The newly released regulations interpreting the Americans with Disabilities Act Amendments Act of 2008 take effect on May 24, 2011.  The regulations confirm what most employers already know about the amendments:  It is now much easier for a claimant to establish a prima facie case of disability discrimination. 

Given the expanded definitions of “disability”, “impairment”, “regarded as”, and “major life activity,” it is not an exaggeration to suggest that most individuals could potentially qualify as covered under the ADA.  For cautious employers, this means it will be safe to assume that an employee may be covered under the ADA when determining whether an accommodation may be required.

Click here for our firm’s client alert, which briefly summarizes the new regulations.

Acting NLRB General Counsel Lafe Solomon took the highly unusual step on May 9, 2011, of issuing a formal press release asserting that the Boeing Complaint was nothing unusual, and requesting interested parties to let the NLRB’s processes run their course and not to attempt to try the case in the media.  As noted in the original post, the filing of the Complaint was accompanied by a news release from Mr. Solomon, which generated mulitple responses from Boeing and from both business and labor interests.

On April 20, 2011, NLRB General Counsel Lafe Solomon issued an unfair labor practice complaint against Boeing.  The basis for the complaint was Boeing’s decision to locate an additional 787 Dreamliner assembly plant in South Carolina.  The complaint alleges that Boeing made its location decsion after considering the past history of labor unrest and a history of strikes by machinists in the Seattle area.  By attempting to avoid the adverse impact of stikes on its business, Boeing had, in effect, retaliated against the employees in the Northwest who had exercised their right to strike.  In the view of General Counsel Solomon as expressed in his news release, this violated the employees’ section 7 rights, thus breaching Section 8(a)(1) of the Labor Management Relations Act, and constitutted retaliation and discrimination against those employees in violation of Section 8(a)(3) of the Act.

The complaint was over a year in investigation.  Boeing announced the new plant’s location in 2009, and has been moving forward on the project steadily since then.  The plant is nearly completed after millions of dollars of investment, and the new workforce is being hired.  Boeing has stated its intent to fight the complaint.  If it does so, it will likely be years before the Board itself decides the case and another couple of years before the appeals process runs its course.  This raises several questions for employers. 

First, what is it about the Boeing situation that makes it different from any other decision to put a plant in a particular location?  Boeing is different from previous Board cases in that the plant was for additional productive capacity, not to replace any existing employees.  If the Board is going to look at every plant expansion and explore whether the employer considered the availability of a stable and reliable workforce–or considered whether the proposed new location is in a right-to-work state–it is likely to find its workload considerably heavier. Thus, this Complaint puts the Board inside corporate offices in a way never seen before.

Second, is the Board capable of policing the nation’s employers effectively without doing harm to the economy?  The Board depends upon the filing of charges.  If a charge is not filed, it is unlikely that the Board will be in any position to take action.  In this situation, with no employees being adversely affected by Boeing’s decision, the filing of the charge was by the union.  Effectively, then, only unionized employers will have their plant siting decisions examined by the Board.  This gives an additional competitive disadvantage to unionized employers, and an incentive to avoid dealing with American unions.  The time required for the Board to do anything about these cases also puts uncertainty into the equation for these employers.  Can the Board effectively provide a remedy?  No current employees of Boeing would have been harmed in any way, so there is no back pay to be awarded.  Closing the new plant would punish the South Carolina employees, and create a huge waste of resources for Boeing. The Board is therefore facing a number of very practical hurdles if it wants to proceed along this path.

Third, what is the Board’s placing of certain states on a “presumed” anti-union list going to do for the Board’s standing in the political system?  The clear implication of the General Counsel’s complaint is that South Carolina is an unacceptable location for an employer with an existing union shop in another state to put a new facility, at least if one of the goals of the employer is to protect itself from vulnerability to strikes.  Both South Carolina senators have already condemned the General Counsel’s decision to issue the complaint. Many other senators from right-to-work states have joined in.  While the NLRB is an independent agency, it is clearly dependant upon Congress for funding and upon the participants in the labor arena to follow the rules.  If it makes new rules that cripple union employers and outrage legislators, it will see both increased non-compliance and decreased resources. The Board is unlikely to expand upon Boeing until it decides that case in some future year.  Employers, for at least the time being, should not be overly concerned that decisions to expand into employer-friendly locations will be challenged by the Board.

This latest effort by the General Counsel to expand the influence of the Board on corporate decisions as to where to place new facilities inside the United States is likely to have a serious backlash. Employers should not change their current plans.  If expansion is contemplated, they should site their new facilities where they otherwise would, without worrying about the implications of the complaint being issued in Boeing.

 

The federal government has encouraged employers to implement incentive-based wellness programs as one way to cut into ever-growing health care costs.  These programs provide financial incentives for employees who participate and, in some cases, achieve certain healthy criteria, such as maintaining a healthy BMI and cholesterol level.

Employers who have taken this route have found themselves mired in a murky confluence of labor, employment, health care and privacy laws.  The plans must comply with HIPAA, the PPACA, the ADA, the ADEA, Title VII, GINA and possibly the NLRA if the workforce is unionized.  Depending on how they are interpreted, the requirements to comply are in some cases conflicting and in other places unclear.

Enter the United States District Court for the Southern District of Florida.  In a much anticipated decision for those following wellness programs, Judge K. Michael Moore granted summary judgment in favor of Broward County’s wellness program.  A copy of the opinion in Seff v. Broward County is attached.  Seff filed a class action suit under the ADA challenging the legality of the wellness program, contending that the program violated the ADA’s medical inquiry requirements because the program was not voluntary.  Seff argued that the program was not voluntary because non-participants incurred a $20 charge, which he characterized as a penalty.

The Court, although avoiding interpreting the ADA head on, held that the wellness program fell under the ADA’s insurance safe harbor provision, 42 U.S.C. 12201(c). 

Employers who wish to take advantage of this good development should note:

1.  The wellness program must be a term of a bona fide benefit plan;

2.  Aggregate date obtained from the plan should used to analyze and develop future benefit plans; and

3.  The plan must be consistent with applicable state law.

Of course, employers should be mindful that this decision is likely to be appealed and that different courts may reach different conclusions.   Nonethelss, it is a positive step for the legality of incentive-based wellness programs. 

Most of the commentary on the Supreme Court’s recent decision in Kasten v. Saint-Gobain Performance Plastics, 563 U.S. ___ (2011), available here, has focused on the fact that the Court apparently took a pro-employee, anti-business position by deciding that a relatively informal complaint about the location of a time clock could be considered a “filed complaint” for purposes of the anti-retaliation provisions of the Fair Labor Standards Act.  While interesting, the question for most employers is what the decision means for their compliance programs.  How can prudent human resources departments ensure that employees do not suffer retaliatory actions when even oral complaints that never go past a first line foreman can subject the employer to significant risk?  A subsequent disciplinary action is unlikely to receive the same level of review for retaliatory motivation if the reviewer has no record of the complaint.   

Compounding the problem for employers is the fact that employees at all levels complain about many things all the time—in most cases without expecting that anything is really wrong or that anything will be done.  In many, perhaps most, workplaces, employees would not be all that pleased if every casual expression of theirs resulted in management approaching them with requests for documentation and discussions of improvement, formal assurances of non-retaliation and documentation in the “be careful of disciplining this individual since there is a history of complaints” file.   That said, here are some thoughts, which might work in some workplaces, and perhaps not in others.

1. Education.  Make sure management and rank and file workers are informed of the employer’s policies, including the way it handles complaints relating to compliance with laws. 

2. Process.    Make the process of bringing issues forward simple, and provide a way for those managers who hear of an oral complaint to bring it to the attention of compliance personnel.  Then, there should be a process by which it can be confirmed that the oral statement was or was not intended to be a complaint.  If it was intended to be a complaint, it should be handled the same as any written complaint.  If it is not intended to be a complaint, that fact should be documented, since it may help provide a defense to later claims of retaliation.  Nonetheless, the complaint should be assessed.  If it has validity, the opportunity for corrective action should not be ignored.

3. Records.    As noted, where there is an oral complaint, it should be documented and the documentation should be retained.  The records should be made a part of any review, in the same way as records of written complaints are used.  It is no longer prudent in this day and age to seek to hide from future decision-makers the fact of past issues and then try to rely on a defense that there could have been no retaliation because the decision-maker was ignorant of the underlying complaint.  If there is discipline or a layoff based upon performance, this is an opportunity to use the employer’s dispute resolution procedures to identify potential retaliation claims and even to defuse them.  Employees who have past complaints in their history may well not raise them at the time of the discipline for unrelated activity and therefore give the employer a better position in subsequent retaliation litigation.

There is no denying that the Supreme Court made life more difficult for U.S. employers.  An effective compliance program will go a long way towards giving the most compliant and most careful workplaces an advantage.

Late last year, OSHA announced in a posting on its website its plan to change its penalty calculation system with the overall goal of increasing fines to deter violations.  OSHA stated:

Many of the agency’s current penalty adjustment factors have been in place since the early 1970’s, resulting in penalties which are often too low to have an adequate deterrent effect.

It looks like they meant what they said.  We are now beginning to see the effects of those changes here in Cleveland, where OSHA has proposed initial fines far greater than we’ve seen in the past.  The changes include increasing base fines and expanding the window for repeat classifications.  Employers will still have the opportunity to engage in informal settlement, which often results in an agreement to reduce the total penalty.

Interesting play call.  As collective bargaining negotiations broke down yesterday between the National Football League and Players Association, the players took the unusual move of decertifying their union so that they could file an anti-trust lawsuit against the NFL in federal court in Minneapolis.  A copy of the lawsuit, which seeks an injunction, is attached.  Brady, et al v NFL – Complaint.pdf

This New York Times Article by Judy Battista summarizes the disputed issues.

This Q & A fact sheet from the NFL summarizes the key components of the collective bargaining agreement from the NFL’s perspective.   

Here is the actual collective bargaining agreement.

It will be interesting to see how this dispute plays out in the public, especially in light of the timing of these events. 

David Lazarus of the L. A. Times reports on an effort to extend disability accommodation requirements to the terms of all-you-can-eat deals. A hungry person with Type 2 Diabetes, David Martin, is suing the A Ca-Shi restaurant for disability discrimination.  Mr. Martin claims he went to the  restaurant to take advantage of its all-you-can-eat sushi special. 

Being a diabetic who was attempting to control his condition with diet, he found rice to be hazardous.  He attempted to eat only the fish from the sushi, effectively converting the sushi special into a sashimi special.  Sashimi quality fish being far more expensive than rice, the restaurant owner, Jay Oh, enforced a rule that you have to eat the entire piece of sushi before getting another one.

Mr. Martin filed suit and the restaurant is defending it, despite the fact that the cost of defense is greater than the reported $6,000 settlement demand.  Part of the defense argument is that no accommodation is necessary in this context.  Most everyone would rather have unlimited sashimi than unlimited sushi.  If Mr. Martin wants sashimi, he can pay for it just like anyone else who would rather fill up on fish than on a combination of fish and rice. 

The other part of the argument is that allowing people to leave their rice on the plate and consume only the fish would create an economic hardship for the restaurant.

“The rice is part of the all-you-can-eat sushi,” Oh said. “If you only eat the fish, I would go broke.”

Interestingly, as Mr. Lazarus points out, those with more serious diabetes (Type 1), who must inject insulin, can adjust their insulin dose so as to be able to eat the rice in sushi.  It is only those with the milder form–who can control the condition with diet alone–who need to avoid so much of a carbohydrate load. 

The requirement of eating everything on the plate before getting refills is common where one of the items on the plate is more costly than the others.  If claims of allergy or potential blood sugar imbalance override these requirements, this form of “all-you-can-eat” deal will likely disappear.  That said, most restaurants would probably try to work out a compromise–perhaps by requiring the patron to substitute another form of filler (lettuce?) for the rice. 

This dispute is another example of the difficulties faced by small businesses in trying to survive while complying with well-intentioned laws being enforced through litigation. The area of accommodating disabilities is especially hard, since it requires more than treating people the same.  Each accommodation needs to fit the unique circumstances of each situation. Here, what would work for a Type 1 diabetic might not work for a Type 2 sufferer.

Not content with managing its current workload, the EEOC is looking for new theories of discrimination.  It held a hearing yesterday to consider whether employers may be refusing to consider job applicants who are unemployed, and then whether that “practice” might amount to discrimination.  The argument would go something like: minorities have a higher unemployment rate than whites, so any practice that rejects the unemployed excludes disproportionate numbers of minorities and, absent proof of a compelling business interest, amounts to discrimination.  Any thought that the EEOC’s review would be impartial is dashed by the title of the EEOC’s own official press release on the hearing:  “Out of Work? Out of Luck”.  

The argument that a disproportionate share of unemployed means that a policy of excluding the unemployed is discriminatory under a disparate impact theory is faulty, of course.  It is somewhat disturbing that the EEOC is not better at looking behind the superficial arguments.  A policy excluding the unemployed excludes only those who are otherwise qualified.  Aggregate unemployment statistics reveal nothing about the percentage of people overlooked for specific jobs.  Employers who are caught up in some controversy of this type would do well to keep that in mind as they develop their defense. 

For example, if one industry has 1000 employees, of whom 800 are minority, and lays off 100 in that exact proportion, there will be 80 minorities unemployed and 20 non-minorities.  In a second industry, there are 500 employees, of whom 250 are minority.  A layoff of 100 employees leaves 50 minorities unemployed.  The aggregate percentage of minorities among the unemployed population over both industries would be 65% (130 of the 200), so it might look like minorities would be disproportionately and adversely impacted by a “no unemployed” policy. However, assuming that employees in one industry are not qualified in the other, if an employer in either industry chose to exclude unemployed applicants, the impact would be exactly proportionate to the available percentage of qualified minorities in the workforce. 

This technical mathematical argument is in addition to the presentations made at the hearing by employer representatives to the effect that blanket exclusions of unemployed applicants are rare and are not what employers are doing.  Employers are struggling to find the right people to fit their job openings.  Excluding anyone who is unemployed probably makes poor business sense.  Even so, every open job filled with someone who is already employed creates a new vacancy that can be filled by someone–probably someone who does not have a current job, or who is working at a lower level.  However created, job vacancies are good for job seekers.  The EEOC would do well to remember this, and to check its statistics.

A recent news item  demonstrates some interesting issues about religious discrimination, showing how it is an especially difficult subject for employers to manage.

The case is in its early stages, so the true facts are not available to the public, but the allegation is that David Coppedge, a highly regarded systems administrator working on NASA’s Cassini mission, was selected for a reduction in force because he is a leading advocate for the theory of intelligent design. 

Intelligent design is an alternative to the theory of Darwinian evolution, and has little or nothing to do with the work of Mr. Coppedge.  However, he is alleging that NASA/JPL considered his advocacy for intelligent design in selecting him for the RIF. 

Based upon the Supreme Court’s recent decision in NASA v Nelson (pdf) (that civilian employees of a contractor could be subjected to governmental background checks because they were equivalent to government employees) , he claims that JPL’s decisions amount to government action in violation of his First Amendment rights.  (JPL is operated by California Institute of Technology for NASA.)

NASA has stated that the RIF was completely unrelated to the intelligent design belief, but was due solely to the reduced manpower needs of the current phase of the Cassini mission.  Coppedge alleges that he was accused of “pushing” intelligent design at work by discussing the subject and handing out DVD’s.  Further, talk opposed to intelligent design was allegedly encouraged, with only pro-intelligent design speech being shut down.

There are a couple of interesting features to this story.  One is whether intelligent design is a religious belief, the advancement of which is protected by Title 7 of the Civil Rights Act of 1964, as amended. While many sects oppose evolution as contrary to the Biblical story of creation by God, intelligent design is not officially embraced as dogma by those churches. Rather, it is a contemporary attempt to square the notion of a “Creator” with modern scientific theory and evidence that organisms have not remained static over time. 

Second, employers have to face the tension between individuals in the workplace who feel an obligation to proselytize and those who feel that they have a right to be free of religious pressure at work.  Employers can, therefore, have reasonable rules regulating religious advocacy at work. 

Can employers discriminate between messages based upon their content, however?  In this case, talk about evolution may have been permitted, but discussion of intelligent design was allegedly banned.  Evolution is not inherently a religious topic, so is it or is it not within the arena of preferring one religion over another? 

One thing is certain:  U.S. taxpayers will be financing an expensive dispute for NASA.