November 30, 2010

Savvy employers get GINA safe harbor under new EEOC regulations

Posted in Genetic Information, Genetic Information Non-Discrimination Act, Genetic Information Non-discriminaton Act (GINA) tagged , , , at 8:44 pm by Tom Jacobson

The federal Genetic Information Non-Discrimination Act of 2008 (GINA) may sound like a law that employers can ignore.  The name alone suggests that it should only apply to employers who are  involved in medical research or who require in-depth pre-employment medical examinations that delve into to the genetic makeup of applicants or employees.  However, GINA applies to practically every employer in the U.S. with fifteen or more employees, and its restrictions are quite broad.

For example, GINA prohibits employers from discriminating against employees or applicants because of genetic information, and it limits the situations under which employers may acquire and retain genetic information.   This may still seem like the law would rarely apply.   Afer all, what employer would ask for information about an applicant’s or employee’s DNA?  However, the definition of “genetic information”  is extremely broad.  It includes not only information about an individual’s genetic tests and the genetic tests of his or her family members, but it also includes “the manifestation of a disease or disorder in family members …”.   Thus, questions about “family history” during work-related medical examinations become problematic.

Although GINA generally prohibits employers from acquiring their employees’ and applicants’ genetic information, there are exceptions, such as when genetic information is acquired inadvertently.  New regulations passed by the Equal Employment Opportunity Commission have now clarified how employers can take advantage of this exception.  The regulations, which went into effect on January 10, 2011 state that “If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.”  The new regulations also provide sample language that an employer can use to provide this notice.  If an employer receives genetic information after giving such notice, the employer will enjoy a “safe harbor” defense because the receipt will be deemed inadvertent.

Thus, employers who seek medical information about applicants and/or employees should provide an appropriate GINA notice to those individuals.  Doing so will help preserve this safe harbor defense for those savvy employers.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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November 23, 2010

Facebook firings and the First Amendment

Posted in Discrimination, Employee Handbooks, Employee Privacy, First Amendment, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , at 10:10 am by Tom Jacobson

It’s a free country.  Sort of.

The recent firing of Alisha Arnold by Eagan, MN-based TempWorks Software adds yet another layer to the complex world of work and social media.  According to KSTP-TV, Arnold was fired after she and her husband created a controversial website  that asked the public to vote for or against the abortion of their unborn child (see Apple Valley Woman Who Launched Abortion Voting Site Is Fired, http://kstp.com/article/stories/S1851233.shtml?cat=0).  According to a memo KSTP obtained, TempWorks reasoned that Arnold’s postings posed a “grave risk to the reputation of the company…”.

But isn’t it a free country?  Doesn’t the First Amendment prohibit an employer from firing an employee who speaks her mind?  Not necessarily.  Although public (that is, governmental) employers must be cautious about First Amendment issues, the First Amendment does not apply to  private employers such as TempWorks.  So, Arnold will not be protected by the First Amendment even though TempWorks apparently fired her because of what she said and how her comments/actions somehow damaged the company’s reputation.

Even though private sector employers really do not have to worry about the First Amendment, there are plenty of other reasons why they should be cautious about firing employees over their Facebook posts or other on-line activities.  For example, Minnesota law prohibits employers from discharging employees because they engage in the use or enjoyment of lawful consumable products (such as alcohol or tobacco), if the use or enjoyment takes place off the premises of the employer during nonworking hours (consider a Facebook post of an employee at a party).  And, other laws prohibit employers from disciplining or discharging employees because of many other legally protected characteristics (consider an employee’s own website advocating civil rights of some kind).

So, even if a private sector employee’s on-line activities pose a “grave risk to the reputation of the company,” those activities may be protected by something other than the First Amendment, and that should cause employers to proceed with caution before taking action.  Well-written Internet and social media policies can help define everyone’s respective rights and responsibilities.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

November 18, 2010

“Tomboy” firing costs company $50K+

Posted in Discrimination, Gender / Sex, Stereotyping tagged , , , at 2:20 pm by Tom Jacobson

The verdict is now in, and Heartland Inns will have to pay.

In the inaugural post on my Human Resource Legal Resource blog, Ellen DeGeneres & Gender Stereotyping under Title VII (http://bit.ly/cawVSt), I commented on the case of Lewis v. Heartland Inns of America. In that case an Iowa hotel fired a female employee because she had an “Ellen DeGeneres kind of look.”  She was also described as “tomboyish,” while a manager said it was important for women at the hotel’s front desk to be ”pretty” and that Ms. Lewis lacked the “Midwestern girl look.” 

Ms. Lewis sued the hotel under the theory that the hotel’s decision was unlawful gender stereotyping prohibited by Title VII of the Civil Rights Act of 1964.  The trial court initially dismissed her case, but the federal Eighth Circuit Court of Appeals’ disagreed and sent the case back for a trial.

The case has now been tried, and the verdict is in.  On November 12, 2010 the jury sided in favor of Ms. Lewis and awarded her $30,000.00 in punitive damages, $19,000.00 for emotional distress, and $1,800.00 for lost wages. 

As noted in in my initial post, the case is good reminder of the expansive scope of Title VII and of the importance of making decisions about employees based on performance and not pre-conceived gender stereotypes.  The jury’s verdict, which does not take into account the significant legal fees that the hotel undoubtedly incurred in defending the lawsuit or Ms. Lewis’s attorneys’ fees and court costs which Heartland Inns will likely be ordered to pay,  now stands as a reminder of just how costly Title VII violations can be.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

November 12, 2010

NLRB challenges Facebook firing

Posted in Collective Bargaining, Employee Handbooks, Internet Policies, National Labor Relations Act, Social Media in the Workplace, Social Networking tagged , , , , at 1:17 am by Tom Jacobson

In a case to be watched, the National Labor Relations Board claims that an employer illegally fired an employee who criticized her supervisor on Facebook.  The case involves Dawnmarie Souza who was a paramedic for  American Medical Response.  Souza posted her negative commentary from her home computer, and this prompted her co-worker Facebook friends to respond with their own comments supporting Souza.  That, in turn, lead Souza to post more criticism of her supervisor.  American Medical Response then fired Souza because her posts violated the company’s Internet policies.

The NLRB has now stepped into this Facebook firing fray.  The NLRB is a federal agency charged with safeguarding employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

According to the NLRB, Souza’s firing violated the National Labor Relations Act.  The NLRA is a federal law that gives employees the right to form unions, and it prohibits employers, whether unionized or not, from interfering with their employees’ right to discuss working conditions or unionization.  In Souza’s case, the NLRB claims that American Medical Response’s Facebook rules are overbroad and improperly limit the employees’ right to discuss working conditions.

This is the first case where the NLRB has made the argument that employees engage in protected activity when they use social networking sites to criticize their employers or supervisors.  The outcome of the case could have a significant impact on how employers implement and enforce their Internet and social networking policies.  A hearing on the case is scheduled to begin on January 25, 2011.

For more detail on the story, see NLRB: Workers’ rights extend to Facebook, http://bit.ly/cl9BbX.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

November 3, 2010

Is viewing online porn at work employment misconduct if there’s no policy prohibiting it?

Posted in Computer Use, Employee Handbooks, Employees' Privacy, Misconduct, Pornography at Work, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , , at 7:47 pm by Tom Jacobson

Blayne Brisson was a full-time utility-maintenance supervisor for the city of Hewitt, MN.  After someone complained that they had seen him using his work computer to view pornography, the city conducted an investigation which uncovered more than 150 pornographic images on his computer.  Brisson later admitted the allegations.

After the city fired Brisson, he filed for unemployment.  The unemployment law judge (ULJ) disqualifed Brisson for unemployment benefits on the basis that he had committed employment misconduct.  Brisson then appealed the ULJ’s determination to the Minnesota Court of Appeals where he argued that he did not commit employment misconduct because the city’s employee handbook did not prohibit viewing pornography on the city’s computers.

In a November 2, 2010 decision the Court of Appeals rejected Brisson’s appeal after concluding that his “use of his employer’s computer to open pornographic e-mail attachments and access pornographic websites seriously violated a standard of behavior that the employer had a right to reasonably expect of [Brisson], even though the employer had not adopted a policy that prohibited [Brisson]’s conduct.”

The court’s decision gives us some assurance that there are types of misconduct that are so obvious that no written policy is needed to prohibit them.  It also highlights the growing problem of the abuse of employers’ technologies.  Despite the court’s assurances in the Brisson case, the best practice is to develop policies that define employees’ technology rights and responsibilities.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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