Avoid the Pan and the Fire: Beware of New Policies Violating Old Regulations

As employers are all too aware, the workplace is a minefield of regulations. While a new mine, the Affordable Care Act (ACA), is on everyone’s mind as the compliance deadline is rapidly approaching for many, it is important not to forget the other mines in the field. Recently, the Equal Employment Opportunity Commission (EEOC) brought a suit against a Wisconsin employer arising from the wellness program that was part of the employer’s medical plan.

The ACA has many incentives for employers to have employee wellness programs. However, these wellness programs must be designed to promote health or prevent disease, designed to be available to all similarly situated employees, and must have alternative means for employees to qualify for the same rewards.

In EEOC v. Orion Energy Systems, the employer’s wellness plan provided that the employer would pay for 100% of the health insurance premiums for employees who participated in its “voluntary” wellness program, but employees who chose not to participate would be responsible for 100% of the premiums themselves. Additionally, the wellness program required employees to complete a Health Risk Assessment (HRA), which appears to include blood work and employee self-disclosure of his or her medical history, complete a medical history questionnaire, and using the employer’s range of motion machines. The EEOC alleges, among other things, that this wellness program violates the Americans with Disabilities Act (ADA) because the financial penalty is too great for the program to be considered “voluntary” and, therefore, employees were forced to participate in medical examinations and inquiries that were not job related.

This illustrates how important it is to carefully review policies annually and contact employment counsel prior to putting a new policy in place. Additionally, if you have not already started preparing for ACA compliance, now is a good time to start, 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 or how policies imply other regulations, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Supreme Court to Decide Whether EEOC Mandatory Conciliations are Enforceable by Lower Courts

In its 2014-2015 term, the Supreme Court will decide whether courts have the authority to review the Equal Employment Opportunity Commission’s (EEOC) conciliation efforts prior to bringing suit. This decision will bring much needed guidance to courts about whether failure to satisfactorily conciliate EEOC claims is a viable affirmative defense (a defense in which the defendant introduces evidence, which would negate liability, even if the defendant committed the alleged acts).

In most circuits, an employer may affirmatively defend itself against a lawsuit brought under Title VII if the EEOC has failed to properly engage in the conciliation process. However, each circuit has adopted different standards for evaluating whether the EEOC’s conciliation efforts are substantial with no clear legal standard triumphing.

However, the Seventh Circuit Court of Appeals ruled in Mach Mining v. Equal Employment Opportunity Commission that because there was no clear legal standard to review the EEOC’s conciliation efforts, the affirmative defense for failure to conciliate was unavailable for employers.   The Supreme Court will review this decision in its upcoming term.

The EEOC is responsible for enforcing Title VII though investigation, settlement, and filing lawsuits for allegations of employment discrimination.  But before the EEOC can file a lawsuit on behalf of an employee, it is obligated to make efforts to negotiate a resolution to the charge; this is the conciliation requirement. Only after the EEOC has found cause and has gone through a satisfactory effort to conciliate the charge can the EEOC file a suit.

If the Supreme Court rules in the employer’s favor the EEOC may be forced to implement a uniform nationwide conciliation policy, making a more clear and streamlined process. This decision would also give employers a bright line rule on how courts will evaluate the EEOC’s efforts.  However, if the Court finds the EEOC’s conciliation efforts are not reviewable by a court, the EEOC’s discretion to conciliate as it sees fit will continue unchecked.  Regardless of how the Court rules in the Mach Mining case, the verdict will be important to all employers defending against charges brought by the EEOC.

If you have any questions regarding the EEOC and conciliation requirements, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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School is Back in Session: Resident Assistants Are Not Employees for the Fair Labor and Standards Act

It is imperative for employers to accurately classify their workers to ensure their policies do not run afoul of the Fair Labor Standards Act (FLSA).  Institutions of higher education are no exception.  The United States Department of Labor (DOL) released guidance, seen here, about how to classify Resident Assistants (RAs) and Resident Directors (RDs) under FLSA.

The Department of Labor Field Operations Handbook explained the difference between student employees and students who are not considered employees under FLSA:

(a) University or college students who participate in activities generally recognized as extracurricular are generally not considered to be employees within the meaning of the Act…[S]tudents serving as residence hall assistants or dormitory counselors, who are participants in a bona fide educational program, and who receive remuneration in the form of reduced room or board charges, free use of telephones, tuition credits, and the like, are not employees under the Act.

(b) On the other hand, an employment relationship will generally exist with regard to students whose duties are not part of an overall educational program and who receive some compensation. Thus, for example, students who work at food service counters or sell programs or usher at athletic events, or who wait on tables or wash dishes in dormitories in anticipation of some compensation (money, meals, etc.) are generally considered employees under the Act. (Chapter 10b24)

This handbook indicates that generally Resident Assistants, as long as they are in school and are receiving compensation in the form of reduced room and board charges or similar methods, are not employees under the FLSA.  On the other hand, Resident Directors generally are employees, if they are paid and do not teach, as their duties are not part of an overall education plan.  While this determination has recently been challenged, it has not yet been overturned.

Although Resident Directors are considered employees, the college or university’s inquiry should not stop there.  The next determination to consider is whether they are exempt from overtime under the FLSA.  In order to be an exempt employee under the FLSA, the Resident Director must be paid at least $455 per week and have primary responsibilities which include exercising discretion and judgment over significant matters including quality control, health, safety, finance, and managing policies, among other things.

As Resident Assistant and Resident Director classifications continue to make their way through the courts, colleges and universities should be aware that classification standards may soon change.

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

Posted in Department of Labor, FLSA, Labor and Employment, Labor Relations, Wage and Hour | Tagged , , , , , , , | Comments Off

NLRB Continues to Expand Definition of Concerted Activity

The National Labor Relations Act prohibits employers from constricting protected concerted activity by their employees. The NLRB website states that “concerted activity” is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. However, in the past few years, the National Labor Relations Board (NLRB) has broadened the definition of what is considered concerted activity.

The most recent broadening of the definition of concerted activity is seen in Fresh & Easy Neighborhood Mkt., Inc. and Elias.  In this case, an employee acting for her own interests was deemed to have been engaging in protected concerted activity. Margaret Elias was employed by Fresh & East Neighborhood Market Inc. when she sought assistance from her co-workers in obtaining evidence of sexual harassment. Upon seeing an inappropriate image that had been drawn next to Elias’s name on a whiteboard in the break room, Elias sketched the image on to a piece of paper and asked other employees who were present to sign the paper to acknowledge that the image was a fair representation of what was on the whiteboard.

When management found out about the incident and Elias obtaining signatures, an Employee Relations Manager instructed Elias not to obtain any further statements regarding the incident and stated that Fresh & Easy would investigate. The Employee Relations Manager also told Elias that she could talk to employees about being witnesses but she could not discuss what they had witnessed. Elias claimed that Fresh & Easy violated the National Labor Relations Act by instructing her not to seek further statements. The NLRB determined that this was not the case and that Fresh & Easy had a legitimate interest in conducting a fair and impartial investigation without the interference of Elias.

The NLRB also took this opportunity to determine that Elias’s choice to ask for other employee’s signatures on her sketch of the alleged sexual harassment was concerted activity for the purpose of mutual aid and protection. While previously, the NLRB has held that similar activity is not concerted, the Board decided to go against that previous decision and stated that the proper question to determine if the activity was for mutual aid and protection is if there is a link between the activity and matters that concern the workplace or employees’ interests.

This case serves as a great reminder for employers to seek assistance from employment counsel whenever there is a complaint of discrimination or sexual harassment by another employee. Also, to reduce risk of claims, make sure all supervisors are properly trained to handle situations of employee conflict.

If you have any questions regarding protected concerted activity and employer obligations, please contact any of the attorneys at Royal LLP at (413) 586-2288.

Posted in Labor and Employment, Labor Relations, NLRA, NLRB, Uncategorized | Tagged , , , , , | Comments Off

Domestic Violence Leave for Massachusetts Employees

Governor Deval Patrick signed a bill into law that creates a category of job-protected leave for employees needing time off due to domestic violence.  As we previously discussed in an article about pending legislation, seen here, this law will require employers with 50 or more employees to permit up to 15 days of leave if either the employee or a family member is a victim of domestic violence or abuse.

This act defines domestic violence as abuse by a current or former spouse, a person with whom the victim shares a child, a person cohabitating with or has cohabitated with the victim, a relative, or a person with whom the employee or family member has or had a dating relationship.  The family member must be the employee’s spouse, parent, step-parent, child, step-child, sibling, grandparent, or grandchild in order to entitle the employee to such leave.   However, the employee is not entitled to job protected leave if he or she is the alleged abuser.

Also, this leave may only be used to address issues directly related to the abusive behavior such as seeking medical attention, counseling, victim services, attaining legal assistance, attending court, or other related activities.  Although the employee’s job must be protected during their leave, the employer is not required to pay the employee for this time.  Further, the employee must exhaust all of their vacation time, sick time, and personal days before they are eligible for this job-protected leave unless the employer decides to waive this requirement.

As with other job-protected leaves, employees should provide as much notice to their employers as possible, but in emergencies advanced notice is excused.  However, regardless of whether such leave is due to an emergency, the employee, a family member, or a professional from whom the employee has sought treatment or other services must notify the employer within three days of taking the leave.  An employer may only discipline an employee for unscheduled absences if there was no notice given regarding the leave and if the employee fails to provide supporting documentation within 30 days of the absence.  This documentation must be kept confidential.


Now that this law has passed, employers need to notify employees of their rights under this law.  To satisfy this requirement, employers may want to amend their employee handbooks with a written policy regarding domestic violence leave.  (Regardless, it is wise for employers to have their handbooks reviewed by employment counsel annually to ensure compliance with current laws.)  Additionally, employers should ensure supervisors, managers, and human resources professionals are properly trained regarding this law and their duties under it.

If you have any questions regarding domestic violence or job-protected leaves, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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No Excuse for Poor Performance

A recent decision in the Seventh Circuit Court of Appeals is a good reminder to employers that legal protections from retaliation and discrimination cannot be used to excuse an employee’s poor performance. In Langenbach v. Wal-Mart Stores, Inc., the court made it clear that an employer need not excuse an employee’s continued failure to meet expectations simply because the employee has engaged in a protected activity.

In this case, Erika Langenbach was hired by Walmart in 1998 and performed her work well earning two promotions in the first few years of her employment.  In 2008, Langenbach was admitted to Wal-Mart’s Management-In-Training program and her first few evaluations stated that she was a “Solid Performer.”  Subsequently, her supervisors noted deficiencies with her performance and, in 2009, she was placed on a Performance Improvement Plan.  Her evaluations going forward noted that she was not following management routines and frequently failed to complete her duties on time.  In 2010, Langenbach’s review rated her as “Development Needed.”  In mid-2010, Langenbach took a six-week leave under the Family and Medical Leave Act (FMLA) to have surgery. After she returned to work, she was again evaluated as “Development Needed” and placed on a “Performance Improvement Plan.” Three follow-up evaluations were performed to determine if she was making progress, but at all of these sessions Langenbach was rated as “Below Expectations.” Five months after returning from leave, Langenbach was terminated.

Among other claims, Langenbach alleged that the poor performance evaluations and ultimately her termination were in retaliation for her taking FMLA leave. As Wal-Mart was able to state a legitimate, non-discriminatory reason for her termination (i.e. poor performance), the court ruled that her claim of retaliation had no merit and affirmed the summary judgment ruling for Wal-Mart.

In addition to the reminder that taking job protected leave does not excuse an employee’s poor performance, this case illustrates the importance of training supervisors and documenting performance.  Wal-Mart prevailed because it had well-documented Langenbach’s poor performance.

Too often we see claims where an employee has been performing poorly, but performance evaluations do not reflect this.  If you are facing a situation where you are considering disciplining or terminating an employee for poor performance soon after they have engaged in protected activity, such as leave under the FMLA, it would behoove you to consult with your employment counsel before moving forward. Employment counsel will help you ensure you are complying with state and federal employment law and have sufficient documentation to back up your decision, which will better position you in the event you later have to defend your decision.

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

Posted in ADA, Age, Discrimination, EEOC, FLSA, FMLA, GINA, Labor and Employment, PDA, Retaliation, Termination | Tagged , , , , | Comments Off

NLRB Holds Employer’s Distribution and Solicitation Policy Violates the National Labor Relations Act

In its latest decision aimed at scrutinizing employers’ workplace rules, the National Labor Relations Board found the distribution and solicitation policy of one employer unlawfully restricted employees Section 7 rights to unionize free from employer interference. In Mercedes-Benz U.S. International, Inc., it noted, “as a rule of thumb, if an employer allows its employees to discuss any non-job-related subject while they work, they may discuss forming a union.”

The handbook policy in question “prohibit[ed] solicitation and/or distribution of non-work related materials by Team Members during work time or in working areas.”  The NLRB held that this policy was unlawful because the language was ambiguous and did not clearly convey that employees could solicit in working areas during non-working times.  As such, the NLRB concurred with the employee’s argument that the reasonable employee could interpret the policy as prohibiting an off-duty employee from discussing forming a union with another off-duty employee in a work area. 

Although the employer brought forth evidence of how it enforced the policy and allowed employees to freely solicit during non-work time in working areas, the NLRB found that the “mere maintenance of the rule, even without enforcement” violated the National Labor Relations Act.

This case serves to caution employers to carefully consider the wording of policies and rules in their handbooks.  As the NLRB continues its latest trend of casting a critical eye on workplace rules, employers concerned about potential pitfalls should consult legal counsel to update their handbooks and consider revising policies that may run afoul of the NLRA in light of decisions like this one.

If you have any questions regarding the National Labor Relations Board and its decisions, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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President Obama Signs Fair Pay and Safe Workplaces Executive Order

Last week, President Obama signed the “Fair Pay and Safe Workplaces Executive Order,” which requires prospective federal contractors seeking contracts over $500,000 to disclose any labor and employment law violations within the past three years including any violations of federal and state laws regarding wage and hour, health and safety, collective bargaining, family and medical leave, and civil rights protections.

In addition to reporting labor and employment law violations, the Executive Order is aimed at promoting paycheck transparency and prohibiting mandatory arbitration of Title VII claims and sexual harassment claims.  The Executive Order, which will become effective in 2016, is estimated to affect over 24,000 businesses employing approximately 26 million workers.

If you have any questions regarding compliance with or reporting labor and employment law violations pursuant to this Executive Order, please contact any of the attorneys at Royal LLP at (413) 586-2288.

Posted in ADA, Age, Department of Labor, Discrimination, FLSA, FMLA, GINA, Government Contractors, Labor and Employment, Labor Relations, NLRA, NLRB, PDA, Retaliation, Wage and Hour | Tagged , , , , , , , , | Comments Off

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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