EMPLOYMENT LAW UPDATE

1. EMPLOYMENT LAW UPDATE By: A. Craig Carter Davis & Davis, P.C. PO Box 1588 Austin, TX 78767

2. Taking Adverse Personnel Actions Employment at will – What does it mean and how much should employers rely on it when taking a personnel action? Employment at will means the employment relationship can be terminated by either party at any time without notice or cause. There is no such thing as a per se “wrongful termination” claim under Texas law, BUT…….

3. Taking Adverse Personnel Actions Because there are many exceptions in the law to the employment at will doctrine, employers should not terminate employees for no reason and instead should have a valid reason for taking a disciplinary action and should be able to articulate that reason. Need to have a “legitimate non-discriminatory/non-retaliatory reason for the action.”

4. Taking Adverse Personnel Actions Protected Classes: - Race, national origin, gender, religion, disability, age. - Discrimination in employment based on genetic information becomes effective beginning 11/21/09. - Sexual preference/gender identity is a protected class in at least 21 states, and in the currently pending federal Employment Non-Discrimination Act of 2009. - The EEOC may take the position in the near future that obesity is a disability under the ADA in light of the recent ADA amendments. - There are also many types of protected activity under state and federal law

5. Taking Adverse Personnel Actions Partial List of Protected Activity under the Law: i)                   i) Title VII and TCHRA: participation in investigation/proceedings and opposition to discrimination, including filing a Charge of Discrimination with the EEOC or TWC, or making a claim of workplace harassment. ii)                   ii) ADA: including requests for accommodation and participation and opposition. iii)                iii) FMLA: includes taking FMLA protected leave, and participation and opposition. iv)                 iv) FLSA: includes making a claim and participating in investigation, as well asmerely contacting the Department of Labor regarding FLSA rights. v)                  v) Workers Comp claim: includes making claim and participation vi)                vi) Military Service: – USERRA, 38 U.S.C. §4301; Tex. Gov’t Code §431.005, 431.006

6. Taking Adverse Personnel Actions Partial List of Protected Activity under the Law: • Hospital Licensing Law anti-retaliation provisions: prohibits discrimination against employee (or non-employee, including doctors) who reports “violation of law, including Hospital Licensing Law and regulations, to their supervisor, an administrator, regulatory or accrediting agency, or law enforcement agency”.  • Nurse Practice Act provisions: safe harbor for nurses; prohibits retaliation for reporting to Texas Board of Nursing. • Medical Practice Act anti-retaliation: prohibits retaliation for reporting to TMB • Report of abuse/neglect in Nursing Home • Texas Whistleblower Act: applies to state and local government hospitals. xii) First Amendment activity: applies to government employers; includes free speech, petitioning the government, and assembly; generally must be on a matter of public concern.

7. Taking Adverse Personnel Actions Partial List of Protected Activity under the Law: xiii) Bankruptcy protection: can’t discriminate in employment solely on basis that person has been debtor in Bankruptcy, or was insolvent prior to Bankruptcy. xiv) ERISA retaliation: cannot discriminate against employee for exercising any right under benefits plan. xv) False Claims Act retaliation: cannot retaliate against employee for conduct that could reasonably lead to viable FCA action. xvi) Sarbanes-Oxley: cannot retaliate against employee of publicly traded company who provides information or assists in investigation of violation of securities laws, etc. xvii) Jury service: Tex. Civil Prac. & Rem. Code §122.001 – 122.003 xviii) Compliance with subpoena: Tex. Labor Code §52.051 xix) Voting: Tex. Elec. Code §276.004

8. Taking Adverse Personnel Actions My Recommendations for How to Take Employee Disciplinary Actions 1. Evaluate whether reason makes sense and is provable. 2. Best to put reasons for disciplinary action in writing and present to employee.  3. Give an employee the opportunity to sign and comment in writing on all disciplinary actions.  4. Always state the true reasons for the disciplinary action and set out a brief summary of the complete reasons. 5. Do not rush disciplinary action unless necessary; consider putting employee on paid leave in emergency or high-risk situation; its not personal, its business

9. Taking Adverse Personnel Actions Things to watch out for: a. Differential treatment of other employees under similar circumstances. b. Disciplinary action against employee with long service and/or spotless record. • Disciplinary action against employee that has previously complained, spoken out, reported. Generally should not discourage employees from legitimately speaking out or discipline for speaking out. • Disciplinary action against employee who is on or has recently been on FMLA leave, or who requested ADA reasonable accommodations. Timing is often crucial in these situations. Cases have held that a “prima facie” case of unlawful interference with FMLA rights can be established when disciplinary action takes place as long as 2 ½ months after leave was taken.

10. Taking Adverse Personnel Actions Things to watch out for: e. Try to avoid treating an employee like a criminal when they are terminated; f. Disciplinary action against employee because he or she made an unconfirmed allegation of workplace harassment, or for failing to follow “chain of command” when reporting harassment; in harassment investigation, be careful about making legal conclusion that sexual harassment occurred, just document allegations, findings, and remedial action; don’t just end investigation with “he said /she said”; Consensual relationships - not all advances or touching in a consensual relation is welcome.

11. FMLA UPDATE – New Regulations Link to Department of Labor, Wage and Hour Division FMLA page; includes updated FMLA forms: http://www.dol.gov/esa/whd/fmla/index.htm

12. Clarification of “Needed to Care for a Family Member.” FMLA can be used to care for a spouse, child, or parent with a serious health condition. Section 825.124 • Revised regulations clarify that the employee does not have to be only person or family member available to care for the family member with a serious health condition to be entitled to FMLA leave. • DOL also clarifies that caring for family member can include psychological care as well as physical care.

13. Amount of Leave Section 825.000 and section 825.205 Revised regulation clarifies that, if employee is taking less than a full week of FMLA leave, then holidays during leave are not counted toward FMLA entitlement unless employee was scheduled to work holiday; but if taking full week, holidays are counted toward FLMA leave entitlement • DOL clarifies the application of FMLA leave to overtime hours. If the employee would be required to work the overtime hours were it not for being entitled to FMLA leave, then the hours the employee would have been required to (but did not) work may be counted against the employee's FMLA entitlement.

14. Employee Failure to Make Health Premium Payments Section 825.212 Revised regulation adds language to make clear that if an employer allows an employee's health insurance to lapse due to the employee's failure to pay his or her share of the premium during FMLA leave as set forth in the regulations, the employer still has a duty to reinstate the employee's health insurance when the employee returns to work and can be liable for harm suffered by the employee if it fails to do so. So, best course of action for employer is to maintain employee’s health insurance by paying employee’s share of the premiums and then recouping that amount from employee.

15. Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights Section 825.220 The revised regulation makes it clear that when an employee is performing a light duty assignment, that employee's rights to FMLA leave and to job restoration are not affected by such light duty assignment.

16. Employee Notice Requirements Section 825.302 and Section 828.303 • When an employee can’t give notice of FMLA leave 30 days in advance, the employee is expected to give notice of foreseeable or unforeseeable leave “as soon as practicable.” The revised regulation deletes the sentence which defines ``as soon as practicable'' as “ordinarily within one or two business days of when the need for leave becomes known to the employee.'' • For foreseeable leave, the revised regulations say that it should be practicable for the employee to provide notice of the need either the same day or the next business day • For unforeseeable leave, the revised regulations say it generally should be practicable for the employee to provide notice of leave within the time set out in the employer’s usual and customary notice requirements applicable to such leave.

17. Employee Notice Requirements Section 825.303 and Section 828.304 Complying With Employer Policy When Requesting Leave • Revised regulations provide that if an employee fails to follow the employer's normal procedures for requesting leave. Then, absent unusual circumstances justifying failure to give notice, employer may take disciplinary actions that are not discriminatory against employee taking FMLA leave. Language stating that an employer cannot delay or deny leave if an employee fails to follow these procedures has been deleted. • This will allow employers to enforce their no call, no show policies (except under unusual circumstances), even when the absence qualifies for FMLA leave. Need to revise no-call, no show policies accordingly and make employees aware of new policies.

18. Employee Notice Requirements Content of Employee Notice of Need for FMLA Leave • Revised regulation clarifies that sufficient information must indicate that (1) the employee is unable to perform the functions of the job (or that a covered family member is unable to participate in regular daily activities), (2) the anticipated duration of the absence, (3) and whether the employee (or family member) intends to visit a health care provider or is receiving continuing treatment. • Revised regulations also clarify that calling in and only saying that the employee or family member is “sick” is not sufficient.

19. Medical Certifications Authentication and clarification of medical certification Section 825.307 • Revised regulations allow employer to contact employee’s physician to authenticate and clarify medical certification. • Revised regulation eliminates requirement that only the employer's health care provider, as opposed to the employer itself, may contact the employee's health care provider, but such contact may only take place after the employee has been afforded the opportunity to cure any deficiencies with the certification and contact can only be made by health care provider, HR Professional, leave administrator or a management official; under no circumstances may employees’ direct supervisor contact the health care provider. HIPPA privacy rules must be complied with anytime individually identifiable health information is shared by provider with employer.

20. New Regulations Regarding Military Family Leave Two Types of Military Family Leave (MFL) • Qualify Exigency Leave • Military Caregiver Leave • Unless otherwise noted in regulations, normal FMLA procedures • will apply

21. Qualifying Exigency Leave General Provisions • Twelve weeks of FMLA leave available while employee’s spouse, son, daughter, or parent is on active duty or call to active duty for qualifying exigencies. 29 CFR § 825.126.

22. Qualifying Exigency Leave Defining “Active Duty” • Exigency leave applies only to members of the Reserve and National Guard, and certain retired members of the Regular Armed Forces and Retired Reserve. 29 CFR §825.126(b)(2)(iii). • Excludes active members of the Regular Armed Forces. Id. • Applies only to Federal call to active duty of a National Guard or Reserve member. A State call to active duty of National Guard or state militia is not included within this section unless under order of the President. 29 CFR§ • 825.126 (b)(2)(iii).

23. Qualifying Exigency Leave • 29 CFR § 825.126 (a) • Short-notice Deployment • Military Events and Related Activities • Childcare and School Activities • Financial and Legal Arrangements • Rest and Recuperation • Post-Deployment Activities • Additional Actives

24. Military Caregiver Leave General Provisions • Allows an eligible employee who is spouse, son, daughter, parent or next of kin to a covered service member to take 26 workweeks of leave during a single 12 month period to care for the service member who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status or on the temporary disability retired list. 29 CFR § 825.127.

25. Military Caregiver Leave Covered Service Member • Includes members of the Regular Armed forces, current members of the National Guard or Reserves, and members of the Regular Armed Forces, the National Guard and Reserves who are on temporary disability retired list.

26. Military Caregiver Leave Next of Kin • A servicemember’s nearest blood relative other that the covered servicemember’s spouse, parent, son or daughter, in the following order or priority: • Blood relative who have been granted legal custody of the • servicemember by court decree or statutory • Brothers and Sisters • Aunts and Uncles • First Cousins • Exception: if a servicemember has written designation otherwise. • 29 CFR § 825.127 (b)(3)

27. Military Caregiver Leave Serious Injury or Illness • An injury or illness incurred by a covered by a servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating. • 29 CFR § 825.127 (a)(1)

28. New ADA Amendments Congress amended the Americans with Disabilities Act, effective January 1, 2009, with the stated purpose of expanding the scope of who has a disability under the Act. The amendments did not change the basic definition of disability, which is an impairment that substantially limits one or more major life activities, a record of such a impairment, or being regarded as having such an impairment. It did, however, change the way these statutory terms are to be interpreted in several ways, and these changes will have an impact on employers.

29. Major Changes in the Amendments Contrary to an earlier Supreme Court decision, mitigating measures, such as medication, will no longer be considered in assessing whether an individual has a disability. In other words, the determination of whether an employee has a disability will now be made by evaluating what limitations the employee has without the use or benefit of medications, hearings aides, prosthetics, etc. The only exception to this is ordinary eyeglasses and contact lenses.

30. Major Changes in the Amendments Contrary to an earlier Supreme Court decision, major life activities no longer have to be “of central importance to most people’s daily lives” and an impairments no longer has to “prevent” or “severely restrict” a major life activity to meet the “substantially limits” requirement. Also, the amendments direct the EEOC to revise its current regulation that defines “substantially limits” as “significantly restricted”.

31. Major Changes in the Amendments The amendments have added two non-exhaustive lists of qualifying “major life activities.” One list included activities that the EEOC has already recognized as major life activities in its regulations and interpretive guidance, as well as the following activities that have not previously been listed by the EEOC: • Eating, sleeping, bending, reading, and communicating The second list adds a new statutory category of major life activities, namely “major body functions” which includes the following bodily functions: • The immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

32. Major Changes in the Amendments The amendments clarify that an individual with an impairment that is episodic or in remission is still disabled under the law if the impairment is substantially limiting when it is active.

33. Major Changes in the Amendments Under the amendments, in order to qualify as “regarded as” disabled, an individual now only needs to be regarded as having an impairment, as opposed to being regarded as having a “substantially limiting” impairment.

34. Workplace Privacy Issues Recent case where Court held that a governmental employer intercepting and monitoring private calls of employees at work without employee consent may violate Federal Electronic Communications Privacy Act and similar Texas Act. See Garza v. Bexar Metropolitan Water Dist., 2009 WL 563222 (W.D. Tex. 2009). Could also be applicable to searching of computer/emails.

35. Workplace Privacy Issues Employers should clearly put employees on notice that they do not have an expectation of privacy in certain areas, or with regard to certain equipment in the workplace and have employees sign acknowledgment. For example, employees could be put on notice and acknowledge in writing that their use of telephone and computers at work will be monitored and any communications on those items are not private.

36. Workplace Privacy Issues Drug Testing- Big difference between drug testing of private and public employees. Drug testing of governmental employees is considered a search under the Fourth Amendment.