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The Cincinnati Insurance Company terminated Kathleen Niswander after she provided proprietary documents to her lawyers in a class action lawsuit brought against the CIC. In determining whether or not the documents shared were confidential, the court looked at six factors:

1. How the documents were obtained.
2. To whom the documents were produced.
3. The context of the documents, both in terms of the need to keep the information confidential and its relevance to the employee’s claim of unlawful conduct.
4. Why the documents were produced, including whether the production was in direct response to a discovery request.
5. The scope of the employer’s privacy policy.
6. The ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.

These factors are designed to take into account the employer’s “legitimate and substantial interest in keeping its personnel records and agency documents confidential” and yet protect the employee’s alleged “need for surreptitious copying and dissemination of the documents.” Although the court ruled that the documents were in fact confidential, and that her lawyer should have obtained them through discovery, it noted that there might be occasions, such as “when an employee reasonably believes she is being subjected to discrimination and takes confidential documents to an attorney for advice and counsel” that would be reasonable.
(Jefferies v. Harris County Cmty. Action Ass’n, 615 F.2d 1025, 1036 (5th Cir. 1980))

According to the SHRM, 68% of employers offered wellness benefits in 2007, compared to 57% in 2003. Most companies have no idea as to the ROI of their wellness program. For more information, check out the Wellness Counsel of America ROI Calculator located here.
http://www.welcoa.org/ freeresources/ pdf/aa_roi_calculator2.pdf

The Calculator lists these components of wellness programs:

• Disease management
• Employee assistance
• Health risk screenings and appraisals
• Onsite medical
• Personal wellness profiles
• Screening and preventive care
• Smoke cessation
• Weight management
• Work-life balance
• Stress management
• Vaccinations
• CPR/first aid training
• Health fairs
• Newsletters and other information
• Fitness centers and memberships
• Weight loss programs
• Nutritional counseling
• Onsite blood pressure machine
• Massage therapy

Remember that medical inquiries or examinations of current employees regarding the existence, nature, or severity of a disability aren’t usually allowed unless the employee is asking for some form of accommodation. However, a company may ask for medical information as part of a voluntary wellness program that focuses on early detection, screening, and management of disease.

If you have, or are considering a wellness program, look at the DOL Field Assistance Bulletin #2008-02, issued Feb 14, 2008, which includes a Wellness Program Checklist. The types of health promotion or disease prevention programs your Group Plan offers must comply with the Department’s final wellness program regulations. To determine whether your program is in compliance, go to http://www.dol.gov/ebsa/regs/fab2008-2.html.

To avoid ADA, HIPAA, and other legal requirements, we recommend that you:

• Use third party administrators to collect and analyze all medical information. Then do not disclose individual health data to the employer.
• Only require the employee to participate in a health assessment; do not require the employee to achieve any standard. Again, only the third party administrator has the employee’s medical data.
• Do not mandate that employees achieve some measurable health standard as a condition of employment.

Employers should also be concerned about protecting health information under state privacy statutes. Be aware of laws that prevent adverse action on the basis of lawful off-duty conduct (i.e., smoking or drinking too much), or the use genetic testing.

Here are some notes from the recent California medical leave case of Forough Nadaf-Rahrov v. Neiman Marcus Group, Inc., which involved a seamstress whose doctor said her disability made it impossible for her to do her job:

• When an employee seeks accommodation by being reassigned to a vacant position in the company, they satisfy the “qualified individual with a disability” requirement of the ADA by showing that they can perform the essential functions of the vacant position with or without accommodation.
• The position must exist and be vacant, and the employer need not promote the disabled employee.
• If there are vacant positions available, you might want to identify them to the medical provider to see if the employee would be qualified to work any of them. This obligation might include future known vacancies.
• If a necessary accommodation is obvious but ignored; if the employee requests a specific and available reasonable accommodation that the employer fails to provide; or if the employer participates in a good faith interactive process and identifies a reasonable accommodation but fails to provide it, an employer may be sued.
• An employer need not provide repeated leaves of absence for an employee who has a poor prognosis of recovery. However, the mere fact that a medical leave has been extended repeatedly does not necessarily establish that it would continue indefinitely. In some circumstances, an employee might need to consult directly with their physician to determine the employee’s medical restrictions and prognosis for improvement or recovery.
• An employee can take unscheduled intermittent leave repeatedly, over nine hours per week, without exhausting their allocation of FMLA leave for a full year. Of course, this can result in staffing and morale problems.
• In the case of a medical emergency, an employee may show after the fact that their absence was due to a qualifying disability as long as they do so within a reasonable timeframe.
• Although regular attendance is considered to be an essential part of almost every job, absences from work are not automatically disqualifying. If an employee exceeds the employer’s absenteeism standard, due to a disability, the employer’s right to discipline or discharge depends on the circumstances of the case. Relevant considerations include:
  • The degree of absenteeism.
  • The degree to which the employee’s absences are predictable.
  • The degree to which employee’s absences adversely affect the business or ability to get the job done; and.
  • Whether the employee has any paid vacation leave or sick leave that could cover the absence.

As an employer, you face a number of challenges in this area:

• What exactly does the word “serious” medical condition mean?
• What does “intermittent” leave mean and how long does it last?
• How should you deal with unforeseeable employee leaves?
• How much information can you require before approving leave? What if you don’t trust or disagree with the medical information provided?
• To what degree may you enforce your attendance requirements and what other rules impact on this, including the ADA and FLMA?

As you can see from this case, leave management is full of employer traps. Remember, if you have more than 15 employees, the ADA applies. If you have more than 50, the FMLA does too. Better yet- both laws change in January and you’d better be prepared!

In a 2008 SHRM Satisfaction Survey Report, employees identified job security, benefits, compensation/pay, feeling safe, and communication as the five most important aspects of their job satisfaction.

It’s interesting to note that this is the first time in years that job security ranked No. 1. In reality, there’s only one form of job security: doing a positive job, in a positive manner, where there is positive cash flow.

Wise employees will identify precisely what constitutes excellent performance, what types of attitudes are expected, and “open up” the books. To learn about the benefits of open book management, read Jack Stack’s book, The Great Game of Business. HR That Works users can watch the Webinar “Open Book Management: Driving Results from Engaged Employees.”

Under current case law a Charging Party may have an employment relationship with more than one employer at the same time. This would be the case if the operations of two or more employers become so integrated that they can be considered to be a single employer (or an “Integrated Enterprise”) with respect to the Charging Party.

For example, in Baker v. Stuart Broadcasting Company, et al, the Federal 8th Circuit overruled the District Court’s dismissal of a Charging Party’s complaint for lack of subject matter jurisdiction and found that the broadcasting companies’ management and ownership operations were so closely interrelated that the companies could be consolidated as (Joint) “employers” for jurisdictional purposes under Title VII.

Similarly, in EEOC and Margaret Hasselman v Sage Realty, Monahan Commercial Cleaners and Monahan Building Maintenance, Inc. the court found that, although the companies involved were independently owned and operated under a contractual relationship, one of the companies, namely, Sage Realty, exercised almost complete control over the terms and conditions of employment of the employees of the other two entities. Accordingly the Court held that the companies had been operated as a joint employer.

Recently the EEOC obtained a $1.65 million settlement through four consent decrees against four independent contractors in EEOC v. Conectiv Energy, et al (E.D. Pa.; May, 2008). The EEOC considered the four contractor firms – Conectiv Energy, the general contractor, and Bogan Inc./Hake Group, A.C. Dellovade Inc., and Steel Suppliers Erectors Inc – to be a joint employer in maintaining a hostile work environment on the Bethlehem Project.

The four black workers, who will share in the settlement, allegedly had been subjected to various types of harassment, including racial slurs and nooses hanging from cross beams. The consent decrees include a provision that the defendants’ agreement to the settlement is not an admission of any violation of Title VII.

The important point is that if a charge of discrimination is filed under Title VII, the ADA or the ADEA a parent and its subsidiary, a contractor or subcontractor, or even a franchiser could be held to be a “Joint Employer” depending upon the interrelatedness of their actual operations.

In the past the EEOC and the courts have used four general factors (adopted from the NLRB) to measure the degree of interrelatedness that would make two or more entities a joint employer:

1. The degree of interrelatedness with respect to operations. For example, the degree to which two entities share management services such as check writing, related payrolls, personnel policies, business licenses, the services of managers or supervisors, sharing the use of office space or operating the two entities as a single unit.
2. The degree to which the businesses share common management. For example, where there’s strong evidence that the same persons make day-to-day decisions for both entities, or where the entities have common officers, or boards of directors which set policy and supervise the operations of both entities.
3. The degree of centralized control over labor or personnel policies and practices. For example, where the entities have a centralized source of authority for developing and implementing personnel policies and practices, or where one entity maintains the personnel records, screens, tests and maintains job applications for both entities. Also the degree to which the same person (e.g. a CEO or president) makes the employment decisions for both entities.
4. The degree of common ownership or financial control over the entities in question. For example, where the same person or persons own or control both entities, or where the same persons serve as officers or directors in both entities; or where one of the entities owns a majority or all of the shares in the other entity.

EEOC Tip:

None of these general factors is absolutely compelling in deciding whether two given entities are necessarily a “joint employer.” That determination depends upon the facts in any given case. In some cases, separate entities have been found to be a joint employer where some of these factors are absent.

According to the EEOC’s Guidance, the critical factors in determining whether two entities should be considered to be a joint employer are whether there is:

• A close interrelationship of operations
• Common management
• Centralized control of labor relations

To avoid potential liability as a joint employer, we’d recommend that you pay careful attention to these factors in entering into any contractual relationship with another independent firm or with a subsidiary of your own firm.

This article was prepared by Jerome C. Rose, EEO Consultant for the Worklaw Network firm of LEHR, MIDDLEBROOKS, & VREELAND, P.C. Before his association with the firm, Mr. Rose served for more than 22 years as the Regional Attorney for the Birmingham District Office of the EEOC.