Quick Takes

Supreme Court allows Third-Party Retaliation Claims

The U.S. Supreme Court has extended the reach of Title VII anti-retaliation protection to third-party claims. Ruling in Thompson v. North American Stainless (No. 09-291, Jan. 24, 2011), the unanimous court held that an employee who claimed he was terminated because his fiance filed a discrimination charge against their mutual employer may pursue a retaliation claim under Title VII. The Sixth U.S. Circuit Court of Appeals, like its sister courts in other circuits, had denied Thompson’s claim. While the Supreme Court declined to identify a fixed class of relationships for which retaliation is unlawful, it noted” “[W]e expect that firing a close family member will almost always meet the [broad standard set by the Court in Burlington N. & S. F.R. Co. v. White], and inflicting a milder reprisal on a mere acquaintance will almost never do so, but behond that we are reluctant to generalize.”

E-Verify Rule Delayed Until June 30

The applicability date of the final rule requiring federal contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system has been pushed back by six weeks to June 30, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will publish an amendment in the Federal Register tomorrow postponing the applicability of the final rule until June 30, 2009. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.

The extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.

For more information on E-Verify, visit www.uscis.gov/everify.


“Horseplay” Injuries Recordable

In a recent letter of interpretation addressing a common issue at worksites around the country, OSHA confirmed that injuries to employees sustained at the worksite as a result of “horseplay” are recordable on OSHA Logs, so long as the injuries also meet other general recording criteria (such as requiring medical treatment beyond first aid). The interpretation stems from an incident described as “horseplay gone badly.” At the end of a work day, two supervisors got into a physical confrontation while changing to go home. One supervisor pulled a knife and stuck the other in the arm. OSHA stated that the injury was recordable, because the injury resulted from an event occurring in the work environment and because the injury required medical treatment beyond first aid. OSHA dismissed as essentially irrelevant the issue of whether the injury resulted from activities that were “not directly productive” to the employer’s work. OSHA also reiterated that there is no general exception under the recordkeeping rule for violence that occurs at the worksite.

North and South of the Border

U.S. Citizenship and Immigration Services has taken some of the paperwork and cost out of hiring Trade-NAFTA (TN) professional workers from Canada and Mexico. The initial period of admission for such workers now will be three years instead of one. Workers also may be allowed to receive extensions of stay in increments of three years, instead of one year. The new rule took effect October 14, 2008.

The change makes the initial period of admission the same as that for H-1B professionals and, according to USCIS, is intended to: (1) provide for a more stable, predictable workforce for TN employers; (2) make the TN program more attractive to Canadian and Mexican professionals [The other alternative is the capped H-1B program]; and (3) reduce the cost and bureaucratic inconvenience of having to apply for readmission or extension every year.

The TN non-immigrant visa is available to Mexicans and Canadians with at least a bachelor’s degree or appropriate professional credentials in certain fields and was created as part of the North American Free Trade Agreement (NAFTA). Qualified professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists and teachers.  Canadian citizens may obtain entry at any U.S. port-of-entry by presenting proof of citizenship, a letter from their employer detailing the terms, conditions and qualifications of their employment and credential evaluations. Admitted workers receive a Form I-94 as proof of admission. Mexican citizens must obtain a visa from, and present their employer letter and professional credentials to, a U.S. Consulate before applying for admission at a U.S. port-of-entry. There is no limit on the number of TN workers admitted each year, and workers may enter multiple times in any year.


E-Verify Error Rate Improves

E-Verify’s error rate appears to be improving. According to a study conducted by Westat, a social science research firm, and released by USCIS, erroneous tentative non-confirmations – non-matches issued for workers ultimately found to be eligible to work – declined one-tenth of a percent (from 0.5 to 0.4 percent of all queries run) during the 12 months ending September 30, 2008. Approximately 92,000 employers now use the E-Verify system, which is voluntary except in Arizona and Mississippi. Employers performed some 6.6 million checks during fiscal year 2008, or about 12 percent of all new hires in the United States. That number was more than double the 3.2 million checks performed during fiscal year 2007.


Arizona initiative fails

Arizona voters overwhelmingly rejected (59.1% to 40.9%) a measure that would have made it more difficult to punish employers who employ illegal aliens. The measure would have required “actual knowledge” by an owner or officer of an employee’s legal status before the employer could be held liable for knowingly employing an illegal alien – a violation that can result in an employer loosing its business licenses. The defeated measure also would have fined employers who improperly report cash wages and increased the penalty for identity theft, whether by illegal immigrants trying to conceal their status or others.


A New Year, A New ADA(AA)        

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) takes effect Jan. 1, 2009. The bill, signed into law in September, expressly repudiates two U.S. Supreme Court cases [Sutton v. United Airlines, Inc., 527 U.S. 417 (1999) and Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184 (2002)] that narrowed the definition of “disability” and required “mitigating measures” to be considered in determining whether an individual is “substantially limited in a major life activity” and, therefore, entitled to protection under the ADA.

The new law keeps the ADA’s existing definition of “disability,” but requires that it be construed broadly in favor of entitling individuals to protection rather than excluding them from it. Specifically, the ADAA:

(1) Provides that “an impairment that substantially limits one major life activity need not limit other major life activities in ordered to be considered a disability”;

(2) Adds eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating to the non-inclusive list of “major life activities.” The current list is: caring for oneself, performing manual tasks, seeing, hearing, walking, speaking, breathing, learning and working;

(3) Adds “the operation of major bodily functions” to the mix, including, but not limited to, functions of the immune system, normal cell growth, digestive , bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Simply put, if an individual has a physical or mental impairment that substantially limits a major life activity or major bodily function, then he or she is to be considered disabled, regardless of whether medication or other “mitigating measures” would alleviate the disability. [There is an exception for normal eyeglasses and contact lenses.]

The ADAAA also liberalizes the definition of “regarded as” having an impairment. Currently, if an employer perceived that an individual was “impaired” but not “substantially limited,” the employer was not liable under the ADA. The new law requires only that an employer perceive “impairment,” not that the impairment be perceived as or actually limiting a major life activity. However, protection does not apply to “transitory and minor” impairments, defined as those with an actual or expected duration of six months or less.


On the plus side for employers, the ADAAA: (1)  expressly states that reasonable accommodations do not have to be made to individuals “regarded as” having disabilities; (2) expressly states that discrimination against non-disabled individuals is not a violation of the law; (3) does not make significant changes to employers’ obligations of non-discrimination or reasonable accommodation, except to expand the pool of individuals entitled to such rights; (4) makes no changes in the existing exclusions for “sex-based” conditions [i.e., transvestism, gender-identity disorder], “psychological-criminal conditions” [i.e., kleptomania,  pyromania] or for the current use of illegal drugs; and (4) does not change the current requirements of confidentiality of employees’ medical information or to existing rules regarding post-offer/pre-employment medical exams.


Colorado Ban Rejected; Nebraska Ban Passes

Colorado voters narrowly defeated (50.7% to 49.2%) a constitutional amendment that would have prohibited government employers from granting preferential treatment to any person or group on the basis of race, sex, color, ethnicity or national origin. The amendment, which failed by fewer than 34,000 of 2.1 million votes cast, would have made exceptions for federal programs, existing court orders or other legally binding agreements and bona fide qualifications based on sex. Under Colorado law, employers may not discriminate on the basis of disability, race, creed, color, sex, sexual orientation, religion, age, national origin or ancestry.

Voters in Nebraska took the opposite stand, overwhelmingly approving (58% to 42%) a constitutional amendment to prohibit the use of affirmative action in public employment, public education and pubic contracting.  The amendment prohibits discrimination or preferential treatment on the basis of race, sex, color, ethnicity or national origin.  The amendment makes exceptions for federal programs, existing court orders or other legally binding agreements and bona fide qualifications based on sex. A Lancaster County court is considering whether the amendment was properly certified for the ballot. A decision overruling the certification would invalidate the Nov. 4 vote.



Ohio Minimum Wage rising

     Ohio’s minimum wage will increase to $7.30 per hour, effective Jan. 1, 2009.  The minimum wage for tipped employees will icrease to $3.65 per hour.  The minimum wage for minors ages 14 and 15 will increase to $7.25 on July 24, 2009.  The increases were announced by the Ohio Department of Commerce.

California Dreamin’

California Gov. Arnold Schwarzenegger has proposed allowing private-sector employees to work four 10-hour days without triggering overtime pay requirements, as well as creating a state overtime exemption for highly paid employees. Under current state law, employers must pay overtime for all hours worked over eight in a day. The proposal on highly paid employees is modeled after the federal FLSA, which exempts employees making more than $100,000 a year if they also meet at least one of the duties tests for the professional, executive, administrative or outside sales exemption. The proposals are part of a stimulus package intended to deal with an $11.2 billion state budget deficit.



Sweet Home Alabama

Alabama is giving its nearly 38,000 state employees until 2010 to get fit, or they’ll pay $25 a month for otherwise free health insurance. Starting in January 2009, state employees must undergo medical screenings. Employees with a high body mass index (BMI) – in combination with high cholesterol, high blood pressure or high blood sugar — will have a year to get in shape or begin paying the $25 a month premium. The medical screenings will be free, as will certain help programs. Alabama already charges premiums to state employees who smoke. Its “fat tax” is the first in the country. Alabama has the second-highest obesity rate in the nation (30.3%), behind only Mississippi.



Retail, Manufacturing Employees Get Protection

Federal whistleblower protection has been extended to certain retail and manufacturing employees under the Consumer Product Safety Improvement Act of 2008 signed into law in August. Under the act, manufacturers, private labelers, distributors and retailers are prohibited from discharging or discriminating against employees who: (1) provide information relating to a violation of, or any act or omission they reasonably believe to be a violation of, any provision of the act or any other law enforced by the Consumer Product Safety Commission; (2) testify or are about to testify in a proceeding concerning such a violation; (3) assist or participate in, or are about to assist or participate in, such a proceeding, or (4) object to or refuse to participate in any activity, policy, practice or assigned task that they or others reasonably believe to be a violation of the act or any other law enforced by the Commission, or any order, rule, regulation, standard or ban under such laws. Aggrieved employees may file a complaint with the Secretary of Labor and could be entitled to reinstatement, compensatory damages, costs and expenses (including attorney’s and expert witness fees).