Part of your Florida Employment Law Service
G. Thomas Harper, Editor
Vol. 22, No. 8 October 2010
Florida judge makes it hard to use general releases in FLSA settlements ............................. 2
Antiunion employee can stop you and union from entering into agreements ..................... 4
What you need to know about growing number of medical marijuana laws ...................... 5
Financial reform law has hidden diversity requirements for contractors . ...................... 6
What does the bedbug epidemic have to do with your workplace? Lots .................... 7
On HRhero.com Discrimination The American workforce is becoming more diverse, with people from all walks of life. It’s important to know the discrimination laws that protect your workers. At www.HRhero.com, you can find the following tools to ensure your policies are on the right path: • HR Sample Policy Harassment and/or Discrimination, www. HRhero.com/lc/ policies/204.html • HR Sample Policy Respectful Workplace, www.HRhero.com/lc/ policies/220.html © M. Lee Smith Publishers LLC
Status supervisory issues, h, dh, hcra, term, pp, empmis, fmla, eer, empret, ada, fcra
Florida jury awards store manager $8.1 million The cost of litigation is expensive. Losing at trial will cost even more. It’s important for a company to be aware of how managers and supervisors are treating their employees, especially those who are protected by the law. Your company’s failure to ensure that supervisors know how to handle the inconvenience of an employee who is dealing with major medical issues can be expensive. While it may be frustrating to a company and its representatives to be inconvenienced by the unfortunate untimely illness of an employee, there may a legal duty to accommodate her situation. And failure to do so can have devastating financial consequences. Here is a recent example from Boca Raton.
Jorud’s story Kara Jorud worked for Michaels as a store manager from 2001 until her termination in October 2008. In September 2005, she was transferred to and became the manager of the Michaels store in Boca Raton. Upon her arrival in Florida, Skip Sand became her district manager. In late 2007, Jorud began having serious health issues, and her doctor had difficulty diagnosing her medical problem. She advised Sand that she had been having some serious health issues and that her doctors were still trying to diagnose the cause. After she informed him of her illness, she claimed his treatment of her began to deteriorate. Specifically, he began to deny her the time
off she was entitled to, gave the store poor grades regardless of its condition, and began placing impossible demands on her and becoming angry when they weren’t accomplished. In July 2008, Jorud was diagnosed with stage II breast cancer. She called Sand the day she was diagnosed to inform him of the situation. She alleged that after she informed him of her diagnosis, his treatment of her further deteriorated. Specifically, he began asking her employees questions about her, as if trying to catch her doing something wrong. In August 2008, Jorud had a lumpectomy to remove the cancerous mass. When her doctors determined that not all of the cancer had been removed, she was informed that she needed a second surgery. Jorud notified Sand that she would be having a double mastectomy. At that point, she alleged that he became very upset and angry. The week after her surgery, Sand allegedly began calling her and asking how soon she would return to work. She told him that she would require at least two weeks to recover from the surgery. Despite that information, Sand continued to call her until she decided to return to work on September 15, even though she didn’t feel healthy enough to do so. On September 18, Sand came to Jorud’s store and wanted to know why
Harper Gerlach PL — www.HarperGerlach.com — is a member of the Employers Counsel Network
Florida Employment Law Letter she hadn’t fixed all the problems with the store that had arisen during her five-week absence. He told her she might as well get her resumé together and that “[he knew] that [she was] sick, but this store has to run.” Not long after that incident, Jorud informed Sand that she was scheduled to have chemotherapy treatment on September 26. In response, she claimed, he again became angry and shouted, “How often do you have to do this?” He eventually told her that she “will be here on Monday after chemo.”
FCRA, and a hostile work environment under the ADA and FCRA.
Jorud eventually contacted Michaels’ employee assistance program (EAP) about Sand’s continued harassment and treatment of her. The EAP never answered or returned her call! She then contacted Michaels’ vice president of operations, Nick Crombie, and complained about the treatment and harassment she was receiving from Sand because of her illness and absence from work. She asked him to help her. On October 1, Crombie flew to Boca Raton and came into Jorud’s store to meet with her about her complaint. He offered to provide her with an accommodation.
Following Jorud’s meeting with Crombie, Sand’s treatment of her worsened. He gave her poor scores for the condition of her store even though she had worked hard to “fix” the store from the shape it was in when she returned from her surgery. She was also contacted by Shawn Gengrich, director of HR, who scolded her for contacting Crombie. After suffering major side effects from the chemotherapy, Jorud informed Michaels that she needed her weekend shifts covered because she was unable to work. When she called Sand, he stated that she needed to work and that they couldn’t lose any more time with her. Eventually, Jorud was able to return to work. On October 13, a large delivery truck was scheduled to deliver merchandise, but there wasn’t room at the store to receive the delivery. Because there was no room in the store and because of her condition, she had her fiancé and his son come to the store on Sunday while she was working to help her move existing inventory to make room for the truckload of merchandise. On October 16, the day before Jorud’s next scheduled chemotherapy treatment, Sand and another Michaels employee came to her store. They entered her office and called Gengrich on the speakerphone. Gengrich informed Jorud that she was being terminated for violating Michaels’ policy against having unauthorized people in the store when her fiancé and his son came in and helped her move merchandise.
The consequences Jorud filed a lawsuit claiming interference with her Family and Medical Leave Act (FMLA) rights, retaliation for exercising her FMLA rights, discrimination under the Americans with Disabilities Act (ADA) and the Florida Civil Rights Act (FCRA), retaliation under the ADA and 2
The case went to trial, and a jury found Michaels and Sand guilty of interference with Jorud’s FMLA rights, discrimination under the ADA, retaliation under the ADA and FCRA, and a hostile work environment under the ADA and FCRA. In sum, the jury found them guilty on all counts and awarded Jorud $8.1 million in damages.
Litigation is expensive, and complaints about discrimination should be handled promptly. Ideally, Michaels’ EAP should have responded to Jorud’s complaint by offering counseling. You should investigate claims promptly (within three to five days), and if they are found to have merit, you must take appropriate action to correct the wrong behavior. While there is no way to ensure your company won’t have to defend itself against a lawsuit at some point, it’s possible to take preemptive measures. Training managers and personnel before discriminatory complaints are made, having published written policies, properly investigating and handling an employee’s complaints, and working with the employee to reach a satisfactory resolution of the issues can not only help you in the defense of a lawsuit but also stop a lawsuit from occurring in the first place. D
release of claims Status roc, setagr, wages, whl, flsa
Beginning of the end for general releases in wageclaim settlements? Fair Labor Standards Act (FLSA) cases have been a frequent topic this year because of the large number of these cases filed in Florida. In our June 2010 issue, we discussed the case of Dees v. Hydradry, Inc., in which the U.S. District Court for the Middle District of Florida outlined in great detail what terms could be included in an FLSA settlement agreement (see “Settling wage and hour cases in Florida,” pg. 1). One of the most common terms included in settlement agreements for virtually every employment case is a “general release” requiring the employee to release the employer from all claims that might exist even if they aren’t the subject of the actual lawsuit. Recently, U.S. District Judge Steven D. Merryday looked at the inclusion of a general release in an FLSA settlement. His conclusion could have a major impact on the future of FLSA settlements for employers in Florida.
The terms In this FLSA case pending in the Middle District of Florida, Tampa Division, the parties submitted their October 2010
Florida Employment Law Letter final settlement agreement for Judge Merryday’s approval. Under the FLSA, if a settlement includes any type of compromise — which most do — it must be court-approved. The parties’ agreement provided for a $14,999.99 total settlement: $4,231.04 for unpaid overtime, $4,231.04 for liquidated damages, and $6,537.91 for reasonable attorneys’ fees and costs. The settlement also included a release, which states in part: In exchange for the Consideration, as set forth in Paragraph 2, Plaintiff . . . hereby waives and releases, knowingly and willingly, Defendant . . . from any and all claims of any nature whatsoever Plaintiff has arising out of his employment with Defendant, known or unknown, including but not limited to, any claims Plaintiff may have under federal, state or local employment, labor, or anti-discrimination laws, statutes and case law and specifically claims including, but not limited to, any claims or allegations contained in or relating to the Lawsuit, arising under the federal Age Discrimination in Employment Act, [every federal and Florida employment law, including the FLSA] . . . , the Florida Constitution, Florida common law and any and all other applicable state, federal, county or local ordinances . . . including claims for attorneys’ fees. Furthermore, if any charge of discrimination is brought on Plaintiff’s behalf, Plaintiff dismisses any claim to any benefits as a result of such charge. Plaintiff agrees that he will not apply for any positions with any of the Released Parties at any time. Plaintiff has been fully compensated for his claims under the Fair Labor Standards Act. Plaintiff also represents and certifies that he
has received full payment for all hours worked while employed by Defendant, including overtime hours, bonuses and vacation pay, and has received all benefits and leaves available or requested under the Family [and] Medical Leave Act. Finally, Plaintiff has not suffered any workplace injuries while working for Defendant.
The problem In looking at the general release language, Judge Merryday specifically stated that “the value of the pervasive release effectively eludes confident assessment and, consequently, the ‘fairness’ of the proposed compromise effectively eludes confident assessment.” The court acknowledged that general releases are common but distinguished FLSA claims from the typical civil action. The FLSA obligates the employer to pay in full any overtime or other wages the employee is owed under the statute, and the inclusion of a “noncash” concession effectively reduces the employer’s payment by an amount equal to the value of the noncash concession — in this case, the general release. Judge Merryday further explained that it is impossible to determine the fairness and full compensation of an FLSA settlement that includes a general release. He asserted that an employer isn’t entitled to use its failure to comply with the FLSA as a tool to leverage a release from liability unconnected to the Act. The judge pointed particularly to the language “known or unknown,” “past, present, and future,” and “statutory or common law,” also found in the release. He found that a general release confers an uncompensated, unevaluated, and unfair benefit on the employer, specifically stating, “The employee bears the risk of loss, and the employer always wins — a result that is inequitable and unfair. . . . The employer’s attempt to ‘play with house money’ fails judicial scrutiny.”
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Florida Employment Law Letter In short, Judge Merryday’s order states that a general release can’t be included in an FLSA settlement. In a separate order issued in the same case, the court also voided a settlement agreement that contained a requirement that the employee keep the settlement amounts confidential. Moreno v. Regions Bank.
Bottom line This is a case we will watch closely, specifically to see if the employer appeals Judge Merryday’s order and if other Florida district court judges adopt his determination making it more difficult to include general releases in FLSA settlements. Judge Merryday based his opinion almost exclusively on the rationale of Dees v. Hydradry. That opinion greatly restricted what terms could be included in an FLSA settlement agreement, but Judge Merryday’s order takes it even further. The inability to include a general release could be detrimental to an employer’s ability to settle all pending and possible claims in an FLSA case. One solution to this problem Judge Merryday didn’t address would be additional payment, specifically apportioned to compensate for a general release. While this is only one judge’s order in the Middle District of Florida, it has the potential to affect FLSA settlements for employers throughout Florida. Therefore, it must be watched closely. D
Status nlra, unions, labor law, uo, eer, conr, lit
In good ‘standing’ The National Labor Relations Act (NLRA), the federal law governing the relationships between unions, employers, and employees, makes it illegal for employers to give “things of value” to a union. However, it is legal for employers to agree not to oppose a union’s efforts to organize their employees in exchange for a benefit. In such a situation, though, the company may not be the only one with strong feelings toward the union. Employees often have strong opinions about the disadvantages of union representation. What is an antiunion employee’s recourse when his employer promises to stay out of the union organizing efforts?
Facts Martin Mulhall sued UNITE HERE, Local 355, and his employer, Mardi Gras Gaming (MGG), asking the court to bar the enforcement of an agreement between the union and MGG that would require the company to provide assistance with the union’s organizing efforts. Mulhall opposed being in the union. In 2004, the union and MGG reached an agreement that the union would contribute to the company’s campaign to obtain a gaming license in exchange for its assistance in making the union the exclusive bargaining unit for its nonunionized workforce. 4
Specifically, MGG: (1) would provide the union with lists of its employees, job classifications, departments, and home addresses; (2) would allow the union to use its property for organizing; (3) wouldn’t oppose the union’s efforts; (4) wouldn’t require secret elections; and (5) wouldn’t file any charges with the National Labor Relations Board during the organizing campaign. In exchange, the union contributed over $100,000 to MGG’s campaign to obtain a gaming license. Eventually, the union attempted to exercise its rights under the agreement, and MGG refused to honor it. The issue went to arbitration, and the employer ultimately was ordered to uphold and honor the agreement. In response, Mulhall filed a lawsuit claiming the agreement was “an illegal and collusive arrangement between a union and an employer” in violation of the NLRA. The union claimed he didn’t have “standing” to file the lawsuit and sought its dismissal.
What is ‘standing’? “Legal standing” is a person’s ability to show that a current law does or will affect him negatively and substantially. To show standing, an employee must be able to show that (1) he has suffered or will suffer an injury, (2) the injury was caused by the conduct at issue, and (3) a favorable outcome to the lawsuit will redress the injury. Mulhall satisfied the first requirement because he has a right of freedom of association under the First Amendment to the U.S. Constitution. The court found that the union’s status as his “exclusive representative” plainly affects his “associational rights” under the First Amendment. When considering the second prong, the court found that Mulhall was able to show an inference that MGG’s assistance would play a critical role in the union’s success in organizing the company’s employees. Therefore, if MGG assisted the union, there would be a substantial increase in the likelihood that Mulhall would be organized against his will. That satisfied the second prong. Finally, if Mulhall obtained an injunction prohibiting MGG’s assistance to the union, the increased risk of being organized against his will would be eliminated. Therefore, the third prong was easily met. Because he was able to meet all three tests, the court determined that he had standing to file his claim. Whether Mulhall will succeed in his claim and ultimately be granted an injunction remains to be seen. Currently, the only decision made by the court is that he has a right to file a lawsuit seeking the injunction. October 2010
Florida Employment Law Letter
Bottom line This decision opens you up to lawsuits filed by antiunion employees. It increases the risk of making agreements with a union that provide for assistance — or even neutrality — in a union campaign in exchange for a benefit. Instead of simply dealing with the enforcement of the agreement between the parties (i.e., the employer and the union), you must also contend with antiunion employees, who add another layer of complication to these types of agreements. D
October 2010 article du, dt, leg, el,federal ada, hcra, os, jri, jrd
Baked but not fired? Medical marijuana laws create uncertainty for your policies The debate over the legalization of marijuana for medical purposes is far from a new one, yet it has seen a recent surge of interest, raising policy and liability questions for employers across the country. Ever since California legalized the use of marijuana for medicinal purposes in 1996, a steady stream of states has followed suit. Fourteen states and the District of Columbia have now legalized the use of marijuana for medicinal purposes.
How do the laws work? Though there have been efforts to pass national medical marijuana legislation, the possession, sale, and recreational use of marijuana remain illegal under the federal Controlled Substances Act. So how do state medical marijuana laws reconcile the illegality of the substance? Medical marijuana legislation generally removes state criminal penalties for the use, possession, and cultivation of marijuana for patients with a recommendation or referral from their physician. Typically, the physician must indicate that the patient will benefit in some way from the use of marijuana for the treatment of specified conditions, which may include illnesses such as cancer, HIV/AIDS, epilepsy, multiple sclerosis, and glaucoma. Additionally, the federal government recently changed its long-standing policy of prosecuting users of marijuana. In October 2009, the Obama administration announced that it would no longer pursue medical marijuana users and distributors in states where it is legal, so long as they comply with applicable state laws. Medical marijuana laws vary in specifying how the marijuana can be dispensed to a qualified patient or caregiver. In some states, certified and licensed dispensing centers are the only legally authorized providers of marijuana, while other states allow patients to grow, cultivate, and consume their own marijuana. Many of those states have now created state-run registries that require October 2010
qualified patients to register and receive special identification cards denoting their medical need. Other states require only that patients possess written documentation from their physicians. All states limit the amount of marijuana that can be grown or possessed during a given time.
States’ laws and their impact Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law, joining Maine, Rhode Island, and Vermont on the East Coast. Alaska, California, Colorado, Hawaii, Michigan, Montana, Nevada, New Mexico, Oregon, and Washington round out the other states where medical marijuana is legal. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so). Last year, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana. In the meantime, existing laws continue to be interpreted and modified through legislative action or court decisions. The laws of the states in which you operate should be carefully examined for guidance. Some states, such as Colorado, have specifically stated that nothing in the medical marijuana law requires an employer to accommodate the use of medical marijuana in the workplace. In such states, it may be clear that employers can prevent employees from using marijuana at work, but it may not be clear whether employees are protected when they come to work with marijuana in their systems or when they test positive in a drug test. Other states have taken the opposite approach, specifically prohibiting employers from disciplining or terminating employees based on their medical marijuana use. Again, it isn’t always clear whether these laws apply to both on- and off-duty use.
Further legal issues, from ADA accommodation to safety Legal questions also arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don’t need to make such accommodations. Because the ADA doesn’t require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment. 5
Florida Employment Law Letter Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties. Therefore, several state medical marijuana laws specifically prohibit the operation, navigation, or actual physical control of a motor vehicle, aircraft, or motorboat while under the influence of medical marijuana.
Bottom line The good news is that in general, court decisions tend to rule in favor of employers that enforce drugfree workplace policies. Further, it doesn’t appear that state medical marijuana laws give employees a special legal claim to sue for wrongful termination. However, it’s hard to say, in light of recent developments on the state and local levels, whether this trend will continue. You should carefully review your drug policies and make sure they include provisions addressing the issue of medical marijuana use. D
government contractors October 2010 federal article. leg, gc, ds, drace, term
Financial reform’s hidden surprise: diversity requirements The Dodd-Frank Wall Street Reform and Consumer Protection Act (also known as “financial reform” or “the Wall Street bill”) made headlines when President Barack Obama signed it into law on July 21. However, many employers probably don’t realize the legislation contains diversity provisions that could affect them if they are contractors, subcontractors, or service providers for certain federal government agencies. More specifically, the diversity requirements found in the bill will affect financial industry organizations and those connected to them.
Office of Minority and Women Inclusion The federal financial regulatory agencies affected by the legislation will have to establish an Office of Minority and Women Inclusion. According to the legislation, each office is “responsible for all matters of the agency relating to diversity in management, employment, and business activities.” Each agency must establish an office no later than six months after the date of the bill’s enactment, and each agency administrator (head of the agency) will appoint an office director. • 6
The agencies subject to these requirements include: the departmental offices of the U.S. Department of the Treasury;
the Federal Deposit Insurance Corporation;
the Federal Housing Finance Agency;
all of the Federal Reserve banks;
the Board of Governors of the Federal Reserve System;
the National Credit Union Administration;
the Office of the Comptroller of the Currency;
the Securities and Exchange Commission; and
the Bureau of Consumer Financial Protection established by the legislation.
Office functions for:
Standards. Office directors must develop standards
(1) equal employment opportunity and the gender, racial, and ethnic diversity of the agency’s workforce and senior management; (2) the increased participation of businesses owned by minorities and women in the agency’s programs and contracts; and (3) evaluation of the diversity policies and practices of entities that are regulated by the agency. Directors must also advise the agency administrator regarding the impact of the agency’s policies and regulations on businesses owned by minorities and women. Additionally, office directors must develop and implement standards and procedures to make sure the agency fairly includes and uses minorities, women, and businesses owned by minorities and women in all of its activities and business. That includes procurement, insurance, and all kinds of contracts. Contracts. The agency’s procedures for reviewing and evaluating contract proposals and for hiring service providers must include “a component that gives consideration to the diversity of the applicant.” Additionally, contractors doing business with the agencies must submit a written statement that they will make sure (to the maximum extent possible) that they (and their subcontractors, if applicable) fairly include women and minorities in their workforce. Termination. If a director determines that an agency contractor (or subcontractor) didn’t make “a good-faith effort” to include women and minorities in its workforce, the director will recommend contract termination to the agency administrator. After the administrator receives such a recommendation, she can: (1) terminate the contract; (2) refer the issue to the Office of Federal Contract Compliance Programs (OFCCP); or (3) take other appropriate action. October 2010
Florida Employment Law Letter
Employers that deal with the above agencies may be affected by these new diversity requirements. According to the legislation, these requirements apply to the following service providers:
How to put some bite into your antibedbug efforts
investment banking firms;
mortgage banking firms;
asset management firms;
financial services entities;
investment consultants; and
providers of legal services.
Additionally, the term “contracts” includes “all contracts for all business and activities of an agency, at all levels, including contracts for the issuance or guarantee of any debt, equity, or security, the sale of assets, the management of the assets of the agency, the making of equity investments by the agency, and the implementation by the agency of programs to address economic recovery.”
What you need to know
October 2010 federal article os, wc, wi
Not so long ago, people could file away any bedbug worries in their mental “faraway travel, odd hotel” file — meaning, “It won’t happen to me.” These days, bedbugs seem to be everywhere, from top-tier hotels to office buildings, movie theaters, and popular retail stores. People work in all of these places. Employers may be scratching their heads (sorry, couldn’t resist) wondering what to do if the critters show up at work. Here are some ideas to get you started.
Bedbugs 101 Bedbugs are dark-colored wingless insects that usually come out only at night for their food of choice: human blood. They’re remarkably hardy and can live for months — some websites say a year — without a blood meal. What’s more, they reproduce readily and have become resistant to some pesticides. They do bite, injecting the sleeping victim’s skin with an anesthetic substance and sucking out blood. Some people don’t react to bedbug bites, but most will develop bumps or welts that can itch mightily. Fortunately, bedbugs aren’t known to transmit disease. Scratching at welts could lead to an infection, however, and some people have developed anxiety and insomnia after bedbug bites.
If you’re a federal contractor, subcontractor, or serv ice provider for one of the federal agencies listed above or you expect to become involved with one of those agencies, you may be facing more regulatory review of your organization’s employment practices. However, exactly what these regulations will entail isn’t clear yet since each agency’s office will develop its own standards.
A recent New York Times article explored the social stigma that people can experience if bedbugs infest their homes, and shunned people can suffer psychological ills like depression. It’s possible that an employee could file a workers’ compensation claim for workplace bedbug bites, just as they have for tick-transmitted Lyme disease and brown recluse spider bites.
Even though the agencies haven’t yet developed the new standards, if you think you may be subject to this legislation, it’s a good idea to start planning ahead. More specifically, you should:
Take bedbugs seriously Awareness and prevention are key to antibedbug efforts. New York City topped Terminix’s recent list of the nation’s 15 hot spots for bedbugs, and when the city’s Bed Bug Advisory Board this year presented recommendations, it first called for public education and awareness.
Determine whether your current contracts, subcontracts, or service agreements would cause you to fall under the legislation.
Review your current diversity programs and practices.
Review the OFCCP’s standards and determine how your organization’s practices and programs compare (since many speculate the new standards will be similar to OFCCP standards).
In the workplace
Decide whether you think you will need to implement new diversity programs and practices to comply with the new standards. D
Perhaps the best thing you can do as a manager is to be open to the possibility that your workplace may harbor bedbugs. Listen to employees if they suspect
Make sure employees understand that bedbugs go where humans go and aren’t a sign of slovenly habits or somehow the carrier’s fault. This message should help reduce any stigma attached to an infestation.
Florida employment law letter Training Calendar Call customer service at (800) 274-6774 or visit us at the websites listed below. FULL-DAY WEB SEMINARS 10-21 “Unionized Employers Virtual Summit: Negotiating CBAs and Mastering Other Labor Challenges,” presented by attorneys James F. Kilcur, Christoper J. Murphy, and Robert C. Nagle. http://store.hrhero.com/unionized 12-15 “Conducting Effective Workplace Investigations Virtual Summit,” presented by attorneys Mark I. Schickman and Kara E. Shea. Watch for details at www.HRhero. com. AUDIO SEMINARS — http://store.hrhero.com/ events/audio-conferences-webinars Also available on CD and audio stream after the broadcast. 10-26 “2011 Recruiting: Find the Best Talent Cost Effectively Using Facebook, Linkedin, Twitter, Skype, and More,” presented by Dan Ryan, Human Capital Group. 10-27 “Essential Function: Writing ADA-Compliant Job Descriptions,” presented by attorneys Audra K. Hamilton and Jonathan R. Mook. 10-28 “Control FMLA Abuse: Documentation Tactics to Deter Employees Who ‘Work the System,’” presented by attorneys James F. Kilcur and Christine Kenny. 11-1 “HR’s Response to New Union Organizing: Countering Social Media, Employee Handbooks and EFCA-lite,” presented by attorney Bonnie Glatzer. 11-3 “Operating in Canada: New Do’s and Don’ts for Employers,” presented by attorneys Brian Smeenk, Derek Knoechel, and Louise Béchamp. 11-4 “Wellness Programs: Avoiding Conflict with HIPAA, ERISA, ADA, the Health Care Reform Law and More,” presented by attorney Ashley Gillihan. 11-9 “New ADA Claims Rising: Workplace Odors, Scents and Allergies,” presented by attorney Dennis J. Merley. D Florida EMPLOYMENT LAW LETTER (ISSN 1041-3537) is published monthly for $447 per year plus sales tax by M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094. Copyright 2010 M. Lee Smith Publishers LLC. Photocopying or reproducing in any form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent.
bedbugs, and check out their complaints promptly. Educate employees to gather evidence (dead bug on sticky tape, for example) and keep track of where it was found so a pest control expert can identify it. It’s better to tackle bedbugs early than to deny they exist and put off trying to get rid of them. As the New York Bed Bug Advisory Board pointed out in its report, there are no “best practices” for pest management professionals. Pest control personnel use a variety of approaches, it’s hard for customers to evaluate them, and “scams and fraudulent services are becoming increasingly common,” the board’s report states. The board includes initial pest industry guidelines as an appendix to its report. The Harvard School of Public Health’s webpage on bedbugs, www.hsph.harvard.edu/bedbugs, recommends contacting a licensed pest control operator who is knowledgeable and experienced in managing bedbug infestations. Ask for references, and ask at least a few of the operator’s customers about their experiences before agreeing to any contract. One term that comes up repeatedly in bedbug-control discussions is integrated pest management (IPM), which employs “all possible methods in a logical combination that minimizes risk of pesticide exposure, safeguards the environment, and maximizes effectiveness,” according to the state of New York’s IPM website. Facilities should have a pest management plan in place to deal with pests, including bedbugs, before they’re a problem. IPM methods include: •
inspecting infested areas and surrounding living spaces;
correctly identifying pests;
keeping records of times and places where pests are found;
following cleanup procedures;
using pesticides as appropriate;
following up with additional inspections and treatments; and
educating people on preventing bedbugs.
Final thoughts These ideas on preventing and addressing bedbug problems in the workplace aren’t meant to be exhaustive. They can, however, offer a starting point in developing an approach to keeping bedbugs and other pests out of your workplace so they can’t cause problems for you and your employees. D
Editorial inquiries should be directed to G. Thomas Harper or Gregg Gerlach at Harper Gerlach PL, 4110 Southpoint Blvd., Ste. 228, Jacksonville, FL 32216, (904) 296-7000 or gth@harpergerlach. com or email@example.com. Go to www. HarperGerlach.com for more information. Florida EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Florida employment law.
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