What does this mean for employers?

• Update your policies to specifically address text messaging, the use of company-issued electronic devices, and the use of social networking sites both during work hours and while off-duty. The policy should specifically state that employees’ messaging and communications on electronic devices issued by the company are subject to monitoring, and employees have no expectation of privacy in the use of such devices.
• Make sure that your practices are consistent with the policy. One of the questions in the Quon case was whether a supervisor overrode the policy by promising not to monitor the pager use. Supervisors and employees must be trained not to make statements or promises that contradict the written policy.

Many employers routinely conduct credit checks as part of pre-employment screening. While the EEOC acknowledges that credit checks may be appropriate for certain positions, such as where an employee handles large amounts of cash, it cautions that the discrimination laws may be triggered in some instances.

State and federal legislatures are considering laws that may restrict the use of credit checks. Congress is currently considering H.R. 3149, titled the “Equal Employment for All Act,” which would amend the Fair Credit Reporting Act to prohibit employers from using a credit reports for either employment purposes or for taking an adverse action. For private employers, the only exception would be for employees in a in a supervisory, managerial, professional, or executive position at a financial institution. In the meantime, pprudent employers may want to develop a rationale for why credit checks are needed for particular positions.

While fourteen states and the District of Columbia have passed laws legalizing the possession of marijuana for certain medical purposes, marijuana is still illegal under federal law, and courts have been hesitant to force employers to tolerate illegal behavior.  Even the most liberal states are coming down on the side of employers. But beware…California is considering a ballot initiative that would prohibit employers from firing a person who tests positive for marijuana if he has a medical marijuana card. In the meantime, employers need to be aware of the issue and keep an eye on legislation and litigation.

In one of the first reported cases applying the ADAAA, which took effect on Jan. 1, 2009, a federal district court in Illinois held in Horgan v. Simmons that an employee who was fired after disclosing his HIV-positive status to the president of his company could pursue claims for discrimination and impermissible medical inquiry. Citing the EEOC’s proposed regulations to implement the amendments, the court held that HIV substantially limits a major life activity—the function of the immune system—and therefore constitutes a disability under the ADA. The court also held that the employer’s inquiry into the plaintiff’s medical status despite plaintiff’s repeated assurances that nothing was affecting his ability to work was an “impermissible medical inquiry” under the ADAAA, which prohibits “inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  

The decision is a departure from earlier decisions, where courts had dismissed HIV discrimination claims by otherwise healthy men who could not show that their HIV infection had actually substantially limited one or more of their major life activities.  The amendments make clear that the immune system function is a “major life activity.” Managers and supervisors should be aware of the expanded scope of the ADAAA, and trained on best practices in handling employees with potential disabilities.  

The issue is whether the intern should be considered an “employee” under the FLSA and therefore subject to wage and hour laws like overtime and minimum wage. To aid employers in making this determination, the DOL recently issued Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, which sets forth 6 criteria employers must apply to determine whether an intern should in fact by paid as an employee:

• The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of existing staff;
• The employer derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
• The intern is not necessarily entitled to a job at the conclusion of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If you are uncertain as to whether the criteria are met, keep in mind that the DOL defines the employment relationship “broadly.”  

Lucent could not have prevailed if it weren’t for its solid documentation of both Mr. Viergutz’s problems with co-workers and the fact he wasn’t interviewed because of these issues. Of course, documentation is especially important when taking adverse action against a member of a protected class. The point being that an employer’s hand is not tied when dealing with a protected employee so long as managers understand and adhere to best practices in the hiring and performance management processes.

The EEOC is seeing the first wave of claims under GINA

To date, the EEOC has received about 80 GINA-related claims. In one case, a Connecticut woman, Pamela Fink, has alleged that her employer violated the law when she was terminated after undergoing a preventive double mastectomy. The complaint states that Ms. Fink received consistently favorable performance reviews as a director of public relations and marketing communications at a Stamford, Connecticut-based employer. After learning she tested positive for BRCA2, the breast cancer Type 2 susceptibility protein, Ms. Fink took a medical leave to have a preventive double mastectomy last October. In January, the day before she was to have a second and final surgery related to her double mastectomy, she was given a midyear performance review that was “negative and scathing,” according to the complaint. In March, her employment was terminated and she was told her position had been eliminated. Ms. Fink claims the dramatic shift in her standing at work resulted from her revelation that she had tested positive for the BRCA2 gene. Ms. Fink said she told her employers about her genetic testing in August — shortly after her positive performance review and about two months before she had a double mastectomy as a preventative measure. When she returned from medical leave, that’s when her responsibilities began slipping away and the assessment of her work went from glowing to negative.

Employers need to make sure that their discrimination policies are updated to include genetic information. We also suggest reviewing all potential sources of genetic information, including hiring practices, employee screenings, wellness programs, and health insurance enrollment practices. A particular challenge for employers is what to do when genetic information is volunteered. One employment lawyer warns that employers have to be careful of being “set up” by employees volunteering genetic information and then alleging that was the cause of a subsequent adverse job action. While no one predicts that GINA will have the breadth or effect of other discrimination laws like Title VII of the Civil Rights Act, the ADA, or ADEA, employers must be primed for claims alleging GINA violations.

Additionally, the Labor Department has added 250 new inspectors (a 1/3 staff increase) as part of a broader crackdown on companies that misclassify workers as “exempt” from FLSA wage and hour laws like overtime and minimum wage. At the same time, plaintiffs lawyers are targeting companies in class actions on a range of wage and hour issues including worker misclassification, overtime and minimum wage, rest periods, and off-the-clock (the blurring of work time and personal time).

We can’t overemphasize the importance of properly classifying employees!

For example, a 2003 study by sociologist Devah Pager measured the effect of a criminal record on a job search. Ms. Pager sent pairs of young, well-groomed, well-spoken college men with identical resumes to apply for 350 advertised entry-level jobs in Milwaukee. The only difference was that one said he had served an 18-month prison sentence for cocaine possession. Two teams were black, two white. A telephone survey of the same employers followed. For her black testers, the callback rate was 5 percent if they had a criminal record and 14 percent if they did not. For whites, it was 17 percent with a criminal record and 34 percent without. My guess is that most of the employers did not consider themselves racist.

Similarly, judgments based on a person’s appearance generally reveal prejudices about age, gender, and disability. This was precisely the case with Abercrombie & Fitch, which paid $50 million to settle the EEOC’s case resulting from Abercrombie’s “restrictive marketing image” (i.e. pretty young white people) and recruiting and hiring practices that excluded minorities and women. Also as part of the settlement, Abercrombie agreed to ensure that its marketing materials “reflect diversity.”

While it may be impossible to completely abolish our biases, being aware of the existence and extent of our own prejudices can weaken their influence on our decisions. Take a look at your own biases and prejudices by taking a test at Harvard University’s Project Implicit:  https://implicit.harvard.edu/implicit/demo/takeatest.html

You may be surprised by the results!

What’s an employer to do? At the risk of sounding like a broken record – policy and training. Make sure your technology use and harassment policies address the issue, which should also be part of harassment training.