Weekly Web Roundup: October 16, 2009
Wage and hour collective actions remain active in Iowa. A Judge in Clinton County just approved a collective action settlement in which Wal-Mart agreed to pay $11 million to settle claims that it failed to pay overtime, properly account for breaks, and altered time records. Employees and former employees who worked for Wal-Mart in Clinton between 1999-2009 will receive between $25-300 each.
Flu season is officially underway, and the H1N1 virus has been back in the headlines. Ogletree Deakins has published an informative Question and Answer document concerning an employer's rights and obligations in dealing with employees who have the H1N1 virus. In addition, the EEOC recently published a technical advisory entitled "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."
Also from the EEOC, the Agency released on October 6 an informal opinion letter concerning employee health risk assessments. The letter, authored by EEOC assistant legal counsel Peggy Mastroianni, takes the position that requiring employees to answer personal health questions as a condition of receiving an employer provided health reimbursement expense benefit violates the ADA. Although an informal opinion letter is not binding, it provides insight into how the Agency evaluates these issues. For more analysis see this post at the Washington D.C. Employment Law Update.
Are you a lawyer who regularly uses motions for summary judgment in defending employment claims? Before you file your next one, check out this post at Workplace Prof Blog. Lawyers for United Airlines filed a motion for summary judgment in a race discrimination suit pending in California state court. The Court noted the motion sought "adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages." Once the plaintiff's resistance and the defendant's reply were considered, 5,415 pages of material were presented to the trial judge. The Appellate Court characterized this as "what may well be the most oppressive motion ever presented to a superior court ".
In reversing the trial court's ruling granting summary judgment, the Court spared no criticism of the trial judge. The reason for the reversal: "what apparently happened is that the trial court did not read all the papers." However, in the end, the Court gave the trial judge a break: "While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order."
The Court concluded with an admonition we all should heed the next time we file one of these motions: "The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard."
Finally, Molly DiBianca at the Delaware Employment Law Blog reports on a survey of employers concerning their use of social networking media as part of applicant screening. 45% of respondents reported using social networking for background checks, with 35% of those having rejected a candidate for what they found there. What will disqualify a potential employee? Among other things, provocative photos or information; depiction of drinking or drug use; lying about your background or qualifications; or discriminatory comments.
The Court noted that the definition of "employer" under FLSA is not limited by the common law understanding of the term, but "is to be given an expansive interpretation in order to effect FLSA's broad remedial purposes". The test, according to the Court, is whether the individual exercises "control over the nature and structure of the employment relationship", or "economic control" over the relationship. In this case, the Court noted that the CEO held 70% of the company shares, the manager in charge of labor relations owned 30%, and the CFO had responsibility for cash management. Under these facts, the Court held the plaintiff's stated a claim against the individuals under FLSA. The Court rejected the defendants' argument that any claims for unpaid wages by former employees belonged in the bankruptcy court. 
Although there is some indication the recession is easing, many employers remain concerned about the economy. Pay reductions and temporary furloughs provide a means by which employers can manage payroll expense while still retaining valued employees. As we discussed in 
proposed removing the "card check" provision in law the law that would have permitted union certification without a secret ballot election. For a discussion of the current state of EFCA, including the recently proposed compromise, see Justin Wilson's post 