labor lawAdivision of labor law center

A number of states have laws that prohibit the employer from terminating an employee when an official quarantine is implemented by state or federal public health officials.

The Center for Disease Control says that H1N1 is widespread in 48 states plus Puerto Rico and Guam at this time. Only Louisiana, Hawaii, the U.S. Virgin Islands and the District of Columbia are not seriously affected.

In Delaware, Iowa, Maine, Maryland, Minnesota, Kansas, New Mexico and New Jersey, the employee’s job is protected if the employee is subject to an official quarantine order by a public agency. In addition, Kansas and Maine protect the employee’s job if he or she must remain at home to provide childcare when the schools are closed under a public quarantine order.

In most states plus the District of Columbia, the “public policy” exception to employment-at-will may protect an employee who is under a quarantine order. This would include Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, new Mexico, north Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, (more…)

A recent federal court ruling requires that employers be even more vigilant about seemingly “casual” negative remarks in the workplace.

This case heard by the 9^th Circuit Court of Appeals underscores the fact that supervisors and even coworkers should not ask questions about or discuss an employee’s religion, national ancestry or country of origin. Nor should employers make derogatory remarks about Muslims or members of other religions, even in passing.

It also emphasizes the importance of an employer conducting anti-discrimination training for all managers, after any reported incident.

In EEOC v. Go Daddy Software Inc. the court ruled that two passing remarks, more than a year apart, by two different supervisors, were enough to show a pattern of illegal discrimination against a Muslim employee.

The Equal Employment Opportunity Commission alleged discrimination based on religion and national ancestry. Youseff Bouamama, a Muslim born in Morocco, was hired by the company in late September, 2001. In December 2001, the employee’s hiring manager overheard him speaking French to a customer. The manager quizzed the employee on his religion and birthplace. Shortly after the 911 terrorist attacks on New York, the supervisor also made comments to the effect that Muslims needed to die.

Nineteen months later, (more…)

Reversing a recent trend to extend broader coverage to employees under FMLA, the 8^th Circuit Court of Appeals recently ruled that while treatment for alcoholism is covered by FMLA, a five-day drinking binge is not.

In Scobey v. Nucor Steel-Arkansas, a steel mill employee was no-call, no-show on April 10. The following day the employee, Talmadge Scobey, spoke briefly to his supervisor on the phone. Scobey sounded intoxicated, and told the supervisor he was not coming to work because he had suffered a nervous breakdown. However, when the supervisor tried to get more information, Scobey hung up.

The employee was also absent on April 12, 13 and 14. On April 14, the employee again phoned the supervisor, saying that he wanted to get help. The employee was referred to the HR manager, but did not contact her until April 19. At that point, the employee was referred to Nucor Steel’s employee assistance program, and entered an inpatient alcohol treatment program.

The employee argued that the employer should have known that his absence was for an FMLA-related reason due to his statements on April 11 that he had “a nervous breakdown” and the very colorful expression he used to mean that he was intoxicated at the time.

While employers should still err on the side of caution when providing (more…)

During July, both the U.S. House and Senate took measures that would require more employers to use E-Verify, including federal contractors and companies that benefit from federal stimulus spending.

The U.S. Senate passed an amendment to the 2010 Department of Homeland Security budget sponsored by Senator Jeff Sessions of Alabama, which will require federal contractors to use E-Verify, and extend that program for three more years.

According to Senator Sessions, this amendment will prevent illegal immigrants from being hired for construction projects funded by the federal stimulus packages. A similar bill was introduced in the House of Representatives.

The Society for Human Resource Management or SHRM has long opposed the mandatory use of E-Verify. SHRM argues that a biometric component such as fingerprints or retinal scan needs to be added to E-Verify. The problem is identity theft. Suppose a new employee presents documents for E-Verify as “John Turner”. E-Verify can check that John Turner can legally work in the U.S. However, there is no way for E-Verify to determine if the person presenting those documents is actually John Turner or not. SHRM and New York Senator Charles Schumer argue that E-Verify should not be used until the system can authenticate identity. Opponents claim that such a biometric system would be a violation of privacy.

While a number of states require employers to use E-Verify, federal contractors are still in limbo. In 2008, President George W. Bush signed an executive order that would have required federal contractors to implement E-Verify. However, it has been delayed and is currently being challenged in court by SHRM and other employer groups.

Nevertheless, many employers continue to voluntarily adopt the E-Verify system. E-Verify compares information provided by the (more…)

Employers should be cautious about routinely requiring fitness-for-duty certification from pregnant workers, after a recent EEOC discrimination suit.

A Kinston, North Carolina employer paid $300,000 to settle a claim of pregnancy discrimination brought by the federal Equal Employment Opportunity Commission. That covers back pay and compensatory damages for the affected employees.

The EEOC charged that since 2002, the employer has subjected pregnant employees to different terms and conditions of employment, compared to non-pregnant employees.

Specifically, the EEOC charged that the employer required pregnant women to furnish a full medical clearance in order to continue working – even if the employee took no time off and gave no indication that she was unable to perform her usual duties. This was in marked contrast to the treatment of non-pregnant employees, who were often permitted to return to work after an absence without a complete medical clearance.

This suit involved Britthaven, Inc. a corporation that owns and operates a chain of nursing homes and assisted living facilities. This specific incident involved an employee at the Carolina Commons facility in Greensboro. However, Britthaven apparently imposed similar restrictions on pregnant workers at some of its other 53 facilities in North Carolina, Virginia and Kentucky.

The EEOC contends that this practice resulted (more…)