Recent Notable Employment Law Developments

Noting that the company identified the ability to lift up to 70 pounds as an essential function for all drivers, a UPS manager informed Young that she could not return to work with the lifting restriction in place, and was not eligible for light duty. Pursuant to UPS policy, light duty was only available to employees with work-related injuries, those with an Americans with Disabilities Act (ADA)-covered disability, and those who had lost their Department of Transportation (DOT) certifications. Young remained on an extended leave throughout her pregnancy, receiving no pay and ultimately losing her medical coverage. Following the birth of her child in April 2007, Young returned to work for UPS. She subsequently sued the company, alleging, among other things, claims of disability and pregnancy discrimination. The district court granted summary judgment to UPS .

On appeal, the Court of Appeals for the Fourth Circuit quickly disposed of Young's disability discrimination claim, finding that she offered no evidence suggesting that UPS believed her pregnancy substantially limited any of her major life activities. Turning to the “heart of Young's appeal,” the court held that UPS did not violate the PDA through its policy limiting light-duty work and not making it available to pregnant workers. Citing statutory language, both Young and the American Civil Liberties Union (ACLU), which joined as an amicus, contended that the PDA requires an employer to provide pregnant workers with light duty if it does so for any other workers “similar in their ability or inability to work,” even if the company does not do so for all non-pregnant employees.

The court rejected this argument, holding that interpreting the PDA in this manner would require employers to afford preferential treatment to pregnant workers in the form of accommodations and light-duty work “regardless of whether such status was available to the universe ' male and female ' of non-pregnant employees.” The court explained that while “an explicit policy excluding pregnant workers” would violate the PDA, “no such policy exists here.”

Instead,' the court concluded that by limiting light duty to certain categories of employees, UPS crafted a “pregnancy-blind policy” which did not evidence discriminatory animus toward pregnant workers and did not run afoul of the PDA. Summary judgment was, therefore, affirmed in favor of UPS on Young's pregnancy discrimination claim.

While the Young decision is a victory for employers, requests for accommodation by pregnant employees must be evaluated on a case-by-case basis. Although pregnancy itself is not considered a disability under the ADA, certain pregnancy-related impairments ' even though temporary ' may constitute disabilities for which reasonable accommodations must be made. Furthermore, late last year, the Equal Employment Opportunity Commission (EEOC) declared in its draft strategic plan that the accommodation of pregnant employees will be one of its enforcement initiatives going forward. Congress is also considering a bill, known as the Pregnant Workers Fairness Act, which, if passed, would require employers to provide reasonable accommodations to pregnant employees and those with limitations following childbirth.

2. First Appellate Court Decision on FLSA's Nursing Mother Provision

In recent years, over 20 states have enacted lactation break laws, spurred by the steep influx into the workplace of women with infants and toddlers. In March, 2010, the federal Patient Protection and Affordable Care Act passed, adding to the Fair Labor Standards Act (FLSA) ' 207(r)(1), a requirement that an employer provide a non-exempt employee with a reasonable break time to express breast milk for her nursing child for one year after the child's birth each time the employee has a need to do so, and a private place other than a bathroom within which to do so. Section 215(a)(3) of the FLSA prohibits an employer from retaliating against an employee because she has filed a complaint involving the Act, including ' 207(r)(1). An employer who violates the FLSA is subject to penalties that may include payment of unpaid minimum wages and/or overtime or lost wages and liquidated damages; in the case of ' 215, employment, reinstatement, or promotion may be ordered. A willful violation can trigger fines and/or imprisonment. Attorneys' fees and costs are awardable.

Recently, the Court of Appeals for the Eleventh Circuit in Miller v. Roche Surety & Casualty Co., No. 12'10259, 2012 WL 6698786 (11th Cir. Dec. 26, 2012), became the first federal appellate court to interpret the nursing mother provision of the FLSA. Plaintiff Danielle Miller worked for Roche, a bail bond surety company, in Florida. After her pregnancy, Miller was free to take the nursing breaks she needed, as well as a one-hour lunch break. Her break time was not counted or timed, and she was never criticized for taking a break. Miller chose to express breast milk in her own office rather than in any of several empty offices available for her use, and she taped folders to her office window for privacy. She neither informed Roche that she was using her office, nor asked for a different location for the breaks.

On one occasion, contemplating having to spend a day working at a remote location, Miller sent Roche's president an e-mail inquiring as to a location where she could use her breast pump while working there. Sometime after sending the e-mail, Miller was terminated. She then sued, claiming Roche had not given her a time and place to express breast milk in violation of ' 207(r)(1), and had violated ' 215(a)(3) when it terminated her employment after she asked for a time and place to do so.

The Eleventh Circuit ultimately rejected these claims, holding that Miller's own testimony established that she had been given necessary breaks for expressing breast milk in a private location, at her leisure and without criticism, and that based on the evidence, a reasonable jury could not find that Roche denied Miller breaks in violation of ' 207(r)(1). The court also held that because Miller's e-mail to the president, who was her supervisor, did not constitute the filing of a complaint, she had not suffered retaliation under
' 215(a)(3).

Relying on the U.S. Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the court noted that although the filing of a complaint under ' 215(a)(3) need not be in the form of an official complaint, or even in writing, it must put the employer on notice that an employee is lodging a grievance. The complaint must be sufficiently clear for a reasonable employer to understand that the employee is asserting his/her FLSA rights and calling for protection of them. Miller's e-mail to her supervisor simply asking about a location for expressing breast milk in the future, and alleging or intimating that Roche had violated ' 207(r)(1) did not meet these notice standards.

Despite the ruling in the Miller case, issues of compliance with lactation break rules under federal and analogous state laws will continue to be significant for employers and employees alike. In nearly all states, lactation break laws apply to all employees, regardless of classification, and several states mandate breaks for a period well beyond the one-year under the FLSA. A few states even require that breastfeeding at work be allowed. Where both federal and state laws apply, an employer must comply with the provisions of either law most favorable to employees.

3. Courts Continue Trend in Favor of Class Waivers in Arbitration Agreements

In January 2012, the National Labor Relations Board (NLRB) issued its controversial decision in D.R. Horton, 357 N.L.R.B. No. 184 ( Jan. 3, 2012), holding that the National Labor Relations Act (NLRA) prohibits mandatory arbitration policies that require an employee to waive his or her right to participate in a class action in any forum. The judicial response to D.R. Horton has not been kind, with the vast majority of courts rejecting its reasoning and applicability. Two recent decisions ' Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013) and Miguel v. J.P. Morgan Chase Bank, N.A., No. CV 12'3308 PSG, 2013 WL 452418 (C.D. Cal Feb. 5 2003) ' are the latest to limit the impact of D.R. Horton and uphold the validity of arbitration provisions containing class action waivers.

In Owen, the Eighth Circuit reversed a district court decision, and held that a former nursing home employee must arbitrate her FLSA claims ' even though the arbitration provision included a waiver that foreclosed her FLSA collective action. First, the Eighth Circuit determined that, even though the FLSA identifies the “right” to become a party plaintiff, because it also gives the employee the power to waive participation, the statute did not evince a “contrary congressional command” precluding collective action waivers. Second, the court rejected the plaintiff's argument that the legislative history of the FLSA created a command to override the Federal Arbitration Act (FAA) in the context of labor relations.

Congress, the court noted, reenacted the FAA nine years after the FLSA, which indicates that it intended for its arbitration protections to remain intact. Finally, the court ruled that D.R. Horton “carries little persuasive authority” in the circumstances presented because the NLRB's holding was limited to arbitration agreements which bar all protected concerted action. The court noted that the Mandatory Arbitration Agreement in the case at hand did not bar complaints to administrative agencies like the EEOC. In addition, nothing prevented any agencies from investigating and potentially filing suit on behalf of a class of employees if it was necessary. The appeals court also determined that ' even if D.R. Horton addressed an arbitration agreement like the one in the case at hand ' the court “would owe no deference to its reasoning” because “the Board has no special competence ' interpreting the Federal Arbitration Act.”

The court in Miguel followed Owen and reached a similar conclusion. In Miguel, the court discussed the opinion in Owen, stating that “because the Eighth Circuit is the first appellate court to address the impact of D.R. Horton, the Court finds the decision of the Eighth Circuit instructive.” Just as in Owen, the Miguel court also found it important that the arbitration agreement in that case explicitly stated that the employee is not precluded from filing a charge with the EEOC. The court also cited the Eighth Circuit's determination that courts do not owe deference to the reasoning in D.R. Horton, while pointing out that “every district court in [the Ninth] [C]ircuit to consider the decision has declined to follow it.”

4. Host of New Laws Prohibit Employers from Demanding Social Media Passwords

In their efforts to screen job applicants, many employers have “googled” applicant names and reviewed various public social media profiles to help determine whether an applicant is actually a good fit with the organization and to ensure a company's safety and integrity. More recently, some companies have begun to request user names and passwords to be able to log in and view a social media account that is otherwise designated as “private” or restricted. Civil liberties groups, the users of social media like Facebook and Twitter, and numerous politicians have criticized this practice, likening the requests to asking for an applicant's house keys or a diary.

In response to this growing opposition, there has been significant legislative activity. In May 2012, Maryland was the first state to pass legislation making it unlawful for employers to compel employees or applicants to disclose social networking user names and passwords. Maryland's law prevents employers from taking disciplinary action against employees or from not hiring applicants who refuse to disclose personal online information. Employers, however, are allowed to investigate employees who use a personal account for business purposes to ensure they comply with legal and regulatory requirements.

Michigan, Illinois and California have also enacted similar legislation. Michigan's law took effect in December, 2012, while the Illinois and California statutes became effective Jan. 1, 2013. All three states ban employers from requesting passwords and account information, but they permit employers to use publicly available social networking information.

Illinois also allows employers to monitor employees' e-mail or electronic equipment owned by the employer, and to create workplace policies on the use of social networking sites. A number of other states have gotten on the proverbial bandwagon. Most recently, Nebraska introduced legislation (Legislative Bill 58) on Jan. 10, 2013, and Texas referred legislation to committee (S.B. 118) on Jan. 29, 2013, making it unlawful to request user names and passwords, or to request access to, private social media accounts. Massachusetts, Minnesota, Missouri, New York, Ohio, Pennsylvania, South Carolina and Washington also introduced such laws, all at various stages of the legislative process.

At the federal level, no law expressly restricts an employer's right to require an applicant or employee to disclose user name and password information like the state laws noted above. However, in May, 2012, Sens. Charles Schumer (D-NY) and Richard Blumenthal (D-CT) issued public letters to the EEOC and DOJ asking these agencies to investigate whether the practice violates any federal law. The senators argued that the practices were “unacceptable invasions of privacy” and allowed an employer access to information that would otherwise be impermissible to consider, such as religion, age, marital status, or pregnancy status.

In May, 2012, the federal Social Networking Online Protection Act (SNOPA) was introduced in the U.S. House of Representatives. This bill states that it is “[a] bill to prohibit employers and certain other entities from requiring or requesting that employees and certain other individuals provide a user name, password, or other means for accessing a personal account on any social networking website.” The bill, which would have been the first national legislation on the matter, died when Congress adjourned at the end of 2012. Representatives Eliot Engel (D-NY) and Jan Schakowsky (D-IL) and Michael Grimm (R-NY) have now reintroduced this legislation.

Given the rapid rise of laws restricting employer access to social media log-in information, as well as the wealth of information on these sites that is otherwise impermissible to consider, employers would be well advised to proceed with caution when doing any on-line screening.

J. Ian Downes is Counsel, Linda Dwoskin, Kate Ericsson, Melissa B. Squire are Associates, and Jane E. Patullois an Employment Law Specialist at Dechert LLP, Philadelphia.

'

Developments in the labor and employment area continue at a rapid pace. Among the significant developments in recent months are decisions concerning novel issues arising under the Fair Labor Standards Act (FLSA) and the Pregnancy Discrimination Act (PDA), continued disagreement between courts and the National Labor Relations Board (NLRB) with respect to the validity of mandatory arbitration agreements containing class action waivers, and the efforts of Congress and state legislatures to curtail employer control over employees' social media accounts. Herein is a review.

1. Fourth Circuit: Pregnancy Discrimination Act Does Not Require Preferential Treatment

In a much debated case, the Court of Appeals for the Fourth Circuit recently concluded that the PDA does not require employers to provide special accommodations to pregnant employees. See Young v. United Parcel Service, Inc. , — F.3d —, 2013 WL 93132 (4th Cir. Jan. 9, 2013). The case arose after Peggy Young, a UPS delivery driver, took leave in July 2006 to try a third round of in-vitro fertilization, which was ultimately successful. Young subsequently gave UPS notes from both her physician and her midwife stating that she should not lift more than 20 pounds during her pregnancy.

Noting that the company identified the ability to lift up to 70 pounds as an essential function for all drivers, a UPS manager informed Young that she could not return to work with the lifting restriction in place, and was not eligible for light duty. Pursuant to UPS policy, light duty was only available to employees with work-related injuries, those with an Americans with Disabilities Act (ADA)-covered disability, and those who had lost their Department of Transportation (DOT) certifications. Young remained on an extended leave throughout her pregnancy, receiving no pay and ultimately losing her medical coverage. Following the birth of her child in April 2007, Young returned to work for UPS. She subsequently sued the company, alleging, among other things, claims of disability and pregnancy discrimination. The district court granted summary judgment to UPS .

On appeal, the Court of Appeals for the Fourth Circuit quickly disposed of Young's disability discrimination claim, finding that she offered no evidence suggesting that UPS believed her pregnancy substantially limited any of her major life activities. Turning to the “heart of Young's appeal,” the court held that UPS did not violate the PDA through its policy limiting light-duty work and not making it available to pregnant workers. Citing statutory language, both Young and the American Civil Liberties Union (ACLU), which joined as an amicus, contended that the PDA requires an employer to provide pregnant workers with light duty if it does so for any other workers “similar in their ability or inability to work,” even if the company does not do so for all non-pregnant employees.

The court rejected this argument, holding that interpreting the PDA in this manner would require employers to afford preferential treatment to pregnant workers in the form of accommodations and light-duty work “regardless of whether such status was available to the universe ' male and female ' of non-pregnant employees.” The court explained that while “an explicit policy excluding pregnant workers” would violate the PDA, “no such policy exists here.”

Instead,' the court concluded that by limiting light duty to certain categories of employees, UPS crafted a “pregnancy-blind policy” which did not evidence discriminatory animus toward pregnant workers and did not run afoul of the PDA. Summary judgment was, therefore, affirmed in favor of UPS on Young's pregnancy discrimination claim.

While the Young decision is a victory for employers, requests for accommodation by pregnant employees must be evaluated on a case-by-case basis. Although pregnancy itself is not considered a disability under the ADA, certain pregnancy-related impairments ' even though temporary ' may constitute disabilities for which reasonable accommodations must be made. Furthermore, late last year, the Equal Employment Opportunity Commission (EEOC) declared in its draft strategic plan that the accommodation of pregnant employees will be one of its enforcement initiatives going forward. Congress is also considering a bill, known as the Pregnant Workers Fairness Act, which, if passed, would require employers to provide reasonable accommodations to pregnant employees and those with limitations following childbirth.

2. First Appellate Court Decision on FLSA's Nursing Mother Provision

In recent years, over 20 states have enacted lactation break laws, spurred by the steep influx into the workplace of women with infants and toddlers. In March, 2010, the federal Patient Protection and Affordable Care Act passed, adding to the Fair Labor Standards Act (FLSA) ' 207(r)(1), a requirement that an employer provide a non-exempt employee with a reasonable break time to express breast milk for her nursing child for one year after the child's birth each time the employee has a need to do so, and a private place other than a bathroom within which to do so. Section 215(a)(3) of the FLSA prohibits an employer from retaliating against an employee because she has filed a complaint involving the Act, including ' 207(r)(1). An employer who violates the FLSA is subject to penalties that may include payment of unpaid minimum wages and/or overtime or lost wages and liquidated damages; in the case of ' 215, employment, reinstatement, or promotion may be ordered. A willful violation can trigger fines and/or imprisonment. Attorneys' fees and costs are awardable.

Recently, the Court of Appeals for the Eleventh Circuit in Miller v. Roche Surety & Casualty Co., No. 12'10259, 2012 WL 6698786 (11th Cir. Dec. 26, 2012), became the first federal appellate court to interpret the nursing mother provision of the FLSA. Plaintiff Danielle Miller worked for Roche, a bail bond surety company, in Florida. After her pregnancy, Miller was free to take the nursing breaks she needed, as well as a one-hour lunch break. Her break time was not counted or timed, and she was never criticized for taking a break. Miller chose to express breast milk in her own office rather than in any of several empty offices available for her use, and she taped folders to her office window for privacy. She neither informed Roche that she was using her office, nor asked for a different location for the breaks.

On one occasion, contemplating having to spend a day working at a remote location, Miller sent Roche's president an e-mail inquiring as to a location where she could use her breast pump while working there. Sometime after sending the e-mail, Miller was terminated. She then sued, claiming Roche had not given her a time and place to express breast milk in violation of ' 207(r)(1), and had violated ' 215(a)(3) when it terminated her employment after she asked for a time and place to do so.

The Eleventh Circuit ultimately rejected these claims, holding that Miller's own testimony established that she had been given necessary breaks for expressing breast milk in a private location, at her leisure and without criticism, and that based on the evidence, a reasonable jury could not find that Roche denied Miller breaks in violation of ' 207(r)(1). The court also held that because Miller's e-mail to the president, who was her supervisor, did not constitute the filing of a complaint, she had not suffered retaliation under
' 215(a)(3).

Relying on the U.S. Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), the court noted that although the filing of a complaint under ' 215(a)(3) need not be in the form of an official complaint, or even in writing, it must put the employer on notice that an employee is lodging a grievance. The complaint must be sufficiently clear for a reasonable employer to understand that the employee is asserting his/her FLSA rights and calling for protection of them. Miller's e-mail to her supervisor simply asking about a location for expressing breast milk in the future, and alleging or intimating that Roche had violated ' 207(r)(1) did not meet these notice standards.

Despite the ruling in the Miller case, issues of compliance with lactation break rules under federal and analogous state laws will continue to be significant for employers and employees alike. In nearly all states, lactation break laws apply to all employees, regardless of classification, and several states mandate breaks for a period well beyond the one-year under the FLSA. A few states even require that breastfeeding at work be allowed. Where both federal and state laws apply, an employer must comply with the provisions of either law most favorable to employees.

3. Courts Continue Trend in Favor of Class Waivers in Arbitration Agreements

In January 2012, the National Labor Relations Board (NLRB) issued its controversial decision in D.R. Horton, 357 N.L.R.B. No. 184 ( Jan. 3, 2012), holding that the National Labor Relations Act (NLRA) prohibits mandatory arbitration policies that require an employee to waive his or her right to participate in a class action in any forum. The judicial response to D.R. Horton has not been kind, with the vast majority of courts rejecting its reasoning and applicability. Two recent decisions ' Owen v. Bristol Care, Inc. , 702 F.3d 1050 (8th Cir. 2013) and Miguel v. J.P. Morgan Chase Bank, N.A., No. CV 12'3308 PSG, 2013 WL 452418 (C.D. Cal Feb. 5 2003) ' are the latest to limit the impact of D.R. Horton and uphold the validity of arbitration provisions containing class action waivers.

In Owen, the Eighth Circuit reversed a district court decision, and held that a former nursing home employee must arbitrate her FLSA claims ' even though the arbitration provision included a waiver that foreclosed her FLSA collective action. First, the Eighth Circuit determined that, even though the FLSA identifies the “right” to become a party plaintiff, because it also gives the employee the power to waive participation, the statute did not evince a “contrary congressional command” precluding collective action waivers. Second, the court rejected the plaintiff's argument that the legislative history of the FLSA created a command to override the Federal Arbitration Act (FAA) in the context of labor relations.

Congress, the court noted, reenacted the FAA nine years after the FLSA, which indicates that it intended for its arbitration protections to remain intact. Finally, the court ruled that D.R. Horton “carries little persuasive authority” in the circumstances presented because the NLRB's holding was limited to arbitration agreements which bar all protected concerted action. The court noted that the Mandatory Arbitration Agreement in the case at hand did not bar complaints to administrative agencies like the EEOC. In addition, nothing prevented any agencies from investigating and potentially filing suit on behalf of a class of employees if it was necessary. The appeals court also determined that ' even if D.R. Horton addressed an arbitration agreement like the one in the case at hand ' the court “would owe no deference to its reasoning” because “the Board has no special competence ' interpreting the Federal Arbitration Act.”

The court in Miguel followed Owen and reached a similar conclusion. In Miguel, the court discussed the opinion in Owen, stating that “because the Eighth Circuit is the first appellate court to address the impact of D.R. Horton, the Court finds the decision of the Eighth Circuit instructive.” Just as in Owen, the Miguel court also found it important that the arbitration agreement in that case explicitly stated that the employee is not precluded from filing a charge with the EEOC. The court also cited the Eighth Circuit's determination that courts do not owe deference to the reasoning in D.R. Horton, while pointing out that “every district court in [the Ninth] [C]ircuit to consider the decision has declined to follow it.”

4. Host of New Laws Prohibit Employers from Demanding Social Media Passwords

In their efforts to screen job applicants, many employers have “googled” applicant names and reviewed various public social media profiles to help determine whether an applicant is actually a good fit with the organization and to ensure a company's safety and integrity. More recently, some companies have begun to request user names and passwords to be able to log in and view a social media account that is otherwise designated as “private” or restricted. Civil liberties groups, the users of social media like Facebook and Twitter, and numerous politicians have criticized this practice, likening the requests to asking for an applicant's house keys or a diary.

In response to this growing opposition, there has been significant legislative activity. In May 2012, Maryland was the first state to pass legislation making it unlawful for employers to compel employees or applicants to disclose social networking user names and passwords. Maryland's law prevents employers from taking disciplinary action against employees or from not hiring applicants who refuse to disclose personal online information. Employers, however, are allowed to investigate employees who use a personal account for business purposes to ensure they comply with legal and regulatory requirements.

Michigan, Illinois and California have also enacted similar legislation. Michigan's law took effect in December, 2012, while the Illinois and California statutes became effective Jan. 1, 2013. All three states ban employers from requesting passwords and account information, but they permit employers to use publicly available social networking information.

Illinois also allows employers to monitor employees' e-mail or electronic equipment owned by the employer, and to create workplace policies on the use of social networking sites. A number of other states have gotten on the proverbial bandwagon. Most recently, Nebraska introduced legislation (Legislative Bill 58) on Jan. 10, 2013, and Texas referred legislation to committee (S.B. 118) on Jan. 29, 2013, making it unlawful to request user names and passwords, or to request access to, private social media accounts. Massachusetts, Minnesota, Missouri, New York, Ohio, Pennsylvania, South Carolina and Washington also introduced such laws, all at various stages of the legislative process.

At the federal level, no law expressly restricts an employer's right to require an applicant or employee to disclose user name and password information like the state laws noted above. However, in May, 2012, Sens. Charles Schumer (D-NY) and Richard Blumenthal (D-CT) issued public letters to the EEOC and DOJ asking these agencies to investigate whether the practice violates any federal law. The senators argued that the practices were “unacceptable invasions of privacy” and allowed an employer access to information that would otherwise be impermissible to consider, such as religion, age, marital status, or pregnancy status.

In May, 2012, the federal Social Networking Online Protection Act (SNOPA) was introduced in the U.S. House of Representatives. This bill states that it is “[a] bill to prohibit employers and certain other entities from requiring or requesting that employees and certain other individuals provide a user name, password, or other means for accessing a personal account on any social networking website.” The bill, which would have been the first national legislation on the matter, died when Congress adjourned at the end of 2012. Representatives Eliot Engel (D-NY) and Jan Schakowsky (D-IL) and Michael Grimm (R-NY) have now reintroduced this legislation.

Given the rapid rise of laws restricting employer access to social media log-in information, as well as the wealth of information on these sites that is otherwise impermissible to consider, employers would be well advised to proceed with caution when doing any on-line screening.

J. Ian Downes is Counsel, Linda Dwoskin, Kate Ericsson, Melissa B. Squire are Associates, and Jane E. Patullois an Employment Law Specialist at Dechert LLP, Philadelphia.

'