Walgreens Settles Disability Discrimination Suit Following Termination of Employee for Theft

The Equal Employment Opportunity Commission (EEOC) brought suit on behalf of a Walgreens employee who was fired after taking and eating a bag of chips without paying.  The employee claimed she planned to pay for the chips at the cosmetics counter, but when she did not see a cashier, she simply went back to stocking items and never paid.  The employee argued her behavior should have been excused because she took the bag of chips to eat when her blood sugar was low and she needed to eat to avoid a medical emergency.  

In this instance, the employee claims Walgreens knew of her disability and was required to accommodate her under the Americans with Disabilities Act (ADA).  Under the ADA, employers must provide reasonable accommodations to employees with disabilities unless doing so would amount to a hardship for the employer.  Here, Walgreens long ago engaged in the interactive process with this long-term employee and provided her multiple accommodations to aid her in controlling her diabetes at work.  These accommodations included allowing her to eat candy she kept with her whenever she felt her blood sugar dropping, allowing her to store her insulin in the break room refrigerator, and offering her additional breaks during the course of her shift to test her blood sugar or to eat.

Despite the fact that Walgreens did provide accommodations to its employee, and fired her for stealing, the EEOC filed suit for disability discrimination and Walgreens settled the case for $180,000.  The terms of the settlement agreement required Walgreens to post a revised policy regarding accommodating disabled employees on its employee intranet site.  In addition, the company must provide anti-discrimination training, make periodic reports to the EEOC, and post a notice regarding the decree for three years. 

To reduce the risk of similar suits in their companies, employers should train supervisors as to their obligations toward employees claiming to need accommodations and ensure policies regarding employee misconduct are clear and uniform. 

If you have any questions about fulfilling your obligations under the ADA or about supervisor training, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Massachusetts Lawmakers Exclude Amendment Restricting Non-Compete Agreements

Employers have recently won a battle in the war raged against non-compete agreements.  As we previously discussed here, Massachusetts politicians have been working toward constraining, or banning altogether, non-compete agreements.

The Massachusetts State Senate had an amendment to their version of the Economic Development Bill that restricted non-compete agreements to salaried employees and limited the length of the agreement to six months.  The Massachusetts House of Representatives had no such amendment.  However, the Economic Development Bill was passed today with the non-compete restricting amendment excluded.

Although non-competes won this round, Senator Brownsberger, who has proposed similar bills in the past to condemn non-compete agreements remains hopeful.  He states that it often takes multiple sessions to pass a bill and he intends to keep trying.

If you have any questions regarding non-compete agreements, please contact any of the attorneys at Royal LLP at (413) 586-2288

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The Department of Labor Announces Intent of Increasing the Number of On-Site FMLA Compliance Investigations

Branch Chief Helen Applewhaite of the U.S. Department of Labor (DOL) recently called 2014 a “pivotal year for Family and Medical Leave Act (FMLA) enforcement.” Applewhaite announced the DOL has goals of increasing its investigators’ access to information and saving time by reviewing employer’s documents and interviewing employees on-site. Therefore, employers may soon find themselves facing broad requests for detailed information about their FMLA administration process with particular attention being paid to areas of frequent violation (i.e., refusing to authorize FMLA leave for an eligible employee, systematic violations, discouraging an employee from using FMLA leave, etc.).

With these warnings in mind here are some tips employers should take now to prepare for the possibility of an on-site FMLA inspection in the future, and of which employment counsel can assist you with implementation:

1)  Conduct a thorough internal audit of your organization’s FMLA policy. Make sure your FMLA policy is up-to-date, compliant with current law, included in employee handbooks, and prominently posted as required by law.

2)  Review all FMLA forms for legal compliance. Examine all existing FMLA forms to determine whether they are compliant with current law.  All forms and correspondence regarding FMLA must be up-to-date to withstand DOL scrutiny.

3)  Examine your organization’s FMLA procedures and practices.  Ensure you have a procedure in place for who should receive FMLA leave requests, how such requests should be dealt with, and how to determine if an employee is FMLA eligible.

4)  Train supervisors and managers.  Managers and supervisors should know the business’s FMLA policy and their role in FMLA procedures.  They should also be able to counsel an employee who may have questions about FMLA leave or at least send them to the correct source for answers.  Managers and supervisors should also be trained in how to handle when a DOL investigator shows up at your business.  Training is a crucial step in avoiding FMLA violations.

5)  Ensure proper record-keeping.  The DOL will likely examine an employer’s records for recurring or widespread failures in the employer’s operation regarding FMLA.  Records should be kept for each employee for at least three years, should be detailed and include dates and amount of leave taken, medical certification forms, and any correspondence between the employer and the employee regarding FMLA leave. Employment counsel may help you prepare for a DOL investigation by conducting a record-keeping audit to flag any areas of non-compliance or places that may need improvement.

If you receive notification of a pending investigation or on-site visit, you should contact employment counsel to guide you through the process of preparing for the investigation and dealing with any DOL findings as a result of the investigation.

If you have any questions regarding the Family and Medical Leave Act or would like assistance in the implementation of any of these tips, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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President Obama Signs Workforce Innovation and Opportunity Act

On Tuesday, President Obama signed the Workforce Innovation and Opportunity Act (WIOA), a jobs promotion bill aimed at preparing and training workers with the twenty-first century skills necessary for employment. A major goal of the Act is to prioritize career pathways with a focus on work-based learning opportunities designed to build stronger connections between job training programs and local employer needs.  To underscore its emphasis on real-world training opportunities, the Act supports on-the-job-training, awarding employers up to 75% reimbursement for such efforts.  

The Act includes specific programs for young, disabled, and veteran workers.  Other provisions of the Act allow for youth funding to support out-of-school youths, of which twenty percent is prioritized for work-to-school activities.  The Act also includes improved services for English language learners and training for the disabled.  Provisions for youths with disabilities are meant to ensure they receive the services and support necessary to be successful in competitive, integrated employment.

When President Obama signed the act into law, he remarked that the goal of the Act was “connecting more ready-to-work Americans with ready-to-fill jobs.”

In general, this Act will take effect in July of 2015.  The Department of Labor has also released a fact sheet with highlights of WIOA reforms to the public workforce system.

If you have any questions regarding the Workforce Innovation and Opportunity Act, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Federal Contractors and Employees to be LGBT Discrimination Free

Among the flood of executive orders coming from the White House recently, is one protecting lesbian, gay, bisexual, and transgender federal contractors and employees.  Yesterday, President Obama signed an executive order that protects federal contractors from discrimination based on sexual orientation or gender identity and federal employees from discrimination based on gender identity.  (Federal employees have been protected from discrimination based on sexual orientation since President Clinton’s executive order in 1998 seen here.)

President Johnson first signed an executive order in 1965 to protect federal contractors from discrimination.  Then in 2002, President George W. Bush added a religious exception to that order which allowed religious organizations to discriminate based on their religious beliefs.  Notably, the most recent executive order does not provide any such religious exemption.

We should expect to see regulations from the Secretary of Labor within three months to facilitate the implementation of this order.

If you have any questions regarding the discrimination based on sexual orientation or gender identity, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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The Affordable Care Act: Upcoming Responsibilities for Employers

For the past few years it seems you could not go a single day without hearing about Obamacare or the Affordable Care Act (as it is formally known). Although the conversations have died down a bit, the Affordable Care Act (ACA) is still bringing changes. Of interest to employers are the upcoming changes required for compliance with the ACA.

One change necessary for compliance is under the Employer Shared Responsibility provision of the ACA. Specifically, employers with 100 or more “full-time” employees will soon (at the beginning of 2015) need to offer health coverage to at least 70 percent of their employees in order to avoid fines. At the beginning of 2016 this percentage of health covered employees will increase to 95 percent for large employers, and companies with 50-100 “full-time” employees will need to offer coverage for at least 70 percent of their workforce to avoid penalties.

The law has outlined two methods of determining how many “full-time” employees an employer has. The first method is the Month by Month method; this method states that a “full-time” employee is any employee who averages at least 30 hours of service per week for a calendar month. “Service” includes paid time off for: vacation, holidays, illness, incapacity, disability, layoff, jury duty, military duty, or leave of absence. The second method of determining your number of “full-time” employees for the purpose of the ACA, is the Look-Back Measurement method. This method allows employers to determine their number of “full-time” employees by choosing a period of time within the past year (three months, six months, etc.) and counting backward, relying on the assumption that an employer will have roughly the same amount of employees from year to year.

To learn more about the Affordable Care Act and employer compliance, attend our seminar: “The 411 on the Affordable Care Act: What Every Employer Must Know and Do to Comply” on September 11, 2014.  Click here for more information.

If you have any questions regarding the Affordable Care Act and employer compliance, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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EEOC Issues New Guidance on Pregnancy Discrimination

This week, the Equal Employment Opportunity Commission (EEOC) released guidance on pregnancy discrimination, which is the EEOC’s first update on its position regarding this issue since 1983. This guidance has sparked criticism due to some of its controversial provisions. For example, the guidance prohibits employers from denying light duty work as an accommodation for pregnant workers. This very issue is currently pending before the U.S. Supreme Court.

Prior to the release of the EEOC guidance, the Supreme Court agreed to review Young v. United Parcel Services, a case which focuses on reasonable accommodations for pregnant workers. Peggy Young, a part-time UPS driver, commenced this lawsuit after her employer refused to assign her to light duty work in accordance with its policy. Per her medical provider, Young was restricted from lifting more than twenty pounds during her pregnancy. She claimed that UPS’s refusal to assign her light duty work was a violation of the Pregnancy Discrimination Act (PDA), which prohibits discrimination against employees on the basis of pregnancy, childbirth, or related medical conditions.

The UPS policy at the center of this legal battle is governed by a collective bargaining agreement, which reserves light duty work for employees with work-related injuries or those with disabilities cognizable under the Americans with Disabilities Act (ADA). Young was denied light duty work in accordance with the policy because she did not qualify for either category since the limitation caused by her pregnancy was neither work-related nor a disability cognizable under the ADA. Since the essential functions of her job as a part-time driver included the ability to lift packages weighing up to seventy pounds, Young was forced to go on medical leave and return after her baby was born.

The main issue before the Court is whether an employer who provides light duty work as an accommodation to non-pregnant workers must provide the same accommodation to pregnant workers.

The EEOC’s position on this issue appears to side with Young’s argument in this case; essentially, pregnant workers should not be denied light duty work based on the source of their limitation (i.e. pregnancy). Critics have noted that the EEOC’s position is, in certain aspects, contradictory to existing case law and not supported by the language of the PDA or the ADA. Others have expressed concerns about the EEOC’s bold attempt to release controversial guidance on a topic which is currently pending at the Supreme Court. It will be interesting to see whether the Supreme Court will follow the EEOC’s direction.

In a nutshell, employers should be mindful of this new guidance when handling requests by pregnant workers for reasonable accommodations. In addition, employers would be wise to consult with employment counsel to ensure that their policies are in compliance with the new EEOC guidance.

If you have any questions regarding the Pregnancy Discrimination Act, the Americans with Disability Act, or reasonable accommodations, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Will Massachusetts be the Second State to Grant Earned Sick Time to Employees?

Connecticut already has a paid sick leave law (read more here), but Massachusetts has only been considering a similar law for a few years now. In November, Massachusetts voters will have the option of deciding if we want to follow in Connecticut’s footsteps by voting on the ballot question seen here.

This proposed law would allow employees in Massachusetts to be able to earn and use up to forty hours of sick time each year. If the employer has eleven or more employees, this time will be paid by law, however; if the employer has less than eleven employees, the leave will be unpaid.

The employee earned “sick time” could be used by employees in three instances.
1. To care for employee, employee’s spouse, child, parent, or parent of spouse suffering from mental or physical illness, injury or medical condition, or
2. To attend routine medical appointments of employee, employee’s spouse, child, parent, or parent of spouse, or
3. To address any effects of domestic violence on employee or employee’s dependent child.

While employers would need to provide time off to employees in the above instances, if it has been earned (one hour earned for every 30 hours worked), the employer may require certification of the need for sick time if more than 24 hours of sick time is used consecutively. However, it is unclear how employers could enforce this requirement as the law prohibits employers from delaying payment for or taking of sick leave for lack of certification.

If you have any questions regarding employee leave, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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When an Employer May Punish Off-Duty Conduct

You may have heard about the Florida police officers who recently faced issues at work for their memberships in the Ku Klux Klan. One officer resigned and the other is facing disciplinary action and possibly termination. This has led many to wonder aloud, ”can they do this?”

Put simply, yes. There are occasions when an employer may punish or prohibit an employee’s off-duty conduct, but employers should be careful not to prohibit conduct that is protected by anti-discrimination laws.

One instance where it is allowable for an employer to manage an employee’s off-duty conduct is when there is an actual business loss to the employer attributable to the employee. An example of this, in addition to the one above, is in a case where a bus driver publically identified as a leader of his state’s branch of the Ku Klux Klan. After the bus company terminated the driver, the court determined that this discharge was allowed because a bus boycott would cause substantial harm to the company.

Additionally, an employee’s off-duty conduct may be controlled by an employer where this conduct makes the employee unable to report to work. For example, if an employee is arrested and punished with a jail sentence for assault, the employer may terminate the employee because being in jail would clearly prevent the employee from attending work. As such, the assault is not being punished by the employer; rather, the absence from work resulting from the arrest is being punished.

Finally, an employee’s off-duty conduct can be regulated by an employer when it creates an impediment to productivity. An example of this is an employee making unwanted advances toward a co-worker off the clock that lead to sexual harassment on-the-clock. Although the advances are taking place off-the-clock, the effect of them, along with on-the-clock behavior is interfering with the company’s business.

In order to prevent claims of wrongful termination, employers should contact employment counsel prior to disciplining an employee for off-duty conduct. In addition, employers should make sure their supervisors and managers are up-to-date on training regarding when employees should be disciplined.

If you have any questions regarding employee discipline, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Executive Order on Sexual Orientation Discrimination in the Workplace

Massachusetts currently protects employees from discrimination based on their sexual orientation, but most states currently do not. However, President Barak Obama may soon change that. It is expected that our President will soon sign an executive order barring federal government contractors from discriminating against lesbian, gay, bisexual, and transgender (“LGBT”) employees and job candidates.

Although recent efforts to enact LGBT anti-discrimination have been stalled in the House of Representatives, this executive order’s success and support may prompt renewed efforts at enacting the proposed Employment Non-Discrimination Act (ENDA). ENDA would prohibit employers with fifteen or more employees from discriminating against LGBT applicants and employees.

With this on the horizon, employers should pay close attention to the President’s order and its application. Also, employers should review and consider updating various policies (including employee handbook changes) that may be impacted. Such policies as equal employment opportunity, harassment, family and medical leave, and bereavement may be implicated. In addition, employers should also make sure their supervisors are being trained in recognizing and handling discrimination regardless of the basis in an effort to prevent claims.

If you have any questions regarding discrimination in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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