The House and Senate have set out their plans for reform of our nation's health care system, and several writers have analyzed the bills and outlined how the proposed bills will affect employers.  The following is a list of some blog posts that give you a quick review on the two:

• Many Implications for Employers in Senate Health Care Reform Bill: Discusses employer fines and taxes, immediate changes to group health plans, and changes that would take affect in the following years under the Senate plan.  
• House Health Reform Bill’s Impact on Employers: Outlines the impact on employers from the House bill, specifically changes that would take effect in 2010 such as limiting the "look back" period for preexisting conditions and the changes that would be effective in 2013 like minimum employer contributions.
• Health Reform Talk: Offers a look at the features of both bills that will likely survive and how they may impact employers.
• Health Reform Bill Passed by House Restricts Employer Curtailment, Termination of Retiree Benefit:  Jackson Lewis's blog discussing the provision of the House bill that limits an employer's ability to curtail or terminate retiree medical benefits.   

The Senate still needs to vote and if the Senate bill is passed both bills will be reconciled.  However, it is not too early for employers to be reviewing how any changes may affect them. 

It's not official yet, but pregnancy may be the newest protected disability under the amended Americans with Disability Act (ADAAA).  Although the ADAAA does not address pregnancy, the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  That statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

Christopher J. McKinney at HR Lawyer's Blog points out that the EEOC recently filed a complaint in Washington against D. R. Horton, a Fortune 500 home builder, for discriminating against an employee when it fired her after she was put on bed rest for seven months due to pregnancy related complications. McKinney is correct when he says that the fact that the EEOC brought this case under the ADAAA "speaks volumes."  

A recent Arkansas case is a good example of how a pregnancy discrimination case might be more successful under the ADAAA.  The Arkansas Supreme Court recently affirmed summary judgment for an employer in a complaint against the company for discrimination due to pregnancy complications.  In Greenlee v. J.B. Hunt, the employee experienced complications during her pregnancy that required bed rest, but she was fired because she had only worked for the company for four and a half months and was not eligible for additional leave.  The court found that employee was not fired because she was pregnant, but because additional leave was not available to her under the company policy.  

If the Greenlee case had been brought under the ADAAA (which wasn't in affect at the time of the plaintiff's termination), a court may have reasoned that the company failed to accommodate a condition that substantially limits a major life activity and allowed the plaintiff continue to trial.       

It's important to note that the proposed ADAAA regulations state that conditions that are transitory (lasting less than 6 months) will not be protected under the ADAAA.  Therefore, the ADAAA is unlikely to apply to the majority of pregnant employees.  Still, it's too soon to know how far the EEOC's theory on pregnancy as a disability will go, and the fact that the EEOC has staked out this position should give employers pause.

Here's why:  Twitter is a fire hose of information provided by some of the smartest people in the country.  Twitter is known as the premiere platform for building social networks, and I'm grateful to know all the talented people I've "met" through Twitter.  But, it's the information that keeps me coming back every day.

Twitter allows you to follow the thoughts of experts in your industry, giving you near instantaneous access to cutting edge information and trends.  Employment law is made up of both state and federal law, and every state does things a little differently.  I think it's fair to say that employment law changes every day, and Twitter helps me stay current. Many of my clients have employees in several states, and I need to be able to spot issues that arise under another state's law and know when to call in local counsel.  Twitter helps me do that.

Here are a few tricks I've picked up to make the most of time on Twitter.  For starters, I follow employment lawyers, human resources professionals, and business leaders.  This combination brings exactly the kind of information I need to my desktop.   I'm sure you could identify similar experts in your field and find them on Twitter.  Did I mention that all this information is free?

Twitter is also a powerful search engine.  Using Tweetdeck, I run continuous searches on the phrases "EEOC," "FMLA" and "ADA" so that I can see what people throughout the country are saying on these topics. If the EEOC even thinks about making a change, it shows up in my Twitter stream.  You could also search on a geographic location, like "Little Rock," to find what people are talking about in your local area.

More importantly, your customers are probably on Twitter and some may be talking about you.  You should listen. And, your employees are on Twitter too. I'm amazed almost daily at the candid Twitter discussions employees have regarding their workplace. To put it mildly, they seem a little irritated.  

Are there conferences you'd like to attend but don't have time for? Most conferences now assign a hashtag, like #arbar, to a conference so that attendees can tweet their thoughts regarding the conference.  You can search the hashtag and find out what's happening in real time. Many people who are on Twitter also have blogs, and some attendees blog about the conference. Hashtags will lead you to those blog posts.  That's lots of information, and you don't have to go through airport security to get it.  If you do decide to travel to a conference, many schedule "tweetups" before or during the conference.  At a tweetup, you can meet all the smart people you talk with on Twitter in real life - what a concept! 

I do my best to contribute to the Twitter conversation, but I'm confident that I get much more out of Twitter than I'm putting into it.  Just following on Twitter will make you better at what you do.  If I've convinced you to join the twittersphere, let me know, I'm @MelanieMcClure.     

 

In Anderson v. Family Dollar Stores of Arkansas, Inc., the Eighth Circuit Court of Appeals closely followed the US Supreme Court's direction that Title VII is not a "general civility code for the American workplace."   Employers can take comfort in the high standard courts have set regarding bad behavior in the workplace, but a company that wants to remain an employer of choice will hold their management team to a much higher standard.   Bottom line, if one of your managers is a jerk, you should demand a change in behavior or show him or her the door.

The plaintiff in Family Dollar Stores started work as a manager trainee for Family Dollar. She was fired after her first day. She complained to HR and met with the district manager. During her meeting, plaintiff claims that the district manager talked about very personal things, such as her hair, eyes, and marital status. Plaintiff was rehired and placed in a five-week training program. During the district manager's contact with plaintiff, which was once a week for approximately an hour, plaintiff claims that the district manager was physically inappropriate towards her and insinuated that he could control her future in the company.  

At the end of her training period, plaintiff was assigned to a store as manager. During the first week she made phone calls to the district manager for assistance. At one time, the district manager, who was in Florida at the time, told plaintiff that he felt she should be with him.  Another time, the plaintiff claims that the district manager called her "baby doll."

Several months after plaintiff was hired, the district manager came to the store and plaintiff addressed all of her problems with her employees. She also told him they needed to prepare the appropriate paperwork for her back pain because she was forced to unload the truck by herself.  The district manager's demeanor worsened and he grabbed plaintiff and told her he thought she was no longer willing to be a team player.  He then fired plaintiff.

Plaintiff did not report any of the harassment to HR and even though she wrote an email to HR after her termination, she did not include the sexual harassment. She first mentioned the sexual harassment in her EEOC complaint. The district court granted Family Dollar's summary judgment, finding that plaintiff's allegations were not so severe as to alter a term, condition, or privilege of her employment. The Court of Appeals agreed. The Court stated that although White's conduct was ungentlemanly and inappropriate, Title VII is not a "general civility code for the American workplace."

Sure, the district manager's conduct was not harassment under Title VII, but to create a more productive work environment, employers should not allow this type of conduct in their workplace.  It is much easier to be civil than sorry. 

Determining whether an employee's duties fall within the administrative exception of the Fair Labor Standards Act can be more of an art than a science. A new Arkansas case gives employers a motive to be more conservative in their decision-making, perhaps suggesting that employers be more DaVinci than Dali.

In Wolfe v. Clear Title, LLC, Wolfe, a salaried employee sued her employer, Clear Title, LLC, for violation of the FLSA and sought punitive damages for retaliation that followed her request for overtime pay. Her job duties as Escrow Manager included preparing documents, ordering items needed for closing, working with lenders for payoffs, working with title insurance companies, and dealing with clients. Although her job title included the word "manager," Wolfe did not supervise other employees. Clear Title sought to paint her job description as falling under the administrative exception of FLSA. Wolfe argued that she did not meet this exception because her position did not require her to use discretion and independent judgment.  Instead, Wolfe's duties required her to follow pre-set procedures. Because there were issues of fact, mainly conflicting affidavits, the district court denied Clear Title's motion for summary judgment.

Shifting its focus to the issue of whether punitive damages are available under the FLSA, the court noted that the circuit courts are split. To make matters more difficult, the district courts within the Eighth Circuit are split as well. Some courts find that punitive damages are available for employees who claim retaliation, while the other courts do not. Now, the Eastern District of Arkansas finds that punitive damages are available for an FLSA retaliation claim. So, in case you needed another reason to make a more conservative choice regarding FLSA in Arkansas, the Eastern District has just painted a clear picture for you.

In HR circles, we joke that no good deed goes unpunished.  A well-intended exception to a company policy can turn into Exhibit A of a lawsuit.  For that reason, employment lawyers generally preach "no exceptions."  But exceptions that are grounded in good business judgment can provide management flexibility, create employee goodwill, and help to make your company an employer of choice.

In Hearst v. Progressive Foam Technologies, an Arkansas employer allowed an employee to take FMLA-protected time away from work before the employee was technically eligible for the leave.  The employee worked for Progressive Foam for nine months before he was injured off the job.  The FMLA requires that an employee work a full year before he or she is eligible for leave.  Here, the employee requested a month of FMLA leave, and Progressive Foam allowed it.

The employee then extended the leave to undergo surgery, stretching the leave into four months.  After the first twelve weeks passed, Progressive Foam informed the employee that his FMLA leave had expired, but agreed to extend the leave 30 more days based on his doctor's statement.  The employee then notified Progressive Foam that he would need another surgery and another month to recover, and Progressive Foam fired him.  

The employee filed an FMLA claim, arguing that because he did not work for Progressive Foam for a year when he initially requested leave, he was ineligible under the FMLA and that none of the time off before his one-year anniversary should be counted.  The court disagreed and found that "equity trumped" the employee's argument.  Although FMLA provides a minimum twelve-month work requirement, employers are free to lower the standard if they wish.  Here, Progressive Foam not only allowed the employee to take FMLA leave before he worked twelve months, it also allowed him four weeks of extra time. 

Bottom Line:  For making an employee-friendly exception, Progressive Foam found itself in litigation.  Still, I think Progressive Foam made the right decision.  Allowing an employee to take FMLA-protected leave before he or she is technically qualified creates goodwill with your employee base, may help you comply with the requirements of the Americans with Disabilities Act, and is sometimes just the right thing to do.  Yes, often good deeds are punished, but Progressive Foam, like other employers, may have reasoned that a little flexibility grounded in good business judgment can improve employee retention and productivity.  So, go ahead and do the right thing.     

While signs of economic recovery are beginning to appear, some employers continue to look for ways to cut costs. Most employers seeking to reduce costs at least consider a reduction in force. While a reduction in force can provide significant impact to the bottom line, this strategy is not without risk. 

Every employee who is impacted by a reduction will invariably ask "why me," and sometimes the answer that the employee settles upon is his or her age, gender, race, religion, disability, etc. While no reduction in force is risk free, there are best practices that can reduce an employer's legal risk. 

I'll be speaking on reductions in force at the Arkansas SHRM Employment Law and Legislative Affairs Conference on October 1, 2009, and as I prepare, I have been reviewing all the excellent commentary on the subject.  Here's a sample:   

Preparing for and Managing a Reduction in Force

Reducing Risks in a Reduction in Force - Is There a Perfect Solution

Reduction in Force Guidelines

Reducing the Legal Risks Associated with a Reduction in Force

Top 10 Layoff Tips

How to Lay People Off

Furloughs: An Alternative to Layoffs

RIF's: Beware the Hidden Costs

Reductions in Force: Top Considerations

 

Here's an employment lawyer's worst nightmare:  the CEO for your favorite client asks you to draft employment claim waivers for an upcoming reduction in force.  For some unexplained reason, you fail to include any reference to the Age Discrimination in Employment Act in the waiver.  The ADEA does not even cross your mind until the last signed waiver arrives on your desk.  AAAUGHH - you wake up in a cold sweat.

Fortunately, the courts and the EEOC have provided ample direction for attorneys drafting waivers of employment claims.  I will be speaking on reduction in force issues at the Arkansas SHRM Employment Law and Legislative Affairs Conference in October, and in preparation, I'm reviewing the DOL's recent guidelines for enforceable ADEA waivers.  Here are some highlights:

• The waiver must be written in language that would be understood by the employee based on his or her education and business experience.
  

• The waiver must refer to the Age Discrimination in Employment Act by name.
  

• Employees must be advised in writing to consult with an attorney prior to signing the waiver.
  

• For an individual layoff, an employee must be given 21 days to consider the waiver.
  

• For a mass reduction, the employees must be given 45 days to consider the waiver.

• All employees over 40 who sign a waiver can revoke their acceptance within 7 days of signing the agreement.

• A waiver must be supported by consideration in addition to that which the employee is already entitled.
  

• Here's the hard part:  where a group of employees is being released, the waiver must provide information to employees over 40 regarding the "decisional unit," which is the group of employees from which the employer chose the employees who would be discharged.  The employer must disclose the eligibility factors for the program, the time limits of the program, and the job titles and ages of all employees who are eligible and ineligible for the program. 

Remember that some rights can't be waived, including the right to file a charge with the EEOC, future claims, claims or benefits that arise under unemployment compensation, workers compensation, the Fair Labor Standards Act, health insurance claims under COBRA, and vested benefits under a retirement plan governed by ERISA. Nonetheless, an employer can significantly reduce legal risk by seeking waivers as part of a reduction in force.  And, waivers will help you sleep better. 

Small employers are often relieved to hear that they are not governed by Title VII because they have fewer than 15 employees. Also, the Family Medical Leave Act only applies to employers with at least 50 employees. But, an employer can inadvertently reach these numbers when more than one company is owned and managed by the same entity. 

A recent case from an Arkansas federal district court demonstrates that courts will look at all related companies to determine whether an employer has 15 employees and is subject to the requirements of Title VII.  Hardy v. Town of Perla Water Ass'n.  One company plus another company could equal 15 employees.

In the Hardy case, an employee sued the Town of Perla Water Association and the Mayor of Perla for racial discrimination, hostile work environment, and retaliation under Title VII. Because the Perla Water Association had only six employees, the court looked at whether the company should be combined with the City of Perla to determine whether the company was an employer under Title VII.

The court in Hardy first set out the factors to consider when combining to two private companies for Title VII purposes: 1) interrelation of operation, 2) common management, 3) centralized control of labor relations, and 4) common ownership or financial control.  FMLA regulations set forth the same test to determine whether two companies should be combined to determine whether an employer has 50 employees and is governed by the FMLA. 29 C.F.R. 825.104(c)(2). 

The Hardy court rejected this test because the town of Perla was a public entity rather than a private entity.  Instead, the court looked for "indicia of control," which includes the authority to hire, transfer, promote, discipline, or discharge, establish work schedules, direct work assignments, and the obligation to pay. The court found indicia of control between the two entities, but excluded volunteer fire fighters and city council members from the count, leaving too few employees to create Title VII liability.  Therefore, the employee's claims were dismissed under Title VII. 

Bottom Line:  The Hardy case demonstrates that a court will look past corporate structure when determining the number of employees for Title VII purposes.  Employers should be particularly concerned about related companies that could be combined to group more than 50 employees, and therefore, become subject to the FMLA. Conduct that will create liability under Title VII is usually pretty offensive and careful employers, even those with fewer than 15 employees, take steps to avoid that conduct in their workplaces.  But, the FMLA requires employers to provide job-protected leave to qualifying employees, along with specific notifications, which most employers would not do if they were not subject to the FMLA. So, take a look at any related companies and do the math.  Don't be unprepared when 1 + 1 = 50.    

July in Arkansas is hot.  As the days get longer and ties get loosened, employers find themselves responding to more complaints of sexual harassment. The good news for business owners and HR professionals is that it is much easier to handle an harassment complaint then, say, a wage and hour class action.  

The law requires an employer who receives an harassment complaint to perform a prompt, thorough and impartial investigation and to stop the harassing behavior. Everything gets a little trickier if a supervisor is accused, but in many cases, an harassment complaint can be put to rest with an investigation and appropriate disciplinary action.  To help ease your summer workload, here's a round-up of solid investigation and harassment policy advice.  Take care of that complaint today, and get out to the lake!

EEOC's Enforcement Guidance on Harassment by Supervisors. Check out section 1. e. regarding how to conduct an investigation.  

Workplace Investigations: Don't Forget to Communicate with the Complainant

Are Your Investigations Unbiased?

Remedial Action Must be Meaningful to Save Employer from Harassment Liability

Where There's Smoke, There's Not Always Fire

Suspended With Pay - A Call to Get the Investigation Done Quickly, Unless You Work for the Government....

Employee Handbooks: Anti-Harassment Tip Sheet

Text Message Harassment - No LOLing Matter

Text Harassment?