been placed under arrest; but the agency has the ability to impose criminal liability, such that the employer is cautioned to should engage legal counsel to evaluate the situation and the employee’s rights.

OSHA Objections to Legal Counsel

Unfortunately, in many inspections, OSHA objects to the employee having another person present, including legal counsel.  In those instances where OSHA agrees to allow the employee to have legal counsel, the agency objects to allowing the employee to utilize the employer’s attorney who has been provided at no cost to the employee.  OSHA claims that such attorney may have a conflict-of-interest representing the employer and also representing the employee in the interview.  It should be noted that it is not OSHA’s right to object to any potential conflict‑of‑interest.  Rather, it is the employee’s right to accept the representation (provided, of course, that the attorney has discussed potential conflicts of interest with the employee)

OSHA also objects to the employer’s legal counsel provided at no cost because the employee may be exposed to retaliation by the employer for what is said in the interview.  This argument is likewise without foundation because the employee is protected from retaliation under Section 11(c) of the Act for participating in the interview or inspection with OSHA.  Thus, it is both inappropriate and unfair for the agency to object to the presence of legal counsel provided at no expense by the employer in an interview where an employee could face potential civil or criminal liability arising out of an accident and which will force the employee to retain other legal counsel at the employee’s expense if the employee wishes to exercise these rights.  Indeed, in many cases, an employee cannot afford to retain his own counsel and thus is effectively denied legal counsel.

Language Barrier Issues

Because of the diverse nature of many workplaces, an issue arises concerning language barriers between the employee being interviewed and the compliance officer.  It is critical that a competent interpreter be made available by the employer to ensure that the employee being interviewed can understand the questions and respond accurately and truthfully.  The employer frequently will make available a co-employee who is bilingual to perform this role.  OSHA may attempt to discourage this other employee from participating in the interview by claiming that the compliance officer is bilingual and can interpret.  As we have seen above, the employee who is being interviewed has the right to refuse to be interviewed if the employee is denied the interpreter.  In addition, the employer should be cautious about accepting an interpreter offered by OSHA since there is the potential for this interpreter to pose the questions to the employee in a technical manner which the employee may find confusing.  In addition, there have been instances where the OSHA interpreter does not speak the particular dialect of the language of the interviewed employee, in which case there is further opportunity for confusion.  Unfortunately, when an employee gives responses that are confused or incomplete because the employee cannot understand the questions, this provides an opportunity for citations to be issued to the employer on the grounds that employees are not properly trained and do not understand the employer’s safety and health programs.

Please contact the author or your Seyfarth attorney with any questions you may have regarding this topic.

Federal Contractors Take Note: OFCCP Clarifies “Existing” Policy — Gender Identity and Transgender Discrimination Is Sex Discrimination

Posted in EEOC, Workplace Policies and Processes

By Laura J. Maechtlen, Annette Tyman, and Craig B. Simonsen

More from the OFCCP on gender identity.  This week, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2014-02 (August 19, 2014) to clarify that discrimination on the basis of sex covers discrimination on the basis of gender identity and transgender status.

The Directive, entitled “Gender Identity and Sex Discrimination” comes on the heels of President Obama’s signing of Executive Order 13672, which amended Executive Order 11246, to include sexual orientation and gender identity among race, color, religion, sex and national origin to the list of protected categories requiring non-discrimination and affirmative action.  However, unlike Executive Order 13672, the Directive does not create new stand-alone protections for gender identity and sexual orientation.  Instead, it clarifies that the OFCCP “continues to accept and investigate individual and systemic complaints alleging sex discrimination against transgender employees.”

Notably, the OFCCP’s Directive follows the EEOC’s administrative agency decision in Macy v. Holder and—based on the EEOC decision—purports to follow existing Title VII case law rather than an Executive Order.  In Macy, the EEOC took a clear step toward clarifying Title VII in recognizing a transgender worker’s right to assert a claim for sex discrimination under Title VII, not only based on a “sex stereotyping” theory, but also as a traditional claim of discrimination based on “sex.”  For more information about the Macy decision, see our earlier client alert available here.

So why was Directive 2014-02 needed, if Executive Order 11246 has already been amended to include transgender workers?  There are likely two reasons.  First, Directive 13672 will not go into effect until the final implementing regulations are issued.  The proposed regulations are not expected until mid-October, and then there will be a notice and comment period.  As a result, the regulations will likely not be finalized until 2015, and any delay in the effective date of the Executive Order could create confusion regarding protection for workers based on gender identity and expression.  An additional reason is that the obligations set forth in Executive Order 13672 will not be effective immediately and will only apply to contracts entered into on or after the effective date described in the regulations.  For more information about Executive Order 13672, see our earlier blog post available here.

The regulations implementing Executive Order 13672 will be telling, however, it is important for contractors to be aware that the OFCCP’s newly stated position is that both gender identity discrimination and transgender discrimination are already prohibited by existing protections afforded under Executive Order 11246.  The EEOC also clearly recognizes that Title VII protects workers based on transgender status.  Thus, employers doing business with the government will need to take a fresh look at their non-discrimination policies, practices, and management training with these principles in mind.

For more information on this topic, please contact the blog authors or your Seyfarth attorney.

Massachusetts Employers Must Post Notice: Domestic Violence Victims Entitled To Leave

Posted in Workplace Policies and Processes

By: Beth Gobeille Foley and Daniel B. Klein

Governor Deval Patrick has signed into law An Act Relative to Domestic Violence (the “ARDV”), which took effect on August 8, 2014.  The ARDV provides up to 15 days of unpaid leave per rolling 12-month period to victims of domestic violence, sexual assault, kidnapping, and/or stalking, and certain family members, for purposes directly related to the abuse.  Such purposes may include seeking legal or medical services, counseling, or victim’s services.  The ARDV applies to all employers with 50 or more employees, although it remains unclear whether those employees need to be within the Commonwealth or nationwide.  Covered employers must notify employees of their rights under the ARDV.

An employee may take ARDV leave for his or her own abuse, or due to the abuse of a covered family member, including his or her spouse, child, parent, grandparent, grandchild, or sibling.  Perpetrators of abuse are not entitled to ARDV leave.  It is unclear whether ARDV protections will apply in situations where two parties to a domestic relationship harm each other.

Before taking ARDV leave, an employee must exhaust all of his or her accrued paid time off, including but not limited to sick time, vacation days, and personal time.  Employees must provide advance notice of their need for leave whenever possible, but this requirement does not apply if the employee or a covered family member faces imminent danger to his or her health or safety.  In the event that an employee does not provide advance notice based on a risk of imminent danger, he or she must notify the employer within three business days that the time off was related to domestic violence.  If the employee cannot notify the employer, a family member may do so on his or her behalf.  The ARDV also permits certain counselors, clergy, and helping professionals to provide such notification.

The ARDV permits employers to require documentation supporting an employee’s claim to ARDV leave.  Such documentation can consist of a protective order or other court document, police report, police witness statement, documents reflecting the perpetrator’s conviction or admission of guilt, medical documents, and/or a victim advocate’s or other helping professional’s sworn statement.  In lieu of the documents listed above, an employee may also submit his or her own sworn statement signed under the pains and penalties of perjury.

Employees taking ARDV leave need not be paid for their time off.  They are, however, entitled to return to the same or a substantially equivalent position once their leave has ended.  Employers may not terminate or reduce employment benefits based on the use of ARDV leave, and the ARDV also includes an anti-retaliation provision.  Importantly, an employer cannot discipline someone for unauthorized absences if the employee provides documentation supporting the need for ARDV leave within 30 days of the last date absent.  All information related to an employee’s ARDV leave must be kept confidential.

The Attorney General will enforce the ARDV, and can seek injunctive and equitable relief against violators.  Employees may also bring private enforcement actions.  Because the ARDV falls within the Massachusetts Wage Act, prevailing ARDV plaintiffs may be entitled to mandatory treble damages and attorney’s fees.

Because the ARDV requires employers to notify employees of their rights under the Act, covered employers are best advised to develop and distribute written ARDV policies, or to post a notice of the ARDV in a prominent workplace location.

2014 May Be a Banner Year for ADA Title III Lawsuit Filings

Posted in Title III Access

By: Minh Vu, Kristina Launey and Susan Ryan

Employers need to be mindful that places of public accommodation (i.e., a business open to the public) are subject to Title III of the ADA, which brings a whole host of new issues and concerns to keep our readers awake at night.  Our colleagues who blog about Title III developments are recognized subject matters experts on these topics and can assist should you have questions about Title III issues that might pertain to you.  Please review their attached blog from earlier this month and watch that blog for ongoing developments in this increasingly visible area of the law.

If you had a suspicion that the Title III plaintiffs have been far more active in recent years, you were right.  Our review of the federal docket shows that there was a 9% increase in the number of lawsuits filed from 2012 to 2013. What’s more, the number of lawsuits filed in 2014 may increase by nearly 40% over 2013 if the current trend continues.

Nationwide, plaintiffs filed 2,719 ADA Title III lawsuits last year, as compared to 2,495 in 2012.  That’s an increase of slightly more than 9% year-over-year.

Where were the most complaints filed in 2013?  California (995 claims), Florida (816 claims) and New York (125 claims).  The high percentage of cases filed in California is no surprise because California has a non-discrimination law that provides for statutory minimum damages of $4,000.  Plaintiffs filing in California almost always include claims under California law because their remedies under the Title III of the ADA are limited to injunctive relief and attorneys’ fees.  (If you’re in Pennsylvania, beware: June 2014 saw a slew of physical accessibility class complaints filed by the same plaintiff, Christopher Mielo, and law firm, Carlson Lynch, against numerous businesses.)

Want to avoid ADA Title III lawsuits?  Open your business in Alaska, Idaho, Montana, Nebraska, North Dakota and Vermont where no ADA Title III cases were filed in 2013.

Our research also shows that ADA Title III case filings may reach more than 3800 cases in 2014 — a whopping increase of 40%.  Already, we saw approximately 1939 ADA Title III cases filed in the first six months of the year.  We say “approximately” because the federal docket system, PACER, lumps Title II and Title III cases together under the category of “Americans with Disabilities — Other.”  We obtained the 1939 number by assuming that 86% of the ADA Title II and Title III cases reported were actually ADA Title III cases.  The 86% is based on our research department’s manual review of the 2012 and 2013 case filings to separate out the Title II and Title III cases.  That review showed that 85-87% of the total cases reported by PACER in 2012 and 2013 were Title III cases.

If you want to drill down on our methodology, here goes:  We ran a PACER search in federal district courts for nature of suit code 446, which covers non-employment ADA cases.  We then went through the resulting list of case names, eliminating those that were clearly filed against public entities that would fall under Title II.  What we had left were the Title III complaints for 2012 and 2013.  We did not undertake a manual review of the 2014 numbers but, as explained above, applied the findings from the 2012-2013 review to the 2014 numbers.

We do want to give a few of caveats about these numbers.  First of all, not all plaintiffs code their claims correctly.   For example, some of the cases we checked to determine if they were Title II or Title III claims turned out to be Title I claims that were given the wrong nature of suit code.  Secondly, there are some plaintiffs whose complaints are, to put it mildly, opaque in their intent.  We decided not to count these as Title III claims, but someone else might have reached a different conclusion.

While our approach may not be bullet proof, we can safely say that the number of ADA Title III lawsuits are on the rise, propelled by cases concerning the accessibility of new technologies and the internet.

NIOSH Draft Bulletin: Promoting Health and Preventing Disease and Injury Through Workplace Tobacco Policies

Posted in OSHA Compliance, Workplace Policies and Processes

By Craig B. Simonsen and Erin Dougherty Foley

The National Institute for Occupational Safety and Health (NIOSH) has just announced the availability of a draft Current Intelligence Bulletin (CIB) entitled Promoting Health and Preventing Disease and Injury through Workplace Tobacco Policies, for public comment.

NIOSH had previously published two Current Intelligence Bulletins devoted to tobacco use. The first one CIB 31: Adverse Health Effects of Smoking and the Occupational Environment, Publication Number 79–122, outlined several ways in which “smoking interacts with other workplace exposures to increase risk of disease and injury among workers.” The second, CIB 54: Environmental Tobacco Smoke in the Workplace, Publication No. 91–108, focused on secondhand smoke in the workplace as a cause of cancer and cardiovascular disease. That document recommended “eliminating tobacco smoking in the workplace as the best preventive approach.”

According to NIOSH, the draft CIB reflects a “strategy integrating occupational safety and health protection with health promotion to prevent worker injury and illness and to advance health and well-being.” NIOSH notes that smoking rates among “blue-collar workers have been shown to be consistently higher than among white‐collar workers.” Among blue‐collar workers, those exposed to higher levels of workplace dust and chemical hazards are more likely to be smokers. “Also, on average, blue‐collar smokers smoke more heavily than white‐collar smokers.”

The draft CIB indicates that smoking prevalence varied widely by industry, “ranging from about 10% in education services, to more than 30% in construction, mining, and accommodation and food services. Smoking prevalence varies even more by occupation, ranging from 2% among religious workers to 50% among construction trades helpers.”

In the employment context, specific toxic chemicals associated with work processes in some workplaces are also present in tobacco products and tobacco smoke, increasing exposure to those chemicals among tobacco‐using workers and workers exposed to secondhand smoke. “The overall effect of these combined exposures can be additive…, or, in some cases, synergistic.” Even without environmental exposure to tobacco and secondhand smoke, or the causing of explosion or fire, “any form of tobacco use may result in traumatic injury if the worker operating a vehicle or industrial machinery is distracted by tobacco use.”

For employers, the CIB reminds that employer responsibilities established in federal, state, and local laws and regulations, as well as health and economic considerations, can motivate employers to establish workplace policies that prohibit or restrict tobacco use in the workplace. For example, “the general duty of employers to provide safe work environments for their employees can motivate employers to prohibit smoking in their workplaces, thereby avoiding liability for exposing nonsmoking employees to secondhand smoke.”

The draft states that some employers have taken action to extend restrictions on tobacco use by their employees beyond the workplace, by “prohibiting smoking by workers during their workday breaks, when away from the workplace, including during lunchtime.” It suggests that several large employers have even barred the hiring of smokers. Such wide‐ranging policies generate substantial controversy and may be illegal in some jurisdictions based on state-specific “off-duty conduct” statutes.

In the draft CIB, NIOSH recommends that employers:

  • Establish and maintain tobacco‐free workplaces for all employees, allowing no use of any tobacco products, including but not limited to cigarettes, cigars, pipes, and smokeless tobacco products by anyone at any time in the workplace;
  • Assure compliance with current OSHA and MSHA regulations prohibiting or limiting smoking, smoking materials, and/or use of other tobacco products in work areas characterized by the presence of explosive or highly flammable materials or potential exposure to toxic materials;
  • Provide information on tobacco‐related health risks and on benefits of quitting to all employees and other workers on a regular basis;
  • Provide information on employer‐provided and publically available tobacco cessation services to all employees and other workers on a regular basis;
  • Offer and promote more comprehensive tobacco cessation support to all tobacco‐using workers and, where feasible, to their dependents;
  • Become familiar with available guidance before developing, implementing, or modifying tobacco‐related policies, interventions, or controls;
  • Develop, implement, and modify tobacco‐related policies, interventions, and controls in a stepwise and participatory manner—with input from employees, labor representatives, line management, occupational safety/health and wellness staff, and human resources professionals; and
  • Make sure that any differential employment benefits policies that are based on tobacco‐use or participation in tobacco cessation programs are designed with a primary intent to improve worker health and comply with all applicable federal, state, and local laws and regulations. Even when permissible by law, these differential employment benefit policies, as well as differential hiring policies based on tobacco use, should be implemented only after serious consideration is given to ethical concerns and possible unintended consequences, including the potential for adverse impacts on individual employees (e.g., coercion, discrimination, and breach of privacy) and the workforce as a whole.

Public comments on the draft CIB may be submitted to docket number CDC-2014-0013, and are due on September 15, 2014.