The exact limits of employee protected speech on social media are still finding definition, but a recent National Labor Relations Board decision identifies at least one limit:  premeditated insubordination.  In Richmond District Neighborhood Center, the Board held that two employees who discussed their plans on Facebook to engage in insubordinate activity on the job did not engage in protected activity, and the employer therefore did not commit an unfair labor practice by rescinding their rehire offers. In Richmond, the employer operated a teen center in San Francisco.  At an employee meeting, the employer solicited feedback on the program and employees submitted their perceived “pros” and “cons” regarding the program.  Following the meeting, two employees requested a follow-up meeting and the employer denied their requests.  During the subsequent summer break (during which employees are sent offer letters for rehire), the employer sent the two employees offer letters and the two employees engaged in the following conversation on Facebook about their plans to return to the program the following year: EMPLOYEE 1:  I'll be back, but only if you and I are going to be ordering s***, having crazy events at the Beacon all the time.  I don't want to ask permission, I just want it to be LIVE.  You down? EMPLOYEE 2:  Im gOin to be a activity leader im not doin the [teen center] let them figure it out and when they start loosn kids i aint helpn HAHA EMPLOYEE 1:  hahaha.  Sweet, now you gonna be one of us.  Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food.  I don't feel like bein their b**** and making it all happy-friendly-middle school campy.  Let's do some cool s***, and let them figure out the money.  No more Sean.  Let's f*** it up.  I would hate to be the person takin your old job. EMPLOYEE 2:  Im glad im done with that its to much and never appriciated sO we just gobe have fuN dOin activities and the best part is WE CAN LEAVE NOW hahaha I AINT GOBE NEVER BE THERE even thO shawn gone its still hella stuCk up ppl there that dont appriciate nothing EMPLOYEE 1:  You right.  They dont appreciate s***.  Thats why this year all I wanna do is s*** on my own.  have parties all year and not get the office people involved.  just do it and pretend they are not there.  i'm glad you arent doing that job.  let some office junkie enter data into a computer.  well make the beacon pop this year with no ones help. EMPLOYEE 2:  They gone be mad cuZ on wednesday im goin there aNd tell theM mY title is ACTIVITY LEADER dont ask me nothing abOut the teen cenTer HAHA we gone have hella clubs and take the kids ;) EMPLOYEE 1:  hahaha!  F*** em.  field trips all the time to wherever the f*** we want! EMPLOYEE 2:  U f**** right see u WednesdaY EMPLOYEE 1:  I won't be there wednesday.  I'm outta town.  But I'll be back to raise hell wit ya.  Dont worry.  Whatever happens I got your back too. After a co-worker took a screenshot of the conversation and showed the employer, the employer rescinded the employees’ rehire offers.  The Board's General Counsel challenged the revocation of the offers as an unfair labor practice, arguing that the employees’ Facebook conversation constituted protected concerted activity under Section 7 of the National Labor Relations Act. The Board disagreed, noting that the “Facebook exchange contains numerous statements advocating insubordination” which could not be “easily explained away as a joke, or hyperbole divorced from any likelihood of implementation.”  The Board distinguished the conversation from “brief comments” which, in contrast, might be dismissed as hyperbole.  The Board held:  "The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take.  The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.”  Accordingly, the employees’ conduct was not protected and the employer did not commit an unfair labor practice by withdrawing the rehire offers. This decision demonstrates that even the current Board has a limit to what type of employee conduct on social media must be tolerated by employers.  Although this decision will likely enable employers to more confidently take action against employees who discuss premeditated insubordination on social media, the distinction between true threats of insubordination and what the Board might consider to be hyperbole is somewhat murky.  Employers should still tread carefully before disciplining employees for conversing on Facebook about work-related issues.

By now, most employers are familiar with the list of categories protected from employment discrimination under Title VII of the Civil Rights Act:  race, color, religion, national origin and sex.  Additional categories are protected by other federal anti-discrimination laws:  disability (Americans with Disabilities Act), age (Age Discrimination in Employment Act), pregnancy (Pregnancy Discrimination Act), and genetic information (Genetic Information Nondiscrimination Act).  Absent is any mention of sexual orientation or gender identity. The protections are, of course, broader in New York State.  Under the New York Human Rights Law, discrimination on the basis of sexual orientation (among other things) is also prohibited.  And in New York City, the New York City Human Rights Law prohibits discrimination on the basis of gender identity. Advocacy groups have been clamoring for legislation to protect transgender and lesbian/gay employees on the federal level for years.  The Employment Non-Discrimination Act (ENDA) would explicitly prohibit employment discrimination on the basis of sexual orientation and gender identity, but ENDA (despite versions being introduced in almost every Congress since the 1990s) has never made it to the President’s desk. Enter the EEOC.  Apparently tired of waiting for legislative protection for transgender employees, the EEOC has taken matters into its own hands. Back in April 2012, the EEOC officially took the position that transgender discrimination is a form of gender discrimination in violation of Title VII.  In Macy v. Holder, a case involving an applicant to the Bureau of Tobacco, Firearms and Explosives, the EEOC concluded that the Bureau violated Title VII when it withdrew an employment offer after the candidate revealed she was in the process of transitioning from male to female.  The EEOC reasoned that the term “sex” in Title VII encompasses not only a person’s biological sex, but also the cultural and social aspects associated with masculinity and femininity, and therefore, the law’s prohibition against sex discrimination is broader than discrimination based on biological sex.  The EEOC relied on Price Waterhouse v. Hopkins, a 1989 U.S. Supreme Court decision that established a theory known as “sex stereotyping.”  Under this theory, employers unlawfully discriminate on the basis of gender when they take some action against an employee because he or she does not conform to expected gender stereotypes.  The Macy decision was significant, as it was the first time the EEOC officially took this position regarding transgender discrimination.  However, since Macy was an administrative ruling involving a federal agency, it did not create binding precedent for courts. Later in 2012, the EEOC issued its Strategic Enforcement Plan.  As we wrote here, that plan made “coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions” a top enforcement priority. Fast forward to September 2014.  Seemingly eager to create binding court precedent recognizing transgender discrimination as a form of sex discrimination under Title VII, the EEOC filed two lawsuits against employers alleging transgender discrimination.  In EEOC v. Lakeland Eye Clinic (filed in Florida) and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (filed in Michigan), the EEOC claims that employees were terminated after informing their employer that they were transgender.  These cases are both in the early stages, but we will monitor and report on any significant developments in those cases. In the meantime, employers should be ready to deal with the issues that arise with transgender employees in their workplace.  It is wrong to assume these employees are not protected just because the terms “transgender” or “gender identity” do not appear in the federal or state employment discrimination laws.  Aside from not making employment decisions based on an employee’s gender identity, there are also accommodation issues to consider.  Should a transitioning employee be allowed to use the restroom corresponding to their gender presentation -- even if it makes other employees uncomfortable?  (Yes.)  Should you change the first name of the employee in your employment records based on a request?  (It depends on the record.)  The questions abound.  Stay tuned for more guidance on these complex issues.

As many school districts are aware, it is not uncommon for a district to receive a request to disclose allegedly relevant student records to a tenured teacher facing disciplinary charges in the context of an Education Law Section 3020-a proceeding.  However, as school districts are also aware, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student educational records and prohibits the disclosure of such records except in limited circumstances.  Thus, the teacher’s right to access evidence relevant to his/her defense must be balanced against a student’s right to privacy in his/her educational records.  The decision recently issued by the Appellate Division, Fourth Department, in In re Watertown City School District v. Anonymous is a good reminder to school districts that a teacher's right to access student records in a disciplinary proceeding is not absolute. At issue in the Watertown City School District case was whether a tenured teacher could compel the school district to disclose student records that the teacher claimed were “highly relevant” and “necessary” to the teacher’s defense to disciplinary charges.  The teacher served on the district a broad subpoena seeking the production of all student records for all student witnesses who would be testifying against the teacher during the disciplinary hearing.  The sole limitation on the teacher’s request was that records prior to seventh grade were not requested; all other student records were requested under the subpoena. The district objected that the student records sought were irrelevant and protected under FERPA, and ultimately brought a proceeding in New York State Supreme Court to quash the subpoena.  The Supreme Court disagreed with the district, and ordered the district to produce all of the records requested under the subpoena. However, on appeal, the Appellate Division reversed the lower court's ruling, and granted the school district's petition to quash the subpoena.  The Appellate Division explained that the teacher was required to come forward with a factual basis establishing the relevance of the documents sought.  The Court held that the teacher failed to meet this burden, principally because the allegations of misconduct against the teacher involved activities outside the classroom and the teacher did not provide any specific information regarding how the students' educational records were relevant to her defense. In light of the Appellate Division’s ruling in the Watertown City School District case, school districts can breathe at least a small sigh of relief knowing a tenured teacher facing disciplinary charges cannot gain unfettered access to student records in search of evidence to use in his/her defense.  At a minimum, the teacher must establish a factual basis demonstrating that the student records sought are relevant and reasonably related to the teacher’s defense.

On November 6, Erie County Executive Mark Poloncarz signed an Executive Order, which requires all contractors, prior to entering into a contact with the County, to submit an Erie County Equal Pay Certification stating their compliance with federal and state equal pay laws.  The order applies to all bids, requests for proposals, and other contract solicitations issued by County offices, departments, and administrative units on and after January 1, 2015. Under the Executive Order, equal pay laws, which mandate that men and women are paid equally for the same work, include the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Federal Executive Order 11246, and Section 194 of the New York State Labor Law (collectively referred to as the “Equal Pay Laws” in the Executive Order).  The required certification must include a declaration that there have been no adverse findings against the contactor under the Equal Pay Laws within the last five years and a disclosure of any pending claims against the contractor.  The Erie County Law Department will create the Equal Pay Certification form that contractors will be required to sign. Additionally, the County’s Division of Equal Employment Opportunity (the “Division of EEO”) is required under the Executive Order to establish a procedure for monitoring and periodic auditing of contractors to ensure compliance with the Equal Pay Laws and the certification requirements.  This increased oversight is significant, because a County contract may be immediately terminated and/or the contractor may be disqualified from participating in future County contracts if the contractor files a false or misleading certification or violates any provision of the Equal Pay Laws during the term of the contract. When the Division of EEO establishes a procedure for compliance monitoring and auditing, and when any other guidance becomes available, we will follow and report on those developments.

With that first real chill in the air, the holiday season is suddenly upon us.  For parents, it is a time to relive our childhood, watching with our children all of those holiday specials ranging from It's the Great Pumpkin, Charlie Brown to Santa Claus is Comin' to Town.  Unfortunately, for members of our misfit profession, “tis the season” is not so much about being jolly, but more about defending lawsuits. And speaking of lawsuits, a daily perusal of employment law blogs and periodicals reveals that there is no shortage of new and innovative ways to sue an employer.  The seemingly endless tide of profligate litigation makes me shiver like Linus in the Pumpkin Patch about what would happen if the Department of Labor, the EEOC, or the plaintiff’s bar set its sights on Santa and his manufacturing plant in the North Pole.  For this reason, I offer the following guidance to Mr. Kringle d/b/a Santa on how to clean up some glaring employment law violations.  (Disclaimer:  Our guidance to Mr. Kringle is not intended to be legal advice nor should it be a substitute for him retaining local counsel familiar with the laws in his local jurisdiction.  I would also include the obligatory tax advice disclaimer, but I believe Mr. Kringle is tax-exempt.) I will discuss individual lawsuits below.  However, my main concern in terms of liability is in the arena of the class action.  I say this with all due love and affection, “Mr. Kringle, your workshop is a treasure-trove of wage and hour violations.”  The elves work, quite obviously, more than 40 hours a week.  They work through meal periods and weekends and holidays.  Where is their overtime pay?  While efficiently furnished, I don’t see any punch clock for your employees.  Can we say liquidated damages and attorneys’ fees? Your workplace is also quite literally an accident waiting to happen.  The elves have no protective equipment.  There is an Abominable Snowman on the shop floor.  Can we all say, “OSHA”? Mr. Kringle, despite your big heart, your workplace is rife with harassment and discrimination.  For example, there is Rudolph’s red nose and the universally known harassment and bullying to which he has been subjected (“used to laugh and call him names”).  The un-remedied mocking of Rudolph makes for a great holiday gift for the plaintiff’s lawyer who signs up Rudolph and his “slam dunk” suit.  (We make no representations as to whether any plaintiffs-side lawyers are on the "Nice List" and worthy of such a gift).  I think it is imperative that all of your reindeer immediately receive anti-harassment training.  So too with poor Hermey.  The Seinfeldesque “Anti-Dentite” environment that you have condoned is ripe for litigation and is otherwise an insult to dentists world-wide.  That leads us to our Faragher defenses.  Are your EEO policies translated into “Elfish” and properly distributed with a clear record of same? Of additional concern, have you taken care to make sure that the post-toy delivery workplace celebration does not cross the proverbial “line” of appropriateness and result in more than just hangovers at the workshop the next day? Finally, we need a word about the Island of Misfit Toys.  Notwithstanding that the public may want all lawyers permanently deposited in this desolate place, it is nonetheless illegal to segregate your workforce on the basis of such protected characteristics as being a cowboy who rides an ostrich.  And, who among us wouldn’t want to ride an ostrich? Of course, Mr. Kringle is not the only one staring down the barrel at punitive damages.  Yes, I’m talking to you, Mr. Burgermeister Meisterburger.  Making toys is plainly a recreational activity under state labor laws and interfering with concerted activity in this regard will get you an unfriendly knock on the door from the NLRB. So, to our clients and blog subscribers, I wish you all a joyous holiday season in front of a warm fire surrounded by friends and family, without any visions of EEOC complaints or Department of Labor audits dancing in your heads.

Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes.  While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion.  The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner.  Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis.  When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation.  While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question:  Do any job protections exist for domestic violence victims? Answer:  Yes.  In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis.  While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence.  This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons.  It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments.  Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business.  Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question:  Is an employer required to provide victims of domestic violence time off from work? Answer:  The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection.  In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence.  The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question:  Is an employer obligated to ensure a safe workplace for domestic violence victims? Answer:  The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions.  Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee.  Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees.  An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question:  What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence? Answer:  New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor.  At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds.  This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission.  If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime.  In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation.  Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action.  Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused.  If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection).  If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record.  In either situation, merely ignoring the problem is never a good strategy.

Two months ago, many Americans were unfamiliar with the term “Ebola."  It’s amazing how quickly things can change.  Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak.  Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans.  If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus.  Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are:  fever, fatigue, muscle pain, headache, and sore throat.  As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to:  nausea, vomiting, diarrhea, a rash, and impaired organ function(s).  The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q:  What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue.  If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:

• Americans With Disabilities Act (“ADA”) – e.g., disability-related inquiries, medical examinations, regarding employees as being potentially disabled, etc.;
• Occupational Safety & Health Act (“OSHA”) – e.g., adhering to OSHA directives and guidelines regarding cleaning and decontamination, use of personal protective equipment ("PPE"), following blood-borne pathogen standards, complying with hazard communication requirements, other circumstances that may fall within the General Duty Clause, etc.;
• Title VII of the Civil Rights Act (“Title VII”) – e.g., ensuring that employment actions and decisions do not result in discrimination, harassment, or retaliation on the basis of race, ethnicity, or national origin;
• Family and Medical Leave Act (“FMLA”) – e.g., ensuring proper notification to employees of their FMLA leave rights and proper designation of FMLA leave, where applicable; and
• National Labor Relations Act (“NLRA”) – e.g., respect employees’ rights to lawfully discuss and raise safety concerns regarding Ebola in the workplace.

Q:  May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA.  Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard?  The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so.  As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present:  (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q:  To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored.  In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus.  Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q:  May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances.  In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others.  Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk.  The governing standard here is one of reasonableness.  For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms.  Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q:  What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury.  Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm.  According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States.  Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern.  Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q:  What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed.  In other words, don’t panic.  Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:

• Educate the workforce.  Lack of information or misinformation spawns unnecessary hysteria.  The more employees know about Ebola and how it is transmitted, the better equipped they will be to approach this outbreak in a pragmatic and reasonable fashion.
• Remind employees about proper infection control practices (i.e., regular hand washing, sneezing/coughing etiquette, minimizing handshakes and other similar forms of contact where possible, etc.).
• Follow OSHA guidance regarding cleaning and decontaminating work surfaces that may contain or have been exposed to blood or bodily fluids.
• Consider whether telecommuting would be an effective infection control strategy for an employee who may need to remain out of the physical workplace due to Ebola-related concerns.
• Review and consider whether any business that needs to be conducted abroad (to areas impacted by Ebola or close in proximity thereof) can either be postponed or conducted remotely.
• Routinely monitor the workplace to prevent discrimination, harassment, and retaliation against employees as a result of this outbreak.

It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States.  However, what is abundantly clear is that this situation is constantly changing.  What may seem reasonable today may need to be modified tomorrow.  As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.

On July 5, 2014, Governor Cuomo signed the Compassionate Care Act, making New York the twenty-third state to legalize medical marijuana.  This new law creates a medical marijuana program for individuals suffering from certain severe, debilitating, or life-threatening conditions (e.g., cancer, ALS, Parkinson’s disease, epilepsy, etc.).  The goal of the program is to ensure that medical marijuana is available for certified patients with “serious conditions” and is administered in a manner that protects the public health and safety.  To that end, the law will be regulated by the New York State Department of Health, which will certify physicians to administer the drug, register organizations to provide the drug, issue identification cards to qualifying individuals, establish the list of “serious conditions,” and regulate the price of the drug.  This program is expected to be up and running within the next 18 months.  In the meantime, employers should become familiar with the ways in which this law may impact the workplace. Notably, the law creates certain protections for employees who legally use medical marijuana.  In this regard, employers are prohibited from taking disciplinary action against employees because of their lawful use of the drug.  In addition, employees lawfully using medical marijuana are deemed to have a “disability” under the New York Human Rights Law.  As a result, employers who discipline or terminate an employee for lawfully using medical marijuana may open themselves up to a disability discrimination claim.  Furthermore, employers will be required to consider making workplace accommodations for individuals who utilize medical marijuana. While this aspect of the law will likely present new challenges for employers, there are certain things employers should be mindful of that will assist them in managing these situations:

1. The law does not prevent employers from enforcing policies and procedures prohibiting employees from performing their job duties while impaired by a controlled substance.  Accordingly, employers can lawfully prohibit all employees, including those that utilize medical marijuana, from working while impaired.  As a practical matter, an employer who is on notice that an employee is certified to use medical marijuana may find it helpful to request information from the employee’s doctor to determine if and to what extent the employee may be impaired in the performance of his/her job duties.  The employer may need to consider whether accommodations can be provided to allow the employee to work unimpaired (such as modifying the employee’s hours of work based on his/her medical use regime).
2. The law does not require employers to allow employees to utilize or carry medical marijuana if it would violate federal law or put their business in jeopardy of losing a federal contract or federal funding.
3. An individual must obtain a registration identification card and must carry the registration card whenever the individual has marijuana in his or her possession.  This registration card will make it easier for employers to verify whether employees are lawfully in possession of marijuana in the workplace.  If an employee has marijuana in his or her possession and is not able to produce the registration card upon demand, the employee is not lawfully utilizing the drug and is not entitled to the employment protections detailed above.
4. In addition to a registration card, an individual must also have a valid prescription from a certified physician in order to lawfully use medical marijuana.  Employers should be aware of this in the event an individual tests positive for marijuana use.  That is, a positive result for marijuana may not necessarily be a test result that justifies adverse employment action.
5. Certified individuals are strictly prohibited from smoking medical marijuana.  Therefore, if an employee smokes marijuana in the workplace or if the employer reasonably concludes based on other evidence that the employee is smoking marijuana recreationally (e.g., smelling of marijuana smoke), the employee will be outside the scope of employment protection.
6. Certified individuals are prohibited from consuming marijuana (in any form) in a public place.  Public place is not currently defined; however, the Commissioner of Health was granted the authority to issue regulations defining “public place.”  If the Commissioner defines “public place” to include the workplace, employers will not be required to accommodate employees by allowing them to consume the drug in the workplace (and, of course, if ingestion at work would result in impairment, this would not be required in any event).

Any final guidance to employers must await the regulations issued by the Commissioner of Health.  However, it is not too early for employers to begin to consider how this new law will affect their workplaces.  The most obvious change that will likely be necessary is to misconduct policies that address the use of drugs.  Employers will need to ensure that their policies appropriately carve out an exception for (or otherwise do not subject to discipline) lawful medical use of marijuana.

The Affordable Care Act creates new incentives to promote employer wellness programs.  However, employers should not rush to establish such programs without first considering the implications of the Americans with Disabilities Act.  Why?  The Equal Employment Opportunity Commission has not yet issued guidance on how employers may structure their wellness programs to avoid violations of the ADA, despite placing this issue on its Semiannual Regulatory Agenda in May 2014.  In fact, the EEOC does not anticipate that any administrative direction on this issue will be forthcoming in the immediate future.  Despite a lack of guidance, the EEOC is actively pursuing litigation in this area.  In this regard, the EEOC recently filed two cases against employers, claiming that their wellness programs violated the ADA. In the first case, the EEOC filed a complaint against Orion Energy Systems, Inc., alleging that through its voluntary wellness program, Orion required an employee to submit to medical examinations and inquiries that were not job-related or consistent with business necessity in violation of the ADA.  According to the EEOC, Orion’s wellness program required employees to complete multiple medical history forms and submit to blood work.  One employee, Wendy Schobert, objected to participation in the wellness program.  She asked whether participation was voluntary and whether the medical information would be maintained in a confidential file.  The EEOC claims that Orion’s personnel director and Ms. Schobert’s supervisor told Ms. Schobert not to express any opinions about the wellness program to her co-workers.  Ultimately, Ms. Schobert decided to opt out of Orion’s wellness program.  As a result, the EEOC asserts that Orion failed to pay Ms. Schobert’s insurance premium costs because she did not participate in the wellness program and subsequently terminated her employment. In the second case, the EEOC filed a complaint against Flambeau, Inc.  Similar to the Orion case, the EEOC alleges that the employer’s wellness program violated the ADA by requiring employees to submit to medical examinations and inquiries that were neither job-related nor consistent with business necessity.  Specifically, Flambeau’s wellness program required employees to complete biometric testing and a health risk assessment.  As part of this process, employees needed to disclose their medical histories and submit to blood work and measurements.  Flambeau covered approximately 75% of the health insurance premiums for employees who completed this voluntary process.  One employee, Dale Arnold, was not able to complete the biometric testing and health risk assessment as scheduled because he was on a medical leave of absence.  According to the EEOC, Mr. Arnold tried to complete the biometric testing and health risk assessment when he returned from his medical leave, but Flambeau did not permit him to do so and instead terminated his health insurance coverage.  Since Mr. Arnold could not afford to pay the entire premium cost for his health insurance under COBRA, his health insurance was canceled. Until the EEOC provides further guidance on this issue, employers should ensure that their wellness programs are truly voluntary.  Moreover, employers should make sure to avoid either significant penalties for employees who choose not to participate and/or significant rewards for employees who do participate in these programs.  Finally, any medical information that employers obtain through a wellness program should be kept confidential and should not be used as a basis for making employment decisions involving the employee.

On October 1, the U.S. Department of Labor announced the issuance of its final rule implementing Executive Order 13658, which establishes a minimum wage requirement for certain federal contractors.  The final rule was published in the Federal Register today, October 7. As we stated in a prior blog post, Executive Order 13658 requires that certain types of new federal contracts and subcontracts contain a clause specifying that the minimum wage to be paid to workers must be at least $10.10 per hour beginning January 1, 2015.  The new $10.10 minimum wage will also apply to disabled employees who are currently working under a special certificate issued by the Secretary of Labor permitting payment of less than the minimum wage. The final rule defines "new contract" as a contract that results from a solicitation issued on or after January 1, 2015, or a contract that is awarded outside the solicitation process on or after January 1, 2015.  A contract that was entered into prior to January 1, 2015 will constitute a "new contract" if, through bilateral negotiation, on or after January 1, 2015:  (1) the contract is renewed; (2) the contract is extended (unless the extension is made pursuant to a term in the existing contract providing for a short-term limited extension; or (3) the contract is amended pursuant to a modification that is outside the scope of the existing contract. The final rule also clarifies, to some degree, the types of federal contracts and subcontracts covered by the Executive Order.  The following types of contracts and subcontracts are covered:  (1) procurement contracts for construction covered by the Davis-Bacon Act; (2) contracts for services covered by the Service Contract Act; (3) contracts for concessions, including any concessions contract excluded from coverage under the Service Contract Act; and (4) contracts entered into in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.  Grants, within the meaning of the Federal Grant and Cooperative Agreement Act, are expressly excluded from coverage. Beginning January 1, 2016, and annually thereafter, the minimum wage for federal contractors will be increased by the Secretary of Labor based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers, and rounded to the nearest multiple of five cents.  The Secretary of Labor is required to publish the new minimum wage at least 90 days before the new minimum wage is scheduled to take effect. For tipped employees, the hourly cash wage paid by a federal contractor must be at least $4.90 beginning on January 1, 2015.  In each subsequent year, the federal contractor minimum wage for tipped employees will be increased by 95 cents until it equals 70 percent of the federal contractor minimum wage in effect for non-tipped employees.  If an employee’s tips, when added to the hourly wage, do not add up to the federal contractor minimum wage for non-tipped employees, the federal contractor will be required to supplement the employee’s hourly wage to make up the difference. The final rule also provides an investigation and enforcement procedure with respect to alleged violations of Executive Order 13658.  The potential remedies and sanctions that could be imposed include:  (1) requiring payment of back wages owed; (2) withholding of amounts due to the contractor under the federal contract to the extent necessary to satisfy the contractor's wage obligations; and (3) debarment for a period of up to three years. The Department of Labor's Wage and Hour Division has published on its web site a list of frequently asked questions and a fact sheet about Executive Order 13658.

A recent Second Circuit case highlights the potential perils of basing employment decisions upon subjective judgments which are susceptible to multiple interpretations.  In Abrams v. Department of Public Safety, the court reversed a summary judgment decision granted to an employer based upon the hiring supervisor’s assessment that a non-minority applicant for a detective position in a special major crimes group would “fit in better” than a minority applicant for that position. The minority detective, Frederick Abrams, brought a variety of discrimination and retaliation claims against a state law enforcement agency based upon his non-selection for a major crimes unit position and his subsequent reassignment to a casino unit following his internal complaints about not receiving the major crimes job and various other things.  The district court granted the law enforcement agency’s motion for summary judgment on Abrams’ discrimination claims, but found that there were sufficient questions of fact surrounding the retaliation claim to warrant those claims proceeding to trial.  In granting the summary judgment motion, the district court refused to consider the “fit in better” comment, finding that it was an inadmissible hearsay statement.  Abrams appealed to the Second Circuit after a jury ruled in favor of the law enforcement agency following a three-day trial. On appeal, the Second Circuit ruled that the lower court had improperly excluded the “fit in better” statement, finding that it was not hearsay and was admissible evidence.  The court explained that this statement was not being offered to establish its truth – that Abrams would not be a good fit – but rather only to show that the statement was made and that it referred to Abrams. The central question, the court observed, was whether this racially neutral statement was sufficient to create an inference of discrimination sufficient to avoid summary judgment.  Relying on an earlier Fifth Circuit decision, the Second Circuit noted:

[T]he phrasing "better fit" or "fitting in" just might have been about race; and when construing the facts in a light most favorable to the non-moving party, those phrases, even when isolated, could be enough to create a reasonable question of fact for a jury.  It is enough of an ambiguity to create a reasonable question of fact.

The case was therefore remanded to the district court for further proceedings and perhaps a second trial. This case plainly illustrates the vulnerability of employment decisions based upon ambiguous, subjective judgments and shows the ease with which these decisions can be attacked and challenged, even on appeal.  Because of the conflicting inferences that can be drawn from these judgments, employers are obviously well-served to base their employment decisions upon consistent, measurable, job-related criteria whenever possible.

On September 11, 2014, the U.S. Department of Labor, Occupational Safety and Health Administration ("OSHA"), announced a final rule amending its injury and illness recording and reporting requirements.  Although the rule has not yet been published in the Federal Register, it has been submitted for publication.  The final rule will be effective on January 1, 2015. The most notable change in the rule pertains to the reporting requirement for hospitalizations following work-related accidents.  Under the current rule in effect until December 31, 2014, an employer must report an “in-patient hospitalization of three or more employees as a result of a work-related incident” within eight hours.  Under the proposed rule, an employer must report an “in-patient hospitalization of one or more employees or an employee’s amputation or an employee's loss of an eye, as a result of a work-related incident” within 24 hours.  The rule also provides another means (besides calling the OSHA Area Office or the 1-800-321-OSHA hotline) for reporting a fatality or hospitalization:  electronic submission through a web portal at www.osha.gov.  There is also one important distinction:  “in-patient hospitalization” in the revised rule is defined as “formal admission to the in-patient service of a hospital or clinic for care or treatment”; the preamble to the rule makes clear that if the admission is for observation or diagnostic testing only, it is not required to be reported.  The requirement to report fatalities within eight hours remains unchanged under the revised rule. The rule also amends the list of industries that do not need to keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics.  The revised list can be found in the amendment to the Non-Mandatory Appendix A to Subpart B of Part 1904 in the final rule.  Employers with ten or fewer employees still need not keep injury and illness records unless otherwise informed by OSHA or the Bureau of Labor Statistics.  All employers, regardless of size or industry, must comply with the 8/24 hour reporting requirements for work-related fatalities, hospitalizations, amputations, or loss of an eye as set forth in the rule.