On the eighth day of Christmas my true love gave to me eight maids a milking. I promise you, the closer we get to Christmas the more I question whether this guy really is my true love. Despite my decreasing interest in this romance, it does remind me of a recent question I received from a client, specifically what must I do to accommodate lactating moms in the workplace? It’s a valid question that encompasses both state and federal requirements, so here is a little bit of information about your responsibilities under both:
Franchisors and franchisees are separate companies and therefore franchisors should not be responsible for employment matters at the independent franchisees’ stores. At least that is what we thought until the National Labor Relations Board Office of the General Counsel just announced that it has issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, LLC, alleging that McDonald’s USA, LLC, together with its franchisees, are both responsible for the franchisees’ violation of the rights of employees working at McDonald’s restaurants at various locations around the country. The Office of General Counsel alleges that unlawful actions were taken against employees in response to employee activities aimed at improving wages and working conditions, including employees participating in nationwide fast food worker protests about the terms and conditions of their employment. The General Counsel maintains that McDonald’s USA, LLC is liable because it is a “joint employer.” If the courts embrace this theory of liability, it will be a major departure from what Franchisors understood were their obligations, and will likely cause many to carefully reconsider the language in their Franchise Agreements in order to make sure they are fully protected against liability resulting from the mistakes of their franchisees. If you are currently operating with a franchise agreement and wonder how these recent complaints could affect your business, contact a member of Verrill Dana’s Labor & Employment Practice Group to discuss.
On the seventh day of Christmas my true love gave to me another grouping of birds—excercising birds to be specific. I cannot tell if this is similar to receiving an exercise bike or treadmill for Christmas, a small nudge to get into shape, but even if that was not the intent, it reminded me to exercise, which reminded me of wellness programs and the EEOC’s recent infatuation with them. We have discussed wellness programs a lot in the last few months in large part because the EEOC has begun to bring enforcement actions against companies alleging that company wellness plans are violating the ADA, Title VII, or GINA.
Last month, the EEOC issued its agenda items for 2015. The agenda contains eight items (many of which are holdovers from the previous regulatory agenda), but the two highest priority items are plans to amend the ADA and GINA regulations to address a wellness plan’s financial inducement or health-risk-assessment requirements and how those items may violate federal prohibitions against disability or genetic information discrimination.
The National Labor Relations Board has just held in Purple Communications, Inc. that “Employees’ use of email for statutory protected communications on non-working time must presumptively be permitted”. Thus, all employers who permit employees on non-working time to use the Company’s email system will now have to permit any employee to post pro-union emails announcing meetings, promoting membership, and possibly even distributing representation cards and soliciting the signatures on the email system.
The decision of the NLRB applies both to unionized and non-unionized employers if such employer allows employees to use its email system at work for non-work subjects. So, if your employees have access to the Company email system and you have ever allowed the employees to use that system to send or receive non-work related emails, you must now permit your employees to use the Company email system to communicate with their co-workers about union-related issues.
On the sixth day of Christmas my true love fell back on providing me with birds—he clearly did not get the hint that I preferred the rings. But since we are speaking about laying eggs and the miracle of child-birth (or chick birth), let us get down to what employers really should be paying attention to right now—the Pregnancy Discrimination Act.
Earlier this month, there was significant media attention regarding the Supreme Court’s hearing of Young v. United Parcel Serv., Inc., NO. 12-1226, in which the Court heard argument as to whether UPS had violated the Pregnancy Discrimination Act (“PDA”) when it offered light duty jobs as an accommodation to workers who were injured on the job but refused to extend the same accommodations to pregnant employees who had similar work restrictions. In July we discussed the EEOC’s recently updated guidance which indicated that it was the EEOC’s position that the PDA requires employers to offer light duty work to pregnant employees who need job modifications if they make light duty work available to non-pregnant employees.
Having recently been seated next to a passenger with a canine companion on a long flight (a spaniel mix of some sort),1 your humble blogger read with interest the story of Hobie the emotional support pig and the havoc he recently wreaked on a flight out of Hartford.
Aside from this story causing a severe case of “Wow, things really always can get worse on an airplane,” it also highlights the sometimes murky distinctions between “service” and “emotional support” animals and the law surrounding their presence in public and more importantly for purposes of this blog, in the workplace.
We recently discussed a company’s responsibilites with regard to service animals, but the topic is becoming ever more prevalant. Contact one of our employment law attorneys if you have questions about your responsibilities regarding and this area of the law. We’d be happier than Hobie in an aisle seat to help.
1 The dog, not the passenger.