The guide can be found here: http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm
Meeting is scheduled for March 12, 2014. The list of issues to be discussed includes how social media is impacting recruitment and hiring, harassment, records retention and discovery. http://www.eeoc.gov/eeoc/newsroom/release/3-5-14.cfm
A Bill introduced this month in Congress would broadly expand the Family and Medical Leave Act (“FMLA”). H.R. 3999, aka, the Family and Medical Leave Enhancement Act of 2014, would expand FMLA to cover employees at worksites that employ fewer than 50 employees, but not fewer than 25 employees. It would continue to exempt from FMLA coverage employees at worksites that employ fewer than 25 employees (currently 50), if the total number of employees employed by that employer within 75 miles of that worksite is fewer than 25 (currently 50).
H.R. 3999 would allow employees to take intermittent, “parental involvement leave” to attend or participate in their children’s and grandchildren’s educational and extracurricular activities and would also allow FMLA-protected leave to cover “routine family medical needs and to assist elderly relatives.” Currently, the FMLA generally allows for job-protected, unpaid leave only for “serious health conditions.” Under the amendment an employee would be limited to 4 hours of leave in a 30-day period, and 24 hours of leave in a 12-month period.
We will monitor this Bill. Meanwhile, you can read the text of the Bill at the following address at the gongress.gov Internet site:
A recent case out of the 9th Circuit Court of Appeals addressed the issue of whether an employee can decline to take FMLA leave even where the underlying reason for taking leave qualifies for FMLA protection. In Escriba v. Foster Poultry Farms, the employee indicated, on multiple occasions, that she wanted to take two weeks of vacation to care for her ailing father. The employee’s supervisor, using an interpreter, directly inquired whether the employee would need more than two weeks of leave and told the employee that if she needed more leave or could not return on schedule she should talk to human resources. The employee left for vacation and never called to notify the employer that she needed more time off or when she might be coming back. When the employee did not return after her vacation, she was terminated pursuant to the employer’s no call/no show policy. The employee then sued, claiming that the employer interfered with her rights under FMLA by not giving her FMLA leave.
The 9th Circuit found for the employer, and held that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. And, if an employee declines to take FMLA leave, the employer can treat the employee’s absence just like any other absence under its attendance policy. The decision also has some interesting language about how far an employer’s obligation to inquire an employee’s need for leave extends. http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/25/11-17608.pdf
By now, most employers know that the National Labor Relations Board (NLRB) considers Facebook posts among employees about terms and conditions of employment to be protected concerted activity. A recent NLRB decision clarifies, however, that an employee will not be able to establish that their Facebook posts are protected where the only evidence presented is that, over a period of 5 to 6 months, the employee posted unspecified criticism of their employer, unspecified comments about the union, and provided no information for the NLRB to determine if the employee’s co-workers were involved in the communications. http://www.nlrb.gov/case/32-CA-062242
Here is an interesting article for employees and employers from NPR http://www.npr.org/2014/02/21/280213268/job-seekers-still-have-to-hide-tattoos-from-the-neck-up
In Wellington v. Lane County, 2014 U.S. Dist. LEXIS 18376, 1-5 (2014), a former employee sued his employer Lane County, arguing the County had retaliated against him because he exercised his right to take leave under the Family and Medical Leave Act (FMLA) and the Oregon Family Leave Act (OFLA). The employee argued the county first failed to reinstate him to the same or an equivalent position following medical leave, and then terminated him, motivated at least in part by the fact he took leave. The county argued that any decisions made regarding the employee and his position with the County were made due to factors totally unrelated to the employee’s leave. When the jury returned a verdict in favor of the County, the employee moved for judgment as a matter of law pursuant to rule 50(b) or, in the alternative, a new trial pursuant to rule 59. The Court denied the employee’s motions.
The Court explained that recognizing that requiring employers to provide leave is only a partial protection for workers, the FMLA also requires employers to reinstate employees returning from leave to the same or an equivalent position, and OFLA requires employers to go further than the FMLA, allowing reinstatement to an equivalent position only if the employee’s former position no longer exists. However, [t]he protections to employees in the FMLA and OFLA . . . are not absolute. As is the case here, an employer may present an affirmative defense that any change in an employee’s position would have occurred even if he had not taken leave.” In this case, after four days of trial, the jury concluded defendants had proven that the county would have made the same decision with respect to the employee’s employment even if he had not taken protected leave. Specifically, the county presented evidence, among other things, that the employee’s management style created a “culture of fear” at the workplace. Because, “substantial evidence supported the jury’s conclusion,” the Court upheld the jury’s verdict.
The General Counsel of the National Labor Relations Board (NLRB) has requested the NLRB reconsider precedent regarding NLRB deferral to labor arbitrator decisions where pending NLRB unfair labor practice charges arise from the same facts.
According to the NLRB: “Under the existing standard, the [NLRB] defers to an arbitration award when: (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). Further, the arbitral forum must have considered the unfair labor practice issue. The Board deems the unfair labor practice issue adequately considered if: (1) the contractual issue is factually parallel to the unfair labor practice issue; and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue. Olin Corp., 268 NLRB 573 (1984). The burden of proof rests with the party opposing deferral.
The change requested by the General Counsel would place the burden on the party seeking deferral to an arbitration award to show: “(1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act.”
Whether the NLRB actually adopts the General Counsel’s proposed policy change will depend, in part, on comments from interested parties which are due by March 25, 2014.
Here’s the NLRB’s press release on this issue:
Most employers are aware that the EEOC has strict rules about the rights an employer can ask an employee to release as part of a settlement. Generally, a release cannot require an employee to give up their right to bring an EEOC claim, or to communicate or cooperate with the EEOC. CVS drew the EEOC’s attention when it conditioned the payment of severance benefits for certain employees on the execution of an overly broad severance agreement which was five pages long and typed in small print. The EEOC sued CVS alleging that it unlawfully violated its employees’ right to communicate with the EEOC. http://www.eeoc.gov/eeoc/newsroom/release/2-7-14.cfm
The EEOC press release about this new lawsuit does not indicate whether there are other problems with the language or execution of the severance agreements. However, the lawsuit is a reminder that employee waivers of discrimination claims must be knowing and voluntary and are evaluated based on the totality of the circumstances. http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html
Curious about what kind of cases the EEOC is bringing and how much money the agency is bringing in from employers via settlement and litigation? The answers are all here (for 2013 and prior years). http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm