BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
December 2001 issue:
By Andrea Johnstone, Anne Scheer, and Terry Shumaker*
The devastating attacks of September 11, 2001, on the World Trade Center and the Pentagon, as well as events that have followed these tragedies, have impacted American workers and workplaces. The following are a few significant areas that have generated questions from employers, as well as a brief overview of employment cases before the U.S. Supreme Court this term.
Military Leave
The Uniform Services Employment and Re-employment Rights Act of 1994 ("USERRA") guarantees non-temporary employees the right to take an unpaid leave of absence to serve in the military for a period generally not to exceed five years, and to return to their job with accrued seniority and other employment protections. The law also prohibits employment discrimination based on past, current or future military obligations including:
- Hiring;
- Promotion;
- Re-employment;
- Termination; and
- Benefits.
This law applies to all members of the United States Armed Forces, including members of the Reserves and the Army and Air National Guards while performing federal service, the commissioned Corps of the Public Health Service, as well as other categories of persons designated by the President in times of war or emergency. The law covers all forms of active duty, plus inactive training duty, and applies whether service is voluntary or involuntary.
Employees on military leave are entitled to continuation of medical benefits on the same terms and conditions as other employees for up to 30 days, and thereafter at no more than 102% of the full cost of coverage. An employee entering military service becomes an inactive participant in any retirement plan, and is generally entitled to continue coverage of other benefits only to the extent other employees of similar status are provided such coverage during leaves of absence for other purposes.
Upon discharge, an employer is required to re-employ an individual on military leave as if there had been no break in employment unless it is impossible or unreasonable for the individual to return to work. A position is not considered unavailable simply because it has become occupied by another employee.
Charitable Solicitations
Employers approached to allow charitable fundraising in the workplace related to the September 11, 2001 terrorist attacks, may be reluctant to do so in the face of a company no-solicitation/no-distribution policy. This is a legitimate concern. However, an employer may lawfully permit a very small number of isolated solicitations by charitable groups as exceptions to a valid no-solicitation/no-distribution policy, without negating the company policy. But, solicitation allowed for anything other than a charity, or even for a charity, if it is not an isolated occurrence, will negate an otherwise lawful no-solicitation/no-distribution policy. And, employers should know that once any solicitation is allowed, even if it is for an isolated charitable solicitation, can open the company up for claims that its no-solicitation/no-distribution policy is no longer enforceable.
With any request for charitable fundraising in the workplace, a company should:
- Investigate the charity by contacting the New Hampshire Attorney General's Office;
- Make sure supervisory/managerial employees are not involved in soliciting donations or keeping records of employees who do or do not participate; and
- Require the method of solicitation be tailored to create the least disruption in the workplace, and to ensure that no employee feels pressured, bullied or threatened to participate.
Discrimination
One of the many challenges in the aftermath of the terrorist attacks is the increased risk of discrimination on the basis on religion, race, national origin, and ethnicity. State and federal law prohibits discrimination on these bases and requires employers to reasonably accommodate employees' religious beliefs and practices. In light of heightened concern about workplace discrimination based on these factors, the Equal Employment Opportunity Commission issued a Special Alert dated September 14, 2001, urging employers to be particularly vigilant to "instances of harassment or intimidation against Arab-American and Muslim employees."
Employers are responsible to maintain a workplace that is free from discrimination. Companies are cautioned against tolerating any religious or ethnic slurs or other verbal or physical conduct which might be viewed as creating an intimidating, hostile or offensive work environment.
Now is a good time to review and reiterate company policies against employment discrimination and unlawful harassment. Employees should be reminded that they are expected to continue to act professionally and that ethnic/religious slurs and other signs of prejudice, harassment or discrimination are not permissible expressions of patriotism or national unity. Employers should also ensure that all workers understand the reporting process for lodging complaints of discrimination and harassment. In addition, managers and supervisors should be refreshed on their obligation to police the workplace for signs of harassment, discrimination or prejudice and their role in the reporting process to ensure that all incidents observed and/or reported are responded to appropriately.
United States Supreme Court 2001-2002 Term
A number of employment cases are on the United States Supreme Court's 2001-2002 Term docket. The term began October 1 and will conclude next June. These cases include:
- Whether an individual falls within the Americans with Disabilities Act's ("ADA") protection if the impairment prevents the person from performing a particular job, as opposed to a class of job-related activities. Oral argument on this case was heard on November 7, 2001.
- Whether an employer must make a reasonable accommodation under the ADA, if the accommodation violates an existing company seniority system. The lower court held that a seniority system was not a per se bar to reassignment and should only be considered as a factor in determining whether the proposed transfer proposed an undue hardship for the company. This case is scheduled for oral argument on December 4, 2001.
- Whether the Labor Department's regulation that leave does not start counting toward the 12-week Family and Medical Leave Act ("FMLA") allotment until the employer notifies the employee is valid.
- Whether and to what extent an arbitration agreement signed by an individual employee bars the Equal Employment Opportunity Commission ("EEOC") from pursuing ADA claims on behalf of the employee.
- The validity of a 35-year old EEOC regulation which allows a person to verify the contents of an EEOC complaint after the filing deadline, where the person filed a timely, but unsworn charge.
- Whether Title VII's statute of limitations bars a claim based on a theory of "continuing violation for incidents occurring more than 300 days before a charge is filed."
- How detailed a complaint initiating an employment discrimination suit must be to survive a motion to dismiss.
- Whether an employer must give back pay to an employee discovered to be an undocumented alien illegally working in the United States.
Copyright 2001. This article originally appeared in BIA Report, December 2001.
* Anne Scheer is admitted in New Hampshire.
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