Wednesday, January 30, 2013

Employer Risks for Disciplining and Firing Employees Who Refuse a Flu Shot

Attorney Mark D. Nelson of Drinker, Biddle & Reath, LLP has a great article on employer liability in dealing with employees who refuse to get a flu shot per an employer's mandatory policy which has been somewhat of a hot issue in the last few years when the weather gets cold.  

Nelson draws attention to several laws that are at play with respect to flu shot policies:

-The National Labor Relations Act (NLRA):  "[A] flu vaccination policy is a mandatory subject of bargaining.  This means that unionized hospitals cannot unilaterally implement such a policy without first giving the union notice of the intended policy and bargain over the policy if the union requests to do so."  This is with exceptions, of course in that some collective bargaining agreements have certain waiver clauses.  See, Virginia Mason Medical Center, 358 NLRB No. 64 (2012).

-Americans with Disabilities Act (ADA):  “[a]n employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense)."  The Equal Employment Opportunity Commission (EEOC) has issued a 'factoid' on the interplay between the ADA and flu vaccination policies here.

-Religious Discrimination:  "Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).”

Believe it or not, an ongoing case involves an employee's claim that the vaccination goes against "veganism" and the Court has not dismissed the claim despite the employer's claim that veganism isn't a bona fide religious belief.  (Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12).)

I have previously written about this topic here and here.  

Tuesday, January 22, 2013

The New York Times on Protected Employee Speech in Social Media

Steven Greenhouse of the New York Times wrote an interesting article on the ever-controversial and evolving area of protected concerted activity and speech by employees on social media websites like Twitter and Facebook that is worth a read.  As Facebook and Twitter have become a part of our daily lives, it has become normal to discuss things like work on these websites but not all of what we say about our work, co-workers and bosses will be protected so employees are advised to be conscious of that fact.

Forbes also covered the story and added some additional information.

Monday, January 21, 2013

Law Firms Get Sued for Disability Discrimination Too!

The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against the law firm of Womble Carlyle Sandridge & Rice on behalf of Charlesetta Jennings, a former office assistant in the Winston-Salem headquarters who claims she was dismissed by the firm in August 2011 because a disability she developed as a result of previous breast cancer treatments prevented her from lifting heavy objects.

From The AM Law Daily story on the lawsuit:
According to the complaint, Jennings developed lymphedema, a condition that can be brought on by cancer treatment and which causes chronic swelling throughout the body‚ in November 2009 while she was working for Womble Carlyle. (She had been diagnosed with and treated for breast cancer the previous year.) In June 2010, Jennings suffered from swelling in several parts of her body as a result of lifting boxes, which led her to obtain a doctor's note stating that she could not lift more than 10 pounds due to her condition and medical history.  
The suit goes on to claim that Womble Carlyle told Jennings that her job required her to be able to "lift or move items up to 75 pounds, and to be able to push or pull machines on wheels weighing up to 700 pounds." After roughly seven months of accommodating her condition through such methods as allowing her to use carts to transport boxes of documents, the firm's human resources director allegedly "expressed concern that Jennings would not be able to perform the essential functions of her job," and asked that she provide an updated doctor's note. In February 2011, Jennings returned with a new doctor's note stating that she could lift up to 20 pounds. 
Jennings was placed on disability leave that same month, according to the complaint, and the firm terminated her in August 2011 after telling her that there were no vacant positions she could fill while still adhering to the lifting restrictions imposed by her doctor. 
The EEOC and Jennings are seeking a court-ordered injunction on the firm's hiring practices and equal employment policies, as well as punitive damages and compensation for various losses incurred as a result of Jennings's termination. The suit claims Womble Carlyle "failed to provide Jennings with a reasonable accommodation for her disability" and violated the Americans with Disabilities Act of 1990 by dismissing her because of her disability.
Moral of the story: even if you work for a law firm and believe the law if being broken, it's possible.  A copy of the complaint is available here.    

New Mexico Bakery Settles Sexual Harassment Case for $220,000

In another major settlement obtained by the Equal Employment Opportunity Commission (EEOC), a cake shop in Albuquerque, New Mexico, The ABC Cake Shop & Bakery, has agreed to pay $220,000, amongst other non-monetary settlement terms, to the EEOC who filed suit on behalf of former female employees, some who were teenagers, who claimed they were subjected to sexual harassment. 

From the EEOC press release on the settlement:

The EEOC's lawsuit, EEOC v. Early Bird Management Group, LLC d/b/a ABC Cake Shop & Bakery, 11-CV-799 JCH/RDS, charged that an owner of ABC subjected female employees, including some teenagers, to sexual harassment. The sexually offensive conduct included sexual comments, innuendo and unwanted touching. The EEOC's suit also alleged that some women were forced to quit their jobs because of the sexual harassment.

Sex discrimination, including sexual harassment, violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the District of New Mexico after first attempting to reach a pre-litigation settlement through its concili­ation process.

At least 19 women are expected to receive relief through the consent decree settling the suit. In addition to the substantial monetary relief, the decree prohibits ABC from further discriminating or retaliating against its employees and requires it to implement policies and practices that will provide its employees a work environment free of sex discrimination and retaliation. ABC also agreed to provide the harmed women with letters of reference and apology letters. Finally, ABCs must also provide its employees with anti-discrimination training and notice of the settlement.

Wednesday, January 16, 2013

January 2013 Edition of the Employment Law Blog Carnival is Live!

I wanted to direct everyone's attention to the "Blogging 4 Jobs" website where Jessica Miller-Merrell has hosted this month's Employment Law Blog Carnival, "The Pop Culture Employment Law Blog Carnival."  I host next month right here on the Wisconsin Employment & Labor Law Blog!

Sunday, January 13, 2013

Employee Rights to Personnel File

A common area employees are incredibly unaware of involves their rights to their personnel file that their employer maintains.  A lot of smaller employers don't have the best record-keeping and often do not have personnel files but most established, larger employers have good records and maintain personnel files on all of their employees whether they have a human resources department or not.  Often employees want to view this file and are not certain of their rights.  This article will discuss those rights in Wisconsin to provide a better understanding.

Wisconsin Statute section 103.13 is the exact statute that governs employee rights to their personnel file and it states:
(2)Open records. Every employer shall, upon the request of an employee, which the employer may require the employee to make in writing, permit the employee to inspect any personnel documents which are used or which have been used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in subs. (5) and (6). An employee may request all or any part of his or her records, except as provided in sub. (6). The employer shall grant at least 2 requests by an employee in a calendar year, unless otherwise provided in a collective bargaining agreement, to inspect the employee's personnel records as provided in this section. The employer shall provide the employee with the opportunity to inspect the employee's personnel records within 7 working days after the employee makes the request for inspection. The inspection shall take place at a location reasonably near the employee's place of employment and during normal working hours. If the inspection during normal working hours would require an employee to take time off from work with that employer, the employer may provide some other reasonable time for the inspection. In any case, the employer may allow the inspection to take place at a time other than working hours or at a place other than where the records are maintained if that time or place would be more convenient for the employee.
This is a rather lengthy statute section and most people who are not lawyers just want to know what this all means in a nutshell.  Essentially, this means that employees can request to "inspect" their personnel file (the employer may require the request in writing) and the employer has to provide the employee with the opportunity to inspect within seven (7) working days.  The employer doesn't have to provide a copy if the employee doesn't request a copy be made and the employer has a right to charge a "reasonable fee" for a copy. and merely has to allow for a "reasonable" location for the employee to view the file.  However, there are exceptions to this law.  Wisconsin Statute section 103.13(6) provides those exceptions:

(6)Exceptions. The right of the employee or the employee's designated representative under sub. (3) to inspect his or her personnel records does not apply to:
(a) Records relating to the investigation of possible criminal offenses committed by that employee.
(b) Letters of reference for that employee.
(c) Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire test document.
(d) Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer's planning purposes.
(e) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy.
(f) An employer who does not maintain any personnel records.
(g) Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding.
These exceptions are rather self-explanatory but employees should be aware of them should their request be denied in whole or in part for the above reasons.  Should an employer deny an employee's request or not provide the file within 7 working days as provided by the above-referenced statute, an employee may file a complaint with the Wisconsin Department of Workforce Development and that usually moves things along but the penalties for an employer violation are not that severe.

Wednesday, January 9, 2013

Michigan Latest State to Ban Employers from Obtaining Social Media Passwords

As social media has become the focus of litigation and as employers have begun to ask potential applicants for their social media passwords, many states have moved to pass legislation outlawing such requests and access to employee and applicant social media.  Michigan (my home state) has become the latest state to do so, joining California, Illinois and Maryland.

Michigan Governor Rick Snyder signed H.B. 5523 into law at the end of 2012, barring Michigan employers and colleges from asking current or prospective employees and students for passwords or other information in order to access private social media accounts. Employers and colleges are also prohibited from penalizing, firing or failing to hire or admit employees or students for refusing to grant access to social media accounts.

Aurora Employees in Uproar Over Wellness Program

Aurora Healthcare issued a letter to employees recently announcing a new plan to offer health insurance incentives based on their Body Mass Index, or BMI.  These are commonly referred to as "wellness programs" and it has many employees in an uproar because they feel they are being told how to care for themselves.  From the TMJ4 story on the healthcare system's announcement:
In a letter to staffers, managers announced a $13.33 credit every two weeks for folks who meet a 'weight target' or BMI of 30.

The letter goes on to explain nearly two-thirds of the company's caregivers were obese or overweight.

While wellness programs like Aurora's are fairly common and on the rise across the country, many question their legality.

Do wellness programs violate the law? 

There are not a lot of cases that address this issue but it does appear the law allows these programs.  However, a separate issue arises over whether employers can lawfully terminate or otherwise discipline an employee who does not follow the program. 

There may also be issues with how the wellness program is administered as the ADA has a provision on disability-related inquiries and HIPAA also specifically sanctions a program in which eligibility to participate in a group health plan is conditioned on an employee's completion of a health risk assessment prior to enrollment.  This type of inquiry was the basis of a suit in the 11th Circuit in Seff v. Broward County, No. 11-12217 (11th Cir., Aug. 20, 2012).  In Seff, a class action was filed  claiming that the program violated the ADA's prohibitions on disability-related inquiries and medical examinations.

In Seff, the governmental group health insurance plan involved required participants to complete a health risk assessment and undergo a health screen, including a "finger-stick" blood test, to obtain a $20 premium discount for each twice-monthly paycheck. The screening and assessment were intended to identify participants who had one or more of five conditions: asthma; hypertension; diabetes; congestive heart failure; or kidney disease. Those identified became eligible to participate in disease management programs and for additional benefits aimed at treating and managing care for those conditions.  The district court had granted summary judgment in favor of the employer and the 11th Circuit affirmed as the issue narrowed down to whether the wellness program was a "term" of the county's health plan.

While employers enjoyed a victory in Seff, this does not suggest all wellness programs and their administration do not violate law.

Other Pitfalls for Employers

Also common across the country is employers who refuse to hire cigarette smokers.  While that may be lawful in other states, it is prohibited under the Wisconsin Fair Employment Act (WFEA) which prohibits discrimination on the basis of an individual's "use or nonuse of lawful products off the employer's premises during nonworking hours."  The same would hold true with alcohol.

Another area of concern is where obesity is a target as many courts have held obesity to be a disability under the Americans with Disabilities Act (ADA), especially in light of the new Americans with Disabilities Act Amendments Act (ADAAA).  The WFEA also is of concern because disability discrimination is a "case-by-case" analysis and Wisconsin case law already provides that obesity can be considered a disability under the WFEA if the "characteristic at issue constitutes such a significant deviation from the norm that it makes achievement unusually difficult or limits the capacity to work."

Thus, employees who are concerned about wellness programs in their workplace are advised to consult with an employment attorney to better analyze the program and their legality. 

Tuesday, January 8, 2013

Iowa Supreme Courts Upholds Termination on "Irresistible Attraction" Grounds

In a decision catching attention nationwide, the Iowa Supreme Court has upheld the termination of a dental assistant, Melissa Nelson (pictured), who was terminated by her employer, Dr. James Knight, DDS, because "she [was] an irresistible sexual attraction for him, even when the female employee engaged in no improper conduct."  In fact, Nelson worked for Knight after ten years of employment  and Knight even admitted that Nelson was the best dental assistant he ever had.  However, the Iowa Supreme Court did not find this to be gender discrimination even though it seems abundantly clear Nelson was terminated for being female--a highly attractive female at that.  

Very interesting case, to say the least. 

Friday, January 4, 2013

Indiana Hospital Employees Fired Over Flu Shot Refusals

I've written about this before and have received a few phone calls so far this year about mandatory flu shots as it appears employers are not afraid to terminate employees who refuse to get mandatory flu shots even when they claim a religious exception.  The Huffington Post has a story about a hospital in Indiana that terminated several employees who refused, objecting on both religious and personal reasons.  However, the employees who were ultimately fired did not fit the criteria for religious protection as established by the Equal Employment Opportunity Commission, according to the hospital.