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Missouri ®

What’s Inside

Part of your Missouri Employment Law Service

Vance Miller, Robert Kaiser, John Vering III, Joan Z. Cohen, Editors Armstrong Teasdale LLP

Vol. 20, No. 8 October 2010

Employer Liability

Employer that didn’t know of need for leave not liable for FMLA interference ......... 2


Employee who was fired after FMLA-covered absence loses interference case .................... 3


Intermittent FMLA leave a problem? A recent court decision may help . ............... 5


Financial reform law has hidden diversity requirements for contractors . ...................... 6

Agency Action

OSHA launches new website devoted to whistleblower protection ............................... 7

On 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, you can find the following tools to ensure your policies are on the right path: • HR Sample Policy  Harassment and/or Discrimination, www. policies/204.html • HR Sample Policy  Respectful Workplace, policies/220.html © M. Lee Smith Publishers LLC

individual liability status il, suplia, wc, el, jri, wcer, neg

No coworker immunity — more casualties in the workers’ comp war by Wilbur Tomlinson On August 3, the Missouri Court of Appeals for the Western District held in Robinson v. Hooker that employees have no immunity from civil lawsuits filed by their coworkers for injuries covered by the Missouri Workers’ Compensation Act (WCA). The court reversed the long-standing rule that coworkers are immune from suit unless they did “something more” than breach the employer’s duty to provide a safe workplace. If the Missouri Supreme Court doesn’t reverse the appellate court’s decision, this case could open the floodgates for lawsuits against coworkers. Seldom is an employee injured that the potential for a negligence claim against a fellow employee doesn’t exist. The decision makes supervisors particularly vulnerable. For example, in one case, an employee sued the safety manager at the facility where he worked when his safety glasses failed to protect his eye. The case was dismissed because the failure to provide adequate safety glasses was deemed a breach of the employer’s duty to provide a safe workplace. However, under the Robinson decision, the case — and many others like it — would proceed in civil court.

Background The effect on employers can best be seen in a case that the Robinson court said was no longer good law: State ex

rel. Badami v. Gaertner. In that case, an employee’s hand was injured when it was drawn into a shredding machine. Of course, the employee received workers’ comp. Nevertheless, he sued the company’s president and the production manager on the grounds that they were negligent in failing to equip the shredding machine with certain safety devices that would have prevented the injury. In adopting the “something more” rule and directing the dismissal of the case, the Badami court noted: Under present day industrial operations, to impose upon executive officers or supervisory personnel personal liability for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees. That would effectively destroy the immunity provisions of the workmen’s compensation law. Since the Badami decision in 1982, Missouri courts have applied the “something more” test with increasing rigor. Missouri was slowly coming in line with the majority of states that either prohibit such suits entirely or severely restrict claims against coworkers. The Robinson decision is a sudden departure from that trend.

Armstrong Teasdale LLP is a member of the Employers Counsel Network

Missouri Employment Law Letter

Facts Clearly, the facts in the Robinson case didn’t warrant such a radical change in the law. Cheryl Hooker and Richard Robinson were employed by the city of Kansas City. Hooker allowed a high-pressure hose to slip out of her hand and strike Robinson in the eye. After collecting workers’ comp, Robinson sued Hooker. Rather than analyze the case under the “something more” test, which arguably could have allowed the case to proceed, the court went out of its way to hold that the 2005 amendments to the WCA preclude coworkers from claiming immunity under the Act.

Legislature and judiciary at odds The seemingly unnecessary judicial activism expressed in the Robinson decision is likely explained by the growing war over workers’ comp between the judiciary and the General Assembly. In the 1990s, the General Assembly made changes that were largely ignored by the courts. When there was a call for workers’ comp reform in 2005, the General Assembly took a very heavyhanded approach to ensure that its desire for reform didn’t go unheeded this time. The reaction of the courts has been to turn the efforts of the General Assembly against employers. Instead of creating a more favorable environment for business as the General Assembly intended, the courts are using the amendments to open the doors to more litigation, exposure, and expense. Businesses and coworkers have become collateral damage in this war. Robinson v. Hooker, 2010 WL 2998605 (Mo. App., Aug. 3, 2010) (WD 71207).

Pandora’s box Hopefully, the Missouri Supreme Court will realize what a Pandora’s box the Robinson verdict has opened and will reverse the appellate court’s ill-conceived decision. If it doesn’t, then the Missouri Legislature should act to clarify Missouri workers’ comp laws to protect employees from lawsuits by coworkers in connection with workplace accidents unless the injured employee can show that a coworker did “something more” than negligently contribute to the cause of the accident. In other words, the Missouri Supreme Court or the Missouri Legislature should reinstate previous Missouri law, which required an injured worker to prove that a coworker engaged in a negligent act that purposefully and dangerously caused or increased the risk of the injury. Until then, you should reevaluate the adequacy of your liability coverage and consider what steps are necessary to protect supervisory employees. Every workplace injury should now be considered a potential civil lawsuit against a supervisor or other coworker. More thorough investigations and documentation of accidents are needed. If a supervisor or coworker can be implicated, it may be wise to get legal counsel for that individual early so that the injured employee’s attorney cannot talk to him. 2

Supervisors should be cautioned about talking to an injured employee or the employee’s attorney. It could be an effort to obtain statements to use against them in a civil suit. Following the court’s decision in the Robinson case, any serious accident warrants immediate involvement of counsel to minimize your indirect exposure to claims against your supervisors and employees. There are no safe havens in this war zone. Questions about this article can be referred to the author at ✤

family and medical leave status fmla, eb, term, abs, emphea, wd

The FMLA: Notice of need for leave still required by Narcisa P. Symank Employers must carefully evaluate information provided by employees about absences from work to determine whether the absences are protected by the Family and Medical Leave Act (FMLA). Read on for a recent case affirming that employees still have a duty to provide sufficient information indicating that they are requesting and qualify for FMLA leave.

Background Donald Brown worked as a service technician for Kansas City Freightliner Sales, Inc. (KCF), from October 2000 to October 2007. In June and August 2007, he injured his back at work. After the June incident, he completed an injury incident form, visited the occupational doctor, and was released to work the same day with no restrictions. The injury was diagnosed as a lumbar strain or sprain. Following the August injury, he submitted a written injury report, and the injury was diagnosed as a lumbar strain. He was prescribed medication and immediately released to return to work with restrictions. On September 21, after several follow-up visits with a physician, he was released to “work as tolerated” with no restrictions. On September 26, Brown reported to his supervisor that he had hurt his back again and wanted to go home. He didn’t submit a written injury report and refused medical treatment. After speaking to his supervisor, he left work for the day and missed the next four workdays. On each of the four days, either Brown or his wife called KCF to report that he was sick but provided no other information. Brown didn’t seek medical treatment and testified that he was able to manage his pain with medication left over from the previous injury. Before the September 26 incident, Brown had already used all of his authorized sick and vacation leave. As a result of his unexcused absences, KCF terminated his employment when he returned to work on October 3. October 2010

Missouri Employment Law Letter Following his termination, Brown had a number of doctors’ appointments in October and November. He was ultimately diagnosed with degenerating and protruding cervical disks. His medical records indicate that he had an injury to his cervical spine, which resulted in surgery. His medical records don’t reference an injury or accident between September 26 and October 2, nor do they mention a previous lumbar injury in the context of his diagnosis of degenerating and protruding cervical disks. Following his termination, Brown sued KCF for failure to reinstate and wrongful discharge in violation of the FMLA.

Eighth Circuit’s decision The Eighth U.S. Circuit Court of Appeals, which includes Missouri, affirmed the decision of U.S. District Court Judge Dean Whipple, who sits on the federal trial court in Kansas City. Whipple granted summary judgment for the employer, effectively throwing out the case without a trial. The court explained that under the FMLA, employees have an affirmative duty to indicate both the need and reason for leave. An employee must provide sufficient information to allow the employer to differentiate the absence from ordinary sick days or possible malingering. Although Brown had two previous documented back injuries before his last set of absences, the court explained that there was no evidence of a connection between his previous lumbar region back injuries and the cervical spine diagnosis before his discharge. Given the lack of connection (and even if there had been a connection between the injuries), the information he provided to KCF between September 26 and October 2 didn’t apprise his employer of his reason or need for FMLA leave. Brown v. Kansas City Freightliner Sales, Inc., 2010 WL 3258301 (8th Cir., Aug. 19, 2010) (No. 09-3324).

You aren’t required to play detective every time an employee calls in sick.

Bottom line You aren’t required to play detective every time an employee calls in sick to determine whether the leave may be FMLA-qualifying. That said, you must be careful not to discount the previous medical history of or communications by the employee because the totality of circumstances may require you to look further into the reason for the absence. Had Brown sought medical treatment or indicated that he was suffering from a recurring back injury, KCF may have had a duty to inquire further into the reason for his absences. The author may be contacted at nsymank@armstrong ✤ October 2010

FMLA Interferance status pp, fmla, abs, pp, term, doc

Consistency is key when enforcing attendance policies by Christopher R. LaRose Under the Family and Medical Leave Act (FMLA), an employer may be held liable for attaching negative consequences to an employee for exercising her FMLA rights. That’s true regardless of whether you actually intend to deter the employee from exercising her FMLA rights. As the Eighth Circuit makes clear in a recent decision, an employer wishing to terminate an employee for attendance problems after she has just taken FMLA leave must be careful to consistently enforce and document violations of its attendance policy. Read on for an example of how one employer’s diligent documentation of attendance violations helped it win dismissal and defeat an FMLA interference claim.

Background Laura Estrada worked the night shift as a technician on the production line at Cypress Semiconductor, Inc. On April 17, 2008, she was terminated for exceeding the number of absences allowed under the employer’s attendance policy. The sole basis of her lawsuit was that one of her many absences was protected under the FMLA because it involved a serious health condition and was improperly counted against her in assessing her overall attendance record, which led to her termination. The progressive attendance policy. Cypress uses a progressive point system to enforce its attendance policy. One point is assessed for every unscheduled absence or illness not documented by a doctor’s note. A half point is assessed for every absence resulting from a documented illness and every unscheduled tardy or early departure. Importantly, no points are assessed for FMLA-protected absences or absences scheduled in advance. Under the policy, an employee who accumulates three points during any three-month period receives a level I attendance warning. Level I requires the employee to undergo a 60-day review period. Any attendance violation of at least a half point during a level I review period results in a level II warning, which extends the review period by an additional 60 days. In addition, the employee immediately receives a level II warning (or advances to the next level if she’s already under review) if she has an unscheduled absence and fails to inform her supervisor (e.g., a no call/no show absence). Additional violations (of a half point or more) result in a level III warning. A final warning further extends the review period and makes the employee eligible for termination. Under the system, there are two separate grounds for terminating an employee for attendance problems. Specifically, the employee may be terminated for: 3

Missouri Employment Law Letter (1) an additional accumulation of at least a half point during a level III review period; or (2) accumulating five or more points during a rolling six-month period (regardless of which level the employee has reached). The absences. Two months before her termination, Estrada had outpatient surgery to remove a cyst. The surgery was scheduled on her day off, but she requested off the day following surgery in case she was unable to work. According to Estrada, her supervisor was aware of the surgery and approved the additional day off. The day after the procedure, Estrada confirmed her absence with her supervisor before her shift. The following day, when she returned to work, she left a work authorization slip from her doctor on her supervisor’s desk. Despite her efforts, Cypress’ records listed the absence as unscheduled and one point was assessed to her attendance record. Estrada claimed the absence was related to a serious health condition and therefore protected under the FMLA. The following month, Estrada was absent several more times. The additional absences paired with the point for her absence related to the surgery resulted in a level II warning. The warning noted that she had accumulated a total of 4.5 attendance points and cited the five-point provision of the attendance policy, which states that five or more points in a six-month period could result in termination.

legislation status dso, ms, vd, leg

Executive order bars bias based on sexual orientation or veteran status by John Vering On July 9, Missouri Governor Jay Nixon issued Executive Order 10-24 prohibiting the executive branch of Missouri’s government from discriminating in employment or in the provision of services or operation of facilities on the basis of sexual orientation or veteran status. The order is limited to the executive branch of the state government and doesn’t apply to private employers or local governmental entities. However, it does cover state employment services, state services and facilities, public education, financial assistance, health care services, training and job opportunities, state licensing and regulatory agencies, and employee organizations. The order prohibits discrimination in the executive branch in hiring, recruiting, training, benefits, promotions, transfers, layoffs, demotions, terminations, rates of compensation, and recalls from layoffs. The full text of Executive Order 10-24 is available online at ✤ 4

After the warning, Cypress determined that one of Estrada’s absences (not the absence related to the surgery) had been accompanied by a doctor’s note and was worth only a half point (as opposed to a full point). Estrada’s record was reduced accordingly from 4.5 to four points. Had the postsurgery absence been properly characterized as FMLA-qualifying or scheduled time off (resulting in no points), Cypress conceded that she would have accumulated only the points at the time of the initial warning, which would have led to a level I (instead of a level II) warning. Following the level II warning, Estrada had several additional attendance problems. She arrived late and left early one day because of an undocumented illness. The next day, she called in sick for the same illness but failed to speak directly with her supervisor. That absence was deemed a “no call/no show” absence. When she returned to work, she was told that her job was in jeopardy because of attendance issues and warned against any additional violations, including taking unauthorized and extended breaks. That same day, her usual 15minute break lasted a full hour. She was terminated the following day. According to Estrada, Cypress’ stated reason for her termination was for violating a level II warning. Estrada claimed that she wouldn’t have received a level II warning if her FMLA-protected absence had been properly counted, and thus, Cypress wouldn’t have had grounds to terminate her. She did, however, acknowledge that even aside from the disputed FMLA absence, she had accumulated 5.5 attendance points. Following her termination, Estrada filed suit against Cypress, alleging interference with her FMLA rights. The district court dismissed her case, and Estrada appealed.

Eighth Circuit’s decision The Eighth Circuit upheld the lower court’s dismissal in favor of Cypress, concluding that it had proven that it would have made the same decision to terminate Estrada regardless of her FMLA leave following surgery. The court noted that the warning she received contained a clear reference to the employer’s policy that an accumulation of five attendance points was independent grounds for termination. Reference to this provision of the policy was strong evidence that Cypress took the provision seriously and would have applied it to Estrada. The court also noted that Estrada’s supervisor gave her a clear oral warning the day of her final violation and specifically warned her against taking extended breaks. Those facts were enough to demonstrate that Cypress would have made the same decision regardless of whether she exercised her FMLA rights with respect to the postsurgery absence. Estrada v. Cypress Semiconductor (Minnesota), Inc., 2010 WL 3220363 (8th Cir., Aug. 17, 2010) (No. 09-3005). October 2010

Missouri Employment Law Letter

Lessons learned An employer that makes a habit of documenting and enforcing its attendance policies minimizes its risk of exposure to FMLA-related claims. As demonstrated in this case, oral and written warnings that explain the provisions of the attendance policy being violated and the risks associated with additional violations help protect you if and when a claim is filed. In some cases, detailed warnings and write-ups will allow you to defeat a claim at the pretrial dismissal stage and avoid the significant legal expense of a trial. The author may be contacted at clarose@armstrong ✤


borrowed from MNEMP, August 2010, Vol. 20, No. 6 record # 103336

Must an employer grant permanent intermittent FMLA leave? Maybe not, according to a recent decision from the Eighth Circuit. The case has many people wondering if reevaluation of the word “leave” in the Family and Medical Leave Act (FMLA) may be on the horizon.

Perception may be reality . . . In February 2007, Charlene Wisbey applied for FMLA leave from her job as a dispatcher for the city of Lincoln, Nebraska. Her leave application stated that her depression and anxiety made her unable to perform the essential functions of her job. She also submitted a note from Dr. Pothuloori stating that she “suffer[ed] from recurring cycle depression, anxiety [that] interferes with her sleep, energy level, motivation, [and] concentration.” The doctor further indicated that while Wisbey could perform the essential functions of her job, she would need intermittent time off for the “next 6 months or longer.” Pothuloori left blank the space labeled “anticipated return to work date” on the certification form. The city had questions about Wisbey’s ability to perform her job, so it scheduled a fitness-for-duty exam with Dr. Eli Chesen, a psychiatrist. After examining her, Chesen reported that she suffered from “chronic relapsing depression (unipolar depression) which intermittently interferes with her ability to function at full capacity.” He added that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.” The city placed Wisbey on administrative leave with pay. Wisbey argued that being tired wasn’t an issue because she could stay home on those days. Nevertheless, the city fired her. After her termination, she filed suit under the Americans with Disabilities Act (ADA), October 2010

claiming that the city perceived her as disabled despite her continuing ability to perform her job. She also claimed retaliation and interference with her FMLA rights since she was terminated instead of being granted leave. The trial court dismissed her lawsuit, and she appealed to the Eighth Circuit.

. . . but reality is more real than that The appeals court promptly dismissed Wisbey’s “perceived disability” claim, which required a showing that the city mistakenly believed she had an impairment that substantially limited her ability to work. Since Chesen reported that she wasn’t fit for duty and Wisbey verified that she stayed home when her medical condition made her too tired to work, the court ruled that the city was correct in finding that she had an impairment that limited her ability to work. Wisbey next claimed that the fitness-for-duty exam was impermissible under the ADA, and therefore, Chesen’s medical opinion couldn’t be used as a basis for terminating her employment. Under the ADA, medical exams are prohibited unless the employer can show they are job-related and consistent with business necessity. That occurs when the employer can identify legitimate and lawful reasons to doubt the employee’s capacity to perform her job duties. In this case, the fitness-for-duty exam was necessary because Wisbey’s job required her to deal with emergencies and be present and alert to handle incoming calls for help. Her admission — and Pothuloori’s Wisbey’s request for confirmation — that intermittent leave she suffered from conditions affecting for six months or her concentration longer was beyond and motivation crethe requirements ated a legitimate conof the FMLA. cern by the city about whether she could effectively perform her duties as a dispatcher. Thus, the appeals court approved the city’s use of a medical exam to resolve that question.

Interference isn’t wrong if there is no right Wisbey’s FMLA interference claim also focused on the fitness-for-duty exam, which she contended was improper since the city had already accepted Pothuloori’s certification of her serious medical condition. Moreover, the court questioned whether an employer can be found to have wrongfully interfered with a right to FMLA leave if no such right exists. According to the court, when an employee needs to be on intermittent leave for “six months or longer . . . the FMLA does not provide leave for leave’s sake, but instead provides leave with an 5

Missouri Employment Law Letter expectation [the] employee will return to work after the leave ends.” The court concluded: The FMLA does not provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement. The court concluded that Wisbey’s request for intermittent leave for six months or longer — with no indication of when or if the need for leave would end — was beyond the requirements of the FMLA. Since she didn’t have a right to take leave under those circumstances, the city couldn’t have unlawfully interfered with any such right. Wisbey’s final claim — retaliation for seeking FMLA leave — was quickly dispatched since there was no causal connection between her application for FMLA leave and her termination. Instead, the city fired her based on the results of the fitness-for-duty exam, which was an independent and legitimate factor for making the termination decision. Charlene K. Wisbey v. City of Lincoln, Nebraska, No. 09-2100 (8th Cir. Ct. of Appeals, July 6, 2010).

What just happened? Since the FMLA was enacted, employers have wondered if there is anything they can do about an employee who might need to miss up to 12 weeks intermittently. The language of the Act seems to indicate that as long as the medical basis for leave is properly certified and the employee meets all the eligibility conditions, the employer has no choice but to continually grant leave until a new 12-month FMLA calculation period starts. In short, those circumstances appear to create a right to a permanent part-time job for a job requiring full-time status. Perhaps the pendulum is swinging back. The language of this decision regarding employees being unqualified for their job seems to weigh the employer’s rights under the ADA against the employee’s entitlement under the FMLA. And guess what — the employer’s rights appear to take precedence. We need to wait a bit to see if the courts will advance that line of reasoning. However, this may be one of the first real causes for optimism that employers may be able to deal more effectively with seemingly limitless intermittent leaves. You can research the FMLA or any other employment law topic in the subscribers’ area of, the website for Missouri Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge. ✤ 6

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. • • • • • • • • •

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. October 2010

Missouri Employment Law Letter 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.

Affected employers 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: • financial institutions; • investment banking firms; • mortgage banking firms; • asset management firms; • brokers; • dealers; • financial services entities; • underwriters; • accountants; • 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.” October 2010

AGENCY ACTION OSHA unveils whistleblower website. The Occupational Safety and Health Administration (OSHA) unveiled a new website in July dedicated to its whistleblower protection program. The site   is designed to provide employers, workers, and the public with information about the 18 federal whistleblower protection statutes that OSHA administers. The website provides information about worker rights and provisions as well as fact sheets discussing how to file a retaliation complaint. “This web page is part of OSHA’s promise to stand by those workers who have the courage to come forward when they know their employer is cutting corners on safety and health,” said Assistant Secretary of Labor for OSHA David Michaels. The page will continue to be accessible through OSHA’s website (www. by clicking on the “Whistleblower Protection” link. Solis announces initiatives against wage discrimination. Secretary of Labor Hilda L. Solis has announced several U.S. Department of Labor (DOL) initiatives designed to end wage discrimination while improving pay equity and work-life balance. The initiatives include a collaborative effort among the DOL’s Office of Federal Contract Compliance Programs (OFCCP), the Department of Justice, and the Equal Employment Opportunity Commission. Through that collaboration, the administration will ensure strategic enforcement of pay discrimination cases, according to a DOL statement. Along with hiring nearly 200 additional enforcement staff, the OFCCP will publish an advanced notice of proposed rulemaking early next year that will seek input from stakeholders on how to improve the Equal Opportunity Survey. Rule issued on retirement plan disclosure. In July, the DOL announced an interim final rule aimed at enhancing disclosure to fiduciaries of 401(k) and other retirement plans. The rule will assist fiduciaries in determining both the reasonableness of compensation paid to plan service providers and any conflicts of interest that may affect a service provider’s performance under a service contract or arrangement. The interim final rule will require the disclosure of the direct and indirect compensation certain service providers receive in connection with the services they provide. The rule applies to plan service providers that expect to receive $1,000 or more in compensation and that provide certain fiduciary or registered investment advisory services, make available plan investment options in connection with brokerage or record-keeping services, or otherwise receive indirect compensation for providing certain services to the plan. ✤


Missouri 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. 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 — events/audio-conferences-webinars Also available on CD and audio stream after the broadcast. 10-12 “High-Performance Performance Reviews: How to Take Employees to the Next Level,” presented by Jay Forte, Humanetrics. 10-13 60-MINUTE SKILL BUILDER: “Help! They Made Me the HR Manager: How to Survive and Thrive on the Job,” presented by Teri Morning, MBA, MS, SPHR, Teri Morning Enterprises.

What you need to know If you’re a federal contractor, subcontractor, or serv­ice 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. 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: •

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).

Decide whether you think you will need to implement new diversity programs and practices to comply with the new standards. D

10-14 “Silent Raids and Other New ICE Tactics: Immigration Compliance Best Practices,” presented by attorney Christopher L. Thomas. 10-18 “Monitoring Employee E-Mail, Texting, and Facebook: What’s Off Limits?” presented by attorney Margaret (Molly) DiBianca. 10-19 “Doing Business in China: What HR Needs to Know,” presented by attorney Robert L. Brown. 10-20 “Background and Credit Checks: Legal Risks and Workable Solutions,” presented by attorney Brent R. Baughman. 10-21 “How to Conduct Internal Investigations Without Risking Serious Legal Trouble,” presented by attorney Francine Esposito. D Missouri EMPLOYMENT LAW LETTER (ISSN 1054-6375) is published monthly for $447 per year 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.

Editorial inquiries should be directed to Vance D. Miller or Robert A. Kaiser at Armstrong Teasdale LLP, One Metropolitan Square, #2600, St. Louis, MO 63102-2740, (314) 621-5070; or John A Vering III, 2345 Grand Boulevard, Ste. 2000, Kansas City, MO 64108, (816) 221-3420. Missouri EMPLOYMENT LAW LETTER is intended for general informational purposes only and does not constitute legal advice. The

reader should consult qualified legal counsel to determine how laws apply to specific situations. For questions concerning your subscription,, or Corporate MultiUser Accounts, contact your customer service repre­s entative at (800) 274-6774 or ®


Vance Miller, Robert Kaiser, John Vering III, Joan Z. Cohen, Editors Discrimination Contractors Employer Liability Armstrong Teasdale LLP is...