Tuesday, April 13, 2010

New FLSA Amendment in Health Care Reform Bills Requires "Reasonable Break Time" for Nursing Mothers

Included within the two health care reform bills signed into law by President Obama on March 23 and March 30, 2010, was an amendment to the Fair Labor Standards Act, which requires employers to provide nursing mothers with "reasonable break time" to pump breast milk for up to one year after the birth of a child.

This new FLSA provision does not define what constitutes a "reasonable" break time, or what seperate penalties may be imposed for an employer's failure to provide such time. The amendment does provide for a exemption for employers with less than 50 employees, if the employer can show that the requirements would impose an "undue hardship."

It is expected that the Department of Labor will be promulgating regulations sometime in the future to guide employers in the application and interpretation of this requirement.

Friday, April 9, 2010

Third Circuit Holds That Difficulty Getting To Work Because of Disability May Require Accomodation Under ADA

On April 8, 2010, the Third Circuit Court of Appeals in the case of Colwell v. Rite Aid Corporation, No.: 08-4675, held that under certain circumstances, an employer may be required under the Americans with Disabilities Act to accomodate an employee's disability-related difficulties in getting to and from work. Specifically, the Court determined that a shift-change, which is requested by a disabled employee in order to ease that employee's ability to commute, would be a type of accomodation required under the ADA.

In Colwell, the employee worked as a cashier for defendant, Rite Aid Corporation. As a matter of personal preference, her available shift hours were from 9:00 AM to 2:00 PM or 5:00 PM to 9:00 PM. Shortly after her hire date, the employee was diagnosed with a medical condition in her left eye that eventually caused her to go blind in that eye. Although the employee was still able to see out of her right and perform all of her duties at work, she informed her supervisor that her partial blindness made it dangerous and difficult to drive at night. Employee provided her supervisor with a note from her doctor, in which it was recommended that employee not drive at night. Employee then requested from her supervisor that she only be assigned day-shifts because she could not drive at night, and because public transportation was not an option for her, as the bus stopped running at 6:00 PM and no taxis were available. Employee's supervisor refused, telling employee that to assign her only day shifts would not be fair to other employees. Following that refusal, employee was forced to have her family members shuttle her to and from work for her night-shifts, which she claimed created a hardship for her family.

Employee filed suit, claiming that Rite Aid had failed to provide her with a reasonable accomodation under the ADA by failing to modify her work schedule. The trial court entered an order dismissing employee's accomodation claim, ruling that because employee did not require any accomodation to perform her job duties once at work, the accomodations employee sought had nothing to do with her work environment or the circumstances in which she performed her work. Thus, Rite Aid had no duty to accomodate employee's commute to and from work.

On appeal, the Third Circuit disagreed, and reversed the trial court's ruling on this issue. Specifically, the Court rejected the trial court's reasoning that "commuting to and from work falls outside the work environment," holding that "the reach of the ADA is not so limited." Rather, the Court noted that the ADA specifically defines the term "reasonable accomodation," to include "modified work schedules" - the exact type of accomodation requested by employee in this instance. Contrary to the trial court's determination, the Third Circuit held, as a matter of law, that "under certain circumstances the ADA can obligate an employer to accomodate an employee's disability-related difficulties in getting to work, if reasonable. One such circumstance is when the requested accomodation is a change to a workplace condition that is entirely within an employer's control and that would allow the employee to get to work and perform her job."

The Court cautioned, however that "our holding does not make employers responsible for how an employee gets to work," but noted that, in this instance, the employee was not asking for help in getting to or from work - rather, she was only requesting a shift-change that would ease her ability commute.

Wednesday, April 7, 2010

EEOC Cautions Against Use of Credit Checks To Screen Job Applicants

In March, the Equal Employment Opportunity Commission released a legal opinion letter on its website cautioning that the use of credit checks by employers to screen job applicants could be unlawful under federal discrimination laws, if the use of credit checks results in a disproportionate exclusion of women or minority candidates for consideration of employment. The use of credit checks would only be permissible under those circumstances if the employer is able to demonstrate that the credit check process is needed for the employer to operate safely and efficiently. But, as the opinion letter also points out, at least one EEOC attorney has already testified that credit checks have not been shown to be a valid measure of job performance.

A link to the opinion letter can be found here: http://www.eeoc.gov/eeoc/foia/letters/2010/titlevii-employer-creditck.html