Jurisdiction: USDC IL, 7th Circuit, Illinois

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  The employer requested what the magistrate judge described as "intimate" social media conversations by her with male employees of the company.
  
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  The magistrate judge ordered her to produce two Facebook messages concerning intimate conversations between her and certain male coworkers.
  
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  She argued that the judge was wrong on the law of the procedural discovery rule (FRCP 34) and the evidentiary rule (FRE 412) because evidence of a person's prior sexual history is inadmissible at trial, i.e., evidence offered to prove a person's sexual predisposition or that a victim engaged in other sexual behavior is inadmissible unless . . . "its probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party."
  
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  The employer’s contentions were:
  
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    The communications "may contain information regarding occurrences during the relevant time period that may either support Defendant's defenses and/or contradict Plaintiff's allegations." The employer would use such evidence in her social media texts that she was behaving in sexually suggestive ways, and therefore any alleged "harassment" by her supervisor was not "unwelcome" [which is a legal requirement for proving sexual harassment].
    
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    However, there was an issue of timing because those communications occurred some nine months to over two years after her employment, which might be found by the trial judge to be so remote in time as to have only slight, if any, relevance on the specific issue in the case.
    
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    Alternatively, the employer argued that the materials might be used for impeachment if one of the participants in the conversations testified in her favor and then denied that they had a sexual relationship
    
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    The trial judge rejected her contention and ordered her to produce:
    
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    the pages requested from her Facebook site that stated . . . "me give you money" and "is u still gone gimmie some like you said?" in two Facebook messages posted by her, and
    
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    . . . "its time for make up sex" in a tweet sent by her.
    
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  The federal district judge reviewing the magistrate judge’s ruling agreed with the employer’s alternate argument and allowed redacted versions of the communications into evidence at trial before the magistrate [details in the full decision].
  

Title VII and ADA: EEOC fact sheet/guidance; employment situations involving domestic violence, sexual assault, or stalking; disparate impact

Summary by Judge Bustamante of the New Mexico Court of Appeals, to notify you of the issues:

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  2^nd Circuit citation: Windsor v. United State of America, No.12-2335-cv(L); 12-2435(Con); from Scribd, pending restoration of power in NYC and posting to the official website of the Second Circuit: http://www.scribd.com/doc/110431508/12-2335-447.
  
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  1^st Circuit citation: Gill v. Office of Personnel Management, Nos. 10-2207 & 10-2214 (1st Cir., 5/31/12 ); http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2204P.01A; http://www.ca1.uscourts.gov/pdf.opinions/10-2204P-01A.pdf.
  

The Supreme Court announced on 10/29/12 that it has scheduled all same-sex marriage cases currently pending before the Court for consideration at its November 20, 2012 scheduling conference. Currently at issue before it are:

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  eight petitions dealing directly with DOMA,
  
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  one petition concerning California's "Proposition 8" ban on same-sex marriage, and
  
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  one petition dealing with Arizona’s law similar to DOMA that restricts marital benefits for state workers solely to opposite-sex married couples.
  

Wages: timekeeping policy, rounding time recording, “nearest-tenth rounding policy”

NLRB: definition of supervisor, extent of NLRB holding; lack of substantial evidence

1. 
   that the Board had "meticulously excluded or disregarded" evidence that the LPNs were supervisors, and
   
2. 
   thus lacked substantial evidence to support its conclusion that the LPNs were employees rather than supervisors.
   

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  The UFCW already represented the Certified Nursing Assistants at Lakeland.
  
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  It then attempted to organize the LPNs.
  
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  Lakeland challenged the attempt, contending that the LPNs had supervisory authority over the CNAs and responsibly directed and assigned their work, and argued that the LPNs were "supervisors" rather than "employees" under the NLRA, and therefore the proposed bargaining unit of supervisors was not an appropriate unit for an election.
  
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  Considerable hearings and litigation followed.
  

Ultimately, the issues came before the appellate court, which ruled in favor of Lakeland. [Note: litigators who need to the details of this case are invited to read all 52 pages of this opinion.]

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  the employer ought to note in writing the existence of the problematic NLRB decision but
  
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  take prompt remedial action on the problem created by the NLRB (which in Fresenius was vulgar, harassing and threatening statements – and bear in mind, as always, that the in a hostile work environment situation the misconduct must be sever and/or pervasive;
  
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  the employer has published written anti-discrimination policies in which everyone had been adequately trained;
  
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  detailed documentation of the employer’s remedial actions would be essential;
  
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  if litigation resulted, then employer would be able to demonstrate its good faith efforts to comply with all possibly applicable employment laws, and
  
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  the problematic NLRB decision would need to be challenged in that process;
  
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  similarly to the challenge to the NLRB decision in the Lakeland case.
  

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  The defendant requested this instruction: “An employer seeking an exemption from the overtime requirements of the FLSA bears the burden of proving an exemption”
  
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  The plaintiff requested this instruction: “An employer seeking an exemption from the overtime requirements of the FLSA bears the burden of proving that the particular employee fits plainly and unmistakably within the terms of the claimed exemption.”
  

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  Wellness or prevention programs should be part of a bona fide insurance plan.
  
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  Try to do as much as possible to make the plan and incentives actually “voluntary” [an important factor], such as offering financial benefits to employee actions rather than increasing costs for actions or inactions.
  

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  Employee Retirement Income Security Act,
  
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  Health Insurance Portability and Accountability Act,
  
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  Genetic Information and Nondiscrimination Act,
  
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  Patient Protection and Affordable Care Act, and
  
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  EEOC guidance, state laws, and federal and state case law.
  

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  In 2009 the employer’s group health insurance plan included a wellness program consisting of an online questionnaire and a biometric screening that measured glucose and cholesterol levels, and participation was not a condition of enrollment.
  
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  However, as of April 2010, enrolled employees who did not participate in the wellness program were charged $20 extra on their biweekly paychecks.
  

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  An entity covered by the ADA cannot require of a current employee either medical examination or inquire about whether an employee has a disability (and any related details) unless the inquiry or examination is job-related and consistent with business necessity.
  
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  General medical exams or checkups, health risk assessments, or screens are normally part of a wellness program and are unlikely to be job-related or subject to business necessity because the purpose of a wellness program has a different perspective from that of a participant’s essential job functions.
  
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  However, there is an ADA exception when a wellness program is “voluntary,” which the EEOC guidance 2000 defines as “neither requires participation nor penalizes employees who do not participate.”
  

Though there may have been an issue about whether the $20 biweekly charge was “voluntary” as a matter of actual practice, the appellate court looked to the ADA safe harbor provision that exempts certain insurance plans from the general prohibitions of the statute. That provision states the ADA does not prohibit a covered entity from “establishing, sponsoring or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks or administering such risks.” Based on this, the appellate court held the plan fell under this exception and did not address the question of whether it was “voluntary.” Thus, the litigation will proceed in the trial court, perhaps all the way to a jury trial.

• 
  Joseph Casias had worked for five years by Wal-Mart as an inventory control manager.
  
• 
  In June of 2009 he qualified for and obtained a medical marijuana registry card under the 2008 Michigan Medical Marihuana Act (MMMA).
  
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  After obtaining the card he began using marijuana outside of work to treat ongoing pain.
  
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  Wal-Mart’s written drug testing policy required that an employee injured at work must submit to post-accident drug testing.
  
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  He injured his knee at work in November 2009 and was required to take a post-accident drug test, at which time he informed his manager and the drug testing staff that he possessed a medical marijuana registry card pursuant to the MMMA.
  
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  Testing positive for marijuana, the week later his employment was terminated in accordance with the employer’s policy.
  

He filed suit in state court on the grounds wrongful discharge in violation of public policy and violation of the MMMA(Mich. Comp. Laws § 333.26424(a)), which states:

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  The employer removed the action to federal court and requested dismissal of the action.
  
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  The district court held the MMMA does not regulate private employment and dismissed the wrongful termination action.
  
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  The federal appellate court affirmed the lower court dismissal, finding “the MMMA does not impose restrictions on private employers….” Its opinion was based on two points, plain language and public policy:
  
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    Plain language:
    
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      He contended that the plain language of the MMMA protects patients against disciplinary action in private employment for using marijuana because the word “business” in the law should be read independently from “licensing board or bureau.”
      
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      The appellate court disagreed because “Based on a plain reading of the statute, … the word ‘business’ describes or qualifies the type of ‘licensing board or bureau.’” Thus, it found the statute “is simply asserting that a ‘qualifying patient’ is not to be penalized or disciplined by a ‘business or occupational or professional licensing board or bureau’ for his medical use of marijuana.”
      
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      It also rejected is contention that the plain language of the statute “somehow regulates private employment relationships, restricting the ability of a private employer to discipline an employee for drug use where the employee’s use of marijuana is authorized by the state.” It stressed the statute does not expressly refer to employment, “nor does it require or imply the inclusion of private employment in its discussion of occupational or professional licensing boards.”
      
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      Finally on that point, it noted that other courts that have considered other similar state medical marijuana laws have found they do not regulate private employment actions.
      
  • 
    Public Policy:
    

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  His contention on this issue was that termination of his employment violated the public policy of Michigan stated in the MMMA.
  
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  The appellate court declared that this interpretation unacceptably broad, explaining that such an interpretation “could potentially prohibit any Michigan business from issuing any disciplinary action against a qualifying patient who uses marijuana in accordance with the Act.”
  
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  Further, it reasoned, “Such a broad extension of Michigan law would be at odds with the reasonable expectation that such a far-reaching revision of Michigan law would be expressly enacted. Such a broad extension would also run counter to other Michigan statutes that clearly and expressly impose duties on private employers when the duties imposed fundamentally affect the employment relationship.”
  

FMLA: How Do Employers Count Unexcused Absences When FMLA Medical Certification is Not Returned?