Employment Law Update

Michael Patrick O’Brien
August 11, 2010 | COMMENTS

Recent news stories involving the discharge of a U.S. Department of Agriculture (USDA) employee are a powerful and timely reminder of mistakes that employers commonly make in employment terminations. In this situation, a blogger published a video that seemed to suggest that the USDA employee, a female African American, was making job decisions in a racially-biased manner. The USDA fired her, apparently without really investigating the matter and without making much apparent effort to verify the accuracy of the video. It turns out that the video was out of context and had been edited to make the employee sound racist. In fact, the video was only a smaller part of a speech the employee had given explaining how she had overcome her own possible racial biases.  Once the truth was made public, the USDA had to backtrack, apologize for its actions and offer to reinstate the employee. Although it may have avoided legal liability, the experience has been a public relations disaster for the USDA. So what's the lesson here?  I regularly remind clients who are considering discharging or disciplining an employee to fully investigate the matter and also get the involved employee's side of the story. After doing so, many employers go forward with discipline and discharge. However, sometimes an employer will learn about facts or issues that make it change course. An employer who makes a real effort to get the full story likely will make a better decision, achieve a better result and show itself as a fair employer. All three of these things will help you minimize your employment law liability risks.

New Fact Sheet on Nursing Mothers' Break

 The United States Department of Labor (DOL) has issued a new fact sheet explaining the new requirement, under the Fair Labor Standards Act (FLSA), that nonexempt female employees be provided unpaid break time in order to nurse children. The new fact sheet verifies that the FLSA requirement only applies to non exempt employees, that employers with fewer than 50 employees are exempt if the new provision would impose an undue hardship, and that a bathroom is not a suitable place to accommodate the breaks. The fact sheet also confirms that employers must also comply with any state laws that impose additional requirements. You can read the new fact sheet on the DOL website.

 DOL Says FMLA Applies to Nontraditional Families

DOL also recently issued an administrative interpretation explaining that the Family and Medical Leave Act (FMLA) applies to nontraditional, as traditional family structures.  The DOL press release regarding the interpretation, found online here, explains that the FMLA's definition of son, daughter and parent can “extend to the various parenting relationships that exist in today's world.” FMLA regulations state that a parent includes someone acting as a legal guardian or foster parent of a child or otherwise acting in loco parentis to the child. Thus, under the new DOL interpretation, “an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.” When presented with possible FMLA requests in nontraditional contexts, make sure that your FMLA administrators consider this expansive reach of the law and consider the FMLA request within the context of the specific facts involved.

 Federal Financial Reform Law Has Whistleblower Protection

The new financial reform law passed by Congress in July of 2010 also includes employment law provisions that protect whistleblowers. The new reform package prohibits retaliation against employees who raise issues under both the new law and the Foreign Corrupt Practices Act of 1977 (FCPA). Successful whistleblowers also will be eligible to recover between 10% and 30% of any monetary sanctions in excess of $1,000,000 recovered by the government because of the whistleblower's reports.  The financial reform bill is the most significant overhaul of the financial sector since the Great Depression. FCPA prohibits payments to foreign government officials to assist in obtaining or retaining business.

Litigation and Settlement Briefing

There has been some interesting recent news about employment law litigation and settlements. First, a national package delivery company recently agreed to pay over $3 million to the State of Massachusetts to settle claims that its drivers were misclassified as independent contractors. The state had claimed that the misclassification deprived it of significant contributions regarding unemployment insurance and worker's compensation.  Many other states, as well as the Internal Revenue Service (IRS) are closely examining such classifications to make sure they are proper. Second, the Equal Employment Opportunity Commission has been celebrating the 20 th anniversary of the Americans with Disabilities Act (ADA). Finally, a national discount store has been sued by one of its managers in Michigan claiming he has the right to smoke marijuana, when not on the job, for health reasons. The manager, who was fired after testing positive for marijuana use, has asserted he only used the drug during non-working hours in order to treat the pain of a brain tumor and cancer. Courts in other states, including California, Oregon, Washington and Montana, have sided with employers in similar lawsuits.

The Employment Law Update is a legal and legislative update service sent out to various members of the Utah League of Credit Unions HR Council. Michael Patrick O'Brien is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management).Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com.