Technology Employment Law

Technology Employment Law

Legal Insight for Technology, Media, and Telecommunications Employers

April 22 Complimentary Webinar Concerning EEOC Wellness Regulations

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To register for this complimentary webinar, please click here.

I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.

Below is a description of the webinar:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with Disabilities Act (“ADA”). Although the EEOC had not previously issued regulations governing wellness programs, the EEOC has filed a series of lawsuits against employers alleging that their wellness programs violated the ADA. Additionally, the EEOC has issued a number of public statements, which have concerned employers, indicating that the EEOC’s regulation of wellness programs would conflict with the regulations governing wellness programs under the Affordable Care Act (“ACA”) and jeopardize the programs currently offered to employees.

During this webinar, Epstein Becker Green attorneys will:

  • summarize the EEOC’s recently released proposed regulations
  • discuss where the EEOC’s proposed regulations are inconsistent with the rules currently in place under the ACA and the implications of the rules on wellness programs
  • examine the requests for comments issued by the EEOC and how its proposed regulations may change in the future
  • provide an analysis of what employers should still be concerned about and the implications of the proposed regulations on the EEOC’s lawsuits against employers

Who Should Attend:

  • Employers that offer, or are considering offering, wellness programs
  • Wellness providers, insurers, and administrators

To register for this complimentary webinar, please click here.

EEOC Issues Proposed Wellness Program Amendments to ADA Regulations

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My colleagues Frank C. Morris, Jr., Adam C. Solander, and August Emil Huelle co-authored a Health Care and Life Sciences Client Alert concerning the EEOC’s proposed amendments to its ADA regulations and it is a topic of interest to many of our readers.

Following is an excerpt:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its highly anticipated proposed regulations (to be published in the Federal Register on April 20, 2015, for notice and comment) setting forth the EEOC’s interpretation of the term “voluntary” as to the disability-related inquiries and medical examination provisions of the American with Disabilities Act (“ADA”). Under the ADA, employers are generally barred from making disability-related inquiries to employees or requiring employees to undergo medical examinations. There is an exception to this prohibition, however, for disability-related inquiries and medical examinations that are “voluntary.”

Click here to read the full Health Care and Life Sciences Client Alert.

Spate of Gender Discrimination Lawsuits Against Silicon Valley Technology Companies Highlights the Importance of Adopting and Enforcing Anti-Discrimination Policies and Procedures

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Recent discrimination lawsuits filed by former employees against Facebook and Twitter, serve as a reminder of the importance of having robust sexual harassment and equal employment opportunity policies in place. In Chia Hong v. Facebook, Inc., et al., which was filed on March 16, 2015 in the Superior Court of California in and for San Mateo County, former Facebook employee Chia Hong, who is Taiwanese, alleges that during her employment at Facebook she was discriminated against and harassed on the basis of her gender, race and nationality in violation of the California Fair Employment and Housing Act. Hong, who worked as a Technology Partner, further alleges that she was terminated in retaliation for complaining about the alleged mistreatment.

Three days after the commencement of the Hong lawsuit, Tina Huang, a former software engineer at Twitter, filed a class action complaint for sex discrimination under the California Fair Employment and Housing Act against Twitter in the Superior Court of California, County of San Francisco. (See Huang v. Twitter, Inc., Case No. CGC-15-544813, Superior Court of California, County of San Francisco). The class action lawsuit alleges that Twitter’s system for promoting employees is not fully disclosed to the workforce and is biased against female employees.

The Hong and Huang cases have sparked great interest in Silicon Valley and the media at large, especially in light of the recent trial in the high-profile gender discrimination case brought by Ellen Pao against her former employer venture capital firm Kleiner Perkins Caufield & Byers. Despite the fact that Pao did not prevail on her claims, with the jury on March 27, 2015 ruling that Kleiner Perkins had not discriminated against Pao, Pao’s actions may have served as inspiration for the Hong and Huang actions and may inspire additional discrimination suits in the technology industry.

These lawsuits come during a time where Silicon Valley companies have been under scrutiny in the media for their lack of diversity. For instance, the Diana Center at Babson College reports that only 6% of venture capital partners are women.  At Kleiner Perkins, about 20% of the venture capital partners are women. Facebook, per a diversity report released in 2014, has a global staff that is 31% female and 69% male.  Only 15% of Facebook’s technical employees are female. Similarly, Twitter’s diversity report from 2014 states that 30% of the company is female, but just 10% of the technical employees are female.  The overall lack of diversity in the Silicon Valley technology industry could make the industry an attractive target for further discrimination suits.

As previously discussed in the January 22, 2015 blog post, Five Employment Law Pitfalls Start-Ups Should Avoid, under “federal law (and many state and city law counterparts), an employer can demonstrate that having both a sexual harassment policy with a complaint procedure (so employees can let the company know if harassment or discrimination is occurring in the workplace) is a defense to a sexual harassment or other discrimination claim.” In light of the recent spate of discrimination lawsuits brought against the technology industry and the increased focus on the need to address industry-wide diversity issues, technology industry employers should review their current policies and procedures to ensure that they are in compliance with federal, state and local laws. Employers, given the current environment, should also consider implementing employee training programs on anti-harassment and anti-discrimination and retaliation policies as an aide to fostering and developing a culture that does not accept or promote discrimination. Epstein Becker & Green, P.C., attorneys can assist with updating existing, or developing new, policies to comply with federal, state and local anti-harassment and discrimination laws and with developing and providing training to the workforce.

FMLA Same-Sex Spouse Final Rule Enjoined in Some States

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One day before the U.S. Department of Labor’s Family & Medical Leave Act (“FMLA”) same-sex spouse final rule took effect on March 27, 2015, the U.S. District Court for the Northern District of Texas ordered a preliminary injunction in Texas v. U.S., staying the application of the Final Rule for the states of Texas, Arkansas, Louisiana, and Nebraska. This ruling directly impacts employers within the technology, media, and telecommunications industries who are located or have employees living in these four states.

Background

In United States v. Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional, finding that Congress did not have the authority to limit a state’s definition of “marriage” to “only a legal union between one man and one woman as husband and wife.”  Significantly, the Windsor decision left intact Section 2 of DOMA (the “Full Faith and Credit Statute”), which provides that no state is required to recognize same-sex marriages from other states.  Further to the President’s directive to implement the Windsor decision in all relevant federal statutes, in June 2014, the DOL proposed rulemaking to update the regulatory definition of spouse under the FMLA. The Final Rule is the result of that endeavor.

As we previously reported, the Final Rule adopts the “place of celebration” rule, thus amending prior regulations which followed the “place of residence” rule to define “spouse.”  For purposes of the FMLA, the place of residence rule determines spousal status under the laws where the couple resides, notwithstanding a valid out-of-state marriage license.   The place of celebration rule, on the other hand, determines spousal status by the jurisdiction in which the couple was married, thus expanding the availability of FMLA leave to more employees seeking leave to care for a same-sex spouse.

The Court’s Decision

Plaintiff States Texas, Arkansas, Louisiana, and Nebraska sued, arguing the DOL exceeded its authority by promulgating a Final Rule that requires them to violate Section 2 of the DOMA and their respective state laws prohibiting the recognition of same-sex marriages from other jurisdictions.  The Texas court ordered the extraordinary remedy of a preliminary injunction to stay the Final Rule pending a full determination of the issue on the merits.

The court first found that the Plaintiff States are likely to succeed on at least one of their claims, which assert that the Final Rule improperly conflicts with (1) the FMLA, which defines “spouse” as “a husband or wife, as the case may be” and which the court found was meant “to give marriage its traditional, complementarian meaning”; (2) the Full Faith and Credit Statute; and/or (3) state laws regarding marriage, which may be preempted by the Final Rule only if Congress intended to preempt the states’ definitions of marriage.

The court then held that the Final Rule would cause Plaintiff States to suffer irreparable harm because, for example, the Final Rule requires Texas agencies to recognize out-of-state same-sex marriages as valid in violation of the Texas Family Code.

Lastly, although finding the threatened injury to both parties to be serious, the court decided that the public interest weighs in favor of a preliminary injunction against the DOL.  The court found in favor of upholding “the stability and consistency of the law” so as to permit a detailed and in-depth examination of the merits.  Additionally, the court pointed out that the injunction does not prohibit employers from granting leave to those who request leave to care for a loved one, but reasoned that a preliminary injunction is required to prevent the DOL “from mandating enforcement of its Final Rule against the states” and to protect the states’ laws from federal encroachment.

What This Means for Employers

Although the stay of the Final Rule is pending a full determination of the issue on the merits, the U.S. Supreme Court’s decision in Obergefell v. Hodges likely will expedite and shape the outcome of the Texas court’s final ruling.  In Obergefell, the Supreme Court will address whether a state is constitutionally compelled under the Fourteenth Amendment to recognize as valid a same-sex marriage lawfully licensed in another jurisdiction and to license same-sex marriages.  Oral arguments in Obergefell are scheduled for Tuesday, April 28, 2015, and a final ruling is expected in late June of this year.

Before the U.S. Supreme Court decides Obergefell, however, employers in Texas, Arkansas, Louisiana and Nebraska are advised to develop a compliant strategy for implementing the FMLA—a task that may be easier said than done.  Complicating the matter is a subsequent DOL filing in Texas v. U.S. where the DOL contends that the court’s order was not intended to preclude enforcement of the Final Rule against persons other than the named Plaintiff States, and thus applies only to the state governments of the states of Texas, Arkansas, Louisiana, and Nebraska.

While covered employers are free to provide an employee with non-FMLA unpaid or paid job-protected leave to care for their same-sex partner (or for other reasons), such leave will not exhaust the employee’s FMLA leave entitlement and the employee will remain entitled to FMLA leave for covered reasons.  We recommend that covered employers that are not located and do not have employees living in one of the Plaintiff States amend their FMLA-related documents and otherwise implement policies to comport with the Final Rule, as detailed in EBG’s Act Now Advisory, DOL Extends FMLA Leave to More Same-Sex Couples.  Covered employers who are located or have employees living in one of the Plaintiff States, however, should confer with legal counsel to evaluate the impact of Texas v. U.S. and react accordingly, which may depend on the geographical scope of operations.

NLRB Issues Critical Guidance On Employer Handbooks, Rules and Policies, Including “Approved” Language

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My colleagues Steven M. Swirsky and Adam C. Abrahms published a Management Memo blog post that will be of interest to many of our readers: “NLRB Issues Critical Guidance on Employer Handbooks, Rules and Policies Including “Approved” Language.”

Following is an excerpt:

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued General Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This GC Memo is highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

Because the Office of the General Counsel investigates unfair labor practice charges and the NLRB’s Regional Directors act on behalf of the General Counsel when they determine whether a charge has legal merit, the memo is meaningful to all employers and offers important guidance as to what language and policies are likely to be found to interfere with employees’ rights under the Act, and what type of language the NLRB will find does not interfere and may be lawfully maintained, so long as it is consistently and non-discriminatorily applied and enforced.

Read the full blog post here.

Teamsters and Technology II – Labor’s “Silicon Valley Rising” Campaign

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My colleague Steven M. Swirsky published “Teamsters and Technology II – Labor’s “Silicon Valley Rising” Campaign” which is a follow-up to “Teamsters and Technology: Developing Labor Issues for Technology Industry Employers.” Both blog posts are published on Epstein Becker Green’s Management Memo and we think the topic is timely and of particular interest to Technology Employment Law subscribers:

Following is an excerpt:

Last week we reported on the fact that Teamsters Local 853 and Loop Transportation had completed negotiations for a first collective bargaining agreement covering a unit of shuttle bus drivers who provide transport for employees of Facebook.  We pointed out that employers in technology, media and telecommunications were facing union organizing targeting employees of their vendors and suppliers for transportation, maintenance, food service and the like, that threatened to enmesh such employers as a consequence of unions gaining recognition of their vendors’ and suppliers’ employees. We also noted that with the NLRB’s expected broadening of its standards for finding joint-employer relationships to exist, that the risks were increasing that they would be held to be joint-employers of the suppliers’ personnel.

Read the original post here.

 

Five Steps Toward Boosting Employee Safety and Avoiding OSHA Citations

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Our colleague Valerie Butera recently authored Epstein Becker Green’s March issue of Take 5 in which she outlines actionable steps that employers can take to improve safety in the workplace and avoid costly OSHA citations.

Following is an excerpt:Take 5 banner

The Occupational Safety and Health Administration (“OSHA”) was created by Congress to ensure safe and healthful working conditions for employees. OSHA establishes standards and provides training and compliance assistance. It also enforces its standards with investigations and citations.

Although it’s impossible for employers to mitigate against every conceivable hazard in the workplace, there are five critical steps that every employer should take to improve safety in the workplace—and avoid costly OSHA citations. Read on for the steps:

  1. Conduct an Internal Safety and Health Audit Under Attorney-Client Privilege
  2. Create a Strong Safety Culture
  3. Ensure That Safety and Health Documentation Is Current and Well Communicated
  4. Train Employees in Safety and Health, Regularly and Comprehensively
  5. Protect Contractors and Temporary Workers, Too

Click here to read the full Take 5 online.

Teamsters and Technology: Developing Labor Issues for Technology Industry Employers

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Our colleagues Steven M. Swirsky and Daniel J. Green at Epstein Becker Green published an article on Management Memo  that will be of interest to our Technology Employment Law subscribers:  “Teamsters and Technology: Developing Labor Issues for Technology Industry Employers.”

Following is an excerpt:

Employers in the Technology Media and Telecommunications (“TMT”) industries have generally not thought that union organizing was an issue that affected their businesses and workforces.  Recent developments suggest that this is no longer the case.

These industries have earned reputations for innovative workplaces, generous benefits, and free food. At the same time, technology companies have outsourced many non-core functions such as campus security, maintenance, and transportation to third party suppliers.  Employees of these vendors generally receive less generous compensation, benefits and perks than high tech employees. The different treatment of primary employees and ancillary workers employed by subcontractors has given rise to claims that the industry is divided into the “haves” and “have not’s” and provoked a rising backlash among many workers.

Unions have been using this discontent to increase their influence in the TMT industry. Facebook’s shuttle bus drivers voted to unionize this past November and ratified a first contract on February 21 of this year. On February 27th shuttle bus drivers employed by a contractor that provides shuttle services for Apple, eBay, Yahoo, and Zynga employees voted to be represented by the Teamsters. At the same time, the Service Employees International Union (“SEIU”), which has been actively organizing fast food workers nationwide, has been working to organize custodial employees and security guards of high tech companies in the Silicon Valley. Most of these organizing campaigns are focused on the employees of subcontractors retained by TMT companies, but that has not deterred unions from pressuring those companies directly.

Read the original post here.

Virginia Employers: Don’t Force Facebook Friendships

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Virginia has now joined the chorus of jurisdictions that ban social media snooping by employers.  As we previously reported here and here, in a growing trend a number of states prohibit employers from requiring prospective or current employees to provide access to their social media accounts during the hiring process.  On March 7, 2015, the Virginia legislature passed H. 2081, a law prohibiting employers from asking or requiring employees or applicants (1) to disclose the username and password to their social media accounts, and (2) to add an employer to the list of contacts associated with their social media accounts.  This law will take effect upon signature by Governor Terry McAuliffe or, if he does not sign or veto the bill, on March 29, 2015.

Regardless of whether employers review individuals’ social media accounts as an applicant-screening tool or as a method to protect proprietary information or trade secrets, companies doing business in Virginia must cease asking these workers for their social media usernames and passwords once the law takes effect.  The new law does not prevent employers from reviewing any public posts made by the employee or applicant, nor does it penalize an employer that inadvertently receives login information through the employee’s use of an employer-monitored electronic device or network, as long as the employer does not use this login information to access an employee’s social media account.

Importantly, employers may still request an employee’s login information if necessary to comply with applicable law, or if the employee’s social media activity is “reasonably believed” to be relevant to a formal investigation conducted by the employer into allegations of the employee’s unlawful activity or violation of the employer’s written policies.

With the passage of this new law, Virginia employers should educate their recruiters not to ask for passwords to applicant’s personal social media accounts (or even to stand over an applicant’s shoulder while logging in).  Any background research on an applicant should be limited to publicly available information.  Employers also should review their social media and electronic communications policies to ensure that employees’ rights to confidentiality in their social media accounts is properly protected, while preserving the employer’s rights to oversee its electronic systems and to request the production of login information as part of formal investigations into unlawful conduct.

Also keep in mind the other jurisdictions that have passed or are considering similar legislation.  In addition to Virginia, thirteen other states have now enacted social media privacy laws: Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, Washington, and Wisconsin  According to the National Conference of State Legislatures, in 2015 alone, twenty states have introduced or considered legislation regarding access to social media accounts.  Employers must be aware of the various levels of privacy protections afforded to social media accounts in each state in which they operate or do business.  Epstein Becker & Green, P.C., attorneys can assist with navigating the various applicable state laws and with updating existing, or developing new, social media and electronic communications policies to comply with these laws.

D.C. Circuit Reinstates FMLA Claim Even Though Plaintiff’s Leave Request Was Granted

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No software company wants to lose its best programmer for an extended period.  But employers should take heed of the recent decision by the District of Columbia Circuit Court of Appeals when considering employee requests for leave under the Family and Medical Leave Act.  In Gordon v. United States Capitol Police, No. 13-5072 (D.C. Cir. Feb. 20, 2015), the D.C. Circuit held that an employer who discourages an employee from taking FMLA leave may be liable for an interference claim, even if that discouragement was “ineffective.”  In other words, don’t bully, discourage, or make employees jump through unnecessary hoops if they ask for FMLA leave, because those employees may still have a viable lawsuit for FMLA interference despite having received the requested leave.

Judy Gordon, an officer with the Capitol Police, was granted FMLA leave to address intermittent periods of severe and incapacitating depression.  Before her leave commenced, Gordon’s superiors ordered her to submit to a “fitness for duty examination” because of her FMLA request.  While waiting for the examination, Gordon was reassigned to administrative duties, resulting in a loss of $900 (the equivalent of three days’ pay).  Gordon passed the examination, was reinstated to her prior post, and took the requested FMLA leave and returned without incident.  Nonetheless, Gordon sued, asserting claims of interference and retaliation under the FMLA, and alleging that the presence of the “fitness for duty examination” on her permanent record would be detrimental to her prospects for pay increases, promotions, and transfers.

Addressing an issue of first impression for the D.C. Circuit, the court considered whether Gordon could proceed with her FMLA interference claim even though she was granted and ultimately took the requested leave.  Drawing an analogy between the interference provisions of the FMLA and the NLRA – which courts have interpreted to permit NLRA Section 8 claims based on actions that have a “reasonable tendency” to interfere with employees’ rights, regardless of whether they actual did – the court held that “an employer action with a reasonable tendency” to interfere with an FMLA right may support a valid interference claim “even where the action fails to actually prevent such exercise or attempt.”

Here, the D.C. Circuit reinstated the inference claim because it found that subjecting Gordon to a fitness for duty examination, which resulted in her loss of $900 and potentially impacted her future career prospects, would have a “reasonable tendency” to interfere with an employee’s exercise of FMLA rights.  The court also appeared to be influenced by allegations in the complaint that upper-managers frowned upon FMLA leave generally and were looking for ways to prevent Gordon from taking leave.

In its decision, the court set a low threshold for what constitutes an adverse action sufficient to support an FMLA retaliation claim.  One of the elements of a prima facie case of FMLA retaliation is a showing that the plaintiff was adversely affected by an employment decision.  The court refused to decide whether that element requires a showing of “material adversity” – as articulated for Title VII claims in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68-70 (2006) – or something less, such as any monetary loss, no matter how small – as suggested in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).  Rather, the court concluded that the loss of $900, the equivalent of three days’ pay, was more than de minimis and met the higher “material adversity” threshold, allowing the FMLA retaliation claim to proceed.

This decision is a reminder to employers, particularly those with operations in Washington, DC, to tread carefully when processing requests for leave under the FMLA.  Although leaves of absence can be disruptive to the workforce, and employers are within their rights to make certain inquiries into the need for leave, the mere fact that FMLA leave is ultimately granted will not insulate an employer from potential liability for conduct that has the potential to dissuade an employee from requesting leave.  To avoid unnecessary litigation, employers should instruct their leave administrators and supervisors to refrain from openly questioning or criticizing an employee’s request for leave and from requiring additional certifications beyond those contemplated by the law.

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