Tuesday, May 21, 2013

WIsconsin May Soon Ban Mandatory Flu Shots

The mandatory flu shot requirement by many employers has been at the fore of employment law issues in the last couple of years with many employees outraged to learn that the requirement is lawful in nearly every circumstance--as some have found out after facing termination for refusing the shot.  Currently, in Wisconsin, there is no law banning the mandatory flu shot and the only legal redress an employee may have who refuses the flu shot is under the National Labor Relations Act ("NLRA"), the Americans with Disabilities Act ("ADA") or the Wisconsin Fair Employment Act ("WFEA"), or religious discrimination under Title VII or the WFEA--as I have written about before.  However, this may change in Wisconsin as Rep. Jeremy Thiesfeldt, R-Fond du Lac, said he began drafting the legislation to end mandatory flu shots after several hospital workers and health care contractors in his district complained they were fired after refusing to be vaccinated.


If the legislation successfully passes, Wisconsin would be the only one in the country banning employers from requiring mandatory flu shots.  WISN 12 has a short article available here on the legislation.

Another Social Media Concern for Employers: Vine!

The Wall Street Journal's Law Blog has a short article on the new social media smart phone application, Vine, which is an app that allows people to make 6-second videos and post like a tweet on Twitter or a picture on Instagram, and how it may be of concern for employers.

Apparently, if you do a search of keywords like “hatework” or “bored” or “work” into a Vine search box, fellow law blogger and employment attorney Daniel A. Schwartz says he quickly pulled up a number of clips showing employees doing things that would make their bosses cringe.

The National Labor Relations Board ("NLRB") has been attacking employers' social media policies and while some videos may be considered protected activity under the National Labor Relations Act ("NLRA") just like some tweets and Facebook statuses have been deemed in many cases, Vines displaying employees clearly violating workplace policies and engaging in misconduct only provide direct evidence for grounds to terminate an employee and embarrass them should they pursue subsequent legal action.  It is also probably going to be another area of discovery requests for management-side lawyers as well.

Thursday, May 16, 2013

Huffington Post on At-Will Employment

Fellow avid employment law blogger, Attorney Jon Hyman, of the Ohio Employer's Law Blog, recently took part in a discussion on at-will employment that is definitely worth a watch:


Wednesday, May 15, 2013

Senate Republicans Call for Hearing on NLRB's Budget Request

This week U.S. Senator Lamar Alexander (R-Tenn.), the Ranking Member of the Senate Health, Education, Labor and Pensions Committee, along with 13 Republican senators today sent a letter to Chairman Tom Harkin requesting a committee hearing on the fiscal year 2014 budget request of the National Labor Relations Board, which asks for an increase in funding to accommodate increased hiring at a time the board’s caseload “has dropped almost 9 percent.”

From the press release on the hearing request:
The NLRB’s own data confirm that over a longer span of time—the last 20 years—the annual representation caseload has dropped by 59 percent, the number of representation cases the Board decided has dropped by 72 percent, the number of unfair labor practice cases has dropped by 33 percent, the number of unfair labor practice cases the Board decided has dropped by 63 percent, the number of elections held has dropped by 57 percent (although the union win rate has increased), yet during the same period funding has increased more than 70 percent. The letter was sent by Alexander along with Senators Jerry Moran (R-Kan.), Richard Shelby (R-Ala.), Thad Cochran (R-Miss.), Lindsey Graham (R-S.C.), Mark Kirk (R-Ill.), Mike Johanns (R-Neb.), John Boozman (R-Ark.)., Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.), Richard Burr (R-N.C.), Orrin Hatch (R-Utah), Pat Roberts (R-Kan.), and Tim Scott (R-S.C.).

May 2013 Edition of the Employment Law Blog Carnival is Live

Big thanks to Attorney Donna Ballman for hosting this month's edition of the employment law blog carnival titled, "We Are Family."  Enjoy!

Thursday, May 9, 2013

Study Shows Few Dads Take Advantage of Paternity Leave

A study published in 2012 by researchers at the University of Virginia and the University of Connecticut found that only 12% of fathers took paid parental leave when it was offered, compared with 69% of mothers.  Currently, expecting mothers and fathers are only protected by two federal laws: The Pregnancy Discrimination Act and the Family and Medical Leave Act.  Currently, pregnant employees are treated no differently than other temporarily-disabled employees and expecting fathers have even less protection unless they qualify for FMLA leave.  There is pending legislation, The Pregnant Workers Fairness Act, which seeks to provide greater protections to pregnant and expecting father employees, but it does appear many private employers, like Yahoo, are voluntarily providing generous leave policies, but fathers are not utilizing the leave advantages.

Marketwatch.com article on paternity leave shows, most companies offer more generous paternity leave than maternity leave:

While 11% of companies offered additional paid maternity leave beyond paid disability leave in 2011, more employers, or 13%, offered paid paternity leave. That’s because maternity leave is much more expensive for companies to offer, since mothers are much more likely to use all they are given (and might take the weeks off anyway, without pay), says Sladek. “There’s just a lot of societal pressures on men, more so than women, so it’s harder for men to take the full leave.”

Even when men do take paternity leave, they often spend some of it working, perhaps contributing to their employer’s bottom line even when not at the office. The researchers behind the 2012 study which surveyed male and female professors on the tenure track, noted a theme of dads on leave working more than caring for their infant: “We heard stories of male academics who took paid post birth leave in order to advance their publishing agendas,” they wrote. “Another had taken leave while his child was in full-time day care.”

Another surprising statistic is that only approximately 11% of the private sector workforce has access to designated paid family leave.  Pregnancy discrimination remains one of the more fluxing areas of employment discrimination and appears to continue to be a bigger issue for women than for men.

Tuesday, May 7, 2013

EEOC Obtains Its Largest Verdict in History

In a case of purely horrific facts that border on unbelievable comes good news from the Equal Employment Opportunity Commission who announced it obtained its largest verdict in the agency's history in correcting this tremendous wrong done to mentally-disabled workers at an Iowa turkey service facility.  The jury award was for $240 million!

From the EEOC's press release on the historic verdict:
EEOC presented evidence to the jury that Henry's Turkey exploited these workers, whose jobs involved eviscerating turkeys, because their intellectual disabilities made them particularly vulnerable and unaware of the extent to which their legal rights were being denied. The affected men lived in Muscatine County, Iowa, where they worked for 20 years as part of a contract between Henry's Turkey and West Liberty Foods, an Iowa turkey processing plant....Specifically, the EEOC presented evidence that for years and years the owners and staffers of Henry's Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.
Verbal abuses included frequently referring to the workers as "retarded," "dumb ass" and "stupid."  Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  The Henry's Turkey supervisors, also the workers' purported caretakers, were often dismissive of complaints of injuries or pain. 
"These men suffered isolation and exploitation for many years, while their employer cruelly consumed the fruits of their labor," said Robert A. Canino, regional attorney of the EEOC's Dallas District Office, which tried the case.  "Our society has come a long way in learning how persons with intellectual disabilities should be fully integrated into the mainstream workplace, without having to compromise their human dignity."
On top of this historic verdict, the EEOC also sued Henry's Turkey for the disparate pay these disabled workers received.  The EEOC earlier won a $1.3 million wage discrimination judgment when Senior U.S. District Court Judge Charles R. Wolle found that, rather than the total of $65 dollars per month Henry's Turkey paid to the disabled workers while contracted to work on an evisceration line at the plant, the employees should have been compensated at the average wage of $11-12 per hour, reflecting pay typically earned by workers without intellectual disabilities who performed the same or similar work.  The EEOC's wage claims for each worker ranged from $28,000 to $45,000 in lost income over the course of their last two years before the Henry's Turkey Service operation was shut down in February 2009.

Truly a sad story with a great ending.  Congratulations, EEOC!

Monday, May 6, 2013

EEOC Holding Meeting on May 8th to Explore Wellness Programs

Wellness programs have been at the fore of controversy lately, especially here in Wisconsin where several of the State's largest employer's have implemented policies that some have argued violate anti-discrimination laws.  The Equal Employment Opportunity Commission (EEOC) will finally address the issue in a meeting at their headquarters in Washington D.C. on May 8, 2013 at 9am est. 

From the EEOC's press release on the meeting:

The Commission will hear from invited panelists on the treatment of wellness programs under federal law, with an emphasis on understanding the ways in which the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other statutes EEOC enforces may be implicated by these programs.

The Commission is scheduled to hear from the following confirmed panelists:
  • Christopher Kuczynski, Acting Associate Legal Counsel, EEOC
  • Judith Lichtman, Senior Advisor, National Partnership for Women and Families
  • Jennifer Mathis, Deputy Legal Director, Bazelon Center for Mental Health, on behalf of the Consortium for Citizens with Disabilities
  • Amy Moore, Partner, Covington and Burling LLP, on behalf of the ERISA Industry Committee (ERIC)
  • Karen Pollitz, Senior Fellow, Kaiser Family Foundation
  • Leslie Silverman, Partner, Proskauer Rose, LLP; Former EEOC Vice Chair (2002-2008)
  • Tami Simon, Managing Director, Knowledge Resource Center, Buck Consultants, on behalf of the American Benefits Council (ABC)