Polish Jokes Not That Funny

A recent EEOC lawsuit is a reminder that teasing an employee about their ancestry may constitute national origin discrimination. In the EEOC’s complaint against Rhino Eastern, a mining company, the EEOC alleged that supervisors and other employees subjected a Polish employee to degrading and humiliating comments, taunts and slurs based on his Polish ancestry. When the employee complained, the employer failed to prevent or correct the harassment and then fired the employee, allegedly for pretextual reasons. Employers need not maintain a humor free workplace, but jokes and teasing based on national origin (or any other protected classification) may be less amusing when accompanied by a lawsuit.   More information about the EEOC’s lawsuit may be found here: http://www.eeoc.gov/eeoc/newsroom/release/9-30-14f.cfm


Minimum Wage Up to $10.10/hr for Federal Contract Workers

Today the DOL announced a final rule that raises the minimum wage for workers on federal service and construction contracts to $10.10/hr. The rule implements Executive Order 13658. The DOL News Release with a link to the final rule is here: http://www.dol.gov/opa/media/press/whd/WHD20141888.htm

Executive Order 13658 is here: http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03805.pdf


Does Your Job Application Ask about Family Health History?

If it does, you are violating the Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers from requesting or using genetic information in the hiring process.  Practically, that means an employer cannot ask an employee or applicant if anyone in their family suffers from a disease or illness, and cannot require disclosure of this information as a condition of employment.  In a case recently filed by the EEOC, the alleged GINA violation arose from the employer’s “Employee Health Assessment” form, which asked employees and applicants to “indicate any illnesses experienced by family members, including health conditions such as diabetes, kidney disease, heart disease, high blood pressure, arthritis, mental illness, epilepsy and cancer.”  The employer required applicants to complete the form before being hired, and annually after being hired.  It is unclear what defense the employer might raise.  However, if you have questions about family health/medical history in your application or other documents that employees are required to complete, those questions should be deleted as soon as possible (i.e. NOW). http://www.eeoc.gov/eeoc/newsroom/release/9-17-14b.cfm

EEOC Continues to Target Pregnancy Discrimination

Three of the last eight news releases from the EEOC detail lawsuits or settlements arising from pregnancy discrimination. While the facts of each case differ, the cases are a reminder that employers should not: make negative comments about a pregnant employee’s condition; second guess a doctor’s release that permits a pregnant employee to work without restrictions; or terminate a pregnant employee because she is suffering from pregnancy-related health issues.  Links to the EEOC news releases are here: http://www.eeoc.gov/eeoc/newsroom/index.cfm

Oregon Gets $500,000 for Worker Misclassification Detection

Today the Department of Labor announced $10.2 million dollars in funds to implement or improve worker misclassification detection and enforcement initiatives in unemployment insurance programs.  According to the DOL, the funds will be used to increase the ability of state unemployment insurance tax programs to identify instances where employers improperly classify employees as independent contractors or fail to report the wages paid to workers at all. Oregon is one of 19 states receiving funds.  More information, and a list of states can be found here:  http://www.dol.gov/opa/media/press/eta/ETA20141708.htm



Beginning January 1, 2015, employers who are covered by OSHA have increased reporting requirements for on-the-job injuries.  Employers will now have to report in-patient hospitalizations, amputations, and loss of an eye within 24 hours of the work-related accident.  Currently, employer reporting obligations are limited to work-related fatalities or where three or more workers were hospitalized in the same incident.   More information and a handy flowchart can be found here: http://social.dol.gov/blog/when-a-worker-loses-an-arm-who-knows-about-it/


Employer Medical Release Too Broad

Earlier this week, the EEOC sued an employer for firing an employee who refused to complete an over broad medical release and because the release requested information about the employee’s family medical history.

The employee was asked to complete the release in connection with a “fitness for duty” examination.  According to the EEOC’s lawsuit, the release required that the employee agree to the disclosure of “all information concerning medical care, advice, treatment, or supplies provided to me,” and “all information related to or forming the basis of any medical, mental health and/or substance abuse evaluation, recommendations and/or determinations.”  The employee was also asked to provide information regarding his family history involving psychiatric, chemical dependency, suicide, and major medical issues. When the employee refused to provide the requested information, he was fired.

The EEOC did not challenge the employer’s right to request and/or require a fitness for duty examination.  However, the lawsuit alleged that the over broad medical questions violated the ADA’s rules against making disability-related inquiries and the questions about family medical history violated the Genetic Information Nondiscrimination Act.  Employers can ask questions about an employee’s medical history if they are job-related and consistent with business necessity.  However, except in very limited circumstances, employers do not need to know about employee family history or other genetic background.  http://www.eeoc.gov/eeoc/newsroom/release/9-9-14.cfm

“Fitness for Duty” Certification after Medical Leave

Most employers require employees to provide a “fitness for duty” certification in order to return to work after medical leave.  However, unless an employer provides a list of essential functions of the employee’s job and requests that the certification address the employee’s ability to perform those essential functions, all the certification must state is that the employee can return to work.  And, pending any requested clarification from the employee’s doctor, the employer must allow the employee to return to work or face a claim for interference with the employee’s FMLA right to reinstatement.  In a recent case from the Third Circuit Court of Appeals, an employee provided her employer with a doctor’s note that said she could return to work. The employee sought to return, but indicated that because of how her hand was splinted, she would only be able to type with 2 fingers on the injured hand and would be slower than usual. The employer refused to permit the employee to return to work unless the employee could do her job 100% and sent the employee back to her doctor for more information.  The Court found that the employee could go to trial on the issue of whether her employer interfered with her FMLA right to reinstatement when it refused to permit her to return to work based on the original certification.  Budhun v. Reading Hospital and Medical Center, Case No. 11-4625 (3rd Cir. 2014).

The lesson of this case for employers is to give an employee a detailed job description to give to their doctor when obtaining a “fitness for duty” certification after medical leave to enable the doctor to evaluate whether the employee can perform the job’s essential functions upon their return.  The case can be found here: http://scholar.google.com/scholar_case?case=15345350352760643538&hl=en&as_sdt=6&as_vis=1&oi=scholarr


Risks of Misclassifying Employees as Independent Contractors, Again

In Slayman v. FedEx Ground Package Sys., 2014 U.S. App. LEXIS 16623 (2014), plaintiffs, former FedEx drivers in Oregon, brought class actions against FedEx, alleging FedEx made illegal deductions from their wages, in violation of an Oregon’s wage statute. FedEx filed a motion for summary judgment, arguing the wage claims failed because the drivers were independent contractors, not employees. The lower court granted FedEx’s motion. On appeal, the Ninth Circuit reversed, holding that, as a matter of law, the drivers were employees. The Ninth Circuit based its decision on a number of factors, including that: the drivers must wear FedEx uniforms; drive FedEx-approved vehicles; adhere to FedEx grooming standards; FedEx tells its drivers what packages to deliver, on what days, and at what times, and; although drivers may operate multiple delivery routes and hire third parties to help perform work on those routes, they may do so only with FedEx’s consent. Based on these facts, the Ninth Circuit found that FedEx had the right to control the drivers such that the drivers could not be independent contractors under Oregon’s “right to control test.” The Ninth Circuit also found that the drivers were employees under Oregon’s economic-realities test, which is broader than the right-to-control test, covering “situations where the worker is not directed or controlled by the employer but, nevertheless, as a matter of economic reality, depends on the employer.”

This new decision, and many others like it, show that employers need to be very careful when they hire independent contractors. In such cases, the burden is on the employer to show that the workers satisfy all the requirements to be properly classified as independent contractors.

Employee Discussions on Facebook about Employer Tax Mistakes are Protected

Employers occasionally make errors on paychecks. A recent NLRB decision reminds employers that the National Labor Relations Act can protect employee conversations about those mistakes – even if the conversations take place on social media.  In Three D, LLC, the employer fired two employees for their participation in a Facebook discussion about the employer’s withholding mistakes which mistakes resulted in additional state income tax payments from the employees.  One of the employees posted a number of comments about how the employer’s ineptitude resulted in her payment of additional tax, another employee “liked” the comment, and other employees and friends made additional comments.  The employer terminated the commenting employee and told her it was because her Facebook comment indicated she was not “loyal enough.” The employer then interrogated the other employee about why he “liked” the first employee’s comment, the identity of other posters involved in the conversation, and whether he posted anything negative. The employer then fired that employee because of his involvement in the Facebook conversation.

The NLRB found the Facebook discussion was concerted activity –  multiple employees were discussing terms and conditions of employment (the employer’s calculation of employees’ tax withholding) and the discussion was part of an “ongoing sequence” of discussions that began in the workplace and continued on social media.  And, because the employees discussed raising the tax issue at a staff meeting, the NLRB found that the communications were also protected because the employees were seeking to initiate, induce or prepare for group action.  The NLRB rejected the employer’s argument that the comments were defamatory or disloyal and thus not protected, in part because the employees were not accusing the employer of “pocketing employees’ money” or other wrongdoing, and because the comments were posted on a personal Facebook page and not intended for view by the public.

The NLRB also took issue with the employer’s Internet/Blogging Policy which prohibited employees from “engaging in inappropriate discussions about the company, management, and/or co-workers,” because it found that this language would reasonably tend to chill employees from engaging in concerted activities.

The NLRB decision reminds employers to tread carefully when firing employees based on on-line communications about work.  The decision is here: http://www.nlrb.gov/case/34-CA-012915