Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

NLRB Calls a Timeout in Northwestern Football Players Case

Posted in Labor

Last week, the National Labor Relations Board (NLRB) issued its long-awaited decision in Northwestern University, a case involving an attempt by scholarship football players to unionize under the National Labor Relations Act. About a year-and-a-half ago, in response to the university’s attempt to dismiss a union election petition filed on behalf of the players, a regional director decided that the students were statutory employees who could unionize. The university challenged the regional director’s decision, which set the stage for the Board’s decision.

In a somewhat anti-climatic fashion, the NLRB declined to decide whether the scholarship football players had the right to unionize, explaining that a ruling at this time would not promote stability in labor relations based upon the facts of the case. Accordingly, the Board left open the possibility that collegiate athletes could unionize and expressly reserved its right to decide that issue in a future case.

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Jury Awards $2.2 Million to Employees Over DNA Tests in Violation of GINA in “Devious Defecator” Case

Posted in Discrimination

A federal court jury in Georgia recently awarded $2.22 million to two employees in what is believed to be the first jury verdict in a Genetic Information Nondiscrimination Act (“GINA”) employment case since the law went into effect in 2008. Dubbed the “devious defecator” case by the court, Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC involved an employer’s testing of two employees’ facial cheek (or “buccal”) swabs to identify whether either was the individual who had been repeatedly defecating on the employer’s premises. All jokes aside, the decision is notable, not only because it is one of the few, if only, jury verdicts awarded under GINA, but because it serves as an important warning to employers that GINA may apply more broadly than some initially believed, while also possibly providing a blueprint for other courts on how to interpret the statute.

Factual Background

The events leading up to the lawsuit require little introduction. As aptly set forth in the first paragraph of the court’s opinion:

Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses. To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, to submit to a cheek swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and [Reynolds] were not a match. With the culprit apparently still on the loose, Lowe and [Reynolds] filed suit under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which generally prohibits employers from requesting genetic information from its employees.

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Second Circuit Rejects the Department of Labor Test for the Lawful Employment of Unpaid Interns

Posted in Wage & Hour

In a much anticipated decision in Glatt v. Fox Searchlight Pictures, Inc., the United States Court of Appeals for the Second Circuit recently adopted the “primary beneficiary” test for determining whether individuals performing services for no compensation have been properly classified as “unpaid interns” or are, in fact, “employees” who have been improperly denied wages mandated by the Fair Labor Standards Act (FLSA). The district court, in an opinion that received a great deal of attention, had ruled that the plaintiffs were employees for FLSA purposes, applying the factors enumerated in the test proposed by the U.S. Department of Labor (DOL). The Second Circuit rejected the DOL’s test and, accordingly, reversed the district court’s order granting the plaintiffs’ motion for partial summary judgment and their motion to certify a collective action.

The primary beneficiary test adopted by the Second Circuit provides employers with considerably more leeway than does the DOL test to establish that unpaid interns have been properly classified as such. Nevertheless, regardless of the test a given court will apply, employers should approach the use of unpaid interns with caution and only after careful legal analysis.

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Employees Stealing Employer Confidential Information Not Immune From Criminal Charges

Posted in Whistleblower

Five years ago, in Quinlan v. Curtiss-Wright, 204 N.J. 239 (2010), the New Jersey Supreme Court adopted a balancing test for trial courts to use to determine if the unauthorized taking of confidential company documents by an employee constituted protected activity in support of the employee’s claim under the Law against Discrimination. Now, the Supreme Court has ruled that the Quinlan decision does not preclude criminal charges from being brought against an employee who steals confidential documents from her employer in support of a whistleblower lawsuit. On June 23, 2015, in a 6-1 ruling, the New Jersey Supreme Court decided State v. Saavedra, and upheld the denial of defendant Ivonne Saavedra’s motion to dismiss the indictment against her for official misconduct and theft by unlawful taking of movable property. The high court found that the State presented a prima facie showing to the grand jury with regard to the two charges, that the State did not withhold exculpatory information from the grand jury regarding defendant’s intent to use the stolen documents in her civil lawsuit, and – most importantly for employers – that the indictment does not violate due process standards or public policy by conflicting with Quinlan.

Background

Defendant Saavedra, a former employee of the North Bergen Board of Education (“Board”), filed a lawsuit against the Board alleging that the Board violated “law and public policy” by denying her overtime, improperly administrating employee vacation and leave time, violating “child study regulations,” and creating unsafe conditions in violation of the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act, and other statutes. During the course of discovery, defendant produced to the Board hundreds of documents consisting of “highly confidential student educational and medical records that were protected by federal and state privacy laws” that she removed from the Board’s office without permission. The Board reported the theft and a grand jury returned the above-noted indictment. Thereafter, the trial court denied defendant’s motion to dismiss the indictment, a decision that was subsequently affirmed by the Appellate Division.

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Supreme Court Rules an Employer’s Failure to Accommodate a Job Applicant’s Religious Practice Violates Title VII Without Proof the Applicant Requested An Accommodation

Posted in Discrimination

In its much anticipated decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court has held that a prospective employee who was turned down for a job because she wore a headscarf, which the employer suspected was worn for religious reasons, can proceed with her claim of religious discrimination under Title VII of the Civil Rights Act of 1964, although when she applied for the job the applicant never requested permission to wear the headscarf as an accommodation to her religious practices. Employers should be aware that the Court’s decision (1) imposes on an employer an affirmative obligation to reasonably accommodate the religious practices of its employees and prospective employees and (2) exposes an employer to potential liability for intentional discrimination, and thus for compensatory and punitive damages, for failing to make such accommodations.

Background

Samantha Elauf, a practicing Muslim, was interviewed for a position at an Abercrombie & Fitch store by Heather Cooke, the store’s assistant manager. Cooke was concerned that the headscarf Elauf wore to the interview would conflict with the company’s “Look Policy.” Cooke sought guidance from her district manager, Randall Johnson, advising him that Elauf was qualified for the position but wore a headscarf for what Cooke believed were religious reasons. Johnson directed Cooke not to hire Elauf because the headscarf would violate the Look Policy, as would all other headwear, religious or otherwise.

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New Connecticut Law Passed to Protect Employee Online Privacy

Posted in Policies/Handbooks, Privacy

Effective October 1, 2015, employers in the State of Connecticut are restricted from requiring or requesting employees and job applicants to provide access to “personal online accounts,” which include email, social media and retail-based Internet web sites used exclusively for personal reasons. Specifically, the new law (Public Act No. 15-6) (“the Act”), prohibits employers from requesting or requiring employees or job applicants to:

  1. provide the username and password, password, or other means of authentication to access an individual’s personal online account;
  2. authenticate or access a personal online account for the employer to view; or
  3. invite an employer to accept an invitation or be compelled to accept an invitation from an employer to join a group related to a personal online account.

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NLRB Judge Strikes Down Employee Handbook Confidentiality Policy — Including Protection of Customer and Vendor Data

Posted in Labor

An employee handbook containing policies prohibiting (1) the disclosure of confidential company information, including personnel data, (2) use of the employer’s logo or trademark except as authorized by the company and (3) obstruction and interference with government investigations, including a requirement to notify the company’s human resources representatives or law department and to obtain approval to release information for a government investigation was found to violate Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by an NLRB Administrative Law Judge (“ALJ”) in Macy’s Inc., JD(NY)-21-15. According to the ALJ’s decision, Macy’s employees when reading the policies could reasonably construe such policies to restrict their rights under Section 7 of the NLRA to engage in protected concerted activity for their mutual aid or protection. The ALJ found that these handbook policies unlawfully restricted those rights despite a “savings provision” in the employee handbook stating:

Nothing in the Code or the policies it incorporates, is intended or will be applied, to prohibit employees from exercising their rights protected under federal labor law, including concerted discussion of wages, hours or other terms and conditions of employment. This Code is intended to comply with all federal, state, and local laws, including but not limited to the Federal Trade Commission, Endorsement Guidelines and the National Labor Relations Act, and will not be applied or enforced in a manner that violates such laws.

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Supreme Court Rules ERISA Statute of Limitations Does Not Bar Breach of Fiduciary Duty Claim Challenging 401(k) Plan Investments Made More Than 6 Years Before Filing of the Claim

Posted in Employee Benefits

The statute of limitations governing breach of fiduciary duty claims brought under the Employee Retirement Income Security Act (“ERISA”) provides that such claims are untimely if not brought within 6 years after “the date of the last action which constituted the breach or violation” or “in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation” (29 U.S.C. § 1113). In Tibble v. Edison International, the U.S. Supreme Court ruled that ERISA’s statute of limitations did not bar plaintiffs from pursuing their breach of fiduciary duty claim arising out of investments made by their employer’s 401(k) plan, although the investments were made more than 6 years before plaintiffs filed their claim. The Court held that ERISA plan fiduciaries have an ongoing duty to monitor plan investments and to remove imprudent investments. As long as the alleged breach of this continuing duty occurred within 6 years of suit, a claim challenging a fiduciary’s failure to act will be timely. The Court rejected the argument that only “a significant change in circumstances” triggers the duty to remove imprudent investments.

Background

At issue in Tibble was Edison International’s 401(k) Plan (“the Plan”), establishing individual retirement investment accounts for participating employees. The value of these “defined contribution” accounts depends on the market performance of employee and employer contributions less expenses, such as management and administrative fees. The plaintiffs, participants in the Plan, alleged that the Plan’s administrators violated their fiduciary duties when they had the Plan offer six high priced retail-class mutual funds even though, as a large institutional investor, the Plan could have offered lower priced, but identical institutional-class mutual funds not available to a retail investor. Plaintiff’s maintained that because the Plan offered the higher priced retail-class funds the Plan participants were charged with wholly unnecessary administrative fees.

Three of these higher priced mutual funds were added to the Plan in 1999 and three were added in 2002. Plaintiffs brought their suit in 2007. The district court concluded that plaintiffs could challenge only the decision to offer the three mutual funds offered by the Plan in 2002 because ERISA’s 6-year statute of limitations barred plaintiffs’ claim insofar as it was premised on the three mutual funds added to the Plan in 1999. The Ninth Circuit Court of Appeals affirmed. The Court of Appeals found that plaintiffs had not established “a change in circumstances that might trigger an obligation to review and to change investments within the 6-year statutory period.”
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Sixth Circuit Upends EEOC Victory in Telecommuting Case

Posted in Disability

We previously reported on a decision by a panel of the United States Court of Appeals for the Sixth Circuit in Equal Opportunity Employment Commission v. Ford Motor Co., in which the panel held that the EEOC was entitled to a jury trial on its claim that Ford discharged an employee in violation of the Americans with Disabilities Act (“ADA”) after it denied her request to work from home 4 days per week as an accommodation for her irritable bowel syndrome (“IBS”). In an en banc decision the Sixth Circuit has now reversed the original panel’s decision, concluding that the district court properly granted Ford’s motion for summary judgment on the ADA claim. In so ruling, the Court credited Ford’s business judgment that the employee’s presence in the work place was an essential function of her job, and thus her request to telecommute four days per week was not a request for a reasonable accommodation to which Ford had to accede. The EEOC had heralded the original panel’s decision as a major victory. The Sixth Circuit’s en banc reversal of that decision should be cause for equal celebration by employers.

Background

Jane Harris, who was employed by Ford as a resale steel buyer, suffered from IBS, the symptoms of which included fecal incontinence. Harris’ supervisor allowed her to work a flex-time telecommuting schedule on a trial basis, but considered the trial unsuccessful because Harris was unable to establish regular and consistent work hours. Also, when working from home, Harris made mistakes and missed deadlines because she could not immediately access suppliers. Although Ford permitted other resale buyers to telecommute one or two days per week on a predictable schedule, the company considered the position not suitable for telecommuting up to four days per week on an unpredictable schedule because the essence of the job was group problem-solving, which required a buyer to be available to interact with members of the resale team, suppliers and others at Ford. Harris rejected alternative accommodations offered by the company, including seeking another job within the company more suitable to telecommuting. The company continued to be dissatisfied with Harris’ performance and placed her on a performance enhancement plan. After her supervisors determined that Harris had failed to meet the objectives of the plan, the company terminated her employment.

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NYC Law Limiting Employer Use of Credit Checks Signed by Mayor

Posted in Privacy

On May 6, 2015, New York City Mayor, Bill De Blasio, signed legislation proposed by the City of New York likely to limit an employer’s ability to use credit checks when making hiring and retention decisions. The law goes into effect 120 days from May 6, 2015, or on September 3, 2015. We analyzed the new law in detail in a recent blog.

For questions about this blog or about the use of background checks and applicable policies and procedures in general, please contact an attorney in the Gibbons Employment & Labor Law Department.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.
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