Excerpts from July 2011 “An Ounce of Prevention” Newsletter

*The following are excerpts from some of the articles presented in our Newsletter. Please contact us to obtain complete copies of past Newsletters.

How Accurate are your Time Records? (the DOL is looking!)

As expected with a democratic President, the United States Department of Labor (“DOL”) is aggressively “protecting employee rights.” In one such effort, the DOL has partnered with the American Bar Association to help increase the number of employee complaints resolved. Typically, when a wage and hour complaint is filed with the DOL, the DOL will investigate and determine whether to proceed against the employer. However, due to the high volume of cases involved, the DOL has found itself unable to prosecute as many cases as it would like. Accordingly, it now offers a toll-free attorney-referral hotline for disgruntled employees.

In cases the DOL decides to prosecute itself, it has announced plans to seek a larger number of liquidated (i.e. “double”) damages, bring criminal prosecutions in key cases, and target entire industries rather than a single employer. To gear up for these prosecutions, the DOL plans to increase the training of its investigators so they can better interview witnesses and otherwise prepare a case for litigation. As if this were not enough, the DOL has launched a smartphone application which allows employees to track the hours they work, thereby ensuring proper payment for all hours worked, including overtime.

Happy 4th of July – Are Your Supervisors Patriotic?

All employers, regardless of size, must comply with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA prohibits an employer from denying “employment, reemployment, retention in employment, promotion, or any benefit of employment” based on a person’s “membership” in or “obligation to perform service in a uniformed service.” In a March 2011 decision, the U.S. Supreme Court ruled that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Staub v. Proctor Hospital. In clearer terms, this decision means that an employer can be liable for the acts of a supervisor, even if the supervisor is not the ultimate decision-maker.

Freedom of Speech is Alive and Well Among Your Employees

At some time or another, every employer hires one – an employee who complains about everything. Wyndham Resorts hired Gerald Foley as a salesman, and he liked to complain. During sales meetings and even on the sales floor, he frequently complained about the company’s commission structure and late payments. He was written up for his negative attitude.

When the company enacted a dress code requiring male employees to tuck in their shirts, he complained to his supervisor in front of other employees. Foley was called to the supervisor’s office where he was lectured, then written up. Later in the day, a customer complained about Foley’s rude behavior. The supervisor suspended Foley and, after an investigation, terminated him based on his two prior warnings.

Was Foley lawfully terminated? If so, this would not be a topic for our newsletter! The better question is – why wasn’t the termination appropriate? According to the National Labor Relations Board (NLRB), the outspoken employee was engaged in “concerted” activity protected by the National Labor Relations Act (NLRA). The NLRB stated that it “has consistently found activity concerted when, in front of their coworkers, single employees protest changes to employment terms common to all employees. The Board reasons that an employee who protests publicly in a group meeting is initiating group action. The concerted nature of an employee’s protest may (but need not) be revealed by evidence that the employee used terms like ‘us’ or ‘we’ when voicing complaints, even when the employee had not solicited coworkers’ views beforehand.”

Have you met GINA?

If not, you should. Among other things, GINA (The Genetic Information Nondiscrimination Act) prohibits employers from requesting genetic information about employees. In general, employers should have no need to know whether a particular employee’s aunt has cancer, or whether his grandfather had diabetes. However, what is an employer to do when requesting medical records in the course of defending a workers’ compensation claim? Oftentimes, a family or other treating doctor will routinely ask your employee about his or her family medical history. This is then documented in the employee’s medical chart. When you request the medical file, you automatically receive the employee’s genetic information.