Part of your Pennsylvania Employment Law Service
What’s Inside
Gregory J. Wartman, Editor
Vol. 26, No. 11
August 2016
Saul Ewing LLP
Payroll Taxes
Because settlement isn’t
“wages,” employer doesn’t
have to deduct taxes ............. 2
Trade Secrets
New law brings uniformity to
the protection of companies’
trade secrets ........................... 3
Accommodations
EMPLOYER LIABILITY
str, Rx, abs, etr, jq, emptest, term, dage, rehaba, adea, phra, owbpa, adpro, urep, suplia, el
Court dismisses age claims against
city of Reading, union officials
by Brittany Medio
EEOC task force to rethink
workplace harassment
prevention efforts ................. 5
A federal district court in Pennsylvania
recently dismissed a fired employee’s claims
against some of her former coworkers at the
city of Reading because they didn’t hold supervisory positions. The court also dismissed
the employee’s claims against the union and
its representatives because she failed to exhaust her administrative remedies.
Workplace Trends
Background
EEOC says leave may be a
viable accommodation under
the ADA .................................. 4
Agency Action
Survey finds employers
blame smartphones for lost
productivity ........................... 6
What’s Online
Podcast
Enacting change in a
dysfunctional workplace
http://ow.ly/yXRl301I608
FMLA
15 tactics to prevent employee
FMLA abuse
http://ow.ly/Xrmn301Yvag
Hiring
Tips for improving hiring
process, fixing mistakes
http://bit.ly/1Pk3ZPw
Find Attorneys
To find the ECN attorneys for
all 50 states, visit
www.employerscounsel.net
Susan Frymoyer began working for
the city of Reading as a part-time employee in March 2007 and became a fulltime city employee in March 2008. She
alleged that in 2007, she informed her
supervisor that she suffers from various
ailments that require her to take many
prescription medications. She claimed
she had to miss work occasionally because of neck and back issues as well as
work-related stress.
During her employment, Frymoyer
complained to the managing director about her work-related stress and
requested, as an accommodation, that
the stress levels in her department be
lowered. The managing director spoke
to the finance director about lowering
stress levels, but there was no change.
In January 2015, a union representative and the city HR manager asked Frymoyer to leave her department, which
she refused to do. In February 2015, the
city began requiring clerical staff to pass
a typing test, which Frymoyer claimed
was an attempt to “get rid of the old
timers.”
Frymoyer’s position was eventually
eliminated, and when she attempted to
“bump” into another position, she was
required to pass a typing test. She refused to take the typing test and was
terminated on February 13, 2015.
Frymoyer brought claims under
the Rehabilitation Act of 1973, the Age
Discrimination in Employment Act
(ADEA), the Pennsylvania Human Relations Act (PHRA), and the Older Workers Benefit Protection Act (OWBPA)
against the city of Reading, city representatives individually, the union, and
union representatives individually.
Court’s analysis
Claims against city. The city sought
to dismiss Frymoyer’s PHRA claims
against the city employees/officials in
their individual capacity. Only supervisory employees can be held liable for
aiding and abetting an employer’s violation of the PHRA. The court dismissed
the PHRA claim because Frymoyer’s
complaint contained no allegation that
the city employees were supervisory
employees or that they had supervisory
authority over her.
Next, the court granted the city’s
motion to strike Frymoyer’s allegation
Saul Ewing LLP
is a member of the Employers Counsel Network
Pennsylvania Employment Law Letter
involving an ongoing FBI investigation of the mayor. The
court agreed that the FBI’s investigation had no essential
relationship to her claim for relief and might prejudice,
or harm, the mayor.
Claims against union. The union sought to dismiss
Frymoyer’s ADEA and PHRA claims because she failed
to exhaust her administrative remedies. An employee
must exhaust all required administrative remedies before bringing a claim for judicial relief. To bring a claim
under the ADEA, an employee must file a charge of discrimination with the EEOC and procure a right-to-sue
notice. To bring a claim under the PHRA, an employee
must file a charge with the Pennsylvania Human Relations Commission (PHRC).
A review of Frymoyer’s EEOC charge clearly showed
that it was aimed only at the city of Reading. She argued
that her intake questionnaire mentioned a union representative, but the court stated that the operative document for identifying defendants is the formal charge, not
the intake questionnaire.
There is an exception to that general rule when
an unnamed respondent receives notice of the charge
and shares a commonality of interest with the named
party. Here, there was no indication that the union ever
received notice of the charge against the city. Further, the
city and the union didn’t have a commonality of interest.
Frymoyer therefore failed to exhaust her administrative remedies against the union, and the court lacked jurisdiction over the ADEA and PHRA claims as a result.
As for Frymoyer’s Rehabilitation Act and OWBPA
claims, it appears that she conceded that they should be
dismissed.
OCCUPATIONAL SAFETY
Bottom line
An employee must exhaust all of her administrative
remedies before she brings a claim for judicial relief. She
has exhausted her administrative remedies only if the
EEOC charge is directed at the employer or if the employer receives notice of the charge and has a commonality of interest with the named party. Courts will not
relax this rule, even in cases where an employee represents herself.
The author can be reached at [email protected] or 215972-7548. D
TAXES
abs, term, setagr, fmla, taxes, wages, comp, err, wpd
Pennsylvania court: FMLA
settlement proceeds not subject
to federal tax withholding
by Gregory J. Wartman
A Pennsylvania federal court has ruled that an employer
doesn’t have to withhold federal payroll taxes from a settlement
payment resolving a discrimination claim under the Family and Medical Leave Act (FMLA). The court reasoned that
because the FMLA settlement proceeds weren’t wages, they
weren’t subject to federal withholdings.
Background
In 2006, Vincent Gunter began working as a millwright for Cambridge-Lee Industries, LLC (CLI). In
2013, CLI terminated him after a dispute over his absence from work because of a medical condition. Gunter
jri, empde, osha, safety, ppe
OSHA seeks to improve safety on construction sites
by Gregory J. Wartman
In July 2016, the U.S. Department of Labor’s (DOL)
Occupational Safety and Health Administration (OSHA)
urged construction companies to increase safety on jobsites in the wake of a spike in workplace accidents. Since
June 13, 2016, five workplace accidents resulting in death
or injury have occurred in the Philadelphia area. OSHA
reported that in each of those cases, proper fall protection wasn’t provided. According to OSHA, this issue is
part of a larger problem.
Forty percent of all fatalities that OSHA’s Philadelphia Area Office has investigated since October 1, 2015,
were caused by falls. The Philadelphia Area Office director, Nicholas DeJesse, noted that “falls are the leading
cause of death in the construction industry, and the use
of proper fall protection can be the difference between
2
death and workers going home to their families. We at
OSHA cannot—and will not—tolerate employers who
jeopardize worker safety.”
To raise awareness and improve safety, OSHA has
partnered with Philadelphia Licenses and Inspections
and the Philadelphia Project on Occupational Safety and
Health to launch a safety awareness campaign called
“Grassroots Injury-Illness Prevention.” The goal is to conduct several forums with employers, workers, unions, and
safety advocates to develop a “collaborative approach to
address construction site health and safety issues.”
It is anticipated that in addition to that proactive initiative, OSHA will step up its enforcement efforts to address this safety issue if violations continue to occur.
The author can be reached at [email protected]
or 215-972-7548. D
August 2016
Pennsylvania Employment Law Letter
alleged that he had attempted to take family and medical leave, but CLI frustrated those efforts and terminated
him as a result of his leave request. He filed a lawsuit
against CLI asserting a claim for discrimination under
the FMLA, among other things.
The parties reached a settlement but couldn’t agree
on whether the settlement proceeds should be reported
to the IRS as wages on a W-2 or as Form 1099 income.
In June 2016, Gunter filed a motion to enforce the settlement in a Pennsylvania federal court. He took the position that the settlement proceeds weren’t wages, didn’t
need to be reported to the IRS on a W-2, and shouldn’t
have taxes withheld from them. CLI countered that the
settlement amount constituted wages that it was obligated to report to the IRS and reduce by the appropriate
amount of taxes.
Court’s analysis
The court agreed with Gunter, ruling that the settlement proceeds of his FMLA claim weren’t wages that
the employer needed to report to the IRS or withhold
taxes and other payroll deductions from. While there
have been several unpublished decisions on the issue
(which the court didn’t have to follow), there hasn’t been
a published decision in the U.S. 3rd Circuit Court of Appeals (whose rulings apply to all Pennsylvania employers) addressing the taxability of FMLA settlements. Nevertheless, the court reviewed two lines of unpublished
federal court decisions.
The first line of cases follows the reasoning of
Churchill v. Star Enterprises, in which the judge held that
the FMLA requires the performance of services in order
for any payment to constitute wages for withholding
purposes. The judge ruled that IRS regulations suggesting a different result contradict the FMLA and are not
enforceable. The second line of cases follows the reasoning of Cheetham v. CSX Transportation, in which the court
invited the IRS to offer its position on the issue. The
IRS took the position that an FMLA award constitutes
wages. The court agreed, ruling that the FMLA award
was wages because the damages awarded equaled the
amount of wages the employee lost. The court didn’t examine the IRS regulations in its opinion.
In Gunter’s case, the court agreed with the Churchill
line of cases, finding “their emphasis on the unique language of the FMLA persuasive.” Accordingly, the court
ruled that taxes and other payroll deductions didn’t
need to be withheld from the settlement payment, and
the settlement amount didn’t have to be reported to the
IRS as wages.
Bottom line
This case highlights the split among the courts over
whether settlements of FMLA claims constitute wages
that you must report to the IRS and from which you
must withhold wage taxes. The court’s decision provides
August 2016
guidance on the appropriate treatment of such settlements for the time being. However, the final answer is
still unknown because the 3rd Circuit and the U.S. Supreme Court haven’t addressed the issue yet.
The author can be reached at [email protected] or
215-972-7548. D
TRADE SECRETS
FED, ts, conf, utsa, wb, ic
DTSA provides additional
intellectual property protection
The recently enacted federal Defend Trade Secrets Act
(DTSA) was intended to provide some uniformity and predictability to businesses’ protection of their valuable trade secrets.
However, before taking full advantage of the law’s new protections, companies have some policy actions to take.
Is it secret? Is it safe?
Trade secrets consist of any number of things—
formulas, recipes, patterns, programs, manufacturing
processes, sales methods, advertising techniques, client
lists—that keep your business unique and competitive.
Essentially, any valuable business information that isn’t
generally known and your company makes reasonable
efforts to keep confidential could be a protectable trade
secret.
Trade secrets differ from other forms of intellectual
property in that there is no time-based limit on how long
a trade secret is protected. Prudent businesses will combine the best efforts of security, need-to-know exposure,
and contractual protection (nondisclosure agreements,
for example) to preserve the confidentiality of any trade
secrets.
If a trade secret is acquired through improper means
or disclosure, then the business may have a legal claim
against both the party who acquired the secret and, if
applicable, the party who wrongly disclosed the secret.
Even if the trade secret itself can no longer be protected,
the business may be able to recover damages, profits,
and royalties.
UTSA: Uniform in theory
but not in practice
These claims have traditionally risen under the Uniform Trade Secrets Act (UTSA), which has been adopted
by (and remains effective in) nearly all of the states. Yet
despite the UTSA’s very goal of providing a uniform system of trade secret protection through its common definitions, standards, and remedies, the intricacies and interplay of state laws and judicial interpretation led to an
inconsistent patchwork of trade secret protection. This is
where the DTSA comes in.
3
Pennsylvania Employment Law Letter
Most simply, the DTSA now creates a federal claim for
misappropriation of trade secrets. Thus, businesses will
now have an alternative and, arguably, more consistent
path to recover damages for trade secret violations. This
will be particularly valuable to multistate organizations.
Meanwhile, note that the DTSA doesn’t preempt or
overturn existing state laws or the UTSA, so businesses
also will still have access to those remedies in the event
they are more favorable.
Whistleblower immunity
and notice requirement
To take full advantage of the DTSA’s remedies, there
is one notice requirement to which businesses must
pay attention. While protection of trade secrets is of significant importance, so is protection of whistleblowers.
Therefore, the DTSA provides immunity to employees
and individual contractors who disclose trade secret information as part of whistleblowing activity.
Specifically, the DTSA protects disclosures made “in
confidence to a federal, state, or local government official or . . . attorney” when made “solely for the purpose
of reporting or investigating a suspected violation of
law.” The Act also protects sealed disclosures made in a
complaint or other document filed in a lawsuit or other
proceeding.
Going forward, employees and individual contractors must be given notice of this whistleblower protection in any contracts or policy documents related to
trade secret protection. Businesses that fail to provide
this notice will not be actively penalized and will still be
able to file claims under the DTSA. However, those businesses’ recovery under the Act will be limited in that it
won’t include attorneys’ fees or punitive (up to double)
damages from any employee or contractor to whom the
notice wasn’t provided.
Bottom line
Whether the DTSA requires action in your company will depend on how heavily your business relies
on trade secrets (and their protection), your states of operation, and whether the legal precedent in those states
provides stable, consistent protection of and remedies
for trade secret misappropriation.
REASONABLE ACCOMMODATIONS
FED, ada, hcra, eeoc, dh, leave of absence, fmla, pp
EEOC to employers:
Leave time an important
ADA accommodation
Employees with conditions that cause them to take time
away from work sometimes exhaust available leave before
they’re able to return to the job. When that happens, employers
may think they have no choice but to replace the workers and
bring on others who can do the job. But the Equal Employment
Opportunity Commission (EEOC) wants employers to understand that the law may require them to offer more time off to
workers with conditions that put them under the protection
of the Americans with Disabilities Act (ADA). In such cases,
employers need to keep in mind that extra leave time is often
an accommodation that enables employees with disabilities to
eventually return to work.
New guidance spells out requirements
In May 2016, the EEOC issued new guidance to
clarify employer responsibilities under the ADA. The
guidance creates no new agency policy but was issued
because of the number of ADA charges the EEOC receives showing that employers often deny or unlawfully
restrict the use of leave as a reasonable accommodation.
The ADA requires employers to grant accommodations to employees with disabilities up to the point of
undue hardship. A reasonable accommodation generally is “any change in the work environment or in the
way things are customarily done that enables an individual with a disability to enjoy equal employment
opportunities.”
The introduction to the new EEOC guidance points
out that “some employers may not know that they may
have to modify policies that limit the amount of leave
employees can take when an employee needs additional
leave as a reasonable accommodation.”
The guidance brings up several points, including:
For many businesses, it may be simpler to add the
above-referenced notice to any newly drafted or revised
employee agreements or policies related to trade secret
protection since that at least offers the chance for full recovery, including attorneys’ fees and punitive damages,
under either the federal or state laws.
• The importance the EEOC places on leave as an
accommodation. The fact that the agency issued a
guidance even though it hasn’t created a new policy
indicates that it places high importance on leave as
an accommodation. In announcing the guidance,
the agency labeled the prevalence of employer policies restricting leave as an accommodation for disability a “troubling trend.” The EEOC’s announcement said overly restrictive policies “often serve as
systemic barriers to the employment of workers
with disabilities,” barriers that may cause the termination of workers who could have returned to work.
Regardless of which law provides the best remedy,
businesses must still maintain diligent efforts to protect
their trade secrets from breach, discovery, or disclosure. D
• The need for employers to sometimes change how
they customarily do things. The guidance makes
clear that employers can’t rely on their normal
4
August 2016
Pennsylvania Employment Law Letter
policies as reasons to deny leave if an employee’s condition
constitutes a disability as defined in the ADA. If an employee with a disabling condition requests leave as a reasonable accommodation, the leave may need to be granted
as long as it doesn’t present an undue hardship for the employer. So even if an employer doesn’t normally offer leave
as a benefit, the employee is ineligible for leave, or the employee has used up all available leave, the employer must
still consider leave as a way to accommodate the employee’s
disability. You aren’t obligated to offer paid leave, and the
ADA doesn’t require you to allow accommodations that create an undue hardship for you.
• The importance of the interactive process. The guidance
points out that an employee’s need for leave related to a
medical condition often can be addressed through an employer’s leave program, the federal Family and Medical
Leave Act (FMLA) or a similar state or local law, or through
the workers’ compensation program. But if no leave is available through those or any other program, the employer
“should promptly engage in an ‘interactive process’ with
the employee—a process designed to enable the employer
to obtain relevant information to determine the feasibility of
providing the leave as a reasonable accommodation without
causing an undue hardship,” the guidance states.
The guidance also says that the interaction between the employer and employee should focus on the specific reasons
the employee needs leave, whether the leave will be a block
of time or intermittent, and when the need for leave will
end.
Employer cautions
The new guidance addresses how employers with maximum leave and “100 percent healed” policies can run afoul of
the ADA. The guidance stresses that the ADA requires employers to sometimes make exceptions to leave policies. Often, employers have maximum leave policies that place a flat limit on
the amount of leave an employee can take. When that time is
exhausted, too often employers think they can terminate the
employee, but that’s not necessarily the case, according to the
EEOC.
“Employees with disabilities are not exempt from these
policies as a general rule,” the guidance states. “However, such
policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can
show that doing so would cause undue hardship.”
Some employers require employees to be 100 percent healed
before returning to work, but the guidance points out that an
employer will violate the ADA if it requires an employee whose
condition constitutes a disability to have no medical restrictions
if the employee can perform the job with a reasonable accommodation, unless the employer can show that accommodating
the employee would cause an undue hardship.
The new guidance, titled “Employer-Provided Leave and
the Americans with Disabilities Act,” is available at www.eeoc.
gov/eeoc/publications/ada-leave.cfm. D
August 2016
AGENCY ACTION
Task force urges “reboot” of harassment prevention. A task force headed by two commissioners of the Equal Employment Opportunity Commission (EEOC) is calling for a “reboot” of workplace
harassment prevention efforts after 14 months of
studying workplace harassment. In reviewing the
findings for their fellow commissioners, EEOC commissioners Chai R. Feldblum and Victoria A. Lipnic
said that too much of the effort to prevent workplace harassment has been ineffective and focused
on simply avoiding legal liability. It also says almost
one-third of the roughly 90,000 charges filed with
the EEOC in fiscal year 2015 included an allegation
of harassment. The report urges employers to explore new types of training to prevent harassment,
including workplace civility and bystander intervention training. The report also includes a chart
of risk factors that may permit harassment to occur,
effective policies and procedures to reduce and
eliminate harassment, recommendations for future
research and funding, and targeted outreach. It also
offers a toolkit of compliance assistance measures
for employers and other stakeholders.
EEOC offers sample notice on wellness programs. The EEOC has posted a sample notice to
help employers that have wellness programs comply with their obligations under a recently issued
Americans with Disabilities Act (ADA) rule. The notice is available at www.eeoc.gov/laws/regulations/
ada-wellness-notice.cfm. The rule says that employer wellness programs that ask employees about
their medical conditions or that ask employees to
take medical examinations (such as tests to detect
high blood pressure, high cholesterol, or diabetes)
must ensure that the programs are reasonably designed to promote health and prevent disease, that
they are voluntary, and that employee medical
information is kept confidential. A question-and-­
answer document describing the notice requirement and how to use the sample notice is available
at www.eeoc.gov/laws/regulations/qanda-ada-­
wellness-notice.cfm.
DOL, Virginia sign agreement on misclassification. The U.S. Department of Labor (DOL) announced in June that it has signed an agreement
with the Virginia Employment Commission aimed
at preventing misclassification of workers as independent contractors or other nonemployee statuses. The three-year memorandum of understanding says that the two agencies will provide outreach
to employers and employees, share resources,
and enhance enforcement by conducting coordinated investigations and sharing information. The
DOL and the IRS are working with Virginia and 30
states as part of an initiative to combat employee
misclassification. D
5
Pennsylvania Employment Law Letter
WORKPLACE TRENDS
Survey shows employer love-hate relationship with smartphones. A new survey from CareerBuilder shows that smartphones help workers
stay connected to work, but they’re also blamed
for lost productivity. The survey shows that 19% of
employers think workers are productive less than
five hours a day, and 55% say that workers’ mobile
phones/texting are to blame. The national survey
conducted online by Harris Poll on behalf of CareerBuilder included 2,186 hiring managers and HR
professionals and 3,031 full-time U.S. workers in
the private sector across industries and company
sizes. The survey found 83% of the workers have
smartphones, and 82% keep them within eye contact at work. While just 10% of those with smartphones say their phones decrease their productivity at work, 66% say they use their phones at least
several times a day while working.
Playing politics at work seen as necessary to
get ahead. Eighty percent of professionals participating in a survey by staffing firm Accountemps say
office politics play a major role in the workplace.
Just 14% said participating in office politics isn’t
necessary to get ahead, compared to 42% in a 2012
survey. Twenty-eight percent said “politicking” is
very necessary for career advancement, up from
15% in 2012. Fifty-five percent said they take part
in office politics, with 16% describing themselves
as “active campaigners” and 39% self-identifying
as “occasional voters.” Respondents said the most
common forms of office politics are gossip (46%)
and gaining favor by flattering the boss (28%).
Casual dress gaining ground for office attire.
Research from staffing firm OfficeTeam shows that
half of senior managers participating in the study
said employees wear less formal clothing than they
did five years ago. Also, 31% of office workers
stated they would prefer to be at a company with
a business casual dress code, and 27% favor a casual dress code or no dress code at all. When asked
about the most common dress code violation, 47%
of senior managers said dressing too casually, 32%
said showing too much skin, 6% said having visible
tattoos or piercings, 5% said having ungroomed
facial hair, 4% said wearing excessive accessories,
3% said having extreme hair colors/styles, and 3%
said they didn’t know or had no answer. “Employees should take their cues from company guidelines and what others in the office are wearing,”
Brandi Britton, a district president for OfficeTeam
said. “Some industries, for example, are more formal than others. A casual dress code doesn’t mean
that anything goes.” D
6
DISABILITY DISCRIMINATION
borrowed from MAEMP, July 2016, record #XXXXXX
Employees’ food allergies
are nothing to sneeze at!
Navigating the ins and outs of your obligations under the Americans with Disabilities Act (ADA) and similar state laws can be a challenge for even the most seasoned HR professional. One situation that
may be familiar to you is having an employee with food allergies. According to the Asthma and Allergy Foundation of America, about 15
million people in the United States suffer from food allergies, and that
number is steadily increasing. Allergies are not only miserable for the
sufferer, but they can also hurt an employer’s bottom line: It’s estimated
that employees miss about four million workdays per year as a result
of allergies.
Depending on their severity, food allergies may be covered by the
ADA or similar state laws. To avoid employee complaints, lost productivity, excessive absences, and the risk of a lawsuit, it’s important to
have a plan in place to address requests for accommodations based on
food allergies.
Wait—is ‘food allergy’ a
new protected characteristic?
Last October, the Equal Employment Opportunity Commission (EEOC) filed suit against Media Star Promotions on
behalf of a former employee who has food allergies. The EEOC
alleged that Media Star violated the ADA by refusing to grant
Amanda Matherly an accommodation for her severe allergies to
peanuts and tree nuts.
Under the ADA, “disability” is defined as a “physical or
mental impairment that substantially limits one or more major
life activities.” Food allergies can easily fall into that category
because individuals with food allergies typically suffer from
physical impairments that may substantially limit at least two
“major life activities”: their ability to eat and to breathe.
Matherly worked as a field representative for Media Star.
Her primary duty was to travel to outdoor festivals to distribute free product samples and gather customers’ contact information. As an accommodation for her allergies, she requested
that Media Star provide her with vinyl gloves to use when she
handled food samples that may have been contaminated with
peanut or other nut dust. She also requested that Media Star
alert hotels and airlines about her allergies when her job required her to travel.
Matherly alleged that Media Star refused to grant her accommodation requests and instead asked her to sign a waiver
of her rights under the ADA. The case is currently still pending. However, it’s a good reminder that food allergies fit very
comfortably within the definition of “disability” under the
ADA, and employers should therefore anticipate that employees may request accommodations related to their allergies. The
case also serves as a warning for employers that might not take
food allergies seriously: Failing to accommodate a qualified
employee with a disability can have serious consequences.
August 2016
Pennsylvania Employment Law Letter
In a much stranger but equally viable case, a former employee sued the restaurant chain Panera, alleging that it violated
Title VII of the Civil Rights Act of 1964 by condoning harassment against him based on his food allergies. Dustin Maldonado filed suit in November 2015, alleging that his manager and
coworkers created a hostile work environment and harassed
him because of his allergies.
Maldonado alleged that his manager and coworkers taunted
him about his allergies, intentionally exposed him to peanuts,
tricked him into eating nut-laced food items, and teased him
that his EpiPen® would spread AIDS. For example, his manager
left peanut butter outside his office as a “prank” on Maldonado.
Another time, the manager allegedly told Maldonado that his
coworkers had made dinner for him and then placed peanutbutter-filled candies into his uncovered hands, causing an allergic reaction.
After the last incident, Maldonado filed a formal complaint
with Panera’s HR department. The HR representative allegedly
told him that he should have a better sense of humor about the
situation. Again, liability in this case has yet to be determined,
but it’s another good reminder that food allergies, if they rise
to the level of a disability, can form the basis of both Title VII
claims and ADA claims. Regardless of which claim an employee selects, your company may be exposed to significant financial liability.
Do I have to accommodate?
Once an employee has alerted management that he has a
food allergy, you must treat the situation seriously. If the employee is seeking accommodations because of the allergy, you
should treat him the same way you would treat any other potentially disabled employee and follow your ADA protocol. You
have a legal duty to accommodate an employee with a disability
unless you can show that doing so would constitute an “undue
hardship.”
You are entitled to request documentation of the medical
c­ ondition that is creating the problem before grant­ing an accommodation, although it’s sometimes advisable to grant a requested accommodation pending verification of the medical
condition by the employee’s treating physician. If medical documentation shows that the employee in fact suffers from a disabling condition, you need to engage in the interactive process
and consider accommodations that would allow her to perform
the essential functions of her job. If there are no such accommodations, then she simply isn’t qualified for her position.
However, you shouldn’t simply dismiss a request for accommodation as unreasonable until you’ve fully explored whether
it would be possible. Remember, showing that an accommodation is unreasonable because it would impose an undue hardship is a very tough task.
What type of accommodations?
Although employers have a legal duty to accommodate
employees with food allergies, actually implementing an
August 2016
UNION ACTIVITY
AFL-CIO leaders speak out against Boeing.
AFL-CIO President Richard Trumka and Edward
Wytkind, president of the Transportation Trades
Department of the AFL-CIO, spoke out in June
against Boeing’s efforts to avoid unionization at its
South Carolina operation. The International Association of Machinists and Aerospace Workers (IAM)
has been trying to organize the plant. Trumka and
Wytkind’s statement says the entire labor movement opposes Norwegian Air International’s (NAI)
entry into the U.S. market, and the union leaders
say Boeing claims that IAM’s opposition to NAI
jeopardizes aerospace jobs. Unions claim NAI undermines labor standards and collective bargaining
rights in violation of the transport agreement between the United States and the European Union.
UAW official says Volkswagen reneged on
recognizing union. A United Auto Workers (UAW)
official claimed in June that Volkswagen officials
went back on an agreement to recognize the union
as the bargaining agent of the company’s Chattanooga, Tennessee, plant. Gary Casteel, the UAW’s
secretary-treasurer, released a 2014 document stating that Volkswagen would recognize the UAW in
exchange for the union dropping a challenge to the
outcome of an earlier union election. But a company spokesperson in Chattanooga was quoted in
an Associated Press report that the company has
“no contract with the UAW.” He said the company
has an agreement to formalize meetings between
worker representatives and management, but it
doesn’t include collective bargaining.
Union leaders promote labor movement
at White House summit. Union leaders used the
White House’s United State of Women Summit in
June to promote unionization. “In 2016, women
are rising to the top in every field and industry and
breaking down boundaries that held former generations back,” AFL-CIO Secretary-Treasurer Liz Shuler
said. “There is no denying progress has been made,
but being a working woman still comes with enormous challenges. Our paychecks remain unequal
and many of us lack a single day of paid leave.
Work schedules are equal parts unpredictable
and inflexible, and we too often face discrimination on the job.” Shuler and others said organizing for and joining unions can produce progress.
“When unions are strong, women are strong,” she
said. A statement from the Teamsters union said the
median wage for a working union woman in the
United States is 92 cents for every dollar in a median working man’s wage, compared to 80 cents
on the dollar for all working women. Ariana Davis,
a member of Seattle United Food and Commercial
Workers Local 21, stressed the importance of equal
pay for equal work. “Equal pay, fair schedules, paid
leave—the bottom line is that if we stand together
and negotiate together, we win together,” Davis
said. D
7
TRAINING CALENDAR
Call customer service at 800-274-6774
or visit us at the websites listed below.
ADVANCED EMPLOYMENT ISSUES
SYMPOSIUM
http://aeisonline.com
Las Vegas, November 9-11
A nut-free workplace policy may seem like the easiest solution, but it isn’t necessarily required by law. In cases involving
employees’ allergies to fragrances, courts have deemed a total
ban on perfumes and other fragrances overly burdensome. An
“allergen-free” policy with periodic reminders to employees and
proper maintenance of the air filtration system were found to
be sufficient. In other cases involving scent sensitivities, courts
have found that moving the affected employee to an area where
her allergies are triggered less frequently can be a reasonable
accommodation.
BLR LEARNINGCON 2016:
Train. Engage. Empower.
Las Vegas, November 9-11
http://store.HRhero.com/learning-techconference
FULL-DAY WEB SEMINARS
http://store.HRhero.com/events/virtualconferences/dol-final-ot-rules-082516
9-13
accommodation is an entirely different story. Several thorny issues are bound to pop up: Can employees bring peanut butter
sandwiches to work for lunch? Should the workplace be nutfree? Do employees with allergies need their own fridge? While
those concerns are valid, there’s very little case law to guide
an employer seeking to accommodate an employee with food
allergies.
Job Descriptions: How to Tackle Tricky
Drafting Hurdles to Maximize Compliance
and Effectiveness
WEBINARS & AUDIO SEMINARS
Visit http://store.HRHero.com/events/audioconferences-webinars for upcoming seminars
and registration
8-29 HR Recordkeeping Rules 2016: Compliant
Best Practices for What to Keep and What
to Toss
8-30 EEO-1 Reporting Deadline: HR’s Stepby-Step Guide to Ensuring Compliance Webinar Series
8-30 How to Design Incentive Plans and
Communicate Effectively about Them to
Align with Organizational Goals
8-31 Creating a Harassment-Free Workplace:
How to ‘Reboot’ Your Existing Training
Strategy to Align with New EEOC
Recommendations
No matter what type of accommodation ultimately works for
you and your employee, remember that under the ADA, you are
required to engage in an interactive dialogue with the employee
about requested accommodations, including whether they are
reasonable and whether they can be successfully implemented.
As always, be sure to consult with your labor and employment
counsel about the facts of your particular situation.
Bottom line
You can proactively make your work environment more welcoming for workers with food allergies by conducting training
on the risks associated with food allergies and helping employees recognize the signs of an allergic reaction. Consider posting
sign­age in kitchen areas and providing disposable plates, cups,
and utensils for use by employees with allergies. And always be
sure to take food allergies into account when you’re planning
company functions and events. D
8-31 Electronic Recordkeeping in California:
What to Save, What to Delete, and When
to Move to E-Recordkeeping
8-31 Leadership Development for Women:
How to Facilitate the Path to Strategic
Success
9-1
Achieving Organizational Alignment in the
VUCA World: How HR Business Leaders
Can Evaluate and Masterfully Respond to
Areas Impacted by Change D
PENNSYLVANIA EMPLOYMENT LAW LETTER
(ISSN 1052-4363) is published monthly for $447
per year by BLR ®—Business & Legal Resources,
100 Winners Circle, Suite 300, P.O. Box 5094,
Brentwood, TN 37024-5094. Copyright 2016 BLR®.
Photocopying or reproducing in any form in whole
or in part is a violation of federal copyright law and
is strictly prohibited without the publisher’s consent.
Editorial inquiries should be directed to Gregory
J. Wartman, Saul Ewing LLP, Centre Square West,
CONTRIBUTORS: Gregory J. Wartman, Brittany Medio
1500 Market St., 38th Fl., Philadelphia, PA 191022186 215-972-7548.
PENNSYLVANIA EMPLOYMENT LAW LETTER
does not attempt to offer solutions to individual
problems but rather to provide information about
current develop­ments in Pennsylvania employment
law. Questions about individual problems should be
addressed to the employment law attorney of your
choice. Pennsylvania does not certify spe­cialists in
labor and employment law, and we do not claim
certification in this area.
For questions concerning your subscription or
Corporate Multi-User Accounts, contact your
customer service rep­re­sentative at 800-274-6774 or
[email protected].