My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide.

You wouldn’t think that fingerprinting would be brought into the world of religious accommodations.

After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly.

Vulnerable populations need assurance that those with whom they will be dealing have their best interests at heart.

Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting.

In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check.

She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerprinting would bar her entry into heaven.

She asked for an accommodation.

The employer checked with state and federal authorities responsible for doing the background checks, including the FBI, the State Department of Education, and the School District for whom she drove.

They were unable to provide guidance on what alternatives there were under the state law.  As a result, the bus company, faced with a criminal charge and fine if the driver were not tested, terminated the driver.

The fired employee then sued.

The bus company sought to have the case dismissed without having to go through discovery or a trial, but the court rejected this effort.

The court found that the bus driver sufficiently described her sincere religious belief about being barred from Heaven if she were fingerprinted and that an accommodation should have been made, as there was an insufficient basis to establish that the employer would suffer an undue hardship, at least at the initial phase of the litigation.

Further, the court said the employer’s assertion that it lacked the power to grant an exception to the fingerprinting requirements required greater exploration during discovery.

The bus company now must go through discovery before it has another opportunity to have the case thrown out short of a trial.

Connecticut employers face the same potential problem, because Connecticut law does not provide an alternative to fingerprinting.

Recognizing that potential issue, it will be important to look for ways to accommodate applicants and employees who raise religious objections.

Certainly, there are persons who cannot be fingerprinted or whose fingerprints cannot be read.  Employers should seek out accommodations and carefully document the steps they take to explore alternative testing techniques.

They must be able to show that the steps to find an accommodation were reasonable and if an accommodation were not possible, why the situation would create an undue burden.

It would be far better to take the time before firing or rejecting an applicant to explore what is possible than to defend a lawsuit.

For more on Kaite v. Altoona Student Transportation, Inc., click here.


Lucan_J_WebMy colleague Jarad Lucan returns today with an update on a post regarding the impact that recent labor law decisions are having on colleges and universities.

Two years ago, my colleagues and I reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the right to unionize.

The Regional Director in that case determined that the players were employees under the National Labor Relations Act (the “NLRA”) and therefore could vote to be represented by a Union in connections with negotiating terms and conditions of employment with the University.

Ultimately, the Board refused to exercise jurisdiction over the players  and therefore left open whether they are employees under the NLRA or not.

At the time we reported on the case,  we discussed some of the impacts of the decision beyond the ability of players to unionize, including that the Board may scrutinize the University’s policies to see if those policies complied with the NLRA.

More specifically, whether the policies were written in a way that would either expressly or implicitly prevent the players from engaging in protected concerted activity.

Apparently, someone did challenge the “Football Handbook” and on September 22, 2016, The Board’s Office for the General Counsel issued an advice memorandum related to that charge advising against the issuance of a complaint.

The memorandum assumed that the football players were employees, and indicated that:

[i]t would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.

According to the memorandum, Northwestern modified its handbook pertaining to social media use striking portions of the rules, in most cases replacing with new language.

In particular, Northwestern took out language barring student-athletes from posting things online that “could embarrass you, your family, your team, the Athletics Department or Northwestern University.”

The new text is more specific, telling the athletes not to post things that “contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.”

The memorandum also pointed to changes with the University’s rules on disclosing injury information, which had told players to “[n]ever discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone” saying the “team is a family and what takes place on the field, in meetings or in the locker room stays within this family.”

The new rule says football players should not reveal injuries because of “the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes” but says the rule does not “prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.”

According to the memorandum, “[t]hat modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.”

The memorandum further noted that the school eliminated a dispute resolution policy for student-athletes to bring a “complaint or grievance concerning personal rights and relationships to the athletic program,” which required the players to first bring such issues to the director of football operations.

So if the memorandum advised against an issuance of a complaint, why should you care about it?

Well, as was recently reported, in the Columbia University case, the Board held that student teaching assistants were employees covered by the NLRA.  These employees not only have the right to unionize, but also have the right to engage in protected concerted activity even if they do not unionize.  Any handbook or policies, therefore, governing the terms and conditions of the relationship between the teaching assistants and the college or university will likely come under the NLRB’s scrutiny.

So, employers beware (again): You should review, or have your attorney review, your current policies and handbooks to ensure compliance with the NLRA.

Late yesterday, Twitter lit up with news that collegiate student athletes are really “employees”.  But beyond the headline, my colleague Jarad Lucan explains what REALLY happened in plain English. Suffice to say, even though it’s March Madness, you might not want to bet on that result just yet.

Many of you may remember a few weeks ago when I joyously reported on an advice memorandum issued by the NLRB’s Office of the General Counsel that was favorable to an employer.

Well, that was February. Welcome to March Madness.

 In a decision that calls for one of Dick Vitale’s signature “Are you serious?!” sound bites, the NLRB’s Regional Director in Chicago determined that the grant-in-aid scholarship football players at Northwestern University are employees of the University.

According to the Regional Director, these football players generate tens of millions of dollars per year for the University (approximately $235 million in nine year period between 2003 and 2012). In return, the receive “compensation” from the University in the form of scholarships.

That the scholarships are a transfer of economic value is evident from the fact that the Employer pays for players’ tuition, fees, room, board, and books for up to five years. Indeed the monetary value of these scholarships totals as much as $76,000 per calendar year and results in each player receiving total compensation in excess of one quarter of a million dollars throughout the four or five years they perform football duties for the Employer.

Now, I know what some of you are thinking, well that’s great for those football players, but they are getting an education for free in return for the scholarship. After all they are “student-athletes,” right?

Not according to the Regional Director.

Based on the evidence presented, the Regional Director stated that the grant-in-aid scholarship football players are not “primarily students.”

Can you imagine that? In reaching that conclusion, the Regional Director distinguished the football players from graduate students who according to the NLRB’s 2004 Brown University case were not employees of the University.

Also important to the Regional Director’s decision was the fact that the grant-in-aid football players are subject to the control of the University. The players signed “tender” agreements upon acceptance of a scholarship that sets the duration and conditions under which their “compensation” will be provided to them. They are subjected to rigorous practice, travel and competition schedules and are limited (by NCAA and University rules) in their ability to make their own living arrangements, apply for outside employment, drive personal vehicles, travel off campus, post items on the internet, or speak to the media.

In that regard, the Regional Director determined that walk-on players were not employees because they are not tied to the same restrictions as scholarship players. They are students who simply love football.

It is too early to determine what impact of this decision will have on employers in the future. Arguably, the case was decided based on the specific set of facts presented (i.e., a University football program that generates millions of dollars and places highly restrictive conditions on its players). Also, it may not have much applicability outside of the private university and college setting (other than being one of the most fascinating decisions rendered in a long time).

But perhaps more importantly, this is certainly not going to be the last word on this issue. The University has until April 9, 2014 to seek review of this decision with the NLRB in Washington, D.C.  And Northwestern still has various other options (i.e., stop giving scholarships as the Ivy League schools did, agree they are employees and bargain hard, possible lockout).

And even if the University does seek review, the grant-in-aid scholarship football players will still have an opportunity to vote on whether they would like to be represented by the College Athletes Players Associations (CAPA) for purposes of dealing with the University concerning grievance, labor disputes, wages, rates of pay, hours of employment, and conditions of work.

So, despite the stories you read yesterday, the Regional Director’s decision is not the last word on this.  It’s just the opening (or, as the NCAA would say, the “first”) round.

The Appellate Court, in a decision that will be officially released next week, rejected the claims of a former medical resident that his program director owed a “fiduciary duty” to protect that resident’s interests.

In Golek v. Saint Mary’s Hospital, Inc. (download here), the court was asked to review the propriety of a decision by a hospital that conducts an accredited surgical residency training program to decline to promote a senior resident to the position of chief resident.  In all facets of its review, the Court upheld the hospital’s decision.

Much of the decision concerns a review of evidentiary issues and jury instructions. But one facet of the decision should be of note to employers.  It reviewed the appropriate standards as to whether a fiduciary relationship was created; if a relationship is found, that creates a higher standard of care by the fiduciary.

It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . . we have recognized that not all business relationships implicate the duty of a fiduciary. . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.

To show this, the court said, requires ‘‘a unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff.’’

Here, the court rejected the notion of a fiduciary relationship between the resident and program director, noting that the resident is an “adult”. 

[No] fiduciary relationship existed between [the director] and the plaintiff while the parties were negotiating the plaintiff’s role in the surgical residency program. As the [trial] court noted, the plaintiff is an adult who voluntarily became a physician and entered the hospital’s surgical residency program. The plaintiff alleges that … [the] program director, sometimes praised and sometimes criticized the plaintiff’s performance and that he certified surgical residents’ performance records to ACGME. That history does not suffice to establish anything other than a form of a student-teacher relationship. We know of no case, and the plaintiff has cited none, to support the proposition that such a relationship, without something more, was fiduciary in nature…

For employers, understanding claims like this are the best way to avoid such claims in the future. Disclaimers to employees that they are “at-will” and that nothing in an offer letter is intended to alter the employee-employer relationship, are one way to reduce the risk of such claims in the future.

Lately, I’ve been doing quite a few presentations on social media, including, most recently, one for a school district.

One of the trickiest questions that comes up: Is it "legal" to "friend" a subordinate in the workplace? Or for teachers, is it "legal" to "friend" a student? 

(I use the term "friend" to be the process of making an online connection on the social networking site, Facebook.)

The answer I provided at these sessions is a very qualified "Yes".  It is "legal" in the sense that there isn’t an explicit law prohibiting people from engaging in that activity.

But, and this is a very big "but", the real question to ask is whether it is a good idea to do so and whether it is appropriate to do so.  In some instances, doing so can lead to potential issues in the future. 

In the private workplace, friend requests from a supervisor can be misinterpreted and can put pressure on a subordinate.  And for a supervisor, it is really important to see a subordinate’s private pictures? 

In schools, Facebook relationships could be easily misinterpreted by students and, for teachers, there is a risk that their private information could get distributed by students who have less concern for privacy than others.

Of course, there is not a one-size fits all approach to social media.  It may work for some workplaces and some schools. Others may take a much more restrictive approach.

By raising this, I’m not suggesting that social media in workplaces or schools should be banned.  Teachers, for example, might find a lot of utility in setting "fan pages" for students in their classes and their parents.  Social media is a potent communications tool that isn’t inherently "good" or "bad." How you use it is up to you. 

But workplaces and schools cannot just hope their workers, teachers and students will do the "right thing" about it. Much like e-mail, parameters should be established through guidelines and policies. The time is right now.   It is a lot easier to implement BEFORE a lawsuit happens, than play catchup afterwards. 

On Friday, I’ll be speaking to a group of local high school and middle school teachers about some best practices on the use of technology in the workplace.  

Among the central messages of the presentation? No guideline can be a substitute for using good judgment and common sense.

With teachers, that message is more important than ever. Increasingly, the lines between private and professional lives are getting blurred; for teachers, though, it is of critical importance to maintain that boundary.  One-on-one chats with students have long been seen as an opportunity for trouble and social media and instant messaging create opportunities for that to happen.  

Indeed, even the "smart" teachers can get ensnared into the social media trap.  Witness the 2010 Teacher of the Year from a Texas elementary school who posted pictures of her students on a publicly-accessible blog.  

That’s not to say that social media should be off limits for all teachers. Far from it.  There are some who are using it quite effectively in the classroom.  The New York Times did an article last week that highlighted a few and offered lesson plans on their website.  

But it does mean that teachers need to think about their actions online.  Increasing privacy settings on Facebook and maintaining a professional image — even outside of work — are two areas that teachers can focus on and accomplish.