As the cost for employer-provided health-care benefits continues to rise, many employers have tried to fight the increases by introducing wellness programs for their employees.

Wellness programs can come in many shapes and sizes, but they typically involve providing employees with opportunities to receive risk assessments and incentives to make lifestyle changes to improve health. This doesn’t mean six-pack abs. Wellness programs look for attainable goals. Do you smoke? Let’s work on becoming a former smoker. Do you have high blood pressure? Exercise, reduce the stress and decrease the sodium intake. Are you obese? Let’s talk about eating healthier and getting some exercise. Mom just got tested for the breast cancer gene? Now is a great time to think about monitoring and prevention. Is there a history of heart disease in the family? That’s not something to ignore.

Employees receive costly health-risk assessments and knowledge of programs designed to help them help themselves. The idea is that if employers can help their employees get healthier, then everyone is better off. The bottom line looks better, health-care costs go down, and we enrich our employees’ lives. However, critical aspects of the design of wellness programs may be illegal.

The Genetic Information Nondiscrimination Act took effect Nov. 21. Title II generally prohibits employers from acquiring or using genetic information of employees. Genetic information may come from an employee’s own genetic tests, but the law is a lot broader. It also prohibits acquiring or using information about the genetic tests of family members as well as information about diseases, disorders or conditions of those family members. And that means that employers are not allowed to have anything to do with an employee’s family medical history – even when it helps the employer help the employee to reduce the risk of contracting a disease, disorder or condition in the future.

It’s one thing to preach to employees about the benefits of lifestyle changes. That typically works for the employees who are already committed to making healthy choices. What really makes wellness programs work is the incentive. Employers can make wellness programs attractive by offering something – a lower insurance premium, for example. That’s where the proposed regulations issued by the Equal Employment Opportunity Commission come into play. EEOC is the federal agency responsible for interpreting and enforcing GINA’s employment provisions. The statute appears to assume that employers can acquire genetic information as part of a wellness program, but the proposed regulations issued by the EEOC virtually shouted “not so fast.” Before an employer can allow a wellness program to acquire and work with genetic information (like the family medical history that is such a critical component), the wellness program has to be voluntary.

So what’s a voluntary program? We don’t know yet, because the regulations aren’t yet final, and there has been a lot of debate about the hallmarks of a truly voluntary program. What we do know (so far) is that the answer is probably not going to be simple. Offering an incentive may be enough to turn a wellness program into an involuntary program.

Employers may offer wellness programs but cannot penalize employees who decline to participate. Is a disincentive a penalty? For that matter, is an incentive a penalty? After all, an employee who refuses to participate in the wellness program ends up paying more for health insurance than his or her peers. If an employee is placed in a lesser financial position if he or she fails to participate in the risk assessment part of the program, does that operate as a subtle coercion that the statute should prohibit?

If the final regulations conclude that incentives and disincentives don’t affect the voluntary nature of a wellness program, employers will be able to use the original design. If the final regulations conclude that incentive-based programs aren’t truly voluntary, employers may need to drop the assessment, or remove any questions about family medical history, even though doing so limits the utility of the assessment. This debate is one more reason employers need to follow what’s happening with the new law.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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Most people would agree that employers shouldn’t try to regulate the off-duty ethical or moral conduct of their employees. But it’s a complicated issue. Certainly there are some kinds of jobs that are so closely aligned with the employer and its identity that an ethical misstep by the employee leaves a black mark on the employer. In those situations, an employer may be justified in exercising some level of control over how an employee lives his or her life.

But that phrase, “exercising some level of control over how an employee lives his or her life,” points to other complications. Who defines the attributes of the moral or ethical life? And what kind of employment relationship should permit this intrusion into an employee’s privacy?

“Morals” or “public relations” clauses appear in employment agreements in the talent industry and are probably a little easier to understand in that context. On-air broadcasters, models who become the “face” of a product, or athletes who are a visible symbol of the prowess that comes with using the product can be so associated with the employer that events in their personal lives have a spill-over effect that can harm an employer. People read or hear about them in the media. This isn’t the kind of misconduct that shows up during the job. That’s much easier to deal with: a radio personality who makes racist comments during an on-air program can be evaluated based on the employer’s job standards.

The problem is figuring out what to do with employees who behave badly on their own time. How should the network respond to charges of assault and battery (along with lurid details) against a national sports broadcaster? What about an actor who makes biased comments while being arrested for driving under the influence? Can the same principles that apply to “talent” employees be applied in other kinds of employment? Should schoolteachers lose their jobs if they are charged with domestic abuse? What about marijuana possession during the summer months?

A Texas federal court recently issued an opinion that might help employers draw the analytical lines and address issues related to employees’ off-duty activities. The plaintiff, Virginia Galaviz, was a television police beat reporter. After a number of incidents in her private life, she was fired after police responded to an incident between her and her fiancé, which resulted in her being charged with assault.

The incident attracted a lot of media attention. The Texas court upheld the termination and rejected a series of claims including gender discrimination, breach of contract, intentional infliction of emotional distress, libel and slander. She held a unique position, and her written contract provided that if at any time she failed to conduct herself “with due regard to public morals and decency” or if she committed any act or became involved in “any situation or occurrence tending to degrade” her in the community or to bring herself into “public disrepute, contempt or scandal,” she could be terminated.

Even though the court ruled against Galaviz, the issues raised in her lawsuit are cautions to employers. One particular concern is whether “morals” clauses are applied more stringently to women than to men, and that was one of her issues.

Galaviz asserted a claim of gender bias and introduced evidence of four male employees who also were arrested for off-duty misconduct but had not been fired. The employer was able to point to critical distinguishing details such as the degree of publicity and the number of incidents at issue. In all cases, each of the male employees had been involved in only one incident of outside misconduct.

The court pointed out that Galaviz had been treated the same – she too was not fired after just the first incident. In addition, however, the employer was able to point to the specialized role the plaintiff filled at the station. The employer had the right to enforce the “morals” clause in the plaintiff’s employment contract, but not if it refused to enforce the same clause against similarly situated male employees. Here, the court found too much dissimilarity to be concerned about gender bias.

Employers can take action when employees’ private lives affect them, but they need to be cautious in how they use that power. If private conduct is an employment consideration, employers need to let employees know that, either by language in an employment agreement or a policy handbook.

And those employers who have occasion to discipline or discharge employees for an event in their private lives need to ensure that they are evenhanded in discipline and don’t let some employees off the hook while, at the same time, disciplining other similarly-situated employees. And, just like any other disciplinary event, employers need to be sure of their facts.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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There are some 130,000 U.S. military personnel in Iraq alone, according to the Brookings Institute. As U.S. involvement in various global hot spots winds down, more veterans will be returning to their homes and jobs. Employers need to be aware of their obligations to returning veterans.

Employer responsibilities are codified in the federal Uniformed Services Employment and Reemployment Rights Act.

USERRA applies to all employers regardless of size and regardless of whether they are public or private. It even applies to foreign employers doing business in the U.S. and to American employers operating in foreign countries. In cases when employment is short-term and nonrecurring, but is controlled by an entity such as a hiring hall, the hiring hall may even be the employer for purposes of this law. Executives and managers may be exempt from wage and hour requirements, but they are protected under USERRA. Independent contractors are not protected, but it’s important to double-check the requirements in USERRA’s regulations to make sure the position is analyzed properly.

The law sets a floor, but not a ceiling; you can do more.

There is an urban myth that employees who volunteer aren’t entitled to the same benefits and reinstatement rights as employees whose service is involuntary. That isn’t true. USERRA applies to all categories of military training and service, including voluntary duty.

USERRA covers active duty in the Armed Forces as well as federal National Guard and reserve military service. It also applies to service in the national disaster medical system. It covers absences for military fitness examinations, authorized funeral honors duty, service in the commissioned corps of the Public Health Service, and even attending a military service academy.

USERRA covers the entire spectrum of the employment relationship. The law prohibits discrimination in hiring as well as a refusal to reemploy. It protects employees who are on layoff status or on strike, as long as the employee would have been recalled to work, and even if the employee failed to respond to a return-to-work notice because of military service obligations. Employees don’t need employers’ permission to leave work. Employers have the right to be notified but that notice can be verbal or written, informal, and can even come from an appropriate officer instead of the employee. The Department of Defense likes employees to provide 30 days notice, but there is no requirement for them to do so. Employees also get some time to put their affairs in order before leaving for service.

Employees get their jobs back after military service. They get them back even if they told you they weren’t coming back. There are a few exceptions, but they are very limited. Employees may lose reinstatement rights if: cumulative service exceeds five years, the employee fails to provide timely notice of the intent to return to work, the discharge was dishonorable or for bad conduct, a commissioned officer is court-martialed, and for a few other circumstances. In addition, significant business changes may excuse employers from reemployment responsibilities, but they can’t deny reemployment just because a replacement employee would have to be terminated.

Some employer policies simply don’t apply in the case for employees protected by USERRA. For example, employers can ask for notice of 30 days or longer, but they can’t require employees to comply. An employer may need its employee, but Uncle Sam needs him or her more than you do. USERRA does not require returning veterans to follow any particular requirements for requesting reinstatement; employers’ policies that impose requirements may not be valid or enforceable. If, for example, an employer bases seniority on actual days of work, it can’t apply that policy or principle with returning veterans. And even at-will employers are limited to cause terminations for returning veterans for a period of time depending on the duration of military service.

Remember that recent legislative enactments and regulations have added to these protections. For employers of 50 or more, there is now a leave right under the federal Family and Medical Leave Act for a qualifying exigency that includes addressing issues arising from short-notice deployment, military events and related activities, family support or assistance programs, certain child care and school activities, financial and legal arrangements, counseling, rest and recuperation, and some post-deployment activities. In addition, eligible employees are entitled to leave to care for a current member of the armed forces with service-related disabilities.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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Employers who do substance abuse testing need to be comfortable talking about employee body parts and, well, liquid waste.

Nearly all employment-related drug testing is done using a urine specimen, generally with the types of tests that courts have called the “gold standard.”  Different testing techniques on other sample types always are being developed and studied, but urine still comprises a gigantic share of the testing specimen market.

Because accuracy is so important (after all, jobs are at stake), it is crucial for tests to be accurate, and collecting the data to prove that can take time.

When urine testing took hold in the workplace, something called paruresis wasn’t far behind. Paruresis, commonly referred to as “shy bladder,” is a phobia that causes urinary retention. While it’s a real condition, it can also be faked at the time of a drug test.

The federal government doesn’t mind talking about urine, and because the government is also one of the largest initiators of urine testing through the massive U.S. Departmment of Transportation transportation testing program, the government gets to talk about shy bladders a lot. The DOT even wrote a regulation about how to handle the situation (drink a lot of water, wait for nature to take its course, and if it doesn’t happen, give the employee five days to get an evaluation from a licensed physician who has expertise in the medical issues raised by the employee’s failure to provide a sufficient specimen). That doesn’t end the testing for the employee, however, because lots of things that come from the body can be tested for drugs, including blood.

Because real paruresis (as compared to faked paruresis) is a medical condition that can substantially limit major life activity, it isn’t surprising that employees have identified the condition as a disability and have requested accommodation such as being exempted from mandatory drug testing. Employers who test under private policies (not the DOT regulations) need to keep that issue in mind. The Americans with Disabilities Act requires employers to provide reasonable accommodations.

If an employee really cannot provide a urine specimen on demand for a required drug test, and really has a provable medical condition, the employer may be required to test something other than urine. Foregoing the test isn’t a reasonable accommodation, but doing the test differently with a different specimen may be.

Smart employers will require employees to come forward and request an accommodation as soon as they know about the condition, though. Otherwise there’s just too much scrambling at the time of the test. Accommodations such as finding an alternate way to test will work better if they are reasoned and planned in advance.

On July 7, the Middle District of Tennessee issued an opinion in a lawsuit filed by a bus driver demoted because of the DOT’s testing regulations. As a bus driver, the plaintiff was required to submit to testing under the DOT program. He had a “shy bladder” episode but the medical professionals reviewing the test refused to accept the explanation and coded his test as a “refusal to test.”  His urologist had a different opinion, but the employer adopted the “refusal to test” and refused the employee’s offer to submit to alternative means of testing, and demoted him.

The employee sued, claiming he had a disability and that the employer had failed to accommodate the disability. The case is in the early stages, but the court just denied the employer’s motion for summary judgment, stating that it was possible that the employee could prove a set of facts that could entitle him to relief on his federal disability discrimination claim.

That seems, on its face, to conflict with a “savings clause” in the Americans with Disabilities Act, which provides that the ADA is not intended to interfere with the DOT testing program. Employers subject to the DOT testing rules, however, need to remember that the rules are specific as to testing requirements and specific as to when an employer must remove an employee from certain job functions What they do not tell a company is how to run its businesses and whether to discipline an employee. There is still plenty of room for the ADA to operate, even when DOT testing is in play.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, Paula handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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Most employers are subject to federal or state laws prohibiting discrimination on the basis of disability. State law applies to employers of six or more employees and federal law applies to employers of 15 or more employees. Disabilities can affect how employees perform their jobs, and employers frequently are faced with making performance-based decisions. Given the recent amendments to the federal Americans with Disabilities Act, employers will be seeing more and more disability claims and finding that more and more of their employees are covered by this law.

Performance management isn’t a bad thing, and employers can use it effectively to avoid discriminatory decisions. Setting expectations, identifying standards and metrics or measurements, providing employee feedback and doing it consistently and fairly are the characteristics of good performance management. Disability law, however, operates on the premise that employees with protected disabilities have legal rights to the removal of workplace barriers. There is considerable misunderstanding about whether that translates into rights to reduced performance standards.

As long as the performance standards are job-related and necessary to the effective performance of the job, employers have no responsibility to adjust them – even to accommodate a disability.

Before an employee with a disability has a legal right to an accommodation the employee must be qualified for the position. He or she must possess the needed skill set, education, experience or other job-related requirements, and be able to perform essential functions of the position (this part is evaluated with or without an accommodation). That principle helps show how performance management fits. An employer may apply the same quality and quantity standards to all employees when it evaluates performance.

Employees with disabilities and employees without disabilities can be required to meet the same production standards. Employers are not required to change them for employees with disabilities, although they may have a responsibility to change the manner in which employees with disabilities meet their standards. If the standard is to make 100 error-free widgets an hour, that’s the standard and it can be applied across the board. If the employee cannot meet the standard, it’s time to explore if there is an adjustment that will allow the employee to do so – something like removing marginal job functions, changing hours of employment, moving the work station, or obtaining and providing assistive tools. If that isn’t possible or effective, the next step is to evaluate a job reassignment.

Conduct is harder to quantify, and employees engage in an infinite variety of misbehavior. Conduct is even more difficult because mental disabilities can contribute to on-the-job conduct problems. A two-step evaluation can be a smart move. First, look at the situation and evaluate whether the misconduct is intertwined with the disability. Is the problem insubordination? Is it a safety violation? Is it use of a racist term? Is it refusal to clock out when leaving for lunch? Those acts probably don’t have anything to do with a disability, and employees in protected classes don’t get a free pass for violating regular conduct standards.

Case law, however, has been developing out of situations where conduct violations are so closely related to the disability that employers may want to take a second look at the issue.

The EEOC, which is the federal agency responsible for interpretation and enforcement of federal civil rights laws, has formally taken the position that the law does not protect employees from the consequences of violating conduct standards even when the conduct is caused by the disability.

But some courts are struggling with the whole concept of misconduct caused by a disability, and it is hard to say when or if a standard might be developed. Employers may want to start progressive discipline early for misconduct, and make sure that early in the process they ask employees whether there are accommodations or adjustments that can help the employees meet the conduct standards. There’s no harm, and can do a lot of good, in asking “why are you doing this?” and “how can we help you stop?” In fact, that’s often an excellent practice to use with all employees.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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Most employers are subject to federal or state laws prohibiting discrimination on the basis of disability.

State law applies to employers of six or more employees and federal law applies to employers of 15 or more employees. Disabilities can affect how employees perform their jobs, and employers frequently are faced with making performance-based decisions. Given the recent amendments to the federal Americans with Disabilities Act, employers will be seeing more and more disability claims and finding that more and more of their employees are covered by this law.

Performance management isn’t a bad thing, and employers can use it effectively to avoid discriminatory decisions. Setting expectations, identifying standards and metrics or measurements, providing employee feedback and doing it consistently and fairly are the characteristics of good performance management.

Disability law, however, operates on the premise that employees with protected disabilities have legal rights to the removal of workplace barriers. There is considerable misunderstanding about whether that translates into rights to reduced performance standards.

As long as the performance standards are job-related and necessary to the effective performance of the job, employers have no responsibility to adjust them – even to accommodate a disability.

Before an employee with a disability has a legal right to an accommodation the employee must be qualified for the position. He or she must possess the needed skill set, education, experience or other job-related requirements, and be able to perform essential functions of the position (this part is evaluated with or without an accommodation). That principle helps show how performance management fits. An employer may apply the same quality and quantity standards to all employees when it evaluates performance.

Employees with disabilities and employees without disabilities can be required to meet the same production standards. Employers are not required to change them for employees with disabilities, although they may have a responsibility to change the manner in which employees with disabilities meet their standards. If the standard is to make 100 error-free widgets an hour, that’s the standard and it can be applied across the board. If the employee cannot meet the standard, it’s time to explore if there is an adjustment that will allow the employee to do so – something like removing marginal job functions, changing hours of employment, moving the work station, or obtaining and providing assistive tools. If that isn’t possible or effective, the next step is to evaluate a job reassignment.

Conduct is harder to quantify, and employees engage in an infinite variety of misbehavior. Conduct is even more difficult because mental disabilities can contribute to on-the-job conduct problems. A two-step evaluation can be a smart move. First, look at the situation and evaluate whether the misconduct is intertwined with the disability. Is the problem insubordination? Is it a safety violation? Is it use of a racist term? Is it refusal to clock out when leaving for lunch? Those acts probably don’t have anything to do with a disability, and employees in protected classes don’t get a free pass for violating regular conduct standards.
Case law, however, has been developing out of situations where conduct violations are so closely related to the disability that employers may want to take a second look at the issue. The EEOC, which is the federal agency responsible for interpretation and enforcement of federal civil rights laws, has formally taken the position that the law does not protect employees from the consequences of violating conduct standards even when the conduct is caused by the disability.

But some courts are struggling with the whole concept of misconduct caused by a disability, and it is hard to say when or if a standard might be developed. Employers may want to start progressive discipline early for misconduct, and make sure that early in the process they ask employees whether there are accommodations or adjustments that can help the employees meet the conduct standards. There’s no harm, and can do a lot of good, in asking “why are you doing this?” and “how can we help you stop?” In fact, that’s often an excellent practice to use with all employees.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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Employers have reason to be concerned about drug use in connection with the workplace. The Occupational Safety and Health Administration warns employers:

“The vast majority of drug users are employed, and when they arrive for work, they don’t leave their problems at the door. Of the 17.2 million illicit drug users aged 18 or older in 2005, 12.9 million (74.8 percent) were employed either full or part time. Furthermore, research indicates that between 10 and 20 percent of the nation’s workers who die on the job test positive for alcohol or other drugs. In fact, industries with the highest rates of drug use are the same as those at a high risk for occupational injuries, such as construction, mining, manufacturing and wholesale.”

According to OSHA, a comprehensive drug-free workforce approach includes drug testing. But employers continue to have to navigate complicated and sometimes contradictory laws. A recent trial court decision from the Middle District of Tennessee serves as a reminder of how complicated this can be when the employee protections of the Americans with Disabilities Act are considered. The case, White v. Dura Automotive Systems, was decided April 23, on a series of pretrial motions.

There were seven plaintiffs in the case. They worked at a manufacturing facility doing a variety of safety sensitive jobs. The company was alarmed at its high rate of workplace accidents and widespread rumors about drug use. Some of the company’s employees involved in accidents tested positive for drugs afterward. As a result, and in order to address these safety concerns, the company introduced a new drug testing program that identified 12 drugs, some of them legal, which the company believed presented safety hazards in a manufacturing environment.

Under the new program, any employee who failed a screening test had to meet with a consultant, and disclose all prescription medication and associated warnings. The company then reviewed all the information and decided which medications presented risks. Employees were sent home and ordered to transition to drugs the company thought were safer at work.

The plaintiffs argued that the initial screening tests were unlawful under the ADA, which prohibits covered employers from requiring medical examinations and inquiries unless job related and consistent with business necessity. The court identified a key concern: the medical screening was company-wide, and not prompted by the individual conduct of the employees, so it resulted in the per se exclusion of individuals with medical conditions. The court saw this testing, with its heavy emphasis on legally prescribed medication, as a possible example of illegal selection criteria that screen out individuals with disabilities. The court acknowledged that the company could lawfully conduct medical evaluations of its employees under some circumstances, as long as it could show some realistic connection between the screening and the work performed.

In the end, the court agreed that the issues needed to be presented to a jury. The company had presented evidence that its facility was a dangerous place to work, had significant drug-related safety issues, and the company had attempted to screen out only those drugs that it believed could cause impairment. But it cautioned that a reasonable juror could find the screening to be broader and more intrusive than necessary.

Drug testing for illegal drugs is not prohibited by the ADA and is not considered to be medical testing. But employers need to remember that testing for legal drugs is a medical examination and must be based upon a business need. Cannabis, heroin and LSD are illegal; the federal government has placed them on Schedule 1 of the Controlled Substances Act. But many other drugs of abuse have legal uses. Cocaine, codeine, valium, and oxycodone are all legal drugs that are frequently abused.

Employers who have gotten into the habit of thinking that drug tests are not medical tests need to know their facts. Drug testing for illegal drugs is permissible at any time. But drug testing for legal drugs needs to be done within the limits of the Americans with Disabilities Act, just like any other medical examination.

And what about legal drugs that are being abused? Legal drugs being used illegally probably fall into the category of illegal drugs. Just remember that the language of the law is a little fuzzy on this issue, and make sure that your policy is clear.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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An April 1 decision of the U.S. Supreme Court signals a dramatic change in the rights of employers to require statutory claims of discrimination to be arbitrated rather than tried before a jury. This time the court’s decision grew out of a collective bargaining agreement between the Service Employees International Union and a multiemployer association, the Realty Advisory Board on Labor Relations. The individual employer was a member of that association, and collectively bargained through it.

The agreement required union members to submit all claims – even claims of employment discrimination – to binding arbitration under the grievance and dispute resolution procedure of the collective bargaining agreement. The language that the parties used was clear. The agreement prohibited discrimination and said “all such claims shall be subject to the grievance and arbitration procedures as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.”

That language does not leave much room for argument, but the law did. In 1974 the Supreme Court issued a decision in Alexander v. Gardner-Denver Co. that seemed to say that a union cannot waive an employee’s right to a judicial forum under the federal anti-discrimination statutes. The case was widely thought to say that a collective bargaining agreement could not preclude an individual’s right to bring a lawsuit to vindicate a statutory discrimination claim. When individual employees filed lawsuits that reassignments violated federal and state laws prohibiting age discrimination, the employer pointed to the arbitration language.

Justice Thomas, who wrote the opinion for the court, did not see the old case law as an impediment to arbitration. He thought that prior interpretations of Alexander v. Gardner-Denver Co. made a key analytical mistake in suggesting that the waiver of a procedure was the same as a waiver of a substantive right.

The National Labor Relations Act, which governs federal labor-relations law, permits exclusive representatives to bargain collectively on behalf of their members. A union has a broad authority in the negotiation and administration of a collective bargaining agreement. In this case the union and the multiemployer association negotiated in good faith and agreed that discrimination claims would be resolved through arbitration.

Because of the union’s broad authority, the court concluded that the arbitration provision had to be honored unless the antidiscrimination statute itself prohibited claims from being resolved through arbitration. But there is nothing in the federal civil rights law that precludes arbitration as a mechanism for resolving disputes. In fact, the statutes suggest that alternate forms of dispute resolution are appropriate.

In the end, the court firmly supported arbitration as a means of resolving statutory disputes. The opinion concludes that an agreement to submit statutory claims to arbitration is not a waiver of those rights, but merely a selection of how they can be raised. Many of the “old” decisions showed an “old judicial hostility to arbitration” that could no longer be supported. Instead, misconceptions about arbitration have long since been corrected and arbitral tribunals are readily capable of handling the factual and legal complexities of litigation, including discrimination litigation.

The court was not troubled by the fact that a union has control over the arbitration process under a bargaining agreement. Unions must make their decisions subject to a duty of fair representation, which it breaches if its conduct toward an individual member is arbitrary, discriminatory, or in bad faith. In addition, statutory discrimination provisions subject a union to liability if the union discriminates. And, in this case, the bargaining agreement could not have been clearer.

The court also pointed out that if Congress wants to prohibit arbitration of employment disputes, it knows how.

The question is whether a new Congress will step into this issue and amend federal law in response to the Supreme Court’s ruling. But for now, employers with broadly written grievance and arbitration clauses need to be aware of this decision. There is much to recommend arbitration before a trained neutral arbitrator who is familiar with the needs of businesses and the rights of employees, and arbitration is almost always quicker and cheaper than litigation. The case is 14 Penn Plaza v. Pyett, April 1.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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Three recent opinion letters from the federal Department of Labor remind employers that in addition to paying for all work time, they might also have to pay employees for training time, including doing their homework. Whether training time is paid time depends in part on how voluntary the training is, and how targeted it is to the job duties.

The general principle is set out in regulations under the Fair Labor Standards Act. Attendance at lectures, meetings, training programs and similar activities is not paid time if:

•Attendance is outside of normal working hours;

•Attendance is voluntary;

•The training is not directly related to the employee’s job;

•There isn’t any productive work done during the training.

Stating the rule is easy, but applying it can be complicated. The details in the three opinion letters, each related to a question from an employer, can help illustrate the bare bones rule.

Paying for prerequisites

One business employed service technicians who worked with a particular computer networking system. To keep employees up to date, the business brought in trainers from the manufacturer to present a voluntary training class during working hours. Time spent in class was correctly designed to be paid time (employees were trained during working hours). Here’s the wrinkle: To make the most of the class, participants had to work through several Web-based training classes. Because these were Web-based they could be completed anytime and anywhere.

The Department of Labor looked at the Web-based classes independently and concluded that they had to be paid. The classes happened outside of normal work hours. They were completely voluntary. The employees weren’t doing any productive work. However, the classes were directly related to the employees’ work duties.

“Training is directly related to the employee’s job it if is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill.” The classes were designed to help employees perform their present job duties better. Certainly there are “special circumstances” under which outside training offered by a bona fide institution of learning might be unpaid time, but this Web-based training didn’t fit into the limited exception.

Paying for homework

When a city told certain employees that they were required to attend and pass training programs that were offered during working hours and were intended to help them become more proficient at their jobs, nobody doubted that the time spent in the training would be paid time. These employees, however, would also have to do some study outside of work; the employer wanted to know whether it had to pay for homework. In this case it was paid time, although the city could put a cap on the number of hours that employees were allowed to spend in doing homework. Time spent in outside study (like homework) is not paid time if it isn’t required or if employees voluntarily do a little extra to bolster their own ability. But if completion of homework is a requirement of a compensable training class, the time spent completing assignments is paid time.

What about general training?

In two of the three letters the training was clearly targeted to improve employees’ abilities to perform their present job duties. There are some kinds of training that have general applicability. As long as these trainings are offered off the job, are not required, and don’t involve actual work, then the time can be unpaid.

So, what kind of training is general? This was illustrated in the last of the three opinions. The business operated day care and child care facilities. Pursuant to state law, employees had to attain and maintain state certifications through coursework. The employer offered after-hours, in-service and continuing education training to employees. Employees were not required to attend (although, in general, employees still needed to maintain their certification levels).

Would the training be paid or unpaid? In this case, the Department of Labor concluded that the time was unpaid. Even if training is applicable to the job, it need not be paid when it is for the benefit of the employee and corresponds to the kinds of courses offered by independent bona fide institutions of learning. In the child care industry, this kind of instruction benefitted the employee because if was generally applicable and the employee could use the training and certification for other jobs besides the current one.

Training is voluntary when an employee can freely choose to train, or not train, without employment consequences. If the employee is given to understand or led to believe that his present working conditions or the continuation of his employment would be adversely affected if he does not attend, then the training is not voluntary.

The opinions, all issued in January, are available at http://www.dol.gov/esa/whd/opinion/flsa.htm.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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On Jan. 26, the U.S. Supreme Court issued its opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. The case raised some interesting questions about the scope of protected conduct. The court concluded that an employee who speaks out about discrimination by answering questions during an investigation engages in protected conduct, for which retaliation is prohibited.

In 2002, the employer (a regional government body) was following up on rumors of sexual harassment by its employee relations director. The investigator asked Vicky Crawford whether she had witnessed any inappropriate behavior, and she described a number of instances. She had not previously complained of these instances and was not doing so during this interview. She merely provided information.

Other employees reported instances of inappropriate behavior or sexual harassment as well.
The employee relations director was not disciplined, but the three employees who provided information during the investigation were terminated. In Crawford’s case her termination was explained as resulting from financial improprieties on her part; she claimed that it was retaliatory for having participated in the investigation.

At first glance this case seemed like such a straightforward allegation of retaliation that court watchers were surprised that it even raised legal issues. At its heart, however, it required consideration of the two prongs of the anti-retaliation provisions under Title VII of the Civil Rights Act of 1964. That law prohibits retaliation against an employee who has “opposed” unlawful employment practices or has “participated” in formal proceedings under the statute.
The lower courts concluded that the plaintiff was not protected by the “participation clause” because the employer’s investigation was not conducted pursuant to a pending EEOC charge. It concluded that she was not protected by the “opposition clause” because she did not claim to have instigated or initiated any complaint.

The Supreme Court concluded that the protection of the law extends to an employee who speaks out about discrimination in the course of an employer’s investigation even if it is at the employer’s behest. Title VII’s opposition clause prohibits employers from discriminating against employees who have opposed any practice made unlawful by that law. “Opposed” is not defined in the statute and thus “carries its ordinary meaning,” which includes resisting, contending against, confronting, and withstanding.

Once the court looked to a broad dictionary definition of “oppose,” the outcome was foreordained. The plaintiff’s statement was a disapproving account of sexually obnoxious behavior toward her by a fellow employee. When an employee communicates to the employer the belief that the employer has engaged in a form of discrimination, it virtually always constitutes the employee’s opposition to the activity.

Opposition goes beyond “active” behavior and can even include no activity at all to advance a position other than discuss it. So, the court pointed out, people were known to “oppose” slavery before emancipation or today “oppose” capital punishment even though they may not write public letters, protest in the streets, or take action formally resisting government activities. Opposing could even include the passive act of a supervisor who simply refused to follow an order to discriminate.

The case reached the court without a full trial; a footnote in the Supreme Court’s opinion, however, hints at what lies ahead. Some of Crawford’s responses to the employee relations director were inappropriate in their own regard. When the employee relations director carried out his misconduct, she responded with an obscene gesture and a rude retort. It is pretty clear from the opinion that the employer’s argument will not get much attention in an eventual trial “because Crawford gave no indication that his gross clowning was anything but offensive to her.”

Amusement aside, the Crawford opinion is serious stuff and points out that protections against retaliation are an important part of the protections against discrimination. Courts will enforce them to the fullest extent of the law. For employers who want to ensure that their employment practices remain compliant, this decision is a good reminder that “opposition” is not always something that is shouted from the rooftops. It can be expressed quietly, nonverbally and may even take the form of a reluctant response to an employer’s investigation.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.

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