Gender Discrimination Alive and Well

In May of 2010, a jury in a gender discrimination case pending in a New York City federal court awarded a class of 5,600 female plaintiffs over $250 million in punitive damages and almost $4 million in compensatory damages.  A back pay award is also expected.  The plaintiffs are current and former sales employees of a drug maker who alleged they suffered bias in pay, promotional opportunities and pregnancy-related matters.  Here is a news article with some more details about the lawsuit and the plaintiffs’  verdict:  http://www.nytimes.com/2010/05/20/business/20drug.html Some news accounts have said this is the largest gender discrimination lawsuit ever to go to a jury verdict in the United States.

Acknowledgement and thanks to Mike O’Brien (writer) and Kriss Hess (sender) at the law firm Jones Waldo in Salt Lake City, UT

Note: Posts on this blog are for information purposes only, and are not legal advice.

Employment Law Trends Reflected In News

Some recent news stories are good indicators of legal trends to which employers should pay some attention.  First, the Illinois Legislature just approved a new law restricting employers from using credit information in employment decisions.  Several other states (Hawaii, Oregon, Washington) have adopted similar laws, all intended to minimize the impact of the Great Recession on an applicant’s ability to get a job.  Second, nationally, claims brought before state wage agencies are up.  These types of claims include claims regarding termination pay, vacation pay and deductions from wages.  One Eastern employment lawyer has commented that he is seeing a “wage and hour firestorm spread from California across the country.  Make sure you know about and comply with applicable state wage laws that apply based on where your employees live/work.  Finally, a couple of recent new lawsuits suggest more men are filing sex discrimination claims with women—and other men– portrayed as the villains.

Acknowledgement and thanks to Mike O’Brien (writer) and Kriss Hess (sender) at the law firm Jones Waldo in Salt Lake City, UT

Note: Posts on this blog are for information purposes only, and are not legal advice.

Privacy and Texting

The U.S. Supreme court heard oral arguments in a case regarding employees’ use of employer-provided electronic communication devices.

The city of Ontario, California, distributed two-way pagers to employees, including its SWAT team. A lieutenant told SWAT personnel that although city-owned equipment was limited to business-related use, his employees could pay overage charges if they exceeded a preset limit of characters each month and he would not audit the messages to see if they were work-related.

Investigators found that one of the SWAT team member’s messages were personal and sexually explicit. That SWAT team member sued, alleging privacy and unreasonable search violations.
 
In today’s workplace, with all the mechanisms that you have for communication, you will sometimes have a blurring of the business and the personal.

Mandatory Flu Shots Not Recommended

Requiring employees to get a flu shot might be too risky, according to legal experts.

The New York State Department of Health has issued emergency regulations requiring health care facilities to vaccinate all personnel for influenza, except those with no patient contact and those with other health conditions preventing immunization.

But “Outside of first responders and medical institutions, it is hard to imagine a need for such an extreme policy,” said David Barron, an attorney with Epstein Becker & Green. “Instead of making the flue vaccination mandatory, employers can encourage their employees to get vaccinated and can even facilitate having the vaccination offered on the premises with the assistance of a medical professional.”

Making flu vaccinations mandatory raises compensation and labor relations issues. “If the situation becomes more severe than expected and employers are either being required to have their employees get vaccinated or are permitted to require it, employees should be paid for this because it arguably would be work time,” said Steve Biddle, an attorney with Littler Mendelson in Phoenix.

Written by Allen Smith, excerpted from the November issue of HR Magazine.

Note: Posts on this blog are for information purposes only, and are not legal advice.

FMLA LEAVE DOES NOT PROHIBIT DISCHARGE FOR MISCONDUCT

The federal appeals court covering the Midwestern USA has issued an opinion affirming that an employee can be fired for misconduct even though he/she is on FMLA leave at the same time.  The case involved an employer who discovered evidence of serious misconduct (e.g. unauthorized purchases and failure to perform work duties) by a company officer.  The discovery was made while the employee was out on FMLA leave and the company decided to discharge him immediately rather than wait to restore the employee from his FMLA leave first.  The court ruled that the employee’s right of restoration was only as great as his right would be while he was not on leave. Because the employer was able to convince the court that the termination would have occurred regardless of the employee’s leave status, there was no FMLA violation.  Note that the FMLA regulations indicate the same is true for layoffs and other types of terminations, provided the employer can show they would have occurred regardless of leave status.

Acknowledgement and thanks to Mike O’Brien (writer) and Kriss Hess (sender) at the law firm Jones Waldo in Salt Lake City, UT

LEGISLATIVE AND REGULATORY NEWS

Although it remains consumed with the debate over health care reform, Congress is also considering a bill that would tie increases in the minimum wage to the federal threshold determining poverty for a family of two.  The bill (the Living American Wage Act of 2009, H.R. 3041) would adjust the minimum wage every four years. Under current economic conditions, the minimum wage established by this bill would be set at $8.20/hour.  A Senate Committee has approved a bill (S 1261) establishing federal security standards that states must follow for issuance of driver licenses and identification cards. A court has upheld the validity of the presidential order requiring federal procurement contractors to use the E-Verify system to verify the legal status of employees.  Finally, the United States Department of Health and Human Services has issued regulations implementing federal requirements that employers and health care providers provide notice to affected individuals of any breach of protected health information. For more information, see:  http://www.littler.com/PressPublications/Documents/2009_08_ASAP_EmployersHealthCareProviders_NewGuidance_HIPAASecurityBreach.pdf

Acknowledgement and thanks to Mike O’Brien (writer) and Kriss Hess (sender) at the law firm Jones Waldo in Salt Lake City, UT