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EEOC wrestles with social networking sites in proposed GINA regulations

June 3rd, 2009  |  Pamela Wolf

>The EEOC has joined the ranks of those who are trying to figure out exactly how the Internet – personal and social networking websites, in particular – fit into the antidiscrimination landscape. In March, the EEOC posted its proposed regulation implementing Title II of the Genetic Nondiscrimination Act of 2008 (GINA), specifically requesting comments concerning the “commercial and publicly available” exception to GINA’s prohibition against employer requests, requirements or purchases of genetic information about an employee or his or her family member.

GINA’s exception comes into play “where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history.” (Sec. 202(b)(4)). The proposed reg expands on the sources excepted from the prohibition by adding “through electronic media, such as information communicated through television, movies, or the Internet.” (29 CFR Part 1635.8(b)(4)). The agency invited comments about sources similar to those identified in the statute, such as personal websites or social networking sites, which might contain family medical history that should be included either among the excepted sources or the prohibited sources, such as personal websites or social networking sites.

Some comments pointed out the obvious: that personal websites, blogs and social networking sites are widely used by the public and, thus, should fall within the commercially and publicly available sources exception. Others were more nuanced and focused on the type of access required or the likelihood the site would contain genetic information, rather than a private vs. public distinction. Where the site is limited by group membership, requires an individual to permit access or has a likelihood of containing genetic information, the exception should be unavailable under this model. Still others suggested that the exception should not apply where there is specific intent to search for information about a particular individual or family member – otherwise, the exception would swallow the rule. As one commenter put it, “the regulation must regulate conduct and not simply selected sources of information.”

Moreover, excluding searches of medical databases and court records from the exception doesn’t go far enough, according to some commenters. Covered entities should be prohibited from engaging in conduct that will knowingly or likely lead to collection of genetic information, including Internet searches for personal information about employees and their families. Thus, covered entities should not be allowed to search for information about employees or applicants or their family members on social networking sites because of the likelihood that family history information will be included, under this theory.

Concern that covered entities would purchase consumer lists and profiles containing medical information made available by the large and lucrative consumer databroker industry was also expressed by some commenters. To prevent against acquisition of genetic information under the guise that it was incidentally obtained from a consumer databroker, this source of information should be treated in the same manner as medical databases, and thus, not subject to the exception, these commenters opine.

It’s worth mentioning that the EEOC’s proposed regulation also includes a confidentiality provision stating that although genetic information acquired through publicly available sources is not considered confidential genetic information, it may not be used to discriminate against an individual. (Sec. 1635.9(a)(4)).

Nonetheless, it would seem that a cautious, and perhaps skeptical, approach to the issue may be warranted. According to Market Watch, studies show that more than 40 percent of employers have trolled Facebook and other social networking sites to obtain information about applicants. Moreover, when they discover negative information on these sites, more than 80 percent of employers factor that information into their hiring decisions. When Title II of GINA takes effect on November 21, 2009, there will be one more factor for employers to take into consideration, or not.


NLRB argues DC Circuit’s quorum ruling “erroneously” departs from Supreme Court precedent, seeks rehearing

May 29th, 2009  |  Connie Eyer

>The National Labor Relations Board filed a Petition May 28, 2009, in the US Court of Appeals for the District of Columbia Circuit for a rehearing of Laurel Baye Healthcare. In its Petition, the Board argues that the decision is in conflict with decisions of the Seventh Circuit and the First Circuit, which hold that the plain meaning of Section 3(b) authorizes a two-member quorum of a three-member group to issue Board decisions, even when, as here, the Board has only two sitting members. Further, the Board claims the decision erroneously departs from principles that the Supreme Court has previously recognized should govern the construction of the quorum and vacancy provisions applicable to federal administrative agencies. The previous decision was issued May 1, 2009.

Background. In Laurel Baye Healthcare, the court vacated and remanded the Board’s Decision and Order, finding that the Board—composed of only two members instead of the required three—was not properly constituted and did not have the authority to issue the order. The court reasoned that the Board’s interpretation of NLRA, Section 3(b) violated the “principal of statutory interpretation” by steering clear of various portions of the statutory language. The interpretation by the Board, noted the court, seemed to ignore the requirement that the quorum requirement of at least three members be satisfied “at all times.”

The court found that the Board seemed to treat its group quorum requirements and those of a delegee group as mutually exclusive—which was not the case. The language of a delegee group quorum requirement did not do away with the Board’s requirement of at least three members; rather, it stated that “only the quorum of any three-member delegee group shall be two.” Thus, the court stressed, the Board quorum requirement of a three-member panel still had to be satisfied, irrespective of whether the Board’s authority was delegated to a group of its members.

The court concluded that, while the language of the two quorum provisions (those used by the Board to advance its argument) allows for a three-member Board to delegate its powers to a three-member group, and this delegee group can act with two members, it can only do so as long as the Board quorum is “at all times” satisfied—which was not the situation presented in this case. Therefore, in finding that the Board was not properly constituted when it issued its decision, the court granted Laurel Baye’s Petition and vacated the decision. The case was remanded to the Board for decision at such time as a proper quorum is established.


Sotomayor’s employment decisions under scrutiny

May 28th, 2009  |  Lucas Otto

The recent nomination by President Obama of Sonia Sotomayor as his pick for US Supreme Court Justice has sparked debate on whether her judicial “tendencies” fall more to the left, right, or somewhere near the center. From an employment law perspective, her opinions have often sided with the plaintiffs, and this may have some employers concerned that her vote may tip the scales against them.

Sotomayor’s opinions have dealt with race, sex, age and disability discrimination. In particular, look to her reasonings in:

A comprehensive review of these and other decisions has been prepared by Akin Gump’s Tom Goldstein and a group of summer associates. The resulting summary of civil cases, including several noteworthy rulings, are posted on ScotusBlog.


Pyett line of cases promises wide umbrella

May 27th, 2009  |  Matt Pavich

>On April 1, 2009, the US Supreme Court issued its decision in 14 Penn Plaza LLC v Pyett, holding that unions, through arbitration provisions in collective bargaining agreements, may waive the rights of individual employees to litigate discrimination claims. A little over one month later, the first cases comprising the future Pyett line were released. From these two decisions, it seems likely that lower courts hearing mandatory arbitration cases will cite the Supreme’s decision in Pyett in support of their holdings, regardless of whether the facts suit the rather unique circumstances underlying the Pyett decision.

In Mathews v Denver Newspaper Agency LLP, the District Court for the District of Colorado found that an employee’s right to litigate his retaliation and discrimination claims was waived and cited Pyett for the proposition that discrimination claims are waivable through grievance arbitration. Unlike Pyett, the plaintiff had the opportunity to litigate his claims, but instead opted for binding arbitration, as his CBA allowed. In essence, the plaintiff himself waived his right to litigate his claims. The waiver did not stem from the CBA, as in Pyett, but rather from the plaintiff’s own choice.

The District Court for the Southern District of New York has also weighed in. In Kravar v Triangle Services, Inc, the court cited Pyett for the proposition that CBAs which effectively preclude plaintiffs from raising discrimination claims in any forum cannot be upheld. The Supreme Court’s decision in Pyett expressly declined to consider whether the CBA in that case acted as a substantive waiver of the plaintiff’s ADEA rights; although the provision allowed the union to block arbitration, the plaintiffs failed to brief the issue. The Southern District faced exactly that question. The CBA in question stated that all discrimination claims would be settled through arbitration, but only if the union requested it. The union decided not to arbitrate, and in so doing, blocked the plaintiff’s substantive rights. If anything, this case suggests that the questions raised by Pyett will continue to fuel debate, until the Supreme Court rules on this final point.

The Court may not get the chance, however. The Senate version of the Arbitration Fairness Act includes a provision that would expressly overturn the US Supreme Court’s ruling in Pyett. Russ Feingold, the measure’s author, has said that the proposed bill would “make it clear that such agreements may not waive employees’ rights to take federal and state statutory or constitutional claims to court.”


Hobby Lobby bucks economic trend

May 15th, 2009  |  David Stephanides

>Hobby Lobby, a retail chain of more than 400 arts and crafts stores, has increased the wages of full-time hourly employees to a minimum of $10 per hour, more than 52 percent above the national minimum wage of $6.55 per hour. This increase and other pay raises for full-time hourly employees earning up to $13 per hour will raise the pay of more than 6,900 employees, some by up to nearly $600 per month. “Our employees are the backbone of our company, and we believe that giving them the opportunity to share in our success is the right thing to do,” said David Green, CEO and founder. It’s not the first time Hobby Lobby has bucked the trend in trying times: last year the company gave raises to offset cost of living increases when gas prices rose.