The Employer E-Letter: Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
- NEW VACCINE MANDATES ANNOUNCED IN BIDEN’S COVID-19 ACTION PLAN
- ATTENDANCE IS AN ESSENTIAL FUNCTION OF MOST JOBS
- SUPREME COURT HOLDS NCAA RESTRICTIONS ON EDUCATION-RELATED BENEFITS FOR STUDENT-ATHLETES VIOLATE THE SHERMAN ACT
- A CRIMINAL RECORD OF APPLICANT OFTEN NOT A VALID REASON FOR NOT HIRING
- Tip Of The Month
NEW VACCINE MANDATES ANNOUNCED IN BIDEN’S COVID-19 ACTION PLAN
On September 9, 2021, President Biden announced a six-pronged COVID-19 Action Plan to further combat COVID-19. This Plan will have an impact on public and private employers, as it mandates vaccinations for many employees.
First, President Biden issued two executive orders requiring federal employees and federal government contractor employees to be vaccinated. Unlike the previous order, there is no exceptions for employees who receive weekly COVID-19 testing and wear a mask at work.
Additionally, the Occupational Safety and Health Administration (“OSHA”) will also issue an emergency rule that will require employers with 100 employees or more to mandate vaccinations for their employees or require unvaccinated employees to submit to weekly COVID-19 testing.
President Biden also announced that staff at all Medicare and Medicaid-certified facilities will be required to be vaccinated. These facilities include hospitals, nursing homes, dialysis facilities, ambulatory surgical settings and home health agencies. Employees affected include clinical staff, individuals providing services under arrangement, volunteers and staff who are not involved in direct patient, resident or client care.
Many aspects of the Action Plan, including what exemptions may apply to mandatory vaccinations, remain unknown until further guidance is provided. We further expect some aspects of the Action Plan to be challenged in the courts.
ATTENDANCE IS AN ESSENTIAL FUNCTION OF MOST JOBS
An office assistant at the Cooperative Response Center, which services electric utilities and monitors security and medical alarms throughout the country, was diagnosed with reactive arthritis, a chronic autoimmune disease, and was provided with FMLA intermittent leave as certified to by her doctor. The employee requested additional leave, and the employer denied her request. The 8th Circuit Court of Appeals reaffirmed its position that regular and reliable attendance is a necessary element of most jobs. An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones. The Court concluded, specifically, that attendance was an essential function of an office assistant job, which required her to answer the phone and greet visitors. Therefore, her ADA disability claim failed, and the Court further determined that her FMLA claims were non-meritorious as she was provided all of the leave certified by her physician, which was one or two half days per month to attend to medical appointments and a full day off once or twice per month to deal with recurring arthritic flare-ups. Evans v. Cooperative Response Center, Inc., Case No. 19-2483 (8th Cir. 2021)
The National Collegiate Athletic Association’s (NCAA) long-established rules prohibit college athletes from receiving compensation, including “non-cash related benefits,” to preserve amateurism and distinguish college athletics from professional sports. Several student athletes sued the NCAA alleging the compensation restrictions violate federal antitrust law, commonly known as the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.” The Sherman Act’s prohibition on restraints of trade historically prohibit only “undue” restraint, and courts apply a “rule of reason analysis” to assess the market power and market structure and determine the challenged restraint’s “actual effect on competition.” Under the rule of reason analysis, the District Court found the NCAA’s rules limiting athletic scholarships to the full cost of attendance and restricting non-education related compensation and benefits were justified under federal antitrust law to preserve the distinction between college and professional sports. In the same decision, the court enjoined the NCAA for enforcing its rules prohibiting “education-related benefits,” because such benefits are distinguishable from those of professional athletes and do not impede consumer demand for college sports. The Ninth Circuit Court of Appeals affirmed and the NCAA sought certiorari review arguing the lower courts applied the wrong analysis.
At the U.S. Supreme Court, the NCAA admitted “that its members collectively enjoy monopoly power in the market for student-athlete services, such that its restraints can (and in fact do) harm competition,” but argued it is effectively immune from antitrust scrutiny because the NCAA is a unique enterprise and its rules should receive only a “quick look” and deferential review, rather than a full rule of reason analysis. The Court, declining to afford the NCAA deferential treatment, applied the rule of reason analysis and unanimously held the NCAA’s restriction on education-related compensation for student athletes violates federal anti-trust law because it can preserve the nature of amateur collegiate sports through less restrictive compensation rules. The Court’s decision permits student-athletes to receive education-related benefits that go beyond the cost of tuition, including academic and graduation incentive awards, graduate school scholarships, and paid internships. However, member schools are not required to offer such benefits, and the NCAA may still limit cash awards for academic achievement under the ruling. The decision does not address direct compensation to athletes or benefits not related to education. See Nat’l Collegiate Athletic Ass’n v. Alston, No. 20-512; and Am. Athletic Conf. v. Alston, No. 20-520.
A CRIMINAL RECORD OF APPLICANT OFTEN NOT A VALID REASON FOR NOT HIRING
In a Wisconsin case, the Labor & Industry Review Commission (LIRC) found an employer who manufactured lighting products discriminated against an employee when it rescinded a job offer for a lighting schematic layout application specialist position upon learning of his criminal conviction. The conviction was in 2012 and involved severe actions, including strangulation, suffocation, 4th degree sexual assault, battery and criminal damage to property, all of which were related to a domestic incident with his live-in companion. Wisconsin law prohibits an employer from refusing to hire a prospective employee on the basis of a conviction record unless the circumstances of the crime substantially relate to the circumstances of the particular job for which the applicant is being considered. In this case, the employer bears the burden of demonstrating the circumstances of the prior offense substantially relate to the circumstances of the particular job being sought. The court basically determined that this was an isolated incident involving specific circumstances, and there was really no likelihood his job as an application specialist would be impacted by this prior conviction. Cree, Inc. v. LIRC, 2021 W. App. 4 (2021).
TIP OF THE MONTH: With about 3% of people between the ages of 18 and 35 identifying as non-binary, employers need to be aware of the needs of persons who do not identify as male or female. Dress codes, bathroom policies, job applications and workplace rules likely need to be modified. A number of employers are making changes in their employer handbooks to define “employee” to include workers who are female, male or non-binary. Thereafter, their handbooks use the term “employee”, and remove any “he” and “she” references. Currently, the extreme is represented by California and then New York City where referring to a worker by something other than their preferred pronoun could be deemed harassment. In any event, employers need to respond quickly if a co-worker mocks or harasses workers who choose to use the “they” pronoun, as it is harassment based on sex.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
To subscribe or unsubscribe to Employer E-Letter, e-mail your request to jaw@hanftlaw.com or call Scott Witty at 218.722.4766.
Copyright 2021 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.