Employment Law E-Newsletter—Volume 1
EMPLOYERS CAN’T RELY ON SELF-CRITICAL ANALYSIS PRIVILEGE
In an effort to comply with anti-discrimination laws, employers routinely engage in self-evaluation, including compliance audits and compilations of analytic data relating employment issues, such as compensation and promotion, to demographic factors, such as age, gender, race, and national origin. In doing so, most employers have relied on the “self-critical analysis privilege,” which was developed by the courts to encourage employers’ legal compliance by enabling them to monitor their status in that regard without fear that the information generated by that effort would be used against them in discrimination litigation. Last month, Judge Diamond of the United States District Court for the Eastern District of Pennsylvania flatly rejected the “self-critical analysis privilege” as a basis to withhold documents in employment discrimination cases. This decision drastically impacts an Eastern Pennsylvania employer’s ability to protect self-evaluative information during discovery and at trial.
In Davis v. Kraft Foods North America,
No. 03-6060 (E.D. Pa. Dec. 1, 2006), Judge Diamond reasoned that,
if such a privilege were to be applied by the courts, it must first
be created by the legislature and there is no statutory basis for
such a privilege. In light of this decision, Pennsylvania employers
would be well-served to review their current compliance activities
and the applicability of their records retention policy to such materials.
If you would like assistance in developing a strategy to enable you
to assure your company’s on-going legal compliance while avoiding
the risk of future production of your efforts to a plaintiff, call
Kathy Mills at (610) 797-9000.
WAL-MART STUNG IN EMPLOYEE CLASS-ACTION SUIT
After a five week trial and two days of deliberations, a jury in the Philadelphia Court of Common Pleas ordered Wal-Mart to pay at least $78,000,000.00 for violating Pennsylvania law by forcing employees to work through rest breaks and to work “off the clock”. Interestingly, Plaintiffs did not sue under the Fair Labor Standards Act (“FLSA”), the federal statute which governs wage and hour laws. Rather, suit was brought under the Pennsylvania Minimum Wage Act and state breach of contract theories asserting that the corporate policy regarding breaks contained in the employee handbook created a contract that Wal-Mart breached when it required employees to work through breaks.
Pennsylvania employers need to remember both that employee handbooks
can create contractual obligations and that compliance with the FLSA
is not necessarily compliance in Pennsylvania because Pennsylvania
has not adopted the new federal regulations. For Wage & Hour compliance
assistance, please call (610) 797-9000.
FRUSTRATED BY THE FMLA?
Are you struggling to integrate compliance with the FMLA with your obligations under the Americans With Disabilities Act and Workers’ Compensation laws? Do you feel your employees are abusing FMLA leave? Recognizing that the FMLA has become a nightmare for employers, the U.S. Department of Labor is seeking employer comments, anecdotes and suggestions.
You can submit your comments in one of three ways:
(1) In writing to:
Richard M. Brennan,
Senior Regulatory Officer Wage and Hour Division
Employment Standards Administration
U.S. Department of Labor
Room S-3502
200 Constitution Avenue, N.W.
Washington, DC 20210
(2) By e-mail to: whdcomments@dol.gov
(3) By fax to: (202) 693-1432 (for comments of 20 pages or less only)
The DOL is accepting submissions until 5:00 p.m. on February 2, 2007.
Additional information is available at www.dol.gov/esa/whd/fmlacomments.htm.
Kathy Mills can help you through the FMLA labyrinth. Call her at (610) 797-9000.
FINAL USERRA REGS. CONTAIN “GOTCHA” FOR UNWARY EMPLOYERS
The U.S. Department of Labor has released final rules under
the Uniformed Services Employment and Reemployment Rights Act of 1994.
They state that a Plan Administrator may develop reasonable procedures
for service members to follow when electing and paying for continued
health coverage under the statute. If the service member doesn’t
follow the procedures, the coverage may be terminated. There is no
requirement that such a procedure be developed and communicated to
service members, BUT, if it is not done, at any time during the first
24 months of the military leave, the serve member may elect coverage
RETROACTIVELY to the commencement of the military service. Such an
election may prove to be quite costly for the employer.
For USERRA advice, contact Kathy Mills at (610) 797-9000.
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