By: Ogletree Deakins

The line of “Facebook firing” cases is growing longer every month. In October, the Seventh U.S. Circuit Court of Appeals upheld summary judgment in an unpublished opinion in which an individual claimed gender discrimination after he was fired from his job as a daycare center worker. According to the employer, the firing was based on a Facebook posting that included profanity and strong language, which certain individuals found to have been threatening. Smizer v. Community Mennonite Early Learning Center, 7th Cir., No. 10-C-304 (October 25, 2013). The unusual twist in this case is that the plaintiff was the son of the defendant daycare center’s Director, and the Facebook posting dealt with a family custody matter.

Lawrence Smizer was hired by Community Mennonite Early Learning Center (“the Center”) in 1993 as a teacher’s aide, and was fired from that position in 2010. According to its website, the Center is an accredited professional daycare center that has served the Chicago south suburbs since 1964, and cares for children from 6-weeks through kindergarten age. Smizer’s mother was and is the Director of the Center, and reports to the Center’s Board of Directors. Smizer’s 78 year-old grandmother also has worked as a volunteer at the Center.

Prior to 2010, a custody dispute involving Smizer’s sister had been brewing for several years. At the basis of that dispute were the efforts of Smizer’s sister to regain custody of her teenaged son, which efforts were supported by Smizer but were opposed by Smizer’s mother and grandmother, and by the teenager himself. On April 8, 2010, a court awarded custody of the boy to his mother (Smizer’s sister).

That evening, a former employee of the Center sent an E-mail to Smizer’s teenaged nephew, who was not happy to be returning to his mother’s custody. The E-mail included a Facebook page quote, purported to have come from Smizer, which contained profanity: “To all my family that fought my sister tooth and nail over some B***S*** (And you know who you are) F*** YOU B*TCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!!
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHHAHAHHAAH”

On the following day, the Center’s Director (Smizer’s mother) sent an E-mail to the chairman of the Center’s Board of Director’s informing him of the Facebook posting, and expressing concern that other employees may have seen the tirade. She also said that she and Smizer’s grandmother no longer felt safe in Smizer’s presence, and asked that Smizer be fired for “creating a hostile work environment” and for “pulling staff into this family drama.”

On April 15, 2010, the Board delivered a 2-line termination letter to Smizer, telling him that he was fired for “insubordination and unprofessional conduct.” Smizer was told specifically that his Facebook posting was the basis for his dismissal.

Smizer ultimately filed a federal court lawsuit, alleging that he was discriminated against on the basis of gender and that he had been defamed by the Center. He pointed to two instances that he believed constituted discrimination: (1) earlier in the year, he had been reprimanded for wearing open-toed shoes, but female employees had not been so reprimanded; and (2) when pornography had been found on a shared computer at the Center in 2009, Smizer’s mother accused him of downloading the files because “Women don’t like porn.” Smizer also claimed not to have written the Facebook posting at the center of his firing.

The7th Circuit upheld the lower court’s summary judgment in favor of the Center, in spite of the fact that neither side provided a screen shot of the Facebook posting or any formal Facebook record of its existence. Instead, the Center had offered affidavits from Smizer’s supervisor and others who claimed to have viewed Smizer’s Facebook page first-hand and had seen the alleged message that had been reproduced in the former employee’s E-mail. In spite of that fact, both the lower court and the 7th Circuit held that Smizer’s claims should be dismissed, as there was no evidence from which a jury could find that the Center’s stated reason for Smizer’s firing was a pretext for discrimination.

This decision is significant, because employers often hesitate to take action with respect to a Facebook posting, knowing that an employee simply can deny having written it. However, in this case, the Court found that the Center “honestly believed that the plaintiff wrote the post” and, therefore, that the Center provided a legitimate business reason for the firing – there was no additional requirement that the Center prove that the language had been posted by Smizer. While Smizer did not admit to writing the posting, he did not dispute the fact that his mother received language that she believed Smizer had authored; he did not dispute the fact that his mother then wrote to the Board chairman describing the language and asking that Smizer be fired for it. Because there was no effort on Smizer’s part to show that his mother or the Board chairman did not honestly believe that he wrote the disparaging post, Smizer was unable to carry his burden to show that the purported reason for his firing was a pretext for gender discrimination.

In addition, the 7th Circuit provided an interesting comment, of which employers should take note: while Smizer alleges in his appeal that his mother and the Board chairman had labeled him a liability because of comments from some parents who objected to having a male daycare worker tend to their 2-year old daughters, Smizer failed to raise that issue to the lower court. (Information that is not raised to a trial court cannot be raised for the first time on appeal.) Had he done so, he may have been able to argue that such comments – related to gender – were the “real” basis for his firing, allowing the court to deny summary judgment and send the case to a jury. Without that information, however, the lower court was able to find that the Center’s articulated belief that Smizer had posted a Facebook entry that created concern among the Center’s workforce and management was sufficient to support Smizer’s firing.

 

In addition to protecting qualified applicants and employees with disabilities from employment discrimination, one provision of the Americans with Disabilities Act (ADA) – the "association" provision – protects applicants and employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability.

A Western Pennsylvania jury recently awarded over $200,000 in damages under the ADA to a former employee who claimed that she was fired because she was caring for a teenaged son with cancer. Buffington v. PEC Management II LLP, W.D. Pa. No. 1:11-cv-229 (October 18, 2013). The damages consisted of $115,000 in front pay, $70,000 in compensatory damages, and over $48,000 in back pay. A petition for attorney fees will be submitted to the court for review and possible further award.

Theresa Buffington worked as a manager at a Burger King restaurant in Western Pennsylvania owned and operated by PEC Management Group, a company with 34 Burger King restaurants. In that position, Buffington was responsible for scheduling, overseeing employees, financial matters, and compliance with all Burger King Corporation and PEC Management standards, ordering and maintaining product and overall ensuring the smooth and profitable operation of the restaurant.

Buffington’s son passed away in 2011 at the age of 14, after suffering from cancer for 12 years. During the period of time within which Buffington worked for PEC, her son relapsed a number of times, making it necessary for Buffington to miss work to care for him. Despite time off to care for her son, Buffington was generally rated as an average or better performer, and received raises throughout her employment.

On November 7, 2010, Buffington asked another employee to run an errand, using the employee’s own car. While on the errand, the employee was involved in an accident. PEC fired Buffington, stating that Buffington violated a company policy against allowing non-managerial employees to run errands in personal vehicles. However, there was some evidence that the policy was not strictly enforced prior to Buffington’s firing. Buffington filed a lawsuit in October 2011, claiming that the actual basis of her employment termination was the fact that she had taken off work time to care for her disabled son.

In March 2013, a federal district judge in the Western District of Pennsylvania denied PEC’s motion for summary judgment, saying that a jury should determine whether Buffington was fired because of her association with a disabled person in violation of the ADA. See Bloomberg Law’s summary of the court’s decision here. The case went forward to a jury, which held in favor of Buffington on October 18, 2013.

The case is instructive on a number of issues. First, there were allegations that Buffington’s manager made statements to Buffington during the termination meeting that the company needed “someone whose head is there 100 percent” and that “now [Buffington] could spend all her time with her son.” Whether or not such comments were meant to be well-meaning, they create an inference that Buffington’s caretaking responsibilities played a role in the decision to terminate her employment. Termination meetings should be scripted, and comments should be limited to factual, objective information. In addition, by firing an individual who never had been disciplined previously and who had received numerous pay raises throughout her employment, the company may have created a perception that Buffington’s performance was not the actual basis of her firing. Terminations should be supported by documentation that clearly supports the factual basis for the decision, leaving no chance for speculation.
 

In an unpublished opinion issued on October 8, 2013, the 5th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer on a claim under the Americans with Disabilities Act (ADA). The interesting – and somewhat unexpected – basis of the decision was the fact that the plaintiff/employee’s termination was based upon her failure to return from a medical leave under the Family and Medical Leave Act (FMLA) in a timely manner. Owens v. Calhoun County School District, 5th Cir., No. 12-60897, October 8, 2013.

Most employers are hesitant to tackle the overlap between the ADA and the FMLA, based upon the differing legal standards between the two. To support a valid FMLA claim, a plaintiff typically must show a serious health condition; for an ADA claim, the standard is showing a disability that substantially limits a major life activity. The challenge for employers is the situation in which an individual is on FMLA leave with an impairment significant enough to constitute a disability for purposes of the ADA. In those cases, the employer must review and document carefully its reasons for any decision related to the employee’s return from leave, including termination of employment before any need for accommodation has been discussed.

Karen Darlene Mann Owens taught at Bruce Upper Elementary School, part of the Calhoun County, Mississippi School District (Calhoun County) for 17 years until her employment termination on February 9, 2010. For a number of years prior to her firing, Owens suffered from back and neck pain. On October 19, 2009, Owens underwent surgery on her neck and back, following which she took a leave of absence under the FMLA.

On January 20, 2010, the school principal (Monaghan) asked Owens when she would be returning to work, to which Owens replied that she had a doctor’s appointment on February 12, 2010, and would have more information at that time.

After that discussion, Calhoun County’s superintendent (Moore) sent a letter to Owens, warning her that her FMLA would soon expire and requesting that Owens provide a return to work date so that her employment status could be determined. Moore followed that letter with a phone call in which he asked Owens to provide a return to work date. Owens did not provide a date, but again stated that she had a doctor’s appointment on or about February 12.

On February 9, 2010, Moore sent a letter to Owens terminating her employment for failing to return to work before her FMLA leave expired on February 1, and for failing to provide any return to work date.

Owens unsuccessfully appealed that firing to the Calhoun County school board; she then filed a lawsuit alleging violation of the ADA, the Age Discrimination, and the FMLA, along with a state law breach of contract claim and claims under the First and Fourteenth Amendments of the U.S. Constitution (related to statements that she had made in an attempt to secure educational support for her son). After dismissal of all of her claims, and following a series of procedural issues, Owens appealed only the dismissal of her ADA claim and her First Amendment retaliation claim to the Fifth Circuit.

The Fifth Circuit upheld the dismissal of Owens’ First Amendment claim, based on the fact that such a claim requires speech related to a “matter of public concern,” and Owens alleged simply that she was terminated for attempting to seek educational support for her son, a private matter.

The Fifth Circuit also upheld the dismissal of Owens’ ADA claim on the basis that Owens failed to provide evidence that the school district’s reason for her termination (failure to provide a return to work date after her FMLA leave) was a pretext for disability discrimination. To the contrary, said the Court, the record was “replete with evidence that Owens was fired for reasons other than her disability,” including the fact that Owens admitted that she had failed to return to work at the expiration of her FMLA leave and, more importantly, failed to provide a date on which she would return to work or any documentation that she was cleared to return to work by her doctor at any point.

Ultimately, Owens was unable to present any evidence that the school district’s reason for her termination was a pretext for disability discrimination. The school district’s documentation of its communications to Owens informing her of the expiration of her FMLA leave and attempting to obtain from Owens a return to work date led to its success in this matter. The importance of clear, contemporaneous, and objective documentation cannot be overstated, and formed the basis of the Fifth Circuit’s decision in this case.
 

Well, at least Mount Rushmore is open again, along with the Statue of Liberty and the Grand Canyon.  But for most of the Administrative Agencies related to labor and employment, things haven’t gotten much better since last week, and the deadlock in D.C. continues.  Here’s the latest information available:

Department of Labor (DOL)

• Only 2,954 out of 16,304 DOL employees are being retained during the shutdown.

• Of the 2,954 employees, the majority of those are from the Office of Workers Compensation Programs (1,328 out of 1,606 employees); the Mine Safety and Health Administration (966 out of 2,355 employees); and the Occupational Safety and Health Administration (230 of 2,235 employees).

• OSHA will maintain operations involving enforcement of “imminent danger situations” and responses to workplace fatalities and catastrophes.

• MSHA will “perform targeted inspections based on mine’s history of the hazards” and continue “investigation of accidents and miners’ safety complaints and select sample analysis.”

• The Wage and Hour Division will suspend operations. Only 6 of 1,829 are expected to be retained in Wage and Hour, mainly to deal with child labor issues.

• Unemployment insurance benefits will not be affected by the shutdown – at least in the short term. However, because the UI program has both state and federal components, a lengthier shutdown could result in the disruption of benefits and/or the processing of new claims. Any eventual impact will likely differ by state, as each state workforce agency will have to determine how it will deal with an extended absence of federal funding and/or a lack of federal employees to administer particular components of the program. 

(In addition, the following DOL agencies will have no active functions during the funding lapse: the Assistant Secretary for Policy, Office of Federal Contract Compliance Programs, Office of Public Engagement, and the Veterans Employment and Training Administration.)

• Less than 5 percent (46 out of 986 employees) are anticipated to be retained in the Employee Benefits and Security Administration to “pursue criminal cases involving ERISA plans, pursue civil proceedings and remedies necessary to prevent an imminent threat to property, particularly including plan assets, and address situations posing an imminent threat to human life due to the denial of health or disability benefits by an ERISA-covered plan.”

• The Office of Foreign Labor Certification (FLC) in the Employment and Training Administration (ETA) has ceased processing all applications. There is therefore no abioity to file a PERM or LCA application in iCert.  Find a notice on the agency’s website summarizing the effects of closure.

 

 • 107 of the agency’s 2,164 staff and contract personnel would remain on the job. This includes Presidential appointees, such as the five EEOC commissioners and the EEOC general counsel.

• Agency staff will not be able to answer questions or correspondence from the public; mediations and all outreach and education events will be canceled; and no Freedom of Information Act will be processed.

• EEOC will still be able to perform essential functions such as receiving discrimination charges (though investigations have been suspended during the shutdown) and litigating pending lawsuits in which courts have not granted the EEOC’s requests for extensions of time.

 

National Labor Relations Board (NLRB)

• 11 of 1,611 employees are expected to remain on job (e.g., 5 board members, GC, senior staff).

• NLRB will be able to handle “emergency situations” but it will not docket representation petitions or ULP charges; also, ALJ’s will not issue decisions.

• All elections, including pre-election and postelection proceedings, have been postponed indefinitely if they were scheduled to occur any day from October 1 to October 11. For every election or representation case hearing scheduled to take place on or after October 14, the proceedings will be postponed indefinitely unless an appropriations bill or other legislation has been enacted by the close of business on Tuesday of the week prior to the week in which the event was scheduled. Unless an election is postponed by the board under the procedures it announced, the employer involved in the proceeding will continue to have an obligation to post NLRB’s Notice of Election forms for three full working days before the election; failure to do so will be grounds for setting aside the election.

• The Board and Acting General Counsel are responsible for carrying out the emergency functions of the agency.  A summary of current activities and closures are set forth on the NLRB’s website.

 

USCIS (US Citizenship and Immigration Services)

• USCIS is primarily funded by user fees and will, therefore, be operating, except for E-Verify, which is shut down.

 

DOS (Department of State – Consular Affairs, Passport Agency)

• The State Department expects to continue issuing visas to foreign nationals seeking to travel to the US and US citizens requesting passports. Many of the DOS appropriations accounts are multi-year, fee-based, or available until expended. For these reasons, DOS has made clear it will be able to continue both consular affairs and passport agency activities, at least for the short term.

 

CBP (Customs and Border Protection)

• Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

 

EOIR (Executive Office for Immigration Review)

• As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket will be considered an essential function and would therefore be able to continue in operation regarding hearings for those in detention, with most other hearings being delayed.

 

Department of Health and Human Services

• In total, 52 percent (40,512 employees) of HHS employees are expected to be furloughed, though some agencies and offices would be hit harder than others. 

• The department has said that "grant-making and employee-intensive agencies" such as the Administration for Children and Families and the Substance Abuse and Mental Health Services Administration will have to furlough "the vast majority of their staff.”

• In other HHS agencies and offices, programs that do not rely on annual appropriations or that involve the safety of human life or the protection of property will continue to operate. However, a number of services will be halted. For example, agencies will not be able to conduct oversight or fraud and abuse prevention efforts; the Centers for Disease Control and Prevention (CDC) will halt its annual seasonal influenza program and outbreak detection; the Agency for Health Care Research and Quality will be unable to fund new grants and contracts related to health services research initiatives; and of particular concern, the Food and Drug Administration (FDA) will be unable to support the majority of its food safety, inspection, import monitoring, and notification programs.

(NOTE: Implementation of the Patient Protection and Affordable Care Act has remained uninterrupted with the opening of the exchanges taking place even with technical “glitches.” In addition, in their contingency plans, HHS states that “CMS will conduct insurance rate reviews and assess health insurance premiums, and states will receive funding for Medicaid and the Children’s Health Insurance Program (CHIP).”)

 

Pension Benefit Guaranty Corporation (PBGC)

• As PBGC does not rely on annual appropriations for its funding, it is open for business.

 

Internal Revenue Service (IRS)

• Less than 10% (8,824 out of 94,516) of the agency’s are expected to be retained, with the majority of those employed in the agency’s Criminal Investigations Unit and the Information Technology Services.

• The agency will halt audit activity.

• 4 employees are anticipated to be retained in the Affordable Care Act office (a Director, 1 in the Project Management Office and 2 in the Filing and Premium Tax Credit Strategy). 77 employees are expected to be retained in the Affordable Care Act Program Office, Information Technology Services.
 

 

 

 

 

 

Equal Employment Opportunity Commission (EEOC)

At this time, courts and agencies have issued the following notices regarding the government shutdown and its impact on access and deadlines. 

Federal Courts – most (but not all) are open for business for te time being
Based upon information from the Administrative Office of the United States Courts, "[i]n the event of a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts."

EEOC – shutdown plan has been published

Activites that will not occur during a shutdown:

• Staff will not be available to answer questions from the public, or to respond to correspondence from the public.
• While we will accept charges that must be filed in order to preserve the rights of a claimant during a shutdown, these charges will not be investigated.
• Insofar as the courts grant EEOC’s requests for extensions of time, EEOC will not litigate in the federal courts.
• Mediations will be cancelled.
• Federal sector hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided.
• Outreach and education events will be cancelled.
• No FOIA requests will be processed

Activities that will occur during the shutdown:

• Intake of charges of discrimination, hearing requests and OFO appeals.
• Evaluation and handling, if necessary, of any charge that might require EEOC to seek a temporary restraining order or other preliminary relief under Section 706(f)(2) of Title VII, 42 U.S.C. § 2000e-5(f)(2).
• Work on ongoing litigation for which an extension has not been granted. Where an extension has not been granted, the attorney would be excepted from the furlough only for that matter.
• Maintenance of the security, integrity, and viability of EEOC information systems.
• Maintenance of the security of EEOC’s offices and property.
• Administrative support for the excepted "emergency" functions. For example, depending on the timing of a shutdown, staff may be retained for the purpose of submitting time cards through the Quicktime electronic time card system. Support staff, including paralegals, could be retained to assist in unextended litigation.

NLRB currently is closed and has posted its contingency plan

The NLRB notes the following impact on the tolling of time:
• Tolling of time for filing documents, including briefs and appeals;
• Postponement of unfair labor practice hearings before Administrative Law Judges;
• Postponement of representation elections and hearings; and
• Timeliness of charges and petitions. Please note that the six-month statute of limitations remains in effect for the filing of unfair labor practice charges. Please consult the Federal Register Notice for specific instructions.

US Department of Labor – The US Department of Labor website notes that the Department of Labor is closed due to the suspension of Federal government services.

Please check the following links for the following agencies regarding government shutdown:
Federal Communications Commission (FCC)
Federal Energy Regulatory Commission (FERC)  
Federal Trade Commission (FTC), USDA, and Department of Justice currently are off-line until the end of the shutdown

On August 29, 2013, the Commonwealth Court of Pennsylvania – an intermediate appellate court – affirmed an Unemployment Compensation Board of Review (UCBR) decision that because an employee who was earning $9.00 an hour was unable to afford to pay for care repair or to buy another vehicle, the employee showed “good cause” for violating the employer’s rule that an employee must have reliable transportation, and therefore was entitled to unemployment compensation (UC) benefits. Bell Socialization Services v. UCBR, Pa. Commw. Ct., No. 414 C.D. 2013 (August 29, 2013).

In that case, Shamela D. Hightower worked in a full-time residential service provider for Bell Socialization Services, Inc. (Bell) from June 2011 until her termination on July 16, 2012, earning an hourly wage of $9.00. As a residential service provider, Hightower was required by Bell to have “reliable transportation” in order to transport clients to doctor appointments and other events. Hightower had a vehicle at the time she was hired by Bell, but that car failed mechanically at some point after she began her job there. She then drove her mother’s car until that vehicle was rendered inoperable in an accident in January 2012. On May 15, 2012, Bell directed Hightower to obtain reliable transportation by July 15, 2012. Hightower was unable to fix her car or finance another by that deadline, and her employment was terminated on July 16.

Hightower’s application for UC benefits was granted by the local service center, and Bell appealed. A hearing was held in November 2012, after which the referee affirmed the service center’s decision. Bell then appealed to the Pennsylvania UCBR. The UCBR affirmed the referee’s decision, and Bell petitioned the Pennsylvania Commonwealth Court for review. That Court affirmed the UCBR’s decision.

In Pennsylvania, as in many states, an individual is not entitled to unemployment compensation benefits if an employer can show that the claimant’s job loss was based upon “willful misconduct.” When an employer bases its claim of willful misconduct on the violation of a work rule, the employer must show that a “reasonable” rule existed of which the claimant was aware, and that the claimant violated that rule. Once the employer has done so, the burden shifts to the employee to prove good cause for her actions. In order to establish “good cause,” an employee must show that her actions are justified or reasonable under the circumstances.

Hightower understood Bell’s work rule requiring her to have a reliable vehicle; she in fact complied with that rule, replacing her own non-functioning vehicle by borrowing one from her mother. However, once her mother’s car was rendered inoperable, Hightower was unable to afford to fix either car or buy another vehicle on her $9.00/hour wage, and could not borrow money from her family to do so. Pennsylvania courts have determined that the inability or incapacity to meet an employer’s standards is not willful misconduct. Based upon that fact, the Commonwealth Court agreed with the UCBR’s decision that Hightower’s failure to procure a vehicle was justifiable, and was good cause for her actions.

While this decision was made by a Pennsylvania court, and is based on Pennsylvania law, the decision is one of which employers should take note. Of particular interest is footnote #3, in which the Court states that it is “guided by the remedial, humanitarian objectives” of the UC law. Before determining to litigate a UC case to a state’s appellate courts, employers may want to consider whether an alternative solution exists. In this case, the employer actually argued that Hightower “should have attempted to transfer to another job with [Bell] that did not require a vehicle.” If transferring to another position was a valid option, it may have benefitted the employer to have raised that issue at an earlier stage of the appellate process, which would have avoided this adverse outcome for the company.
 

On Tuesday, September 17, 2013, the U.S. Department of Labor (DOL) issued a final rule extending the Fair Labor Standard Act’s (FLSA) minimum wage and overtime protections to an estimated two million home health care workers. Scheduled to take effect on January 1, 2015, this amendment narrows the FLSA’s “companionship” exemption.

In 1974, Congress extended the FLSA’s wage protection provisions to virtually all domestic service workers; however, it provided a limited exception for workers who provided for the care, fellowship, and protection of persons who, because of advanced age or physical or mental infirmity, could not care for themselves. These “companionship” services, which are widely and popularly used for the in-home care of loved ones, most often include assistance with household work such as meal preparation, bed making, clothes washing and other similar personal services.

U.S. Secretary of Labor Thomas E. Perez recently summarized these types of services, stating, “Many American families rely on the vital services provided by direct care workers. Because of their hard work, countless Americans are able to live independently, go to work and participate more fully in their communities.”

The DOL points out that the home health care industry has grown significantly over the last 35 years and that the in-home care services provided to individuals today are markedly different from when the companionship services regulations were first promulgated. As a result, and in an effort to extend the FLSA’s protection to this ever-growing in-home workforce, the final rule removes the ability of third-party employers to avail themselves of the companionship exemption.

However, it does permit the individual, family or household employer directly employing the worker to continue to take advantage of the exemption—so long as the employee still primarily provides the fellowship and protection contemplated by the exemption.

Further, and among other amendments, the final rule explains that direct care workers who perform medically-related services for which training typically is a prerequisite, are not companionship workers and therefore are entitled to the minimum wage and overtime pay.

As a result of the final rule, many third-party employers—specifically home health care agencies—should be on the lookout for potential FLSA liability stemming from improper exemption classification and compensation issues. Why the delayed start date? The DOL indicates that the January 1, 2015 start date is intended to give employers “time to adjust” and as such, employers should begin conducting internal FLSA audits to ensure their continued legal compliance when the transition takes effect. A hwlpful "Q&A" page can be found on the DOL’s website.
 

The National Labor Relations Board (NLRB) is taking advantage of 21st Century technology to reinforce its message to employers and employees by adding a mobile app to its toolkit of resources that already includes a Twitter account and a Facebook page. On August 30, 2013, NLRB announced the launch of its new mobile app, available free of charge for iPhone and Android users. According to the NLRB’s press release, “the app provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.”

The National Labor Relations Act (NLRA) guarantees the right of workers to join together – with or without a union – to improve the terms and conditions of the workplace. The goal of the NLRB’s app is to help employees and employers understand their respective rights and obligations under that law, using up-to-date technology. The app provides contact information for NLRB regional offices across the country, and details the process used in elections to determine whether employees wish to be collectively represented.

This app follows the Department of Labor’s 2011 “timesheet app” that allows workers to track independently the hours they work to determine whether overtime wages are owed. On-line and mobile device apps have expanded the availability of information to which individuals have access, and have increased the types and volume of documentation relevant to and discoverable in employment-related lawsuits.

According to NLRB Chairman Mark Gaston Pearce, the NLRB received more than 82,000 public inquiries last year regarding workplace issues: “It is clear that the American people have questions about the law. . . [and] [t]his app can help provide the answers.” It is unclear as to whether the app was formulated to address specific questions, or simply to provide another avenue for individuals to access information currently available on the NLRB’s other electronic sites.

There has been some speculation that the app is being offered as a response to the Board’s difficulties in gaining support for its“notice posting rule” that was invalidated by the 4th U.S. Circuit Court of Appeals in June of this year. That rule would have required employers to post notices that provided information to union and non-union employees regarding their rights in the workplace under the NLRA. Now, there’s an app for that . . . .
 

According to its own website, the primary responsibility of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), is to: “enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government.”  In furtherance of that goal, the OFCCP published, on August 27, 2013, the final rules that govern affirmative action regulations for individuals with disabilities and for protected veteran. See, Final Rule to Improve Job Opportunities for Protected Veterans and the Final Rule to Improve Job Opportunities for Individuals with Disabilities

The new rules require each federal contractor – and subcontractor – to set a nationwide “aspirational” 7 percent “utilization goal” for individuals with disabilities in each job group currently included in the company’s existing affirmative action plan.

In addition, under the new rules, federal contractors must establish annual hiring benchmarks for protected veterans. The benchmarks can be based upon the national percentage of veterans in the civilian labor force or alternatively, can be based on five specific factors outlined in the rules. Those five factors include state-based data that will be published by the OFCCP, as well as other factors that reflect the specific contractor’s “unique hiring circumstances.”

Both final rules also:
• impose new quantitative data collection responsibilities regarding total job openings, applicants, and hires and three-year record-keeping requirements;
• provide for new pre-offer applicant self-identification of disability and protected veteran status in addition to existing post-offer self-identification;
• require an annual assessment of outreach and recruitment efforts and documentation of criteria used to evaluate each of those efforts, as well as the contractors’ conclusion as to whether each effort was successful;
• require that contractors include certain specific language in subcontracts and purchase orders; and
• indicate that contractors must allow access to the OFCCP to review documents either on-site or off-site (at the OFCCP’s option), and must provide existing records to the OFCCP in the format requested by OFCCP.

These criteria create a significant revision of the affirmative action regulations implementing Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Readjustment Assistance Act, which set the previous parameters for disability and veteran issues. Both rules also include sample language for the invitation – required by Section 503 –by which contractors must invite current employees to self-identify as an individual with a disability every five years.

In addition, similar to Section 503, the new rule regarding disabled employees/applicants incorporates the expanded definition of “disability” under the final regulations to the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 and suggests “best practices” for reasonable accommodation. The final rule regarding veterans includes clarification of contractors’ job-listing requirements with the appropriate state or local job services.

These new regulations apply to federal contractors and subcontractors, including construction contractors. (However, the regulations do not apply to federally-assisted construction contractors.) According to Dara DeHaven, in Ogletree’s Atlanta office, both the final rule that governs affirmative action regulations for individuals with disabilities, as well as the rule that governs protected veteran are available on the OFCCP website and will be published in the Federal Register in the upcoming weeks.
 

The 11th U.S. Circuit Court of Appeals has determined that a casino which had instituted two layoffs that ultimately culminated in the closure of its facility violated the federalWorker Adjustment and Retraining Notification (“WARN”) Act by failing to provide notice to its former employees in a timely and appropriate manner. This liability was established in spite of the fact that the casino owner offered an “unforeseeability” defense – arguing that unforeseen business circumstances had precluded the company from providing the required notice – allowed under the WARN Act. Weekes-Walker v. Macon Cnty. Greyhound Park, Inc., 11th Cir., No. 12-14673, 8/5/13

In December 2008, Macon County Greyhound Park, Inc. (“MCGP”), a former greyhound track-turned-casino, became one target of a Task Force on Illegal Gambling created by Alabama’s Governor. During the ensuing litigation between gaming establishments and the Task Force, MCGP engaged in various layoffs of its employees, all undertaken without notice to those individuals.

First, on January 5, 2010, MCGP laid off 68 employees due to “scheduled renovation.” One month later, after the Task Force arrived to seize MCGP’s electronic gaming machines, MCGP laid off its remaining employees, again without formal notice. However, subsequent to the February 4 layoff, MCGP held a meeting with its employees to discuss unemployment issues. It also posted on its website and on interstate billboards that it had closed as a result of the Task Force. Neither the meetings, nor the postings/billboards referred to the WARN Act, nor did either list any reason for not complying with the 60-day notice provision required by that Act.

After a March 5, 2010 state court restraining order against the Task Force’s actions, MCGP reopened for business. However, on July 30, 2010, the Supreme Court of Alabama reversed the lower court and abrogated the injunction against the Task Force, in response to which MCGP “permanently closed its doors on electronic gaming.” As with the other layoffs, no formal notice was provided to employees prior to the closure.

In October 2010, a group of former employees filed a complaint in federal court, alleging that MCGP violated the WARN Act when it failed to provide notice prior to the layoffs/closure. The district court granted summary judgment in favor of the employees, and MCGP appealed.

While the Eleventh Circuit remanded the issue of the January layoff back to the district court for further review (because the event did not fit neatly into the WARN Act definition of “plant closing” or “mass layoff”), it found that MCGP did, in fact, violate the notice provision of the WARN Act. It did so in spite of MCGP’s assertion of the “unforeseeability” defense allowed under the Act.

The WARN Act is intended to enable employees to “adjust to the prospective loss of employment” by seeking and obtaining alternative jobs, or by entering skill training/retraining to allow them to compete successfully in the job market. In order to allow that to happen, the Act requires an employer to provide 60 days of notice prior to layoffs or plant closures of certain magnitudes, as described in the Act. However, under certain unforeseen business circumstances, an employer may order a plant closing or mass layoff before the conclusion of the 60-day period. Under the Act, an employer asserting this defense must “give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period.” This notice should be specific and must include a statement regarding the nature of the layoff, the expected date of the action, information on any “bumping” rights, and contact information of a company official who can provide further information.

In this case, the Eleventh Circuit found that MCGP could not support the “unforeseeability” defense, because the company failed to provide any of the required notice information to employees prior to its actions. While MCGP claimed that the employees received notice through the company’s postings on its website and on billboards blaming the Task Force for its closure, the Court held that such information was insufficient because it did not reference the WARN Act or provide any of the other required detailed information. Further, in order to be in full compliance with the WARN Act, the delivery method chosen by the company must “ensure receipt,” which website and billboard information did not.

The Eleventh Circuit’s opinion instructs employers that under the WARN Act, a business must provide notice to affected employees of mass layoffs or plant shutdowns before the employer can exercise the “unforeseeability” defense. Under that defense, an employer can obtain a reduction of the notification period because of unforeseen business circumstances, but cannot ignore or eliminate the requirement without risk of liability.