The Employment Law Daily News for May 19, 2012
OSHA Announces Intent To Establish Whistleblower Protection Advisory Committee
Fri, 18 May 2012 17:14:45 - Pacific Time
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced its intent to establish a Whistleblower Protection Advisory Committee. The committee will advise, consult with and make recommendations to the secretary of labor and the assistant secretary of labor for occupational safety and health on ways to improve the efficiency, effectiveness and transparency of OSHA's administration of whistleblower protections. Dr. David Michaels, assistant secretary of labor for occupational safety and health, stated that "Workers who expose securities and financial fraud, adulterated foods, air and water pollution, and workplace safety hazards have a legal right to speak out without fear of retaliation, and the laws that protect these whistleblowers also protect the health, safety and well-being of all Americans…Establishing a federal advisory committee is another important effort to strengthen protections for whistleblowers." Read More.
Read More...Court Holds Employee Created A Direct Threat To The Workplace Due to His Heart Condition
Fri, 18 May 2012 16:58:29 - Pacific Time
Brian Wurzel worked for Whirlpool as a forklift driver. He suffered from Prinzmetal angina, which causes spasms in the coronary arteries. Wurzel could not predict when a spasm would occur, how severe it would be, or how long it would last. The spasms, which sometimes occurred at work, caused Wurzel to experience tightness in his chest, shortness of breath, numbness in his left arm, pain in his neck, and sometimes dizziness and fatigue. Although Wurzel acknowledged that he could not predict when a spasm would occur, he asserted that he could stop what he was doing before becoming incapacitated. Wurzel continued to experience spasms while on the job and the company’s human resources administrator required a medical clearance. Wurzel then provided a note from his physician that he could work with no restrictions.
Wurzel continued to experience spasms and eventually took a position in the company’s paint department, which did not require forklift driving but did require working around machinery. THe spasms continued and Whirlpool required an independent medical examination; that physician concluded Wurzel could not work around moving machinery because it created a safety risk. Wurzel then went on sick leave, eventually returned to work, and subsequently filed suit against the company claiming disability discrimination in violation of the Americans with Disabilities Act (ADA).
On appeal from the trial court’s decision granting summary judgment in favor of Whirlpool, the court determined that “Whirlpool's determination that Wurzel posed a direct threat was based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of Wurzel's abilities.” The court also concluded that “there is no evidence of a reasonably based medical judgment supporting the view that Wurzel did not pose a direct threat.” Read More.
Read More...Court Holds Starbucks Can Limit Number Of Pro-Union Buttons Worn By Employees
Thu, 17 May 2012 02:18:20 - Pacific Time
In an appeal involving a lawsuit filed by the National Labor Relations Board (NLRB) against Starbucks Coffee Company (Starbucks) the Second Circuit Court of Appeals has held that Starbucks's enforcement of its one pro-union button dress code is not an unfair labor practice. The case involved employees from four Starbucks who were engaged in a highly visible union organization campaign. In response, Starbucks mounted an anti-union campaign. The NLRB found that Starbucks committed numerous violations, including implementing a policy prohibiting employees from wearing more than one pro-union button on work clothes.
On appeal, the Second Circuit noted that Section 7 of the National Labor Relations Act guarantees all employees with the right to engage in concerted activities for the purpose of collective bargaining, and employers may not interfere with these rights. Further, "the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity." However, the Second Circuit held that the NLRB went “too far in invalidating Starbucks's one button limitation...‘Special circumstances justify restrictions on union insignia or apparel when their display may . . . unreasonably interfere with a public image that the employer has established.”’ Read More.
Read More...“Personal Attendant” May Be Exempt From Overtime
Thu, 17 May 2012 01:38:34 - Pacific Time
When someone hires an employee to care for an elderly or disabled person in his or her home, the employee is usually not entitled to overtime pay depending on the type of work performed by the caretaker. Specifically, if the employee performs work of a "personal attendant," which refers to a person employed to supervise, feed, or dress a person who by reason of age, physical disability or mental deficiency needs supervision, the caretaker is exempt from overtime pay requirements. However, if the caretaker performs a "significant amount of work" (i.e. duties which constitute greater than 20% of the weekly work time) in addition to these tasks, such as housekeeping responsibilities, the caretaker is not exempt from overtime pay. Additionally, with certain exceptions, if the caretaker is a registered nurse employed to engage in the practice of nursing in the home, the nurse is not exempt from overtime pay requirements. Read More.
Read More...Partner In Partnership Does Not Have Standing to File FEHA Claim
Thu, 17 May 2012 01:09:53 - Pacific Time
Mary Fitzsimons filed a lawsuit against the California Emergency Physicians Medical Group (CEP) for alleged unlawful retaliation (based on her complaint of sexual harassment) pursuant to the California Fair Employment and Housing Act (FEHA). The trial court found for CEP and Fitzsimons appealed, alleging that the trial court erred in concluding that a partner does not have standing to assert a claim for retaliation under the FEHA against his or her partnership. On appeal, the court of appeal agreed that the FEHA does support a claim for retaliation by a partner against his or her partnership for opposing sexual harassment of an employee. Specifically, as the court noted, although the FEHA prohibits discrimination or harassment, and retaliation for complaining about such conduct, the fundamental basis for liability is the existence of an employment relationship between the one who discriminates and the individual claiming discrimination/harassment. However, if there is no proscribed employment relationship, FEHA does not apply. Read More.
Read More...OSHA Begins Outreach Initiative on Hazards of Working Outdoors in Hot Weather
Wed, 16 May 2012 05:12:01 - Pacific Time
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has begun a national outreach initiative to educate employers and employees about the hazards of working outdoors in hot weather. Every year, thousands of workers across the country suffer from serious heat-related illnesses. If not quickly addressed, heat exhaustion can become heat stroke. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may manifest as heat rash or heat cramps, but quickly can become heat exhaustion and then heat stroke if simple prevention steps are not followed, such as drinking plenty of water and taking frequent breaks in the shade.
According to Secretary of Labor Hilda L. Solis, "For outdoor workers, 'water, rest and shade' are three words that can make the difference between life and death…If employers take reasonable precautions, and look out for their workers, we can beat the heat." In preparation for the summer season, OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training. Additionally, OSHA has a webpage for employers and employees regarding heat illness, which provides information and resources, including how to prevent heat illness and what to do in case of an emergency. Read More.
Read More...EEOC Makes State Charge Data Available Online
Wed, 16 May 2012 04:11:47 - Pacific Time
The U.S. Equal Employment Opportunity Commission (EEOC) has made available for the public the private sector workplace discrimination charge statistics for each of the nation’s 50 states and U.S. Territories for fiscal years 2009-2011. The employment data provides a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges. The EEOC will update the state data when new charge statistics are available each fiscal year. Read More.
Read More...EBSA Issues New FAQs on Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act
Mon, 14 May 2012 15:50:09 - Pacific Time
The Department of Labor’s Employee Benefits Security Administration (EBSA) has issued new FAQs on the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), which in general requires employment-based group health plans and health insurance issuers that provide group health coverage for mental health/substance use disorders to ensure equivalence between such benefits and their medical/surgical benefits. Two of the important questions and answers include: (a) Is it permissible for a health plan to define mental health coverage as consisting solely of inpatient care benefits?
“No. The Departments regulations set forth six classifications of benefits: 1) inpatient, in-network; 2) inpatient, out-of-network; 3) outpatient, in-network; 4) outpatient, out-of-network; 5) emergency care; and 6) prescription drugs. If a plan covers mental health or substance use disorder benefits in one of the six classifications, the plan must provide coverage in all of the classifications in which medical/surgical benefits are available. Therefore, a plan that provides medical/surgical benefits on an outpatient basis may not limit mental health or substance use disorder benefits to inpatient care only.”
And, (b) Are there plans that are exempt from MHPAEA? “Yes. While MHPAEA applies to most employment-based health coverage, there are a few important exceptions. Specifically, MHPAEA does not apply to small employers who have fewer than 51 employees. There is also an increased cost exemption available to plans whose costs increase by more than a specified amount and who follow guidance issued by the Departments. Additionally, plans for State and local government employees that are self-insured may opt-out of MHPAEA's requirements if certain administrative steps are taken (such as sending notice to enrollees). Finally, MHPAEA does not apply to retiree-only plans.” Read More.
Read More...Preventing Sexual Harassment in the Workplace
Thu, 10 May 2012 18:53:41 - Pacific Time
The best way to prevent sexual harassment in the workplace, or to limit damages if it should occur despite preventative measures, is to implement effective policies and procedures designed to eliminate sexual harassment. Further, employers have a legal obligation to prevent sexual harassment in the workplace and must therefore take all reasonable steps to prevent discrimination and harassment from occurring. To meet these objectives and legal requirements, employers must provide information to employees on sexual harassment by either distributing a pamphlet that may be obtained from the Department of Fair Employment and Housing (DFEH), "Sexual Harassment is Forbidden by Law" (DFEH-185) or developing an equivalent workplace document, such as a sexual harassment policy contained in an employee handbook and/or standalone policy on sexual harassment, which meets the following requirements:
1. The illegality of sexual harassment is described;
2. The definition of sexual harassment under state and federal laws is detailed;
3. A description of sexual harassment, utilizing examples is provided;
4. The internal complaint process of the employer is explained to employees;
5. The legal remedies and complaint process available through the DFEH is detailed;
6. Directions on how to contact the DFEH are provided;
7. The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the DFEH is detailed.
Further, an employer’s sexual harassment policy should contain provisions advising an employee about the scope of his or her rights if the employee is subjected to sexual harassment in the workplace; the employer’s commitment to fully and effectively investigate any complaint of sexual harassment; the employer’s assurance that if harassment has occurred, the employer will take prompt and effective remedial action.
In addition to the above, employers should train all individuals in the workplace on the employer’s policies regarding sexual harassment and post the required notices regarding discrimination and harassment in conspicuous locations in the workplace. And, all employees should be made aware of the seriousness of a violation of the employer’s sexual harassment policy.
Employers with 50 or more employees must also provide at least two hours of classroom or other effective interactive training and education by a qualified trainer regarding sexual harassment to all supervisory employees, and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once every two years. Read More.
Read More...Employer and Employee Arrested for Workers’ Compensation Fraud
Thu, 10 May 2012 17:08:48 - Pacific Time
Sied "Mike Zarrin" Zarrinsaray, 52, his wife Ronak Barazandeh, 43, the owners of United RMR Enterprises, Inc. of San Jose, and their employee, Chad Oberquell, 40, were arrested for alleged workers' compensation insurance fraud. The maximum sentence for each is five years in state prison. as well as a potential $50,000 in fines and restitution.
The California Department of Insurance (CDI) Fraud Division Detectives, conducted an investigation and allegedly found that on August 26, 2010, Oberquell, an employee of ITR Industries, reported a work-related knee injury to his employer. Subsequently, Oberquell’s co-workers reported that Oberquell had actually injured his knee while working a weekend job with their competitor, United RMR Enterprises, and that company allegedly did not report the work injury to their carrier workers' compensation insurance carrier, the State Compensation Insurance Fund (SCIF). If the workers’ compensation claim filed by Oberquell is found to be fraudulent, the loss to ITR Industries' workers' compensation carrier would be approximately $16,000.
During the CDI’s investigation, investigators also allegedly uncovered evidence that United RMR Enterprises was paying Oberquell, and others, cash wages, and also allegedly was not reporting these employees as part of their payroll to SCIF, nor to the California Employment Development Department (EDD) for tax purposes. Further the forensic audit allegedly determined that United RMR Enterprises failed to remit approximately $15,700 in workers' compensation premiums to their former carrier, SCIF. Read More.
Read More...Past Employment Law News Articles
• CA Supreme Court Holds Prevailing Party is Not Entitled to Attorney’s Fees in Meal And Rest Period Cases: Tue, 08 May 2012 16:08:34 - Pacific Time: Read More...
• More on Brinker: What Happens if an Employee Works Through Lunch?: Tue, 08 May 2012 15:18:05 - Pacific Time: Read More...
• Employer Settles Race Discrimination Lawsuit for $600,000: Mon, 07 May 2012 18:20:38 - Pacific Time: Read More...
• NLRB Finds Employer’s Facebook Posts Were Unlawful: Mon, 07 May 2012 06:53:32 - Pacific Time: Read More...
• SSA Bans ALJs From Conducting Online Searches About Claimants: Mon, 07 May 2012 06:25:43 - Pacific Time: Read More...
• NLRB Alleges Arbitration Agreement Used by “24 Hour Fitness” is Unlawful: Thu, 03 May 2012 19:19:14 - Pacific Time: Read More...
• According to the 5th Circuit, “Indefinite Leave is Not a Reasonable Accommodation”: Thu, 03 May 2012 18:54:15 - Pacific Time: Read More...
• Court of Appeal Holds Arbitration Agreement Was Illusory and Unenforceable: Wed, 02 May 2012 17:54:17 - Pacific Time: Read More...
• Independent Contractor Misclassification Costs Employer $500,000: Wed, 02 May 2012 16:01:02 - Pacific Time: Read More...
• DOL Recovers $4.83 Million in Back Wages From Wal-Mart for More Than 4,500 Workers: Tue, 01 May 2012 22:22:53 - Pacific Time: Read More...