505 North 20 th Street, Suite 1800 Birmingham, Alabama 35203 Telephone: 205-795-6658 EMPLOYMENT ISSUES FOR PUBLIC EMPLOYERS THE NEW,

505 North 20th Street, Suite 1800 Birmingham, Alabama 35203 Telephone: 205-795-6658 www.csattorneys.com

EMPLOYMENT ISSUES FOR PUBLIC EMPLOYERS

THE NEW, THE REVISED AND THE OLD

EMPLOYMENT ISSUES FORPUBLIC EMPLOYERS

• TOPICS– Genetic Information Non-discrimination Act

– Americans with Disabilities Act Amendment Act

– Fair Labor Standards Act

– Drug-Free Workplace Act

– Searches and Seizures in the Employment Context


“THE GENETIC INFORMATIONNON-DISCRIMINATION ACT OF 2008”

(“GINA”)

GENETIC INFORMATION NON-DISCRIMINATION ACT

• Enacted in 2008. Why is this a recent development?

– EEOC charged with promulgating implementing regulations

– Regulations just published on November 9, 2010


• Why should a City care about GINA?


• COVERAGE

– Cities do not enjoy sovereign immunity and, therefore, can be covered by GINA.


• COVERAGE

– GINA’s coverage is the same as Title VII:

• 15 or more employees (Payroll method: part-time / temporary count)

• For each working day• In each of 20 or more calendar weeks • In the current or preceding calendar year


• DAMAGES

– Back pay– Reinstatement / instatement or front pay– Compensatory damages– Punitive damages– Attorney’s fees

• Your own defense costs• Pay attorney’s fee to attorney of applicant /

employee


• Why would an employer want genetic information?

– Group / Workers’ Compensation Insurance underwriting / premium concerns

– ADA accommodation cost concerns

– Concerns about future FMLA leaves

– Concerns about future attendance / work performance


WHAT DOES GINA PROHIBIT?


• MAKING EMPLOYMENT DECISIONS BASED ON GENETIC INFORMATION

• REQUESTING INFORMATION ABOUT FAMILY MEDICAL HISTORY

• REQUESTING, REQUIRING DISCLOSURE OF, OR PURCHASING GENETIC INFORMATION

• RETALIATION AGAINST THE ASSERTION OF GINA PROTECTED RIGHTS


“GENETIC INFORMATION”

IS


• GENETIC INFORMATION

– Family Medical History

• NEVER inquire about family medical history

• NEVER ask an employee about his or her own possible pre-disposition to a disorder that is possibly genetically-linked – Cancers– Cystic fibrosis– Muscular dystrophy– Mental disorders– Epilepsy



– Genetic treatment provided to an employee, or his or her family members

– Prescription medications that would reveal genetically-linked disorders



– Genetic tests related to genetics of an employee, or his or her family members

– Participation of an employee or a family member in clinical studies related to genetics


“GENETIC INFORMATION”

IS NOT


• HIV tests

• Cholesterol tests

• Drug or alcohol tests

• Routine medical examinations



– GINA does not prohibit certain requests for medical information:

• Pre-employment medical / physical examinations;

• FMLA medical certifications; and

• Fitness for duty examinations,

PROVIDED THAT


• The employer affirmatively tells the employee NOT to provide genetic information

– AND

• The employer affirmatively tells the medical examiner NOT to request genetic information


– How do you affirmatively tell employees and medical examiners not to request genetic information?

– THE EEOC HAS PROVIDED A SAMPLE NOTICE.


• I understand that [EMPLOYER] desires to fully comply with The Genetic Information Nondiscrimination Act of 2008 (GINA) that prohibits [EMPLOYER] and its agents from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, [EMPLOYER] has asked that I not provide any genetic information when responding to the attached Medical Questionnaire or any questions presented by the examining physician or his or her staff. “Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services.


• Place this notice on any form requesting medical, information before conducting an examination.

– A sample notice form is included in the flash drive provided to you.


• GINA SAFE HARBOR

– Inadvertent inquiries

• Office gossip / break room / “water cooler” discussions among employees

– GINA requires supervisors to walk away and not make further inquiries about family history or medical pre-dispositions


• CONFIDENTIALITY

– As with all medical information obtained, employers must keep genetic information confidential

• Apart from personnel files

• Secure storage

• Access limited to those with a need to know


THE AMERICANS WITH DISABILITIES ACT

AMENDMENT ACT OF 2008 (“ADAAA”)

THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT

According to Congress, the ADAAA “reinstate[s] a broad scope of protection” by

expandingthe definition of the term “disability.”

See H.R. 3195 § 2(b)(1)–(3).


THE ADAAA accomplishes this goal

DRASTICALLY.


“DISABILITY”


• DISABILITY

– The ADAAA protects individuals “with a PHYSICAL OR MENTAL IMPAIRMENT that substantially limits one or more major life activities of such individual….”


• DISABILITY

“PHYSICAL OR MENTAL IMPAIRMENT”

• DISABILITY: Physical or Mental Impairment

The EEOC has given us regulatory examples of impairments that

“WILL” CONSISTENTLY

meet the definition of “disability”



Impairments:

• Deafness

• Blindness

• Intellectual disability

• Partially / completely missing limbs

• Physical impairments requiring ambulatory aids

• Autism

• Epilepsy

• Cerebral palsy

Impairments:

• Diabetes • Cancer

• HIV / AIDS

• Multiple sclerosis

• Muscular dystrophy

• Hepatitis

• Severe mental conditions:• MAJOR depression / Class 3 + bipolar

disorder / PTSD / OCD / schizophrenia



The EEOC also has given us a non-exhaustive

list of regulatory examples of impairments that

“MAY” CONSISTENTLY

meet the definition of “disability”


Impairments:

• Asthma

• Allergies to chemicals

• Hypertension

• Carpal tunnel syndrome

• Hyperthyroidism

• Narcolepsy

• Physical activity restrictions lasting several months or more

(read “workers’ compensation injuries”)

Impairments:

• “Less severe” mental disorders:

Panic / anxiety disorder

Clinical depression

Class 2 Bi-polar disorder

• High functioning individuals with a learning disability

Dyslexia

ADHDAlspergers

syndrome



– NEW in the ADAAA:

• Mitigating measures CANNOT be considered in determining if an individual suffers an impairment.




• An employee may be “disabled” even though mitigating measures relieve ALL limiting effects of an impairment.




• The negative impact of a mitigating measure may be a “disability,” e.g.:

– the side effect(s) of a medication if it substantially limits a major life activity

– the tiring effect(s) of using ambulatory devices or prosthetics



– NEW to the ADAAA:

• A chronic impairment that is episodic or in remission is a “disability” if it would limit a major life activity IF the impairment were active.



THE GOOD NEWS



The EEOC has identified disorders and conditions that

ARE NOT

“physical or mental impairments.”


Not Impairments:

• Transvestism

• Transsexualism

• Pedophilia

• Exhibitionism

• Voyeurism

• Gender identity disorders– not resulting from

physical impairments

Not Impairments:

• Homosexuality

• Bisexuality

• Compulsive gambling

• Kleptomania

• Pyromania

• Psychoactive substance use disorders resulting from current use of illegal drugs


• DISABILITY: Physical or Mental Impairment:

ALSO,

other “impairment” exclusions are unchanged:



– An employee with a vision impairment that can be corrected with “ordinary” eyeglasses or contact lenses is not disabled.



– A pregnancy without medical complications is not a “disability.”



– Current users of illegal drugs (including improper use of prescription medication) or abusers of alcohol remain excluded from coverage.

Rule of thumb:

Current = less than 6 months without use


• DISABILITY: Physical or Mental Impairment– Not So Clear Exclusions:

• “Temporary, non-chronic impairments of short duration with little or no residual effects.”

• “Transitory (lasting or expected to last for six months or less) and minor.”

– Common cold or influenza, seasonal allergies, sprains/strains, broken bones without residual effects


• DISABILITY

– The ADAAA protects individuals “with a physical or mental impairment that substantially limits one or more MAJOR LIFE ACTIVITIES of such individual….”


“DISABILITY”

“Major Life Activities”


• DISABILITY: Major Life Activities

– The EEOC has two NON-EXHAUSTIVE lists of “Major Life Activities.”


– The Traditional “Major Life Activities:”



Major Life Activities:

Caring for oneselfSeeingHearingSpeakingEatingSleepingInteracting with othersBreathingReadingLearning

Major Life Activities:

Work Activities:

Standing Sitting Reaching LiftingBendingStoopingManual tasks

(ALL traditional WC restrictions)



– THE NEW “Major Life Activity” of the ADAAA



“MAJOR BODILY FUNCTIONS”



– “Major Bodily Functions” includes practically EVERY major body system:


Major Bodily Functions:

• Immune system

• Normal cell growth

• Digestive

• Bowel

• Genitourinary

• Neurological

• Brain

• Respiratory

Major Bodily Functions:

• Endocrine

• Reproductive

• Circulatory

• Cardiovascular

• Hemic (blood)

• Lymphatic

• Special sense organs

• Skin


• Disability: Major Life Activities

ALMOST EVERY injury or disease impacts the operation of a

“Major Bodily Function.”


• DISABILITY: Best Practices

– Unless expressly excluded by the EEOC regulations, consider ALL permanent physical and mental impairments a “disability.”


“THE FAIR LABOR STANDARDS ACT”

THE FAIR STANDARDS LABOR ACT

WHY SHOULD A CITY BE CONCERNED

ABOUT FLSA CLAIMS?


ONE

There has been an incredible increase in the number of FLSA actions filed in recent

years, both in Alabama and nationwide


Alabama: 2000 - 50 suits2009 - 130

suits

Nationwide: 2000 - 1900 suits2009 - 6500 suits

COURT FILING REPORTS INDICATE THAT THE NUMBERS OF FLSA LAWSUITS IN 2010 ARE SUBSTANTIALLY GREATER


TWO

Defendants in a FLSA action can include not only a

municipality but also

THE CITY OFFICIALS

who establish the payroll policies and practices

for a municipality.


THREE

• If liability established, damages are a simple mathematical calculation:

– 156 workweeks (3 years) potential liability periodx unpaid time in excess of 40 hrs/workweek

– x 1.5 regular rate of pay– x 2.0 liquidate damages– + Plaintiff’s attorney’s fee


FOUR

• Award of an attorney’s fee and expenses to employee’s counsel is AUTOMATIC if any recovery is achieved.

• A recovery of $1.00 in overtime compensation REQUIRES a judge to award attorney’s fees to an employee’s attorney.

• The judge only has discretion as to the amount of the award.

• In most cases, the attorney’s fee award exceeds the overtime liability


• OVERTIME: The Basic Concept

– The legal obligation to pay overtime compensation is based on “time actually worked” in excess of 40 hours in a workweek.

– “Time actually worked” does not include paid leaves (sick leave, vacations, and holidays or unauthorized absences of a full day for personal reasons.


• OVERTIME

– The most common payroll practices of municipalities subject to attacks in FLSA actions are:

• The “Administrative” Exemption

• Pre-shift / Post-shift Meetings And Rest Breaks

• Automatic Meal Period Deductions


• OVERTIME: “Administrative” Exemption

– A very common misconception:

• Salary = “administrative” exemption

– Incorrect

• Salary ≠ “administrative” exemption



– The law concerning the “administrative” exemption would take much more than an hour to discuss.

– To simplify, the basic rules are:



– City Hall / Office employees

• Clerical employees - Not exempt• Executive Secretaries - Not exempt• City Clerk - More than

likely exempt• Building Inspector - Exempt• Financial Officer - Exempt



– Police Departments:• Clerical employees - Not exempt• Dispatchers - Not exempt• Police Officers - Not exempt• Sergeants - Not

exempt• Lieutenants - Maybe exempt• Detectives - Maybe exempt• Captains - More than

likely exempt• Deputy Chiefs - Exempt• Chiefs - Exempt



– Fire Departments• Clerical employees - Not exempt• EMTs - Not

exempt• Dispatchers - Not exempt• Firefighters - Not exempt• Engineer - Not

exempt• Lieutenant - Maybe exempt• Captain - More than

likely exempt • Battalion Chief - Exempt• Deputy Chief - Exempt• Chief - Exempt


• OVERTIME: Roll Call / Shift Transitions

– Simple rule:

• Time spent in roll calls and shift transfer meetings MUST be included in the calculation of “time actually worked” for overtime compensation purposes.


• OVERTIME: Rest Breaks

– Simple rule:

• Breaks away from a workstation of 20 minutes or less MUST be included in the calculation of “time actually worked” for overtime compensation purposes.


• OVERTIME: Meal Breaks

– To be excluded from the calculation of “time actually worked” a meal period must be “bona fide.”



– “[t]he essential consideration in determining whether a meal period is a bona fide meal period or a compensable rest period is whether the employees are in fact RELIEVED FROM WORK for the purpose of eating a regularly scheduled meal.”

• If a meal period is not “bona fide” within the meaning of the regulations, it must be considered a rest break.



– To be “bona fide” the meal period must also be an UNINTERRUPTED break of 25 to 30 minutes with full relief from job duties.



– Federal regulations provide:

• The employee is not relieved if he / she is required to perform ANY duties, whether active or inactive, while eating.

– For example, an office employee who is required to eat at his desk … is working while eating.”

• An employee allowed to eat at his / her desk and who answers telephones or performs other minimal tasks is not fully relieved from job duties.



– However, federal regulations also provide that:

• “It is not necessary that an employee be permitted to leave the premises if he / she is otherwise completely relieved from job duties during the meal period.”


• OVERTIME: Meal Breaks– First Responders

• A court has held that a meal break need not be counted as time actually worked because:

– “they are free to spend their meal breaks in any way they wish so long as they remain in uniform, leave their radios on, and do not leave the jurisdiction. The [officers] may return home, stop at the bank, pick up their dry cleaning, or run other personal errands. In sum, the plaintiffs are able to comfortably and adequately pass the mealtime.”



– BEST PRACTICES



– Adopt a FLSA-compliant meal period policy:

• “The meal period will be unpaid only when the employee is completely relieved of job duties. Employees who remain at their workstation or who are required to sporadically perform job duties during their 30-minute meal period will be credited with 30 minutes of “time actually worked.”



– Prohibit employees from eating at their workstations.

– Prohibit employees from remaining at their workstations during meal periods to visit with other employees who are working.



– Adopt a policy requiring employees to report missed or interrupted meal periods immediately:

• “Employees are required to complete and sign a Time Exception form on the day the employee is unable to take a full, uninterrupted 30-minute meal period because of job duties.”

• “On each payday the employee must review a payroll detail and either certify their pay is correct or request corrections be made.”



– Train supervisors who know an employee has not had uninterrupted meal break to report the situation to payroll so a correction to the 30 minute deduction may be made.


• OVERTIME: DO NOTS

– DO NOT refuse to correct a missed or interrupted meal period reported by an employee.

• Suspected falsification of a missed or interrupted meal period is a disciplinary matter, not a payroll matter.


• OVERTIME: DO NOTS

– DO NOT refuse to pay an employee’s unauthorized overtime.

• Working unauthorized overtime is a disciplinary matter, not a payroll matter.


“DRUG-FREE WORKPLACE ACT”

DRUG-FREE WORKPLACE ACT

• A DFWA POLICY

– Having a DFWA is significant because:

• Required for federal grantees

• Required to obtain discount in worker’s compensation premiums

• May allow a City a discount in general liability and employment practices liability insurance premiums

• Provides excellent defense to constitutional claims arising from adverse employment actions


• A DFWA POLICY

– BEST PRACTICES

• Have a detailed written drug-fee workplace policy

– The base policy for municipalities that I start with is included in the flash drive provided to you.

– PLEASE NOTE: A policy should be tailor-made to the particular needs of a municipality. Simply adopting a form policy is not recommended.


• A DFWA POLICY

– Obtain written consent and a general release from the employee prior to testing.

– A sample consent form is included in the flash drive provided to you.


• A DFWA POLICY

– The base policy I use has significant variations from “standardized” drug-free workplace act policies.


• A DFWA POLICY: Variations - “Unfit for Duty”

– “Employees are further prohibited from reporting to work or working while unfit for duty due to the use of a controlled substance or alcohol.”

• Model policy, “PROHIBITION,” p. 1.



– “(1) Both an initial and confirmatory screen for controlled substances yields a positive, adulterated, or invalid result,…”

• Testing facilities now use new terminology – “invalid” or adulterated. Merely using “positive” allows the argument that an invalid or adulterated test is not a “positive” result.

– Model policy, “PROHIBITION,” p. 2.



– “(2) A blood screen or ‘breathalyzer’ test indicates a blood alcohol content level of .02% or above for any time you were on duty that day.”

• You do not want to require that an employee was legally intoxicated - .08% - before you are able to terminate him / her.

– Physical or mental Impairment occurs at lower BAC levels – increased risk of accidents and injuries to citizens, co-workers and themselves = increased liability


– “(2) A blood screen or ‘breathalyzer’ test indicates a blood alcohol content level of .02% or above for any time you were on duty that day.”

• Employees attempt to delay testing to allow the alcohol to metabolize which lowers the BAC. They then argue that they were not over the proscribed BAC level at the time of the testing.

– This language allows a qualified physician to “back-out” the rate of metabolism and provide an opinion about the BAC level when the employee was at work, thereby demonstrating a violation of the policy.



• A DFWA POLICY: Variations – Testing– Reasonable Suspicion

– Have a written “reasonable suspicion” checklist.

– A sample checklist form is included in flash drive you have received.



– Have the reporting witness complete the checklist and provide OBJECTIVE examples of the observations.

• The witness and the supervisor should each sign or initial and date the form.



– Allow the employee to review the written form and offer an explanation.

• Have the employee sign and date the form. If the employee refuses, note his / her refusal on the form and initial and date it.


• A DFWA POLICY: Variations –Testing – Random

– A City can test randomly for “safety sensitive” positions• Problem is definition of “safety sensitive”• Too much room for error or second guessing by court or jury

THEREFORE, I INTENTIONALLY OMIT RANDOM TESTING FOR MUNICIPALITIES

• Unless the city suspects drug use is widespread, reasonable suspicion testing should serve the needs of the City

• NOTE: If federal of state law requires testing for specific positions or job duties, limit random testing to those positions or duties.

SEARCHES OF CITY PROPERTY

• SEARCHES: City Premises

– VERY DANGEROUS – Constitutional infringement claims• Fourth Amendment

• The United States Supreme Court has held that a public employer investigating workplace misconduct had violated an employee’s Fourth Amendment rights by searching his office and seizing personal items from a city-owned his desk and filing cabinet.


• SEARCHES: Text messages / E-mails

– Last year the United States Supreme Court addressed the issue of a employee’s privacy rights in his use of city-owned equipment for personal text messages.


• SEARCHES: Text messages / E-mails

– A city investigated an officer’s use of text messaging minutes to “determine if an increase in the minutes assigned to ALL officers” was needed.

• Despite the fact that the officer was disciplined for excessive use, the investigation was constitutional because of its purely work-related nature.


• SEARCHES: Text Messages / E-mails

– “The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.”

• In other words, as long as a search IS NOT a criminal investigation or an investigation of possible workplace misconduct, the search is constitutional.


• SEARCHES: Text Messages / E-mails

– Significantly, the fact that the city had a policy clearly stating that employees had no property interest in text messages and e-mails sent or received using city-owned equipment was not controlling.

• SEARCHES

– In sum, Supreme Court cases are less than clear regarding municipal employer / employee rights related to searches in the employment context. Until further guidance is provided by the Supreme Court, the BEST PRACTICES are:

• DO NOT search an employee’s vehicle, office space or person.

• DO NOT review an employee’s work computer hard-drive.

• DO NOT review an employee’s work text messages or e-mails.


– Supreme Court cases are less than clear regarding municipal employer / employee rights. Until further guidance is provided by the Supreme Court, the BEST PRACTICES are:

• DO NOT search an employee’s vehicle, office space or person.

• DO NOT search an employee’s work computer hard-drive.

• DO NOT search an employee’s work text messages or e-mails


If you have any questions regarding any topic covered in this presentation, or any other question related to

public employment law, please feel free to call or e-mail:

David B. WalstonChristian & Small LLP

505 North 20th Street, Ste. 1800Birmingham, AL 35203

Direct Dial: (205) [email protected]

mailto:[email protected]

505 North 20 th Street, Suite 1800 Birmingham, Alabama 35203 Telephone: 205-795-6658 EMPLOYMENT ISSUES FOR PUBLIC EMPLOYERS THE NEW,

Documents

gina slide

old slide

employment context slide

disabilities act amendment

preceding calendar year

employment issues

employment decisions

family members participation