News

EEOC APPEALS ITS $3.3M ATTORNEY’S FEE LOSS

The U.S. Equal Employment Opportunity Commission appealed to the Eighth Circuit to overturn a $3.3 million attorneys’ fee award entered against it after its failed sexual harassment suit against CRST Van Expedited Inc. The EEOC argues that CRST improperly calculated the attorney fee standards under Title VII.

http://media.ca8.uscourts.gov/cgi-bin/opnByCase.pl?caseno=13-3159&getOpn=getOpn

 

NLRB PROPOSED RULES TO CHANGE JOINT EMPLOYER DEFINITION BACK TO PRE-BROWNING-FERRIS STANDARD

Sixty days of public  comments opened on Friday, September 14 when the National Labor Relations Board proposed the following definition of “joint employer,” “Employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.” The change is a step back from the expansion of joint employer under the Obama administration. 

https://www.federalregister.gov/documents/2018/09/14/2018-19930/the-standard-for-determining-joint-employer-status

 

SEVENTH CIRCUIT CONSIDERS JOINT EMPLOYER ISSUE

In Frey v. Hotel Coleman, Frey alleges sexual harassment and retaliation against her employer, a service company hired to run the Hotel Coleman. In overturning a summary judgment order that denied that the Hotel Coleman was Frey’s employer, the 7th Circuit held that the most defining factor in determining whether an organization is an employer is the “economic realities test,” the decision as to which organization had control of the manner in which the work is done.

 

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-11/C:17-2267:J:Rovner:aut:T:fnOp:N:2216557:S:0

 

HESSEMARTONE CONGRATULATES PRAIRIE FARMS IN ARBITRATION WIN DEFINING COST SHARING OF HEALTH BENEFITS

Prairie Farms and the Illinois Conference of Teamsters negotiated a Collective Bargaining Agreement (CBA) that included language permitting the employee contribution to the company’s health care benefits to be adjusted annually to reflect medical inflationary trends, but could not be adjusted by more than 15 percent per year. The Union filed a grievance arguing that the medical inflationary trends should not be included in the Company’s calculation of health care benefit employee contributions. The arbitrator dismissed the grievance, noting that the clear language of the CBA permitted the calculation and subsequent increase to the employee contributions. Attorney Willie McGarry defended Prairie Farms in the arbitration.

Missouri Human Rights Act: Does it protect sexual orientation or gender identity in the workplace?

The Missouri Courts appear to be split on whether the Missouri Human Rights Act extends its protections to cover gender identity and sexual orientation. Last week, the ACLU filed a complaint against the Missouri Human Rights Commission for dismissing a claim by a transgender man by stating that its jurisdiction did not extend to protecting sexual orientation. https://www.aclu-mo.org/sites/default/files/field_documents/binder1.pdf. The case arises out from a transgender male who claimed that he lost his job at Dollar General because of his transgender identity. The Missouri Human Rights Commission dismissed the claim and stated that its jurisdiction did not extend to gender identity.

The Missouri Supreme Court has also heard two cases that held the MHRA did not extend to gender identity and is expected to rule in the coming months.

AS THE ADA NEARS ITS 30TH ANNIVERSARY, THE U.S. SENATE CONSIDERS REFORMS

The Americans with Disabilities Act was passed by the U.S. Senate 29 years ago today, the first step in achieving legal protections for handicapped Americans. The ADA continues its evolution, HR 620, which has passed the U.S. House considers significant changes to the law and specifically, could eliminate federal incentives for businesses to make their facilities accessible. The Senate is expected to consider the resolution this fall. 

 

https://www.congress.gov/bill/115th-congress/house-bill/620

 

SEVENTH CIRCUIT RESTATES EVIDENCE REQUIRED FOR A RACIAL DISCRIMINATION CLAIM

Haynes, an assistant professor in the Education Department at Indiana University, had been denied tenure following a six-year probationary period. The 7th Circuit upheld the lower court’s grant of a summary judgment for IU, stating, “Evidence must be presented that would permit a reasonable fact finder to conclude that a Plaintiff’s race caused the employment discharge or other adverse employment action.” A mere inference is not enough to sustain an action.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-04/C:17-2890:J:Sykes:aut:T:fnOp:N:2212102:S:0

 

 

OSHA Reviewing Its Lock Out-Tag Out Policies Due to New Technology

The U.S. Occupational Safety and Health Administration (OSHA) is opening up its regulations on the heavy industrial use of electricity by considering its Lock Out – Tag Out policies.  Recent technological advancements that employ computer-based controls of hazardous energy (e.g., mechanical, electrical, pneumatic, chemical, and radiation) conflict with OSHA’s existing lock-out/tag-out standard. The use of these computer-based controls has become more prevalent as equipment manufacturers modernize their designs. Additionally, there are national consensus standards and international standards harmonization that govern the design and use of computer-based controls: this approach of controlling hazardous energy is more accepted in other nations, which raises issues of needing to harmonize U.S. standards with those of other countries. The full regulations can be reviewed here: https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=1218-AD00

Balancing Social Activism With Free Speech and Management Rights

Southern Illinois University in Carbondale attempted to release a ban on student-athletes and any displays of political speech during games, such as kneeling during the National Anthem. A week into the release, the public outcry on social media forced SIU to rescind the policy. Could SIU have established a policy that would have withstood public scrutiny?

As organizations think through the balance of free speech and the classroom/workplace, they are stepping into legal landmines along the way. Not only do they need to balance free speech concerns, but when considering employees and their workforce, they also need to carefully balance the rights of employees to speak out and not violate the National Labor Relations Act as well.  As employers rewrite their organization’s handbooks and attempt to address political activism and free speech, the careful balance requires legal scrutiny. HM’s attorneys are well versed in developing legal employee handbooks that address these issues.

 

SIU Athletics rescinds activism ban, legal experts weigh in on Code of Conduct addition

 

HR CONTINUOUS IMPROVEMENT TIP: US DOL OPINION LETTERS

As a Human Resources Director, one of the hardest aspects of the position is the application of rules and regulations to your workforce.  The U.S. Department of Labor offers quarterly updates, answering questions anonymously on specific questions from employers. This quarter they delve into specifics on FMLA and overtime. Their full opinion letters can be found: https://www.dol.gov/whd/opinion/guidance.htm

 

The WHD answered that organ donors can qualify for FMLA leave and stated that: “An organ donation can qualify as an impairment or physical condition that is a serious health condition under the FMLA when it involves either “inpatient care” under § 825.114 or “continuing treatment” under § 825.115. Thus, as relevant to your letter, an organ donation would qualify as a serious medical condition whenever it results in an overnight stay in a hospital. Of course, that is not the only means for organ donation to involve “inpatient care” or “continuing treatment.” Organ-donation surgery, however, commonly requires overnight hospitalization, as you note in your letter, and that alone suffices for the surgery and the postsurgery recovery to qualify as a serious health condition.