Nonetheless, the benefits that telecommuting offers to employers do not come without concerns.  Among these concerns are legal issues that are created by telecommuting such as questions regarding the Americans with Disabilities Act (“ADA”), workers’ compensation programs, and workplace safety, among others.

Under the ADA, employers are required to offer reasonable accommodations to employees with qualifying disabilities.  By implementing a telecommuting policy, an employer is likely opening the door for a court to find that telecommuting is a reasonable accommodation for employees under the ADA. 

Additionally, telecommuting creates concerns for employers regarding workers’ compensation coverage.  Generally, workers’ compensation covers injuries that arise out of one’s employment.  Workers’ compensation law does not typically distinguish between on-site and off-site employees.  The question of whether or not an injury that occurs at home is covered under workers’ compensation can be difficult from an employer’s perspective.  An injury incurred while stepping out of the shower, or going up and down stairs may very well be deemed to have arisen out of employment depending on the circumstances.  In fact, one state found a telecommuter injury that occurred while salting his driveway to be compensable.

Telecommuting also raises questions regarding accidents that occur while a telecommuter is traveling between the off-site location and the employer’s place of business.  Typically, an employee is not covered for an injury that occurs during a commute to the worksite.  However, accidents that occur after an employee’s work day has begun are often compensable under workers’ compensation law.  Generally, this includes travel between worksites so telecommuters who are injured traveling to an employer’s office may well have a compensable injury.

Yet another issue for employers of telecommuters to consider is the Occupational Safety and Health Act of 1970.  The Act generally requires employers to provide a workplace free from hazards that are likely to cause serious injuries or harm.  OSHA has indicated that it will not conduct routine investigations of home-based work sites and employers will not be held responsible for home-based offices.  Nonetheless, OSHA has advised that employers can be responsible for hazards in a home-based office that the employer knows or should know exist.  Specifically, employers can be liable for hazards caused by materials, equipment or work processes that the employer requires to be used in a home-based office. 

These concerns are certainly not exhaustive as there are numerous other employment issues related to telecommuting, but they highlight the importance in having a well thought out and detailed telecommuting policy.  Employers are best advised to consider each position and analyze the risks and benefits when implementing or revising a telecommuting policy.  Understanding the potential legal ramifications before implementing a telecommuting policy can prevent future headaches for employers.

During each session, W. Michael Hanna, Tara Aschenbrand, and Jeremy Morris will discuss:

• The US Supreme Court Decision and Aftermath 
• Overview of Patient Protection and Affordable Care Act
• Employment Law Implications

For additional information or to register, please visit our website or contact Laurie Keegan (614) 365-2344.

In August, we will host the next installment in the series, which will focus exclusively on the benefits and coverage issues associated with the Patient Protection and Affordable Care Act.

So, how does this affect you as an employer?  In previous posts, we discussed the legal implications that employers may face for cell-phone related accidents caused by their employees and the need for employers to update or implement policies regulating employee use of handheld devices while operating a vehicle for work purposes.  Under the Occupational Safety and Health Act of 1970 (“OSH Act”), employers must provide a workplace free of serious recognized hazards.  The leading cause of worker fatalities year after year is motor vehicle accidents and according to the Occupational Safety and Health Administration (OSHA), it is well known that texting while driving greatly increases the risk of such accidents and the chance of being seriously injured or killed in a crash.  Thus, OSHA has declared under its Distracted Driving Initiative that “[e]mployers who require their employees to text while driving—or who organize work so that doing so is a practical necessity even if not a formal requirement – violate the OSH Act” and the administration will issue citations and penalties, where necessary, to end this practice.  In addition, under the theory of respondeat superior, an employer may be held legally responsible for the negligent actions of an employee acting within the scope of his or her employment.  Because the violation of any specific safety statute, such as a traffic law, is negligence per se in Ohio, employers who require or encourage employees to text while driving are more likely to be found liable for any accident that results from an employee’s violation of House Bill 99.

Thus, with the enactment of House Bill 99 in Ohio and OSHA’s Distracted Driving Initiative, employers should carefully review their existing workplace rules for compliance with federal, state and local laws and eliminate any policy or practice that requires or encourages workers to text while driving.  Employers who have no policy should strongly consider adopting a policy and should promptly educate their employees regarding House Bill 99’s restrictions, especially as it relates to employees under the age of 18.

Granting Humana’s motion to dismiss, the lower court held that the Plaintiff failed to allege facts sufficient to plead a prima facie case of intentional discrimination, citing to the burden shifting framework of McDonnell Douglas, which is used to evaluate claims of race discrimination based on circumstantial evidence.

Finding the lower court’s holding in direct conflict with Supreme Court precedent, the Sixth Circuit clarified that the McDonnell Douglas paradigm is an evidentiary standard and not a pleading requirement. See e.g., Swierkiewicz v. Sorema, 534 U.S. 506, 510 (2002); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (the application of McDonnell Douglas at the pleading stage is “contrary to the Federal Rules structure of liberal pleading requirements”); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Concluding the Plaintiff tendered more than “naked assertion[s]” in her Complaint and sufficiently pled a pattern of discrimination satisfying Civil Rule 8(a), the Sixth Circuit reversed and remanded the matter for proceedings consistent with its opinion.

This case comes less than a week after the Sixth Circuit handed down its hotly contested decision in Litton v. Talawanda School District, Case No. 10-3559 (June 26, 2012), where it held that once “the case proceed[s] to trial…we are no longer concerned with whether the plaintiff established a [McDonnell Douglas] prima facie case, but instead focus on the actual question of discrimination.” While it is unclear how far the Court will continue to narrow the reach of the burden shifting articulated in McDonnell Douglas, employers should take this as an opportunity to review current practices to determine if such practices cause disparate impact on employees within protected classifications. 

In disparate treatment cases lacking direct evidence of discrimination, courts apply the burden shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the first step of which requires a plaintiff to establish a prima facie case of discrimination. A critical element of a prima facie case of discrimination is whether the plaintiff, in fact, suffered an adverse employment action. 

Upon receiving the verdict, the District argued that because the Plaintiff failed to prove an element of his prima facie case, the court was required to find no unlawful discrimination. The lower court entered judgment for the Plaintiff, finding once “the case proceed[s] to trial…we are no longer concerned with whether the plaintiff established a prima facie case, but instead focus on the actual question of discrimination.”

The Sixth Circuit upheld the trial court finding it well settled that a court should “disregard a jury’s assessment of [a plaintiff’s] prima facie case and instead focus on ‘the ultimate question of discrimination vel non.’” Citing the Supreme Court’s precedent in Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983), as adopted by the Sixth Circuit, the Sixth Circuit concluded that because the jury’s assessment of the Plaintiff’s prima facie case did not control its finding on the ultimate question of discrimination, the district court was “not only permitted to disregard the jury’s answer to the adverse employment action question, it was required to do so, and instead to evaluate the strength of the evidence as a whole.”

So did the Sixth Circuit create a claim for benign discrimination?  It appears so.  In a strongly worded dissent, Chief Judge Batchelder reminded the Court that Title VII does not ban mere discrimination, but only adverse discrimination. This requirement “is not merely some vestigial prima facie element that fades into the background as the case progresses, it is at the heart of the claim itself.” Moreover, the Chief Judge rejected all of the cases cited in the majority opinion, finding that none of the cases support the notion that the “ultimate question of discrimination disregard[s] whether the discrimination was[,] in fact[,] adverse.” Such a holding, the Chief Judge declares, would be “[n]onsensical,” as “[t]he whole purpose of Title VII, as stated clearly by its text and controlling case law, is preventing harmful discrimination, not the lamentable-but-benign discrimination that the jury found Litton experienced.”

While we wait to see whether the Sixth Circuit will reconsider this matter en banc, employers should remain vigilant in documenting employment decisions to help defend against claims of discrimination. At the very least, this best practice may bolster an employer’s chances of curtailing litigation at the summary judgment stage, and prevent a similar post-trial anomaly. 

 •Section 2(B) requires local law enforcement to verify the immigration status in any lawful stop, detention, or arrest any time in which they have “reasonable suspicion” that someone is unlawfully present.  This has been labeled as the “show me your papers” provision;

 •Section 6 authorizes warrantless arrests for individuals presumed (based on “reasonable suspicion”) to have committed a deportable offense;

 •Section 3 creates a state crime for failure to carry immigration status papers at all times (this provision mirrors a longstanding but seldom enforced federal law); and

 •Section 5 creates a state criminal penalty for those found working while unlawfully present. 

Enforcement of these four contested provisions of the law, officially known as the Support Our Law Enforcement and Safe Neighborhoods Act, had been enjoined by a temporary injunction issued by the US District Court for the District of Arizona in 2010.  The Court declared that three provisions were preempted by federal law and cannot be enforced.  However, the controversial “show me your papers” provision, requiring state officers to make a “reasonable effort” to determine the immigration status of anyone they stop, detain or arrest, and as to whom there is “reasonable suspicion” of unlawful presence in the US, was not found to be preempted by federal law and will now be enforced by Arizona law enforcement officers.  For additional details regarding the case, see our recent alert [pdf].

How this law will be enforced is the subject of much discussion and controversy. In fact, in its majority opinion, the Court indicated that its decision does not foreclose other preemption and constitutional challenges after the law goes into effect.  Shortly after the decision, a spokesman from the Maricopa County Sheriff’s office declared that officers will not be expected to allow contact with ICE to impede investigations, and communication with federal officials will not mean suspects are unnecessarily detained.   Phoenix Police Chief Daniel Garcia attempted to make similar reassurances declaring that Phoenix was prepared to “err on the side of protecting civil rights.”  Moreover, US Attorney General Holder indicated that the federal government is going to be watching how Arizona and other states implement the “show me your papers” laws.  In a post-decision statement, he stated:  

I want to assure communities around this country that the Department of Justice will continue to vigorously enforce federal prohibitions against racial and ethnic discrimination.  We will closely monitor the impact of S.B. 1070 to ensure compliance with federal immigration law and with applicable civil rights laws, including ensuring that law enforcement agencies and others do not implement the law in a manner that has the purpose or effect of discriminating against the Latino or any other community.

Although the case addressed only Arizona’s law, many states are impacted by the decision as they have enacted or are considering similar legislation.  Alabama, Georgia, Indiana, South Carolina, and Utah have all passed laws modeled after S.B. 1070.  Further, 24 other states have similar bills introduced in their legislatures.  Although the ultimate fate of these laws has not yet been completely determined, any provisions modeled after Sections 3, 5(C), and 6 of S.B. 1070 are unlikely to be enforced. 

In the wake of the decision, employers should be aware that although states cannot create new immigration laws or attempt to bolster the penalties for existing federal immigration laws, many states can and will encourage their police to determine the immigration status of individuals who are detained.  Moreover, several states can be expected to push the limits of this ruling, encouraging their officers to enforce existing federal law under the auspices of consultation and communication with the federal government.  In addition, last year’s Supreme Court decision in Chamber of Commerce v. Whiting  upheld state enactment of laws requiring employers to register with the federal government's web-based E-Verify program for I-9 employment authorization verification purposes.  At present, 9 states require (or are in the process of implementing legislation that will require) private employers to register in E-Verify and another 6 states require state contractors to register.  Employers should ensure that they are complying with all federal laws and E-Verify requirements, especially when employing foreign national employees in states that have enacted immigration legislation and E-Verify requirements.   

Based upon the Court’s ruling, the PPACA will continue.  Although some of the provisions are already in effect, many more become effective in 2014.  Accordingly, employers should proceed with implementing PPACA’s reforms.  For instance, employers with more than 50 full-time equivalent employees in 2014 will be required to provide “minimum essential coverage” to all full-time employees and their dependents, or pay a penalty. 

We will continue to closely monitor the PPACA and expect more developments regarding this law. 

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” 

The NLRB recently announced that more than 5% of their cases involve non-union concerted activity.  So what is this protected, concerted activity?  Well, the NLRB launched a new, interactive website earlier this week to highlight recent cases providing examples of such protected activity.  Employers can view the website here. 

However, not all is lost when it comes to employment-based visas.  Employers still have options to get through the second half of the calendar year with the following:

Cap exempt H-1B petitions may still be filed.  This includes extension, amendment or change of employer filings for current H-1B holders.  In addition, certain non-profit petitioners that are or affiliated with institutions of higher education or research may be exempt from the Cap as well as foreign national physicians that have obtained a J-1 waiver. 

• There are still cap subject H-1B1s for Singaporean and Chilean nationals;
• E-3 visas are also available for Australian nationals;
• NAFTA (TN) visas have no limit for nationals of Canada and Mexico;
• Many graduating foreign national students are eligible for Optional Practical Training (OPT) work authorization which can last from 1 year to 29 months for “STEM” graduates of US institutions whom are hired by employers enrolled in E-Verify.  These students may be eligible to change to an H-1B next year;
• Employers may utilize interns or trainees under various J visa exchange programs;
• Multinational or treaty investor/trader employers may take advantage of the L-1 or 
  E-1/E-2 visa for eligible executive, manager, supervisor, specialist or essential skills employees; and
• Employers hiring individuals who are considered extraordinary or outstanding in their respective field may be eligible for an O-1 visa. 

To paraphrase Emily Dickinson, we will dwell in the Possibility. 

A new case out of the Ohio Supreme Court demonstrates the importance of companies ensuring that the language of employee noncompete agreements includes all of the key provisions.  In Acordia of Ohio v. Fishel (pdf), the Ohio Supreme Court held that an earlier corporate merger started the clock ticking on noncompete agreements where the agreements did not include adequate language to extend to other employees, such as successors, mergers or assigns. 

In light of the Acordia decision, companies should review their existing noncompete agreements with key employees to make sure the agreements provide for enforcement by successor employers in the event the company ceases to exist in its current form or otherwise sells the business to another company.  The successors and assigns language must be broad enough to contemplate various forms of transfer (e.g. asset sale, stock sale, etc.) to provide for automatic continuation or survival of the agreement.  Further, companies who are acquiring other business will want to review the target’s employee noncompete agreements to ensure they contain sufficient language or otherwise require the execution of new noncompetes as part of the transaction.

For more information on this decision please see our client update. 

The Senate version of the law is called the Password Protection Act and provides additional protection to smart phones, private e-mail accounts and all information contained on an employee’s personal computer.

The introduction of similar legislation in states such as California, Illinois, Michigan, and Ohio, comes just months after Facebook Chief Privacy Officer Erin Egan warns users from sharing their passwords.  Even in those states without such legislation, employers should refrain from asking for social media passwords.

For the past seventeen years, courts in the Sixth Circuit required plaintiffs to prove that their disability was the “sole” reason for the adverse employment action taken against them.  However, that changed when the Court handed down their en banc decision in Lewis v. Humboldt Acquisition Corporation, Inc. [pdf].  Relying upon the text of the ADA, the Court in Lewis held that because the ADA prohibited discrimination “because of” disability, the ADA prohibited discrimination that was the “but-for” cause of the employer’s adverse employment decision.

In Lewis, the plaintiff had been employed by the defendant as a registered nurse at one of the company’s retirement homes.  The plaintiff was terminated in March, 2006.  The plaintiff claimed her termination was the result of a medical condition that made it difficult for her to walk and that occasionally required her to use a wheelchair.  The company, on the other hand, stated that the plaintiff was dismissed because of an outburst that occurred at work in which she allegedly yelled, used profanity, and criticized her supervisors. 

The plaintiff sued her former employer alleging discrimination under the ADA.  The case proceeded to a jury trial.  At the close of trial, much debate was had concerning the jury instructions and the appropriate causation standard that should be used.  The plaintiff asked the court to instruct the jury that “if the complained of discrimination was a motivating factor in the adverse employment decision,” the plaintiff should prevail.  The defendant countered, and argued the jury should be instructed that the plaintiff may only prevail if she proved “the fact that [the] plaintiff was a qualified individual with a disability was the sole reason for the defendant’s decision to terminate [the] plaintiff.”  In keeping with prior precedent in the Sixth Circuit, the district court adopted the defendant’s proposed instruction.  The jury returned verdict in favor of the defendant, and the plaintiff appealed.

Interestingly, neither the proposed causation standard advocated by the plaintiff nor the proposed causation standard advocated by the defendant was adopted by the Court.  The plaintiff argued the Court should adopt the “motivating factor” test.  This test is used in other circuits.  However, the Court pointed out that the text of the ADA does not contain the phrase “motivating factor.”  Instead, that phrase appears to be borrowed from the text of Title VII.  The Court dismissed the plaintiff’s argument by noting that it had no license to import a phrase contained in Title VII into the ADA.

Similarly, the defendant urged the Court to remain consistent with prior Sixth Circuit precedent and require that the plaintiff prove that her disability was the “sole” reason for the adverse action.  The Court pointed out that no other circuit has adopted the “sole” basis test, and that the text of the ADA does not contain the term “solely” as the Rehabilitation Act does.  As a result, the Court refused to read the term “solely,” which is found in the Rehabilitation Act into the text of the ADA.

Instead, the Court adopted a “but-for” test derived from the text of the ADA and the United States Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009).  The Court concluded that the ADA’s text prohibited discrimination “because of” a disability and that the “but-for” test adopted by the Supreme Court in Gross when confronted with the similar language contained in the Age Discrimination in Employment Act (ADEA) should apply to the ADA. 

This decision will have an impact upon ADA litigation in the Sixth Circuit.  First, this decision could make it easier for plaintiffs to proceed with ADA claims.  The “but-for” standard is not as stringent as the “sole reason” standard, and as a result more plaintiffs could potentially prove their claims.  Additionally, because of the new standard, some uncertainty around how the court will interpret that standard will be present.  It will likely be some time before uniform standards that are clearly understood by all parties are adopted. 

As an employer, this decision means that having documentation to support adverse employment actions involving individuals with disabilities will be more important than ever.  Taking time now to conduct some additional training regarding documentation requirements could save time and money in the future.    

Nonetheless, as previously reported here, recent decisions in the Courts of Appeals have increasingly recognized gender nonconformity in reference to transgender individuals as a form of sex discrimination protected by Title VII, but the courts have stopped short of allowing a claim of sex discrimination based solely on the fact that the individual is homosexual.  

On April 20, 2012, the EEOC also put in its two cents worth and made clear its position on transgender discrimination in a decision which held the following: “[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition.''  In doing so, the EEOC, like the federal appellate courts earlier mentioned, found transgender protection to be an extension of sex stereotyping and gender non-conformity, first recognized in Price Waterhouse v. Hopkins.  

In this claim, Mia Macy, a former soldier and police officer, alleged that she applied for and was offered a position with a government agency, pending a background check.  At the beginning of the employment process, which included an interview, Ms. Macy presented as a male.  However, later, during the background check, the agency discovered that Ms. Macy was transitioning from a man to a woman.  Upon this discovery, the employer informed Ms. Macy that the job was no longer available, but Ms. Macy later found that the agency had hired someone else.  Ms. Macy then filed a formal complaint with the EEOC in which she claimed that the agency denied her employment because of her status as a transgender individual.  In a unanimous ruling, the EEOC recognized Ms. Macy’s claim as valid under Title VII’s prohibition of discrimination based on sex, thus giving her the ability to file a civil action. 

This EEOC decision is a significant development for employers as the administrative agency has set forth its policy on the prohibition of transgender discrimination.  Employers are reminded to make employment decisions based upon performance or requirements of the position and not based upon individuals’ gender.

The EEOC decided to update its policy statements after twenty-plus years because the rise of technology has made criminal history information “much more accessible to employers," plus the Third Circuit Court of Appeals in its 2007 El v. Southeastern Pennsylvania Transp. Authority decision basically stated that the then-current EEOC guidance didn’t thoroughly analyze Title VII and should not be given great deference.  479 F.3d 232 (3^rd Cir. 2007).    

While the EEOC has not changed its fundamental positions on criminal record exclusions, the new Enforcement Guidance differs from its earlier policy statements in several ways, including a more in- depth discussion of disparate treatment analysis, examples, and an explanation of the legal origin of disparate impact analysis.  The Guidance also provides a much-needed explanation of the EEOC’s analysis of the “job related and consistent with business necessity” standard for criminal record exclusions and hypothetical examples interpreting the standard.

Of particular significance to employers:  the circumstances in which the EEOC says the “job related and consistent with business necessity” defense can be met.  The relevant circumstance to most employers requires the employer to develop a targeted screen that considers the familiar factors (nature of the crime, the time elapsed, and the nature of the job in question); and then provides an opportunity for an individualized assessment for those people identified in the screen to determine if the policy as applied is job related and consistent with business necessity. 

The final section of the new Guidance provides “Best Practices” for employers considering criminal record information during the hiring process.  According to the EEOC, employer best practices include:

• eliminating policies or practices that exclude people from employment based on any criminal record;
• developing a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct; and
• limiting questions about criminal records to those for which exclusion would be job-related for the position in question and  consistent with business necessity.

The EEOC’s latest Enforcement Guidance can be found here; and helpful Q&A regarding the new Guidance can be found here.

In proposing the new rule, Board Chairman Mark Gaston Pearce explained that the amendments were not likely to impact the majority of NLRB-supervised elections as: “about 90 percent [of NLRB-supervised elections] are held by agreement of the parties…[and t]he amendments…would not affect those agreed-to elections.”

Under the new rule, which seeks to reduce unnecessary litigation and enable expeditious resolution of questions concerning representation, the Board: 

• Focused pre-election hearings on only those issues relevant to determining if there is a question concerning representation;
• Provided hearing officers with the authority to limit the presentation of evidence;
• Provided hearing officers with discretion on whether to allow for post-hearing briefs after pre-election hearings;
• Eliminated pre-election appeals to the Board and consolidating appeals into a single, post-election review request;
• Made Board review of post-election regional determinations discretionary;
• Eliminated duplicative regulations;
• Eliminated the practice of not scheduling an election for approximately 25 days after a decision and direction.

Although the new rule does not specify how soon a pre-election hearing should be held, most Regions issue the Notice of Representation Hearing on the day the petition is filed and schedule the initial hearing for 7-10 days thereafter. Thus, employers are likely to only have a seven-day window under the new rule in which to prepare for a pre-election hearing once they have received notice. Opponents of the rule point to the increase in union control over the timing of election hearings and their ability to “ambush” the employer’s ability to educate their employees about the disadvantages of unionization.

With the new rule in effect, employers should take immediate steps to increase awareness of workplace grievances and employee unrest, both of which could result in a union organizing campaign, and to make sure that they are adequately training supervisors on how to lawfully respond once an organizing campaign has been initiated. In addition, employers are advised to take a second look at wage rates, benefits packages and employment policies to ensure that they are both fair and competitive. 

For more detailed information, the Acting General Counsel issued a guidance memorandum [pdf] on April 26, 2012 explaining how Regions should implement the new rule. Likewise, the General Counsel’s office has issued a set of Frequently Asked Questions, which provide a quick and easy explanation of the revised rule and the procedures for its implementation. 

What is this case about and what does it mean for employers doing business in Arizona and other states that have adopted similar legislation?

The case arose from the State of Arizona’s appeal of an injunction blocking four parts of the immigration law.  The four provisions are summarized as follows: 

• Requiring local law enforcement to verify the immigration status in any lawful stop, detention, or arrest any time in which they have “reasonable suspicion” that someone is unlawfully present.  This  has been labeled as the “show me your papers” provision;
• Authorizes warrantless arrests for individuals presumed (based on “reasonable suspicion” ) to have committed a deportable offense;
• Creates a state crime for failure to carry immigration status papers at all times (this provision mirrors a longstanding but seldom enforced federal law); and
• Creates a state criminal penalty for those found working while unlawfully present. 

While reading the oral argument tea leaves is never a foolproof way to predict the likely outcome of a case before the U.S. Supreme Court, the majority of commentators and court observers seem to conclude that the first two provisions have the strongest chance to survive constitutional scrutiny.  The impact of such a holding could be significant because states such as Alabama, Georgia, South Carolina and Utah have enacted similar provisions.  Moreover, a ruling in favor of Arizona is likely to lead to further proliferation of state immigration laws.

Should the Court uphold any of the four provisions, then individuals and employers alike will be put on notice that state immigration law is here to stay.  Such an interpretation would be an extension of last year’s Supreme Court decision in Chamber of Commerce v. Whiting which permitted state enactment of laws requiring employers to register with the federal government's web-based E-Verify program for I-9 employment authorization verification purposes.    As the well-publicized arrest of a legal foreign national auto executive in Alabama for failure to carry immigration papers demonstrated, those visiting and conducting business in multiple states will have yet another set of divergent laws to follow. 

The Supreme Court rejected the plaintiffs’ argument that a rest period needed to precede any mandatory meal break.  Instead, the Supreme Court held, “Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.”  Given that Brinker involved review of decisions regarding class certification, the court declined to speculate about what kind of considerations would be sufficient to justify departing from providing breaks during the middle of a work period.  The Supreme Court did not alter the unchallenged principle that rest breaks can be waived.

The Supreme Court addressed two critical issues with respect to unpaid, duty free, meal breaks.  First, the court held an employer complies with the applicable laws so long as it “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.”  Explicitly rejecting plaintiffs’ argument that employers were required to forcibly prevent employees from working during meal breaks, the Court went on to hold that employers are NOT obligated to police breaks to ensure work is not performed.  Should an employee voluntarily choose to work through their meal break and the employer “knew or reasonably should have known that the worker was working through the authorized meal period,” the employer would be required to pay the employee for the time worked, but they would not be liable for the statutory premium pay applicable when the employer fails to provide the break at all.

Second, with respect to timing, the Court rejected plaintiffs’ argument that employees are entitled to a second meal break five hours after their first meal break.  In Brinker, for example, the employees had a single meal period early in their shift followed by six to eight hours of work during which they did not have a meal break.  “Under the wage order, as under the statute, an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.” 

This decision brings clarity to an area of California law that has long been fodder for class actions and Private Attorney General Act claims.  The precision with which the Supreme Court addressed rest periods should encourage all employers to review applicable policies in their handbooks to make sure they comply with the newly articulated rest period rules.  The holdings regarding meal breaks should come as a relief to many employers because it relieves them of the cumbersome duty to police employee mealtime activities.  Also, employers in many fields, not least health care and hospitality where shifts often begin and end at unconventional times, should appreciate the greater flexibility to schedule meals.

To be sure, aspects of the Brinker decision will make class certification more difficult to achieve in the future.  However, Justice Werdegar, the author of the decision, took the unusual step of penning a separate concurrence to specifically counsel that Brinker was not intended to be a per se bar to class certification of cases based on denial of rest periods or meal breaks.  Employers will no doubt continue to face claims based on established practices discouraging employees from taking meal breaks or rest periods.  Likewise, employers should expect the courts to be facing cases requiring them to define the parameters of the good faith exceptions to scheduling rest periods at times other than the middle of work periods.

On Thursday, April 19, at 9:00 a.m. Pacific Time, Squire Sanders will be conducting a webinar to discuss Brinker in greater detail and answer questions.  To register, please click here. 

It is anticipated that the new guidance will significantly curtail the practice of checking a job candidate’s criminal or credit history, placing the burden on the employer to demonstrate a legitimate business need. This is supported by Lipnic’s expressed concern over the potential disparate impact that background checks may have on minority applicants. This concern is echoed in the EEOC’s 2010 informal letters pertaining to credit checks and criminal background checks, which recognize background screening may have the unanticipated effect of disproportionately excluding minority applicants from employment opportunities.

As we eagerly await the EEOC’s new guidance, employers should take this opportunity to ensure that their background check practices are compliant with the Fair Credit Reporting Act and with state-specific laws and restrictions. Employers should also be mindful that they are proactively informed of legal changes that will affect compliance with their background screening policies.

Most significantly, the legislation would alter the framework of federal age discrimination claims.  In Gross, based upon the language of the ADEA the Supreme Court held that a plaintiff alleging age discrimination is required to prove that age was the decisive factor that led to the challenged adverse employment action.  This “but for” standard of causation is more arduous than the standard used in claims pursued under Title VII of the Civil Rights Act of 1964, which protects employees from discrimination on the basis of characteristics such as race and sex.  In Title VII cases, courts have permitted plaintiffs to proceed under a “mixed motive” theory.  In “mixed motive” cases the plaintiff is allowed to proceed by merely demonstrating that an impermissible consideration, such as race or sex, was one of the motivating factors behind the employer’s action – not necessarily the sole reason.  If the plaintiff is able to meet this lower threshold, in order to avoid liability, the employer bears the burden of proving it acted based upon a legitimate, nondiscriminatory reason.   

If signed into law, the proposed legislation would allow a plaintiff claiming age discrimination to proceed under a “mixed motive” theory.  Thus, plaintiffs would no longer be required to prove that age discrimination was the sole reason behind the challenged employment action.  Moreover, employers would often be forced to shoulder the burden of proving its decisions were based upon legitimate, nondiscriminatory reasons as many plaintiffs are able to successfully raise an inference that age played some role in the employer’s decision.  Furthermore, the legislation would also clarify that other federal anti-discrimination statutes permit “mixed motive” claims. 

Believing that the Supreme Court’s decision in Gross significantly narrowed the protections afforded to older workers by the ADEA, the senators who introduced this bill are seeking to ensure that individuals subjected to discrimination are able to effectively enforce their rights.  However, in doing so, employers will necessarily be subjected to heightened scrutiny if an employee makes a claim of age discrimination. 

As a result, employers are advised to follow this bill as it proceeds through Congress and to be aware of its impact should the bill become law.  If enacted, this legislation could lead to an increased number of age discrimination claims, in addition to making those claims more difficult to defend.  Even though age is already a factor that employers should not consider when making employment decisions, this proposed legislation will increase the likelihood that employers could be found liable for age discrimination and the importance of making decisions without consideration of an individual’s age will become even more critical.       

Although federal law prohibits discriminating against individuals based on gender nonconformity, the federal anti-discrimination statute, Title VII, does not list sexual orientation as a protected class.  Thus, last year, the Sixth Circuit Court of Appeals upheld summary judgment for the employer finding that sexual orientation was not protected under Title VII in Gilbert v. County Music Assn., Inc. [pdf].  In that case, the plaintiff, a homosexual individual, worked as a theater professional organizing award shows.  After he complained that he was threatened by another employee and called a homosexual slur, he alleged that he stopped receiving work.  The court noted that although sex stereotyping is a recognized form of gender discrimination, there was “not a single allegation that anyone discriminated based on his appearance or mannerisms for his gender non-conformity.”  This case highlights that under current federal law, an individual cannot establish sex discrimination based solely on the fact that the individual is homosexual.  However, employers must consider state and local laws regarding such discrimination as an increasing number of them are passing laws and ordinances that protect homosexuals from workplace discrimination and harassment. 

So what should employers take away from these cases?  Employers are best advised to take action based on an employee’s work performance and select the most qualified individual.  Employers should review their policies and procedures including dress code policies to ensure that they are neutral.  Further, employers are encouraged to maintain an environment that supports a diverse culture.