Southern California Employment Law Report : Los Angeles Employment Lawyer & Attorney : Diane Crumpacker : Crumpacker Law Group : Discrimination, Disability

Employers are inundated daily with questions about the H1N1 pandemic.  The Centers for Disease Control and Prevention reported at least 27 states with widespread influenza activity and that number is growing daily.  Adding to the panic, the CDC has recently stated that this type of widespread influenza activity in September is extremely unusual.

In recognition of the fact that a widespread outbreak of the flu is likely to wreak havoc in the workplace, the Equal Employment Opportunity Commission ("EEOC") has published new technical guidelines which remind employers of the obligations imposed on them by the Americans witih Disabilities Act when they plan for the pandemic.  This publication is known as "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act"

The EEOC has provided employers with the following guidelines:

• Employers may ask employees whether they have symptoms of a cold or the seasonal flu because this is not a disabiliti related inquiry;
• Employers may use an ADA-compliant pre-oandemic employee sample survey for employers which the EEOC has prepared.  This survey combines medical and non-medical questions about whether an employee can come to work during a pandemic.  The goal is to asisst the employer iin planning in the event the pandemic materializes.  The goal is also to insulate the employer from obtaining iinformation about chronic diseases its employees may have;
• Employers may send employees home if they have flu-like symptoms;
• If H1N1 becomes widespread in a community as determined by state and local authorities or the CDC, employers may be able to require that an employee's temperature be taken.  Currently, taking an employee's temperature is a medical exam which must be justified by being job-related and consistent with business necessity.  While pandemic flu symptoms might meet this standard if they become more severe than the usual seasonal flu, employers will need to be remain cautious about imposing requirements which might be construed to be medical exams;
• If the pandemic flu remains similar in severity to seasonal flu or the H1N1 outbreak last summer, employers may not ask employees who don't haave symptoms of H1N1 to disclose whether they have a medical condition that could make them particularly vulnerable to flu complications;
• Employers may require employees to adopt infection control practices in the workplace:
• Employers should encourage, rather than require employees to get the seasonal and H1N1 vaccines.  Any employee may be entitled to an exemption from a mandatory vaccination requirement based on ADA disability which prevents the employee from taking the exam.  In additon, employees may have religious discrimination arguments if they have sincerely held beliefs which prevent the taking of the vaccine;
• During a pandemic, an employer may ask an employee why he or she has been absent from work if the employer suspects the reason is medical;
• Employers may require employees who have been away from work during a pandemic to provide a doctor's note certifying their fitness to return to work.  This may prove practically difficult to obtain, however, as the number of sick individuals stream into doctor's offices. 

In summary, the EEOC guidelines should prove helpful lin the event the H1N1 materializes in the manner in which many health care professionals predict.  Nevertheless, many situations will require careful analysis and consultation to insure that the mandates of the disability laws are not overlooked.

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A recent survey commissioned by Career Builder found that up to forty-five percent of employers use popular social networking sites to screen potential job candidates.  This is a huge jump from a similar survey last year which revealed that only twenty two percent utilized such sites.  An additional eleven percent of employers surveyed said that they intended to start using social networking sites to research applicants.  As these sites grow in popularity, it will be increasingly important for potential employees to use caution in deciding what to include on their sites.

Of those employers surveyed, twenty-nine percent reported using Facebook, 26 percent used LinkedIn and 21 percent used MySpace.  Ten percent search blogs while seven percent utilize Twitter.

Not surprisingly, the industries most likely to use social networking sites to screen candidates included those in the Information Technology (63% used the sites) and Professional and Business Services (53% reported using the sites).

When questioned about the types of postings which resulted in a decision not to hire a candidate, the survey revealed the following:

• applicant posted provocative photos or content
• applicant posted content about drug use or drinking
• applicant criticized a previous employer, coworkers or clients
• applicant exhibited poor communication skills
• applicant made discriminatory comments
• applicant lied about their qualifications
• applicant shared confidential information learned from a former employer.

It is not all bad news for compulsive Facebookers.  In fact many employers reported that they found content on social networking sites which caused them to hire a candidate.  The types of postings which resulted in a decision to hire included

• The social profile provided a good feel for the candidate’s personality and fit – 50% 
• The profile supported the candidate’s professional qualifications – 39% 
• The candidate was creative – 38% 
• The candidate showed solid communication skills – 35% 
• The candidate was well rounded – 33% 
• Other people posted good references about the candidate – 19%
• Candidate received awards and accolades – 15% 

As a general rule, employers are well advised to use all tools available to screen applicants as one bad hire can be extremely costly.   Research gleaned from these social networking sites can provide valuable insight into a candidate which may not be readily apparent from a resume, application or even an in-person interview.

The potential risk to an employer who relies on what they see on a site to refuse to hire a candidate has yet to be tested in the courts. It is conceivable that an unsuccessful applicant could claim that they had a right to privacy in what they did outside of work and the employer violated that right by penalizing them for the way they lived their private lives. Such a challenge is unlikely to succeed since posting things in the public domain pretty much destroys any right to privacy the applicant might have and unless the content on the site which results in a no-hire is found to be discriminatory against some protected class, the challenge should fail. 

Employers are generally free to develop whatever criteria they find appropriate for a job as long as the criteria don’t discriminate directly against protected categories of employees nor have a discriminatory impact on such categories. None of the above examples are likely to fall into either of these exceptions.

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Many employers use confidentiality agreements in order to protect the trade secrets which they have developed at great expense.  In many of those agreements, companies include non-solicitation clauses to prevent exiting employees from poaching existing customers and coworkers when they leave. A subject of much controversy of late is whether those non-solicitation provisions are valid or are unenforceable under California’s unfair competition law. A recent case has taken on that issue.

California Business and Professions Code Section 16600 sets for the state’s statute regarding unfair competition. In a recent court of appeal decision entitled Retirement Group v. Galante, an employer sued a number of its former employees both for taking its trade secrets and for violating a no-solicitation of customers clause in the confidentiality agreement which they all signed. The Galante court found that that contractual agreements not to solicit customers are not enforceable under California's unfair competition law.

In ruling against the employer the Galante court found that if a former employer misappropriates trade secrets, the former employee may be stopped or “enjoined” in legal parlance, from using those trade secrets. However, it also ruled that no court can enforce a no-solicitation clause just because it is in the agreement.

Galante stands for the proposition that the unfair competition law prevents a court from enjoining a contractual clause that bans an ex-employee from soliciting former customers but may enjoin conduct which would independently violate the Business and Professions Code.  In other words, the conduct can be stopped because it is wrongful, independent of  any contractual promise by the employee.

The message for employers is that  a non-solicitation agreement would now appear to be legally unnecessary to create substantive rights because the Trade Secret Act does not require such an agreement for an employer to come within its provisions. Nevertheless, because a non-solicitation clause, which is typically included in a confidentiality agreement, may be part of the evidence showing that the employer takes reasonable measures to maintain the secrecy of trade secrets. It remains to be determined by the courts whether employees will be able to successfully attack confidentiality agreements which include no-solicitation provisions on the grounds that they are overly broad and thus inherently unfair.

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As social networking among employees becomes second nature, employers are increasingly confronted with a difficult dilemma?  What to do with the employee who the employer learns has posted a derogatory and potentially damaging post on the employee's Facebook, Twitter or other social networking page?

In a recent report on CNNMoney.com, a 22 year old candidate for a position with Cisco who was pursuing her master's degree in information management and systems at Berkeley, posted on the micro-blogging site, Twitter.  She wrote: "Cisco offered me a job!  Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work."  A managerial employee saw the post and responded with the tweet :  "Who is the hiring manager?  I'm sure they would love to know that you will hate the work.  We here at Cisco are versed in the Web."  While the applicant apologized on her personal blog, explaining that she was merely being sarcastic and had already rejected the offer, the issue is front and center in the minds of employees, applicants and employers alike.  How safe are you on in the social media arena?

Although there is very little in the way of guidance in the law yet as social media has only recently exploded, the answer is fairly clear from decisions in other similar areas of employment law.  You are not safe at all.  If you post something in such a public arena, assume it will be read by everyone, including your employer and  be prepared to accept the consequences. Employees have no right to privacy on things they post in the public domain. Your employer is free to read it and to react as they deem appropriate given the nature of the post, assuming of course, no discriminatory motive for any decision they might make.  In a nutshell, if you wouldn't say it to your boss, you probably shouldn't put it on Facebook, Myspace or in a tweet.

Image: switched.com

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Yesterday the Department of Health and Human Services (DHHS) issued a formal declaration of public healthy emergency as the number of confirmed cases of swine flu continued to climb. 

Charles Johnson, the DHHS Secretary reported that the declaration allowed the DHHS the flexibility to take additional steps to fully mobilize the prevention, treatment and mitigation capabilities available as those actions become necessary.

In connection with this declaration, the Centers for Disease Control and Prevention (CDC)  recommended following certain basic hygiene and social distancing precautions in the workplace.  At this stage, all employers should insure that they have communicated these precautions to their workforce, in writing.  

• Employees should cover their noses and mouths with a tissue when they cough or sneeze. Employers should provide customers, employees and the public with tissues, trash receptacles and a place to wash or disinfect their hands.
• Employees should wash hands often with soap and water, or use alcohol-based hand cleaners.
• Employees should avoid touching their eyes, noses or mouths.
• Employers should encourage sick employees to stay home.
• Employees should avoid close contact with their coworkers and customers (maintain a separation of at least six feet).
• Employers should keep work surfaces, telephones, computer equipment and other frequently touched surfaces and office equipment clean. Employers should discourage employees from using other employees' phones, desks, offices or other work tools and equipment.
• Employees should be encouraged to use email, phones and text messages to communicate with each other. When meetings are necessary, employees should be counseled to avoid close contact and assure that there is proper ventilation in the meeting room.
• Employees should practice good health habits (e.g., get plenty of sleep, be physically active, manage stress, drink plenty of fluids, and eat nutritious foods). 

Unfortunately, the panic surrounding the potential pandemic appears to be escalating.  However, employers can potentially minimize  the loss of productivity such panic engenders by continuing to educate the workforce as new information such as these recommendations becomes available.

Image:  johnfenzel.typepad.com/

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The recent enactment of several pro labor executive orders by President Barack Obama and the fears surrounding the potential enactment of the Employee Free Choice Act have left many employers clamoring for workplace advice. Rightfully concerned that the passage of the Free Choice Act would make unionization ot their workforce much easier, traditionally non-union employers have sought legal counsel to educate themselves even before the bill is law. The reasoning behind the onslaught of questions to attorneys, law firms and labor consultants is that if the law is passed, aggressive unions will quickly target employers and attempt to intimidate the workforce into a pro union vote. Only with advance training of supervisors can such attempts be thwarted.
Although the bill is currently stalled by opposition in the Senate, many experts believe that some version will eventially become law.

In addition to the trepidation concerning the Free Choice Act, many more employers now seek advice concerning garden variety layoffs, reductions in force, disciplinary actions and terminations than they did in the past. Fearing that the stagnant economy will spur employment claims, even smaller employers are making their way to attorneys' offices to seek preventative counsel. In many respects these fears are well placed as many employment related experts report a significant uptick in employment claims, even based on weak facts which would not have previously made it past most plaintiff's attorneys' desks. When faced with months and potentially years of unemployment, terminated employees appear much less reluctant to sue (or at least threaten to sue) a former employer than they have in the past.

Wise employers analyze each anticipated action with regard to its employees from the standpoint of their vulnerability to an employment claim. Some of the questions which should always be asked are : Is there any evidence that the decision in question has a discriminatory motive (or even a partially discriminatory motive? Are there any statistics of the employer which would support a finding of a discriminatory motive or even a discriminatory impact on a group of employees? How likely is it that the employee in question would make a claim if the action is taken? How likely is it that an attorney would be interested in the employee's claim? What would a resolution of the claim be likely to cost the employer? Is there any proactive way to take the action yet avoid the claim? Once these questions have been asked and thoughtfully answered, the employer will be well on the way to minimizing its potential exposure for the tough decisions it may be forced to make.

Image: onebigbang

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