Dangers Of Ignoring Technical Requirements Of Employee Release Of Age Discrimination Claims, October 21, 2005
Obtaining a release of potential employment discrimination claims from terminated employees is a common and advisable employment practice. When drafting a release of age discrimination claims, employers must be wary of the technical requirements of the Older Workers Benefit Protection Act ("OWBPA") for a knowing and voluntary, and thus valid, waiver of claims. A release that does not comport with the statute's requirements is invalid, thus allowing the affected employee(s) to sue for age discrimination.
The Tenth Circuit Court of Appeals issued a recent decision which demonstrates how exacting the OWBPA's requirements can be. Kruchowski v. Weyerhaeuser Co., No. 04-7118 (10th Cir. Sept. 13, 2005). In that case, 16 employees, who had been part of a 31-employee RIF at one company location, sued for age discrimination. The employer obtained summary judgment in its favor in the trial court, based upon the release of claims each plaintiff had signed. The trial court found that the release complied with the requirements of a knowing and voluntary waiver.
The Tenth Circuit reversed. The OWBPA requires, among other things, that if a release is offered as part of a group termination program (i.e., RIF), the employer must include with each release information "relating to the job titles and ages of those eligible for the program, and the corresponding information relating to employees in the same job titles who were not eligible or not selected for the program." 29 U.S.C. § 626. It must also give the employees information regarding "any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program." 29 U.S.C. § 626(f)(1)(H). The court found that the employer's release did not comply with these requirements because: (1) the employer gave the plaintiffs incorrect information about the relevant unit of employees and therefore did not include the job titles and ages of fifteen other employees that it should have; and (2) the company failed to give the plaintiffs information on the factors it considered in determining which employees were eligible for the RIF. Even though the actual terms of the release complied with the requirements of the OWBPA, the employer's mistakes in providing the additional information was enough to invalidate the release, allowing the plaintiffs to proceed with their age discrimination claims.
NLRB Confirms Jurisdiction Over Indian Casinos, October 12, 2005
by Clifton R. Gray
An American Indian owned and operated casino that was alleged to have committed unfair labor practices within the meaning of Section 8(a)(1) and (2) of the National Labor Relations Act recently reargued to the National Labor Relations Board that the NLRA did not apply to the federally recognized Indian tribe, as the Act was "preempted by the Indian Gaming Regulatory Act." The Board, however, saw things differently and asserted the NLRA's application over such Indian-owned businesses, dismissing another argument by the casino that the NLRA did not apply to its business. The Board initially held in May 2004 that the NLRA did apply to the Indian casino, ending a long standing precedent that excluded certain American Indian employers from federal labor law. See San Manuel Indian Bingo & Casino, 341 NLRB No. 138 (2004).
In a case that illustrates what can happen when an employer opens its doors to a union, even when that employer is a federally recognized Indian tribe, the San Manuel Indian Bingo and Casino, located in California, decided to allow the Communications Workers of America (CWA) to enter the casino property and place a trailer in the parking lot for the purpose of organizing casino employees. The casino allowed CWA to talk to employees, distribute leaflets and place writings on a bulletin board near the trailer. When another union, the Hotel Employees and Restaurant Employees International Union, got word of the CWA's initial organizing campaign it tried to get in on the action and hoped to sway the casino employees to choose its union instead. Although the casino had let CWA onto its property for organizing purposes, it denied the rival Hotel Employees and Restaurant Employees International Union "access to its facilities and employees on an equal or equivalent basis with the access granted to CWA." Employer discrimination favoring one union over another in regard to access to the employer's property and employees is a big no-no under the Act and the Board found that, notwithstanding that the casino was Indian owned and operated, it still was subject to the NLRA. Thus, its actions of not allowing the rival union onto its property was in violation of the Act. If the casino was going to allow CWA access pursuant to an initial organizing campaign, it should have given equal access to any rival union. San Manuel Indian Bingo & Casino, NLRB No. (September 30, 2005).
DOL Clarifies FMLA Leave for Foster Care/Adoption, October 11, 2005
An employee who adopts a foster child previously placed in the employee's home is not eligible for FMLA leave for the adoption placement, according to a recent opinion letter from the Department of Labor. (FMLA2005-1-A, Aug. 26, 2005).
The question raised to the DOL was whether an employee who took FMLA leave for the placement of a child in foster care who, a year or two later decided to adopt that child, was eligible for another period of FMLA leave. The DOL answered “no,” rationalizing its position this way: 29 C.F.R. § 825.112(a)(2) provides that an eligible employee may take leave for the placement of a son or daughter with the employee for adoption or foster care. The leave applies to "placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child," under 29 C.F.R. § 825.200(a) and expires twelve months after the placement.
"In the scenario you provide,” said DOL, “the child would be 'newly placed' at the time of the foster care placement rather than when the subsequent adoption occurs. Therefore, only the placement for foster care would be a FMLA qualifying event."
Who is an Applicant? October 10, 2005
How many times have you heard that question? The issue of what exactly counts as applying for a job in the Internet age has plagued employers and government regulators alike. Are the thousands of applications that an employer gets over Monster.com the same as a solicited resume? Of course not. Well, now the government agrees.
The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has just issued a final rule amending its recordkeeping requirements for federal contractors with regard to Internet-based job applications. Although non-contractors are not bound by these regulations, employers often look to them for guidance. The new regulation will become effective in early February 2006, 120 days after its publication in the Federal Register.
Among other things, the final rule states that to be considered an "Internet applicant," an individual must meet four criteria:
the individual submits an expression of interest in employment through the Internet or related technologies;
the contractor considers the individual for a particular position;
the individual's expression of interest indicates that he or she possesses the basic qualifications for the position; and
the individual at no point in the selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in employment in the position.
The final rule requires the contractor to identify "where possible, the gender, race, and ethnicity of each applicant or Internet applicant . . . whichever is applicable to the particular position." The new regulation also contains modifications in response to nearly 50 public comments, but is essentially the same as the proposed rule that the OFCCP distributed in March 2004. Still to come? Joint guidance from the EEOC and the OFCCP on the issue for non-contractors.
Supreme Court Declines To Review Validity Of Fmla Regulation, October 1, 2005
The FMLA excludes from coverage any employee whose employer employs less than 50 employees within 75 miles of that employee's "worksite". For joint employers, the Department of Labor regulations state that two entities may be considered "joint employers" where they both exercise some control over the work or working conditions of the employee, for example, where a temporary agency supplies employees to a second employer. In joint employment relationships, the "primary employer" is the only employer responsible for providing FMLA leave. The "primary employer" is determined by considering such factors as the authority to hire and fire, assign/place the employee, make payroll, and provide employment benefits.
In the case of Harbert v. Healthcare Services Group, Inc., Healthcare employed Harbert who was assigned to provide housekeeping and laundry services to a nursing home under a service contract between Healthcare and the nursing home. Although Harbert reported to Healthcare’s corporate office via telephone and occasional meetings, virtually all of her work activities were done at the nursing home. When she applied for FMLA leave, it was denied on the basis that the nursing home was not located within 75 miles of Healthcare’s corporate office.
Harbert then sued Healthcare. She claimed that she should have been considered as employed at Healthcare’s corporate office in which case she would have been covered. As support, she pointed to another Department of Labor regulation which stated that “the employee's worksite is the primary employer's office from which the employee is assigned or reports.” 29 C.F.R. §825.111(a)(3). The trial court agreed and a jury found that Healthcare did violate the statute.
On appeal, the Tenth Circuit ruled that the regulation relied upon by Harbert was invalidly promulgated by the Department of Labor because the statute itself uses clear language of a “worksite” and the regulation fictitiously transfers the joint employee’s worksite to a location rarely, if ever, actually visited by the employee. As a result, Harbert lost her case. She appealed it to the Supreme Court.
Yesterday, the Supreme Court announced that it would not review her case. As a result, the regulation stands to be invalid.
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