Whistleblower Protections Strengthened in New Federal Law; TSA Employees Included

President Obama has signed into law new protections for U.S. government employees blowing the whistleblower on waste and corruption, including, for the first time, extending protections to employees of the Transportation Security Administration.

The Whistleblower Protection Enhancement Act–as its name suggests–improves some legal protections already in place for federal employees.

The law also gives the Office of Special Counsel new rights to file court briefs, suspends what had been sole jurisdiction of the Federal Circuit Court of Appeals over whistleblower cases, and establishes agency Whistleblower Protection Ombudsmen to educate employees about whistleblower rights.

The law also clarifies the scope of protected disclosures of wrongdoing, tightens requirements for non-disclosure agreements; expanding the penalties imposed for violating whistleblower protections.

The bill cleared the Senate last year and was passed by the House in September. Here is the full text of the law.

Assistance, Training Coming to Mexican Nationals Under EEOC-Mexico Agreement

The Equal Employment Opportunity Commission’s Detroit field office and the Mexican consulate today formalized an arrangement under which the two entities will cooperate to reduce the incidence of national origin and citizenship discrimination against Mexican nationals in the state.

The parties signed a “Memorandum of Understanding” under which, among other assistance, the EEOC will provide the consulate with Spanish-language materials explaining the laws enfored by the federal agency. The commission also will partner with the Consulate to provide information and training to remove, underserved areas of Michigan, including the western side where there are many migrant farm workers.

This week–dubbed Anti-Discrimination Information Week–the EEOC will provide visitors to the Consulate with information on the laws enforced by the EEOC, specifically focusing on sexual harassment, national origin harassment, retaliation and Youth@Work, an EEOC campaign which deals with the problem of the sexual harassment of teenaged workers.

You can read more about the new arrangement here.

Former “Price Is Right” Model Awarded $8.5 Million in Pregnancy Discrimination Lawsuit

The deeper the corporate pocket, the more painful the verdict in an employment discrimination lawsuit, as producers of a popular TV game show discovered last week.

A former model for the TV game show the “Price Is Right” has been awarded $8.5 million by a jury in Los Angeles in her pregnancy discrimination lawsuit.

The model, Brandi Cochran, alleged that the show’s producers–FremantleMedia North America and The Price is Right Productions–unlawfully denied her her old job back when she returned from maternity leave.

The producers defended their handling of her situation by saying that they were satisfied with the five models already on the show when Cochran tried to return.

The award is comprised of $7.7 million in punitive damages, and $777,000 compensatory damages.

The defendants said they will appeal.

Employee’s Inevitable Firing Negates FMLA Claim, 10th Circuit Holds

An employee who would have been fired even if he had not requested leave under the Family and Medical Leave Act cannot proceed to trial on his interference or retaliation claim under the statute, the 10th U.S. Circuit Court of Appeals held today.

Affirming a lower court, the appeals court said that Frank Brown, a customer service operations analyst for ScriptPro LLC did not have a triable FMLA interference or retaliation claim, since the employer presented undisputed evidence that he would have been fired even if he hadn’t requested family-related time off two days earlier.

The judges said that Brown had received a negative performance review and that following his negative annual evaluation there were additional complaints about his “belligerence” toward customers.

The court said it was not questioning the wisdom of managements’ response but only whether it had come forward with evidence suggesting it would have terminated Brown irrespective of his leave request.

Since it had, the claim properly was dismissed, the appeals court held.

Here’s a link to the full ruling.

Definition of “Supervisor” Under Title VII Argued Before High Court

When is an employee a supervisor for Title VII purposes? Is it only when employee has hiring and firing authority over others, or is it more of a sliding scale of authority? These were the questions the U.S. Supreme Court wrestled with today in oral argument in a case against Ball State University.

The outcome could determine how easily victims of employment discrimination can hold their employers, and maybe even the supervisors themselves, liable for Title VII violations.

Maetta Vance, a black catering assistant, sued the university for harassment, alleging that she was the victim fo racial epithets and threats by a white woman who she viewed as her supervisor. The 7th U.S. Circuit Court of Appeals based in Chicago ruled that to be a supervisor, an employee must have the power to hire, fire, demote, promote, transfer, or discipline the victim. On that basis, the appeals court dismissed Vance’ case.

The court of appeals are split on the question; three of them apply this strict standard, while three others focus on the employee’s day-to-day authority. The Equal Employment Opportunity Commission goes with this more lenient standard.

Interestingly, Ball State agreed with the EEOC that the more lenient standard is the correct one. Naturally, the business community has lined up with Ball State in this case, while women’s and civil rights groups side with Vance.

A decision is expected by the end of the court’s term in June. One interesting possibility is the court doesn’t rule on the legal question but sends the case back to the appeals court for a further development of the record. Several justices noted that no one in court was defending the Seventh Circuit’s ruling.

Bagel Breakfast Rescheduling Not Religious Discrimination, Court Says

Upset that someone else’s religion in the workplace is being accommodated? Tough, says a federal district court in Colorado, which recently ruled against an employee who complained when his employer rescheduled bagel breakfasts so they wouldn’t occur during the Muslim observance of Ramdan.

The fact that the employee’s objections were ignored doesn’t make this a case of religious harassment, the court found.

Here’s the key language: “That an employee occasionally may be confronted at work with religious beliefs or practices different from and offensive to his own does not make out a claim for a religiously hostile work environment.”

WalMart Files Complaint With NLRB to Stop Black Friday Protests

Today is Black Friday, typically one of the busiest shopping days of the year.  One organization is determined to make the day difficult for Walmart.

A group  called OUR Walmart is planning demonstrations outside the company’s stores, protesting alleged mistreatment of workers by the company.

WalMart has fired back, filing a complaint with the National Labor Relations Board to stop the protests.  The basis for its complaint: The organization is violating section 8(b)(7)(C) of the law, which bars picketing for more than 30 days when a union is seeking recognition. .

As this blog went to press, it was unclear whether the NLRB would have the time or even the intention to rule on the complaint prior to the planned protests.

IRS Announces Penny Increase in Mileage Reimbursements

A Thanksgiving eve announcement from IRS will benefit taxpayers slightly in 2013 when it comes to personal automobile use for business, medical, or charitable purposes.

Starting January 1, 2013, taxpayers will be allowed to deduct 56.5 cents per mail for business miles driven, the IRS announced yesterday.

Each year the IRS announces the standard milage deduction for operating a car for business, charitable, medical or moving services.

The rate next year for medical-related driving will be 24 cents per mile, and 14 cents per mile for driving for charitable-related purposes.

As an alternative to using the standard mileage rate, the taxpayer has the option of calculating the actual costs of using his or her vehicle.

The announcement was Notice 2012-72.

Employer Obligations Not Relieved by Hurricane Sandy

As Thanksgiving approaches, we can be grateful that much of the East Coast has recovered from the devastation of Hurricane Sandy. The government has eased some of the obligations employers have, for example, in meeting certain payroll reporting deadlines.

But there are alot of obligations from which employers have not been relieved.

The Orrick law firm has just summarized these in a paper “After the Storm: Employer’s Obligations Under Sandy,” which I commend for your reading.

HHS Issues Proposed Rule on “Essential Health Benefits” Under Affordable Care Act

The U.S. Department of Health and Human Services today issued proposed rules on insurers’ obligations to provide “essential health benefits” under the Affordable Care Act, one of the most important provisions of the health care reform law.

Beginning in 2014, all non-grandfathered health insurance coverage in the individual and small group markets, Medicaid benchmark and benchmark-equivalent plans, and Basic Health Programs (if applicable) will be required to cover essential health benefits (EHB), which include items and services in 10 statutory benefit categories, such as hospitalization, prescription drugs, and maternity and newborn care, and are equal in scope to a typical employer health plan. In addition to offering EHB, these health plans will meet specific actuarial values (AVs): 60 percent for a bronze plan, 70 percent for a silver plan, 80 percent for a gold plan, and 90 percent for a platinum plan.

According to the proposed rules’ preamble, these AVs, called “metal levels,” will assist consumers in comparing and selecting health plans by allowing a potential enrollee to compare the relative payment generosity of available plans. Taken together, EHB and AV will significantly increase consumers’ ability to compare and make an informed choice about health plans.

This proposed rule establishes how the HHS Secretary will define EHB based on a state-specific benchmark plan and lays out standards for the EHB-benchmark plan and for issuers that cover EHB.

The proposed rule also outlines a process for computing plan AV using an HHS-developed AV calculator, as well as standards and flexibility for issuers in meeting the metal tiers.

More details to follow. For now, if you would like to read the proposed rule, here’s the link.

And that’s not all. The Labor Department today issued proposed regulations on wellness programs.