Archive for June, 2014

High Court Ends Term With Two Labor Rulings

The U.S. Supreme Court ended its 2014 term today with a pair of 5-4 rulings certain to reverberate throughout the workplace.

In one ruling, the majority held that for-profit closely-held companies do not have to comply with the requirement in the Affordable Care Act to provide free contraception coverage to their employees under their health plans. The court held that these companies are “persons” protected from a substantial infringement on their owners’ religious beliefs under the Religious Freedom Restoration Act.

Any burdens the government places on these companies must, therefore, be justified by a compelling government interest and be advanced through the least restrictive means. The majority agreed with the Obama administration that providing free contraception coverage to female employees is a compelling government interest, but said that the government didn’t use the least restrictive means to advance it.

In the second, the same five justice majority held that personal care assistants who are paid by the state of Illinois but mostly supervised by the home-care recipients can’t be compelled to pay union dues. The court said that these assistants were not “full-fledged” public employees.

The court questioned but ultimately didn’t disturb a 1976 ruling that permits “fair share” agreements for public employees. But the majority questioned the ruling and said it didn’t apply to this situation because the union the state assigned to bargain for the assistants had little authority to negotiate benefits for them.

The rulings are Burwell v. Hobby Lobby and Harris v. Quinn. You can access them on the U.S. Supreme Court’s website.

For more background on the cases, check out my prior blog posting here on the Hobby Lobby case and here on the Harris case.


Sodexho to Open Health Plan to Part-Timers

Food-service giant Sodexho has decided it would rather “play” than “pay” under the Affordable Care Act, and that means thousands of college cafeteria workers will get health insurance from the company after all.

“Pay or play” is the provision of the law that requires an employer with 50 or more employees to offer coverage to its employees who average at least 30 hours a week, or pay a fine.

In response to this employer mandate, some companies have tried to figure out ways to keep employees from working 30 hours a week so they can exclude them from their plans.

That apparently was Sodexho’s original intention as it was going to bump thousands of college cafeteria workers from its health plan. So in January it reclassified some of its workers as part-time by averaging their hours over a 52-week calendar year–affecting about 5,000 of its 133,000 employees in the U.S.

But the French-owned company announced this week that it will now credit campus employees during the summer break with the hours they would have worked during the academic year.

What prompted this change of heart? Maybe the company was trying to do the right thing, or maybe it feared a possible union organizing drive and campus protests that  a labor union called Unite Here was threatening.

Either way, it’s a good outcome for those part-time workers.

Hospital Out $50K in Settlement of ADA Suit Charging It Didn’t Allow Alternate Drug Screen

It’s not everyday that an employer gets in trouble for not giving a job applicant the option of a drug test, but that’s exactly what a Fort Worth, Texas rehabilitation facility allegedly did in violation of the Americans With Disabilities Act, the EEOC charged in a lawsuit.

According to the lawsuit, the applicant had a kidney disorder that prevented him from producing the urine needed for a concentrated urine screen. Drug testing was a condition for getting the job with the Fort Worth Center of Rehabilitation, but when the applicant asked about whether he could take another type of drug test, the hospital denied his request and revoked his conditional offer of employment, the EEOC said.

Turns out there are other types of drug screen available that could have allowed the applicant to participate and get the job he’s been offered.

Not allowing him that option of another test was an ADA violation, the EEOC charged.

The facility apparently saw the error of its ways and agreed to settle the lawsuit for $50,000.

“Oftentimes, situations such as this arise due to an ignorance of the law, and a simple change in policy and/or an extra training session can prevent future harm to other people,” said EEOC trial attorney Meaghan Shepard.

Here’s more information on the lawsuit and settlement.

Obama’s “Recess” Appointments to NLRB Violated Constitution, U.S. Supreme Court Holds

The U.S. Supreme Court took President Obama down a notch today in holding that “recess” appointments the president made to the National Labor Relations Board were unconstitutional.

The appointments were challenged by Noel Canning, a snack manufacturer, which was the subject of an adverse ruling by the board. It argued that the appointments of two Democrats to the board were unconstitutional because the Senate was not in recess at the time but was holding pro forma sessions and thus technically was open for business.

The constitution gives the president the power to make recess appointments in order to keep the government running when Congress is not in session.  But the justices ruled that when Obama made the recess appointments the Senate was really only on a 3-day recess and therefore the appointments weren’t allowed under the constitution’s recess clause.

The ruling calls into question the validity of NLRB rulings that the recess appointees participated in.

The ruling may be sound constitutional doctrine, but it definitely throws a monkey wrench into the board’s operations.

By the way, the justices have two cases left to decide-both involving labor and employment issues. I’ll report back to you when the rulings are issued, Monday at the latest.

Distributor, Hair Salon Sued by EEOC Under ADA

Two employers may be about to learn the hard way that simple adherence to the Americans With Disabilities Act can keep them out of court.

The EEOC this week filed an ADA lawsuit against a Minneapolis-based distribution company, alleging that it unlawfully would not allow an employee who had suffered a heart attack to return to work, even though the employee had presented a note from his doctor okaying his return. The EEOC says this is an ADA violation because in effect the company regarded the employee as disabled.

In the second case, the EEOC is suing an Atlanta-based hair salon that allegedly did not reply to a hair stylist’s request for a reasonable accommodation to allow her to stand for extending periods without experiencing back pain. The employee has scoliosis and a herniated disk.

You can read about the first case here and the second case here.

But more importantly, don’t fall into the same trap as these employers apparently did. Follow the ADA’s simple requirements to treat all employees as capable of working unless proven otherwise. Don’t substitute your opinion for a doctor’s as to whether an employee is fit to return to work, and don’t ignore the law’s reasonable accommodation mandate.

BONUS COVERAGE– on a completely separate topic, I’ve just learned that two more bans on same-sex marriage have been struck down, Utah’s and Indiana’s. I haven’t covered this issue much lately, what with the U.S. Supreme Court having settled the question about whether same-sex marriages must be recognized under federal law.  But state same-sex marriage bans continue to drop like duck pins. There isn’t a single remaining law that isn’t subject to court challenge. Utah’s attorney general has promised to appeal the Tenth Circuit’s ruling against his state, so it wouldn’t surprise me if that’s the case that eventually makes it to the U.S. Supreme Court where the question of a constitutional right to same-sex marriage will be squarely put before the justices.

Best to Leave Religion Off Your Application

What’s the best advice for job applicants on whether to mention their religion when they apply for a job? Don’t.

That’s a fair conclusion to be drawn from the findings of a study by researchers at the University of Connecticut, who found that “employers are demonstrably less likely to respond to a job application if that resume includes evidence of membership in a faith group.”

And whatever you do never mention that your are a Muslim; your employment prospects will plummet if you do that.

“What we found is that, when applying for a job, it’s better not to mention religion at all – but employers really don’t want you to mention being a Muslim,” said professor of sociology Michael Wallace, who conducted the studies along with Bradley Wright, an associate professor in the sociology department.

There’s much more on the study, including how employers in the Southern states reacted to a mention of an applicant’s religion, at this University of Connecticut website.


Give It a Rest: Constant Connectivity Not Good

Too much of anything can be harmful, and that’s no less true when it comes to constantly being connected electronically to other people. Here’s some advice from HR specialist and regular contributor to this blog, Robin Paggi, on the benefits of (occasionally) pulling the plug.

Get Disconnected at Work and at Home

 by Robin Paggi MA, SPHR-CA, CPLP, CPC

“I think that more flow of information, the ability to stay connected to more people makes people more effective as people. And I mean, that’s true socially. It makes you have more fun, right. It feels better to be more connected to all these people. You have a richer life,” said Facebook founder Mark Zuckerberg.

He has a point. Feeling connected to others is indeed important to our wellbeing; however, needing to be constantly connected to others technologically can cause problems for us in the employment world.

“Feeling like you’re part of the gang is crucial to the human experience,” according to Divya Menon at the Association of Psychological Science. “All people get stressed out when we’re left out.”

The folks at NPD Group, a multi-national market research company, would probably agree. They released a report earlier this month that revealed that Americans have 425 million devices (computers, phones, tablets, etc.) that are linked to the Internet. There are more devices keeping us connected and apprised of what’s going on than there are Americans.

In her article on the study on, Joelle Renstrom says that, “The NPD study suggests that we’re tethered to our devices – we don’t or won’t disconnect. People want to touch them, hold them, keep them close, lest a disconnect open up like a lethal gulf.”

So, what problems does this need to be connected create in the employment world?

First, the obvious problem: employees who spend time during their workday constantly posting on Facebook, checking status updates, reading tweets from their favorite pop stars, etc. aren’t getting work done, which makes employers unhappy. A word of advice for employees: don’t make your employer unhappy. Even though some people say there is a social networking addiction, the American with Disabilities Act does not recognize it as a disability, so that excuse is not going to help you. Refrain from social networking at work, or if you must connect, do it on your unpaid meal break.

Second, evidently the need to be connected is not just a social thing. There are some folks, called “hyperconnected workers,” who feel the need to constantly check and respond to work emails during non-work hours. Why do they do this? Said Harvard Business School professor Leslie A. Perlow in her article, “Sleeping With Your Smartphone: How to Break the 24/7 Habit and Change the Way You Work,” “The pressure to be ‘on’ all the time is extensive.” If this pressure is coming from employers, they should stop it for a couple of reasons: 1) if they expect non-exempt (hourly) employees to check and respond to emails during non-work hours, then they have to pay them for that time, and 2) even though Zuckerberg believes that staying connected makes people more effective socially, there is plenty of evidence that demonstrates that people are not as effective or efficient when they have no down time from work.

So, disconnect for a while, because no one benefits from being constantly connected at work or at home.

Robin Paggi is the Training Coordinator at Worklogic HR.

For prior columns by Robin appearing in my blog, click here, here, here, and here.

DOJ, Groups in Tussle Over Discrimination by Religious Groups Receiving Government Grants

It’s long been the case under Title VII that a religious organization can refuse to hire individuals who don’t subscribe to the organization’s mission. But now the Obama administration faces the issue of whether grant recipients can hire and fire based on a person’s faith.

This issue goes back to a 2007 memo issued by the Justice Department during the George W. Bush presidency. That memo stated that faith-based organizations “may prefer co-religionists in programs funded by covered grants” if they meet certain criteria.

Then Senator Obama campaigned in 2008 to change that policy, and Congress, in reauthorizing the Violence Against Women Act inserted language prohibiting discrimination by grant recipients.

Earlier this month 90 organizations wrote to Attorney General Eric Holder demanding that DOJ withdraw the 2007 Bush-era memo and state emphatically that such discrimination by faith-based groups receiving federal grants is no longer allowed.

As of now, the Obama Administration hasn’t responded to their request.

Check back here as new developments warrant.

DOL to Expand Meaning of “Spouse” in FMLA

The U.S. Department of Labor proposed today to bring the definition of “spouse” under the Family and Medical Leave Act in line with the federal government’s recognition of same-sex marriages.

Under the new definition, a husband or wife is anyone who is entered into a legally recognized marriage in any state, including same-sex and common law marriages.

Translation: It doesn’t matter if the spouse requesting FMLA leave lives in a state that doesn’t recognize same-sex marriage.

What this new definition does is expand the FMLA definition of spouse consistent with the U.S. Supreme Court’s ruling in Windsor requiring federal recognition of same-sex marriages, and subsequent DOL guidance that that principle applies irrespective of where the married couple lives.

DOL Publishes Proposed Rule on Min. Wage Increase for Federal Contractor Employees

If you are a federal contractor and want to get a head’s up on what will be required you under President Obama’s executive order raising the minimum wage to $10.10 per hour, you should have a look at this week’s proposed notice of rulemaking published by the Department of Labor in the June 17 federal register.

Here’s a quick rundown on how the proposed rule is organized. So if you don’t want to wade through all 54 pages, you’ll at least known the highlights and where to hone in.

Subpart A of part–relates to general matters, including the purpose and scope of the rule, as well as the definitions, coverage, and exclusions that the rule provides pursuant to the Order. It also sets forth the general minimum wage requirement for contractors established by the Executive Order, an antiretaliation provision, and a prohibition against waiver of rights.

Proposed subpart B–establishes the requirements that contracting agencies and the Department must follow to comply with the minimum wage provisions of the Executive Order.

Proposed subpart C–establishes the requirements that contractors must follow to comply with the minimum wage provisions of the Executive Order.

Proposed subparts D and E–specify standards and procedures related to complaint intake, investigations, remedies, and administrative enforcement proceedings.

Proposed appendix A contains a contract clause to implement Executive Order 13658. 79 FR 9851.

The public has until July 17 to submit comments.

To read the entire Federal Register announcement, click here.