As a general rule, courts will uphold agreements that require employees to arbitrate their employment disputes. But an employer seeking to compel arbitration must show that the employee signed a valid written arbitration agreement. And according to a recent decision by Florida’s Fourth District Court of Appeals, an arbitration agreement is not valid if the employer fails to disclose the arbitration procedures to the employee when the employee signs the agreement. Continue Reading
E-Cigarettes in the Workplace
Posted in Employee Handbooks & PoliciesEmployers should be aware of the new electronic cigarette fad, and the need to address workplace policies accordingly.
Electronic cigarettes, also known as e-cigarettes, are battery-powered devices that heat up nicotine-laced liquid, turning it into a vapor that users inhale, or “vape,” and then exhale. Most look like conventional cigarettes, cigars, or pipes, but some e-cigarettes resemble everyday items such as pens and USB memory sticks. According to a recent World Health Organization report, since the invention of the e-cigarette just over a decade ago, the e-cigarette industry has grown into an estimated $3 billion global business market with 466 brands of e-cigarettes and related items available to consumers.
The Cost of Security for Employers: Is Time Spent Going Through Security Compensable?
Posted in Wage & HourThe Supreme Court will soon decide whether employers will be required to pay their employees for time spent going through a security clearance at the end of each shift. The case is Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir. 2013). The Court heard oral arguments on October 8, 2014. Continue Reading
Reasonable Accommodations Under the ADA Do Not Require Changing a Job’s Essential Functions
Posted in DisabilityWeldon Williams, a pharmacist, suffered from diabetes which limited his ability to stand for extended periods of time. Williams sued his former employer Revco Discount Drug Centers, Inc., d/b/a CVS Pharmacy, Inc. (“CVS”) alleging that CVS failed to accommodate his requests for an accommodation under the Americans With Disabilities Act (“ADA”). Williams “acknowledged that his position involved extended standing over the course of an eight-hour shift and frequent movement around the pharmacy,” which CVS argued were essential functions of his job. The accommodation Williams requested would have required CVS to hire a fulltime pharmacy technician to assist him when his disability prevented him from performing his job duties. Continue Reading
Opening of the 2016 Diversity Immigrant Visa Program Announced
Posted in Immigration Planning & ComplianceThe State Department has announced that it will accept applications for the FY 2016 “diversity immigrant visa” lottery beginning October 1, 2014. Applicants who are selected and approved may submit their green card applications starting on October 1, 2015.
The State Department annually accepts “diversity immigrant visa” applications from qualified individuals born in certain countries with historically low rates of immigration to the United States. Congress made 50,000 of these “diversity immigrant visas” (or “DVs”) available for fiscal year 2016, drawn from a randomized computer lottery of all applicants. This year, the State Department will accept applications from October 1, 2014 until November 3, 2014.
Eligibility requirements are as follows. First, applicants must be born in countries who have historically low immigration rates. Individuals born in the following countries are ineligible to apply for a DV for fiscal year 2016:
Bangladesh, Brazil, Canada, China (mainland-born)**, Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Nigeria, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. **Note: people born in Taiwan, Hong Kong, and Macau may apply.
Those not born in an eligible country may still be able to apply for a DV through a spouse (if that spouse was born in an eligible country) or, in certain circumstances, through a parent. An applicant must also have a high school education (or its equivalent) or, alternatively, two years of work experience in certain positions to qualify.
Employers are often interested in having a qualifying employee apply for a DV in order to avoid the costly and intensive employment-based “green card” application process.
Registering to apply for the diversity visa program is done online at the program site. The State Department encourages applicants not to wait until the last week of the registration period to enter, as heavy demand may result in website delays. Applicants will be able to check if they were selected in the randomized lottery starting May 1, 2015. Applicants should carefully follow the online instructions in order to avoid having their applications disqualified.
Prospective applicants are advised to contact immigration counsel for more information on the benefits of the DV program and for answers to any questions they may have about whether they qualify for the program.
Are Websites Places of Public Accommodation?
Posted in DisabilityBy now, most lawyers are aware that Title III of the ADA applies to activities of an entity whose operations “affect commerce” and is a “place of public accommodation” as defined by statute. 42 U.S.C. § 12181(7)(A)-(L). Commerce is defined as “travel, trade, traffic, commerce, transportation, or communication (A) among the several States; (B) between any foreign country or any territory or possession and any State; or (C) between points in the same State but through another State or foreign country.” 42 U.S.C. § 12181(1). But, are the websites of these “places of public accommodation” subject to the requirements of Title III? Certainly, one could argue that websites are the virtual cyberspace extensions of physical places, so why not? Plaintiffs’ attorneys certainly think so and are filing more and more lawsuits to make these electronic showrooms accessible to persons with disabilities. However, the issue is not that settled.
In 2010, the Department of Justice (“DOJ”) issued an advanced notice of proposed rulemaking regarding the ADA’s coverage of websites and solicited comment on the issue. Well, it is now almost the end of 2014 and the DOJ has yet to issue formal regulations concerning website access, although it has in the intervening years taken the position that websites generally should be made accessible to individuals with disabilities. The DOJ has engaged in a host of enforcement actions in Title II cases (cases that require that governmental entities adhere to Rehabilitation Act standards) regarding the accessibility of websites. In addition, the DOJ has entered into consent decrees with private entities concerning the accessibility of their websites and electronic media, such as Hilton Worldwide in 2010 and H&R Block in 2014. And so, even absent formal regulations, the DOJ’s enforcement history strongly indicates its opinion that the ADA covers access to websites.
But in the courts, the coverage of websites under the ADA remains unsettled. For example, the Ninth Circuit has held that a “place of public accommodation” must be a physical place, or, at a minimum, involve a physical place. See Weyer v. Twentieth Century Fox Film, Corp., 198 F.3d 1104, 1114-15 (9th Cir. 2000). The Weyer case continues to be cited by California district courts for this proposition, even in cases involving access to websites. The Ninth Circuit in February 2014 certified a question to the California Supreme Court regarding whether its Disabled Persons Act includes websites as “places of public accommodation.” See Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, 742 F.3d 871, 875 (9th Cir. 2014). The issue has yet to be resolved. Given the continued controlling nature of Weyer’s “physical place” pronouncement, decisions from other courts within the Ninth Circuit have permitted plaintiffs to state a viable claim that the ADA covers a website where the plaintiff alleges that the inaccessibility of a defendant’s website prevents the full and equal enjoyment of the goods and services contained within the defendant’s physical place.
On the other hand, courts in other circuits, particularly the First and Eleventh, have held specifically that the ADA applies to more than physical places. See Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (Netflix’s website for the rental and viewing of movies, “may qualify as: a ‘service establishment’ in that it provides customers with the ability to stream video programming through the internet; a ‘place of exhibition or entertainment’ in that it displays movies, television programming, and other content; and a ‘rental establishment’ in that it engages customers to pay for the rental of video programming.”) (citing Carparts Distrib. Ctr. v. Auto. Wholesaler’s Assoc., 37 F.3d 12, 19 (1st Cir. 1994)); Rendon v. Valleycrest Productions , Ltd., 294 F.3d 1279, 1283-84 (11th Cir. 2002) (holding accessibility requirements may extend to platforms beyond physical places, such as a hotline to participate in a television game show).
It seems that until the issue goes before the Supreme Court of the United States (and/or until the DOJ has finally spoken), it will remain unsettled. However, businesses should be aware of this emerging issue and be proactive in making sure their websites are up to par in this climate of uncertainty.
Fantasy Football’s Impact on the Workplace
Posted in Employee Handbooks & PoliciesWhat do 31 million employees have in common? They all participate in at least one (in many cases more than one) Fantasy Football league! For those of you who are unfamiliar with what has become a national obsession, Fantasy Football is an interactive online competition in which users compete against each other as general managers of virtual “fantasy” teams built from “drafting” real National Football League players. “Owners” are able to draft, trade, add/drop players, and change rosters every week.
Just like your employees’ devotion to filling out brackets each year when “March Madness” and the NCAA basketball tournament rolls around, Fantasy Football is a sports fan’s obsession. But unlike March Madness, which only requires an initial investment of time and a few days of non-stop basketball games, Fantasy Football lasts four MONTHS and requires its owners to check injury reports, keep up with statistics, and – in recent weeks – monitor arrest records and indictments (thank you, Ray Rice and Adrian Peterson).
Sounds pretty time-consuming, right? A recent study by Challenger, Gray & Christmas estimates that employers will suffer $13 billion in lost productivity due to employees’ participation in (obsession over?) Fantasy Football leagues. There was a time not so long ago when employers could control their employees’ Internet access and usage simply by placing a block on their access via desktop computer. That time is long past. Employees now have full access to the Internet through their smartphones and tablets, and the Fantasy Football “apps” have gotten better each season. (I’ve already dropped a QB and added a new WR while writing this article!)
This is not a new phenomenon. For years employees have been making travel plans, on-line shopping and paying personal bills through the Internet while on company time. I even know someone who met their spouse responding to on-line dating ads while at work. But when so many people engage in the same activity for so many hours over so long a time period, employers need to consider the impact.
But how accurate is this $13 billion number? Challenger’s estimate is actually a measure of wages paid to unproductive workers. For example, if a company is paying its employee $15 per hour, and one hour of his or her time is spent researching NFL players for Fantasy Football, then that is $15 in lost wages. Challenger calculated the total lost productivity amount using that basic formula and plugging in other numbers like the country’s average hourly earnings, total number of working age Americans who play Fantasy Football, and assuming that each participant conservatively spends just two hours per week managing their teams while on the job. Challenger admits it is a non-scientific study. But because it is such a massively popular distraction, employers must take notice.
So is Fantasy Football a bad thing for employers? Not really. It may have some overall, minor impact on workplace productivity, but historically there has been no measurable dip in GDP or productivity in the third or fourth quarters that is directly linked to Fantasy Football.
In fact, there are some positives that come from workplaces where Fantasy Football is part of the proverbial water cooler discussion. Many employers believe that Fantasy Football is a positive influence in the workplace because it increases staff morale and camaraderie among employees. For those employees who participate, it is also a great way to keep in close contact with their customers, clients, and business contacts who also participate in a Fantasy Football league.
Employers should be careful, however, that no employee feels excluded or discriminated against due to Fantasy Football being played in their workplace. Lawsuits have been filed in the past based on sex and religious discrimination stemming from exclusion from Fantasy Football leagues and other social events. Supervisors should be trained to watch for signs of discrimination in workplaces where Fantasy Football is played, and must take responsibility for their employees to ensure no one is excluded for an unlawful reason. And employees must take responsibility for themselves not to let owning their team interfere with their job duties in any way. Winning your Fantasy Football league is a great feeling – but not at the expense of losing your job!
Marijuana Use For Alleged Depression and Anxiety Can Still Get You Fired In Florida
Posted in Employment Discrimination Harassment & RetaliationThere can be no doubt that Americans’ views on the legality of marijuana use for both medicinal and recreational purposes has shifted over the past few years. A recent survey conducted by Fextel, Inc. and StPetePolls.org found that over 73% of Floridians would support a constitutional amendment to allow the use of medical marijuana to treat debilitating medical conditions, and 58% support the legalization of marijuana for recreational use. Indeed, the Florida Legislature recently passed, and Gov. Rick Scott signed, a bill that now exempts a limited class of individuals with certain medical disorders from criminal penalties for using and possessing low-THC cannabis ordered for patients by their physicians.
Notwithstanding this apparent shift in attitudes, one thing remains clear in Florida: recreational or unauthorized use of marijuana remains illegal and can be valid grounds for termination of an employee.
In the case of Christopher Martin v. Estero Fire Rescue, 30 AD Cases 579 (M.D. Fla. 2014), recently decided in the United States District Court for the Middle District of Florida, the court held that a former city firefighter’s depression and anxiety were not ADA-protected disabilities for purposes of his employment bias claim after he was discharged for testing positive for marijuana use allegedly related to his conditions. Firefighter Christopher Martin sued his former employer, Estero Fire and Rescue, alleging that his termination for testing positive for marijuana use constituted unlawful discrimination and retaliation in violation of the Americans with Disabilities Act (ADA) and the Florida Civil Rights Act (FCRA). Martin tested positive for marijuana use and was terminated pending the results of an investigation and due process hearing regarding the positive test. During the employer’s investigation into the positive drug test, Martin for the first time informed his employer that he suffered from depression and anxiety with flare-ups of bipolar tendencies, and he admitted using marijuana “in regard” to these conditions. As a requested reasonable accommodation under the ADA and the FCRA, Martin sought a waiver of any discipline for the positive drug test and leave to seek treatment for his ailments, both of which were denied.
The court performed the traditional ADA analysis to determine whether Martin’s alleged afflictions constituted a serious health condition that substantially limited a major life activity, and also whether he was regarded as having a disability by his employer. In determining that Martin did not suffer from a condition that substantially limited a major life activity, the court emphasized that he offered no evidence, other than his own testimony, that he suffered from depression or anxiety, and he failed to offer any medical records or testimony from any medical personnel that he had been diagnosed with depression and/or anxiety. The court further noted that Martin failed to provide evidence that his employer regarded him as impaired by depression or anxiety. As a result, the court ruled in favor of Estero Fire Rescue on the disability claims and turned its attention to Martin’s claim of retaliation.
In denying Martin’s claim for retaliation, the court stressed that the employer had a legitimate, nondiscriminatory reason for Martin’s termination, namely the positive test for marijuana. Because Martin was unable to show that his employer’s reliance on the positive drug test was merely a pretext for a discriminatory reason, the court ruled in favor of the fire department and against Martin.
The takeaway for employers from this case is that no matter how far public opinion has come with regard to marijuana use in America and the State of Florida, it remains the case that recreational or unauthorized use of an illegal drug by an employee gives an employer a green light for termination.
Fires, Rehires and Non-Competition Agreements: Termination of Employment, No Matter How Brief, May Start the Clock to Run
Posted in Employment & Consulting ContractsAn Indiana Court of Appeals has ruled that an employer cannot enforce a two year non-compete agreement against an employee who was fired for just 10 days and then rehired because the termination was treated as permanent and there was no writing signed by the employer that extended the duration of the non-compete agreement as required by the express language of the agreement. Nightingale Home Healthcare, Inc. v. Helmuth, No. 29A04-1403-PL-12 (Ind. Ct. App., August 28, 2014).
In 2008, Nightingale, which provides in-home healthcare, hospice care, and private duty care to residents, hired Carey Helmuth as a patient advocate. As a condition of his employment, Helmuth signed a non-compete agreement, which protected Nightingale’s proprietary and confidential information and geographically restricted the employee’s ability to compete with Nightingale for two years after his separation of employment.
On October 16, 2009, Nightingale terminated Helmuth for substandard work and violation of company policies. Upon termination, Helmuth’s compensation, benefits, and duty to perform ceased and Helmuth began the process of obtaining unemployment benefits. However, within days of Helmuth’s termination, Nightingale offered to revoke the termination and offered Helmuth to return to work in the same position as patient advocate subject to the prior terms and conditions of his initial employment including the initial non-compete agreement he previously signed. Helmuth accepted and was rehired within 10 days of being terminated. Nightingale did not ask and Helmuth did not sign a new non-compete agreement upon his rehire.
On March 5, 2012, Nightingale fired Helmuth. In May 2012, Helmuth was hired by one of Nightingale’s competitors for a position similar to the one Helmuth had while employed at Nightingale and in a similar geographical market.
Upon learning of Helmuth’s new employment, Nightingale sued Helmuth for breach of the non-compete agreement. At issue before the court was whether the non-compete restriction became effective when Helmuth was first terminated on October 16, 2009 or subsequently terminated on March 5, 2012. The court found the former for two main reasons.
First, the court rejected Nightingale’s argument that its 2009 termination of Helmuth was voided by Nightingale’s revocation of the termination. The court found that the termination was unconditional and intended to be permanent. Second, the fact that Helmuth returned to work on the same terms he previously agreed upon was found irrelevant because the non-compete agreement expressly provided that any extension or modification had to be in writing and signed by Nightingale, and no such executed writing by Nightingale existed. Accordingly, Helmuth’s restrictive period was found effective as of October 16, 2009. When Helmuth began employment with Nightingale’s competitor in May 2012, the non-compete had expired and was therefore unenforceable.
The Nightingale decision should serve as a reminder to employers to know and comply with the operative language of an employee’s non-compete agreement to ensure that the employer’s interests remain protected as initially intended. Accordingly, if an employee’s non-compete agreement expressly provides that it can only be extended by a signed writing, then a signed writing extending the non-compete must be obtained, regardless of the circumstance that necessitates the extension.
Federal Appeals Court Says Dodd-Frank Does Not Protect Overseas Whistleblowers
Posted in Whistleblower & Retaliation ClaimsThe U.S. Court of Appeals for the Second Circuit has ruled that the Dodd-Frank Act does not protect whistleblowers outside the United States.
In Liu Meng Lin v. Siemens AG, Case No. 13‐4385‐cv (2nd Cir. August 14, 2014), the court affirmed a trial court’s dismissal of a Dodd-Frank whistleblower lawsuit filed by a former Siemens compliance officer, Meng-Lin Liu, in China. Liu claimed that Siemens violated the whistleblower anti-retaliation provisions of Dodd-Frank by terminating his employment because he made internal reports of alleged corrupt sales practices. Dodd-Frank generally prohibits retaliation against employees who provide information relating to a violation of U.S. securities laws to the Securities and Exchange Commission (“SEC”). Continue Reading
