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Unpaid Break Time for Nursing Mothers is Now Mandatory
By Michele L. Jakubs*
On March 23, 2010, President Obama signed into law the Patient
Protection and Affordable Care Act (“PPACA”). PPACA Section 4207
(“Section 4207”), “Reasonable Break Time for Nursing Mothers,” amends
Section 7 of the Fair Labor Standards Act by requiring employers to
grant employees who are also nursing mothers a reasonable amount of
break time to express milk. The break time is unpaid and must be granted
each time the employee has the need to express milk for up to one year
following the birth of a child.
Employers must also designate a lactation area, other than a
bathroom, that is out of sight, sufficiently private and free from
intrusion.
Section 4207 does not apply to employers with less than fifty
employees if compliance would impose an undue hardship on the employer.
Factors for determining an undue hardship include the employer’s size,
financial resources, nature of the work performed, or structure of the
place of business.
Importantly, Section 4207 also does not preempt state laws that
provide greater protections to nursing mothers. Several states have
already implemented laws regarding the rights of nursing employees in
the workplace. For example, the state of Indiana has enacted a law which
protects nursing mothers in the workplace. This law has many similar
provisions to those set forth in Section 4207, but it exceeds the scope
of Section 4207 in that it applies to businesses with twenty-five
employees or more, and it requires employers to provide a cold storage
space or allow employees to bring their own portable cold storage device
to store expressed milk. Ohio presently does not have a law protecting
nursing employees in the workplace, but it does have a law protecting
individuals nursing in public.
Section 4207 took effect immediately. However, the Department of
Labor is currently establishing complimentary rules to clarify the law
including enforcement procedures. Consequently, employers employing
fifty or more employees should implement policies that comply with
Section 4207 immediately if they have not done so already. Further,
employers of all sizes should review state and local laws to ensure
compliance with laws related to nursing employees.
*Michele L. Jakubs,
an OSBA Certified Specialist in Labor and Employment Law, practices in
all areas of employment litigation and wage and hour compliance and
administration. For more information concerning changes to the Fair
Labor Standards Act or any other employment issue, please contact
Michele at 216.696.4441 or mlj@zrlaw.com.
Employee or Non-Employee That is the Question…
By Stephen S. Zashin*
Congress recently introduced the Employee Misclassification
Prevention Act (“EMPA”) known as H.R. 5107 with its counterpart S. 3648.
EMPA, if passed, would require employers to keep certain records
concerning non-employees or independent contractors who perform labor or
service for remuneration.
EMPA would amend the Fair Labor Standards Act (“FLSA”) by
creating a special penalty for employers who misclassify employees as
non-employees or independent contractors. The Department of Labor could
impose fines as high as $5,000 per violation and “willful” violations
would be subject to triple damages.
Presently, there are a multitude of different tests applied by
various government agencies to determine whether a particular individual
is an independent contractor or an employee; employers should apply the
most stringent of these tests to avoid liability under the various laws
for which this is an issue (including the FLSA as well as Title VII and
other antidiscrimination statutes).
In
Community for Creative Non-Violence v. Reid, 490 U.S.
730 (1989) the U.S. Supreme Court examined twelve factors to determine
whether the hired individual is an employee or independent contractor
under common law agency principles. The Court considered most important
the hiring party's ability to control the manner and means by which the
work was accomplished, but stated that there were other relevant factors
to look at and that no single factor outweighed another.
Employers should carefully review the following factors when
determining whether a particular person should be deemed an independent
contractor or an employee:
- The skill required;
- The source of the instrumentalities and tools;
- The location of the work;
- The duration of the relationship between the parties;
- Whether the hiring party has the right to assign additional projects
to the hired party;
- The extent of the hired party's discretion over when and how long to work;
- The method of payment;
- The hired party's role in hiring and paying assistants;
- Whether the work is part of the regular business of the hiring party;
- Whether the hiring party is in business;
- The provision of employee benefits; and,
- The tax treatment of the hired party.
The consequences for making the wrong decision and misclassifying
the person can be severe: liability for failure to withhold and pay the
employer’s share of employment and social security taxes; liability for
failure to make contributions to employee benefits plans;
disqualification from retirement benefits plans; liability for wage-hour
violations (such as failure to pay overtime); liability for health
insurance claims under COBRA; and, liability for violations of
employee’s rights under laws protecting employees from discrimination.
Employers may avoid misclassification problems by increasing the
frequency of communication between workers and their employees.
Employers should schedule recurring meetings with their workers to
assess job duties and responsibilities; this can be done during annual
performance reviews.
The passing of EMPA would heighten the importance of avoiding
worker misclassification. Employers should clarify the terms of their
relationship with workers and anticipate future changes. Employers who
take a proactive approach to classification issues will help to minimize
their risk of costly consequences and future litigation.
*Stephen S. Zashin,
an OSBA Certified Specialist in Labor and Employment Law, has extensive
experience with employee classification issues. If you have
classification questions or any other questions regarding employment or
labor issues please contact Stephen S. Zashin at 216.696.4441 or ssz@zrlaw.com.
Handbook Disclaimer: Include One or Suffer the Consequences
By Lois A. Gruhin
Employers frequently rely on employee policy manuals and
handbooks to disseminate important policies and practices. These manuals
and handbooks may subject unsuspecting employers to contractual
liabilities, especially when a properly crafted disclaimer is not
included.
A recent Ohio Court of Appeals decision offers significant
insight regarding the importance of including disclaimers in handbooks
and policy manuals. According to the holding of
Dunlap v. Edison Credit Union, Inc.,
an employer may avoid contractual liability for the contents of a
handbook by including in the handbook an express disclaimer of
contractual intent and a reservation of rights to change the contents of
the handbook.
In
Dunlap, a retiring employee sought compensation for 38.5 unused vacation days. She argued that a provision in the policy manual – “‘
Employees will receive vacation pay for all unused vacation at the time of termination’”
– entitled her to all of her accrued and unused vacation time dating
back to 2000. In response, the employer argued that the manual was not a
contract, but instead was merely a “set of guidelines.” The employer
also argued that the purpose of the manual was only “to establish a
framework around which the efforts of all employees can be coordinated.”
The employee manual in question contained the following additional language: “
The
Board of Directors and Credit Union Management may modify, suspend or
delete any of the policies stated in the [policy manual] without notice.
To be effective, such changes must be in writing and signed by the
Manager.” Importantly, the manual also included a multi-part disclaimer:
The manual is a management guide to general human resource
methods at the Credit Union. It does not promise that the policies
mentioned will be applicable in any given instance. The manual does not
change the employment-at-will relationship in any way.
The [manual] is not an employment contract and does not provide
any enforceable contractual rights to the employee with respect to
his/her terms or conditions of employment. Neither these guidelines, nor
any written or oral polices, practices or procedures which may develop
from these guidelines create either an express or implied employment
contract.
The Court of Appeals held that these disclaimers prevented the
employee from recovering her vacation time. The Court held that while,
in other circumstances, handbooks and policies might form the basis of
an express or implied contractual obligation, that could not be the case
here in light of the disclaimers, which specifically negated the
possibility of contractual intent. Because of the disclaimers,
therefore, the handbook became ”merely a unilateral statement of rules
and policy which creates no obligations and rights.”
This decision clarifies that employers can avoid untended
contractual obligations arising out of a handbook by including a well
crafted disclaimer to make it clear that there is no intent to contract,
and that the employer reserves the right to change the policies in the
handbook at any time.
Up in Smoke: Employers Need Not Reasonably Accommodate Medicinal Marijuana Use
By David R. Vance*
The Supreme Court of Oregon recently ruled that an employer has
no duty to reasonably accommodate medical marijuana use by employees.
The Oregon Medicinal Marijuana Act (“OMMA”) authorizes persons
holding a registry identification card to use marijuana for medicinal
purposes and exempts those persons from criminal prosecution. The
Federal Controlled Substances Act (“CSA”) does not authorize medicinal
marijuana use and classifies marijuana as an illegal drug for which
criminal charges may be imposed.
In
Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries,
the employer, Emerald Steel Fabricators (“Emerald Steel”), hired a
temporary employee as a drill press operator. Unbeknownst to Emerald
Steel the employee used medicinal marijuana off the clock one to three
times per day. Emerald Steel considered the employee for a permanent
position but fired the employee when the employee disclosed his use of
medicinal marijuana. Emerald Steel fired the employee despite the fact
that he provided his registry card and documentation from his treating
physician attesting that medical marijuana was the most successful form
of treatment for his medical condition.
Two months later, the employee filed a complaint with the Oregon
Bureau of Labor and Industries (“BOLI”). The employee claimed that
Emerald Steel discriminated against him in violation of Oregon Revised
Statute § 659A.112, which prohibits discrimination against an otherwise
qualified individual because of a disability and requires an employer to
make a reasonable accommodation to those with disabilities. BOLI found
that the employee was not fired based on his disability, but ruled that
Emerald Steel violated Ore. Rev. Stat. § 695A.112 by failing to
reasonably accommodate the employee’s disability and denying employment
opportunities to an otherwise qualified person.
On appeal, Emerald Steel argued that Ore. Rev. Stat. § 659A.112
must be interpreted consistent with its federal counterpart – the
Americans with Disabilities Act (ADA). Further, Emerald Steel argued
that because the ADA prohibits protection to those engaged in illegal
drug use and CSA classifies marijuana as an illegal drug the employee’s
use of medical marijuana is not protected by Ore. Rev. Stat. § 695A.112.
The Court of Appeals upheld BOLI’s reasoning that Emerald Steel did not
properly preserve its argument at the administrative level. However,
the Oregon Supreme Court disagreed and proceeded with review on the
merits of Emerald Steel’s argument.
The Oregon Supreme Court ruled in favor of Emerald Steeling
finding that employers are not required to reasonably accommodate the
use of medicinal marijuana by employees, and employers do not engage in
discrimination when terminating employees for use of medicinal
marijuana. The Oregon Supreme Court recognized the United States Supreme
Court’s ruling in
Gonzalez v. Raich, 545 U.S. 1 (2005), that
under the Commerce Clause Congress may prohibit the possession,
manufacturing and distribution of marijuana even when state law permits
it for medical use. The Oregon Supreme Court furthered reasoned that as a
result of
Gonzalez, CSA partially preempted OMMA to the extent
that OMMA explicitly authorized use of a drug CSA classified as
illegal. Therefore, the Oregon Supreme Court ruled that Ore. Rev. Stat. §
695A.112, similar to the ADA, does not protect those engaged in illegal
drug use. Therefore, Emerald Steel was relieved of its obligation to
reasonably accommodate the employee pursuant to Ore. Rev. Stat. §
695A.112.
Strictly speaking, this decision allows Oregon employers to use
discretion without being subject to discrimination claims when hiring,
retaining or discharging employees who use medicinal marijuana. However,
this issue remains unsettled in other jurisdictions such as California
with laws similar to OMMA. Therefore, employers operating in these
jurisdictions should proceed with caution when making employment related
decisions related to an employee’s use of medicinal marijuana.
*David R. Vance,
a member of the firm’s Cleveland office, has extensive experience with
drug and alcohol issues. For more information about reasonably
accommodating employees or any other employment or labor issues, please
contact David at 216.696.4441 or drv@zrlaw.com.
Alcoholics Who Violate a No Call / No Show Policy Are Not Protected by the ADA
By Patrick M. Watts
Recently, the Second Circuit Court of Appeals held in
VandenBroek v. PSEG Power CT LLC,
that where regular attendance is an essential job function, the
Americans with Disabilities Act (“ADA”) and the Family and Medical Leave
Act (“FMLA”) did not protect an alcoholic employee who nonetheless
repeatedly violated his employer’s attendance policy.
The plaintiff in the case, Bruce VandenBroek, worked as a boiler
utility operator at Power Connecticut LLC (“PSEG”). PSEG maintained a
no-call/no-show rule requiring employees to call their shift supervisor
before the start of a missed shift so that PSEG could arrange coverage.
In 2005, VandenBroek took FMLA leave to treat back pain and recover from
back surgery. In February 2006, VandenBroek violated the
no-call/no-show policy on two occasions. The day after VandenBroek
violated the no-call/no-show policy for a second time, he informed PSEG
he was entering a program for treatment of alcoholism and drug abuse.
On March 1, 2006, VandenBroek’s physician released him for work
beginning March 6, 2006. On March 2, 2006, PSEG terminated VandenBroek
for violating its no-call/no-show policy. VandenBroek filed suit against
PSEG alleging violations of the ADA and FMLA. Specifically, he alleged
PSEG discriminated against him by terminating his employment for conduct
causally related to his disability and retaliated against him for
taking leave afforded to him by the FMLA.
The Second Circuit upheld the District Court’s finding that
VandenBroek failed to establish a prima facie case to support his
discrimination claim. Essentially, the Second Circuit agreed with the
lower court that VandenBroek was not “otherwise qualified” to perform
his job because PSEG could not rely on his regular attendance. The Court
reasoned that while attendance is essential to most jobs, it was
particularly important in this case where attendance is necessary to
prevent a power outage or explosion.
Further, VandenBroek improperly relied on
Teahan v. Metro-North Commuter Railroad Co.,
951 F.2d 511 (2d Cir. 1991), which held that when an employer
terminates an employee based on conduct caused by a disability, the
employer terminates the employee because of the employee’s disability.
The District Court distinguished
Teahan, a case decided under
the Rehabilitation Act of 1974, because the ADA, 42 U.S.C. §
12114(c)(4), permits employers to “hold an employee…who is an alcoholic
to the same qualification standards for employment or job performance
and behavior that such entity holds other employees, even if any
unsatisfactory performance or behavior is related to the…alcoholism of
such employee.”
The Second Circuit also upheld the District Court’s decision that
the employer did not retaliate against VandenBroek because he had taken
FMLA leave, but rather terminated the employee for a legitimate
business reason: violating the employer’s “no call/no show” policy. The
Court found the employer’s decision to terminate VandenBroek was
unrelated to his prior FMLA absences for back pain and nasal surgery.
VandenBroek provides only limited guidance for employers
making employment related decisions when dealing with employees
suffering from alcoholism. Employers making decisions to terminate
employees suffering from alcoholism because of poor attendance must be
prepared to show specific reasons why attendance is an essential job
function. Additionally, this issue has not been decided by the United
States Supreme Court. As a result, employers operating outside the
Second Circuit may not be afforded similar discretion.
The Enemy From Within: The Dangers of Unrestricted Technology
By Jason Rossiter*
In a time when most employees have unlimited access to the
Internet, employers must establish a clear and concise electronic
information policy to avoid disclosure of sensitive and confidential
information by its employees. Without a clear and concise electronic
information policy, employers risk infinite abuses of employee work
time, exposure to viruses, loss of trade secrets, and misuse of employer
owned property.
An effective electronic information policy includes an unambiguous
statement regarding the employer’s expectations of computer use, data
storage, and distribution of employer owned documents. Additionally, the
policy must establish simple rules regarding use of employer issued
e-mail accounts, cellular and smart phones, and personal digital
assistants (“PDAs”), as well as a requirement to maintain the
confidentiality of employer owned documents and proprietary information.
Employers must also establish ownership of networks, computers,
servers, files, e-mails, and phones to reduce an employee’s expectation
of privacy when using employer owned property.
Any policy should clearly define the scope of permitted internet
usage. Leaving internet use entirely within the discretion of an
employee may lead to the very abuses that the policy is designed to
eliminate. Employers should also describe what kinds of language,
material, and images employees are permitted to transmit when using
employer-provided networks and computing equipment, including mobile
phones. The policy should make employees aware that the employer intends
to utilize technology to monitor all activity and that employees have
no expectation of privacy when using company-owned systems and networks.
The policy should also prohibit employees from syncing
confidential business information, including customer lists, into
“cloud” based Internet services without the employer’s permission. The
policy should also prohibit employees from using their own personal
smartphones, mobile broadband cards, online services such as Google
Voice, or other such technologies as a means of circumventing the
employer’s policies or of stealing confidential data.
Most importantly, employers should enforce all of these policies by implementing monitoring mechanisms.
Employers should distribute their policy to all employees and
designate a contact person who can answer questions about it. Finally,
since technology changes rapidly, employers should revisit their
electronic information policies at least annually.
*Jason Rossiter
has extensive experience drafting and editing electronic information
policies. For more information about the ever changing technology issues
facing employers or any other employment or labor issue, please contact Zashin & Rich at 216.696.4441.
On the Edge: Government Employers Walk a Thin Line When Contemplating Searches of Technology Utilized by Their Employees
By George S. Crisci*
On June 17, 2010, the United States Supreme Court ruled that a
government employer may search employee text messages sent from a
government-issued pager, despite an employee’s reasonable expectation of
privacy when the search is motivated by a legitimate work-related
purpose and it is not excessively intrusive in light of the purpose.
In
City of Ontario, California v. Quon, No. 08-1332
(June 17, 2010), the employee, Jeff Quon, alleged that his employer, the
City of Ontario, (“Ontario”) and Arch Wireless (“Arch”), the pager
provider, violated his Fourth Amendment rights and the federal Stored
Communications Act (SCA) by searching the text messages he made on his
government issued pager.
Ontario issued its police officers pagers with text messaging
capabilities. The police officers, including Quon, signed Ontario’s
computer policy, which stated that Ontario “reserves the right to
monitor and log all network activity including e-mail and Internet use,
with or without notice. Users should have no expectation of privacy or
confidentiality when using these resources.” The policy did not apply
explicitly to the pager text messages, although Ontario informally
informed its employees that it would treat the text messages in a
similar manner.
Almost immediately after the pagers were issued, Quon exceeded
the number of allowed text messages for the month. Quon reimbursed
Ontario for the overages. Ontario told Quon that an audit of his text
messages would not occur so long as he paid for the overages. This
pattern continued for the next few months, which prompted the police
chief to investigate whether Ontario’s text message contract with Arch
met the department’s text messaging needs. Subsequently, the police
chief and Quon’s supervisor requested and obtained two months worth of
text message transcripts. Upon review, they discovered Quon used his
pager mostly for personal use. As a result, Ontario allegedly
disciplined Quon for violating its employment policies.
Quon filed suit alleging that Ontario and Arch violated his
Fourth Amendment rights and the SCA by obtaining and reviewing his text
messaging transcripts, and that Arch violated the SCA by turning over
the transcripts. The District Court granted Arch’s motion for summary
judgment on the SCA claim, but denied the motion of Ontario and Arch as
it applied to the Fourth Amendment claim. The District Court applied a
two part test – whether Quon had a reasonable expectation of privacy in
the text messages, and whether the text message audit was reasonable –
to determine whether Ontario and Arch violated Quon’s Fourth Amendment
rights. The District Court determined that Quon had a reasonable
expectation to privacy, but Ontario had not violated his Fourth
Amendment rights because the search was reasonably conducted to
determine the efficacy of Ontario’s text messaging plan. The Ninth
Circuit reversed the District Court, and instead found that Ontario’s
search, while conducted for a legitimate work-related reason, was
unreasonable in its scope. Quon appealed to the Supreme Court.
The Supreme Court ruled that Ontario did not violate Quon’s
Fourth Amendment rights. In reaching its conclusion, the Supreme Court
did not rule on whether Quon had a reasonable expectation of privacy
with regards to his text messages, but instead assumed he had such an
expectation of privacy, and then determined that the review of the text
messages was a reasonable search.
The Supreme Court held that a search conducted by a government
employer is Constitutional if it is “justified at its inception and if
the measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of the circumstances
giving rise to the search.” The Court found that Ontario’s search was
justified because it was reasonable for Ontario to conduct the audit to
determine the adequacy of its contract with Arch. Additionally, the
scope of the search was reasonable because it was an efficient and
expedient way to determine whether Quon’s text messages were
work-related.
Government employers should remain cautious when searching
employee information stored in government issued/owned property.
Additionally, government employers should keep searches involving
personal employee information limited in its scope so as to avoid
violating its employees’ Fourth Amendment rights. Government employers
contemplating such a search may wish to consult counsel to address
issues raised in
Quon prior to conducting a search involving private employee information.
*George S. Crisci,
an OSBA Certified Specialist in Labor and Employment Law, represents
employers in all facets of labor and employment law, in both the public
and private sector. For more information concerning any labor or
employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
Z&R Shorts
George Crisci’s article entitled “Recent
Developments in Public Sector Collective Bargaining” has been selected
for inclusion in the 2010 edition of the OSBA CLE Institute’s The Best
of Labor & Employment Law.
Stephen Zashin will be part of a panel presenting
“Trial: Direct and Cross of an Expert Witness on Damages” at the 47th
Annual Midwest Labor & Employment Law Seminar on
October 14, 2010 at the Hilton at Easton Town Center in Columbus, Ohio. For more information go to
www.ohiobar.org.
