A recent post at Human Resources Executive Online, entitled "Warnings from the Top".  provides an excellent overview of some of the new challenges employers have been presented since the beginning of 2009.   "Like it or not" say the authors, changes are coming, and employers better be prepared.

According to several attorneys the authors interviewed, some of the most pressing new laws and regulations relate to the Lilly Ledbetter Fair Pay Act, the Employee Free Choice Act being debated in Congress, and Amendments to the ADA.    These new laws mean it is time to train–about labor relations issues, what managers can and cannot say about unions; about safety, and about reasonable accommodation.   Now is also a good time to conduct an audit of your company’s human resources practices, especially wage and hour compliance issues and compensation practices.  

Iowa employers are not immune from these changes.  Indeed, as discussed in a prior post on Iowa Employment Law Blog, compensation fairness issues may be even more urgent in Iowa because the the State has enacted its own version of the Lilly Ledbetter Act.

We will continue to keep you posted on developments in these important areas of the law.

An update on H1N1–the confirmed number of cases in Iowa is now 60, and perhaps growing.   That is up 17 cases since our last post on this subject two days ago.   In addition to the existing public health and employer challenges this disease presents, will a potential pandemic provide the impetus for Congress to mandate paid leave for employees? 

There are reports that Senator Edward Kennedy (D., Mass.) plans to reintroduce next month the "Healthy Families Act".  The bill would require employers with fifteen or more employees to provide at least seven paid sick days per year to full time employees.  According to The Des Moines Register, Iowa’s Senators and Representatives are divided on the proposed law, which was first introduced, but not enacted, in 2007.    Existing federal law requires private employers with 50 or more employees and all public employers to provide up to twelve weeks of unpaid leave because of a serious health condition of the employee or a close family member.   However, there is no law that requires paid time off because of illness.

Opponents of the law in Iowa’s delegation are concerned about the impact of another employer mandate on small business.   While no reasonable employer wants its employees to be harmed in the event of an illness, the law as it was proposed in the last Congress not only imposes the obligation of paid leave, but also provides that employees may enforce the act with a civil lawsuit. 

Interested parties should contact their Senator or Representative and let them know your views.

As of a couple of day ago, there were 43 reported cases of swine flu–what is now being called "H1N1"–in Iowa.   

Given the continued spread of this virus, employers would be wise to develop plans to deal with H1N1 issues that could affect their employees and their workplace.   The Des Moines Register published an article today  (link here) about the choice many employees make between staying home or going to work when they are sick.    The article suggests that employees who lack paid sick leave are more likely to show up at work when they are sick, thus raising the risk of infection by co-workers and customers.

What should an employer do to protect the health of its employees and customers, while at the same time making sure to comply with employment laws?  The first step is to be informed.  The website pandemicflu.gov provides lots of helpful information and tips to stay abreast of the virus and its spread.

In addition, the EEOC has recently published two articles to assist employers in dealing with H1N1 issues.  The first, ADA Compliant Employer Preparedness for the H1N1 Flu Virus provides guidance on dealing with employee absenteeism and infection control in ways the comply with the disability discrimination laws.    According to the EEOC publication, employers are permitted to gather personal information from employees in connection with pandemic preparation so long as the employer asks broad questions that are not limited to disability related inquiries.   The EEOC even provides a sample questionnaire that complies with the ADA.   In addition, employers may implement common sense infection control procedures without implicating the ADA.

The second EEOC document, entitled Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu), cautions employers about national origin discrimination in light of the fact that the h1N1 virus is believed to have originated in Mexico.   The publication also provided helpful links concerning pre-employment physical exams and disability related questions to employees.

We will continue to keep you posted on developments in this area.

 

On April 28, 2009, Governor Culver signed into law Senate File 137, entitled an Act "Providing that Wage Discrimination is an Unfair Employment Practice under the Iowa Civil Rights Act and Providing an Enhanced Remedy.”   This law (available here) amends the Iowa Civil Rights Act to expressly provide that pay differentials among employees are unlawful if they are based upon the employee’s age, sex, disability, and several other protected characteristics.   Local media coverage of Governor Culver’s signing can be found here.

You might ask, isn’t pay discrimination already unlawful under the Iowa Civil Rights Act?   The answer is yes, but this amendment appears to be an attempt to make Iowa law consistent with recently enacted federal legislation governing pay discrimination, known as the "Lilly Ledbetter Fair Pay Act of 2009", which was signed into law in January.  It also incorporates provisions of the federal Equal Pay Act, first enacted in 1963.

The law amends the Iowa Civil Rights Act, Iowa Code Chapter 216, in three significant ways:

First, it makes an unfair or discriminatory employment practice to pay an employee in a protected class at a rate less than the rate paid to other employees who are employed within the same establishment for equal work on jobs, the performance of which requires equal skill, effort, and responsibility, which are performed under similar working conditions.  Protected classes under the law include age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability.

Second, it provides that an unfair or discriminatory practice occurs not only at the time a discriminatory pay decision is implemented, but also each time wages, benefits, or other compensation is paid that results in whole or in part from the discriminatory decision.

Third, it provides an “enhanced” remedy. That is, an employee is entitled to recover two times the wage differential paid to another employee compared to the complainant for the time period of the discrimination, or three times the differential in the case of willful violations.

Iowa Employer should take note of several importance aspects of this law that create potential risk and exposure to employee lawsuits:

First, these Amendments actually provide greater protection than Federal law, which applies only to employers with fifteen or more employees.  The Iowa Civil Rights Act applies if an employer has four or more employees (although family members are not considered employees for this purpose). 

Second, to determine whether pay is discriminatory, the law allows an employee’s pay to be compared not only to others who have similar jobs, but to those whose job functions may be very different , but require "equal skill, effort, and responsibility", or are performed under "similar working conditions".  This provision should cause employers more than ever before to have detailed and accurate job descriptions.  To the extent pay is different among different job categories, employers should develop objective rationales for such differentials.

Third, the fact that each paycheck can constitute a discriminatory practice may lead to litigation over pay decisions that were made years or even decades ago, but which are discovered only recently. 

Finally, the enhanced remedy provides not only additional damages, but also applies to the entire time the employee has been discriminated against.   This is a greater protection than available under the federal law, which limits recovery of back wages to two years. 

Given the enhanced protection provided under the Iowa Civil Rights Act as compared to federal law, employers can expect claims under this law to be filed in State instead of Federal Court.

Employers should take note of a recent EEOC publication entitled "Employer Best Practices for Workers with Caregiving Responsibilities", available on the EEOC website, or by clicking here.   

Although an employee’s status as a caregiver is not protected under any federal or Iowa law, the EEOC nonetheless takes the position that discrimination against such employees can constitute discrimination on the basis of characteristics that are legally protected, such as sex or disability.   EEOC "Best Practices" documents do not carry the force of law, but are intended to provide suggestions for practices that employers may adopt to reduce the chance of EEO violations against caregivers, and to remove barriers to equal employment opportunity.  Best practices are proactive measures that go beyond federal non-discrimination requirements.    As courts often defer to the EEOC’s interpretation of the discrimination laws, employers should familiarize themselves with some of the EEOC’s suggestions.

The EEOC recommends that employers develop, disseminate, and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws.   The document states that an "effective" policy should include, among other things, the following:

  • Definitions of relevant terms, including “caregiver” and “caregiving responsibilities.
    • Provide an inclusive definition of “family” that extends beyond children and spouses and covers any individual for whom the applicant or employee has primary caretaking responsibilities.
  • Describe common stereotypes or biases about caregivers that may result in unlawful conduct, including:
    • assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment;
    • assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees;
    • assuming that male workers do not, or should not, have significant caregiving responsibilities;
    • assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;
    • assuming that female workers who are caregivers are less capable than other workers; and
    • assuming that pregnant workers are less reliable than other workers.
    •  
  • Provide examples of prohibited conduct related to workers’ caregiving responsibilities, such as:
    • asking female applicants and employees, but not male applicants and employees, about their child care responsibilities;
    • making stereotypical comments about pregnant workers or female caregivers;
    • treating female workers without caregiving responsibilities more favorably than female caregivers;
    • steering women with caregiving responsibilities to less prestigious or lower-paid positions;
    • treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin-based stereotypes;
    • treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;
    • denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities; and
    • providing reasonable accommodations for temporary medical conditions but not for pregnancy.

 Proactive employers would do well to review their policies to take into consideration potential discrimination claims by employees with caregiver responsibilities.

Welcome to the official launch of Iowa Employment Law Blog!   Important changes and developments in employment and labor law are occurring at an ever increasing pace.  Our goal at Iowa Employment Law Blog is to provide practical information and analysis on the latest developments, trends, and changes in this important area of the law.  

Iowa Employment Law Blog intends to focus on issues that are important to Iowa employers–federal laws, state laws, regulations, and recent cases that impact your business and your employees.    Already in 2009 we have seen a dizzying number of new laws, regulations, and court decisions that impact the workplace.   Important legislation at the national and state levels remains pending.   

We hope you will find our posts interesting and informative.   Our platform allows reader comments, and we look forward to hearing from you.  

 

Just days after the Iowa Supreme Court’s ruling legalizing same sex marriage, at least one media outlet is reporting that Iowa employers are scrambling to determine whether they need to adjust their employment policies to comply with the ruling.  Of immediate concern are employee benefit programs that provide coverage for spouses, and policies governing family and medical leave.

An employee in Iowa is already protected from discrimination based upon sexual orientation or gender identity.  However, that protection did not necessarily require an employer to extend benefits to a same sex partner in the same way it would the spouse of a married employee.   The new ruling could change that requirement.  To the extent an employer grants benefits to the spouse of an employee, spouse may now include a person of the same sex.   It is important to note, however, that many employee benefits are governed by federal law, which is not necessarily impacted by the Iowa Court’s ruling.

Employers should also adjust their practices concerning Family and Medical Leave Act compliance.   An covered employee under FMLA has the right to job protected leave to care for a "spouse" with a serious health condition.    FMLA itself defines "spouse" as "a husband or wife as the case may be".  However, the Department of Labor Regulations interpreting FMLA look to the law of the state where the employee resides to determine whether a person is a "spouse." 

Employers are advised to consult with counsel and with their employee benefit provider when adjusting policies and practices to comply with the Court’s ruling.

 

 

Chances are your employees have sites on Facebook, MySpace, or some other online social networking site.   It is not uncommon for these employees to post statements or photographs on those sites that are derogatory of their boss, their workplace, or their colleagues.  Sometimes people post statements or explicit photographs that embarrass themselves, and by extension, you, as their employer.    Is an employer entitled to terminate an employee for a Facebook posting?  After all, they might say, it was done on my own time, and accessible only to my social networking "friends".

As reported by Anthony Zaller, a recent case in California may support an employer’s right to take action based upon information contained in a social networking site.   In Moreno v. Hartford Sentinel, Inc., a Court of Appeals in California dismissed an invasion of privacy lawsuit based upon a newspaper’s republication of statements contained in the plaintiff’s MySpace site.   The statements were derogatory of the plaintiff’s hometown, and she claimed to have received death threats and was forced to move as a result of the paper’s republication.

The court reasoned that the plaintiff’s "affirmative act [to publish on MySpace] made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material."   The fact that the plaintiff made her postings available only to a limited audience did not change the analysis. 

Although the Moreno case did not involve and employer-employee relationship, the court’s reasoning supports the proposition that information on social networking sites is not private, even if the author intends to make the site available to a limited audience.  While an employer should always use caution when relying upon such information in employment decisions, a decision like Moreno provides some confidence that such reliance does not constitute an invasion of the employee’s privacy.

 

 

The United States Supreme Court has been very active recently in hearing employment law cases, and this term is no exception.   In fact, just last week, the Court heard oral argument on what has become a closely watched age discrimination case that arose in Iowa. 

Gross v. FBL Financial Services, Inc., which was tried in Des Moines before U.S. Magistrate Thomas Shields, concerns the burden of proof when the employer has a mixed motive.   Mixed motive refers to a situation in which a protected characteristic such as age may have played a role in the employment decision, but the same decision would have been made regardless of the plaintiff’s age.  One of the issues presented to the Court in Gross was who bears the ultimate burden of proving the "same decision" defense. 

Judge Shields instructed the jury that if the plaintiff proved that age was a motivating factor in his termination, the burden shifted to the employer to prove it would have taken the same action even if age was not a factor.   However, on appeal, the Eighth Circuit reversed the trial court, and held that the burden or persuasion shifts to the employer only if the plaintiff proves by direct evidence that age was a factor.  If the plaintiff has only circumstantial evidence of age bias, the burden remains on the plaintiff.  Direct evidence of bias is generally much more difficult for a plaintiff to find, so many discrimination cases rely upon circumstantial evidence. 

We will keep close tabs on the Gross case, and will provide a full report and analysis when the Court issues its ruling.