Category Archives: employers

Missouri Supreme Court Opens New Door To LGBTQ Protections Under The Missouri Human Rights Act

Contributed by Brian Wacker, March 1, 2019

gavel and scales of justice

In a pair of rulings handed down on Tuesday, the Missouri Supreme Court expanded the reach of the Missouri Human Rights Act (“MHRA”) to encompass, under certain circumstances, LGBTQ individuals and additional types of evidence that can support MHRA discrimination and retaliation claims. Both cases – Lampley, et al v. Missouri Comm’n on Human Rights, et al and R.M.A., et al v. Blue Springs R-IV Sch. Dist., et al – should have a significant impact on employers in Missouri and how they evaluate the risks of employment actions against LGBTQ individuals moving forward.

By its text, the MHRA makes it unlawful for an employer to discriminate or retaliate against an employee with respect to compensation, terms of employment, or privileges of employment because of that employee’s race, color, religion, national origin, ancestry, disability, age, or sex. The MHRA does not expressly prohibit discrimination or retaliation based on an employee’s sexual orientation. Missouri courts have interpreted the MHRA accordingly.

In Lampley, the complaining employee was gay, but his sexual orientation was not the issue presented to the court. Instead, the plaintiff filed a Charge of Discrimination complaining that his employer, the Missouri Department of Social Services, subjected him to sex discrimination and retaliation, which is prohibited under the MHRA. The plaintiff asserted he was subjected to sex discrimination and harassment at work because “he does not exhibit the stereotypical attributes of how a male should appear and behave” and that other similarly-situated co-workers (i.e., non-gay co-workers who exhibited stereotypical attributes) were treated differently.  He also complained that he received lower performance evaluations at work as retaliation for his complaints about the alleged harassment. His co-worker and co-plaintiff also filed a Charge of Discrimination, complaining that she was discriminated against based on her association with him. 

The court in Lampley distinguished claims of discrimination based on sex-based characteristics from discrimination based on sexual orientation.  According to the court, the plaintiff’s sexual orientation was “merely incidental” to his sex discrimination complaint. Since the plaintiff did not actually allege he was discriminated against based on his sexual orientation, he could pursue his claims under the MHRA since “stereotyping” can give rise to an inference of discrimination against a member of a protected class, and is considered an unlawful hiring practice by the Commission’s own regulations. 

Whether intended or not, it is easy to see that the court’s ruling in Lampley now provides LGBTQ employees (and their attorneys) a clearer path to pursue discrimination and retaliation claims under state law, framing their claims as sex-based rather than sexual orientation-based. This ruling, coupled with the court’s contemporaneous ruling in R.M.A., in which the court vacated a lower court’s dismissal of a transgender student’s MHRA sex discrimination claim against his school for refusing him access to the boys’ restrooms and locker rooms, constitutes a clear victory for LGBTQ advocates.   

The Missouri Supreme Court sent a message on Tuesday with regard to LGBTQ rights. Employers in Missouri should take heed. 

Exit Stage Left –Tips for When a Key Employee Moves to a Competitor

 Contributed by Michael J. Faley, February 27, 2019

As with most things in life, you should hope for the best, but plan for the worst in the event that a valued employee leaves to join a competitor. This post contains some helpful tips to keep in mind following such a move by a key employee.

I.   Stay On Good Terms With The Former Employee Whenever Possible

Once your employee announces that he or she is making the jump to a competitor, ending the relationship on amicable terms can benefit you down the road. It may very well turn out that the employee’s experience and knowledge of past or ongoing projects become critical to the resolution of a future problem or dispute. For that reason, among many others, it is better to remain civil despite the negative feelings that frequently percolate in these kinds of situations.

II.   Take Action When Things Get Ugly

Of course, though you may try, it is not always possible to maintain an amicable relationship with a former employee. Most of the time, you will simply move on with business as usual. Unfortunately, it is not uncommon that a former employee attempts to pack up and take your business to the new company. This frequently takes the form of a soon-to-be former employee copying documents and computer files containing the likes of confidential client information or records concerning former and ongoing projects. If this occurs to you, it is time for action. 

The law provides you with several methods of redress to prevent other businesses from obtaining an unfair competitive advantage where a former employee has taken proprietary information. Here are some of the most common lines of defense.

  • A Well Drafted Employment Agreement
employment contract document form with pen

An artfully crafted employment agreement with a covenant not to compete can provide the basis for a breach of contract claim against the former employee. Many employment agreements also prohibit solicitation of clients or taking confidential information. An effective employment agreement is a great tool to prevent a former employee from unfairly poaching your business.

  • The Duty of Loyalty

When it comes to high-ranking employees, always remember that the soon-to-be ex-employee has a continuing duty of loyalty while working for your company. Almost certainly, the former employee will have breached that duty if he or she surreptitiously copied confidential records and computer files during employment.

  • Trade Secret Laws

It is also illegal to misappropriate trade secrets. For instance, the Illinois Trade Secrets Act (765 ILCS 1065/2) makes it unlawful for the former employee or their new company to misappropriate your “technical” information, “data,” “methods,” “techniques,” “drawings,” and other confidential information that are sufficiently secret to give you a competitive advantage.

  • Copyright Laws

Copyright laws may further help to protect your business interests. Copyright tends to be particularly important for businesses involved in artistic endeavors, architecture, and software development among many other fields that produce original works of authorship. Usually, the underlying copyright in any work generated for your company by the employee within the scope of his employment will belong to the company. Such laws can, for example, help stop a former employee from taking copyrighted project plans and using them to replace you on a client’s project or passing off the material in a portfolio as their own. Because registration of the work with the U.S. Copyright Office (www.copyright.gov) is required to file a lawsuit for infringement, see 17 U.S.C. § 411(a), and because registration also provides the opportunity for statutory damages and attorneys’ fees, we recommend registering the copyright in your valuable works and include copyright notice on each of the works involved (e.g., for works first published in 2019, acceptable copyright notice would read “©2019″).

  • Computer Records

Finally, the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C.A. §1030, is a vital law that protects you from theft and destruction of information stored on your company’s computer system. In the event your company sustains damage or loss due to a CFAA violation, you may be able to maintain a lawsuit to prohibit the former employee from using the illegally obtained computer files. Damages may also be available under the CFAA. As a measure of cautious practice, you should have your information technology staff check all computer systems after the employee departs.

Through the use of the foregoing business and legal tools, you should be able to protect your business interests in the event those interests are threatened by illicit means. Your attorney will usually start by writing your former employee and/or the new company a “cease-and-desist letter.” However, depending on the urgency of the matter, events may require an immediate lawsuit to enjoin the former employee and/or their new employer from acting in a way detrimental to your interests.

III.           Remember the Flip Side When You Are Hiring

Similar concerns exist when you are on the hunt for new talent. Regarding the recruitment process, you should always:

· Remember that the employee owes a continuing duty of loyalty to his or her current employer for the entire duration of employment.

· Inquire whether the prospective employee may be subject to any post-employment restrictions contained in an employment agreement.

· Take the time to understand whose rights may be implicated by any potentially proprietary information gleaned from the new employee, and refrain from acting upon questionable information.

In short, while a valuable new employee can certainly lead to new business opportunities for your company, you should always act carefully to avoid potential exposure to the types of litigation discussed above. 

The Importance of Documenting the Failure to Document

Contributed by Suzannah Wilson Overholt, February 20, 2019

Doctor, medical charts

One of the biggest challenges faced by health care providers is ensuring proper documentation in patient charts. Shortcomings in charting can result in lost revenue due to third party payers’ assigning a lower CPT code or refusing to pay a claim. Even worse, poor charting may prompt an equally poor survey result. 

Convincing employees to stay on top of charting can be difficult and frustrating but taking appropriate action against those who fail to do so and documenting that action is critical. A recent decision by the U.S. District Court for the Western District of Wisconsin illustrates the manner in which an employee’s failure to chart should be properly documented through the disciplinary process, and how such effective documentation may be used to defend against claims for discrimination and/or wrongful termination.

In Blumentritt v. Mayo Clinic Health System – Franciscan Healthcare, Inc. (W.D. Wis. Feb. 6, 2019), the district court granted summary judgment in favor of the Mayo Clinic due, in part, to its well-documented history of disciplinary action against Mr. Blumentritt for his failure to complete charting in a timely manner. The following best practices were used by the Mayo Clinic:

  • Charts were audited for completeness;
  • When an audit revealed an employee with a significant number of incomplete charts, the supervisor had a coaching session with the employee and established clear, achievable goals for the employee;
  • The supervisor monitored the employee and, when he failed to meet the goals, gave him a performance counseling;
  • The supervisor took the employee off of performance counseling and provided positive feedback for his accomplishment when he improved;
  • When the employee backslid, the supervisor gave him an improvement plan with specific objectives and due dates for achieving those objectives, as well as a warning that failure to complete documentation according to established policies or adhere to the timeline would result in termination;
  • The supervisor revised the timeline for the improvement plan when the supervisor’s schedule interfered with the deadlines;
  • When another audit revealed the employee again failed to complete patient charts, the supervisor gave the employee a last chance warning; and
  • When a follow up audit revealed that the employee’s charting was incomplete and the employee failed to correct the problem after being given an opportunity to do so, he was terminated.

The one weakness in the process appears to have been the Mayo Clinic’s failure to take action against Mr. Blumentritt when he did not meet the deadlines set in the performance improvement plan.  On the flip side, a real strength is that the Mayo Clinic did not restart the disciplinary process when the employee backslid, and instead resumed at an appropriate level given the prior infractions. The well-documented disciplinary measures against Mr. Blumentritt were critical to the Mayo Clinic’s ability to defend against his claim that he was terminated because he was a gay male. 

The takeaways from this decision are to act on audit results, document action taken, follow through, and keep the pressure on the employee to perform. (Also worth noting is that the court did not question the Seventh Circuit Court of Appeals’ decision in Hively v. Ivy Tech Comm. Coll. that discrimination on the basis of sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964.)

Job Posting and Ban the Box

Contributed by Mike Wong, February 18, 2019

job application on a laptop screen

Over 33 states and 150 cities, counties and municipalities have enacted Ban-the Box laws that prohibit employers from asking about an applicant’s criminal record or criminal history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment.

But did you know that Ban-the-Box laws can also impact your job posting or advertisement?

Yes, these laws can, and much like the Fair Credit Reporting Act (FCRA) and Americans with Disabilities Act (ADA), Ban the Box laws are being used by “professional plaintiffs” to go after employers for technical violations.

For example, New Jersey, New York City, Washington and Wisconsin’s Ban the Box laws specifically prohibit employers from asking applicants about their criminal history before making a job offer – including in job postings.  In those jurisdictions, having job postings or advertisements that state: “background check is required,” “clean criminal history,” “no felons,” “no criminal background,” or any other language that expresses any limitation in the hiring of an individual, directly or indirectly, based on his or her arrest or criminal background violate the law.

While the majority of Ban the Box laws do not expressly include prohibitions of such language in job postings and advertisements, employers now have potential exposure if they decide to include language of that kind. For example, an applicant could argue that while a state or local law does not expressly prohibit using language regarding criminal history in a job positing or advertisement, by doing so the employer is, in essence, unlawfully seeking criminal history information from job candidates. Additionally, if the state or local law prohibits discrimination against individuals with arrest records, the same legal argument the EEOC uses for Title VII discrimination claims based on arrests or convictions could be used – i.e., that the use of arrest records has a disparate impact on individuals of certain protected classes by eliminating, for example, more African American or Hispanic applicants as compared to applicants outside those groups.

Thus, while Ban the Box seems pretty straightforward, it is important to understand the details of each state and local law that may apply to your business. Moreover, it is important to review you job postings, advertisements and recruiting materials to make sure that they are up to date and not creating potential liability for you.

Flu Season: Common Questions From Employers

Contributed by Debra Mastrian, February 13, 2019

sick man lying in bed and thinking about all the work that piles up on his desk

The flu virus circulates all year round, although according to the Centers for Disease Control and Prevention (CDC), flu activity historically peaks in February. Here are a couple of flu-related questions frequently asked by employers:

Is an employee entitled to FMLA for absences due to the flu?

Maybe. The Family Medical Leave Act (FMLA) provides covered employees up to 12 weeks of unpaid leave during a 12 month period if the employee has a “serious health condition that makes the employee unable to perform” his or her job.  A serious health condition is an illness that involves either inpatient care or continuing treatment by a health care provider.  Inpatient care is typically an overnight stay in a health care facility.  Continuing treatment is more complex but is generally a period of incapacity of more than three consecutive full calendar days and any subsequent treatment or period of incapacity that also involves either (1) treatment or consultation with a health care provider two or more times within 30 days of the initial incapacitation or (2) treatment or consultation with a health care provider at least once and a regimen of continuing treatment under the supervision of the healthcare provider. A “regimen of continuing treatment” includes prescription medication, even without a follow-up medical appointment.  29 C.F.R. § 825.115.  Over the counter medications (aspirin, flu medicine), bed rest and fluids or other treatment that may be initiated without the direction of a health care provider, do not qualify as a “regimen of continuing treatment.” 

So, while an employee with a typical case of the flu who recovers with only self-care generally does not qualify for FMLA leave, extenuating circumstances can trigger coverage. It is important to focus not on the name of the illness—flu—but rather on the facts of the particular situation to determine whether an illness is a “serious health condition” as defined by the FMLA. When an employee calls in sick with the flu and is absent more than three consecutive days, the cautious approach is to send the employee an FMLA medical certification form.  It is risky to deny FMLA leave without first taking steps to determine whether the absence qualifies for FMLA protection.  If the employee returns the completed medical certification, the employer can then assess whether the condition is a “serious health condition.”  (Note:  Even if FMLA does not apply, an employee may be entitled to leave under state or local sick leave laws, or the employer’s sick leave or paid time off policies. Depending on the circumstance, an employer may also need to examine whether the Americans with Disabilities Act, as amended (ADA), applies.) 

Can an employee who is exhibiting flu symptoms at work be sent home?

Yes, an employee who is exhibiting flu-like symptoms at work (e.g., fever, excessive coughing, vomiting, chills, etc.) can be sent home (or instructed not to come to work). Employers have the right to manage their workforce.  This includes excluding potentially infectious employees, even if they want to work. Preventing the spread of contagious illness is a legitimate concern for employers. Employers can send sick employees home in an effort to maintain a safe and healthy workplace. (Note: OSHA requires all employers to maintain a safe and healthy workplace.) 

Employers should, however, be consistent and fair in how they handle each situation. This is important for employee morale and to avoid legal claims (e.g., allegations of discrimination). Adopting an infectious disease policy will give employees and managers guidance on how to handle these situations.

The Government is Back For Now… Employers Should Address E-Verify Compliance Over the Shutdown Period

Contributed by Sara Zorich, January 29, 2019 

The US Government was shut down for over a month, and the government’s E-Verify system was down from December 22, 2018, to January 27, 2019. During the shutdown, employers who are E-Verify users were unable to enter any of their newly hired employees into the E-Verify system.  But E-Verify users shouldn’t fret.  USCIS is giving you a grace period to catch up.  The Department of Homeland Security and USCIS have updated the E-Verify website to address the shutdown.

The website states: “Now that E-Verify operations have resumed, employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.”

If you have an employee who received a Tentative Non-Confirmation (TNC) during the shutdown (or just before) and informs the employer no later than February 11, 2019 that they want to contest, USCIS has indicated that employers should add 10 federal business days to the date on the employee’s “Referral Date Confirmation” notice, and give the employee the revised notice. Federal business days are Monday through Friday and do not include federal holidays. As written, this statement could be interpreted to mean, for instance, that an employee who received a TNC on December 21, 2018, would originally have had until January 4th (8 federal business days) to visit SSA or DHS.  Adding ten more federal business days would only give a new deadline of January 18th (which is still in the past—and during the shutdown). 

With this in mind, we suggest employers watch the USCIS website for further updates because we expect USCIS to correct this instruction. In the interim, if an employee has chosen to contest the TNC and the employee’s deadline to visit SSA or DHS has passed due to the government shutdown, make sure you inform the employee that they should visit SSA or DHS as soon as possible. Do not terminate the employee until you receive a final non-confirmation from E-Verify.

All of the normal E-Verify deadlines apply to employees hired on or after January 28, 2019.

Must Employees Be Paid For Extreme Weather & Emergency Closings?

Contributed by Noah A. Frank, January 28, 2019

Bad weather caution sign

In light of the current winter storm pounding the U.S. with snow and extreme subzero temperatures, this is a short reminder of when employees must be paid for emergency closures due to inclement weather.

Nonexempt Employees – Generally, hourly workers must only be paid for time they actually work.  They do not need to be paid when the business is closed or closes early due to a weather emergency.  As a side note, when paying a nonexempt employee on a salary basis, state laws may suggest treating compensation more like that paid to a salary exempt employee.

Exempt Employees – When the business is closed and salary exempt employees are willing and able to work, they must still be paid their full salary for the week if they perform any work during the week.  However, if the business is open (or employees can work remotely), and employees choose not to work, they do not need to be paid for full-day absences, and the business may require use of vacation/PTO benefits.  Salary may not, however, be reduced for partial day absences.

There Are Always Exceptions in Employment Law

Handbooks may provide for paid leave in the face of extreme weather.  In particular, “cookie cutter” handbooks may contain hidden traps (which is our reminder that businesses should have their handbooks reviewed by employment counsel!).  Similarly, union collective bargaining agreements or other inclement weather policies might create a requirement to pay for missed time.

In a developing national trend, even when the employer is open for business, state and local paid sick leave ordinances may require that employees be permitted to use available paid sick leave with little notice when, for example, a child’s school is closed due to a weather emergency.  Employers should be sensitive to this issue, especially if they have not previously implemented written policies or complied with the requirements of these local ordinances.

Some state and local laws also require reporting pay when employees either report to work and are sent home before working their full shift, or when their schedule is changed or cancelled with insufficient notice.  Such laws may apply to weather closures.

Finally, employee morale and goodwill might dictate that an employer err on the side of paying for missed time. 

Employers should review their employment policies in light of these developing laws and trends to make the determination of whether employees should be paid for a business closure or other weather-related absence.  Experienced employment counsel should also be consulted to make sure the business is operating in a way that avoids needless wage and hour exposure.