New FMLA Forms Available

The Department of Labor recently updated its approved forms requesting information required under the Family and Medical Leave Act.  Previous versions of the FMLA forms expired at the end of 2011, so employers that use the DOL forms for their FMLA programs should download and begin using the new forms immediately. According to the Department of Labor, the new forms are current through February 28, 2015, although how the DOL can predict that there will be no further changes in the FMLA until then is beyond me.
You can access the new forms here, on the DOL website. Updated forms include the Certification of Healthcare Provider for Employee's Serious Health Condition, Certification of Healthcare Provider for Family Member's Serious Health Condition, Notice of Eligibility and Rights & Responsibilities, Designation Notice, Certification of Qualifying Exigency for Military Family Leave, and Certification for Serious Injury or Illness of Covered Service Member-for Military Family Leave.
You should note that the new forms do not contain the so-called "safe harbor" language required to give an employer some coverage in the event that there is disclosure of genetic information in violation of the Genetic Information Nondiscrimination Act  ("GINA").  As a reminder, here's the language that should accompany any request for health-related information from an employee:
The  Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers, and other entities covered by GINA Title II for requesting or requiring genetic information of any individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family members genetic tests, the fact that an individual or individuals, family member, sought or received genetic services, and genetic information of the fetus carried by an individual or individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

The Illinois Trade Secrets Act Is for Trade Secrets

A recent decision by an Illinois federal court provides useful guidance on the scope and preemptive effect of the Illinois Trade Secrets Act.  The case involves a claim by a supplier that Caterpillar misappropriated both trade secret and non-trade secret confidential information as a result of the transaction between the supplier and Caterpillar. Specifically, the supplier alleges that Caterpillar used its proprietary information to design its own versions of the supplier’s product in order to avoid dealing with the supplier in the future.

The supplier brought suit, alleging a breach of the Illinois Trade Secrets Act, unjust enrichment, and fraudulent inducement, resulting from Caterpillar’s supposed promises to provide significant business to the supplier in the future, in exchange for proprietary information today.

Caterpillar attempted to refine the issues in dispute by alleging that fraudulent inducement and unjust enrichment as causes of action were preempted by the Illinois Trade Secrets Act, which prohibits the wrongful appropriation of certain types of information. A quick refresher:  “trade secrets” are pieces of information that have economic value as result of their not being generally known to the public, and that are subject to reasonable efforts to maintain their secrecy / confidentiality.  Caterpillar was arguing that these other legal theories, which in some cases are more difficult to defend than a Trade Secrets Act claim, were improperly before the court because the Trade Secrets Act covers all that conduct.

There are other types of confidential corporate information that can be protected from disclosure, even though they do not technically comprise a trade secret. Certain business practices, processes, forms, etc., can be considered proprietary, even though their economic value, by themselves, is virtually nil.  The supplier in this case attempted to hedge its bet slightly with respect to whether certain information was a formal “trade secret” by alleging unjust enrichment and fraudulent inducement, which the supplier argued was not covered by the Trade Secrets Act at all.

After some gratuitous beating of the participants about the head and shoulders for not properly characterizing their filings before the Court (I consider the judge in this particular case to be a true expert on the federal Rules of Civil Procedure; his opinions ought to be mandatory reading in every law school in the country), the judge determined that the preemptive scope of the Trade Secrets Act was limited to trade secrets. While the Illinois Supreme Court had not opined on this state law issue, the federal judge looked directly to the language of the statute and determined that there was no preemption for claims based on information that did not qualify as a trade secret.

The decision here is quite useful (it’s also highly entertaining reading, for an intellectual property decision). Companies seeking to protect their intellectual property are not foreclosed from using the full range of business torts available to them, even if the information involved does not fit the formal definition of a trade secret.

New EEOC Guidance on the Use of Conviction Records

The EEOC yesterday published its long-awaited Enforcement Guidance on employers' Consideration of Arrest and Conviction Records in making employment decisions. You can access the lengthy document here.

My initial review of the document indicates that, while it is not as bad as many of us feared (the EEOC tends to extend its reach well beyond the scope of logic, in most cases), it continues the Department of Labor's disturbing trend of limiting employer discretion with respect to the implementation of general policies and rules across a workplace. In other words, the Commission continues to review and evaluate employer decisions as if they were all Americans with Disabilities Act situations-it's becoming increasingly difficult for an employer to have a consistent policy that applies across the board without running afoul of the EEOC's biases.

The Enforcement Guidance divides its analysis into two parts-one for disparate impact cases and one for disparate treatment cases. The disparate treatment analysis is fairly straightforward and commonsensical-you can't treat people with similar conviction records differently based on membership in a protected class.

The disparate impact analysis is another matter. The EEOC significantly overreaches here, and any employer using conviction records on its applications or as a screening device needs to be aware of the significant burden that the EEOC is imposing on the employment decision-making process.

As an initial matter, it is not hard to demonstrate that use of criminal conviction data has a disparate impact on protected populations. The Guidance itself notes that black and Hispanic populations are subject to arrest in numbers significantly disproportionate to their representation in the general population. These dissimilar numbers carry on through the rest of the criminal justice system, with disproportionate conviction and incarceration rates as well.

Once disparate impact is established, it is the employer that has the burden of production of persuasion to demonstrate that the challenged practice-use of conviction data-is job-related for the position in question, and consistent with business necessity. Arrest records are of particular concern, the Guidance clearly states that employment decisions based solely on arrest records are never job-related or consistent with business necessity. This is not surprising; the Commission has taken this position for many years because of the fact that arrests frequently do not result in convictions, and are not necessarily indicative of anything other than being at the wrong place at the wrong time. The Commission notes that an employer may inquire into the conduct underlying the arrest and determine that the conduct renders the applicant unfit for employment, and that such a decision would not be discriminatory.

Most employers have hiring policies inquiring about convictions, and typically will exclude employees for consideration if they have a felony conviction. As noted above, the Commission Guidance directly opposes any type of systematic screening based on such a straightforward test. Instead, the Guidance requires that an employer using conviction data (which the Commission refers to as a "criminal conduct exclusion") must establish a systematic, individualized inquiry for each employee affected, in order to avoid disparate impact claims. This inquiry can take one of two forms-the employer can validate that the job for which it is conducting the screening is directly affected by the criminal conduct at issue, as described in the Uniform Guidelines on Employee Selection Procedures (the intricate and highly complex statistical study for such a validation is described at 29 CFR Sec.1607.5); or the employer can develop a "targeted screen" considering the nature of the crime, the time elapsed, the nature of the job, and then providing the employee an opportunity to demonstrate that there were special circumstances in her case that show that she should not be excluded.

Either of these procedures imposes a huge burden on employers. The description of the individualized assessment required by the targeted screening process alone lists nine separate factors an employer should consider for each employee before a valid conviction record determination can be made. Of particular concern is the Commission's requirement that the employer demonstrate a job performance correlation between the specific criminal conviction and the specific position at issue; the Guidance lists several scenarios demonstrating that an employer that uses conviction data as a general screening device will simply not prevail in an EEOC inquiry.

The Guidance closes by delineating the EEOC's version of "best practices", which not surprisingly start with a recommendation that employers eliminate policies or practices excluding people from employment based on any criminal record. These "best practices" go on to describe extremely narrow and highly detailed policies and procedures that effectively preclude any type of generalized conviction policy. Given that this is an Enforcement Guidance, every human resources director involved in hiring policies should carefully review the requirements here and begin to incorporate them into company employment processes.

The Unsaintly Saints

I recall vividly the unglory days of the New Orleans football Saints; teams that were so bad that the fans started calling them the "Aints", and wearing paper bags on their heads to hide their embarrassment at being seen at games.  The team's recent Super Bowl victory and multiple winning seasons seemed to have wiped those ugly memories from the fan base's collective consciousness.

But there may be a whole new set of reasons to start wearing bags again, and this time the situation may be so bad that the fans will start using plastic bags in order to more permanently deal with their humiliation.

For it seems that there was some serious football cheating going on in the Big Easy.  We can start with the improper bounty system that targeted selected players on opposing teams, and was in play during the tenures of now suspended defensive coordinator Grggg Williams and head coach Sean Payton.  You can read the details and problems associated with that process below.  And then we have this latest gem from ESPN--that the Saints general manager, Mickey Loomis (who was also suspended for his role in the bounty system) was eavesdropping on opposing coaching staffs during games.  Allegedly, there was a hidden microphone system in the press box that the Saints' GM could monitor with the flip of a switch.  Obviously, this gave the Saints a potentially huge advantage--the ability to listen to the other side's analysis of the game, its planned adjustments, and comments on the opposing coaches's perceptions of your team's weaknesses would be invaluable.

Surreptitious electronic surveillance violates not only NFL rules, but a host of federal and state laws against eavesdropping, as well.  There appears to be some question of whether this practice stopped after Katrina hit the city in 2005, but the existence of such a practice certainly tells us a lot about what the Saints think of the rules that everyone else has to follow.  I'm sure the NFL Players Association is delighting in this news--it removes some of the pressure to discipline the players involved in Bounty-gate when the team management is so obviously over the top when it come to rule violations.

Those bags may be back a lot sooner than we thought.

Sex and Workers Compensation

In Australia, apparently, they let this stuff slide, so to speak.  A federal policy of providing insurance for this type of injury for civil servants gives new meaning to the term "safe sex."
I'm reasonably certain that most US jurisdictions would take a firmer stance that incidents like this are not work-related, and thank goodness for that. I can only imagine what one of those GSA trips would cost under Australian rules.
We wouldn't insure a card-playing accident, either, even in Vegas.

Exploding Cowsicles

File this one under unique job requirements--I'm guessing there is somebody in the Forest Service that responded to a help wanted ad that read something like this: "Must be proficient in the handling of explosives, and particularly competent in the placement and distribution of explosive charges to properly dissipate frozen animal remains. Experience with frozen cows a plus."
What's particularly noteworthy is that this is not a problem that is out of the normal ken of the Service--they apparently blow up animals all the time.

DC Circuit Kills NLRB Posting Requirement, At Least for Now

The District of Columbia Circuit Court of Appeals recently suspended the implementation of the NLRB's recent rule requiring  employers to post what is effectively a union endorsement notice in virtually every workplace (see the discussion below, here). In doing so, the Court of Appeals very sensibly determined that there was some confusion about a lower federal court ruling that suspended the enforcement mechanism of the NLRB rule, but allowed the posting requirement to go forward.  The Court also noted a recent South Carolina federal court decision that invalidated the rule in toto as a basis for enjoining the application of the posting requirement.
So as of now, and until the Court of Appeals gets through the issue, employers do not have to put up the new NLRB poster.  I'm guessing it will take at least a year for the briefing and oral argument to be completed, and perhaps another few months after that before a decision issues.