This is Utah SHRM Legal-mail no. 2013-17 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).
- STAFFING AGENCY EMPLOYEES NOT YOUR EMPLOYEES? THINK AGAIN!
- FMLA INVESTIGATIONS INCREASING
- E-CIGARETTES AT WORK
- EEOC NEWS BRIEFS
- CLOTHES RETAILER HIT WITH BIAS VERDICT
STAFFING AGENCY WORKERS NOT YOUR EMPLOYEES? THINK AGAIN! For various economic and other business reasons, many companies utilize the services of staffing agencies to help meet the personnel needs of the organization. Such staffing arrangements make sense in many ways, but companies using them should remember that they may be deemed to be a joint employer--along with the staffing company itself--of the involved person. A recent decision from a federal court in New York illustrates the point. The court concluded that because the defendant company directed and controlled the working conditions of the plaintiff staffing agency employee, the company was a joint employer and thus possibly liable for the discrimination and harassment allegedly suffered by the staffing employee when she worked at the company. The same could be true in another common circumstance--leave under the Family and Medical Leave Act (FMLA). The FMLA regulations state, “Where two or more businesses exercise some control over the work or working conditions of the employee, the businesses may be joint employers under FMLA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist...” In such circumstances, the regulations state that the primary employer must ensure FMLA compliance. Thus, when using staffing employees, a company must consider and resolve with the staffing company such issues as who pays for the defense of any lawsuit that emerges, etc.
FMLA INVESTIGATIONS INCREASING: Speaking of FMLA, I read recently in a national SHRM news post that the United States Department of Labor (DOL) has determined it will conduct more onsite FMLA investigations into employer compliance with this law. The article notes that the most common FMLA problems investigated involve: (1) failure to allow leave; (2) discouraging an employee from taking leave; (3) manipulating an employee’s hours to avoid FMLA; (4) using the fact of FMLA leave as a negative in performance reviews and other employment actions; and (5) counting FMLA leave days as attendance problems. SHRM national members can read the full article here: http://www.shrm.org/LegalIssues/FederalResources/Pages/Onsite-FMLA-investigations.aspx
E-CIGARETTES AT WORK: Today you hear more about e-cigarettes. What are they? Wikipedia says an e-cigarette “is an electronic inhaler meant to simulate and substitute for tobacco smoking... [utilizing] a heating element that vaporizes a liquid solution. Some release nicotine, while some merely release flavored vapor. They are often designed to mimic traditional smoking implements, such as cigarettes or cigars, in their use and/or appearance.” Can a private employer ban the same at work? Certainly, but you should give clear notice of your rule and have a good business reason for doing so rather than using it as code for getting rid of someone you do not like for other reasons (e.g. religious status). Note also that some states preclude a business from using legal outside-the-job conduct (such as e-smoking) as the basis for employment decisions.
EEOC NEWS BRIEFS: The Equal Employment Opportunity Commission (EEOC) has been involved with several interesting recent news briefs. First, the EEOC has identified gender pay disparity as an issue on which it will focus in the coming year. An EEOC spokesperson noted that few claims allege pay disparity, but when the EEOC digs further in a gender discrimination charge, it commonly finds examples of it. Second, the EEOC is encouraging employers to participate in its mediation program, which the agency says resolved some ninety percent of the claims submitted to it during the past year. Finally, the EEOC has been ordered to pay almost $5 million in fees to the defendant in an employment case it filed and lost in Iowa federal court. The court found that the EEOC’s decision to pursue the claims in that matter was not reasonable.
CLOTHES RETAILER HIT WITH BIAS VERDICT: A nationally-known clothes retailer has been hit with a verdict of bias against a Muslim employee who wore a head scarf to work. The company had contended allowing the scarf would be an undue hardship and that that the scarf clashed with its policies on the look of employees. The company also claimed that as a marketing matter, allowing the scarf would cost the company sales. The court found no evidence of lost sales or sales at risk and thus ruled in favor of the employee.