In this current political cycle there is a lot of talk about the adverse effect unnecessary governmental regulation has on business.  Here is one example.  The FMLA requires employers to post notice of FMLA rights (and include an FMLA policy in their handbooks) even if they have no FMLA eligible employees that can take FMLA leave.  Employers with fifty or more employees have to post notice of FMLA rights even if they do not have fifty or more employees within seventy-five miles of one another.  As written, this is a ridiculous regulation.  The regulation requires employers to advise employee about rights that they don’t have.  Do you think some of those ineligible employees might be confused about the rights?   If I’m an employee, I’m not thinking that my employer would include policies in a  handbook that have no applicability to me.  Indeed, based on the employer’s inclusion of such a policy in its handbook, I would likely think that government-mandated FMLA leave was available to me.

Certainly I don’t think this specific regulation is cause of our Nation’s economic troubles.  It is, however, an example of how regulation can place ridiculous obligations on business.  Hopefully the political debate will cause all involved to require governmental agencies to review the regulations they put in place to determine which are necessary and eliminate the ridiculous ones.  

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Last week the Supreme Court of Texas granted a Petition for Review to hear the case of Mission Independent School District v. Garcia.  While the petition for review has three issues (issue four was not challenged by the respondent), only one is relevant to private employers.  The school district argues for a bright line rule that if the plaintiff-employee is replaced by someone older than he is, there can be no state age discrimination claim as a matter of law.  As worded by the School District, whether a plaintiff can establish a prima facie case of age discrimination when plaintiff-employee’s replacement is older than the plaintiff.

In Garcia, Ms. Garcia worked for the School District for 27 years.  She sued her former employer (and the individual supervisor) for a variety of alleged discrimination (i.e., the kitchen sink approach) including age discrimination.  The School District challenged Garcia’s claim through a plea to the jurisdiction which entitles a governmental employer to an interlocutory appeal (i.e., during the pendency of the case rather than after final judgment).  It is in this procedural posture that the case reached the Supreme Court of Texas.  The substance of the School District’s argument is that because Garcia’s replacement was three years older than she was, she cannot make out a prima facie case of age discrimination as a matter of law. The School District’s argument seems logical, but Courts rarely like to adopt bright-line rules in employment discrimination cases.  The case is scheduled for oral argument on January 10, 2012 and a decision is expected before the end of September.

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I suggested that employers should wait until November 14, 2011 (the implementation deadline) to post the new regulatory-requirement posting on employees’ NLRB rights because of several lawsuits seeking to enjoin the requirement.

The Board has now postponed the initial posting deadline until January 31, 2012 "to allow for further education and outreach."  I’m not sure who else they feel they need to educate and reach out to, but the deadline is changed nonetheless.  Because there is still some uncertainty as to when, and even if, employers will have to make this new posting available to employees, don’t post it until you have to.  If you already posted it, take it down.

Hat tip to Jon Hyman at the Ohio Employer’s Law Blog for first alerting me to the news.

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In an informal discussion letter issued by the EEOC, the Commission suggests that an employer might be required to let an employee or applicant suffering from paruresis or "shy bladder" syndrome to satisfy drug testing obligations through an alternative test.

According to the discussion letter, paruresis:

is the inability to urinate in public restrooms or in close proximity to other people, or the fear of being unable to do so. Paruresis is generally considered to be an anxiety disorder, and typically is treated with cognitive-behavioral therapy. Your letter states that paruresis is also a chronic pelvic floor dysfunction. Individuals with paruresis sometimes are subjected to adverse employment actions because they are unable to pass standard tests designed to detect the illegal use of drugs, and are denied permission to take alternative tests that do not involve urination.

Assuming that the paruresis constitutes an actual disability rather than a perceived disability, the Commission suggests that the employee or applicant could be permitted to take a saliva, patch or other test (e.g., blood or hair) to satisfy an employer’s drug testing obligation.  A "regarded as" disability is not entitled to any reasonable accommodation.

Is this a widespread issue?  Probably not, but it is important advice for an individual who suffers from paruresis or for an employer that has to address drug testing issues involving employees with this condition.

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While the FMLA normally requires an eligible employee be reinstated to an equivalent position at the end of his FMLA leave, the employee has no greater right to reinstatement than if the employee had been continually employed.  Thus, there are several situations where an employee is not entitled to reinstatement.

First, where an employer conducts a layoff or reduction in force while the employee is on FMLA and would have been laid off had the employee not been on leave, the employer’s obligation to reinstatement and continuation of benefits ends on the date of termination.

Second, employees hired for specific project or for a specified term, have no right to reinstatement after the termination of the project or specified term.

Third, employees who have obtained leave fraudulently have no right to reinstatement.

Fourth, employees who are unable to perform the essential functions of the position of employment at the end of leave are not entitled to reinstatement.  To avoid an ADA claim, the employee must only be denied employment if he or she cannot perform the essential functions of the position with or without reasonable accommodation.

Finally, employer’s may deny reinstatement to salaried, eligible key employees when the denial of reinstatement (not leave itself) is necessary to prevent substantial and grievous economic injury to the operations of the employer.  Key employees are those salaried employees who are among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee’s worksite.  Substantial and grievous economic injury sufficient to warrant denial of reinstatement to a key employee includes those situations where reinstatement would jeopardize the viability of the company itself.  Minor inconveniences and costs the employer would otherwise experience in the normal course of business, however, would not qualify.  Keep in mind that the employer must provide "key employees" with certain disclosures at the time the employee gives notice of the need for leave to be able to deny reinstatement.

While an employee’s use of FMLA leave will normally entitled the employee to reinstatement to an equivalent position, keep these exceptions to the general rule in mind when managing leave programs.

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Employers should provide (and pay for) the cell phones and other PDA’s used by their sales force.  Why?  So that the company is entitled to, and can insist on, the return of the telephone, the assigned telephone number and the contacts and other wealth of information contained on those devices when the employment relationship ends.  If a company allows an employee to use his or her own cell phone or telephone number (even if the company reimburses the employee for the service) , the company may not have a right to insist the telephone be turned over to it to clear the customer information from the phone.  Even worse, when your customers use the normal telephone number to place an order with their sales contact, who has since left your employment, they will be connected with your former employer who is now working for your competitor –and the employee didn’t even have to do anything to solicit the customer’s business for the new employer. 

Consequently, a comprehensive effort to protect confidential information, trade secrets and company goodwill may well include providing company-owned cell phones for the sales staff.

 Follow me on Twitter @RussellCawyer.

Prompt and thorough investigations of complaints of harassment and discrimination can provide solid legal defenses to employee lawsuits.  Even where there may not be a technical, legal defense (e.g., supervisory harassment resulting in an adverse employment action), investigating employee complaints of inappropriate behavior can paint the employer in a favorable light and is just a good business practice for employers concerned about providing a professional workplace. 

One of the first choices an employer receiving an employee complaint of discrimination, harassment or even misconduct, has to make is who will investigate the complaint on behalf of the company.  Complaints do not necessarily have to be investigated by lawyers or even those external to the company.  However, there are certain qualities an employer should consider in selecting the investigator (not all qualities are necessarily required for a prompt and thorough investigation).

  • Experienced –someone with prior human resources experience and that has conduct prior investigations of discrimination, harassment, retaliation or workplace misconduct;
  • Unbiased and objective –someone that is neither accused of misconduct or who reports to or is the direct organizational chain of the the person being complained about;
  • Articulate –an individual who is well-spoken and makes both good verbal and physical appearance.  This will be the company’s spokesperson at any trial where the company has to describe and defend its investigation and any remedial measures taken as a result of the investigation;
  • Knowledgeable –person should be knowledgeable of the subject matters being investigated as well as the company policies that apply to the investigation and the misconduct alleged;
  • Approachable –someone that the complaining party, witnesses and the person being complained about will open up  to.  For example, in the investigation of a sensitive sexual harassment investigation, it may be (but is not required to be) that a person who is the same gender as the person making the complaint may be the proper choice.
  • Available –the individuals selected needs to have the time devoted the conduct and conclude the investigation promptly.

As prompt and thorough investigation can be an effective defense to a discrimination, harassment or retaliation lawsuits.  The best defense starts with selecting the right quarterback to run the investigation.

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One of the most popular posts (i.e., most read) I’ve written is one I published two years ago on whether employer can or should ban the use of e-cigarettes in the workplace.  Some employers have gone so far as to implement the complete ban on the use of all products containing nicotine –both during and after work.  I thought that now would be a good time to update my thoughts on the subject.

Recently, the U.S. Department of Transportation issued a press release announcing its proposal to explicitly ban electronic cigarettes on U.S. flights.  According to the DOT’s release:

Electronic cigarettes cause potential concern because there is a lack of scientific data and knowledge of the ingredients in electronic cigarettes.  The Department views its current regulatory ban on smoking of tobacco products to be sufficiently broad to include the use of electronic cigarettes.  The Department is taking this action to eliminate any confusion over whether the Department’s ban includes electronic cigarettes.  The proposal would apply to all scheduled flights of U.S. and foreign carriers involving transportation to and from the U.S.

Amtrak has banned the use of electronic smoking devices on trains and in any area where smoking is prohibited. The Air Force Surgeon General issued a memorandum highlighting the safety concerns regarding electronic cigarettes and placed them in the same category as tobacco products. The U.S Navy has banned electronic cigarettes below decks in submarines.  Further, several states have taken steps to ban either the sale or use of electronic cigarettes.

This is a fairly contentious issue.  On the one hand, smokers and supporters of e-cigarettes claim that they are odorless devices that emit nothing more than water vapor and are no more harmful to coworkers than allowing a nearby employee to chew nicotine gum or wear a nicotine patch.  On the other hand, some employers have expressed concern over the lack of scientific evidence over what is emitted into the air from the electronic cigarettes; over the perception that the employer is condoning or sponsoring any kind of addiction or dependence; and whether some of the types of employment (i.e., retail or customer service) are inconsistent with image the company wants to foster.

In the end, and assuming that nicotine dependence is a disability that must be reasonably accommodated under the ADA, an employer can reasonably accommodate the disability without allowing the use of e-cigarettes in the workplace or at work stations.  It is the long-standing rule that the employer gets to select the accommodation provided among various effective accommodations.  For example, the employer could allow the use of e-cigarettes in the same manner as it allows employees to use other tobacco products (e.g., outdoors during break times).  Similarly, the employer could allow the the employee to use nicotine gum during working time.  If the employer allowed the use of e-cigarettes during working time or in working locations (and assuming it is not prohibited by state law), the employer could require that the employee refrain from using scented e-cigarette flavors to further reduce the potential effect on nearby co-workers.

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DOT Notice of Proposed Rulemaking here.

One of North Texas’ largest employers announced that it will not longer hire or consider for hire any individual who uses any nicotine product (i.e., cigarettes, nicotine gum or patches, chewing tobacco or electronic cigarettes).  Baylor Health Care Systems announced its new policy on the careers page of its website stating:

As a health care system committed to improving the health of those we serve, we are asking our employees to model the same behaviors we promote to our patients. Beginning January 1, 2012, Baylor will no longer hire individuals who use nicotine products. Applicants who profess to use nicotine will not have their applications processed. Anyone who is offered and accepts a position with BHCS will be tested for nicotine during our regular post-offer pre-employment testing. Applicants who test positive for nicotine will be eliminated from consideration and pending job offers will be rescinded.  We encourage candidates who do not pass the nicotine testing to consider taking steps to stop the use of nicotine and reapply for consideration after a period of 90 days. 

The policy appears to screen out any applicants, regardless of the type of product used containing nicotine and whether the product is use on non-working time off the employer’s premises.  Smoking or nicotine dependence has not historically had success in the courts as being a recognized ADA disaiblity.  However, it will be interesting to see if in a post-ADAAA world, where the definition of disability has been greatly relaxed, this policy comes under scrutiny by the EEOC or applicants rejected for employment based on their use of products containing nicotine. 

Baylor is not the first hospital to implement such a policy.  However, similar policies are not without their critics.  The National Workrights Institute, a nonprofit human rights organization focused on workplace issues, has been quoted that "such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding." 

Presumably Baylor had its policy fully vetted by its legal experts and believes it can defend the policy.  However, a quick, admittedly nonexhaustive research search, failed to find any cases holding that nicotine addiction is not a disability under the ADAAA.  Only time will tell whether these kinds of policies will be upheld by the courts.

Follow me on Twitter @RussellCawyer.

Other Articles on Failure to Hire Tobacco Users:

Refusing to Hire Tobacco Users –Valid Argument or Just Blowing Smoke?

Hospital Hiring Goes Up in Smoke.

Hospitals Shift Smoking Bans to Smoker Ban

ADA Amendments May Open the Door for Nicotine Addiction Claims

I am always skeptical when I hear a deal that sounds too good to be true.  Because of my healthy skepticism, I hope that I am unlikely to be scammed by the phishing e-mail advising me a foreign distant relative has left me a lot of money and I only need to send a few thousand dollars to an off-shore bank to release the funds (however I also probably won’t return the phone call when I really win a legitimate lottery).  This was my thought when I read about the new IRS Voluntary Classification Settlement Program that lets companies that have misclassified employees as independent contractors to prospectively reclassify the workers as employees and only pay ten percent of the prior year’s payroll taxes –with no penalties or interest.

This sounds like a pretty good deal.  Come clean and fix prior mistakes all while paying a fraction of the back taxes and no interest and penalties and a promise that the IRS won’t audit prior financial years on this topic.  Some of you are probably saying "where do I sign up?"  (Of course, none of you have misclassified any employees as independent contractors.)

One downside to the IRS’s program is while the government is showing some leniency by providing companies with a limited safe harbor to remedy prior mistakes, wage and hour plaintiff’ lawyers are unlikely to be so forgiving.  Participation in the IRS program will be tantamount to admitting that the workers were misclassified as independent contractors and all the baggage that goes along with such a misclassification. 

Since companies rarely keep records of the hours worked by independent contractors, the newly classified employees can seek several years of unpaid overtime and the employer is unlikely to have any records to rebut the employees’ claims of hours worked.  Moreover, to the extent companies have benefit or incentive plans in which employees participate (but independent contractors do not), companies may face claims for benefits or other incentives (bonuses, options, stock etc.) that were not provided to the misclassified contractors.

The IRS program is an interesting opportunity for companies with misclassified independent contractors to reclassify their workers with less downside to the company.  However, the program could have been more palatable (thereby likely getting better participation) had the IRS included such protections for companies from the other negative consequences that come along from a misclassification of employees as independent contractors such as providing immunity from overtime, benefit or incentive claims for the period of misclassification or providing that agreements with the IRS shall not be admissible in any proceeding involving the company.  Companies will need to weigh all of the benefits and consequences in deciding whether to participate in the Voluntary Classification Settlement Program.

Follow me on Twitter @RussellCawyer.