October 31st, 2012 | By Paul Cherner
Employers should be familiar with state laws permitting employees, under certain circumstances, to take time off to vote in elections. They should also determine the official hours that election polls will be open. While employees can be encouraged to vote, they also have the right not to vote and cannot be rewarded or treated adversely depending on how they vote. Below are examples of the election voting laws in a few of the states. However, most states have their own voting law requirements.
In Illinois, eligible employees whose work hours begin less than two (2) hours after the opening of the polls and ends less than two (2) hours before the polls close, are permitted to request up to two (2) hours of paid working time off for the purpose of voting in a general or special election in the Illinois. Under the IL law, an employee must request the time off to vote prior to Election Day. If an employee makes a timely request, their employer can specify the hours that it will allow the employee the time off to vote. Election polls in Illinois will be open on November 6, 2012 from 6 am to 7 pm.
In Wisconsin, an employee who is eligible to vote may be absent from work while the polls are open for up to three (3) successive hours. An eligible employee must notify their employer of their need to take the time off before the Election Day. An employer may specify the hours that the employee can take off to vote. There is no requirement that the time off to vote be paid. In Wisconsin, the election polls will be open on November 6, 2012 from 7 am to 8 pm.
Illinois and Wisconsin also have laws protecting the rights of employees who have been officially appointed to serve as election officials. Employers with union collective bargaining agreements should review any provisions that may apply to union members requesting time off to vote.
Presently, there are thirty-five (35) states that have laws regarding employees taking time off from work to vote. Some of these states, like California and New York, have laws requiring the posting of notices advising employees of their voting rights.
There are also federal and state laws that prohibit paying or offering to pay anyone to register or to vote. The US Department of Justice has interpreted the federal law to prohibit anything of “monetary value“, including cash, liquor, lottery chances and other items of value that may be offered to induce an individual to vote. In CO, the Justice Department is currently investigating a complaint by a political party that another political party offered free pizza and tee shirts to induce college students to vote at an early election location on campus. Accordingly, encouragement, but not rewards, are OK with respect to urging employees to vote in the election.
September 20th, 2012 | By Paul Cherner
Employers using background checks for applicants and for current employees must comply with the Fair Credit Reporting Act (“FCRA”). The Federal Trade Commission (“FTC”), which administers the FCRA has just published a new Notice of Rights, which must be given to all applicants and employees whenever an employer intends to take adverse action, such as not hiring or promoting, because of the information contained in the background check report that they have received. This new Notice should be given, along with a copy of the background report and a “pre-adverse action letter” to the applicant or employee prior to the employer taking any action. The employee or applicant must be given a reasonable amount of time (at least 5 full business days) to demonstrate to the employer that the information in the report is not correct and/or applies to someone else. If there is no correcting information tendered, or the employer believes that the original information is correct, then they issue an “adverse action letter”, along with another copy of this new FCRA Notice and information about where the applicant or employee can get a free copy of the background report. The FTC publishes an excellent pamphlet titled “Using Consumer Reports: What Employers Need to Know”, which you can obtain by clicking on this link.
August 31st, 2012 | By Paul Cherner
In recent times, there have been a growing number of cases (as well as EEOC charges) concerning the issue of whether an employer must give a leave of absence as a “reasonable accommodation” under the ADA.
Attached is a recent opinion from the 10th Circuit discussing factors to be considered in determining whether the granting of leave would be a reasonable accommodation. Remember that each situation must be judged on its own facts and that these are guidelines from just one court.
The Court of Appeals stated that there are two limits on the bounds of reasonableness for a leave of absence:
1.) The employee must provide the employer with an estimated date when the employee can resume their essential duties.
2.) A leave request must assure an employer that an employee can perform the essential functions of the job in the “near future.”
June 28th, 2012 | By Paul Cherner
The U.S. Supreme Court, in an opinion by Chief Justice Roberts, upheld the constitutionality of the Affordable Care Act ["ACA"] (a/k/a/ “Obamacare”) by a 5 to 4 vote. The importance of this holding can be gauged by the fact that the opinions issued by the different Justices totaled 193 pages. While the majority of the Justices did not find the ACA valid under the commerce clause or the necessary and proper clause of the U.S. Constitution, a majority of the Justices did hold that the individual mandate provision and the entirety of the ACA was constitutional under the taxing authority of Congress. The only portion of the ACA found unconstitutional was the provision that would punish individual states which did not adopt the expanded coverage of Medicaid that is also provided in the ACA. This landmark decision will obviously have significant impact on this year’s elections. It will also have a substantial impact on the delivery of healthcare in the United States, especially for those individuals who are uninsured or under-insured, as well as individuals with pre-existing conditions or with catastrophic illnesses. Many of the key provisions of the ACA take effect in 2014.
January 27th, 2012 | By Paul Cherner
The NLRB recently issued a decision that should prompt health care institutions to review their policies and practices concerning the wearing of union buttons and the access of off- duty employees to the health care facility.
In Saint John’s Health Center, 357 NLRB No. 170, the NLRB, in a 2 to 1 decision, found that a hospital had violated the National Labor Relations Act by its publication and application of rules with respect to the wearing of insignia in patient care areas and the presence of off duty employees on the hospital’s premises.
The Board stated that in healthcare facilities –
“restrictions on wearing insignia in immediate patient care areas are presumptively valid, while restrictions in other areas of a hospital are presumptively invalid.”
However, as the Board noted, this presumption does not protect a selective ban on only certain union insignia. In this case, the hospital allowed employees to wear hospital endorsed ribbons and buttons, including in immediate patient care areas. Accordingly, the Board found it unlawful when the hospital banned the wearing of a union ribbon with the legend “Saint John’s RNs for Safe Patient Care”, since it was a selective enforcement of the rule.
Saint John’s previously had a rule that prohibited off-duty employees from being on the hospital’s premises with the exception of allowing them to be there to visit a patient. This rule was later revised to allow off-duty employees to also have access to the hospital cafeteria and to the hospital building for hospital sponsored events, such as retirement parties and baby showers. After the new rule was posted, the hospital enforced the rule against off-duty employees who were at the hospital to campaign for a union.
The Board stated that a rule barring off-duty employees from their employer’s premises is valid only if it meets all of the following criteria:
“Limits access solely with respect to the interior of the facility & other working areas;
is clearly disseminated to all employees; and applies to off-duty employees seeking access to the facility for any purpose and not just to those engaged in union activities.”
The Board found that Saint John’s revised rule did not ban access to the premises for any purpose and was therefore invalid.
Suggestion - Hospitals should review, and, if necessary, revise their current rules regarding the wearing of insignia and access to the premises by off-duty employees to ensure that they meet the criteria required by the Board for these rules to be valid. In addition, supervisory employees should be instructed to apply these rules on a uniform, not selective, basis.
December 1st, 2011 | By Paul Cherner
On November 30, 2011, the NLRB voted 2 – 1 to make substantial changes in the way it processes petitions for union elections. The end result of these “streamlining” changes will be to shorten the period of time between the date the union files a petition for an election with the NLRB and the date of the union election. Several changes postpone consideration of certain issues until after an election is held, assuming that the issues may not need to be decided if they would not change the results of the election. Other changes grant the local NLRB office discretion with respect to allowing the filing of briefs and special appeals. While there is no set time for when an election must be held, it is expected to be substantially shorter then the NLRB’s current goal of 42 days after the petition has been filed.
The NLRB deferred deciding some of its most controversial proposals, including that a hearing be held withing seven days after a petition is filed and that unions be given employees’ email addresses and telephone numbers prior to an election. While these controversial proposals are not part of the current changes, the NLRB Chairman has stated that those proposals will remain under consideration for possible future action.
November 17th, 2011 | By Paul Cherner
On a monthly basis, employers are often dealing with employees requesting a leave of absence (“LOA”). What are the employer’s obligations under the law? The answer to this question is not “cut and dry” and involves examining the possible applicability of several federal and state employment laws, as well as a conversation with the employee requesting the leave.
This basic guide should be helpful in identifying some of the federal law issues arising from LOA requests:
1.) What is the reason for the leave request?
The Family and Medical Leave Act (“FMLA”) may apply if the employee is requesting the leave to: give birth to or care for their child; or placement of a child with the employee for adoption or foster care; or to care for an immediate family member who has a serious health condition; or because of a serious health condition that makes the employee unable to do the functions of their job; or because of the need to care for the employee to care for an immediate family member who was injured while on active military duty; or for certain exigencies that arise from an employee’s family member being called to active duty in the uniformed services. If any of these situations is the reason the employee is requesting leave, then an employer must determine whether the FMLA, which provides up to 12 weeks of unpaid leave per 12 month period , applies.
2.) Is the Employee Eligible for FMLA Benefits?
An employee is eligible for FMLA benefits if they have been employed for at least 12 months by the employer they are requesting the leave from and have worked at least 1,250 hours for that employer during the past 12 months. Additionally, employees are only eligible if they are employed at a worksite where the employer employs 50 or more employees or if the employer employs 50 or more employees within 75 miles of that employee’s worksite. If the employee meets these eligibility requirements, then a formal process is undertaken with the exchange of letters that authorizes the employee to take the leave for the time that is supported by the requisite documentation.
3.) What if the Employee is Not Eligible for FMLA Benefits?
If the employee requests a LOA for one of the reasons set forth in the FMLA, but is not entitled to FMLA benefits (because they have not met one or more of the criteria or they work in a worksite that regularly employs less then 50 employees), can the HR Director deny the request? Not necessarily so. First, the HR Director needs to see what the employer’s policy and practice has been with respect to other employees requesting LOAs. An employer must treat all such requests on a uniform basis and if they do not, they must be able to demonstrate that the different treatment is based on a legitimate, nondiscriminatory reason.
4.) An Employee May be Entitled to Leave Under the ADA.
If the employee is requesting leave because of a physical or mental condition that meets the broad definition of “disability” in the amended Americans with Disabilities Act (“ADA”), then the employee may be entitled to leave, even when they do not qualify for FMLA benefits. The ADA requires an employer to offer an employee with a disability “reasonable accommodation” if it would allow the employee to perform the essential functions of a job that they are qualified to perform. An exception to requiring this “reasonable accommodation” is if it would cause the employer an “undue hardship.” While this is a narrow exception, an employer needs to be aware of it for situations where allowing the employee to take such leave would place an undue burden upon the employer and its business operations.
An employer must engage in an interactive dialogue with the employee concerning whether granting the LOA request may be required as a reasonable accommodation. The employer must make their decision on an individual case basis, analyzing factors such as how long the leave will be for and the impact of such leave on the employer’s operations. For example, if the employee is requesting leave for a few days or a few weeks to have medical treatment required by their disability, it is likely that granting the LOA may be found to be a reasonable accommodation that the employer is required to grant. What if the amount of leave is undeterminative or is for 6 months or more then a year? Depending on the individual circumstances involved, granting extensive or undeterminative leave may be deemed reasonable or unreasonable. The EEOC recently held a public hearing on this subject, acknowledging that they needed to provide better guidelines for employers who were faced with such requests. However, it is not known at this time when the EEOC will issue further guidance on this subject.
In summary, leave requests need to be individually reviewed to determine what rights, if any, the employee requesting the leave may have under federal or state laws, in addition to those provided by the employer’s policy and practices.
Caveat: This article is a brief, general outline of a complicated subject and is not being offered as legal advice.. Employers should consult with experienced employment law counsel when faced with specific issue such as those identified in this articles.
October 11th, 2010 | By Paul Cherner
The U.S. Department of Labor has issued Frequently Asked Questions about the Genetic Information Nondiscrimination Act (“GINA”). The FAQs pertain to Title I of GINA, which applies mainly to insurers and not to the employment law aspects of GINA. However, these FAQs are instructive with respect to how the federal government interprets GINA, especially with respect to defining what it considers “genetic information.”
September 14th, 2010 | By Paul Cherner
The U.S. Department of Labor continues to be one of the most activist DOL in recent history. It has now established an Office of Whistleblower Protection (“OWPP”) under its OSHA division. In addition to enforcing the non retaliation provisions of OSHA, this office will handle similar provisions under 18 other laws, from the Sarbanes-Oxley Act to the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act. A listing of all the laws and regulations that the OWPP will be enforcing is listed on its website. It would be prudent for all HR professionals to check this site to see whether your industry is one of those targeted by the OWPP for its stepped up enforcement efforts.
June 17th, 2010 | By Paul Cherner
The U.S. Department of Labor (“DOL”) has issued a final rule implementing President Obama’s Executive Order 13496 requiring all government contracting departments and agencies to include a provision in their solicitations for contracts requiring that contractors must post a notice in conspicuous places informing employees of their rights under the National Labor Relations Act (“NLRA”).
The new notice must be posted for all covered government contracts or subcontracts that result from solicitations issued after June 21, 2010. Go to the DOL’s website for more specific information about the size and placement of the notice and about possible electronic posting. Click here to see a sample of the new notice. Please note that the notice posted must be at least 11″ by 17″. Covered government contracts will mandate that the prime contractor require subcontractors performing services or goods under the covered contract for $10,000 or more to also post this notice.
Prime contracts for less then $100,000 or those for work performed exclusively outside the U.S. do not required the posting of this notice. The notice requirement does not apply to contracts resulting from solicitations issued prior to June 21, 2010.
This notice has an extensive explanation of workers’ rights to organize and take collective action. It also sets forth examples of adverse conduct by an employer (or a union) against an employee that would be unlawful under the NLRA. It informs employees of possible remedies that can be ordered by the NLRB to correct unlawful conduct and tells them how to contact the NLRB to file a charge.
This new Executive Order also revoked an Executive Order by President George W. Bush that federal contractors had to post informing employees of their rights concerning the payment of union dues or fees
