Texas Employer Handbook

Insight on Employment Law for Texas Businesses

Internships – To Pay or Not to Pay?

By Michael Kelsheimer on Posted in Quick Questions

With unemployment for people 20 – 24 hovering around 13.2%, college students are flocking to unpaid internships to gain some experience, stay busy, and better position themselves for jobs afterward.  As recently reported by Josh Sanburn at Time MoneyLand and Steven Greenhouse in the NYT, however, these unpaid internships have serious legal problems.

Businesses are taking advantage, offering “internships” that are supposed to put the grads on the path to a super career.  Instead, interns are working 12 hour days in some cases cleaning out closets, getting coffee, and running errands.  They are no more learning the business than the man in the moon, unless they are studying for a runner job they could have gotten – with pay – before college.

A few of these interns have gotten smart though, and are filing lawsuits for minimum wage and overtime and employers should be concerned.  In addition to collecting these back wages, the interns can collect liquidated damages of an equal amount, and attorney fees.

So, how do the employers that are using internship programs for the right reasons know they won’t get in trouble?  Well, to properly be an unpaid internship, the intern must not be an employee within the meaning of the Fair Labor Standards Act (FLSA).  Of course, as you might imagine, the congress painted with a pretty broad brush when they defined “employ” under the FLSA because the wanted to prevent just this type of conduct.

Though not having the force of law, the Department of Labor came up with a six factor test that it will use to decide if an internship must be paid.  And, since the Department of Labor is the organization who enforces the FLSA, employers should sit up and listen.  To properly be an unpaid internship:

1.  The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2.  The internship experience is for the benefit of the intern;

3.  The intern does not displace regular employees, but works under close supervision of existing staff;

4.  The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5.  The intern is not necessarily entitled to a job at the conclusion of the internship; and

6.  The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Of course, after reading the criteria, employers with anything less than the purest motives will want to drop the idea of an internship program all together.  C’est la vie!

 

An Update on the Orange Shirt Case

By Michael Kelsheimer on Posted in In the News

It turns out the story of the Florida law firm employees fired for wearing orange is NOT over.  (For those not up to speed, see my post from March 20, 2012.)  At a recent legal seminar on the National Labor Relations Act (NLRA), I learned that the orange clad crew have filed a complaint with the National Labor Relations Board alleging that their employer fired them in interference with their rights to engage in “concerted activity.”

According to ABC News, 8 of the fired workers have joined in the complaint.  Say what?  Weren’t the workers wearing orange to stand out in a bar they planned to go to the afternoon they were fired.  Yep.

How is that “concerted activity” worthy of legal protection?  Let’s start from the beginning: what is “concerted activity?”  According to the NLRA, it is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.  This could be almost anything, right?  Right.  That is what is so scary about the NLRA.  Everyone thinks it is just about unions.  Internet and news publicity are making employees more aware of this otherwise almost extinct area of law.

Now the NLRA is being used for all kinds of claims when a union is not even involved because it protects what is considered pre-union activity.  If an employee complains about their pay, working conditions, or their supervisor to another employee, that is protected under the NLRA.  Employers need to be on the look out for these issues.

In a statement to the American Bar Association Journal by the law firm in the orange shirt case, the employees were fired for using the shirts as a small part of a concerted plan to “harass, bully and intimidate the new office manager into quitting.”  Ooops.  This sounds an awful lot like concerted activity.  Good luck to the law firm.  It should have followed my advice and just kept it’s mouth shut about why it let the employees go.

Bonus Points:  For those of you paying attention closely, you might have noticed that the employees said they were dressed in orange to stand out in a bar and that it was actually the law firm that said the employees were engaged in something that sounds like concerted activity.  How could their be a claim if the employee’s stated reason is not concerted activity?  According to the NLRB, if the employer believes the employees were engaged in a concerted activity and uses that as a basis for termination, it can be a violation regardless of what the employees intentions were.  Scary

.

Deductions from Pay

By Michael Kelsheimer on Posted in Handbook Articles

Who, What, Why . . .

Who does it apply to: Every employer without exception. Under the Texas Payday Act and the federal Fair Labor Standards Act, there are requirements and limitations about what can be deducted from an employee’s pay.

What types of allowable deductions are there: Charges in the following categories may be deducted under the right circumstances:

• Meals and Lodging: The “reasonable cost” of food and shelter provided by employers may be deducted from pay if it is primarily for the employee’s benefit. If the employer provides the food or lodging for its business purposes (think apartment complex manager), the value cannot be deducted from the employee’s wages. Essentially the “reasonable cost” of these items is the cost to the employer – with no profit. There are many rules and regulations regarding the deductibility of these items. Check with your lawyer before making deductions of this type.

• Voluntary Wage Assignments: Employers are authorized to deduct from an employee’s wages and take them below minimum wage for payments made to programs such as the employer’s health, dental, disability, and life insurance plans.

• Loans: Employers can make deductions to an employee’s pay taking the employee’s wages below minimum wage for loans made to the employee. Employers should be careful, however, because any administrative fees or interest on the loan may not be charged against the minimum wage portion of the employee’s wages. Employers should document any loan just like a private promissory note to protect against employees who quit, default, or try to avoid the debt so that they can seek recovery through the courts.

• Pay Advances: If an employee is allowed to take vacation before that vacation time has technically accrued, and that employee quits, the employer may deduct the paid but unaccrued vacation money from the employee’s final pay. In doing so, the employer must have written authorization from the employee. In another circumstance, employers may advance an employee insurance premiums for unpaid leave periods where the employee would otherwise be responsible for the premiums. Employers must be careful making this type of advance, however. Offering it to only certain employees might generate a discrimination claim.

• Uniform Costs and Cleaning: The cost of and cleaning charges for certain clothing required for work may be deducted from an employee’s wages and reduce them below minimum wage so long as the deduction is approved in writing by the employee. Clothes meeting this requirement must be provided solely as a convenience to the employee and suitable for off-duty use. If the clothes have a company logo, are of a distinctive style such as a tuxedo, a specific type of jacket, or a security uniform, the cost may still be deducted (with written consent), but may not cut into the employee’s minimum wage.

• Payroll Taxes: FICA (Social Security and Medicare) and income tax withholding are permissible deductions which may bring an employee’s wages below minimum wage.

• Union Dues: Union dues may be deducted from an employee’s pay even if the deduction reduces the employee’s pay below minimum wage. Employers must have a written authorization for deduction of union dues.

• Garnishments and Wage Attachments: Employers are required to follow appropriate garnishments and statutory wage deductions for bankruptcy garnishments (no limit on deduction amount), court-ordered child support or spousal maintenance (employer may add $10 administrative fee per month for child support and $5 for spousal), IRS tax levies (subject to IRS deduction limitations), and guaranteed student loans (employer may add up to $10 administrative fee per month).

• Theft: Employers may deduct losses from employee theft or misappropriation of company resources and take the employee’s pay below minimum wage in doing so.

What about tips: Most employers don’t think of the difference between paying minimum wage and the allowed $2.13 for tipped employees as a “deduction” from pay but the federal government sees it as a deduction from minimum or overtime wages – even though it is referred to as a “tip credit.” Tips are a topic all their own, and will be discussed in a future EH piece.

Common Situations:

My register came up short: Bob’s Bowling Balls has a policy that all employees are responsible for shortages on their register at the end of each shift. Bob believes that employees who come up short must have stolen the money and this is the best way to keep them honest. Bob’s view may be logical, but it isn’t totally legal. If Bob has solid evidence that an employee stole money, he can take those losses from the employee in the form of wage deductions – even reducing the employee’s pay below minimum wage, but the deduction must still be authorized by the employee to be valid under the Texas Payday Act. Bob may follow his policy for register shortages without evidence so long as it is authorized in advance by the employee and does not take them below minimum wage.

Guilt by garnishment: Suzy Straightlace’s employee Tim has had a run of bad luck. Despite working two jobs he still cannot cover all the costs of his financial obligations and the medical treatment for his special needs child. Tim has defaulted on his student loans and is behind on his taxes so he recently suffered an IRS levy. Suzy decides that Tim must be let go because her customers would freak out if they realized Tim, an accountant, was handling their money but could not handle his own. Has Suzy strayed off the straight and narrow? Yes. Employers are not permitted to consider the fact that an employee’s wages are being garnished in termination or disciplinary decisions.

Payday loan deduction: Tom simply cannot live within his means. This month he takes out a payday loan and makes a “voluntary wage deduction” agreement with a local payday loan company. Tom provides the form to his employer and requests that a portion of his pay be diverted to the payday loan company. Is the employer obligated to fulfill this request? No. Employers may choose whether to accept a voluntary wage deduction agreement from an employee. The payday company will just have to sue Tom to get their money. That said, employers are prohibited under other laws from using this as an excuse to prevent an employee from participating in a benefits program, such as health insurance, offered to employees of the business.

What should I do:

Good: Always get consent, be careful deducting below minimum wage as noted above, and check that the deductions made for multiple garnishments do not exceed the legal limit.

Better: In addition to the above, document any loan to an employee as a separate document to protect your ability to sue if the employee leaves. Consider creating a single consent form signed at the time of hiring (or as soon as you read this) with all the different types of deductions in it.

Best: All of the above plus create special policies in your employee handbooks regarding deductions and utilize a specific policy for any advances for premiums on health policies to ensure no discriminatory practices.

Some of the Best Employees Aren’t even Human

By Michael Kelsheimer on Posted in In the News

No.  I’m not talking about aliens – not even the kind from another country.  I’m talking about highly trained, extraordinarily dedicated police dogs, like the one who recently got the job done on his first night at work in Houston according to KPRC 2 News. 

Courtesy of click2houston.com

You all may not know this about me, but all my “kids” have fur.  That’s right, we have a house full of rescue dogs.  So, this story hits home for me – especially given that Looper Reed helped Kristi Schiller set up the charity that made the aformentioned dog deputy available to Houston police.  

K-9′s for Cops, donates the $10 – $12,500.00, per dog, necessary to help law enforcement agencies have K-9 units in an era where budget cuts have made K-9 cops an unaffordable luxury. 

And before you ask, employers don’t have to pay overtime or minimum wage to these employees, but be careful about discrimination – K-9 work isn’t just for German Shepards.  There are all manner of dogs involved in police work all over the conuntry. 

Take a look at the site www.k9s4cops.org, and if the mood strikes you, give a little back to those who give us so much.

Job Descriptions

By Michael Kelsheimer on Posted in Handbook Articles

Who, What, Why . . .

Who does it apply to:  Every employer, but especially those subject to discrimination laws or who have employees classified as exempt from overtime.

Why should I have any:  If done right, a job description can help avoid discrimination claims, make job listings and interviews a snap, provide the analysis for classifying employees as exempt or non-exempt, and set the standard for performance appraisals.

How does a description help with exemptions from overtime:  As you know from my previous pieces on Overtime and Exemptions from Overtime, all employees are eligible for overtime – unless they meet one of certain limited exemptions.  Job descriptions can be written with exemptions in mind.  Then, when the Department of Labor arrives for an audit, you have the ammunition you will need to defend your decision to exempt those employees, and you will be less likely to have made a costly mistake in your initial determination of exempt status.

How does a description help with interviews and performance appraisals:  A job description makes writing an ad for an employee very easy because you’ve already defined what you want and can easily transcribe it. Descriptions make interviewing more objective by setting the standard by which all applicants are evaluated.  Finally, descriptions can be converted to evaluation points to objectively determine whether the employee has measured up to the job you’ve given them.

How does a description help avoid discrimination claims:  As noted above, they can help make interviews and performance appraisals objective, avoiding arguments that you made subjective determinations based on race, sex, or some other protected characteristic.  When written to include the essential functions of the position, including physical requirements like lifting, or reading and writing English, they will help avoid claims under the Americans with Disabilities Act (ADA), or discrimination claims based on national origin.

What problems might arise with old or inaccurate descriptions:  Job descriptions pulled off the internet from or a form book are like employee handbooks from the same sources.  They do not really reflect your practices or requirements.  If the Department of Labor arrives and questions employees about job descriptions and they don’t match up, the work in creating them will be for naught.  What is more, the position you designated as exempt based on an inaccurate description may be lost, and you could be responsible to the employee for overtime going back two or three years.   Worse still, since you did not have the employee clock in or out, you have nothing to defend with when the employee suddenly remembers working 5 hours of overtime every week!

What should be in a job description: Job descriptions need to separately describe both the essential functions of the job and those additional requirements that might be added or occasionally fall within the responsibilities for the position.  Essential functions should include not just the basic job duties, but employers must take consideration of what specific characteristics make up those functions.  You shouldn’t just assume that employees must read and write English. To protect you, even functions of this type need to be in the description in advance. Similarly, to protect against claims under the ADA, descriptions need to explain the physical requirements of the job such as lifting, carrying, and typing.  Finally, employers should consider whether the position should be exempt from overtime and under which exception so that the description can be written consistently with the exception requirements.

What should not be in a job description:  Employers should be careful not to write job descriptions that suggest discrimination.  A policy that all employees read and write English might be alright for the hotel front desk clerk, but not for the housekeeping department and thus create discrimination based on national origin.  Requiring a college degree for a job that does not need it might unnecessarily exclude certain protected classes.  And, a policy that specifically calls for a protected characteristic such as sex or religion is only appropriate if it is a “bona fide occupational qualification” or “BFOQ.”

When are BFOQs appropriate:  Sometimes it is appropriate to intentionally discriminate against a protected class in hiring an employee.  If you are hiring a new priest for your church, it is probably good that they have the right religion.  If you are hiring an attendant for the women’s restroom in your gym, it probably is best not to hire a man.  That said, it is not appropriate to hire all men because you are a men’s clothing company.  This is a dangerous area.  Courts are very particular about what is allowed under this exception.  You should probably consult with a lawyer before characterizing a protected class as a BFOQ.

Common Situations:

Job description after the fact:  Often, employers get caught with a Department of Labor audit and try to write job descriptions to justify exemptions after the fact.  The DOL is wise to this idea and gives the after-thought job descriptions little weight.  The same issue arises with job descriptions written after a discrimination claim is made.  The description often is used by the claimant to their advantage to make it look like the employer is trying to cover up to avoid liability.

Some jobs just require a guy:  BFOQs are dangerous, but having a requirement that you hire all men for your female-oriented shirtless hunk restaurant without writing down the requirement and explaining it in advance is a recipe for being sued.  In a reverse circumstance, a little company called Hooters™ got sued because it wouldn’t hire any men for its wait staff.  If you are going to have a BFOQ, put it in writing in advance and include an explanation that a jury would believe because that is who will ultimately evaluate it.  If a jury wouldn’t buy it, you probably shouldn’t be doing it.

Criminal background checks all around: If your job description says “no criminal history,” it better be needed.  Pepsi™ recently discovered that requiring no criminal history or even arrests for all positions can be considered discriminatory.  According to the Equal Employment Opportunity Commission, who just took Pepsi™ for a $3.1 million dollar settlement, not all jobs require a spotless criminal history.  I don’t necessarily agree with this position, but it makes a point.  If you make a job description that unnecessarily has an adverse effect on a particular protected class, even if it isn’t facially discriminatory, you could find yourself in a bad spot.

What should I do:

Good: Prepare job descriptions for all exempt employee positions and positions that require strenuous or specialized physical activity to protect against overtime claims and violations of the ADA.  Remember to be careful with job descriptions in a union environment, there may be additional requirements under the collective bargaining agreement you should consider.

Better: Prepare job descriptions for all positions and use those job descriptions as the basis for your interviews of prospective employees and as a checklist for performance evaluations of existing employees.  Be careful not to use sexist terms in your job descriptions like salesman or waitress.

Best:  In addition to the items above, get employee buy-in for job descriptions.  Have the employees presently in the position agree with the job description and what is included such that you could show the Department of Labor that the employee agreed to what is required.

Facebook Policy Against Sharing Passwords to Block Employers

By Michael Kelsheimer on Posted in In the News

Facebook privacy among employees has been discussed for a long time, but a couple of recent events have brought the issue to the forefront of public discussion.  At the beginning of the month Forbes reported on a lawsuit moving forward in Minnesota against a school district that requires Facebook passwords of students.  Then, last Friday, Facebook issued a statement with commentary that it is changing its user agreement to make it a violation to share your password:

In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.

The most alarming of these practices is the reported incidents of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.

As a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.

We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person.

Employers also may not have the proper policies and training for reviewers to handle private information. If they don’t—and actually, even if they do—the employer may assume liability for the protection of the information they have seen or for knowing what responsibilities may arise based on different types of information (e.g. if the information suggests the commission of a crime).

Facebook takes your privacy seriously. We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.

While we will continue to do our part, it is important that everyone on Facebook understands they have a right to keep their password to themselves, and we will do our best to protect that right.

– Erin Egan, Chief Privacy Officer, Policy

So, what does this mean for Texas non-governmental employers?  Realistically – nothing.  An employee or prospective employee has a  right to maintain their privacy, but you don’t have an obligation to employ people who insist upon this right. 

If someone refuses to provide you with access to their Facebook account, you can refuse to hire them or fire them.  Yes, even if it would make them violate Facebook’s policies.  What then, you say, about the threat Facebook might sue?  It is the prospective employee who would be in violation of the policy, not the employer.  Facebook could theoretically sue employers for tortious interference, but they really don’t have any damages to support a claim.  (NOTE: I am not offering any commentary about whether it is morally or societally appropriate to put someone in that position.  I could write a a whole article on that subject . . .)       

That said, there are some things to consider.  With prospective employees, your request may provide information that you don’t want to see.  As my partner Travis Crabtree observed on his blog eMedia Law Insider, looking at a Facebook account has the potential to give employers information they really don’t want to know about a prospective employee.  If potential employee Suzy Smith posted that she ran last weekend in her Baptist church 1/2 marathon, you now know her religion.  Ooops.  You didn’t really want to know that did you?  Now, if you don’t hire her, she could claim that knowing her religion biased your decision.   

In a different vein, employers might also learn of possible claims employees may have as employment attorney Chris McKinney points out on the Texas Employment Law Blog:

What if a female employee posts something on her Facebook page indicating that she is having trouble with her boss and his wandering hands only to be fired the following week?  She files a lawsuit for harassment and retaliation, arguing that while she never complained to HR the company surely knew of the conduct of her boss because they have full access to her Facebook account . . .

Of course, you also have to be careful with existing employee Facebook information.  As I have previous warned, the National Labor Relations Board has rabbidly chased after employers who use employee complaints as a basis for termination or discipline.  Employee complaints about supervisors, pay, or working conditions are considered pre-union activity and protected under the National Labor Relations Act. 

So, while the announcement likely changes nothing, previous cautions remain in effect . . .

14 Employees Fired . . . For Wearing Orange

By Michael Kelsheimer on Posted in In the News

When I first heard about this story I assumed that it was a company filled with UT haters in College Station.  Nope.  According to the Sun-Sentinal, it was a law firm in Florida.  One Friday, a group of employees at the law firm of Elizabeth R. Wellborn, PA decided to wear orange shirts so that they would all stick out later that day when they went out to happy hour at a local spot.   That afternoon all 14 were summarily fired without explanation.  Maybe the boss didn’t get invited?  Maybe their supervisor wasn’t loved as a child?   There is no way to know because the law firm refused to comment.     

In any case, I absolutely love this story.  I just always thought blue was the color at issue.  I commonly tell employers that Texas is an employment “at-will” state and they can fire employees for good reason, bad reason, or no reason – as long as they don’t do it for an illegal reason.  I then illustrate the point by giving this example:  If Suzy comes in wearing a blue shirt and you suddenly decide for some reason that you don’t like blue.  You can fire her! 

I can now die happy.  My utterly ridiculous example to prove a point has now become reality!!  And the employer was cautious enough to follow another long standing piece of advice I just covered in my recent post on terminations:  Don’t give a reason.

What Should I Know about Terminations?

By Michael Kelsheimer on Posted in Quick Questions

I get this question at least once every couple of weeks.  Recently, however, I finally reduced the list to writing.  So, here is the benefit of my wisdom . . . if you can call it that.  Follow these rules for safe termination:

1. Always have two people in the room. Two recounts of what happened are better than a he-said-she-said fight between a former employee and the employer in a later lawsuit.

2. Always have a person of the same sex, and if possible, race, religion, etc, as the employee in the room. A jury will like that person’s perspective better than the black male boss in a lawsuit against a former white female employee.

3. Do not make the employee do the walk of shame. Studies show that a former employee’s desire to sue is somewhat related to how they felt about the termination. If you humiliate the person, they will have a stronger motivation to get revenge. Fire at the edge of business hours when there are few people around and allow the employee to leave after the meeting to return later for their belongings, which you can box up, if they prefer.

4. No access to computers after the meeting. An angry employee might do damage. Cut them off and terminate any remote access before the meeting.

5. Ask them to bring in any computer equipment or other hardware they possess for the meeting. Come up with an excuse. Do something. Getting it back later can be an absolute pain in the behind.

6. Get an agreement, in writing, to collect any unpaid payroll deductions from the last check.

7. Do not give a reason. This is the hardest one for clients to follow. There is a strong urge to treat termination like a high-school break up with the “it’s not you, it’s me” excuse or some other excuse made to help the terminated employee feel better about their separation and ease the conscience of the terminating employer. For later defending some type of claim, employment lawyers are then hemmed into a polite excuse, rather than the real reason which is likely that the employee was no good. To preserve a clean slate for the employment lawyer to use, don’t give a reason.

8. If you are going to offer severance to get a release, don’t shove it down the employee’s throat during the meeting expecting a signature. For certain employees you have to offer more time for consideration by law. For the rest, you don’t want anyone arguing they were coerced. Put it in an envelope and tell them they can look at it later and consider it so long as they return it timely. DO NOT tie receipt of a final check to signing off on a severance agreement. You do not want the former employee arguing that the money paid for the release was just additional regular pay that was owed. 1099 the payment. Do not deduct payroll taxes. And, use a round number – if you want to use 2 or 4 weeks pay, round to the nearest $500 up or down as you see fit.

9. Pay the final paycheck within 6 days after termination. It is the law.

 

$168 Million – Hospital Hit for Largest Sex Harassment Verdict EVER!

By Michael Kelsheimer on Posted in In the News

It’s not the latest baseball sensation’s new contract amount.  It is the amount that Ani Chopourian was awarded against Sacramento’s Mercy General Hospital for a operating room sexual harassment spanning two years.   As the LA Times reports, Ms. Chopurian filed at least 18 internal complaints of harassment over two years working surgery at Mercy General before being fired for alleged misconduct.  They even tried to deny her unemployment benefits (in California no less – which is super employee friendly).

I guess the jury saw right through the facade.  Ms. Chopurian testified that she worked at four hospitals in her career before working at Mercy General and the conditions in surgery were bad in all of them.  It is a sad commentary on the respectability of some of the most intelligent members of the community.  You would think that physicians might know better, but many don’t . . . or don’t care.  Unfortunately the ego of some physicians leaves them with a feeling that they are invincible or untouchable.

Sadly today these few bad apples give the profession a black eye.  Welcome to the club, doc’s.  Lawyers often suffer from the same fate.

Sensationalism aside, however, what is a hospital administrator to do?  Apparently at Mercy General they look the other way.  Surgery brings in a lot of money for hospitals.  And cardiac surgeons, like those Ms. Chopourian worked with, bring in some of the highest payments from insurance companies.

It is a touchy thing managing doctors – much like professional baseball players who can earn enough money to pay the verdict in this case.  As I am fond of telling my clients – It is all about managing risk.  If you don’t want to have claims, manage your people accordingly.  In the past, it appears that Mercy General has erred on the side of leniency.  Of course, it won’t take many verdicts like this to straighten the moral fiber of hospital administrators and their Boards.

We can only hope this message hits home with as many folks as possible before bad behavior catches up them.  And, if you don’t get the message, give me a call when you get the claim.  In addition to the possibility of a verdict, it should be worth a lot in fees.

Genetic Information Non-Discrimination Act (“GINA”)

By Michael Kelsheimer on Posted in Handbook Articles

Who, What, Why . . .

Who does it apply to: Any employer with 15 or more employees that obtain genetic information (including family history) about an employee.

Why should I keep reading – I don’t use genetic information: It’s true, most employers don’t have a program to obtain genetic information about employees, but the law is broad enough that “genetic information” includes family histories of an employee’s health, which employers are much more likely to come in contact with.

What does it require: Employers are not permitted to use an employee’s genetic information in making employment decisions, retaliate against an employee for making a claim of discrimination based on genetic information, or permit an employee to be harassed based on that employee’s genetic information.

What exceptions are there to the law: There are seven so called “exceptions” to the law, but most of them are really more like “get out of jail free cards” to avoid liability for a claim:

• Inadvertent requests: If an employer accidentally requests information regarding genetic information, or more probably, family medical history, this may be treated as an exception to the rule. Employers should use the government-approved “safe harbor” language in any forms requesting medical information.

• Requests associated with leave or accommodation: An employer is protected against violation for information received from an employee in connection with a request for leave under the Family Medical Leave Act or for accommodation under the Americans with Disabilities Act.

• Information received by accident: It is not a violation of the law to have normal, casual conversations. If an employee is talking about their family medical history, or, for instance, their mother’s recent cancer diagnosis, it will not be a violation of the Act for the employer or an employee to receive that volunteered information. It would, however, be a violation to follow up with questions of a more probing inquiry.

• Wellness programs: If the employee provided the information as part of a wellness program that the employee voluntarily signed up for and the information is used only as to that program, the employer may see the information only as part of an overall assessment.

• Information that is commercially or publicly available: This includes information in newspapers or on the internet posted in easily located places, but the employer may not seek out this information for the purpose of using it to make employment decisions.

• Legally required monitoring: Monitoring as part of an occupational safety or health program required by law is excepted from violation, but the employee must be aware of the monitoring and federal guidelines that must be followed.

• Law enforcement and military: Employers may collect information to help law enforcement and the military with proper genetic identification.

When can I disclose information that I have: Given that you are not supposed to have any information, there should never really be an occasion that you need to disclose it. That said, information employers do have may be provided to: (1) the employee whose information it is; (2) in response to a court order for that specific type of information; (3) to the government in association with an audit; (4) in connection with a leave request; and (5) to government officials in connection with a disease or if imminent hazard of life or death exists.

Common Situations:

Pretesting to avoid CTS: A northern railroad company decided to attempt to head-off the growing number of carpal tunnel syndrome cases it was suffering under its worker’s comp program by conducting genetic testing. Early in the program, the company determined an employee was predisposed and threatened termination if the employee would not accept a different position that reduced the risk. Clearly this would violate GINA now, but the circumstances occurred before the law was passed and the EEOC scrambled to attempt to characterize the employer’s actions as a violation of the ADA.

Passed down disease: An employee requests FMLA leave to take care of her father. As part of the employee’s request for leave, she explains that her father has Huntington’s disease and that she herself is scared because she has a greater than 50% chance of getting the disease. Reeling from other employee health claims and the skyrocketing premiums for health insurance, the employer finds the first opportunity to let the employee go after she returns from leave, despite excellent performance appraisals in the past 3 years. Clearly this is a violation, but reflects on an all-too-common conundrum for employers who are trying to find any way possible to cut down on the high cost of healthcare for their employees.

Does anybody else in your family have that: Tom comes back from bereavement leave and tells his employer that his mother passed due to cancer. His employer inquires, possibly innocently, whether anyone else in Tom’s family has had to deal with cancer. Tom replies that he has lost 6 relatives to cancer over the last 10 years. Weeks later, Tom is passed over for a promotion to the company’s controller. He files an EEOC claim based on genetic information discrimination. Is it a valid claim? We don’t know the mind of Tom’s boss, but it doesn’t really matter, the employer will have to deal with an EEOC investigation and possibly a lawsuit costing thousands of dollars in legal fees just because he asked the one question too many and it was considered a “probing” question by the employee.

What should I do:

Good: Be careful of “family health histories”. For most employers that is the only real way GINA will affect you. You need to avoid obtaining family health histories at all costs. Make sure your employee handbook prohibits discrimination based on genetic information and put up the required poster from the EEOC regarding genetic information discrimination.

Better: In addition to the items above, store any medical file information regarding employees in a separate locked cabinet and use the safe harbor language on any medical information forms to protect against inadvertent disclosure of protected information (including FMLA request forms).

Best: All of the above, and make sure that any pre-employment health screenings don’t ask for a family medical history or require genetic testing unless you meet an exception.