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SHRM Newsletter: Supreme Court Decision Makes Class Actions Harder?



June 27, 2011

This is Utah SHRM Legal-mail no. 2011-11 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).








SUPREME COURT DECISION MAKES CLASS ACTIONS HARDER?  The United States Supreme Court recently issued a decision denying class action status to hundreds of thousands for current and former female employees who alleged they were the victim of discrimination by a national retailer.  The plaintiffs had contended that their claims were similar and most efficiently handled in one case.  The employer argued that the cases represented thousands of different and unrelated employment decisions that should not all be lumped together.  The high court ultimately agreed with the company and the plaintiffs now must pursue their claims individually or in smaller groups.  The decision is expected to force lower federal courts to more carefully review employment claims proposed as class wide actions.  Plaintiffs like and employer often fear class actions because they are complex and difficult to defend include damages claims of multi-million dollars.

GINA TIP FROM THE EEOC:  The Equal Employment Opportunity Commission recently circulated this tip for dealing with the Genetic Information Nondiscrimination Act of 2008 (GINA), which provides a "safe harbor" for certain kinds of conduct-

“What should an employer do to comply with GINA when lawfully requesting health-related information from an employee? Although the proposed rule said that the acquisition of genetic information as the result of an inquiry about an individual's current health status would be considered inadvertent if the request was lawful, the final rule says that when an employer makes a request for health-related information (e.g., to support an employee's request for reasonable accommodation under the ADA or a request for sick leave), it should warn the employee and/or health care provider from whom it requested the information not to provide genetic information. The warning may be in writing or oral (if the employer typically does not make such requests in writing). The final rule suggests language such as the following: “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.” If this type of warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA. In other words, use of this type of warning creates a "safe harbor" for employers who receive genetic information in response to a request for health-related information.

LEGISLATIVE UPDATE:  Congress is considering a bill that would mandate, nationally, that all employers use E-Verify.  The bill introduced in the House of Representatives (H.R. 2164) would phase in the requirement depending on the size of the employer, with employers having 1-19 employees required to comply within two years after passage.  The bill also would replace the I-9 form with a more sweeping electronic verification system including a pilot for using biometric means to verify.  The bill is said to have bi-partisan support in the House and the Senate.  A new amendment to the Fair Credit Reporting Act (FCRA) impacting employers takes effect July 21, 2001.  According to national SHRM, “one of the amendments to the FCRA deals with the use of credit scores by anyone who takes adverse action based on the scores. If an employer uses a consumer report that includes a credit score in order to determine eligibility for employment, the employer will be required to disclose that a credit score was used and to disclose information on the credit score, including the credit score itself, and the identity of the agency that provided the score so that an applicant may contact the agency to correct any error.”  More information is available at:

CONNECTICUT MANDATES PAID SICK LEAVE FOR CERTAIN WORKERS:  In what may become a trend for other states, Connecticut has passed a law requiring that employers provide sick leave for employees.  The new law requires five days of sick leave per year beginning in 2012 and prohibits retaliation against employees requesting or using such sick leave.

BEWARE THE POWERPOINT PORN: MSNBC and a Baltimore newspaper report on the revenge of the disgruntled fired IT guy, who spent months after his termination hacking his former employer’s computers, ultimately to do this to the CEO during a board meeting: “Suddenly, his computer shut down, then restarted, replacing the latest slide with an image of a naked woman onto a 64-inch screen. The board members include city officials and foundation heads and is chaired by Baltimore's health commissioner." See:  The matter resulted in criminal charges, a new set of powerpoint slides and a new appreciation by the CEO of the naked truth of how terminations can be difficult and sensitive affairs.

VACATION TIME!  No new updates until about mid-July of 2011.  It’s finally summertime!

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.