FMLA Expansion Comes to Fruition

As I predicted yesterday, President Obama signed into law the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).  The new law includes an expansion of the recently-enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act of 1993 (FMLA).

 

 

More FMLA Amendments Imminent!

The Supporting Military Families Act of 2009 (SMFA), a part of the National Defense Authorization Act for Fiscal Year 2010 (HR 2647), will amend the Family and Medical Leave Act (FMLA) and mandate  exigency leave to all covered active duty members and expand the military caregiver provision to family members of certain former service members.

Rep. Lynn Woolsey (D-Ca.) and Sen. Chris Dodd (D-Cn) co-sponsored and introduced the SMFA on July 30, 2009. The bill then was tacked onto the U.S. Department of Defense authorization.  On October 22, 2009, the Senate agreed to a conference report on the National Defense Authorization Act for Fiscal Year 2010 that included the amendments to the FMLA.  President Obama is reportedly expected to sign the legislation into law.

Covered Active Duty

Under the new law, covered active duty under the FMLA would mean:

• In the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
• In the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in Section 101(a)(13)B) of Title 10, United States Code.

References throughout the law to “active duty” would be changed to “covered active duty.” The bill would extend eligibility to those deployed to a foreign country, rather than limiting the availability of exigency leave to those deployed in support of a contingency operation.

One purpose of the SMFA is to correct DOL regulations concerning the FMLA which limited access to exigency leave to Reserve and National Guard members only.  The issue arose based upon the DOL interpretation of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), which amended the FMLA on Jan. 28, 2008, to create an entitlement for up to 12 weeks of leave for the spouse, son, daughter or parent of a person on or about to be on active military duty for any “qualifying exigency.”

In the preface to the DOL regulations, it stated: “Had Congress intended qualifying exigency leave to extend to family members of those in the Regular Armed Forces, it would have provided a different statutory definition that referenced alternative provisions of Title 10 to define ‘active duty.’ . . . In comparison, the provisions of the NDAA allowing an eligible employee to take leave to care for a ‘covered service member’ (also referred to as ‘military caregiver leave’) do provide a broader definition of the military service covered by that entitlement.”

Military Caregiver Leave

As the DOL’s FMLA regulations noted, the NDAA also amended the FMLA to provide caregiver leave for wounded service members for an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered service member in order to provide up to 26 workweeks of unpaid leave during one 12-month period to care for a wounded service member.

The new FMLA amendments extend the 26 weeks of leave to family members of veterans for up to five (5) years after a veteran leaves service if he or she develops a service-related injury or illness that was incurred or aggravated while on active duty.  In the press release about the Supporting Military Families Act, it was noted that “a number of service-related illnesses and injuries may not manifest themselves until after a service member has left the military.” These illnesses might, for example, include traumatic brain injury and post-traumatic stress disorder.

EEOC’s New Posting Requirment for ADA and GINA

The EEOC has issued a new poster, dated November 2009.  This new version reflects current federal employment discrimination law, including the Americans with Disabilities Act Amendments Act of 2008. The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009.  The revised poster also includes updates from the Department of Labor.  Here’s the poster and here’s the poster request form.

USSC to Determine if Ledbetter Applies Beyond Pay Discrimination

On September 30, 2009, the U.S. Supreme Court decided to hear Lewis v. City of Chicago (7th Cir. 2008), a case that possesses shades of both the recent Ledbetter v. Goodyear Tire & Rubber case and the Ricci v. DeStefano cases.  It is similar to Ledbetter primarily because the primary issue deals with the applicability of the statute of limitations in cases of discrimination.  The similarity with Ricci is more contextual in that the case involves firefighters seeking positions and unhappy with the selection process.

In Lewis, the Seventh Circuit held that a group of African American firefighter applicants could not proceed with their discrimination claims against the City of Chicago because the discrimination charge they filed with the Equal Employment Opportunity Commission (EEOC) within 300 days and was therefore untimely.

The Lewis case gives the Supreme Court an opportunity to answer two important questions about the Ledbetter Fair Pay Act of 2009 (“the Act”). First, whether the courts will extend coverage beyond cases of pay discrimination. And second, whether the Act applies to disparate impact cases (that is, cases involving claims that an employment practice or policy that appears neutral on its face actually affects a protected group more harshly than an unprotected group).

In Lewis, about 26,000 entry-level firefighters took a written aptitude test to determine their eligibility for employment with the City of Chicago Fire Department. The plaintiffs’ test scores placed them in the “qualified” category. However, only applicants whose test scores placed them in the “well qualified” category were given the jobs. The City began hiring applicants from the “well qualified” group several months after the test scores were disclosed to the applicants. The plaintiffs sued the City, claiming the aptitude test had an adverse impact on African American applicants. The plaintiffs claimed their charge was timely because it was filed within 300 days of the date the City hired the first applicant in the “well qualified” group.

Advancing a position similar to that of the plaintiff in Ledbetter, the plaintiffs in Lewis argued that the charge filing period began to run not when the test results were communicated but when the city began using the test results to hire applicants. The Seventh Circuit rejected this argument, holding that the discrimination was complete when the tests were scored and the discrimination was discovered when the applicants learned the test results. Instead, the Seventh Circuit held that the plaintiffs’ lawsuit was untimely because they filed their EEOC charge more than 300 days after they learned of their test results.

The Seventh Circuit’s opinion follows very closely the Ledbetter analysis, which was subsequently reversed through the passage of the Act. Now that the Act has overruled Ledbetter, it is not clear how the Supreme Court will evaluate the Seventh Circuit’s decision in Lewis. Under the Act, at least for purposes of discrimination in compensation based on a theory of disparate treatment (that is, intentional discrimination), discrimination occurs (1) when the discriminatory practice is adopted, (2) when an employee becomes subject to the discriminatory practice, or (3) when the discriminatory practice affects the employee. Given the expansive language and intent of the Act, the Court may find that it applies to the plaintiffs’ claims in Lewis.

Undoubtedly, the impending Lewis decision will have a significant effect on employers and be another major decision looming on the horizon.  The Seventh Circuit is not the first to address whether the Act expands beyond the scope of pay discrimination. I’ll keep you updated!

Briscoe v. New Haven: Providing For The Return of Ricci

Discrimination seems intuitively  simple, yet it is truly complicated.  One reason for discrimination’s complexity is that the law has developed in such a way that acknowledges certain theories of discrimination — and sometimes these theories conflict.  Earlier this year, the U.S. Supreme Court decided Ricci v. DeStefano, a case that addressed the standard under to which to analyze the conflict between disparate treatment and disparate impact.  The case is facinating not only in its holding, but in the analysis contained within the concurring and dissenting opinions.

In April, June and July, I wrote several posts about the Ricci case.  To summarize, the white firefighters of New Haven, Connecticut filed a Title VII disparate treatment claim when the fire department refused to certify the results of a promotion test.  The City’s basis for disrecarding the promotion test was its fear of a disparate impact claim because the results were statistically skewed against the black firefighters that took the test.

 The Supreme Court found that skewed statistics were no reason to ignore the results of the announced process for promotion.  Instead, in order to disregard the promotion test, the City had to possess a “strong basis in evidence to believe it will be subject to disparate-impact liability.”  The “strong basis in evidence” test is different than the test used by many Federal Circuit Courts. 

In Ricci, the Supreme Court found that the City could not demonstrate that a “strong basis in evidence existed” and granted summary judgment for the white firefighters.  Not only is the Ricci case interesting from an analytical perspective, it certainly garnered a substantial amount of press due to the political climate at the time.  When Ricci was decided, Justice Sotomayor (who was part of the Second Circuit panel that held in favor of the City) was undergoing Congressional scrutiny as a candidate for the Supreme Court.

Now, the City’s fear of a disparate impact claim by a black firefighter has come to pass.  Michael Briscoe, a black, ten-year veteran of the fire department, filed a complaint in the U.S. District Court alleging that the test ”was unfair because it undervalued the oral portion of the test, on which he did better.”  The promotion test was 60% written and 40% oral. There is little doubt the Briscoe case will garner substantial attention given the attention given the Ricci case.  I’ll keep you posted on further developments.

 

FTC Somewhat Backs Off Enforcement of Bloggers’ Endorsements

On October 6th, I posted a note about new guidelines from the FTC that are directed toward regulating the disclosure of gifts or money paid to someone for an endorsement.  The guidelines have provisions directly related toward bloggers’ endorsements.  On October 14th, Mary Engle, Director of the Federal Trade Commission’s Division of Advertising Practices, held a telephone conference with consumers and the media to answer questions about the new guidelines.  Ms. Engle sought to reassure bloggers that the FTC is not seeking to single them out for enforcement purposes. The occasional freebie will not trigger a duty to disclose, but a steady stream of gifts might still require a blogger to make a disclosure when writing about a company or product. She went on to say that the FTC is looking at black and white cases, and “We’re not interested in playing gotcha in the gray areas.”

Legislation Seeks to Overturn Supreme Court Decision on Burden-shifting in ADEA Disparate Treatment Claims

On October 6, Senator Tom Harkin (D-Iowa), Senator Patrick Leahy (D-Vt) and Representative George Miller (D-Cal), introduced the Protecting Older Workers Against Discrimination Act (“POWADA”)(S. 1756/H.R. 3721).  POWADA purports to restore civil rights protections for older workers in the face of the US Supreme Court’s holding in Gross v FBL Fin Servs, Inc. 

In Gross, the Court held that plaintiffs bringing ADEA disparate treatment claims must establish by preponderance of evidence that age was the “but for” cause of the adverse employment action; age cannot simply be a “motivating factor” in the adverse action. As a result, allegations of age bias face a higher burden of proof than those alleging race, sex, national origin or religious bias since they must prove that age is, in fact, the reason for the adverse decision.  The Congressional response to the decision mirrors Title VII’s mixed-motives burden-shifting rubric.  POWADA states that a plaintiff can establish an adverse action by demonstrating by a preponderance of the evidence that age was a “motivating factor” for the action, even if other factors also contributed to the decision. Alternatively, the plaintiff can establish by a preponderance of the evidence that the challenged action would not have occurred absent the employee’s age.

Social Media Possibilities and Perils!

Technology has changed how we work, and more importantly — we have changed.  The methods we use to communicate, as well as the way we stay informed and do business, have completely transformed over time.  Furthermore, the new methods of communicating now include sending a text message from a mobile phone, posting comments on online networks or sending a short Tweet to inform the world about a variety of things.  As a result, over the past few years a typical business executive’s network has probably expanded from a few acquaintances to hundreds of friends, friends of friends, connections and followers.  

It is amazing how social networking platforms have grown – exponentially!  Millions of people around the world with access to the Internet are members of one or more social networks. They have a permanent online presence where they create profiles, share photos, share their thoughts with friends and spend hours catching up with what their hundreds of friends are doing with their lives.  On an organizational level, the expansion of the Internet has also transformed a number of businesses.  The convenience, power, and readily accessible information provided by the Internet have substantially enhanced business communication, education, product manufacturing, and customer service. 

I see it – the possibilities that the Internet and Social Media represent to our world.  I see opportunity, and I want to participate within this medium.  However, the practical and legal problems created by the application of new social networking technologies continue remain unclear from a liability (and sometimes ethical) perspective.

From a productivity perspective, employees with access to the Internet typically spend time checking their email, Facebook profile, MySpace Web page, or updating their Twitter account and their LinkedIn account.  Moreover, typically such activities are seldom limited to a few minutes a day.  The time spent using social networking applications is one reason why many businesses are reluctant to allow employees to use social networking sites during office hours.  Add the time spent on browsing the Internet on issues that are not business-related, and the effect on employee productivity becomes an even larger issue. Nevertheless, I see that many businesses are beginning to appreciate the advantages of social networking.  In fact, many companies have adopted social networking as another vehicle to gain a better presence online and a wider audience for its products and services.

Social networking sites are applications and, as such, are generally not a problem for organizations in terms of software installation.  It is usually the people who utilize social networking that are a cause for concern.  Social networkers, if one can call them so, are the root of five problems for an organization that allows social networking at work. 

The first issue usually associated with an organizations use of social media was discussed above – productivity.  If every employee in a 50-strong workforce spent 30 minutes on a social networking site every day, that would work out to a loss of 6,500 hours of productivity in one year!  That lost time could have generated a significant amount of money for a business.  Businesses should continue to closely monitor productivity issues.  The loss of approximately 25 hours of productive work per day does not usually equate to a successful business.  Organizations can explore how much social media may be costing by factoring in the average hourly wage and then trying to quantify the benefits acquired for the lost productivity.  Social media may also effect company morale. Employees do not appreciate colleagues spending hours on social networking sites (and others) while they are functioning to cover the workload. The impact is more pronounced if no action is taken against the abusers.

A second issue with social media is the cost of business resources. Although updates from sites like Facebook or LinkedIn may not take up huge amounts of bandwidth, the availability of (bandwidth-hungry) video links posted on these sites creates problems for IT administrators. There is a cost to Internet browsing, especially when high levels of bandwidth are required.  This is usually not as much of a factor for smaller businesses.

The third issue is often overlooked by organizations. Social networking sites create new potential to commit fraud and launch spam and malware attacks. There are more than 50,000 applications available for Facebook (according to the company) and while Facebook may make every effort to provide protection against malware, these third-party applications may not all be safe.  Some have the potential to be used to infect computers with malicious code, which in turn can be used to collect data from that employee’s Facebook site.  Messaging on social networking sites is also a concern because such messages are used to spread malicious code and worms.

The fourth issue is data or identity theft.  More people are falling victim to online scams that seem genuine. Users may be convinced to give personal details such as Social Security numbers, employment details and so on.  By collecting such information, data theft becomes a serious risk. On the other hand, people have a habit of posting details in their social networking profiles. While they would never disclose certain information when meeting someone for the first time, they see nothing wrong with posting it online for all to see on their profile, personal blog or other social networking site account. This data can often be mined by cybercriminals.

Savvy employers are constantly on the lookout for information that their employees post, as this may have a dramatic impact on the company.  People often post messages without thinking through what they’ve have written.  A seemingly innocuous message such as “I’m working this weekend because we’ve found a problem in our front-end product” may be a spur-of-the-moment comment but could raise concern among customers who may use that system, especially if the company handles confidential or financial detail.

Finally, the last issue arising from social media deals with my area of interest – legal liability.  To date, there have been no major corporate lawsuits involving evidence from social networking sites. However, organizations need monitor employees who may be commenting publicly about the workplace. For example, one young employee wrote on her profile that her job was boring and soon received her marching orders from her boss. What if a disgruntled employee decided to complain about a product or the company’s inefficiencies in his or her profile? There are also serious legal consequences if employees use these sites and click on links to view objectionable, illicit or offensive content. An employer could be held liable for failing to protect employees from viewing such material. The legal costs, fines and damage to the organization’s reputation could be substantial.

So what are the solutions?  Can we use these technologies to optimize the benefits and limit the issues described?  There is no simple solution to any of the above issues. While internal controls and technology can be used to an extent to control employee use of social networking tools, it is impossible to control what they are posting at home.  The dilemma is whether to embrace change and adopt these new methods of communication in light of the disadvantages and possible repercussions which are too serious to ignore.  Every action, every minute spent online (and on social networking sites) may expose an organization to numerous security threats.  While the subject of productivity increase is debatable, the security issues are not – they are all too real.

Ultimately, employers have three options: (1) Ban access to social networking sites (and access to Internet as well); (2) Set limits and restrictions on use; or (3) allow unmonitored access.

Most organizations take the position, and I agree, that an outright ban is a draconian approach that will probably be counterproductive.  Such a decision certainly would convey a lack of trust to employees and create tension within the workplace.  However, an outright ban may be an optimal solution for some organizations such as banks and government departments that deal with predominantly confidential information.  

I suggest that in most cases the best option for most businesses is to allow access to social networking sites while imposing limits (when these can be used, for how long, and by whom).  I certainly do not recommend that any business elect to allow unmonitored access to the Internet. Regardless of which option an organization may select, basic safeguards such as anti-virus software, a firewall, and an ability to monitor Internet use and social networking sites must be in place.

Social networking sites encourage people to disclose as much information about themselves as possible. Even the most prudent and well-meaning individuals can give away information they should not – the same applies to what is put online via company-approved social networking platforms.  However, many people, including those in senior management, have online profiles on a social networking site and like the idea that they can keep in touch with contacts and friends (and their employees) via that interface.

Ultimately, if an employer elects to utilize social media it should limit access, create comprehensive policies to address the foreseeable issues, and educate management and staff on the company’s position.  Crafting appropriate policies, which are acknowledged in writing and educating the workforce are absolutely critical.  A policy that is not well constructed and sits on a shelf will be of little use should litigation arise.  Most employees are not aware how their actions online can cause security issues for the organization. Tell them in a language they understand how a simple click on a link they receive or an application they download can result in malware infecting their machine and the network. Additionally, tell them not to click on suspicious links and to pay attention when giving out personal details online. Just because employees are clever enough to have an online profile does not mean they are technically savvy or that they have a high level of security awareness.

FTC Regulating Blogger Endorsements

Effective December 1, 2009, the Federal Trade Commission will require bloggers to clearly disclose any freebies or payments they get from companies for reviewing their products.  It is the first time since 1980 that the commission has revised its guidelines on endorsements and testimonials, and the first time the rules have covered bloggers.

The commission stopped short of specifying how bloggers must disclose any conflicts of interest.  The FTC press release said its commissioners voted 4-0 to approve the final guidelines, which had been expected. Penalties include up to $11,000 in fines per violation.

As the Commission summarized:

Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.

Federal Employees Banned from Texting While Driving Government or Private Vehicles

On October 1, 2009, an Executive Order was issued directing federal employees not to engage in text messaging while driving government-owned vehicles; when using electronic equipment supplied by the government while driving; or while driving privately owned vehicles when they are on official government business.  The order also “encourages” federal contractors and others doing business with the government to adopt and enforce their own policies banning texting while driving on the job.