Employment Law Update
2010
Samantha S. Otero, Esq.
McCandlish Holton, P.C.
1. General Hiring Issues
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Fluency in English: Recent EEOC guidance indicates that overly broad fluency
policies may violate national origin discrimination law. Employers should only require
fluency in English if such fluency is actually needed for the “effective performance of
the position.”
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Job Descriptions: Make them “lawsuit proof”. Renew every job description each
year, and ask employees in each job for their input. Include the following:
-Job’s essential functions, including physical requirements
-Secondary duties or responsibilities
-Attendance requirements
-Any educational requirements or special skills necessary
-Standards to which the employee will be held
-Whether position is exempt or nonexempt under the Fair Labor Standards Act
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Hiring Checklist: Use it every time – for consistency purposes.
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Merritt v. Old Dominion Freight: April, 2010 case regarding physical ability testing.
2. Privacy and Social Media
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City of Ontario v. Quon: Recent Supreme Court case. Court decided that it was not a
violation of employee’s 4th Amendment rights to search his employer-provided pager.
The search led to discipline of the employee when the public employer discovered
that most of his messages were during work hours and were unrelated to work.
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Banks v. Mario Indus.: Virginia Supreme Court held that there was no expectation of
privacy for employee using a company-owned computer because there was a
company policy directly on point. Dealt with attorney client privilege but is instructive,
nonetheless.
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Banning social media?: 2009 survey indicated that 76% of companies are blocking
sites like Facebook and Twitter entirely.
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Legal ramifications of allowing access? If you receive a subpoena for documents, and it is
likely that there are “reasonably accessible” posts, texts, blogs, etc. that would be responsive
to the subpoena, you may be required to produce them.
Productivity issues exist as well.
Rules to follow:
• whether you allow some access or none, your handbook should be updated to reflect
your policy. Spell out the permissible uses of online social media, if any, and the
ramifications for breaking the rules. Also include parameters for use of any companyprovided technology – phones, pagers, etc.
• If you allow access, make it clear that employees will be monitored in their use.
Consider requiring that they only use the media during employer-given breaks (lunch,
i.e.).
3. “At-will” and reasonable notice
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DoodyCalls case - 2009: Employee who was terminated and asked to leave the
premises filed a lawsuit claiming that the employer violated Virginia law by failing to
provide him with reasonable notice.
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At-will employment is generally defined as employment that can be terminated at the
will of either the employee or employer, at any time, for any reason, with reasonable
notice.
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The question before the federal court was whether the “reasonable notice”
requirement meant that an employer needed to provide ADVANCE notice of
termination, or pay the employee in lieu of such notice. There is a split of opinion
among the circuit courts and federal courts in Virginia, and the Virginia Supreme
Court has never decided the matter.
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District court ruled that there is no advance notice requirement for termination of an
at-will employee.
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What does this mean for risk-adverse employers? Employees generally expect to
receive some notice for a not-for-cause termination. If they do not, they may be more
likely to sue. I generally recommend to be conservative and either give two weeks’
notice, or pay in lieu thereof.
4. Family and Medical Leave Act Amendments
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In early 2008, Congress expanded the FMLA to require covered employers to give FMLA leave to
employees when they (1) experience a “qualifying exigency” arising out of a family member’s
deployment or (2) are needed to care for a family member who was injured on active duty. The
Dept. of Labor issued regulations based on the new requirements, and Congress took issue with a
number of those regulations.
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On October 28, 2009, President Obama signed the National Defense Authorization Act. Tacked
onto this Act is the Supporting Military Families Act, which makes several changes to the military
family leave provisions. These changes were effective immediately, and employers need to
review and revise their policies accordingly.
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Changes to military caregiver leave: Under the first set of amendments, an eligible employee
could take up to 26 weeks to care for a covered servicemember’s serious illness or injury. The
definition of covered servicemember then included current members of the Armed Services. Now,
that definition includes veterans who were servicemembers at any time during the 5 years
preceding the date on which they undergo medical treatment, recuperation or therapy.
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Changes to exigency leave: Under the first set of amendments, an eligible employee could take
12 weeks of exigency leave only if their family member was in the National Guard or Reserves
and was called to duty. Now, that leave can also be taken if the family member is a regular
member of the Armed Services. However, the leave is only permitted if the family member is
called to service in a foreign land.
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Remember to retain FMLA records for three years.
5. ADAAA: ADA Amendments Act
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Almost 2 years after the ADAAA was signed into law, the EEOC has not issued the
final regulations. Employers, however, still need to ensure compliance.
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The ADAAA dramatically expanded the definition of “disabled” and “regarded as
disabled”. Therefore, the likely impact of the Act is that many more individuals will be
covered by the protections afforded in the Act.
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The ADAAA has created a list of potential accommodations, including: acquiring
equipment; adjusting exams, training materials or policies; providing qualified
interpreters; reallocating nonessential job functions; permitting part-time or modified
work schedules; reassigning employees to vacant, equivalent positions; and
considering unpaid leave.
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Proactive steps for employers to take:
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Review policies and job descriptions
Always initiate the interactive process and follow it through
Keep meticulous records of employee performance
Train supervisors to recognize when the ADAAA might be implicated
Contact legal counsel when in doubt
6. Miscellaneous
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The Genetic Information Nondiscrimination Act of 2008 (effective November 21,
2009).
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Prohibits discrimination (or harassment) in all forms of employment based on an
applicant’s/employee’s genetic information.
The definition of genetic information includes any “manifestation of a disease or disorder in
family members” – very broad.
The Act precludes employers from collecting genetic information, but if you overhear it in
everyday gossip or glean it from properly requested FMLA documentation, you are not in
violation of the Act.
Requires employers to exercise caution with respect to medical information collected from
employees and how that information is used.
Nursing/Expressing Breaks under the Patient Protection and Affordable Care Act:
Section 4207 of the PPACA amends the FLSA to add a new section requiring “reasonable” break
time for nursing mothers. The only employers exempt from this requirement are those with under
50 employees that would experience an undue hardship. The breaks are generally unpaid, and
employers must provide a private room, other than a bathroom, for such breaks.
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Same sex harassment: Colie, et al v. Carter Bank & Trust, May 2010.
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Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII
A woman may prove sex-based discrimination in the workplace even though she is not
subjected to sexual advances or propositions.