Virginia Employment Law Journal

This is part two of the three part series addressing pets in the workplace. The first post discussed the benefits of allowing pets in the workplace. This second post will provide insight into the legal liabilities and other litigation that has occurred in this area. Our final post next week will include information on how to assess if pets in the workplace are right for your company and what should be incorporated into a workplace pet policy.

Legal Liability Relating to Dogs in the Workplace

Not surprisingly, there have been legal issues when employers open their doors to pets.  These cases range from American Disability Act (“ADA”) accommodation classes to liability for dog bites.

Who is Liable for Injuries Caused By Pets? 

An important issue for businesses when deciding whether to permit pets is the issue of liability for dog bites.  While a dog owner would, in most cases, be liable if the dog were to bite someone, there is also a possibility the employer would be jointly liable in a personal injury lawsuit.  Two cases in Connecticut addressed an employer’s potential for liability under the strict liability statute for an “owner” or “keeper” of a dog and found that allowing an employee to bring a dog to work does not make the employer a keeper of the dog.  (LaVoy v. Rosenthal, et al., 1999 Conn. Super. LEXIS 3250; Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992)). However, the courts concluded that a plaintiff could bring a claim for negligence against the employer for a dog bite occurring at the workplace.

One solution to the issue is to require employees to provide insurance covering any damage or injury by the dog.  Many policies may have a business-pursuit policy exception that may result in the insurance company refusing coverage, in which case a plaintiff is going to seek to recover against the employer.  In a case in California, two insurance companies were involved in a lawsuit addressing one company’s request for contribution based on the legal right to defend a lawsuit. In this case, Philadelphia Indemnity Insurance Company sought contribution against Fire Insurance Exchange for costs incurred in a personal injury lawsuit involving a dog bite in the workplace.  Under the Fire Insurance Exchange policy there was an exception for injuries arising from the individual’s work or occurring during the course of her work. In this case, a marriage and family therapist brought her dog to work on occasion when she was unable to leave it at home, and the dog bit a patient during a session. The court found that the incident arose from the pursuit of business, and it was excluded under the policy exclusion. Therefore, it is important to require that an employee have insurance coverage and to review the policy for any exceptions pertaining to the workplace.  When in doubt, do not permit the employee to bring a pet to work or look into the costs of obtaining a business policy that would cover such instances.

Americans with Disabilities Act Cases Involving Pets in the Office

There have also been ADA cases involving pets in the workplace. While the courts have not yet found an employer liable for issues associated with allowing or prohibiting pets, this is an area to be aware of when considering a pet policy.  In one case the case of Calhoun v. Foodarama, a New Jersey mailroom employee of Foodarama Supermarkets told her supervisor, who frequently brought cats to the office, she suffered from a fear of cats or ailurophobia.  In response to her complaints, the supervisor instructed her to stay in the mailroom to avoid encounters with the cats.  The employee missed a week of work, claiming it was due to the fear of the supervisor’s cats, and was terminated shortly thereafter.  The employee filed an EEOC complaint stating the company discriminated against her on the basis of her disability and refused to accommodate her.  The employee failed to file her complaint in time; therefore, the judge did not have to decide whether ailurophobia was a legitimate disability recognized under the ADA but did indicate such contention would be “tenuous at best.”

There have been other ADA lawsuits involving an employee’s right to bring a dog to work relating to an accommodation for stress and/or anxiety. The decisions in the cases demonstrate that the courts are reluctant to open up this possible floodgate.  In Edwards v. United States EPA, the District Court for the District of Columbia held that there was no objective evidence that allowing an employee to bring his untrained puppy to work would have decreased his anxiety and allowed him to perform better. The court cited a case dealing with a no-pet policy in a housing complex with the position that while “dogs possess the ability to give unconditional love, which simply makes people feel better” this idea “permits no identifiable stopping point: every person with a handicap or illness that caused or brought about feelings of depression, anxiety or low self-esteem would be entitled to the dog of their choice, without regard to individual training or ability. And if certain people liked cats, fish, reptiles or birds better than dogs, there would be no logical reason to deny an accommodation for these animals.”  Therefore, it is unlikely that other than service dogs, an employee can justify bringing a pet to work under the ADA.

While these cases illustrate the courts are reluctant to find liability under strict liability statutes or under ADA accommodation laws, an employer should still take into account the cost and expense in having to defend such suits when deciding whether to permit pets in the office.

Please check back next week for the final part of this series, which provides information on assessing if you have a workplace that would be suitable for pets and what policies you should put in place if pets are allowed in the office. 

With summer approaching, you may be considering hiring an unpaid intern for the summer months. The process for doing so seems pretty cut and dry.  However, litigation in the area of internships has recently increased due to several lawsuits where interns sued their former employers alleging violations of state and federal wage and hour laws by failing to pay interns for work that should have been performed by paid employees.

In order to determine whether your intern is entitled to minimum wage or overtime, the U.S. Department of Labor (DOL) has a six-factor test to determine if the intern should in fact be treated and classified as an employee who must be paid.

The factors the DOL considers when classifying an intern vs. an employee are the following:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern and, on occasion, its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of these factors are present, then the position is in fact an unpaid internship.  However, many states have additional factors they consider to determine whether a worker is an intern or an employee under state wage and hour laws.  So be sure to also review your state’s factors.

It is strongly recommended that employers review their internship program to see if it meets these factors and review the state specific factors to ensure that your unpaid internship qualifies as an unpaid position.

On January 29, the Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) issued Directive 306, which encourages federal contractors and subcontractors not to ask about criminal convictions on job applications. According to OFCCP, such questions can result in individuals being treated differently because of their race, national origin, sex, or other protected characteristics.

OFCCP issued the directive to address its concern that hiring policies and practices that exclude employees and potential employees with criminal records violate Title VII of the Civil Rights Act of 1964 (“Title VII”). In support of its statement, OFCCP cites a study which found that one in three adults has a criminal history record. Of those adults, a high percentage were Hispanic and African-American. Based on the study, OFCCP reasons that employers who have a blanket policy of not hiring individuals with criminal convictions will exclude a greater number of Hispanic and African-American individuals resulting in “disparate impact” on these individuals, which would likely be in violation of Title VII. Thus, because of the impact, OFCCP recommends that employers “refrain from asking about convictions on job applications."

Directive 306 is Not a Blanket Ban on Hiring Decisions Based on Criminal Convictions

The Directive expresses OFCCP’s position – don’t ask about criminal convictions unless necessary – but it does not prohibit the use of convictions in all hiring decisions by government contractors or subcontractors. Employment decisions that consider criminal convictions will likely not be in violation of Title VII as long as the employer can show that the policy is:

1. Job related, and
2. Consistent with business necessity.

What Federal Contractors and Subcontractors Need to Know

OFCCP has taken the position that using criminal convictions as a factor in hiring decisions can violate Title VII. To steer completely clear of possible Title VII issues, the most conservative approach would be to consider the subject of criminal convictions as off-limits when it comes to most employment decisions. To avoid potential problems, government contractors should make sure they:

• Don’t ask about criminal convictions on employment applications; and
• Don’t have a policy that anyone with a conviction is ineligible for hire.

The exception to the rule:

• To have a policy that a person will not be hired based on criminal conviction, the employer must satisfy the “job related and business necessity test” and show that the policy is (1) related to the job,  and (2) consistent with business necessity.

The “job related and business necessity” test is met if the employer (1) validates the criminal conduct exclusion for the position in question in accordance with the Uniform Guidelines on Employee Selection Procedures or (2) can show how these elements relate to the job:

• The nature and gravity of the offence – consider the legal elements of the crime and harm caused;
• The amount of time that has passed since the offence and/or completion of the sentence; and
• The nature of the job held or sought – how do the job duties and performance relate to the offence.

For employers located in the greater Washington, DC metro area, keeping up with multiple states’ employment law requirements can be challenging. Virginia and Maryland closely track the federal laws that govern employers on issues such as the Family Medical Leave Act and the Americans with Disabilities Act, with only some minor variations.

However, the District of Columbia has implemented more stringent requirements for employers to comply with under several employment laws. In this month’s article, I will focus specifically on one law the District of Columbia has passed that Virginia and Maryland do not have and how employers can comply with it.

The District of Columbia’s “Accrued Sick and Safe Leave Act” (the “Act”) requires employers who have employees working in the District of Columbia (regardless of where the employer’s other offices or headquarters are located) to provide paid sick days for their employees who work in DC (regardless of what state the employee resides in).

The Act applies to all private and government employers. It does not apply to independent contractors, students, health care workers who choose to participate in a premium pay program or restaurant wait staff and bartenders who work for a combination of wages and tips.

Eligible employees must have worked for the employer for at least one year without a break in service and have worked at least 1,000 hours of service during the previous 12 month period. This definition of employee includes employees who are employed by the employer in more than one location and spend more than 50 percent of his or her working time for the employer in the District of Columbia.

The amount of paid leave required will depend on the number of employees that are employed by the employer in the District of Columbia.

If you employ:

• 24 or fewer employees in the District of Columbia, you must provide 1 hour of paid leave for every 87 hours worked for each employee, not to exceed 3 days of paid leave per calendar year.
• 25 to 99 employees in the District of Columbia, you must provide 1 hour of paid leave for every 43 hours worked for each employee, not to exceed 5 days of paid leave per calendar year.
• 100 or more employees in the District of Columbia, you must provide 1 hour of paid leave for every 37 hours worked for each employee, not to exceed 7 days of paid leave per calendar year.

The employee may use the paid leave for physical or mental illness, injury or medical condition or to assist with the medical care of a family member. The Act also allows for the employee to use the paid leave if the employee or the employee’s family member is the victim of stalking, domestic violence or sexual abuse.

The Act defines “family member” to include children, grandchildren, foster children, spouses, siblings, siblings’ spouses, children’s spouses, parents, grandparents and domestic partners (defined as anyone with whom the employee maintains a committed relationship and with whom the employee has lived with for the past year).

The employee may “roll over” any unused sick and safe days into the following year. However, paid leave accrued under the Act that is unused at the termination or resignation of the employee will not be reimbursed by the employer.

The employee should provide 10 days prior written notice to the employer of the employee’s intent to use the paid leave if the employee is aware of the need to use the paid leave ahead of time. Otherwise, notice must be given to the employer on the business day following the date on which the employee becomes aware of the need to use the paid leave.

The employer can create a form that the employee can use to request the leave that requires the employee to provide the employee’s name, identification number (if any), the type of leave, and the reason for the leave and the dates the paid leave to be taken.

If the employee requests paid leave for 3 or more consecutive days, the employer can require that the request be supported by a reasonable certification that must be provided upon the employee’s return to work or within one business day thereafter.

A reasonable certification includes:

• A signed document from a health care provider affirming the illness of the employee or the employee’s family member;
• A police report indicating that the employee or the employee’s family member was the victim of stalking, domestic violence or sexual abuse;
• A court order indicating that the employee or employee’s family member was the victim of stalking, domestic violence or sexual abuse; or
• A signed written statement from a victim or witness advocate affirming that the employee or employee’s family member is involved in legal action or proceedings related to stalking, domestic violence or sexual abuse.

If you already have a paid leave policy for your employees (for example, paid time off or universal leave) that gives the employee paid leave options to utilize at the employee’s discretion and which allows the accrual and usage of leave that is at least equivalent to the paid leave required under the Act, you are not required to modify your existing policy.

The employer must post the Official Notice in a conspicuous location in the employer’s places of employment. The notice is available in English and Spanish on the District of Columbia government website.

Failure to post the notice may result in a $100 per day fine, not to exceed $500 per violation. Claims filed by an employee alleging a violation of the Act by the Employer are investigated by the District of Columbia Department of Employment Services. If an employer willfully violates the Act, it will be assessed a civil penalty of $500 for the first violation, $750 for the second violation and $1,000 for the third and any subsequent violations.

If you have employees working in the District of Columbia who meet the requirements for the paid leave under the Act, you should review your current leave policies to determine if you need to modify your existing policy in order to comply with the Act.

Does your standard contract contain an arbitration clause stating that either party to the contract “may” choose arbitration instead of litigation? If so, it may not matter that you include the word “may” to try and make arbitration optional instead of mandatory.

A case from the United States District Court for the Southern District of New York from September 2012 held exactly that. This case arose from a dispute over breach of a Distribution Agreement between Bellview Airlines Limited and Travelport Global Distribution Systems, pursuant to which Bellview was to distribute a computerized travel reservation system in Nigeria owned by Travelport. Travelport Global Distrib. Sys. B.V. v. Bellview Airlines Ltd., 2012 U.S. Dist. LEXIS 128604 (S.D.N.Y. Sept. 10, 2012).

The arbitration provision in the agreement stated that all disputes “shall be governed by the laws of the State of New York” and that any “dispute or controversy . . . arising out of or related to this agreement . . . may be submitted to arbitration in the United States in accordance with the UNCITRAL Arbitration rules . . . [and the] Appointing Authority shall be the United States Council of Arbitration . . . .”

Travelport sent a letter to Bellview terminating the agreement based on Bellview’s material breaches of the agreement. Bellview filed suit and Travelport sought an order compelling arbitration and seeking an injunction as to the pending lawsuit.

The Court held that the language in the agreement stating the dispute “may be submitted to arbitration” triggers mandatory arbitration. The Court noted many other courts have held that absent some separate suggestion that an arbitration provision is intended to trigger permissive arbitration, provisions with the word “may” trigger mandatory arbitration.

Travelport is a good example of how important careful drafting of arbitration clauses can be. In certain circumstances, arbitration can be a good alternative to litigation. However, it also has additional costs associated with it and some procedural differences from the traditional court system that you and your company should be aware of and consider before including an arbitration provision in your contracts.