In a recent case out of California, a state appellate court found that an employee’s inability to work for a particular supervisor due to boss-related stress and anxiety did not constitute a disability under state law. The employee worked for her employer for approximately three years before being diagnosed by her doctor with adjustment disorder with anxiety. Based on the diagnosis, she was granted a disability leave of absence under both state and federal leave acts, with her disability listed as “stress when dealing with her Human Resources and her manager.” The employee exhausted her leave and returned to work for a brief period of time.  Employee alleged that upon her return, she received a negative performance evaluation (her only one while with the employer), and was accused by her supervisor of being irresponsible in regards to her identification badge. She further claimed that her regional manager was mean to her, singled her out for negative treatment, gave her a disproportionate amount of work, and grabbed her arm and yelled at her, causing her to suffer a panic attack.

The employee left work again and requested another leave of absence, which was granted and extended several times. Additionally, she requested accommodation in the form of a transfer to a different department with a different schedule. Her doctor indicated that if the transfer occurred, she would be able to work without limitation. The physician later requested that the employee be permitted to transition, on light duty, back to her original department in connection with the employer’s transitional program. The employer requested additional information regarding her return and indicated that without such information, her employment would be terminated. Ultimately, the employee did not return to work.  Her employment was terminated and she filed suit alleging, among other things, disability discrimination and wrongful termination.

Under the relevant state law, discrimination against an employee on the basis of mental disability is unlawful. California law includes “any mental or psychological disorder… such as… emotional or mental illness” that “limits a major life activity” as a qualifying mental disability. In order to establish a prima facie case of disability discrimination, a plaintiff must show that she has a disability, is otherwise qualified to perform the job with or without reasonable accommodation, and was subject to an adverse employment action because of her disability. The court, in affirming summary judgment for the employer, found that the employee was unable to establish a prima facie case of discrimination, as she “did not have a legally recognized mental disability,” finding that the inability to work for a certain manager did not rise to a disability under state law. Additionally, the Court found that the employee could not claim that her inability to work for a certain supervisor was akin to the exclusion from a single type of job with a single employer. The court found that her additional causes of action, including failure to engage in the interactive process and provide reasonable accommodations, also failed because the employee “did not have a legally recognized mental disability.”  Further, the employee’s claims related to her use of state leave failed, as there was no proof that she could have actually returned to work and further, that the employer had a legitimate reason for terminating her and she was unable to establish pretext for same.

Although the employee’s condition was ultimately found to not be a disability under California law, it’s important to note what can happen when an employer or an employee fails to engage in the interactive process.  The process is just as important as the outcome, and both parties must participate to identify appropriate accommodations.

This post was contributed by Paul Ritchey, a Summer Associate with McNees Wallace and Nurick LLC. Mr. Ritchey is a law student at the University of Virginia School of Law and is expected to earn his J.D. in May 2016.

We have seen it before: boss shouts (or glares, or laughs) at subordinate, and subordinate’s feelings are hurt. But it’s not only feelings that are hurt, and angry bosses aren’t the only ones offending. Workplace bullying can occur within many kinds of professional relationships, and when it does it can impact an employer’s bottom line just as easily as an employee’s feelings.  To reduce turnover, sick days, and legal liability, as well as the promotion of a more harmonious work environment, employers should consider whether implementing an anti-bullying policy is right for them.

Workplace bullying has recently gained increased attention within the human resources community. A 2012 survey, conducted by the Society for Human Resources Management, reported that more than half of employers surveyed had experienced incidents of bullying in their workplaces. Of these, only 43% reported having a workplace anti-bullying policy.

With increased attention has come new initiatives to reduce personnel problems and legal risks that can arise from workplace bullying. As with any hot topic, lawmakers have joined the action as well. For example, in 2014, California passed Assembly Bill 2053, amending its regulations to require employers to incorporate training on “abusive conduct” into its already mandatory anti-harassment training.

While the California law simply requires training about broadly defined abusive conduct, other jurisdictions, including Pennsylvania, are working on legislation with more bite. Pennsylvania’s proposed “Healthy Workplace Act” is illustrative. As written, the Pennsylvania law would prohibit employees from being subject to an “abusive work environment.” The Bill defines “Abusive Conduct” as any act “intended to inflict and resulting in physical or psychological injury.” Like most non-discrimination laws, the Bill also contains an anti-retaliation provision.

The Bill would also provide a number of affirmative defense for employers, similar to the affirmative defenses available under Title VII. If no adverse employment action such as termination or demotion takes place and the employer can demonstrate it exercised reasonable care in preventing and/or correcting illicit conduct, and the complaining employee failed to take advantage of those preventive measures, the employer can avoid liability. The Bill also indicates than an employee can be individually liable for a violation of the Act. The proposed Law would impose civil liability on employers for any conduct of its employees that subjects an employee to abusive conduct and would allow for remedies including reinstatement, damages for emotional distress, punitive damages, and attorneys’ fees.1403682953dxk6k

While unlikely to pass, if adopted, the Pennsylvania Healthy Workplace Act would surely make employers the target of a plethora of frivolous lawsuits.

However, even in the absence of a legal requirement to do so, many workplaces could benefit from the implementation of an anti-bullying policy. Some of the costs of workplace bullying are obvious: impaired communication, increased turnover, and a less-than-enjoyable workplace.  But there are more complicated effects that employers might not immediately realize. According to the American Psychiatric Association, bullying can cause psychological harm, causing an employee to miss work for treatment. Further, anti-bullying policies could prohibit abusive behaviors in the workplace that are not based on protected traits (think weight, fashion sense, and political affiliation, for example) and might not be prohibited by other employment policies. While an anti-bullying policy might not stop abusive conduct immediately, it can send a clear message from the employer that bullying will not be tolerated. If well crafted, an anti-bullying policy can work toward reducing the wasted energy and needless tension so often produced by workplace bullying.

This post was contributed by Matthew Garber, a Summer Associate with McNees Wallace and Nurick LLC.  Mr. Garber is a law student at Rutgers University School of Law – Camden and is expected to earn his J.D. in May 2016.

Last week, in EEOC. v. Abercrombie & Fitch Stores, Inc., the Supreme Court addressed religious accommodations under Title VII of the Civil Rights Act of 1964.

The background of the case dates to 2008.  A young woman named Samantha Elauf interviewed for a position with the clothing retailer Abercrombie & Fitch.  Elauf’s interviewer, an assistant store manager named Heather Cooke, gave Elauf good marks on the interview—good enough to be hired.

Despite Elauf’s high marks, Cooke was concerned about the fact that Elauf wore a head scarf—a violation of Abercrombie’s “Look Policy,” which prohibited the wearing of any “caps.” Notably, “caps” are not defined under the Abercrombie policy. Although Cooke did not ask Elauf about the head scarf, she suspected that it was a part of her religious observance.  (Elauf is, in fact, a practicing Muslim.)  After conferring with her district manager, Cooke was directed to not hire Elauf, as any head covering (religious or not) would run afoul of the Look Policy.

The EEOC sued Abercrombie under Title VII of the Civil Rights Act, which forbids employment discrimination against an individual based on the individual’s religious practices or beliefs. Employers are required to reasonably accommodate religious observances or practices unless the employer can demonstrate undue hardship on the conduct of the employer’s business.

At trial, Abercrombie did not focus on demonstrating undue hardship.  Rather, Abercrombie argued that a job applicant cannot prove intentional discrimination if the company did not know of the applicant’s need for an accommodation.  Abercrombie asked the Supreme Court to place the burden of seeking accommodation onto the job applicant.  In Abercrombie’s view, Elauf should have stated her need for an accommodation to the employer before the employer could ever be accused of intentional discrimination.  (Makes sense, right?)

By a decisive 8-1 vote, the Supreme Court rejected Abercrombie’s argument.  Writing for the majority, Justice Antonin Scalia held: “Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Huh??

Essentially, employers are prohibited from making an applicant’s religious practice a factor in an employment decision.  Whether the need for an accommodation is merely suspected or fully confirmed, religious practices are protected under Title VII.

What Does This Mean For Employers and Hiring Managers?

  1. Explain the essential requirements of the position—then put the ball in the applicant’s court.  The good news is that interviewers do not need to go “fishing” for potential accommodations.  (The problem with Abercrombie was that it made a suspected need for an accommodation a factor in deciding not to hire Elauf.)  Rather, interviewers can explain their essential job requirements and ask the applicant whether any accommodations would be required.
  2. Document hiring decisions.  The Abercrombie decision does not mean that overtly religious applicants are to be given preference.  Rather, a religious practice may not be a motivating factor in an employment decision.  Documentation showing the internal evaluation process of a candidate—all based on legitimate factors unrelated to any protected traits—will go a long way.
  3. “Undue hardship” remains intact.  Religious accommodations are not always feasible.  If you believe accommodating a religious practice will create an undue hardship, be prepared to articulate the reasons.  Proactively consult legal counsel so you can be sure you are on solid ground before such a situation arises.

The United States Department of Labor (DOL) recently released new forms for employers to use when their employees are in need of leave under the Family and Medical Leave Act (FMLA).  These new forms can be viewed here.  So… what’s changed (besides the form expiration date), and why should your company use these forms? Read on to find out.

The FMLA requires covered employers (i.e., those with 50 or more employees) to provide eligible employees with family and medical leave under certain circumstances, including when leave is needed due to the employee’s or a child, spouse or parent’s serious health condition.  The FMLA also requires covered employers to provide certain notices and information to employees as part of the FMLA process.  To comply with these obligations, many employers take advantage of the DOL’s FMLA forms, such as the Notice of Rights and Responsibilities, the Designation Notice, and the Certification of Health Care Provider notices.

The DOL has updated all of these forms.  Frankly, however, they have not changed much.  The primary revision appears to be to the Health Care Provider Certification forms, which request specific information from the employee’s (or his or her family member’s) treating healthcare provider.  Those forms now contain language that is designed to protect employers from inadvertent disclosure of genetic information within the meaning of the Genetic Information Nondiscrimination Act of 2008.  (For more information on GINA, read our Employer Alert here.)

Should your company use these forms?  Certainly, employers are not required to use the DOL’s forms.  Keep in mind, however, that these forms are “blessed” by the DOL – meaning that DOL considers these forms to be compliant with the FMLA’s requirements.  For this reason, we recommend that all FMLA-covered employers have an up-to-date FMLA policy and, unless there is a strong reason to use your own forms, make use of the DOL’s forms.

As a final practical matter, FMLA and non-FMLA covered employers alike should have leave of absence and reasonable accommodation procedures in place.  Periodic review of your leave of absence and accommodation procedures and managerial training on the proper handling of those issues is key to minimizing your Company’s exposure under the FMLA and under the Americans with Disabilities Act. The old saying is trite, but true (and seems fitting for today’s topic):  an ounce of prevention is worth a pound of cure.

All employers should be aware of the specific laws and regulations pertaining to employee personnel files. Pursuant to the Pennsylvania Personnel File Act, medical information should not be included in an employee’s personnel file. Medical information includes any document that relates or refers to an individual’s physical or mental health, condition, or impairment, including but not limited to notes, excuses or any other information received from an employee’s doctor, FMLA paperwork, injury reports, workers’ compensation claim forms, medical exam results, medical questionnaires, information concerning prescription drug use, alcohol use or past drug addiction (excluding current illegal drug use), drug and alcohol testing information, documents relating to any request for accommodation or the interactive process, information relating to claims for disability benefits or health insurance claims, and any employee hazardous substance exposure records. All information that relates in any way to an employee’s medical condition should be kept in a separate, secure and confidential file.

Medical records aren’t the only items that do not belong in an employee’s personnel file.  Records relating to the investigation of a possible criminal offense, reference letters, documents developed or prepared for use in civil, criminal or grievance procedures or materials which are used by the employer to plan for future operations or information available to the employee under the Fair Credit Reporting Act are also excluded from the definition of personnel file.

So, what should be included in an employee’s personnel file? Applications for employment, wages or salary information, notices of commendations, warnings or disciplinary letters or actions taken, authorizations for payroll deductions or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, employment status changes, attendance records, retirement record, and performance evaluations are all included in the definition provided by the Pennsylvania Personnel File Act.

Pennsylvania employers should also be aware that the law gives employees (or their designated agents) the right to inspect his or her personnel file(s) upon request. Only current employees are entitled to access, but this will include recently terminated employees who make a request for access within a short period of time following termination.

Employers may require a written request before allowing access, including the purpose of the request or the specific parts of records the employee wishes to review, to assist the employer with producing the correct records. An employer must honor the inspection request and make personnel records available during regular business hours of the office where the records are ordinarily maintained, and must allow sufficient time for inspection of same. The employer may limit inspection to once every calendar year by an employee and once every calendar year by the employee’s designated agent, if any, except for reasonable cause. While employees have the right to such an inspection, employees may not remove, copy or mark personnel records, although they may make separate notes about the records. Such inspection may take place in the presence of an employer’s designated official, and the employer retains the right to protect the integrity of the file(s).

Many employers offer paid vacation time as a benefit to their employees. There is no Pennsylvania law requiring the payout of unused paid leave time, such as vacation; instead, this is governed by the employer’s policy or practice. In Kahler v. Alpha Packaging, the employer’s policy provided that during employees’ second and subsequent calendar years of employment, employees earn two weeks of vacation on January 1 upon working a minimum of 1900 hours in the previous year. Pursuant to the policy, vacation did not carry over into the next calendar year; employees who resigned and provided two weeks’ notice were entitled to payment for earned and unused vacation time for the calendar year.

The Plaintiff worked for the employer for about three years.  At the time he left employment, Plaintiff was entitled to two weeks’ vacation to be used by the end of 2014, pursuant to the employer’s policy.  Plaintiff provided two weeks’ notice of his resignation and was compensated for these two weeks.  However, Plaintiff claimed that he was also entitled to payment for vacation time earned in 2014 (which, according to the employer’s policy, would have been available for use in 2015).

The Court found that under the Employer’s policy, an employee earns vacation time, which becomes available in Year B, by working 1900 hours in Year A. An employee who submitted the requisite notice and resigned during Year B was entitled to any vacation hours which became available in Year B but had either gone unused or uncompensated. By contrast, an employee who worked 1900 hours in Year B but resigned prior to vacation time becoming available in Year C would not be entitled to payment for unused or uncompensated vacation time, as the employer’s policy provided that such an employee would only receive payment for “earned and unused vacation time for that calendar year.” In applying this hypothetical scenario to Plaintiff, the Court found that Plaintiff had received payment for all of the vacation time he was eligible for at the time he left employment and entered judgment in favor of the employer.

As noted above, while there is no law in Pennsylvania requiring an employer to payout unused vacation time, employers should ensure that their policy or practice is clearly stated to avoid any confusion or unnecessary litigation.

We previously discussed on this blog the potential risks associated with the use of payroll debit cards to pay wages to employees. The absence of federal and state regulations specifically addressing this relatively new payroll option makes the use of payroll debit cards a target for potential wage and hour claims and litigation.

These risks were emphasized recently when Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas certified a class of 2,380 former or current employees of a McDonald’s franchisee in Luzerne County in the class action case captioned as Siciliano et al. v. Albert/Carol Mueller T-A McDonalds et al. In Siciliano, the plaintiffs allege that their employer illegally paid workers using fee-laden debit cards in violation of Pennsylvania law. The plaintiffs seek more than $1.2 million in damages.file0001730089237 (1)

In addition to the state law claims at issue in Siciliano, there are federal law requirements that may apply to payroll debit cards.  In October 2013, the federal Consumer Financial Protection Bureau (CFPB) issued Bulletin 2013-10 on the subject of payroll card accounts. In its Bulletin, the CFPB confirmed its position that federal law prohibits employers from mandating that employees receive wages only on a payroll card of the employer’s choosing.

The recommendations we made in 2013 for employers in Pennsylvania who wish to pay wages via payroll debit cards remain the same today.

  1. Provide the employee with the option of either being paid by direct deposit or a payroll debit card, because it currently is unclear whether an employer lawfully may require that an employee accept payment of wages only via a payroll debit card.
  1. Obtain signed authorization from the employee for payment via payroll debit card.
  1. Use a bank that levies minimal or no fees, and that allows the employee at least one fee-free withdrawal per pay cycle.

Background

The Americans with Disabilities Act (ADA) generally prohibits employers from requiring current employees to submit to medical examinations or medical inquiries unless the exam or inquiry is “job-related and consistent with business necessity.”  Guidance issued by the Equal Employment Opportunity Commission (EEOC) in 2000 makes an exception to this rule for wellness programs that request employee medical information (e.g. biometric testing, health risk assessments, etc.) as a condition of participating in the program.  However, this exception only applies if participation in the wellness program is “voluntary” – meaning that participation may not be required and non-participants may not be penalized.

Over the past fifteen years, employers and their benefits consultants have developed a myriad of strategies for encouraging employee participation in wellness programs, many of which involve “discounts” on employee contributions for health coverage for wellness participants.  More aggressive employers have gone so far as to condition enrollment in their group health plan on an employee’s participation in a wellness program.  Allegations of such requirements were the basis for EEOC lawsuits filed in late 2014 against Honeywell International Inc. and several other employers.  It is in this context that the EEOC published their proposed regulations on April 20, 2015 to further define the “do’s and don’ts” for wellness programs under the ADA.  The proposed regulations, if finalized in their current form, would change the wellness landscape in five significant ways.

Financial Incentives

The Affordable Care Act caps aggregate financial incentives that are offered under wellness programs at 30% of the applicable group health plan premium (and 50% for tobacco-related incentives).  The EEOC proposed regulations, on the other hand, would cap total financial incentives for participation in any wellness program(s) that involves employee medical inquiries (e.g. health risk assessments) or examinations (e.g. biometric testing) to 30% of the cost of employee-only coverage.

Employee Notice Requirements

If a wellness program is offered as part of a group health plan, employees must be provided with a notice that: (i) describes the type of medical information that will be obtained through the program and the purposes for which it is used; (ii) describes applicable restrictions on the disclosure of the employee’s medical information; and (iii) is written in a manner that the employee is likely to understand.

Reasonable Design Requirement

Wellness programs which include medical inquiries or examinations must be “reasonably designed to promote health or prevent disease.”  The EEOC explains that medical information that is gathered through a wellness program must be put to a use that benefits program participants.  For example, if a particular health risk is identified through such information, the risk should be communicated to the participant.  Gathering such information without providing employees with follow-up information or advice would not meet this standard.

Equal Benefit Rule

Some employers have offered additional health plan options to wellness participants while non-participants are limited to participating in a single less generous plan.  The proposed regulations would prohibit employers from denying coverage under any group health plan or otherwise limiting the extent of benefits available to employees who do not participate in wellness programs.

Non-Retaliation

The EEOC proposed regulations further prohibit employers from taking any “adverse employment action” due to an employee’s decision not to disclose medical information or submit to medical exams in connection with wellness programs.  For programs that offer financial incentives for participation, the “packaging” of these incentives will be important.  Premium discounts will remain lawful if they are within the applicable limits set forth in the ACA and the EEOC regulations.  However, premium “surcharges” for non-participation would likely be considered unlawful retaliation.

The EEOC will be accepting public comments on the proposed regulations through June 19, 2015.  Although the regulations are merely “proposed” at this stage, they provide a road map for how the Commission interprets the ADA in the context of wellness programs.  Non-compliant programs could conceivably be challenged even before the regulations are finalized.  For this reason, employers would be wise to reconsider their existing programs in light of the new proposed regulations now.

Knock Knock!  Who’s there?  OSHA.  OSHA who?  OSHA, the federal agency responsible for workplace safety, which is going to hit your company with hefty fines if you are not prepared.

This is no joke.  OSHA is a very active and well-resourced organization with an aggressive agenda.  The statistics tell the story: OSHA’s total budget for 2015 exceeds $550 million, more than 36,000 inspections were conducted in 2014, the top 10 fines issued by OSHA in 2014 totaled more than $9.2 million, and significant fines (over $100,000) issued in 2014 averaged $2.6 million/month and totaled $30 million for the year.  With smart preparation, your company can avoid being included among these statistics.

Any company may be subject to an OSHA inspection as a result of an employee complaint, a work-related accident, or random selection for inspection designed to address or target specific workplace hazards (e.g., fall hazards, asbestos).  Regardless of how an inspection is initiated and any specific issue(s) that may be in play in connection with a particular inspection, OSHA will likely review certain records and various areas of compliance including: any required written plans/programs required for your workplace/industry (e.g., safety plan, emergency action plan,  lockout/tag-out procedures, fall protection program), written program and other required Hazcom materials (labels, Safety Data Sheets and training records), accident and injury logs (e.g., OSHA 300 if applicable), and the mandatory OSHA poster.  Taking a proactive approach and ensuring that certain essential OSHA compliance matters have been adequately addressed, before a government inspector is at your door, will best position your company to successfully navigate any future OSHA inspection and reduce potential liability.

For example, OSHA recommends that a compliant safety plan should address certain issues, at a minimum. OSHA recommends that each written plan include the following basic elements:

  • policy or goals statement,
  • identification of responsible persons,
  • hazard identification,
  • hazard controls and safe practices,
  • emergency and accident response, and
  • employee training and communication, and recordkeeping.

If you have a hazard plan, and you must if you are covered by OSHA, does it cover these elements?

Similarly, an OSHA compliant emergency action plan should (at a minimum) address:

  • the means to report fires and other workplace emergencies,
  • evacuation procedures and emergency escape routes,
  • procedures for employees who remain to operate critical plant operations before evacuation,
  • procedures to account for all employees after an emergency evacuation,
  • rescue and medical duties for certain employees with such responsibilities, and
  • names and titles of persons who can be contacted for further information or with questions about the plan.

GSF1Achieving OSHA compliance can seem like a daunting task, but ignoring workplace safety is not an option when there is so much at risk.  The unprepared company can suffer significant consequences and face substantial potential exposure in the event of an OSHA inspection. Those companies which take a proactive and coordinated approach, by first addressing the most critical needs/areas of concern and ultimately developing a comprehensive workplace safety program with full compliance as the goal, are much more likely to succeed.

Stay tuned for future blog posts that will feature additional advice regarding OSHA inspections and address other important OSHA compliance topics.

Contact any of the attorneys in Labor & Employment Practice Group if you have a question about this post or need assistance with OSHA compliance.

On March 1, 2015, New Jersey’s Opportunity to Compete Act (also known as “Ban the Box”) went into effect.  The Act applies to employers with 15 or more employees over 20 calendar weeks that do business, employ people, or take applications for employment in the Garden State.  During the initial employment application process, employers are prohibited from requiring applicants to disclose their criminal history on applications, from making any inquiry (oral or written) into an applicant’s criminal record, and posting job advertisements which exclude applicants with a criminal background. However, employers can make such inquiries after the initial process is complete.  Additionally, if the applicant voluntarily brings up his or her criminal history during the initial process, the employer can make a limited and reasonable inquiry into the history that has been disclosed.

The Act also provides for several exceptions, including whether the position being sought is in law enforcement, the judiciary, homeland security, corrections or emergency management; where a criminal background check is required by law, where an arrest or conviction may preclude the person from holding such a position as required by law, or where the employer is restricted by law, rule or regulation from engaging in specified business activities based on its employees’ criminal records; or where the position sought is designated as part of a program designed predominantly to encourage the employment of persons who have been arrested or convicted.  The Act also includes significant civil penalties for the first, second, and subsequent violations.

While the New Jersey Department of Labor and Workforce Development has issued a draft rule (which is currently in the comment period) in order to clarify some portions of the Act, employers should ensure they are compliant with the Act.  Employers should review their applications and job advertisements for any questions or information which may be considered violative of the Act.  Employers should also review the Act with and consider training its employees or agents responsible for handling the initial employment application process.