Employment Law Bits

EEOC announces strategies for employers in dealing with the Swine Flu outbreak

In response to the recent swine flu outbreak, the Equal Employment Opportunity Commission (EEOC) has produced several comments directing employers on how to avoid a potential Title VII or ADA violation.

On May 11, 2009, the EEOC warned that “Swine Flu discrimination” could be considered a violation of Title VII of the Civil Rights Act of 1964. Specifically, the EEOC cautioned employers against discriminating against Mexicans out of fear of swine flu. Essentially, to bring a claim for violation of Title VII, one must first demonstrate that they belong to a protected class, such as race, gender, or—in this case—national origin. By refusing to hire someone of Mexican origin for fear that they are carrying the swine flu, an employer may be causing a disparate impact on a protected class. The caveat: employers should steer clear of refusing to hire persons of Mexican origin.

Additionally, the EEOC recommends that employers institute a neutral policy that requires any employee who contracts the swine flu to take a leave of absence. That will likely insulate an employer from a Title VII violation.

Further, in response to growing concern, the EEOC also disseminated information regarding whether employer requests for health information would violate the Americans with Disabilities Act (ADA). The EEOC responded to this concern in three categories, (1) pre-employment offer, (2) post-employment offer, and (3) current employees.

The short answer is that before an offer for employment is tendered, an employer may not request health information or medical examinations of any kind. However, once an offer is made, but prior to the new employee’s start date, an employer may request such information, regardless of whether it is sufficiently job-related, so long as this procedure is implemented for all similarly situated new hires.

Finally, an employer may only request medical information from current employees if the request is sufficiently job-related and consistent with a business necessity. However, beware of a caveat here as well. When it is acceptable for an employer to request that employees undergo medical examinations, the information collected must remain strictly confidential.

Some final thoughts on employer procedure dealing with swine flu at the workplace - employers may require employees to wear protective equipment such as a face mask on-the-job without concern for a potential ADA violation. Employers may also recommend or require that employees work from home to control an outbreak, so long as an employee is not singled out in the process.

For more information regarding proper employer procedure during the swine flu epidemic, please consult the EEOC, or make an appointment with an employment law attorney.

Entitlement to employee benefits on termination of at-will employment

Most employees in Massachusetts are employees-at-will—meaning that they can quit or be terminated for any reason, or for no reason at all. This lack of job security may be unsettling to many employees, especially in these difficult economic times. However, in the event that an individual loses their job, they may take some comfort in the fact that certain benefits could be guaranteed to them by their employer’s personnel handbook.

Employee handbooks generally to not contractually guarantee an employee’s job. Yet, the Supreme Judicial Court has held that where the handbook promises that certain benefits will be paid when employment ends, the employer may be obligated to pay those benefits.

The benefits are due to the employee because of the services rendered to the employer. See LeMaitre v. Massachusetts Turnpike Authority, 452 Mass. 753 (2008). Whether the employer’s promise to pay certain benefits is legally enforceable depends on the context of the preparation and distribution of the employment policies. If you have questions about an employer’s legal obligation to pay benefits, you should contact an attorney.

Employer’s failure to adhere to employee handbook’s discipline policy is evidence of improper termination

Companies with employee handbooks: Beware. An employer’s failure to adhere to a handbook policy regarding progressive discipline may be used as evidence of an improper termination. Therefore, it is critical that an employer be familiar with its own employee handbook and ensures that its practices conform to the stated policies.

It is also important that the language in a handbook is flexible enough to allow the employer to alter and adjust such policies as needed. Consequently, employers are urged to invest some effort and carefully draft their employee handbooks to reflect their business needs.

For example, in a recent Massachusetts Superior Court case, Ferry v. Rosewood Construction, a contractual employee sued his employer, claiming a breach of the employment contract, after he was suddenly terminated. The employment contract provided that the employee would maintain his employment as long as he maintained the responsibilities of his job description according to industry standards.

Prior to the employee’s discharge, the employer had adopted a “generic” employee handbook, without consulting with an attorney or an employment specialist. This handbook’s progressive discipline policy provided that for a first offense, a written or verbal warning would be issued; the next offense mandated suspension; and a subsequent offense would mean termination. The company, however, retained the right to discharge, demote or suspend an employee without warning for serious offenses. The employee had never received any type of discipline prior to his termination.

The court recognized that, notwithstanding an employment contract, an employer in Massachusetts does have the right to terminate a contractual employee, in good faith, for reasons such as lack of capacity or diligence, failure to conform to usual standards of conduct, or other culpable or inappropriate behavior.

In this case, the court found that the employer had no such reason. The court agreed that the disciplinary policy was not binding on the employer with respect to this particular employee. Nevertheless, it concluded that the employer’s failure to follow the disciplinary protocol outlined in the handbook was evidence that the employee was improperly fired, in breach of the employment contract. Subsequently, the employer was responsible for paying the remainder of the employment contract.

The court’s decision reveals that, although the employee handbook is an integral part of the communication between an employer and the employee, it presents many pitfalls. If you need any assistance with drafting or reviewing your employee handbook, you are urged to contact an attorney or an employment specialist.

Federal Appeals Court holds that women fired for taking too much time off for infertility treatments may invoke pregnancy discrimination act.

On July 16, 2008, a federal appeals court in Chicago held that women who need time off work for infertility treatments are protected under Title VII, as amended by the Pregnancy Discrimination Act.

In this case, a secretary had been fired after taking too much time off work for infertility treatments. Following an embryo transfer, the secretary’s physician had ordered her to bed rest for 20 days. When the transfer was unsuccessful, she requested more time off. She was subsequently laid off by her employers, who cited absenteeism for infertility treatments. The

Appeals Court disagreed that Title VII did not apply because infertility affects both genders. It reasoned that only women undergo time-consuming in vitro fertilization, therefore, they merited protection under the Act.

While this decision applies only in Indiana, Illinois, and Wisconsin, it does reveal that infertility is gaining increasing recognition as a medical problem. Massachusetts already recognizes that it is such a problem. The Commonwealth requires health maintenance organizations and insurance companies that provide pregnancy-related benefits to also cover the medically necessary expenses of infertility diagnosis and treatment when the period of infertility is greater than one-year. 

With this in mind, and to avoid liability, employers are advised to review their medical leave policies and ensure that they conform to the Pregnancy Discrimination Act.

Monitoring employee emails – a slippery slope if not done correctly

As an employer, you are rightfully concerned about the amount of time your employees spend on personal emails. The inappropriate employee use of the company email system can create a host of problems for an employer.

Not only does the inappropriate use of email reduce employee productivity, but they can expose an employer to potential liability. Emails can be used against an employer in a lawsuit in the same way as any correspondence. In recent court cases, employee emails have been presented as evidence in claims of discrimination, sexual harassment, and other illegal activities.

Therefore, an employer may be tempted to monitor employee emails to ensure maximum work productivity and decrease its own legal liability. As a general matter, employers have the right to monitor employee email. The electronic mail systems at work are the employer's property. An employer also has the right to expect that such systems will be used for business purposes. However, this right to monitor emails is somewhat limited by an employee's right to a reasonable expectation of privacy. An employer that monitors employee emails may be liable for violating its employees' privacy if it does not have a sound email policy that gives notice of proper email usage.

A good email policy should give employees notice that the employer expects that the email system will only be used for business purposes. Furthermore, the policy should articulate whether personal emails are ever permitted. For example, an employer may chose to allow its employees to email during lunch breaks. The policy should also remind employees of unacceptable email practices, i.e. sending inappropriate and offensive messages. Most importantly, the employer should clearly state its intention and reserve the right to monitor employee emails.

If you have any questions about creating an acceptable email policy, or are unsure whether your company has a sound email policy, you should consult with a qualified employment attorney.

Federal Court rules that employer may not look at its worker’s text messages

On June 18, 2008, the 9th Circuit U.S. Court of Appeals decided that employers may not read their employees' text messages without the employee’s consent. In that case, the employer provided the employee with a wireless pager. The employer attempted to audit the text transmissions by requesting a transcript of the employee’s text messages from the wireless provider. The employer did not have a formal policy regarding monitoring text message use.

The court held that even if the employer paid for the pager and text messaging service, such request was in violation of the federal Stored Communications Act. The court found that the Act prohibits wireless providers from releasing the text message contents to the employer.

The court further held that the employer’s request violated the employee’s Fourth Amendment privacy rights. The court reasoned that users of text messaging services have a reasonable expectation of privacy in their text messages stored on the service provider's network. The court further indicated that there were less intrusive means available to monitor the employee’s use of text messaging.

New technologies make it possible for employers to monitor many aspects of their employees' jobs. However, employers are cautioned to ensure that they develop employee monitoring policies that comply with state and federal laws.

Investigating claims of improper conduct

Occasionally an employee will accuse a coworker or supervisor of improper conduct such as sexual harassment. These situations are difficult to deal with on several levels. To start, an employer must conduct a proper investigation of the allegations before deciding to terminate the accused employee. If the company fails to do this, it may be liable to the employee for damages.

While Massachusetts is an “at-will” state, some employees have employment contracts with their employers. If there is an employment contract, the company should carefully read it prior to conducting the investigation to ensure compliance with the terms of the contract. This will help avoid any breach of contract claims. Even if there is not an express contract, an employer may be bound to follow procedures set forth in an employee manual.

In addition to contract claims, a company may face potential liability for interference with a contractual or advantageous relationship. If a company fails to properly and objectively investigate allegations of misconduct, but goes ahead and terminates the accused employee, this may make the company liable to the discharged employee.

If you are an employee that has been fired due to allegations of misconduct, consult an attorney today to know your rights. If you are an employer investigating an employee’s allegations of harassment, you should consult an attorney to know your obligations and to develop a proper investigation technique.

Making sure your company’s policies are up to speed legally

Employment law is constantly changing. These changes can result from many sources including the legislature, various regulatory agencies and court cases. Accordingly, employers must keep up with these changes. This is especially important in Massachusetts in light of the implementation of certain provisions of the new health care law.

To avoid litigation, a comprehensive employee manual is a great way to start. But it’s only effective, however, if it is regularly updated to reflect the current laws and standards. A company audit is a great way to ensure that you are in full compliance.

Following are some steps in conducting a company audit:

• Put together an audit team including either in-house or outside counsel, a member of the Human Resource team and a fair representation of your company’s mangers and employees.
• Any member of the audit team should be informed about the handling of confidential information.
• Start with your employee manual and carefully review it to make sure that it accurately reflects not only the current state of the law, but also the actual policies and practices occurring within your company.
• Inspect employee bulletin boards to assure that proper disclosure notices are posted.
• Determine if your company’s policies are implemented consistently. If not, make a plan to do so.
• Remember that many lawsuits against employers can be traced to four distinct areas: hiring, employee evaluation, employee discipline or termination and post-employment. A careful review of how your company conducts itself in regard to these areas can help keep everyone on the same page.

The most important areas to target in this auditing session are:

• Occupational Safety and Health Act
• COBRA
• Employee Retirement Income Security Act
• Title VII of the 1964 Civil Rights Act
• Family and Medical Leave Act
• Americans with Disabilities Act
• The new Massachusetts Health Insurance Law

For more information or ideas on conducting an employment law audit, contact an employment law professional.

When does an employee handbook become an employment contract?

Employers are always told to create handbooks that contain their companies’ policies. What employers are not told is that if they are not careful, their handbook could be considered a contract, binding the employer to certain obligations. Since Massachusetts is an “At-Will” employment state, employers are encouraged to take steps to lessen the likelihood that their employment handbooks will be considered contacts.

Steps to help prevent your handbook from being considered a contract include:

• Retain the right to unilaterally modify the contact
• Do not negotiate any terms of the handbook with the employee
• The handbook should provide only guidance to the employee on its policies
• The handbook should never state a term or length of employment
• Do call special attention to the handbook during the hiring process
• Do not require that the employee sign the handbook

The above is a good start, and there are more, so don’t hesitate to solicit legal review of your new employee training methods.

Employment "At Will" - what that really means

In Massachusetts, a basic rule exists that all employment relationships are “at will.” In an “at will” employment relationship, either the employer or the employee may terminate the relationship whenever they choose.

There is no requirement that an employer give notice to the employee that they are being fired. However, there is also no requirement that an employee give notice that they are quitting. A two-week notice is generally considered to be a courtesy but not a legal requirement.

There are exceptions to this general policy. The “at will” doctrine is a default rule for employment practices and gives way to any binding agreements by the parties. Employers and employees are free to dictate the terms of employment through an employment contract.

Courts in Massachusetts have been willing to find that employee handbooks are similar to contracts. It is important, then, to make sure that your employee handbook clearly designates that employment remains “at will. “

Another limitation to the “at will” doctrine includes terminations that violate public policy. This prevents employers from terminating the employment of “at will” employees for any reason, even if there is no contract between the parties.