Home  >  News & Publications  >  Client Alert November 1, 2003 MHTL Monthly Labor/Employment/Benefits Update Useful Cases And Updates - November 1, 2003 MISTAKE OF THE MONTH - Company Required To Make Benefit Contributions For "Casual" Employees - casual employees treated as regular employees turn into regular employees entitled to pension contributions. Ditto For "Independent Contractors" - independent contractors probably were not really independent contractors, and thus could be entitled to benefit plan access. OTHER EMPLOYMENT LAW HEADLINES Under Weingarten, Does An Employee Have A Choice Of Representative? - an employee in a non-union workplace was entitled only to the presence of a co-employee for an investigatory interview, not a non-employee, but there is a right for a union employee to choose his union representative. Can An Employee Be Required To Submit To A Mental Examination Under The ADA? - Apparently a dicey proposition in some cases. "Retaliation" Evidently Is In The Eyes Of The Beholder - Court reworks retaliation claim to allow it to survive. Salvation Army's "English Only" Work Rule Upheld - English only rule not per se unlawful, is permissible if limited. FMLA "Serious Health Condition" Requires 3 Full And Consecutive Calendar Day Incapacity - "serious health condition" involving continuing treatment has to involve period of incapacity of more than three full and consecutive calendar days. To Shop While On FMLA Intermittent Leave, Or Not To Shop? - Plaintiff discharged after being seen shopping on two occasions while supposedly unable to work and taking intermittent FMLA leave (leaving early when she could not continue to work) could maintain claim. Breach Of Duty Of Loyalty Can Void Severance Provision Of Employment Agreement - sexually harassing employees could be breach of an employee's duty of loyalty to the employer as well as a material breach of an employment contract voiding a severance pay obligation. Can The Child Of An Employee Sue The Employer For Misrepresenting The Safety Of The Mother's Workplace? - Yes, at least where the employer allegedly told the pregnant employee that the work environment was safe for her fetus when the employer knew it was not. -Similarly, the U.S. Postal Service was not liable to a child molested by a postman just because it had taken him off his route once before due to a similar complaint, but later put him back on a route after several years at office work. WAGE & HOUR DEVELOPMENTS Interrupted Breaks Can Be Compensable And Drive Overtime - where the degree of interruption of unpaid meal periods caused employees to spend the time primarily for the employer's benefit, that time is compensable. Common Control Of Two Separate Companies = Joint Employer + Common Employees = Overtime Problem - two separate companies, but commonly owned and sharing much of their administrative structure were joint employers under the FLSA; thus employees who worked for both companies had to be aggregated when looking at their hours worked for overtime purposes. AT THE SUPREME COURT Can An Employee Fired For Failing A Drug Test Later Be Entitled To Rehire Despite A "No Rehire For Misconduct" Policy? - employee allowed to resign in 1991 after failing drug test reapplied in 1994 and was rejected for employment, allegedly because of the employer's policy barring rehire of former employees terminated for misconduct. He claims ADA violations for either "perceived as" or "record of" a disability. LEGISLATIVE AND REGULATORY ACTIONS OF NOTE IRS Increases 2004 Standard Mileage Rate And Eases Recordkeeping Burdens - from 36 cents to 37.5 cents, and businesses with up to four vehicles can now use standard rate rather than have to track actual expenses. OK To Pay For Over-The-Counter Drugs With FSAs - IRS ruled that it was permissible for employees to pay for OTC medications with flexible spending account dollars. Is HIPAA Confusing? - Most people think so; here's one reason why. Proposed Federal FLSA Wage/Hour Changes Highly Controversial - Recent proposed revised regulations governing eligibility for overtime issued by DOL earlier this year have created a political imbroglio in Washington. FCRA Changes Also Uncertain - maybe the third-party investigation into employee misconduct provisions of the Act will change, maybe they won't. Genetic Bias Bill Approved By Senate - The U.S. Senate approved a bill barring employers from using an individual's genetic information when making employment decisions. The bill also applies to health insurers. Useful ADA Guidance Published By EEOC - guidance for job applicants on the Americans with Disabilities Act at www.eeoc.gov/facts/jobapplicant/html. Mold Information From OSHA - prevention and remediation in the workplace; the Bulletin is available at www.osha.gov/dts/shib/shib101003.html. ON THE LABOR FRONT Illustrating That The NLRA Can Surprise Non-Union Employers - speaking up at a group meeting on behalf of other employees was protected concerted activity, so to first reprimand and then terminate the employee was unlawful. Reinstatement and backpay was ordered. Off-Duty And Subcontractor Employees Entitled To Access For Organizing - employer had to allow access to off-duty employees from other locations to organize. Also, employees of a subcontractor may have access rights to organize. Board Changes Law On Health Care 10-Day Notices - Board overrules prior cases and holds that a union must begin picketing at the date and time in its Section 8(g) notice. Is Sending Recklessly False E-Mail Protected Conduct Under The Act? - No. Extraordinary Board Remedies Imposed - "numerous, pervasive and outrageous" ULPs generate remedy including suppling the Union with the names and addresses of its current unit employees, and publicly reading a Board notice to employees, as well as a rerun election. Evidence Of Fraud In Arbitration Could Be Grounds To Vacate Award - fraud in securing an arbitration award is grounds to vacate an award, especially when the employee leaves his post in mid-shift to conduct an affair and then apparently persuades others to lie about it.