Labor & Employment Insights

Employment Law Newsletter

In , the Appellate Division of the New Jersey Superior Court recently upheld Jennifer O’Brien’s termination for conduct unbecoming a teacher by posting the following comments on Facebook: “I’m not a teacher – I’m a warden for future criminals!” and “They had a scared straight program in school – why couldn’t [I] bring [first] graders?” First, the court agreed with the finding below that O’Brien was not commenting on a matter of public concern, namely student behavior in the classroom, in which case the comments may have been protected by the First Amendment. Rather, the court reasoned that O’Brien was making personal statement driven by her dissatisfaction with her job and her students’ conduct. Finally, the court observed that even if the comments were on a matter of public concern, O’Brien’s First Amendment rights to make such comments was outweighed by the school district’s interest in the efficient operations of its schools.

Although this decision has limited application outside of the public sector because First Amendment rights do not extend to private sector employment, it nonetheless serves as a heartening sign that under the right circumstances the courts will uphold the termination of an employee who makes damaging comments about the workplace on social media. While this decision did not involve a challenge of O’Brien’s communications as commentary about workplace conditions protected by Section 7 of the NLRA, it would be interesting to see how far the NLRB would push the boundaries of protected activity under these circumstances.

Employment Law Newsletter

Twenty years after its passage, most employers are aware that the Family and Medical Leave Act (FMLA) provides qualifying employees with up to 12 weeks of job-protected leave for varying circumstances. However, employers may not be aware that the U.S. Department of Labor recently issued new rules and an Interpretive Guidance that will likely expand the number of employees eligible for leave under the FMLA. Employer personnel responsible for handling leave requests must be aware of these developments to ensure proper administration of employee leave rights under the FMLA.

DOL Guidance Clarifies Leave Rights to Care for Adult Children: Among the circumstances where eligible employees may invoke FMLA rights is a leave to care for a son or daughter with a serious medical condition. The FMLA’s definition of “son or daughter” includes an child who is “incapable of self-care because of a mental or physical disability.” One of the unresolved issues under this definition was whether the age of the child when the disability began could be considered when making eligibility determinations for the parent. On January 14, 2013, the DOL issued interpretive guidelines clarifying that the age of the son or daughter at the onset of the disability is not relevant, and thus a qualifying parent is entitled to leave regardless of the age of the child or when the disability arose.

Employment Newsletter

On the 20th anniversary of the Family and Medical Leave Act (FMLA), the U.S. Department of Labor (DOL) issued results of a survey of 1800 employers and 2,800 employees designed to measure the law’s impact on these constituent groups. Some of the survey’s more significant findings include:

• Employer knowledge of the FMLA’s requirements has increased to 66%.

Employment Law Newsletter

Effective January 1, 2013, employers using third parties to conduct applicant/employee background checks must issue an updated Fair Credit Reporting Act (FCRA) notice to affected applicant/employee. Under the FCRA, employers must issue the updated notice summarizing rights under the FCRA whenever the employer intends to obtain a consumer report on the employee/applicant, or when the employer intends to take any adverse action based upon the report. Copies of the new form are available at www.consumerfinance.gov/learnmore.

Employment Law Newsletter

In a decision that may ultimately negate any post January 2012 decisions issued by the National Labor Relations Board (NLRB), the D.C. Circuit Court of Appeals in January 2013 struck down as unconstitutional three controversial “recess” appointments to the NLRB by President Obama. The court held that the presidential power to make appointments when Congress is in “recess” (and therefore unavailable to vote on the nominations) does not apply to a generic break in Congressional proceedings for several days. The President’s nominations were made in January 2012 when the Senate was not in recess but was meeting in sessions every three days and thus were unconstitutional from their inception.

Although the issue is far from settled – the U.S. Supreme Court has decided to hear the recess appointments issue – the questionable status of the currently constituted Board may be fatal to a slew of decisions issued under the recess appointees. At issue in many of these rulings was whether employer policies and practices infringed upon employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted activity,” including discussion of the terms and conditions of employment with coworkers. Although the NLRA was historically implicated in unionized workplaces, its protections apply to non-unionized workplaces as well, and non-unionized employers are increasingly targeted by the NLRB for violations of the Act. These decisions have created a firestorm among employers, who view the NLRB’s recent pronouncements as pro-union attacks upon employers’ abilities to reasonably manage their workplaces. Below is a summary of some of the Board’s more controversial rulings:

Employment Law Newsletter

Lady Gaga’s formal personal assistant (and former personal friend) has filed suit against the pop star for violation of the overtime payment requirements of the Fair Labor Standards Act (FLSA), which requires overtime payment for all hours worked in excess of 40 hours to employees who are not exempt from the FLSA’s overtime mandate. The assistant claims that she was on duty 24 hours a day to attend to the Lady Gaga’s every personal need, without the benefits of breaks or even time to sleep. Contrary to a common misperception among employers, the fact that the assistant was paid on a salaried basis is immaterial to the question of whether or not she qualifies as an exempt employee under the FLSA – an unlikely prospect given the nature of her job duties. Lady Gaga could be looking at significant liability because under the FLSA, a prevailing employee is entitled to 2 times the amount of unpaid wages due in the preceding 2- or 3-year period, plus interest and attorney fees, which often eclipse the unpaid overtime.

Employment Law Newsletter

In December 2012, the EEOC approved its Strategic Enforcement Plan announcing six national enforcement priorities the agency will focus on through 2016:

1. equal pay enforcement;

Employment Law Alert

Many employers administering leave under the FMLA are ignorant of the following notices that must be provided to employees invoking FMLA leave rights:

Eligibility Notice: provided within five business days of a leave request informing the employee whether or not they meet the FMLA’s eligibility requirements. In most cases, this notice is sent the employer is in possession of a medical certification or other information needed to make a final determination whether leave request qualifies under the FMLA.

Employment Law Newsletter

On June 27, 2012, the Untied States Department of Labor (DOL) issued a new 16-page guide book entitled “NEED TIME? The Employee’s Guide to the Family and Medical Leave Act.” The guide book provides a “simple overview” of the leave benefits accorded to employees under the FMLA.

Among other things, the guide includes an easy to follow flow chart employees and employers can utilize to determine FMLA eligibility, provides information on how FMLA leave is to be processed by employers, and encourages employees to bring a copy of the guide book to their medical providers to assist them in complying with the medical certification process. The manual also provides information on how employees can file a complaint with the DOL if they believe their FMLA rights have been violated by an employer. The guide is currently available in English on the DOL’s website, http://www.dol.gov/whd/fmla. A Spanish version is expected in the near future.

Employment Law Newsletter

Many employers use criminal background checks to “weed out” individuals who engage in activities that pose significant risks to the workplace. This past April the United States Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“Guidance”). Employers should consult the Guidance before considering criminal histories when making employment decisions.

While having a criminal record is not a protected characteristic under Title VII, the Guidance warns that excluding an individual from employment on the basis of an arrest or criminal history may result in unlawful race or national origin discrimination under Title VII in one of two ways. First, the Guidance points to statistical evidence showing that Blacks and Hispanics are arrested and convicted in far greater numbers than Caucasians. Thus, an employer taking these records into account may unintentionally discriminate along racial and national origin lines because Blacks and Hispanics are disproportionately arrested as compared to other groups (commonly known as unintentional disparate impact discrimination). Second, an employer can utilize the existence of an arrest or conviction as a pretext to intentionally deny employment on the basis of race or national origin (commonly known as intentional disparate treatment discrimination).