May 15, 2013
EEOC’s first GINA suit settled for $50,000
I’m a fan of the The Big Bang Theory — the TV show, that is.
Jim Parsons, as Dr. Sheldon Cooper in “The Big Bang Theory”
For the uninitiated, it’s a CBS sitcom revolving around the lives of four Caltech scientists, including the narcissistic theoretical physicist, Dr. Sheldon Cooper, who once proclaimed his genetic superiority by divulging that he has, “a sister with the same basic DNA mix who hostesses at Fuddruckers.”
The Big Bang cast can joke all they want about their family history. However, Tulsa, OK-based Fabricut, Inc. has learned that misusing such information at work can be costly, for it has agreed to pay $50,000.00 to settle the EEOC’s first lawsuit under the Genetic Information Nondisclosure Act (GINA).
According to the EEOC’s suit, Fabricut offered Rhonda Jones a job and then sent her to a contract examiner for a pre-employment drug test and physical. As part of the exam, Jones was subjected to medical testing and required to disclose disorders in her family medical history. The examiner concluded that more testing was needed to determine whether she suffered from carpal tunnel syndrome (CTS). Fabricut then asked Jones to be evaluated for CTS by her personal physician. She complied, and her doctor concluded that she did not have CTS. Nevertheless, the company rescinded its job offer because its contract examiner indicated that she did have CTS.
The EEOC alleged this violated GINA. Enacted in 2009, GINA is a federal law that makes it unlawful for covered employers to discriminate against employees on the basis of their genetic information, including family history. It also restricts employers from requesting, requiring or purchasing such information. The EEOC also alleged that Fabricut violated the Americans with Disabilities Act (ADA).
In the consent decree settling the case, Fabricut agreed to pay $50,000.00, plus
- Post an anti-discrimination notice to employees
- Disseminate anti-discrimination policies to employees
- Provide anti-discrimination training to employees with hiring responsibilities.
What you need to know: The EEOC has now identified genetic discrimination as one of it enforcement priorities. According to EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.” Thus, employers and employees need to understand their rights and responsibilities under GINA.
For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
May 8, 2013
Here today, gone tomorrow — intermittent leave under the FMLA
Last week I had the privilege of speaking at Lakes Country Service Cooperative to a group of HR professionals regarding recent developments in employment law. One of the participants asked about an employee’s right to take a day off here and there to help care for a parent. The question struck a personal chord with me because I’ve recently been dealing with an ailing dad and multiple days away from the office to visit him in the hospital and to help my mom. I’m happy to report that he’s now making a good recovery.
For employers covered by the Family and Medical Leave Act, the participant’s question is whether the FMLA allows an eligible employee to take intermittent leave to care for a family member with a serious health condition. By definition, intermittent leave under the FMLA is “leave taken in separate blocks of time due to a single qualifying reason,” and it may be used for this purpose. Specifically, federal regulations provide that:
Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.
Of course, this only applies to eligible employees of employers who are covered by the FMLA. Also, the FMLA has detailed definitions of what qualifies as a “serious health condition” or “serious injury or illness” which would trigger the right to intermittent leave, and another FMLA regulation describes how intermittent leave is to be scheduled.
What you need to know: Based on last week’s LCSC discussion, navigating through the intersecting laws that grant employees the right to time away from work continues to be a major challenge for many employers. The FMLA is only one of those laws, and intermittent leave is just one type of leave that covered employers must be prepared to provide to eligible employees.
For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
April 10, 2013
The comp time myth – changes on the way?
Strange fascination, fascinating me
Changes are taking the pace
I’m going through
Ch-ch-ch-ch-ChangesChanges – David Bowie, 1971
Last week in The Comp Time Myth I commented on how the Fair Labor Standards Act (FLSA) prohibits the use of compensatory time (that is, paid time off in lieu of overtime pay) by private sector employers. That may be about to change.
Yesterday, U.S. House Republicans, led by Rep. Martha Roby (R-AL), introduced the Working Families Flexibility Act of 2013 (HF 1406). The law would amend the FLSA to allow private sector employers to provide paid time off for overtime hours worked. According to Rep. Roby, the Act:
• Allows employers to offer employees a choice between cash wages and comp time for overtime hours worked. Employees who want to receive cash wages would continue to do so.
• Protects employees by requiring the employer and the employee to complete a written agreement to use comp time, entered into knowingly and voluntarily by the employee.
• Retains all existing employee protections in current law, including the 40 hour work week and how overtime compensation is accrued. The bill adds additional safeguards for workers to ensure the choice and use of comp time are truly voluntary.
• Allows employees to accrue up to 160 hours of comp time each year. An employer would be required to pay cash wages for any unused time at the end of the year. Workers are free to ‘cash out’ their accrued comp time whenever they choose to do so.
What you need to know: Despite the tremendous changes that have taken place in society — and particularly in the workplace – over the last 75 years, the FLSA has not been substantially revised since it was passed in 1938. It’s time for a change. By removing the comp time prohibition, the Working Families Flexibility Act would give employers and workers a much-needed tool for creating the flexible workplaces that are necessary to meet the needs of today’s American families. Contact your congressional delegation to express your views on this proposed change.
For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
April 3, 2013
The comp time myth
Some days won’t end ever and some days pass on by.
I’ll be working here forever, at least until I die.
Dammed if you do, damned if you don’t
I’m supposed to get a raise next week, you know damn well I won’t.Workin’ for a Livin – Huey Lewis & the News, 1982
Sometimes it feels like we’ll be working for forever. When it does, we look for any chance to get away, especially when we have some paid time off coming. And sometimes we need and value the time off more than the paycheck itself.
So, why not reward employees who work a bit of overtime by giving them paid time off in lieu of overtime pay? It’s a great concept: if employees work overtime (that is, more than forty hours in a workweek under the federal Fair Labor Standards Act), they “bank” the extra hours and use them like extra vacation or other paid time off in the future. Although it seems like a great concept, it’s prohibited by the FLSA unless the employer is a public agency that is a state, a political subdivision of a state, or an interstate governmental agency.
What you need to know: There are ways for private sector employers to provide a comp time benefit for exempt employees (that is, employees who are not covered by the FLSA), but such programs must be carefully written so as to not jeopardize their exempt status. More importantly, comp time cannot be offered as an alternative to overtime pay to non-exempt private sector employees. Public agencies may, however, offer comp time to non-exempt employees.
For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
March 22, 2013
Contractor misclassifications continue to put employers at risk
In a story published today, Employees misclassified as contractors can cost firms a bundle, Minnesota Public Radio reports that contractor misclassifications continue to put employers at risk. It describes the problem very well, so independent contractors and the companies using them should read it.
For more information on this topic, see my previous articles on independent contractor issues, or contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
March 20, 2013
Save the date!
The 2013 West Central Minnesota Employment Law Update will be held on Thursday, June 6 at Alexandria Technical and Community College. The line-up will include:
- Hot off the Press – the latest in employment law developments, presented by yours truly
- What employers need to know about the Affordable Care Act, presented by attorney Dorraine Larison
- Legal implications of workplace violence & bullying, presented by attorney Sara Gullickson McGrane
- What all employers need to know about labor law, presented by attorney Mike Moberg
- Panel discussion with presenter Q&A
Some comments from prior updates:
- Great information
- Loved the knowledge and collaboration
- Loved the panel discussions
- All the professionals were “on the spot”
Continuing education credit will be available. Additional details and registration information will be published soon, so check back here often, or contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com for additional details. This will be our 10th annual update, and we hope that you can join us!
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
March 8, 2013
USCIS adopts new Form I-9 for immediate use
U.S. Citizen and Immigration Services (USCIS) today announced the adoption of a new Form I-9. According to USCIS, effective today:
- Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.
- Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.
- After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.
For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
March 6, 2013
Laws and sausage
Laws are like sausages. Better not to see them being made.
John Godfrey Saxe
It’s that time of year again. The Minnesota Legislature and Congress are both in session, so that gives us a chance to see what sort of legislation is being ground up and processed into what could become the new law of the land. Here are a couple of work-related bills worth watching.
Minnesota H.F. 506: This proposed law would void non-compete agreements in all but a few limited circumstances. Generally speaking, it would bar non-competes between employers and employees. This law would have a tremendous impact on any employer that uses non-competes as a tool for protecting their business interests.
Minnesota H.F. 690 /Minnesota S.F. 523: These bills would amend Minn. Stat. § 364.021 by prohibiting private sector employers from considering an applicant’s criminal record or criminal history until after the applicant has been selected for an interview. This restriction already exists for public employers, but the new law would expand this to private employers as well.
H.R. 675: Introduced in the U.S. House of Representatives, this bill, dubbed the Part-Time Worker Bill of Rights Act of 2013, would amend the Family and Medical Leave act by removing from the law the requirement that before an employee is eligible for FMLA leave, s/he must work 1,250 hours during the year preceding the request for leave. Thus, if this bill were to become law, virtually any part-time employee with at least one year of service with an employer covered by the FMLA would gain FMLA leave rights.
For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com. If you have concerns about the impact of this legislation, please contact your duly elected senators and representatives.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
February 27, 2013
Questions — and answers — about “legitimate business reasons”
Questions, I’ve got some questions
I want to know you
But what if I could ask you only one thing
Only this one time, what would you tell me?– Jack Johnson, Questions (2006)
In the song Questions, Jack Johnson ponders the myriad of questions swirling around in his head about a new relationship. What are your intentions, suggestions and impressions? Will you try?
When we’re thinking about something new and exciting, our main curiosity is this: where will this lead? Our hope is that it will lead to a good place.
When bad things happen, we also have questions. Most often the question is, “Why?”
So it is when an employer must discipline or discharge an employee. When that happens, the question swirling around in the employee’s head is often, “Why?” If the employer cannot offer legitimate business reasons for its actions, not only is the employee left scratching his or her head and wondering why, but the employer may struggle to defend the ensuing lawsuit when the employee claims the answer to “Why?” is discrimination or some other legal wrong.
The importance of having legitimate business reasons for an employment decision was recently reiterated in the case of Wood v. SatCom Marketing, LLC. In this case, Jenna Wood sued her former employer, SatCom, alleging violations of the Minnesota Whistleblower Act, Minnesota Human Rights Act, common law of wrongful termination, and the Fair Labor Standards Act. The case made its way to the United States Court of Appeals for the Eighth Circuit where the court rejected Woods’ claims after noting that while there was some evidence to support Wood’s claim, SatCom presented evidence of its legitimate business reasons for suspending and then dismissing Wood.
Specifically, the Court credited SatCom’s evidence that Wood severely neglected a data entry assignment, was late for work and failed to submit a required schedule. This, the Court said, supported the company’s decision to suspend Wood. The Court also noted that following her suspension, Wood disregarded a company directive by failing to return to work with a signed copy of an action plan and then twice violated the plan itself. Therefore, the Court held, SatCom had legitimate non-discriminatory reasons for its decision to discharge Wood. Further, the Court ruled that Wood did not present any evidence that SatCom’s stated reasons were a pretext for any unlawful discrimination. Thus, the Court affirmed the trial court’s decision to dismiss the case.
What you need to know: When employees challenge the adverse actions taken against them, employers have a much easier time defending the claims when they can present evidence of the legitimate non-discriminatory business reasons for their actions. Moreover, when those reasons are made clear to an employee before the adverse action, the employee may be less likely to challenge the employer’s decision because he or she will already have the answer to the question: s/he will already know why.
For more information about this article, please contact me at alexandriamnlaw.com or taj@alexandriamnlaw.com.
Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA
