The Fifth Circuit Court of Appeals (the federal appeals court with jurisdiction over Texas) struck a blow to the National Labor Relations Board’s attempt to outlaw mandatory class action waivers for employees. On December 3, 2013 the Court over-ruled the NLRB’s decision involving homebuilder D.R. Horton, and concluded that the company did not violate the law by requiring employees to sign arbitration agreements which gave up the right to file a class action. The full decision can be found here.
This decision opens the door for the use of arbitration agreements as a method of avoiding costly wage and hour collective actions. Although some employers may not want to give up the right to a jury trial in all cases, like discrimination or harassment, there is nothing preventing the use of an arbitration agreement limited to wage and hour claims. In fact, our Cozen team has helped many companies implement such agreements which require employees to first bring payroll disputes to the Human Resources Department, followed by mandatory mediation, and, lastly, binding arbitration with no option for a class action. By taking wage and hour claims out of the court house and eliminating class actions, much of the legal risk of these claims can be avoided.
It is not every day that you have a client who writes a book. I was pleasantly surprised when I discovered over the Thanksgiving holiday that Brian Fielkow, owner of Jetco Delivery in Houston, has written a book on leadership and creating a successful company culture entitled “Driving to Perfection.” For those interested, the book is now available for pre-order on Amazon.com through this link.
Brian is both an excellent person and leader, so I am sure his book will be a must read. I highly recommend it.
A recent article from the New York Post highlights the growing statistical evidence suggesting that Americans are working until they are older. As the article explains, “Eighty is the New Sixty.” With baby boomers living longer than any prior generation, they are also working longer. The recession also wiped out many nest eggs that workers were counting on to finance their retirement years. These developments have culminated in a “perfect storm” for a graying of the workforce.
According to the article, by 2020 older workers will be the fastest growing segment of the workforce. Workers over 55 years old will constitute a quarter of the workforce. So what does that mean for employers?
First, it might be a good thing. Many industries have been worried about the brain drain from older workers retiring. That might be delayed. Also, older workers tend to be more loyal and reliable. These are all desired qualities. For workers who slow down or become ineffective, however, employment decisions are fraught with legal risk. A recent UBS Wealth study found that Americans don’t see themselves as “old” until the age of 80. A generation ago, that number was 60. For an employee who does not perceive themselves as old, being told they are too old to perform their job effectively may not go over well. The takeaway from this article is that workers are staying in their jobs longer and may not be as willing to retire quietly once they are no longer able to physically or mentally perform their duties. It is increasingly important that adverse actions against workers over 40 be scrutinized to make sure that age is not a factor, either directly or indirectly. If it is unavoidable, ensure that you have plenty of documentation of performance deficiencies. Firing a thirty year employee for one mistake won’t be viewed favorably. Similarly, if an employee has physical problems performing a job, consider sending the employee to a doctor for a fitness for duty exam. Managers are not doctors and it is not advisable to conclude that an employee cannot physically perform a job without a qualified opinion on the subject.
By Shaan A. Rizvi — Over the last few weeks, sports media have incessantly covered the bullying scandal involving Richie Incognito and Jonathan Martin, two current Miami Dolphins’ players, in which Incognito left threatening and abusive comments on Martin’s voicemail. Incognito contends the comments were in jest, but the comments led Martin to take a leave of absence from the team. Though there are no winners in this situation, the entire incident has stirred spirited discussion about what exactly constitutes “bullying” in sports and in the workplace and what should be done about it.
Currently, California is the only state that legally prohibits workplace bullying. However, according to the Healthy Workplace Campaign, 11 other states are considering similar measures. One such law in New York would make it illegal for an employer, “acting with intent to cause pain or distress to an employee, [to] subject [an] employee to abusive conduct that causes physical harm, psychological harm or both.” The law defines “abusive conduct” as acts “that a reasonable personal would find abusive” including “verbal … or physical conduct of a threatening, intimidating or humiliating nature.”
Clearly, the definition of “bullying” is murky, and laws such as these may drastically increase an employer’s potential workplace liability for perceived slights or insults in the workplace. Even though workplace bullying laws aren’t yet on the books in most states, employers may still be liable for workplace bullying under other legal theories, such as harassment, discrimination or negligent hiring. Remember – what an employee calls bullying, their lawyer will call harassment or retaliation just to get in the door at the court house.
Although Human Resources is not always the party planning department, perhaps it should be. Holiday parties are a fertile ground for workplace lawsuits, and prudent companies should make sure that they take steps to minimize potential liability. I was recently interviewed for an article for the Society of Human Resources Management (SHRM) entitled “Out with Mistletoe, Spiked Punch, and Santa’s Little Helpers.” The article can be found here, and is a helpful resource for companies looking for practical tips to prevent the holiday party from turning into a holiday lawsuit.
This week, the Supreme Court heard arguments in its first Sarbanes-Oxley case (Lawson v. FMR LLC, et al., No. 12-3). The question before the Court is whether the law’s whistleblower protections extend to employees of contractors hired by public companies. For example, it is clear that an accounting employee who works for a publicly traded company and reports fraud would be protected from retaliation. What is not so clear is whether an employee of a privately owned outside auditor who contracted with that same publicly traded company would be protected for reporting fraud.
Based on the oral arguments, the Supreme Court appears to be leaning towards a strict reading of the law, which is limited to certain publicly traded employers. For example, Justice Breyer raised a hypothetical of a small landscaping company who cut the grass one day a week for a publicly traded company, and suggested it would be ludicrous to conclude that this small company was therefore covered by Sarbanes-Oxley.
The takeaway from this case is that we should soon get important clarification on the scope of the Sarbanes-Oxley whistleblower protections. If the Supreme Court chooses to read the statute broadly, the price for doing business with a publicly traded company could include coverage under Sarbanes-Oxley, and expanded compliance obligations. Although such a result is not likely, this is an important case to watch.
On November 7, the Senate passed the Employment Non Discrimination Act (ENDA), which would amend Title VII to add discrimination protections to homosexual and transgendered employees. Ten Republicans voted for the legislation, but the primary argument against the bill is the lack of a strong exemption for faith based businesses. The current piece of legislation would only exempt explicitly religious organizations, like churches, but would not provide an exemption to a private faith based school or hospitals.
The bill has little chance of passing the House of Representatives, so it is not likely to become law. ENDA was last voted on in the Senate in 1996, when it failed by one vote, so this is the first time it has passed one house of Congress. It is important to keep in mind that many states and municipalities already have passed laws prohibiting sexual orientation discrimination. For example, in Texas, Austin and Fort Worth have such laws. For that reason, many large multi-state employers have already added sexual orientation to their harassment and discrimination policies, making a change in federal law duplicative.
On November 4, 2013, the state of Texas sued the Equal Employment Opportunity Commission over its recently promulgated “enforcement guidance” related to background check policies and the hiring of felons. The lawsuit, found here, states that “The state of Texas and its constituent agencies have the sovereign right to impose categorical bans on the hiring of criminals, and the EEOC has no authority to say otherwise.”
In the EEOC’s new guidance, the agency expressed its opinion that an employer’s categorical refusal to hire convicted felons would constitute disparate impact discrimination, and be unlawful. The guidance recommends, instead, an individualized assessment of a convicted felons’ application and requires that any disqualification be “job related for the position in question and consistent with business necessity.” The EEOC has already relied upon this new guidance to file lawsuits against several large employers, including BMW and Dollar General. The lawsuit filed by the State of Texas chronicles these lawsuits and paints a very unflattering picture of the EEOC’s abusive litigation tactics and unrealistic view of an employer’s right to keep felons out of the workplace.
The takeaway from this lawsuit is that the EEOC is increasingly coming under attack for guidelines which are likely not enforceable and ignore the practical difficulties in making hiring decisions. This lawsuit should strengthen the willingness of other companies to stand up to the EEOC and not follow what are clearly flawed guidelines. For example, if an employer followed the EEOC’s directions and conducted individualized assessments of applicants with criminal convictions (instead of applying a blanket rule), the risk of being sued for discrimination would actually increase. Absent some clear rules on what types of convictions will be a disqualifier, hiring decisions are likely to be viewed as arbitrary and defending a particular decision becomes even more complicated. There is a reason why businesses like hiring criteria that are clear, able to be followed, and backed up by common sense experience.
For the first time, the IRS has now decided that it will allow employees to carry over up to $500 in their flexible spending accounts to the next plan year. The notice issued by the IRS on October 31, 2013 takes effect immediately and employers can amend their plans to allow carryover for this plan year. This change should remove one of the primary complaints against flex plans, and is something employers should make sure to mention to employees in the midst of ongoing open enrollment periods (of course this rule change should not be mentioned unless the employer actually amends its plan to take advantage of it).
Employers will have the option of allowing either carryover or a grace period, but cannot use both. Employers can pick amounts lower than $500 for the carryover (but not greater). The notice also makes clear that the $500 carryover amount cannot be stacked each year. In other words, the most that can be carried over in any plan year is $500.
The full text of the IRS notice can be found here.
One of the biggest misconceptions is that older workers are bullied, mistreated, and ultimately forced out of the workplace unceremoniously when they can no longer keep up with the younger employees. This is the stereotype painted in almost every age discrimination lawsuit and, if true, would suggest that older workers are some of the unhappiest. Turns out …. that stereotype could not be more wrong.
A recent study conducted by the Associated Press-NORC Center for Public Affairs Research dispels this myth. According to the study, 9 out of 10 workers over the age of 50 say they are satisfied with their work. Sixty three percent of workers over 65 express “deep satisfaction” with their work, while only 38 percent of young adults feel the same way. Most importantly, this trend holds true across income level, gender, race and educational backgrounds. In other words, it is equally true for lawyers as plumbers.
The Houston Chronicle has a very interesting article about the study, which can be found here.
Tagged with: age
Posted in Discrimination