Fall/Winter 2012 Legal
and Legislative Updates
November 20, 2012
Hello, SHRMA members! Please see below for Legislative Updates related to the
HR Profession!
ADA Updates
 Recently, in EEOC v. Ford Motor Company, the District Court in
Michigan rejected the EEOC’s attempt to pursue allegations that the
Defendant (Ford Motor Co.) failed to accommodate its employee in
violation of ADA and then retaliated against the same employee for
filing a charge with the EEOC.
o An employee at Ford took Medical Leave for irritable bowel syndrome
and upon her return to work, she had performance issues such as
chronic attendance issues, and work performance issues. Ford made
multiple attempts to accommodate her such as early starts on
Mondays, allowing her to work from home on an ad hoc basis, and
allowing 2 telecommutes per week to name a few. The employee
stated that Ford did not do enough to accommodate. The employee
continues to show performance issues and Ford eventually ended up
terminating the employee. The court denies the EEOC’s claim stating
that the employee was “not otherwise qualified” (due to the
performance issue) and the fact the Ford made every reasonable
attempt to accommodate the employee. This serves as a strong
reminder to the Commission that courts usually give employers
difference in determining what reasonable accommodation for their
employees is.
 There has been a record number of what is being called “Drive-By”
Disability Access Lawsuits emerging against small businesses.
o They receive this name because they are brought upon by people
who have no vested interest in patronizing the business in which they
are suing. In these suits, they are alleging technical violations of the
Title III of the Americans with Disabilities Act. In these suits, they ask
the court to order the business the correct the problem, pay the
plaintiff lawyer fees, and sometimes a monetary recovery amount.
Businesses can defend themselves in many ways such as showing
the plaintiff lacks standing to suit and keeping their facilities
compliant.
EEOC Updates
 EEOC lawyers are targeting sexual abuse of “vulnerable” employees in
recent lawsuits
o Recent lawsuits have focused on sexual harassment of farmworkers to
make a point to employers. Two examples of cases include a female
employee being verbally abused for years. The supervisor then fired the
female employee and blames her for causing the husbands domestic
abuse arrest. A second case involves a farm supervisor physically
grabbing a female worker. This recent focus shows employers the
importance of having a written “zero tolerance” policy regarding sexual
harassment that needs to be rolled out to management and employees.
 10 Tips for avoiding employment discrimination lawsuits
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Know the basics of anti-discrimination law
Know who you hire
Hire a knowledgeable and experiences HR person
Make sure that you have someone that you can turn to who can identify
an employment discrimination issue
Draft and maintain and up-to-date employment manual
Provide periodic training programs
Keep good and thorough record- document everything!
Know where and who to go to register a complaint
Follow the “golden rule”
FMLA
 Employer burned for not meeting the “Equivalent” position under FMLA
o Under the FMLA, an employer must return an employee to the same or
equivalent position upon return from the FMLA leave. The facts
surrounding “Equivalent” position is certainly not black and white.
According to the FMLA regulations, the definition of “Equivalent” position
seems as though there is not a lot of wiggle room for employers. An
example of this would be a computer teacher who went out on FMLA
during maternity leave. She had complications during pregnancy that left
her paralyzed and required a lengthy FMLA leave. Upon return, she found
her position was backfilled permanently and she was then offered a
classroom teacher position rather than her original computer teacher
position. This case is currently in litigation, but the court did refuse to
dismiss, noting that the classroom teacher position is NOT equivalent to
the computer position.
o Tips for employers regarding “equivalent” position under FMLA:
 Avoid the temptation of replacing an employee permanently
 Document how you determine the position in question are
equivalent
 Ensure the new position is regarded highly by the employee
returning from FMLA in regards to prestige, authority, and
especially earning potential
Labor
 Board’s recent decision in J.W. Marriott makes it more difficult for
employers to control off-duty employee access to the workplace.
o The NLRB has historically operated under the Tri-County standard for how
an employer lawfully may restrict access to its property by off duty
employees. In the J.W. Marriott case, it was found that this standard was
possibly discriminating against the employee stating that it “would
reasonably lead employees to believe that their Section 7 activity in the
interior areas of the hotel is prohibited without prior manager approval”.
Employers are being forced to re asses their off duty access rules in order
to ensure compliance with the NLRB.
 NLRB finds that employer lawfully fired employee over Facebook posts, but
its courtesy policy violated the NLRA
o An employee at Karl Knauz Motors was fired after posting several photos
and comments on Facebook regarding incidents that happened at work.
One of which was an accident and another incident included making
negative comments/photos about a work related event. The employee
filed a charge with the NLRB, claiming he was discharged for engaging in
protected activity because his posts were made in an effort to improve
working conditions. The NLRB found that the employee’s Facebook posts
were not protected and the termination did not violate the Act. However,
the NLRB DID find that the courtesy policy in the company’s handbook
was unlawful. The company’s handbook had a rule that employees MUST
engage in courteous behavior, which prohibited disrespectful behavior or
language that damaged the company’s reputation. This shows that the
NLRB will continue to scrutinize handbooks closely and reject any policy
that could potentially be interpreted to prohibit protected concerted activity
by employees.
Regulatory
 Employers will need to use new FCRA forms by January 1
o Employers will be required to use updated forms as part of their
background check process by the first of the year as responsibility for
interpreting the FCRA transfers from the FTC to the newly created
Consumer Financial Protection Bureau (CFPB). The primary changes to
the form include that consumers can contact the CFPB or visit the website
at www.consumerfinance.gov/learnmore to obtain information on their
rights. One new form is “A Summary of Your Rights Under the Fair Credit
Reporting Act”, which employers MUST provide to applicants or
employees when they issue a pre-adverse action letter. Two other new
forms include “Notice to Users of Consumer Reports: Obligations of Users
Under the FCRA” which is a form that background check companies must
provide to their customers (employers). Lastly, changes were made to the
“Notice of Furnishers of Information: Obligations of Furnishers Under the
FCRA” which is a form that is required in certain situations where reinvestigations may occur due to a consumer disputing information. Willful
failure to comply with these new requirements could result to statutory
damages ($100-$1,000 per violation), attorney’s fees, and punitive
damages.
PA State Law Issues
 Miscalculating eligibility for FMLA leave can be a costly mistake
o Telling employees that they are eligible for FMLA when they are not could
be a costly mistake for an employer. In Medley v Montgomery County, a
nursing assistant worked fewer than the 1250 hours required to be eligible
for FMLA. However, the employer told her she was eligible and had her fill
out FMLA paperwork. Then after applying and taking intermittent leave to
care for her son, she was written up for her absences. She was ultimately
terminated for on of the absences she was thought to be covered by
FMLA. She sued for FMLA interference and retaliation. The retaliation
claim stuck because she could prove that she was treated adversely
because she took FMLA leave. Employers need to be careful in explaining
their LOA policies to employees and in calculating eligibility.
Information obtained in the document has come from ConAgra Foods Labor and
Employment Newsletter: Issue 30.