A Warning About the WARN Act

 

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By Kathleen J. Jennings (kjj@wimlaw.com)

The economic consequences of the COVID-19 pandemic have already been substantial, and they are not over by a long shot.  Unfortunately, employers are starting to consider furloughs and layoffs as a way to minimize or cut their economic losses.  Employers that are laying off workers or closing businesses must determine whether those events trigger notices required by the Worker Adjustment and Retraining Act (WARN).

The WARN Act requires employers to provide written notice at least 60 calendar days in advance of covered plant closings and mass layoffs.  A WARN notice is required when a business with 100 or more full-time workers (not counting workers who have less than 6 months on the job and workers who work fewer than 20 hours per week) is laying off at least 50 people at a single site of employment,  or employs 100 or more workers who work at least a combined 4,000 hours per week, and is a private for-profit business, private non-profit organization, or quasi-public entity separately organized from regular government.

WARN is triggered when a covered employer:

  • Closes a facility or discontinues an operating unit permanently or temporarily, affecting at least 50 employees, not counting part-time workers, at a single site of employment. A plant closing also occurs when an employer closes an operating unit that has fewer than 50 workers but that closing also involves the layoff of enough other workers to make the total number of layoffs 50 or more;
  • Lays off 500 or more workers (not counting part-time workers) at a single site of employment during a 30-day period; or lays off 50-499 workers (not counting part-time workers), and these layoffs constitute 33% of the employer’s total active workforce (not counting part-time workers) at the single site of employment;
  • Announces a temporary layoff of less than 6 months that meets either of the two criteria above and then decides to extend the layoff for more than 6 months. If the extension occurs for reasons that were not reasonably foreseeable at the time the layoff was originally announced, notice need only be given when the need for the extension becomes known. Any other case is treated as if notice was required for the original layoff; or
  • Reduces the hours of work for 50 or more workers by 50% or more for each month in any 6-month period. Thus, a plant closing or mass layoff need not be permanent to trigger WARN.

There are three exceptions to the WARN Notice requirement:  faltering company, unforeseeable business circumstances, and natural disaster.  It will be interesting to see if a pandemic could fall under either of the last two exceptions.

An employer who violates WARN is liable to each affected employee for an amount equal to back pay and benefits for the period of violation, up to 60 days. This liability may be reduced by any wages the employer pays over the notice period. WARN liability may also be reduced by any voluntary and unconditional payment not required by a legal obligation.

The Takeaway:  If a business is considering any furloughs or layoffs, it should consult with experienced labor counsel to determine if the WARN Act notice requirement is triggered.  Individual states may have their own requirements as well.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

When Everyone Wants to Work from Home—How to Avoid Discrimination Claims

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By Kathleen J. Jennings ( kjj@wimlaw.com)

One of the CDC’s recommendations to employers faced with a potential coronavirus epidemic is to allow employees to work from home.  Technology makes it possible for many employees to work remotely, but not every job—or employee—is suited to telecommuting.  How does an employer make decisions as to who can and cannot work from home without creating grounds for complaints of discrimination?

  1. Determine which types of jobs are suited to telecommuting. Not every type of job is suited to telecommuting.  Production workers, packers, and anyone who must physically handle product probably cannot do those jobs remotely.  Jobs that allow employees to communicate with the office and one another via technology are best suited to telecommuting.
  2. Determine which employees in those jobs are suited to telecommuting. Here is where the employer needs to be careful.  Decisions about which employees can work from home should have a legitimate, non-discriminatory basis.  That means, for example, that the employer can’t prohibit women with young children from working from home (because they might be distracted).  Or conversely, only employees with young children can work from home, which potentially discriminates on the basis of age.  Ideally, employees should be selected based upon their performance record and attendance history. Think of it this way:  if an employee is goofing off at work in the office, he or she is even more likely to goof off at home, where there is no supervisor to keep an on them and plenty of distractions.   The employer should have documented performance evaluations and attendance records to back up its decisions.
  3. Reasonable Accommodations. If an employees has a medical condition that places him or her in a population that is more vulnerable to the coronavirus, and he or she asks to work from home in order to minimize exposure to the virus, the employer should engage in the interactive process to determine if allowing that employee to work from home is, in fact, a reasonable accommodation.  A major component of the analysis is whether the essential functions of the job can be performed from home.  If they cannot, and the employer denies the request from the employee to work from home, the employer should have documented reasons to support its decision.
  4. Have a written telecommuting policy and procedure. This policy should address issues such as eligibility, equipment, security, hours worked, and safety.  Remember that telecommuting employees who are not exempt from the overtime requirements of the Fair Labor Standards Act should be required to accurately record all hours worked.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She has been successfully telecommuting for several years.  She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Coronavirus: What Employers Need to Know

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By Kathleen J. Jennings (kjj@wimlaw.com)

As we see reports of COVID-19 (commonly known as the coronavirus) in the US, employers are wondering what they should do to prepare for a possible outbreak.

First, and foremost:  DO NOT PANIC.

Second, learn how to wash your hands properly, and keep your hands away from the T-zone of your face (eyes, nose mouth).  Medical professionals say this is the best way to protect yourself from the spread of most airborne illnesses.

Next, regularly check in with the Centers for Disease Control (CDC) to get basic information about how businesses should respond to the coronavirus.  They have some excellent guidance, which includes the following:

  • Actively encourage sick employees to stay home:
    • Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.
    • Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
    • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
    • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
    • Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.
  • Separate sick employees:
    • CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
  • Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees:
    • Place posters that encourage staying home when sickcough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
    • Provide tissues and no-touch disposal receptacles for use by employees.
    • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
    • Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
    • Visit the coughing and sneezing etiquette and clean hands webpage for more information.
  • Perform routine environmental cleaning:
    • Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
    • No additional disinfection beyond routine cleaning is recommended at this time.
    • Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.

OSHA also has information on their website about coronavirus.

Try not to be overzealous about sending employees to the doctor just because they are coughing or sneezing.  People with chronic respiratory illnesses or allergies may already do these things, and you do not want to make them feel harassed.  At the same time, folks with chronic respiratory conditions are vulnerable populations, so if there is a legitimate concern that a person is sick, express that concern as one about the health of the employee.  However–do not seek health information about any chronic conditions.

Furthermore, if there is a large outbreak of disease, your FMLA and attendance policies are going to be sorely tested.  The CDC recommends some leniency in the requirements for doctors’ notes because the medical care providers may be overloaded.  If you make exceptions to policies, be consistent in those exceptions across the board.  In anticipation of increased absenteeism, consider cross-training employees so that gaps can be filled more quickly.

This is an evolving situation, and we will continue to provide guidance as things develop.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Hey Old Man, When Are You Going to Retire? And Other Things You Should Never Say At Work.

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Photo by Andrea Piacquadio on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

You would think that it would be simple to terminate a worker who admits to sending sexually suggestive messages containing nude photos and disparaging jokes about “women libbers” and “gays” over the company’s email system. Well, when that worker’s managers constantly ask him about his retirement plans, make comments about getting rid of “older” and “senior” workers, and even lower the scores of older workers on performance evaluations so younger operators would have a better shot at promotions and bonuses, you have the classic question of fact to be decided by a jury:  was the worker terminated for violating the company’s policy against sexual harassment, or was he terminated because of his age (57)? Add to that a claim of harassment on the basis of age, and you have a recent case out of Louisiana, Venable v. EnLink Midstream Operating, LP , M.D. La., No. 3:18-cv-00847 (2/20/20).

Plaintiff Venable’s emails came to light during a company investigation of another employee.  Venable had sent emails that included a joke (entitled “Moose”) featuring a picture of a woman’s genitals, another joke (entitled “Will the US Dollar fall?”) depicting a picture of a dollar bill lodged in between a woman’s buttocks, and an email (entitled “Heterosexual Male Pride Day”) which disparaged “women libbers” and “gays” and featured a picture of a completely nude woman with her hands placed suggestively on her chest. He admitted to sending all of them, and he was terminated.

The Plaintiff, however, did not go away quietly.  He claimed that he was “systematically targeted” “because of his age in an effort to secure his termination.” Plaintiff said that he was repeatedly called an “old man” and “old fart” by much younger employees, and that throughout 2015-2017, manager began harassing Plaintiff because of his age, referring to him as “senior” operator, “old guy,” and “problem guy,” in a derogatory and intimidating manner.  Plaintiff further claimed that his immediate supervisor told him that upper management directed him to “get rid” of the “senior” operators, including Plaintiff.  Plaintiff also claimed that upper management directed Plaintiff’s supervisor to force Plaintiff into retirement by constantly asking when he would do so. Plaintiff claimed he felt targeted, threatened, and offended, and this caused him to begin making mistakes at work that he did not usually make. He eventually filed a lawsuit alleging violations of the Age Discrimination on Employment Act as well as the Louisiana Employment Discrimination Law.

The employer filed a motion for summary judgment, but it was denied on the ground that there were genuinely disputed facts regarding the employer’s motive in Plaintiff’s termination– was he fired due to the emails or due to his age?  A jury will have to figure that out.  On the claim of harassment on the basis of age, the Court also denied the employer’s motion for summary judgment, finding that the Ellerth/Faragher affirmative defense was not available to the employer because the Plaintiff was allegedly the victim of a tangible employment action – termination – by at least one of his alleged harassers.

We’ve said it before, and we’ll say it again:  comments about the age or retirement plans of workers over the age of 40 can lead to claims of age discrimination.  Moreover, employees can use these types of comments as a shield against employment actions such as a termination that otherwise has good grounds.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

EEOC FY 2019 Enforcement Data: Retaliation Continues to Be the Most Popular Charge

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the U.S. Equal Employment Opportunity Commission (EEOC) released its FY 2019 enforcement and litigation data. As in past years, retaliation continues to be the most frequently filed charge, being alleged in over half of the charges filed.

Second place belongs to charges alleging disability discrimination. On that front, in recent years, the EEOC has been very aggressive in pursuing employers that discharge disabled employees who have exhausted FMLA and paid leave without making any effort to pursue the reasonable accommodation process.

The EEOC also states that it received 7,514 sexual harassment charges – 10.3 percent of all charges, and a 1.2 percent decrease from FY 2018. Interesting.

Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

•    Retaliation: 39,110 (53.8 percent of all charges filed)

•    Disability: 24,238 (33.4 percent)

•    Race: 23,976 (33.0 percent)

•    Sex: 23,532 (32.4 percent)

•    Age: 15,573 (21.4 percent)

•    National Origin: 7,009 (9.6 percent)

•    Color: 3,415 (4.7 percent)

•    Religion: 2,725 (3.7 percent)

•    Equal Pay Act: 1,117 (1.5 percent)

•    Genetic Information: 209 (0.3 percent)

These percentages add up to more than 100% because some charges allege multiple bases.

And for those who are interested, the EEOC also breaks down charges filed by state.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

The NLRB Has Gifted Employers Some Very Nice Decisions This December

By Kathleen J. Jennings (kjj@wimlaw.com)

December has been a busy month for the National Labor Relations Board (NLRB), which has been putting some very nice presents under the tree for employers. These gifts have come in the form of rulings that have turned back many Obama-era rules or precedents.

  • On December 12, 2019, the NLRB ordered an agency judge to approve a settlement that, among other things, absolved McDonald’s Corp. of any responsibility as a joint employer for labor violations by its franchisees. This is considered a major victory for employers in the franchise space, and it paves the way for anticipated rules governing the joint employer relationship from the Department of Labor, the EEOC and the NLRB. We are looking for some of these to be announced in January 2020.
  • On December 13, 2019, the NLRB announced changes to union election procedures that are likely to slow down that process. One of the major changes is that all disputes concerning unit scope and voter eligibility – including issues of supervisory status – will generally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. In other words, the election can be delayed while the parties litigate and resolve issues concerning unit scope and voter eligibility. Furthermore, the NLRB announced that some time periods for actions have been enlarged, and all time periods that apply to election rules will be calculated in business days, rather than calendar days, as had been previously done. During the Obama Administration, the NLRB issued new rules that were often characterized by employers as “quickie election” rules because they greatly sped up the union election process, which employers generally considered to be an advantage for the unions.
  • On December 17, 2019, the NLRB ruled that businesses can ban workers from using company email for union and other organizing purposes. In that decision, which overruled precedent from the Obama era, the Board stated that “employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.” (Caesars Entertainment Inc. , N.L.R.B., Case 28-CA-060841, decision 12/17/19).
  • Also on December 17, 2019, the NLRB ruled that employer rules that require employees to maintain confidentiality of workplace investigations into matters such as sexual harassment are lawful. (Apogee Retail , N.L.R.B., Case 27-CA-191574, Decision 12/17/19). This overruled an Obama-era case that required employers to justify such confidentiality policies.
  • On December 23, 2019, the NLRB held that Wal-Mart’s dress code policy limiting the wearing of union insignia was lawful. (Wal-Mart Stores Inc. , N.L.R.B., No. 13–CA–114222, 12/16/19).

The current NLRB’s Republican majority means that we can expect to see more pro-employer rulings in 2020.

Happy New Year to all of our readers!

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

OK Boomer—Are You Going to Sue for Age Discrimination?

By Kathleen J. Jennings (kjj@wimlaw.com)

As “OK Boomer” becomes a rallying cry for the younger generations, employers need to think twice about allowing that kind of banter in the workplace. Why? Because it could be evidence of age discrimination.

A recent case involving a tech startup illustrates how some comments by younger workers may be perceived to be evidence of age discrimination. (Robillard v. Opal Labs, Inc., D. Or., No. 3:16-cv-00780-AC, 12/17/19). Greg Robillard, at the ripe old age of 41, was hired as Lead Enterprise Engineer by Opal Labs. Robillard alleges that during his employment with Opal, the (younger) Senior Director of Engineering, said “thanks dad” when referring to Robillard, and that others at Opal referred to him as “old Greg,” and “Dad.” Robillard understood the terms to be perjorative, dismissive, and used to undercut him. The (younger) Vice President of Product referred to a job applicant as “some old guy in his forties,” and criticized others for referring to their computer displays as “monitors” as opposed to “screens.” Robillard also recalled other Opal employees posting a meme depicting Steve Buscemi dressed as a high schooler on Opal’s internal messaging system called “Slack.” Also, executive team members described Facebook as an activity for old people.

Robillard was eventually terminated, purportedly for poor job performance. He was replaced by a 32-year-old. He sued, asserting a number of claims including age discrimination, retaliation, and failure to pay overtime wages. Opal moved for summary judgment. The District Court granted summary judgment on the overtime claim because Robillard was an exempt employee. However, the Court denied summary judgment on the age discrimination because there were disputed issues of fact as to the reason that Robillard was terminated. However, the Court ruled that the comments alleged by Robillard were not direct evidence of age discrimination. For example, the court found the “thanks dad” statements were not overtly ageist in nature, as parents may be less than forty years old. However, these comments may nevertheless be offered by a plaintiff as evidence of discriminatory intent or animus.

The Takeaway: If any of you needed a reason to tell your employees to stop saying “OK Boomer,” here it is: all boomers are over the age of 40, so mocking the attitudes of this group could be perceived as mocking people over the age of 40—who are protected from discrimination by the Age Discrimination in Employment Act.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.