HR Legal Updates

Special thanks this month to Audrey E. Mross, Labor and Employment Attorney for Munck Carter, LLP, for this month’s legal update. Mross provides free legal updates to her email group. To be added, contact her at amross@munckcarter.com.


EEOC on Receiving End of Insult and Injury

Not only did the 4th Circuit affirm a lower court’s summary judgment ruling in favor of the employer, it quoted much of the harsh critique penned by the district court judge in its decision and then added some of its own.  The story unfolds with the EEOC launching an investigation into the criteria used by Freeman to hire new employees.  The skirmish started with credit checks and was expanded to include criminal checks.  The EEOC claimed that use of these criteria had a disparate impact on black and male job applicants.  A class action was approved and the EEOC provided an expert’s statistical analyses to support their theory of a Title VII violation.  Prior to trial, the court granted Freeman’s motion to exclude the expert’s report, agreeing that it was “rife with analytical errors” and “completely unreliable” under the Federal Rules of Evidence.  The EEOC appeals.  The 4th Circuit takes little time to affirm the grant of summary judgment to Freeman, agreeing that the report contained “pervasive errors and utterly unreliable analysis.”  But there’s more.  One judge wrote a concurrence which listed other cases in which the same expert’s work was found to be unreliable, including EEOC v. Kaplan Higher Education Corp. (6th Cir. 2014).  This judge summed up the concurrence by faulting the EEOC for trying to defend the expert’s work and chided the agency for abuse of its broad discretion.  EEOC v. Freeman (4th Cir. Feb. 2015).   This case does not provide much-anticipated clarity on the viability of the EEOC’s position on use of criminal records as a hiring criteria, but it is an excellent read for any employer on the receiving end of what feels like overreaching by a certain enforcement agency.


Not So Fast, My Friend

On February 16, Judge Andrew Hanen of the U.S. District Court in Brownsville TX ruled in favor of the State of Texas and 25 other states by issuing a temporary injunction, effectively halting President Obama’s order to stop deportation of certain immigrants and issue some of them work permits, Social Security eligibility and eligibility for other federal and state benefits.  The White House argued it was exercising its prosecutorial discretion via the executive order but the states and the judge believed the Administrative Procedure Act, which requires notice and a period for comment before action is taken, was violated.  For now, both the Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parental Accountability (DAPA) programs are on ice.  The White House plans to appeal.


Low Prices and Higher Wages

Last week, retailer Wal-Mart announced that it will bump all non-exempt worker’s pay to at least $9/hour this April and to $10/hour by February 2016.  The announcement letter from the CEO can be found at http://blog.walmart.com/in-letter-to-associates-walmart-ceo-doug-mcmillon-announces-higher-pay.  With states and local governments ratcheting up their minimum wage figures well above the federal minimum wage of $7.25/hour, at some point it becomes administratively easier for multi-state employers to go the highest common denominator.  Food for thought.


Oh Lord, Grant Me Patience

Yet another misguided soul refused to provide a social security number to his prospective employer and then cried “religious discrimination!” when he did not get the job.  The individual did not win his case (Yeager v. FirstEnergy Generation Corporation (6th Cir. Feb. 2015) and he would benefit from reading a great 62-page treatise on the subject from our friends at the IRS.  It can be found at www.irs.gov/pub/irs-utl/friv_tax.pdf.


That Ship Has Sailed

Back in 2012, a federal appellate court held that severance payments were not wages subject to FICA taxes, prompting some employers to file for tax refunds on those payments. In 2014, that door slammed shut via the U.S. Supreme Court’s decision in U.S. v. Quality Stores, Inc., with a holding that severance payments were indeed subject to Social Security and Medicare taxes.   Apparently some employers are still filing for tax refunds from the IRS, so they have issued an opinion letter making clear no more refunds for taxes withheld from severance payments will be made.  Message received. See http://www.irs.gov/pub/irs-drop/a-15-08.pdf.


Hiring Help

The EEOC and DOL have partnered on a new hiring guide aimed at federal contractors entitled “Recruiting, Hiring, Retaining and Promoting People with Disabilities.” The revised regulations for affirmative action plans under section 503 of the Rehabilitation Act require annual evaluation of an employer’s workforce against a 7% disabled utilization goal, so some contractors may want to do more in attracting and retaining the disabled. The guide is at  http://www.whitehouse.gov/sites/default/files/docs/employing_people_with_disabilities_toolkit_february_3_2015_v4.pdf.


Neat Hat Trick

Company has a dress code that says “Baseball caps are prohibited except for [name of employer] baseball caps worn with the bill facing forward.”  Union files an unfair labor practice charge, claiming this rule violates employees’ rights to wear union insignia.  The ALJ agrees with the union and OK’s an order barring the employer from enforcing its “discriminatory hat policy.”  NLRB, upon review, doesn’t think it’s discriminatory but says it’s overbroad because it prohibits employees from engaging in the protected activity of wearing caps bearing union insignia.  Next stop for review is the 11th Circuit, who sees it a different way.  They opine that the policy limits the type of hat that can be worn, but it does not prevent an employee from slapping a union insignia on that same hat, and denies the NLRB’s petition for enforcement of the order. World Color (USA) Corp. v. NLRB (D.C. Cir. Jan. 2015).  Lesson learned?  Don’t overreach on your dress codes . . . most employees have a federally protected right to wear union insignia.


There Oughta be a Law

Just in case common sense is no longer a job requirement for being hired in the public sector, a bill was filed that expressly prohibits federal employees from perusing porn while on the job (H.R. 901).  Really.  A copy of the bill can be found at https://www.congress.gov/bill/114th-congress/house-bill/901. The bill appears to be in response to an investigation last year of an EPA salaried employee who earns $120K per year, downloaded 7000 plus files of pornography and watched between two to six hours of porn per day, at work.  The senior official was placed on paid leave last September, pending investigation, and may still be on the payroll. Despite an outcry of righteous indignation from Congressional members last fall, I can’t locate any confirmation that he has been let go.  Someone please tell me that I’m wrong.


PEO Uh Oh

A professional employer organization based in MN was tagged with 243 Form I-9 violations which cost them more than $227K in civil money penalties.  What did they do wrong, according to the U.S. Department of Justice?  The PEO contracted with a temp staffing agency to on-board new hires for their clients, including completion of the I-9.  The local staffer gave the I-9 to the new hire for completion, looked at the new hire’s documents which prove identity and authorization to work, and made a copy of those documents.  The I-9 and document copies were then shipped to the PEO in MN, where a PEO employee looked at the copy of the documents and completed the employer attestation in Section 2 of the I-9 form. The problem is, the form clearly states that the person who completes Section 2 is attesting to the fact that he or she looked at the original documents, not copies. The decision can be read at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume11/1242.pdf.


More Fun With FMLA

The DOL announced a change to its definition of “spouse” under the FMLA, in order to confer FMLA rights to same-sex couples.  Under the prior wording, the couple would be seen as spouses if they lived in a state that recognized same-sex marriages.  The new version looks to the “place of celebration” to determine eligibility, regardless of where they choose to live.  For couples marrying outside of the U.S., the DOL will keep the current rule of recognizing them as spouses for FMLA purposes if the marriage was valid where entered into and would be considered valid in at least one U.S. state. The change takes effect March 27, 2015. Here is a link to the announcement — http://www.dol.gov/whd/fmla/spouse/.


That’s Sick

The Healthy Families Act, a federal bill that would mandate seven days of paid sick leave per year for employees who work for an employer with 15 or more employees, is back.  It has been re-introduced in Congress as H.R. 932 and S. 497.  The benefit would accrue at a rate of one hour of sick pay for every 30 hours worked, up to a max of 56 hours per year.  Smaller employers would be required to offer unpaid time off to their employees, for the same reasons. You can see full text of the bill and track it’s progress at www.congress.gov.


Accommodation? No

Plaintiff alleged that her new boss belittled her which exacerbated her bipolar depression.  The only requested accommodation was a switch in supervisors (remember when this was referred to as a bossectomy in an ADA case from a few years back?). Once again, the request fails because a request to transfer to a new supervisor is unreasonable as a matter of law.  Alsup v. U.S. Bancorp (E.D. Cal. Jan. 2015).


Accommodation? Yes

Plaintiff had end-stage renal disease and physically could not provide a urine sample as part of a post-offer drug screen.  He offered to provide hair, blood or any other item that could be tested for drugs but the employer stuck to its “urinalysis only” policy and rescinded the job offer.  In the end, the employer settled with the EEOC rather than take the ADA claim to trial.  The settlement included money for the plaintiff and revision of the drug-free workplace policy and the drug testing policy, to include the possibility of reasonable accommodation in the testing process including use of other testing methods.  EEOC v. Kmart Corp. (D. Md.  2014)

 

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