January 1, 2002
Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.
WHAT EMPLOYERS IN THE POST-SEPTEMBER 11 WORLD
NEED TO KNOW
The events of September 11 created what is, in many ways, a brand new employment law landscape, replete with new risks and obligations. From time to time, we will discuss in Avoiding Lawsuits some of the more important post-September 11 questions that employers will need to answer in order to prevent and minimize employment liabilities.
What Can I Do if My Employees Refuse To Fly?
Frequent air travel is a fundamental part of many jobs. But what happens if, terrified of the post-September 11 dangers, an employee refuses to fly? Can you terminate the employee for failing to fulfill a key aspect of his or her duties? Even if you choose not to terminate the employee, can you demote or otherwise cut the compensation of the employee (as compared to, for instance, what you pay employees who are willing to fly)?
Barring any prohibition in an employment agreement, and without considering the specific employment statutes of particular states, the general answer is that you can. (Obviously, however, each instance needs to be separately analyzed.) The major impediment would be the ever-looming Americans with Disabilities Act. We have frequently dealt with the ADA in prior issues of Avoiding Lawsuits (see, for example, October 1, 2000 and September 1, 2001). The ADA casts a wide net in defining a "disability" that qualifies for legal protection, including everything from kleptomania to claustrophobia. But, especially in view of the Supreme Court's most recent decision (see the ALERT below), we think classifying the fear of flying as a disability to be a stretch, at best.
Do I Have to Hire Muslims? What if My Employees Object?
Anti-Muslim sentiment is another reality that has to be dealt with in today's work place (see the October 1, 2001 issue of Avoiding Lawsuits). But the blanket refusal to hire Muslims merely because of their religious affiliation will bear substantial legal consequences.
Many employers have complained to us of the mixed signals and conflicting demands they are attempting to decode. They know that we live in a country with laws that purport to protect people from being discriminated against solely on the basis of religious affiliation or nationality. But they also know that, historically, the law has bent to the fears and biases of the time - one need go no further than the Supreme Court's validation of the forced incarceration of Japanese-Americans during World War II. Many find current echoes of such travesties in the FBI's present investigatory methods, the call for military trials of lawful immigrants, and the tacit (if not open) endorsement of racial profiling at airports. And they are mindful of the federal government's encouragement that employers be alert and watchful for suspicious conduct in the work place, which many interpret as a mandate to treat differently those who look like, or have names similar to the terrorists.
Notwithstanding the confusion that some may experience in these confusing times, our belief is that the EEOC and the courts will aggressively enforce the discrimination laws in the effort to quickly establish that those of Muslim religious affiliation, as well as Arab-Americans generally, have not been excluded from the very broad protections our law applies to discriminatory conduct. This means that employers who treat Muslim applicants or employees differently, even if just to accommodate the demands of current employees, do so at their own, severe risk. Just days after September 11, the newly appointed head of the EEOC encouraged private businesses to reiterate anti-discrimination policies and complaint procedures as applied to such matters, signaling that the EEOC has no intention of sitting by and allowing itself to be swept up in wartime fervor. We also expect individual Muslims and Arab-Americans who feel that they have been discriminated against to seek redress promptly and aggressively from employers who may be discriminating against them on religious or nationality bases.
In short, we believe this is a legal powder keg, and that many employers will face years of litigation for having misinterpreted what they thought their patriotic duty might have been or for allowing employee anti-Muslim sentiment to dictate hiring and promotion policies.
Some employers have attempted to strike what they perceive to be a middle road by conducting detailed screenings, background checks and interrogations in respect to Muslim applicants (or, even worse, employees that employers think may be Muslim but, in fact, are not). That, however, is unlawful and discriminatory conduct, unless the same level of screening, background checks and interrogation is applied to all applicants. In addition, there are major legal issues that surround performing background checks. A federal statute - the Fair Credit Reporting Act - applies to background checks in ways that are beyond what most employers would reasonably foresee. This is another one of those areas in which common sense does not apply. Do not commence a program of background checks and employee screening without detailed legal counsel.
We know that our advice is easier stated than implemented: do not discriminate, or you will likely incur substantial liabilities. Contact us if you need assistance in methods you can employ to comply with the law while at the same time functioning in an all-too-real world.
Several Employees Are Reservists That Have Been Activated. What Now?
What happens if one or more of your reservist employees is called to active duty? A federal statute, the Uniformed Services Employment and Re-Employment Rights Act, governs the job status of reservists and veterans.
Again, nothing is simple; this is a complicated statute that presents employers with serious potential pitfalls. Basically, an employer's obligations in this arena fall into two categories: retention of health and pension benefits; and reinstatement rights. In respect to health benefits, if the employee is gone for 31 days or less, the employer must continue to pay for health benefits, but if the employee is gone for 32 days or more, the employee has certain rights to continue on the employer's health plan, similar to COBRA rights. Once re-employed, the employee must be immediately reinstated, with no waiting period or other conditions normally imposed on new hires.
With respect to retirement plans, employees must be given credit for time spent on military leave and are not subject to qualification or waiting periods once re-employed. In addition, employers must make up contributions which have been suspended during the employee's leave once the employee is re-hired.
In respect to reinstatement, the situation becomes complicated. The employer must make the maximum amount of employer-allowed leave available to an individual who is called into service. For example, if the employer provides six-month sabbaticals to certain employees, an individual called to military service must be provided that benefit, and the employer cannot require that the employee use accrued vacation, sick time or other paid time off (although if the employee requests to use it, the employee must be permitted to do so). Even if the employee exceeds the amount of permitted leave and is terminated, the employee is still entitled to reinstatement if the individual meets certain pre-conditions.
The above represents only a thumbnail sketch, at best. This is a complicated area, and it must be dealt with in a way that it accounts for the nuances and technicalities of the statute. You will need to seek counsel.
Do I Need To Design And Implement A Security Plan?
Employers have a duty to exercise reasonable care in respect to the protection of employees against foreseeable risks. Obviously, if an employer has reason to believe that employees are endangered from, for instance, toxic chemicals in the work place, most employers would understand their obligation to take reasonable steps to address and minimize the prospect for harm.
But what about the harm from a terrorist attack? Or anthrax-laced mail? Are these foreseeable risks against which an employer must guard? Arguably, at least, September 11 made these events more than remote possibilities. What obligations do employers have to foresee to protect employees against such eventualities?
There is no clear answer. We raise the issue and suggest that the events of September 11 should serve as a spur for employers to create, at the least, basic evacuation and contingency plans for all sorts of reasonably foreseeable disasters, from hurricanes to fires. The key is always that you must take "reasonable" care to prevent harm but, inevitably, what is "reasonable" is determined by hindsight, long after the fact.
This is only the beginning. If you have other concerns or issues, please let us know and we will consider including them in the future issues of Avoiding Lawsuits that we plan to publish in the wake of the September 11 tragedy. In the interim, if we can be of any assistance in helping you navigate this new terrain, please call on us.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
