New Health Care Law Contains Provision to Amend FLSA

The new health care bill recently signed into law by President Barack Obama contains a little known and often overlooked provision about which all employers should be aware. The provision amends the Fair Labor Standards Act (FLSA) and employers now will be required to provide women with breaks to breastfeed, as well as a location to breastfeed.

Such requirements already exist in sixteen states but the requirement now will be a federal law. Under the law, employers must provide reasonable time and a place for nursing mothers to express breast milk for one year following the child’s birth. The location must be something other than a bathroom, shielded from view, and free from intrusion by coworkers and the public.

In light of the potential burden imposed and the logistical concerns (such as how to provide bus drivers, postal workers, police officers and other mobile workers a place to breastfeed), the Department of Labor Wage and Hour Division is seeking public comment before it begins writing guidelines for the new law. The public can comment through February 22, 2011 at http://www.regulations.gov/#!home. We encourage employees and employers alike to comment and provide their perspectives on this new law.

New U.S. Supreme Court Decision Regarding Retaliation

Yesterday, the United States Supreme Court ruled that an employer violated Title VII when the employer terminated an employee’s fiancée three weeks after the employee filed an EEOC Charge against the employer. See Thompson v. North American Stainless, LP, 2011 WL 197638 (Jan. 24, 2011). The Supreme Court confirmed that although the fiancée did not engage in a protected activity, the employer could not retaliate against the fiancée because the action might have “dissuaded a reasonable worker from making or supporting a charge.” This decision should not surprise an employer, but the Supreme Court did note the difficulty with determining the type of relationship needed in this circumstance. Will a boyfriend/girlfriend relationship support a retaliation claim? What about very close friends? While the Supreme Court refused to draw a line, the Supreme Court stated firing a close family member almost always equals retaliation, while firing a “mere acquaintance” almost never does. We will wait for the lower courts to draw the line between “close family member” and “mere acquaintance.” Meanwhile, employers must be mindful that courts interpret Title VII retaliation broadly and employment actions against a complainant’s relatives or close friends might constitute retaliation.

Determining the Appropriate Discipline

If you are a college football fan you might have read that ESPN recently fired a play-by-play announcer for making a sexist remark to a female co-worker. If you haven’t seen the article, the background story is that during the pre-game production meeting for the Chick-fil-A Bowl game, the announcer told his female co-worker “Listen to me, sweet baby, let me tell you something …” After the co-worker told the announcer not to use that language with her, the announcer responded with “OK then, listen to me, assh*le.” ESPN terminated the announcer a few days after the comments were reported to management.

ESPN’s handling of this situation raises an interesting discussion regarding appropriate employee discipline. Most employers have varying levels of discipline ranging from verbal warning to demotion to termination. The question the ESPN situation raises is when should an employer issue a verbal warning versus a demotion or termination?

The law allows an employer to minimize liability from discrimination or harassment lawsuits if the employer can show it took “prompt remedial action” regarding the wrongdoing. Prompt remedial action is often a question for the jury and, therefore, the jury will determine if the employer issued sufficient and appropriate discipline. An employer should show the jury that the employer (1) had an anti-discrimination/harassment policy, (2) trained its employees about the policy, (3) quickly investigated any complaints, and (4) if the investigation revealed a policy violation, the employer issued appropriate discipline. Appropriate discipline is often shown when the employer followed the progressive discipline outlined in the company policy and the discipline stopped the wrongdoing.

In the ESPN case, according to the New York Post, the announcer had a history of making sexual comments towards female co-workers. The prior history of comments probably made it more necessary for ESPN to terminate the announcer as opposed to issuing a lesser disciplinary action. Since ESPN terminated the announcer instead of suspending or demoting the announcer, we’ll never know if a jury would have determined a lesser disciplinary action was appropriate.

DREAM Act Passes House, Awaits Fait in Senate

Yesterday the U.S. House of Representative narrowly passed (216-198) the DREAM Act. For more information about the specifics of the Act see our previous post. The Senate is scheduled to take a procedural vote on the Act today. Check back for updates.

Coles Corner Winning Wine: December 2010 (Archive)

Hip Chicks Do Wine 2007 Whole Berry Cabernet Sauvignon - Their labels are creative and their wine names are whimsical. Their 2007 Cabernet Sauvignon starts smoothly and finishes well while delivering excellent spice. The name “Whole Berry” suggests fruit and this Cabernet delivers with fruit forward flavors.

Coles Corner Winning Wine: November 2010 (Archive)

L’Archet’s 2006 Cuvée Occitane – The Cuvée Occitane blends the highly accessible Grenache with the bright fruit and spice of the Syrah. The Carignan and Mourvèdre add balance and fruit-forward flavors. Aged in French Oak, this blend is a terrific table wine.

‘Tis a Season to Be Mindful

As an eclectic nation of varying religious and non-religious people, the United States ever is evolving its customs to include, or more importantly to ensure it does not exclude, the varying religious beliefs found here. Not long ago, public school students received a “Christmas vacation.” Then, not to exclude other religious holidays around this time period, public school students instead received a “Holiday vacation.” Now, to ensure no one is excluded, public school students simply receive a “Winter vacation.”

Your workplace likely went through a similar change in designating office closures this time of year. The point of highlighting this change is not to debate whether we as a society are or are not overly politically correct or whether the distinction in names is or is not trivial. Instead, the point is that generally accepted customs, ideas, and thoughts change and evolve over time. Whether you are an employer, manager, supervisor, or co-worker, we all must be mindful that what once was generally acceptable in the workplace may now be considered discriminatory or harassing.

Under both Federal and Texas law it is unlawful for an employer to discriminate against a person based on that person’s religious beliefs. This means an employer cannot discriminate based on someone’s particular religious practice or lack thereof. These employment laws, however, do not preclude individuals from expressing their personal religious beliefs. As an employer or supervisor, though, you must be mindful about your religious beliefs and ensure your employees and/or subordinates do not believe they are treated differently because of their religious beliefs or because their religious beliefs do not align with yours.

With that said, celebrate the season as you wish. Just remember your obligations and responsibilities as an employer.