Employment Law Update - Winter 2011

DOL Unveils New Wage-Hour Enforcement Strategy

The U.S. Department of Labor ('DOL') recently disclosed its new strategic plan for fiscal years 2011-2016. In this plan, the DOL intends to focus on employee misclassification and protecting vulnerable workers in enforcing the federal laws governing how employers must pay employees.

The DOL indicated that the detection and deterrence of employers who misclassify employees as 'independent contractors' to avoid legal requirements will be a high priority. Likewise, the DOL plans to implement a 'Plan/Prevent/Protect' regulatory strategy to make sure employers properly classify exempt and non-exempt employees while strengthening record keeping requirements to impose more obligations on employers. In its strategic plan, the DOL defined 'vulnerable workers' as those 'at risk of exploitation at work,' such as young workers and other employees who may be reluctant to file complaints about alleged violations.

To further help process all workers’ pay claims, the DOL also announced a collaboration with the American Bar Association ('ABA') it calls the 'Bridge to Justice.' This will involve providing employees the DOL may not have the capacity to assist a toll-free number to contact an ABA-approved Attorney Referral System. Employees who call this number will be referred to a private sector attorney to help them pursue their complaints.

The DOL’s new plans follow its recent expansion which involved hiring 250 new wage-hour investigators. This expansion and an increase in private lawsuits filed against employers for pay infractions emphasize the need for all employers to audit their pay practices to ensure compliance with all applicable wage-hour laws.

Former Workers’ Comp Chief Deputy Joins K&C Employment Team

Beginning January 2011, the Former Chief Deputy Commissioner of the Virginia Workers’ Compensation Commission, Mary Ann Link, will be available to provide consulting advice to Kaufman & Canoles clients. A primary goal of her addition is to help K&C clients reduce expense and potential liability related to workers’ compensation claims and employee safety practices. Ms. Link practiced with two private law firms before joining the Virginia Workers’ Compensation Commission in 1993. She then served as Chief Deputy for over ten years.

Ms. Link’s addition is consistent with the K&C Employment Team’s desire to provide its clients with consulting guidance from former high-level representatives of relevant government agencies which enforce employment laws. Like the former Area Director for the Equal Employment Opportunity Commission, John DiDio, and the former District Director of the Wage-Hour Division of the Department of Labor, Gilbert Parker, Ms. Link will be available to provide confidential consulting advice in conjunction with the rest of the K&C Employment Law Team.

Can Employers Go Too Far With Social Media Policies?

In November, the National Labor Relations Board ('NLRB') issued a complaint against a Connecticut company alleging that an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on Facebook. The complaint also alleges that the company maintained and enforced an overly broad internet policy.

The NLRB investigation found that the employee’s Facebook post was 'protected concerted activity' under the National Labor Relations Act. Likewise, the NLRB found that the company’s Facebook posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors. The Board has consistently held that employee handbooks cannot prohibit such conduct and applied this analysis to the company’s Facebook policy. A hearing will be held before an administrative law judge on January 25, 2011.

So what were the Facebook postings in question? According to the NLRB’s complaint, the employee was fired after using vulgarities to ridicule her supervisor in a Facebook post. She also wrote, using the company’s terminology for a psychiatric patient: 'Love how the company allows a 17 to become a supervisor.' As it turns out, the employee had clashed with the supervisor after the supervisor refused to allow a union representative to assist her in preparing a response to a customer’s complaint about her work.

To be sure, the NLRB’s definition of 'protected concerted activity' is broad and its position may or may not be confirmed by the courts. But this complaint points out that employers should carefully review their policies on social media to ensure that the restrictions set forth in such policies effectively address legitimate concerns without running afoul of applicable law.

Timing of Personnel Decisions is Important

Employers are often faced with tough personnel decisions. Those decisions become even more difficult when employees assert rights under leave or discrimination laws. Once an employee has asserted such rights, any subsequent disciplinary action may appear to be retaliatory and in violation of those rights. That is why employers should take legitimate action in a timely manner, avoiding subsequent claims or complaints by problematic employees. Similarly, once an employee has asserted such rights, employers should carefully consider the timing of their personnel actions.

The Equal Employment Opportunity Commission ('EEOC') recently filed suit on behalf of an employee who was terminated by clothing retailer, The Gap. The EEOC’s lawsuit (EEOC v. The Gap, Inc., Case No. 2:10cv14559) filed in U.S. District Court for the Eastern District of Michigan, alleges that Wayne Cook worked successfully for The Gap as a store manager for nearly three years. In December 2007, Cook took leave to address problems caused by his glomerolonephritis, a kidney disorder. In January 2008, he provided his supervisor with a detailed description of his medical condition and the problems he was experiencing. In February, Cook returned to work and was fired on the spot, according to the EEOC, allegedly for having tolerated the violation of a work rule prior to taking a leave of absence.

During the EEOC investigation, The Gap defended its decision to terminate Cook on the ground that Cook’s actions prior to his leave justified his termination. The EEOC rejected this position, finding that Cook’s termination violated the Americans with Disabilities Act. The agency’s pending suit seeks to recover monetary compensation for Cook in the form of back pay and compensatory damages for emotional distress, as well as punitive damages.

Cases like this highlight the importance of timing. If The Gap had terminated Cook at the time of the alleged infraction, as opposed to immediately after his leave, perhaps the lawsuit may have been avoided.

Poor Performance or Misconduct?

Virginia employers often struggle with the distinction between discharges due to poor performance and those due to misconduct in responding to claims for unemployment benefits. Poor performance is generally not sufficient for the Virginia Employment Commission ('VEC') to disqualify someone from benefits unless the circumstances also constitute a deliberate violation of a reasonable employer rule or conduct which manifests a willful disregard of the employer’s interests.

The Circuit Court for Roanoke County recently considered this distinction in a case involving a mistake-prone medical practice receptionist in Jones v. VEC and Primary Care Associates. The former employee admitted that he gave several patients inaccurate information but claimed that he corrected his mistakes and that none of his errors were intentional. The employer testified that, in addition to the mistakes, the claimant was discourteous to patients, insubordinate, and was warned that his job was in jeopardy.

The Court found that the VEC was correct in determining the former employee was guilty of misconduct. It noted that it was undisputed that Primary Care Associates lost three patients due to the claimant’s actions. Accordingly, the former receptionist was not entitled to any employment compensation benefits.

In cases like this, employers should document all circumstances that indicate a willful disregard of an employee’s duties. This documentation may be helpful in proving the separation was for misconduct as opposed to mere mistake, inefficiency or negligence.

VEC Contacts K&C Regarding Claims Process

The K&C Employment Team has been contacted by the VEC to participate in a study of its unemployment claims and appeals processing. If you have any complaints or suggestions that may improve Virginia’s unemployment compensation process, please don’t hesitate to contact Bob Barry at (757) 624-3268 who may be able to pass your suggestions on to the Commission.

K&C Launches Labor and Employment Law Blog

Employer representatives looking for timely guidance on important developments affecting the workplace should add the Kaufman & Canoles Labor and Employment Law Blog to their 'Favorites' tab or sign up for the RSS feed (http://www.kaufcan.com/blog/category/labor-and-employment-law/). Under the direction of 'Blog Master' David Sullivan, the blog will provide readers with guidance and the opportunity to post and read comments of others. Please feel free to contact David Sullivan at (757) 624-3249 directly with any feedback or questions.

27th Annual Employment Law Update  - Weathering the Employment Law Storm

On March 24th, the K&C Employment Law Team will host the second showing of the 27th Annual Employment Law Update at the Greater Richmond Convention Center. Featuring the latest on the impact of healthcare reform, a number of timely topics will be presented. Attendees will also gain valuable experience witnessing a mock trial and deciding the fate of a litigious employee. Past attendees’ comments include: 'The mock trial was entertaining and informative', and 'The impact of social media added an interesting and timely twist to the mock trail.'

Attendees will select their choice of several of our educational workshops from a myriad of topics including: Impact of Healthcare Reform on the Workplace; Investigating Employee Misconduct; Discipline & Discharge; Dealing with Problem Absenteeism; and Mediation, Severance & Release Strategies.

For more information, click here or contact Kerry Martinolich at (757) 624-3232 or (804) 771-5722.

This program has been approved for 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at www.hrci.org

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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