By: Ogletree Deakins

In an issue of first impression for the court, the 6th U.S. Circuit Court of Appeals has upheld the dismissal of an individual’s claim under the “associational discrimination” provision of the Americans with Disabilities Act. Stansberry v. Air Wisconsin Airlines Corp., 6th Cir., No. 09-2499, July 6, 2011. In that case, an employee claimed that he was fired from his position shortly after his wife’s medical condition – of which the company had been aware for years – worsened, leading him to believe that her condition was the basis of his termination.

Eugene Stansberry managed operations for Air Wisconsin at the Kalamazoo Airport from 1999 until his discharge in 2007. While Stansberry was not a disabled individual, his wife was diagnosed with a rare and disabling auto-immune disorder in the mid-1990s. This medical condition caused severe complications, including a stroke, tumors, lesions, and vision problems. The company was aware of that medical condition, and continually provided medical benefits under the company’s group health care plan.

In 2007, Air Wisconsin dramatically increased the number of employees at the Kalamazoo facility from eleven employees to twenty-five. As the highest ranking manager at the location, Stansberry was responsible for assuring that employees properly carried out their job responsibilities. During the first four months of 2007, six of the location’s employees received a total of nine security violation letters from the airport’s director. However, Stansberry failed to notify Air Wisconsin’s corporate headquarters about the security violations, as required by company policy. Stansberry’s supervisor (Mulder) was particularly troubled that Stansberry had failed to inform him of the violation letters, or the underlying employee problems. Mulder and the company’s vice president of customer relations subsequently informed the Transportation Security Administration that they would take “severe disciplinary action” against Stansberry for that failure. On July 26, Mulder had a meeting with Stansberry during which Stansberry was fired.

In August, Stansberry filed a charge of discrimination and eventually was issued a right to sue. In his lawsuit, Stansberry alleged an “associational disability” claim, stating that the company violated the ADA’s 2006 provision that forbids discrimination against "a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4). Stansberry argued that the company fired him because of his wife’s deteriorating condition. The district court granted summary judgment in favor of the company, finding that Stansberry did not set forth a prima facie case of associational discrimination, and that Stansberry’s poor performance was a legitimate reason for his termination.

In order to support an associational discrimination claim, an employee must first set forth a prima facie case, which includes a showing that (1) he was qualified for the position; (2) he was subject to an adverse employment action; (3) he was known to have a relative with a disability; and (4) the adverse action occurred under circumstances that raise an inference that the disability of the relative was a determining factor in the decision.

Associational discrimination claims, which are relatively infrequently litigated, fall generally into three categories: "expense," "disability by association," and "distraction" cases. The “expense” cases typically involve a situation in which an employee suffers some adverse personnel action because his spouse (or other associated family member) has a disability that is costly to the employer because of health plan coverage; "disability by association" claims typically involve a close personal relationship (for instance when the employee’s homosexual companion is infected with HIV and the employer fears that the employee may also have become infected; or an employer is concerned about the risk that an employee will develop a hereditary ailment currently suffered by an employee’s blood relative; "distraction" claims are based upon an employer’s concern that an employee is inattentive at work because his ailing family member has a disability that requires his attention.

Stansberry’s case falls most logically into the “distraction” category, and his argument seems to be that the company should have accommodated his lack of attention to his job, rather than fire him for it. However, under the federal regulations related to the ADA, the right to an accommodation is limited to disabled employees only, and does not extend to a nondisabled associate of a disabled person. Therefore, while Stansberry’s poor performance may have been caused by his concern for his wife’s illness, that fact (as sad as it may be) is non-compensable under the ADA. Further, according to the Sixth Circuit, Stansberry could not support a prima facie case of associational discrimination – which would have required him to show that he was qualified for his position – because he could not dispute the fact that he had failed to report the violation letters as required by company policy.

The critical issue for employers in this case is while that employee performance issues should be clearly, objectively, and fully documented in all cases, it is especially important in situations like this one, where the employee may have the ability to bring an associational disability claim under the ADA. Such documentation may be the key to show that performance issues, and not a relative’s disability, formed the basis of an adverse employment action.
 

In an unpublished opinion, the 5th U.S. Circuit Court of Appeals has held that an individual who requests FMLA leave to care for a seriously ill family member must have some role in providing the “care” required by the relative’s illness. According to the Fifth Circuit, a father who left his seriously injured daughter in the care of his wife while he readied the family’s home for their return was unable to support a claim for FMLA retaliation after he was fired from his job at the conclusion of his FMLA leave. Baham v. McLane Foodservice Inc., 5th Cir., No. 10-10944, unpub’d, 7/1/11.
Girard Baham was hired by McLane Foodservices, a Texas company, in 2006. During a family vacation in Honduras during March 2008, Baham’s daughter fell and suffered serious head trauma. She was airlifted to Miami, where she underwent emergency surgery. At that point, Baham called his supervisor and asked for FMLA leave related to his daughter’s injury. In response, the supervisor told Baham to “take all of the time he needed,” and forwarded FMLA leave forms to him for completion.

Baham completed and returned the forms, asking for leave from March 20 through May 5, 2008. He subsequently was notified that his paperwork was incomplete, because it did not include information indicating the expected duration of his daughter’s treatment. However, at no point during his leave did Baham provide the requested information.

On April 12, 2008, Baham returned to the family’s home in Texas, leaving his wife and daughter in Miami. Baham testified in his deposition that he returned to Texas to clean up the house and prepare for his daughter’s return by padding sharp edges to protect her from further injury, but stated that he was in constant telephone contact with his wife and daughter at that time. Baham’s wife and daughter returned to Texas on April 29, and Baham returned to work on May 5. Upon his return, Baham was informed that his FMLA paperwork still was incomplete, and again was asked to provide the required information. Later that day, Baham left the work premises, leaving his keys and ID with a security guard. The company interpreted his abrupt departure as a resignation, and sent a letter two days later, terminating Baham’s employment.

Baham then filed a lawsuit, claiming that he was fired in retaliation for requesting/taking FMLA leave. The lower court granted summary judgment to the employer, holding that Baham failed to establish that he was entitled to FMLA leave for the period in which he was in Texas and his injured daughter was in Florida. Because Baham could not prove that he was entitled to leave under the FMLA, he could not support a retaliation claim under that statute.

The Fifth Circuit upheld the lower court’s decision, stating that because Baham was not “taking care” of his daughter after he returned to Texas (those are the Fifth Circuit’s quotation marks), Baham was not entitled to FMLA leave and therefore could not set forth a cognizable claim of retaliation. The Court specifically held that in order to be entitled to FMLA leave, an employee must show that he is needed “to care for” a family member with a serious health condition, and cited the fact that various courts have affirmed the use of FMLA leave only where the employee is in physical proximity for the cared-for person. Here, it is undisputed that Baham was not with his daughter during the two weeks that he was in Texas, but was simply in regular telephone contact with her. The activities in which he was engaged – although undeniably preparation for his daughter’s return – were not “care” in the sense required by the FMLA, which involves some level of participation in the ongoing treatment of the family member’s medical condition.

Employers should not interpret this case to mean that the employee/caregiver must be the sole provider of care, or that the care must be medical in nature. One federal court specifically held that an employee who cared for his three healthy children while his spouse cared for a sick child supported his FMLA claim; another determined that an individual’s need for a nap did not disqualify her from FMLA leave from her evening job when she had spent the entire day caring for a seriously ill child. It is clear that FMLA cases are administratively complex and often factually dissimilar, and cannot be decided in general or blanket terms. The facts of the particular situation must be reviewed carefully before a decision is made that would adversely affect the employment of the person requesting or participating in FMLA leave.
 

The 8th U.S. Circuit Court of Appeals has upheld an employee’s termination for job abandonment, in spite of the fact that the employee argued that he was on FMLA leave at the time of his termination. The court based that holding on the fact that the employee was unable to return to work at the conclusion of his medical leave, and that he therefore was unable to show that his termination prejudiced his rights under the FMLA. Hearst v Progressive Foam Technologies, Inc., 8th Cir., No. 10-1253, June 8, 2011.

The Family and Medical Leave Act (FMLA) provides 12 workweeks of leave during a 12-month period to eligible employees under specific circumstances. One of the criteria of eligibility is that the employee shall have worked for the employer for at least twelve months prior to the requested leave.

Jason Hearst became employed with Progressive Foam Technologies (PFT) on March 15, 2006. In December 2006, Hearst was involved in a non-work-related motor vehicle accident, and suffered injuries for which he sought treatment. He requested a leave of absence from PFT for the period from January 3 through February 5, 2007. In spite of the fact that Hearst had worked for the company for less than the requisite 12 months, PFT informed Hearst that he “was eligible for leave under the FMLA” and that his four-week absence from work would be “counted against [his] annual FMLA leave entitlement policy.”

Hearst’s recovery required a longer absence than anticipated, and included two surgeries. On February 6, Hearst’s doctor informed PFT that Hearst would not be able to return to work until April 10, 2007. On March 16, 2007, PFT informed Hearst, by letter, that his 12-week FMLA leave would end on March 28, but that the company would allow him to take an additional 30 days, presumably until April 27. That letter included this sentence: “If we do not hear from you regarding a specific return to work date, we are assuming that you will not be returning to work in the foreseeable future.”

On March 29, Hearst’s doctor advised PFT that Hearst had undergone an additional surgery and ultimately determined that Hearst would be unable to return to work until May 1, 2007. When Hearst failed to return to work on that date and did not provide any additional information about that failure, PFT fired him for “job abandonment.” In spite of that firing, on May 15, 2007, Hearst’s doctor advised PFT that Hearst would not be able to return to work for another two months, but subsequently extended that anticipated return date to September 2007.

Hearst sued PFT, alleging that the company interfered with his FMLA rights when it fired him on May 1, 2007. He argued that his FMLA leave, which could not have started until his one-year anniversary with the company, formally began on March 15, 2007, and that his firing occurred only seven weeks after that date, thereby interrupting his leave entitlement. He further argued that PFT retaliated against him for taking FMLA leave. However, the lower court concluded that Hearst had exhausted his FMLA leave on March 28, 2007, twelve weeks after he began his leave in January. That court counted all of Hearst’s leave as FMLA-related, including all absences prior to his anniversary date. It also concluded that Hearst’s failure to notify the company that he couldn’t return to work on May 1 violated the company’s leave of absence policy, and provided a legitimate business reason for firing Hearst. The district court further concluded that even if Hearst had been entitled to FMLA until mid-June (as Hearst argued), the May 1 firing did not create the prejudice necessary to support an FMLA claim, because Hearst failed to show that he would have been able to return to work within the allowable time frame during or after his leave.

The Eighth Circuit skirted the “unique question” of whether the pre-March 2007 leave should have counted toward Hearst’s 12-week FMLA entitlement, and focused solely on the question of whether Hearst had demonstrated the requisite prejudice necessary to establish a claim under the FMLA. The Court found that he did not. Hearst had a medical condition that created an inability for him to return to work for a period substantially longer than the 12-week FMLA leave period, and that fact was fatal to his claim. Even if the Court had determined – as Hearst argued – that his protected FMLA leave extended until mid-June 2007, he would have had to be able to show that he could have returned before or at the expiration of that leave. Because he was unable to do so, he could not demonstrate any prejudice as a result of his firing, and summary judgment in PFT’s favor was appropriate.

While this holding is clearly advantageous for employers, it must be pointed out that Hearst did not bring a claim under the ADA or the ADAAA. Had he done so, the Court may have had to do a further analysis of whether PFT’s actions were sufficient to constitute the necessary search for reasonable accommodation under those statutes, and whether additional leave may have been such an accommodation.
 

The Worker Adjustment and Retraining Notification (WARN) Act requires a 60-day notice to employees before a “mass layoff” can take place. A mass layoff is a reduction in force which is not the result of a plant closure, but which results in an employment loss of at least 50 full-time employees at a single site. While the WARN Act does not specifically define “workforce reduction,” federal courts have determined that an employee is part of such reduction when that employee is not replaced after layoff or discharge. The 8th U.S. Circuit Court of Appeals relied on that interpretation of the term “workforce reduction” when it determined that 111 replacement workers – who ultimately were fired to allow a company’s original employees to return from strike – were not entitled to a 60-day mass layoff notice prior to their firings. Sanders v. Kohler Co., 8th Cir., No. 10-1848, June 8, 2011.

In 2006, Kohler Company shut down its Searcy, Arkansas plant after collective bargaining negotiations with the United Auto Workers Local 1000 broke down and the plant’s 247 union workers went on strike. Three months later, the company hired 123 replacement workers to help restart the plant. In March 2007, Kohler informed the replacement workers that if the strike was determined to be an unfair labor practices strike (as the union claimed), Kohler would release these replacement workers to the extent that any strikers would want to return to their old jobs. In November 2007, Kohler revised that message, and emailed its supervisors that strike settlement would not affect the fact that the replacement workers were considered to be Kohler employees.
In March 2008, Kohler and the Union settled their dispute, and Kohler agreed to reinstate certain strikers. In order to do that, Kohler then fired 123 of the replacement workers, and returned 103 of the original strikers to their former positions. Within weeks, 111 of the fired replacement workers filed a complaint, alleging that Kohler had failed to provide the required 60-day notice under the WARN Act. The complaint included a number of state law claims, including breach of contract, promissory estoppel, and unjust enrichment. The district court grated summary judgment to Kohler on the WARN Act claim, and dismissed the state law claims without prejudice (meaning that the plaintiff’s could pursue those claims in state court, should they choose to do so).

On appeal, the Eighth Circuit upheld the lower court’s decision, based largely upon the interpretation of the term “reduction in force,” which is undefined in the WARN Act. The Court pointed out that the statute defines mass layoff as a reduction in force “which results in” the requisite number of employment positions lost. Here, Kohler fired 123 people, but replaced 103 of those, with a net loss of 10 positions. Based on that fact, the Court held that employees who are fired but replaced are not part of a reduction in force and do not count toward the 50-employee threshold to trigger the required 60-day notice under the WARN Act, because their loss does not “result in” a net loss of employment positions.

While this issue is somewhat esoteric, and applies only within a limited fact scenario, it is important to understand that courts are willing to put parameters around the WARN Act’s requirements, based upon a reasonable reading of that statute. Companies who may face a scenario which includes the hiring and firing of replacement workers during a strike should keep this case in mind when making decisions related to the layoff of strike replacement workers. Similarly, groups who supply or assist such replacement workers should assure that those workers understand that they may not be entitled to a particular amount of notice prior to layoff or termination.
 

In one of the most dramatic and convoluted scenarios ever seen in a whistle-blower case, a doctor has been disciplined by a medical board; a hospital administrator has been jailed; two nurses have been fired, criminally charged, acquitted, and then awarded $750,000; and a local sheriff has been removed from office and sentenced to jail, with a subsequent lengthy felony-probation. Employers who do not believe that recent legislative changes related to whistle-blower claims (Dodd-Frank Act, Sarbanes-Oxley, and state-based whistle-blower statutes) have begun to change the landscape of employment-related cases should take the time to read this story.

In April of 2009, two nurses in a county-owned hospital in Kermit, Texas filed an anonymous complaint with the Texas Medical Board, expressing concerns related to patient care being provided by Dr. Rolando Arafiles, Jr. Based on the information in the complaint, the Board issued formal charges against Arafiles.

After receiving notice of that complaint, Arafiles approached his friend, Winkler County Sheriff Robert L. Roberts, Jr., asking for his help to determine who had made the report. Roberts then used the power of his office to launch an investigation, and ultimately determined the identity of the two nurses. Soon after that, the county hospital administrator fired both women, each of whom had been employed at the hospital for over 20 years. In addition, in June 2009, the two women were indicted by the County Attorney on charges of “misusing official information,” a criminal felony carrying a penalty of up to 10 years in prison and up to $10,000 in fines.

In August 2009, the two women filed a civil action in federal court against Dr. Arafiles, Sheriff Roberts, the hospital administrator, the hospital itself, the County Attorney, and Winkler County, claiming constitutional violations, malicious prosecution, and violations of laws related to whistle blowers.  In February 2010, while that civil case was pending, a trial was held on the criminal charges against the nurses. One of the women was dropped from the prosecution, and the other was found not guilty.  Although the jury was out for an hour before rendering the not-guilty verdict, the foreman has said that the actual decision took less than 5 minutes – but that since the lawyers had worked “so hard” during the trial, the jurors felt that it would be more courteous to wait for a little while before going back with the verdict. Hear a more detailed explanation of this incident and of other aspects of the situation in an archived installment of the “This American Life” radio program.  

In January 2010, a grand jury returned indictments against Dr. Arafiles, Sheriff Roberts, the county attorney, and the hospital administrator, charging that each of them misused his power to retaliate against the nurses. In February, the county settled the civil case brought by the nurses, agreeing to pay them $750,000.  In March, the hospital administrator acknowledged that he improperly terminated the nurses’ employment, and pled guilty to charges against him. He was sentenced to 30 days in the county jail.

The trial against Sheriff Roberts, which was moved to a location outside of Dallas rather than proceeding locally, went forward this month on two sets of charges (one set for each nurse). Each set of charges was made up of two felony charge – retaliation and misuse of official information – and a misdemeanor charge.  That trial ended this week with a conviction against Roberts on all counts. In an agreement reached at the close of the trial’s penalty phase, Roberts was sentenced to 100 days in prison on the felony counts, with a four year felony probation to follow that. He also will pay fines of $6,000. Charges against Dr. Arafiles and the County Attorney still are pending.

While this case presents an extreme version of the consequences of an employer’s reaction to whistle-blower activity, it certainly provides a template of how not to react to these situations. Most employers are taking the time to get up to speed on the new developments in federal laws related to such circumstances, and all employers should be aware of the applicable laws within the states in which they do business, in order to avoid unanticipated consequences.
 

The National Labor Relations Board (NLRB) has issued another complaint (and accompanying press release) alleging unlawful termination of an employee for posting photos and comments on Facebook.  The complaint, which is similar to other complaints filed by the NLRB in the past months, alleges that a Chicago area BMW dealership illegally fired an employee after that individual posted information critical of the dealership. In case you’ve missed the ever-escalating activity on this issue, here’s a summary:

• Earlier this year, in a highly publicized matter, the National Labor Relations Board (NLRB) pursued an employer in Connecticut after that company fired an individual for posting a negative comment about her supervisor on her own Facebook page, using her home computer to do so. That case ultimately was settled, and no administrative or judicial determination was made on the issue. However, the employer has since revised its policy to be less restrictive.

• In April of this year, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB that would have included an accusation that the company inappropriately reprimanded a reporter for a message posted on Twitter. As part of the settlement of that matter, the company agreed to negotiate a new social media policy that would more effectively protect employees’ rights to communicate regarding work conditions.

• On May 9, 2011, the NLRB issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the NLRA when it fired five employees after they used Facebook to criticize working conditions. A hearing on the matter is scheduled in Buffalo, NY, for June 22, 2011.

In this most recent case, a car dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model.  A Huffington Post reporter summarizes the issue this way: “[The salesman] and a few co-workers apparently felt that Sam’s Club hot dogs and bottled water were no way to hype a luxury car — and they thought their sales might suffer because of it.  The salesman’s critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.”  Other employees had access to that Facebook page. When the dealership’s management asked the salesman to remove the posts, he immediately complied. Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated.

According to the NLRB, the employee’s Facebook posting was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), because it related to a discussion among employees about the terms and conditions of their employment. Under the NLRA, employees’ communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity.

The dealership, through its attorney, has stated that the salesman was fired for reasons other than the protected communication.  Unless this matter is settled, the case will be heard by an administrative law judge on July 21, 2011, in the Chicago Regional office of the NLRB.

Clearly, the NLRB has increased its focus on social media communications, and is taking the position that employer policies cannot impose limitations on electronic communications to the extent that those postings include discussion regarding the terms and conditions of employment. Based upon that increased focus, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.
 

The federal regulations that support the Family and Medical Leave Act require that an employee submit to his or her employer certain medical facts within the knowledge of the employee’s health care provider, including information related to the incapacitation, examination, or treatment that may be required by a health care provider. The 9th U.S. Circuit Court of Appeals has held that a federal employer had the discretion to convert an employee’s conditionally granted FMLA leave to an “absent without leave (“AWOL”) status after the employee refused to provide more than minimal information about the reasons for her requested leave. Lewis v. U.S.A. and Michael B. Donley, Sect. of the Air Force, 9th Cir., N0. 10-35624, May 26, 2011.

Janet Lewis was employed by the U.S. Air Force (“USAF”) as the director of a child development center at Elmendorf Air Force Base. In 2006, Lewis applied for FMLA leave. In response to the USAF’s request for medical certification to support that request, Lewis provided only basic information that she had been diagnosed with Post Traumatic Stress Disorder, and that she needed best rest, therapy, prescription medications, and 120 days off work. When Lewis’ supervisor informed her that the information was insufficient to allow the USAF to understand why Lewis was unable to perform her duties and whether additional treatment would be necessary for her condition, Lewis refused to submit further documentation. Based upon that refusal, the USAF converted Lewis to an AWOL status, and terminated her employment. Lewis ultimately brought an action in federal court which included an “unlawful removal” claim on which summary judgment was granted by the district court and in favor of the USAF. Lewis appealed that dismissal to the Ninth Circuit, which upheld the decision.

Under the FMLA, an eligible employee is entitled to up to 12 weeks of unpaid leave within a 12-month period for specific situations, including a “serious health condition that makes the employee unable to perform the functions of the employee’s position.” An employer has the right to request medical certification that provides sufficient information to allow that employer to understand the incapacitation of the individual seeking leave, as well as what treatment may be required for the impairment. In this case, Lewis’ medical certification was viewed as insufficient by the USAF, which argued that the documents “fail[ed] to support the conclusion that that [Lewis] is suffering from a serious health condition,” and that they contained no explanation as to why Lewis was unable to perform her work duties.

In response, Lewis argued that disputes related to the adequacy of an individual’s medical certification should be resolved by the employer’s request for a second or even third medical opinion – a right to which an employer is entitled under the FMLA. However, the Ninth Circuit pointed out that the need for such follow-up opinions is triggered only when an employer “has reason to doubt the validity” of the certification, and does not apply when the issue is the “sufficiency” of the proffered certification. Because Lewis failed to submit the minimal mandated medical certification, she cannot prove that the USAF violated her rights when it requested additional information, or when it classified her status as AWOL.

It should be noted that while Lewis was a federal employee, the situation that forms the basis of this case and the Ninth Circuit’s opinion is an issue dealt with by both federal and non-governmental employers alike. While much attention and many court opinions have been focused on employees’ rights under the FMLA, it is important to understand the rights established by that Act that inure to the benefit of employers, as well. This decision underscores the fact that courts realize that employers are entitled to information sufficient to fully understand the reasons for an individual’s leave, and the parameters of the treatment necessary to allow that employee to return to work

On May 9, 2011, the National Labor Relations Board (NLRB) issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the National Labor Relations Act (NLRA) when it fired five employees after they used Facebook to criticize working conditions. This complaint comes on the heels of two other highly publicized situations in which the NLRB asserted that companies violated employees’ rights by limiting the information that could be posted on social media sites.

Earlier this year, employers watched with interest as the NLRB pursued an employer in Connecticut after that company fired an individual for posting a negative comment about her supervisor on her own Facebook page, using her home computer to do so. The NLRB argued that the employer maintained and enforced overly restrictive policies regarding blogging and Internet postings outside of work, and that such enforcement by the company could be viewed as a violation of the National Labor Relations Act, which precludes restriction of employees’ “concerted activity.” That case ultimately was settled, and no administrative or judicial determination was made on the issue. However, the employer has since revised its policy to be less restrictive.

In April of this year, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB that would have included an accusation that the company inappropriately reprimanded a reporter for a message posted on Twitter. After posting a message that said “One way to make this the best place to work is to deal honestly with Guild members,” the reporter was contacted by phone by her manager and was told that her post was a violation of the company’s social media policy. The NLRB said that it would file a complaint against the company, because the call to the reporter could “chill” her ability to discuss working conditions; it also claimed that the company’s social media policy was overly restrictive. As part of the settlement of that matter, the company agreed to negotiate a new social media policy, one that would include language that would protect employees’ rights to engage in concerted activity about working conditions, as provided under federal law.

The NLRB’s complaint against Hispanics United, filed May 9, 2011, stems from a situation in which an employee posted – to her own Facebook page – information in support of a co-worker who had claimed that the organization did not do enough to help its clients. That post generated responses and additional comments from other employees who criticized their working conditions and defended their own performances. After hearing about the postings, Hispanics United fired five individuals who participated in the online discussion. The basis of the firings was that the online comments constituted “harassment” of the employee mentioned in the originally posting. However, the NLRB is asserting that the Facebook postings involved discussion among employees about their own working conditions, and therefore was protected activity. A hearing on the matter is scheduled in Buffalo, NY, for June 22, 2011.

The interesting difference between the earlier situations and this most recent complaint is the fact that Hispanics United is a non-union company. Employers must recognize that the National Labor Relations Act, which prohibits the restriction of “concerted activity” among employees, protects both union and non-union workers. Further, the NLRB has made it clear that it can file a complaint based upon a company’s written internet policy even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even a single employee who is discussing the personal character of a particular supervisor.

This case is another instance that reminds employers to take care to draft employment policies – not only social media policies – that do not impinge upon employees’ rights to act in concert and do not keep employees from acting to work toward positive changes in the terms and conditions of the workplace.
 

The Department of Labor has entered the digital age with a splash, and has announced the launch of its first application for smartphones. That app is a timesheet to help employees independently track regular work hours, break time and any overtime hours for one or more employers. Individuals also can access a glossary, contact information and materials about wage laws through links to the Web pages of the DOL’s Wage and Hour Division. According to the DOL’s news release, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

The app is free and currently is compatible with the iPhone and iPod Touch. The DOL has said that it will explore updates that could enable similar versions for other smartphone platforms (Android and BlackBerry), and other pay features currently not provided for, such as tips, commissions, and bonuses.

It remains to be seen how this information could be used during a Wage and Hour Division investigation when an employee claims that his or her employer has failed to maintain accurate employment records, although the DOL has said that the app information could be “invaluable” in such situations, which indicates that the app may be used as a tool in the government’s arsenal during such investigations. Secretary of Labor, Hilda Solis, states that she is “pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled. . . . .This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay." Both the app and a calendar can be downloaded from the Wage and Hour Division’s site at http://www.dol.gov/whd.

According to Jay Glunt, a shareholder in Ogletree’s Pittsburgh office, “the DOL app raises two litigation issues: first, it becomes a potential source of discoverable ESI maintained by plaintiffs and, therefore, defense counsel should be asking plaintiffs about it; second, it would seem fair to expect employees making use of the DOL app to be equally diligent about utilizing their employer’s time keeping protocols.” Glunt says that many wage/hour cases revolve around employees who unreasonably failed to make use of the employer’s protocols. If an employee is using the DOL app to record hours because they think they are inaccurately classified as exempt from overtime pay, they should be reporting their belief to their manager; and if they are classified as nonexempt, they should be making full use of the employer’s timekeeping protocols, rather than ignoring the employer’s process and relying instead on the DOL app.

The broad availability of this tool makes it critical that employers remain aware of the parameters of the FLSA, and assure that recordkeeping mechanisms are in place, says Al Robinson, former acting Administrator of the Wage and Hour Division of the DOL. In a typical wage and hour case, the number of hours worked by an employee is the primary issue. When an employee has been misclassified as exempt, employers who have not tracked the employees’ time effectively cannot refute the claim made by that employee regarding how many hours actually have been worked. In addition, Robinson points out that the new app may have an adverse effect on the “de minimus standard,” which allows employers to exclude, from total hours worked, small increments of time that typically can’t be effectively tracked or recorded by the company’s time keeping methods. Employees now most certainly will be keeping track of those periods.
 

The 3d U.S. Circuit Court of Appeals has held that 15 minutes was a sufficient amount of time for the plaintiff, a public school teacher, to review a separation agreement and release negotiated in connection with her resignation. Gregory v. Derry Twp. Sch. Dist., 2011 WL 944424 (3d Cir., March 21, 2011)

Rhauni Gregory, a public school teacher, sued her former employer and a number of individuals for race discrimination under 42 U.S.C. §1981. Although prior to her resignation from employment, Gregory signed a separation agreement that included a release, she subsequently claimed that the agreement was invalid and that it did not preclude her from suing the School District. Her argument was based largely on the fact that when she was asked to sign the agreement, Gregory was provided only about 15 minutes to deliberate whether to sign. However, the agreement had been reviewed and negotiated by a representative of the teachers’ union of which Gregory was a member, who assured that the agreement included continued health benefits and a positive letter of recommendation, both of which Gregory had indicated were critical to her. In addition, Gregory claimed that she signed the agreement under duress, because the school principal sat next to her as she reviewed the document. However, she was unable to point to any actual restriction on her ability to think or consider in that circumstance, or to show any specific instance of “duress.” The lower court granted the school District’s motion for summary judgment, finding that Gregory had waived her right to sue when she signed the release agreement.

The Third Circuit affirmed on appeal. Examining the facts under the applicable “totality of the circumstances” test, the Court rejected Gregory’s attempt to avoid the agreement, finding that she had sufficient time to review the agreement, and that she did not sign under coercion or duress. The Court reviewed the seven factors to be considered: 1) the clarity and specificity of the release language; 2) the plaintiff’s education and business experience; 3) the amount of time the plaintiff had to deliberate about the release before signing it; 4) whether the plaintiff knew or should have known her rights upon execution of the release; 5) whether the plaintiff was encouraged to seek, or in fact received benefit of counsel; 6) whether there was an opportunity for negotiation of the terms of the agreement; and 7) whether the consideration given in exchange for the waiver and accepted by the plaintiff exceeded the benefits to which she was already entitled by contract or law.

It is important to this decision that Gregory’s representative already had approved the agreement before Gregory reviewed it, and that Gregory had negotiated certain specific benefits in exchange for resigning.  Based on those background facts, employers cannot interpret this case as providing permission to rush an employee into signing a release, and in most cases still should provide sufficient time for the employee to review an agreement and confer with an attorney or other representative.  In addition, it is important to note that releases of claims under the federal Age Discrimination in Employment Act (ADEA) must comply with the minimum review period and other specific requirements of the Older Workers Benefit Protection Act.