Meal and Rest Breaks: The Brinker Wait is Over

Ever since the California Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum) in October 2008, California employers have anxiously awaited the California Supreme Court’s standards for meal and rest breaks provided to non-exempt employees.   To read our full alert authored by Pascal Benyamini and Fey Epling click here.

9th Circuit Follows 4th, 6th, 7th, 8th, 11th, DC and Federal Circuits in Finding the Relaxation of an Attendance Policy is Not Always a Reasonable Accommodation

By: Fey Epling

 In Samper v. Providence St Vincent Medical Ctr 2012 DJDAR 4559 (9th Cir. 04/11/2012), the plaintiff, a part-time neonatal intensive care unit (“NICU”) nurse sought an accommodation from her employer, Providence St. Vincent Medical Center, that would allow her to opt out of its attendance policy which permitted five unplanned absences in a rolling twelve month period, in addition to other scheduled absences.  When Providence refused the request, Samper sued for failure to accommodate her disability (fibromyalgia) in the federal district court for the District of Oregon, which granted summary judgment for the employer.  The 9th Circuit affirmed, citing to its many sister courts, finding that “[t]he commonsense notion that onsite regular attendance is an essential job function could hardly be more illustrative than in the context of a neonatal nurse.”  The 9th Circuit provided some guidance and reassurance to employers in distinguishing as “an unusual case” Humphrey v. Memorial Hosps. Ass’n., in which the court stated, “regular and predictable attendance is not per se an essential function of all jobs.”

The Samper court does not, however, grant employers carte blanche to refuse similar accommodations in all situations, making clear that the inquiry remains highly fact-specific.  Employers should note the court’s favorable discussion of  Providence’s long history of accommodations and interactive processes with the plaintiff prior to her termination.

How ICE Can Freeze Your Business Operations!

By: Pascal Benyamini

ICE, the U.S. Immigration and Customs Enforcement, was formed in 2003 “as part of the federal government’s response to the 9/11 attacks and its mission is to protect the security of the American people and homeland by vigilantly enforcing the nation’s immigration and customs laws.” With an annual budget of more than $5 billion and more than 19,000 employees in over 400 offices in the U.S. and around the world, ICE is the largest investigative agency in the United States Department of Homeland Security.  ICE may conduct raids or sweeps at a particular place of business. ICE can also send Notices of Inspections to employers to alert them that it will be inspecting their I-9s and hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations.  ICE’s increased focus is on holding employers accountable for their hiring practices and their efforts to ensure a legal workforce.  ICE also seeks to ensure that employers are compliant with I-9 forms and hiring records.

In the event of audits or raids, employers’ non-compliance may result in civil penalties and lay the groundwork for criminal prosecution of employers who have knowingly violated the law.  According to ICE’s Assistant Secretary John Morton, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces.”  He added that ICE is “increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”

While the presence of illegal aliens at a business does not necessarily mean the employer is responsible, consulting with legal counsel is paramount to limiting your potential exposure in your hiring practices.

Revised guidelines for both employers and veterans regarding the Americans with Disabilities Act

By: Marion Cooper

On February 28, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the publication of revised guidelines for both employers and veterans regarding the Americans with Disabilities Act (the “ADA”).  The new publications address changes to the ADA’s definition of the term “disability”, which was broadened under the ADA Amendments Act of 2008 to include, among other conditions, a wider range of military service related disabilities such as traumatic brain injury and post-traumatic stress disorder.  Before the amendments, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.

With large numbers of veterans returning from service in Iraq and Afghanistan, attention is now being focused on veterans’ challenges in obtaining and successfully maintaining civil employment.  According to the EEOC, approximately “25 percent of recent veterans report having a service-connected disability, as compared to about 13 percent of all veterans.”  And, as reported by the Bureau of Labor Statistics in October, unemployment for post-9/11 veterans hovers around 12 percent, which is more than three percentage points higher than the overall unemployment rate.  The EEOC wants “veterans with disabilities to know that the EEOC has resources to assist them as they transition to, or move within the civilian workforce,” said EEOC Chair Jacqueline A. Berrien.

The Guide for Veterans answers questions about an injured veteran’s rights when returning to civilian life and explains the kind of work adjustments or reasonable accommodations that may help veterans be successful in the workforce.  It explains that, in addition to the ADA protections for disabilities, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) protects veterans from discrimination on the basis of their military status.

The Guide for Employers explains how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities and differentiates the protections available to veterans with disabilities under the ADA from the protection afforded to veterans under USERRA from discrimination in employment.  The Employer’s guide provides information on additional laws and regulations that employers may find useful if they decide to make recruiting and hiring veterans with disabilities a priority.

Both guides may be found at the EEOC website at:

http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

EEOC Discrimination Charges Reach Record High

By: Aaron M. Moyer

According to the EEOC’s recently released statistics, the Commission received a record number of new employment discrimination charges last year.  For fiscal year 2011, the Commission received 99,947 charges of employment discrimination.  The Commission also obtained $455.6 million in relief, another record high.  This is a $51 million increase from the previous year and continues the upward trend of the past three years.

The statistics provided by the EEOC offer employers some guidance on the hottest issues before the Commission right now:

• Charges alleging retaliation under all of the statutes enforced by the EEOC were the most numerous, accounting for 37.4% of all charges.
• The agency’s enforcement of disability claims under the ADA resulted in a total of $103.4 million of the total $455.6 million obtained.
• The most common alleged disabilities were back impairments, orthopedic impairments, depression, anxiety disorder and diabetes.
• 2011 was the first full fiscal year of the EEOC’s enforcement of the Genetic Nondiscrimination Information Act (GINA).  Only 245 GINA charges were filed, none of which proceeded to litigation.

According to EmploymentLaw360, in a January 2012 speech to the New York State Bar Association, EEOC Commissioner Chai Feldblum discussed the growing number of EEOC cases alleging ADA violations in the service sector, particularly the healthcare and restaurant industries.  The Commissioner cautioned employers in specific areas: one-size-fits-all attendance policies, medical questionnaires that are unrelated to the job at hand, and rescinding job offers strictly on the basis of disability.  h/t Employment Law 360 (http://www.law360.com/employment/articles/303314?nl_pk=6f740239-75f3-4574-ac7d-3486fe3ce6dd&utm_source=newsletter&utm_medium=email&utm_campaign=employment)

The EEOC’s complete statistics can be found at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

NLRB Clarifies Standards to be Applied to Claims Involving Employee Use of Social Media

By: Jerrold J. Wohlgemuth

Acting General Counsel Lafe Solomon recently issued an NLRB Report clarifying the standards to be applied to claims involving employee use of social media.  The Report, which summarized recent cases concerning employer policies restricting employee use of social media, like Facebook, as well as cases involving discipline imposed in response to postings on social media, makes clear that the Board will apply traditional analysis to issues concerning social media.

With respect to employer policies addressing the use of social media, the cases show that the Board’s focus will be on whether the policy in question “would reasonably tend to chill employees in the exercise of their Section 7 right” to engage in protected concerted activity.  Employer policies will be found to be unlawfully overbroad to the extent they directly prohibit using social media to discuss terms and conditions of employment, or could “reasonably be construed by employees as prohibiting” such discussions.  Policies that prohibit “disparaging” comments about the employer, “inappropriate” references to the work environment, and “unprofessional” or “disrespectful” postings are unlawfully overbroad because they could reasonably be construed by employees as prohibiting complaints about the work environment or discussions about the terms and conditions of employment.  To pass NLRB muster, employers should focus their social media policies on the same type of activities that are prohibited in the workplace, such as harassment, threats and discrimination, and should also include a specific savings clause to make clear that the policy is not intended to limit or interfere with the right of employees to discuss wages, hours and the terms and conditions of employment.

With respect to cases involving discipline or the discharge of employees for comments posted on social media, the Board applies traditional analysis to determine whether the comments at issue are “protected” because they concern the terms and conditions of employment as opposed to unprotected personal griping, and whether the postings are “concerted” because they seek or result in co-worker comments.  The cases cited in the Report show that postings about personal gripes at work or disparaging comments about the manner in which the employer conducts its business will not be protected, whereas comments addressed to working conditions, including the actions of supervisors and the terms and conditions of employment, are protected.  The cases also show that the Board will engage in a traditional analysis to determine whether or not a posting is “concerted” by looking at such factors as the intent or purpose of the posting (personal rant/complaint or attempt to engage other employees) and the response to the posting (whether or not co-workers participated in an on-line discussion).  An employer’s reaction to postings will also be subject to traditional “surveillance” analysis in which the Board will look at the manner in which the employer learned about the social media postings at issue; that is, whether it unlawfully obtained information about the postings surreptitiously, or lawfully learned about them because a manager or supervisor is a “friend” invited to read the postings.  All of these factors must be considered in connection with a determination to discharge an employee based on social media activity.