HIGHLIGHTS FOR THE MONTH OF MAY 2008

By: Adam S. Belzberg

RECENT DEVELOPMENTS

Genetic Information Nondiscrimination Act Becomes Law

After languishing in Congress for more than a decade, on May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 ("GINA"). GINA creates broad prohibitions on the collection, use, and disclosure of genetic information in the workplace, and applies to all employers covered by Title VII of the Civil Rights Act of 1964 (i.e., employers with 15 or more employees). GINA's employment provision will become effective eighteen months from the date President Bush signed the law.

GINA defines "genetic information" to include not only the genetic tests of employees and their family members, but also any "manifestation of a disease or disorder" in the employees' family members. This definition was drafted to prevent employers from inferring that employees are predisposed to the same diseases or disorders as their "family members," which term includes not only the employee's dependents, but the employee's relatives from the first to the fourth degree. Information regarding manifested diseases or disorders of an employee's mother, grandmother, great grandmother, and great great grandmother would constitute "genetic information," for purposes of GINA.

GINA imposes three significant restrictions on employers with respect to genetic information:

1. Employers may not discriminate in the terms or conditions of employment based upon genetic information;

2. Employers may not retaliate against an employee who opposes genetic discrimination; and

3. Employers are generally barred from collecting genetic information about an employee, or an employee's family member, whether by request, mandatory disclosure, or purchase from a third party.

There are, however, several exceptions to the restriction on the collection of genetic information. An employer can insist upon the disclosure of protected genetic information, including manifested diseases or disorders, to the extent necessary to comply with the Family and Medical Leave Act ("FMLA"), and any state family and medical leave laws. Employers do not violate GINA by "inadvertently" requesting or requiring family medical history, such as when employees are having a casual conversation in the employee lounge and that information is discussed. Further, with certain safeguards in place, employers are permitted to conduct genetic monitoring of the biological effects of workplace toxins. Finally, it is permissible under GINA for an employer to purchase commercially and publicly available documents that contain genetic information about an employee or an employee's family member (although this is unlikely to be an option employers will exercise on a regular basis).

Under GINA, employers are required to apply the same confidentiality protections for "genetic information" as are applicable to medical information protected under the Americans with Disabilities Act ("ADA") (i.e., genetic information must be treated as confidential, maintained on separate forms, and in separate medical files, and internal access must be strictly limited).

Although GINA generally prohibits employers from disclosing genetic information to third parties, it does permit disclosures that are: (1) necessary for the employee to comply with federal or state medical leave laws; (2) to government agencies investigating compliance with GINA; and (3) in response to a court order (provided that the employer notifies the employee of the disclosure if the court order was issued without the employee's knowledge).

In addition to Title VII, GINA also amends the Employee Retirement Income Security Act ("ERISA") to restrict the collection and use of genetic information in connection with group health benefits. GINA bars group health plans and health insurance issuers from adjusting contribution amounts or premiums for the group based on the genetic information of any plan participant. GINA also prohibits group health plans from requesting or requiring individuals or their family members to undergo a genetic test and from requesting, requiring or purchasing genetic information for underwriting purposes or prior to an individual's enrollment.

In regard to enforcement, GINA incorporates Title VII's remedial scheme. Thus, employees must file a charge of discrimination with the Equal Employment Opportunity Commission and exhaust administrative remedies before initiating a lawsuit. Damage awards also are subject to the same caps that apply in Title VII cases. GINA, like Title VII, does not preempt more stringent state laws.

Lessons Learned: Employers should take the following action before the November 21, 2009, effective date:

1. Add non-discrimination on the basis of genetic information to all equal employment opportunity statements;

2. Discontinue any practice of requesting applicants and/or employees to provide a family medical history;

3. Discontinue any practice of requesting information about the manifested disorders or diseases of an employee's family members for non-FMLA leave requests;

4. Ensure that employee medical information that falls within the broad definition of "genetic information" is treated confidentially and maintained in a medical file separate from the employee's personnel file; and

5. Establish a policy and procedure to prevent the inadvertent disclosure of genetic information in response to a subpoena or civil discovery request that is unaccompanied by a court order such compelling disclosure.

Employees May Now Sue For Retaliation Under Section 1981

On May 27, 2008, the U.S. Supreme Court broadened the retaliation playing field once again, and held that employees may now bring retaliation claims against their employers under the Civil Rights Act of 1866 (“Section 1981”), a law that prohibits discrimination with regard to the right to make and enforce contracts, and as such, has exclusively and historically had been limited to permitting only “traditional” race discrimination in employment claims.

Facts of the Case: In CBOCS West, Inc. v. Humphries, an African-American assistant manager of a Cracker Barrel restaurant in Illinois alleged that he was terminated because of his race, and in retaliation for complaining to management that another African-American employee was also fired because of his race. The plaintiff sued his employer under Title VII of the Civil Rights Act of 1964 and Section 1981. The trial court ruled for the employer on all of the plaintiff’s claims. On appeal, the U.S. Court of Appeals for the Seventh Circuit held that the plaintiff should be permitted to proceed with his retaliation claim under Section 1981. The employer appealed to the Supreme Court, arguing that Section 1981 prohibits only race discrimination, not retaliation.

The Court’s Ruling: The Supreme Court held that even though Section 1981 does not statutorily recognize retaliation claims in its plan language (as Title VII does), Section 1981 does permit retaliation claims based upon an employee’s protected activity involving race discrimination. In so holding, the Court recognized that Section 1981 and Section 1982 (which provides protections in the purchase of real property) have been interpreted comparably. The Court acknowledged it previously recognized retaliation claims under Section 1982. Further, in 1991, Congress passed legislation declaring that post-contract formation conduct (including retaliation) should be prohibited under Section 1981, and since then, lower courts faced with the issue have consistently held that Section 1981 does prohibit retaliation.

Lessons Learned: This case will likely result in an increase in race retaliation claims. Section 1981 is much more favorable to plaintiffs because it has a four-year (as opposed to Title VII’s 180/300 day) statute of limitations. Section 1981 plaintiffs are not required to file a charge of discrimination with the EEOC or other investigative agency. Finally, unlike Title VII, Section 1981 does not impose any cap on damages.

TAKE NOTE

FMLA Retaliation. In Lewis v. School District #70, the U.S. Court of Appeals for the Seventh Circuit held that an employee, who was demoted while taking intermittent leave to care for her mother, raised a jury issue as to whether her demotion was motivated, at least in part, by the FMLA covered leave she had been taking. During plaintiff’s FMLA covered intermittent leave, the School District did not assign the plaintiff’s job duties (as a bookkeeper) to anyone else. When she took FMLA covered leave, the plaintiff was still required to perform all of her full-time job duties from home, although she was only paid on a part-time basis. The employer also began to document the plaintiff’s “poor performance” in order to build a case against her. As a result, the plaintiff received an evaluation stating that her performance problems were directly related to her reduced hour schedule. She was given the choice of resigning or being demoted. Ultimately, the plaintiff was terminated because of incompetence and she filed suit alleging her demotion and discharge were motivated, at least partially, because of her FMLA covered leave. The Seventh Circuit held that the plaintiff had established improper motive with evidence detailing the school board’s frustration with her FMLA leave and the FMLA in general; lack of documentation regarding any incompetence before the plaintiff took FMLA; and granting the plaintiff illusory FMLA leave because she was still expected to complete the work of a full-time employee, although on a part-time schedule.

Wage And Hour For Commuting To Work. In Singh v. City of New York, the United States Court of Appeals for the Second Circuit held that an employee is not entitled to compensation under the Fair Labor Standards Act (“FLSA”) for commuting to work simply because the employee is required to carry work files to and from his first and last work sites. Plaintiffs were fire inspectors who worked in the field Monday through Thursdays and commuted to and from the inspection sites from home (rather than from their office) on public transportation. On Fridays, the plaintiffs were required to return to the office to turn in inspection reports from the week and to gather documents related to the next week’s inspections. Plaintiffs claimed that the requirement that they transport the documents with them while commuting to and from home made their commuting time to and from their first and last job compensable under the FLSA for a variety of reasons. First, the inspection documents weighed between 15 and 20 pounds and had to be safeguarded during the commute, which entailed physical and mental exertion (components of work). Second, failing to turn in and collect inspection documents resulted in employee discipline. Third, the requirement marginally lengthened their commuting time and sometimes made them miss out on after work social events (because they had to take the materials straight home). No plaintiff claimed that he was required to do any other work-related tasks during his commute. The Second Circuit rejected plaintiffs’ claim that the effort involved in transporting the documents turned the ordinarily non-compensable commute to and from work into compensable working time. “Carrying the briefcase during a commute presents only a minimal burden on the inspectors, permitting them to freely use their commuting time as they otherwise would have without the briefcase. Whether it be reading, listening to music, eating, running errands, or whatever else the plaintiffs chose to do, their use of the commuting time is materially unaltered.” As such, it was not compensable under the FLSA.

NLRA - Button Wearing. In Washington State Nurses Ass’n v. NLRB, the U.S. Court of Appeals for the Ninth Circuit held that the NLRB erred when it concluded that a hospital did not commit an unfair labor practice when it banned its nurses from wearing certain union-related buttons in or near patient care areas. During 2004 collective bargaining negotiations, the nurse union’s members wore a variety of buttons, including one that read “RNs Demand Safe Staffing.” The employer prohibited this button from being worn in any area of the hospital where a nurse might encounter a patient or family members. The employer asked nurses to remove it, but did not discipline nurses who continued to wear it. The union filed an unfair labor practice charge regarding the “safe staffing button” policy. The ALJ held the button policy violated the NLRA. On appeal, the NLRB reversed, finding that the button policy was enforceable because the employer established special circumstances justifying the restriction: the button was likely to cause unease and concern with patients and their family members that their patient care was in jeopardy. The Ninth Circuit rejected the NLRB’s position and held the policy violated the NLRA because the employer’s concern was based upon speculation and not real-life disturbances that resulted during the few months that nurses wore the button before the employer policy was implemented. The Ninth Circuit reminded that conjecture is not substitute for evidence. Employer restrictions on union insignia in the health care industry must be based on legitimate concern (and not speculation) that a reasonable patient would be disturbed by the message.

Sexual Harassment, Indirect Exposure To Offensive Language. In Reeves v. C.H. Robinson Worldwide, Inc., the United States Court of Appeals for the Eleventh Circuit held an employee who was not the direct target of sexual harassment but whose coworkers and supervisor used sexually offensive language and listened to a morning radio show that included discussions of sexual topics could establish a claim of sexual harassment. The plaintiff was the only female sales representative and was one of only two women working in the office. After working for the employer for three years, the plaintiff resigned and sued the company for sexual harassment. Although plaintiff was not the target of sexual comments or conduct, she testified that her working environment was materially altered by the sexually offensive language and radio program (Howard Sterns' show) that she was subjected to on a daily basis. Her complaints about the language were ignored and whenever she turned off the radio program, her coworkers would turn the show back on. The trial court ruled for the employer, finding the conduct she complained of was not "based on" her sex. The Eleventh Circuit reversed, explaining that "[a]lthough the conduct at issue here is not what typically comes to mind when one thinks of sexual harassment under Title VII," it was "severe or pervasive" enough to allow a reasonable jury to find in her favor.

District of Columbia Paid Sick Leave Legislation Becomes Law. On May 13, 2008, the District of Columbia's Accrued Sick and Safe Leave Act of 2008 became law. The Act will become effective on November 13, 2008. As we explained in our March 2008 E-Lert, the Act requires employers in the District of Columbia to provide paid leave to employees for use for absences due to their own or a family member's medical condition or injury. Employees may also be eligible to use this paid leave if they or a family member is a victim domestic or sexual violence, or stalking. The employer's size determines the amount of leave to which an employee is entitled. Employers with 100 or more employees must provide at least one hour of paid leave for every 37 hours worked (up to a maximum of seven days of paid leave per year). Employers with 25 to 99 employees will be required to provide one hour of paid leave for every 43 hours worked (up to a maximum of five days of paid leave per year). Employers with fewer than 25 will be required to provide one hour of paid leave for every 87 hours worked (up to a maximum of three days of paid leave per year). Employees will begin to accrue leave on their first day of employment. Unfortunately, the law as drafted is ambiguous and internally inconsistent. For example, the Safe Leave Act incorporates the definition of "employee" from the D.C. Family and Medical Leave Act, and that definition requires employees to work 1000 hours and have completed a year of service before leave may be taken. By contrast, the Safe Leave Act permits an individual to take leave after 90 days of service. Furthermore, the definition of "employer" from the Safe Leave Act does not make clear whether employers located outside the District of Columbia but who have employees who perform work in the District must provide leave under the law. These ambiguities and inconsistencies may be addressed by regulations which are to issue before the November 13 effective date.

TOP TIP

The National Labor Relations Act Does Not Apply Only To Unionized Employers and Employees

The protection afforded by the NLRA is not limited to employees participating in union activities. The Act protects all employees engaged in concerted activity for the mutual aid and benefit of the employees. Essentially, concerted activity will be found when an employee seeks to induce other employees to engage in group action or protest, or when an employee seeks to be designated as a spokesperson for a group of employees. This protection attaches regardless of whether any employees of the employer are represented by a union and whether the employees at issue are members of a union.

Employer policies that discipline employees for discussing with each other the terms and conditions of their employment will be suspect. An obvious example would include a handbook policy that prohibits employees from discussing wage rates, wage increases and/or bonuses received. A less obvious, but equally problematic course of action, would be an employer’s discipline of an employee after learning she posted a blog on her MySpace page that described how she and her co-workers were upset with ABC, Inc. for changing its health insurance programs. Distinguishing between concerted group activities and unprotected individual actions is not always easy. Employers should carefully consider whether employee complaints are solely individual personal gripes or concerns arguably raised on behalf of other employees. Concerns raised outside of the workplace, but clearly relating to workplace issues, can be subject to the same NLRA protections.

For greater clarification of any of these issues, you may contact any Shawe Rosenthal attorney.