ProView Standard: Precept’s Website Receives Top Rating, Exempt Employees, Harassment Policies, Supreme Court Rules on Age and Reverse Discrimination

July 2009

Current Form I-9 To Remain Valid Beyond June 30, 2009

On June 26, 2009, the United States and Immigration Services (USCIS) announced that the current version of the Form I-9, Employment Eligibility Verification (dated 02/02/09) will continue to be valid for use beyond June 30, 2009, despite the fact that this version of the form bears an expiration date of June 30, 2009. USCIS intends to continue to use the same version of the Form I-9 and, pending review by the Office of Management and Budget, will re-issue the "revised" form with a new expiration date. Once the USCIS updates the Form I-9, employers will be permitted to use either the form with the new revision date or the current form with the June 30, 2009, expiration date.

New Labor Condition Application Becomes Mandatory on July 1, 2009

Beginning July 1, 2009, the U.S. Department of Labor will require that every Labor Condition Application (LCA) be filed through the new iCERT Internet portal. Under the new system, DOL expects that it will take up to seven days to certify an LCA. (Under the current system, certification generally takes a few minutes.) Therefore, we recommend that employers factor in at least an additional week to process the LCA, which is a pre-filing requirement for every petition for H-1B, H-1B1 and E-3 classification.

Note : The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or pmarathas@proskauer.com. ©2009 Proskauer Rose LLP. All rights reserved. Used with permission.

Which Professional Employees Really are Exempt? (Part 1 of 2)

As jobs have become more specialized and employees are required to be experts in their field, more employees may appear to be “professionals.” But, are these employees “professionals” for the purposes of the Fair Labor Standards Act (FLSA) and therefore exempt from the Act’s overtime requirements? As often is the case with the FLSA, the answer is “it depends.”

Specifically, to be exempt professionals, employees must meet two criteria. First, they must be compensated on a salary or fee basis at a rate of at least $455 per week, exclusive of board, lodging, or other facilities. Second, their primary duty must meet either the “learned professional” or the “creative professional” criteria.

Part 1 focuses on the “learned professional” exemption. In Part 2 we will examine court cases explaining the professional exemption and discuss how creative professionals in music, writing, acting, and the graphic arts are covered.

Learned Professionals Explained

To qualify as a learned professional, the FLSA regulations, found at 29 C.F.R. §541.301, indicate that an employee’s primary duty must meet a three-prong test. Specifically, the employee must (1) perform “work requiring advanced knowledge”; (2) the advanced knowledge must be in “a field of science or learning”; and (3) the advanced knowledge must be customarily acquired by a “prolonged course of specialized intellectual instruction.”

To be considered “work requiring advanced knowledge,” the work must be predominantly intellectual in character, and includes work requiring the consistent exercise of discretion and judgment, as distinguished from the performance of routine mental, manual, mechanical, or physical work. According to the FLSA regulations, advanced knowledge cannot be attained at the high school level.

A “field of science or learning” includes law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various sciences, pharmacy, and other similar occupations that have a recognized professional status. These occupations are in contrast to the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.

“A prolonged course of intellectual instruction” requires specialized academic training that is a standard prerequisite for entrance into a profession. Thus, according to the regulations, the best evidence that an employee meets this requirement is if the employee has an “appropriate” academic degree. However, a formal degree is not required, and the exemption is available to employees who attain advanced knowledge through a combination of work experience and intellectual instruction.

Examples of exempt professionals include registered or certified medical technologists, registered nurses (not licensed practical nurses), dental hygienists and physician assistants who have completed four academic years of pre-professional and professional study, certified public accountants, and licensed funeral directors and embalmers. In contrast, most paralegals and legal assistants generally do not qualify because those jobs do not require a specialized academic course of study.

Doctors and Lawyers Normally are Exempt Professionals

Physicians and lawyers are considered exempt if they have a valid license or certificate permitting the practice of medicine and law. Physicians consist of medical doctors including general practitioners and specialists, doctors of osteopathy, podiatrists, dentists, and optometrists. Medical interns and residents who have the appropriate academic degrees for the general practice of medicine also are covered under this exemption.

Note, however, that physicians and lawyers do not have to be paid on a salary or fee basis in order to meet this exemption if they hold a valid license or certificate and actually are engaged in professional practice.

Most Teachers are Exempt, Too

Any employee actively employed by an educational establishment and whose primary duty includes teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge also is an exempt professional. Examples include regular academic teachers, teachers of kindergarten or nursery school pupils, teachers of gifted or disabled children, teachers of skilled and semi-skilled trades and occupations, and vocal or instrumental music instructors.

Teachers who have teaching certificates typically will qualify for the exemption; however, a certificate is not required. In addition, teachers also are exempted from the salary or fee basis requirement if they are actively employed in an educational establishment, regardless of whether they have a certificate.

In Part 2: Court cases explaining the professional exemption and a discussion of how creative professionals in music, writing, acting, and the graphic arts are covered.

Does Your Harassment Policy Measure Up?

News coverage of workplace harassment often focuses on sexual harassment. But that should not be your only concern. Any form of harassment undermines your operations and is prohibited by discrimination laws.

The trend in recent court decisions reinforces the fact that federal civil rights laws prohibit harassment and work environments that are abusive to employees because of their race, color, gender, religion, national origin, age, and disability. While the most common harassment claims do involve allegations of sexual harassment, you should be aware that the same legal analysis applies for other offensive behavior against any protected class.

Below, you’ll learn about six forms of harassment claims commonly filed and then find out the six topics your policy should address.

Important Cases Prohibiting Harassment

The Equal Employment Opportunity Commission (EEOC) takes the position that: (1) conduct constituting harassment of any of the protected classes covered by Title VII is unlawful as a discriminatory term or condition of employment; and (2) that the same analysis should be applied to hostile environment cases involving age or disability discrimination.

The following court cases show how hostile environment claims may arise from any status protected under Title VII and the Americans with Disabilities Act (ADA).

• Racial harassment. In Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006), the court decided that a black firefighter had presented more than sufficient evidence to pursue his claim of race-based harassment. The record included evidence of racially offensive jokes, racist graffiti and derogatory comments and segregation from white workers on the same shift or within the same division.

• Harassment based upon gender. In Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75 (1998), the Supreme Court determined that Title VII prohibits conduct that is motivated by gender and that is so offensive to a reasonable person that it alters the workplace environment. And, the harassment does not necessarily have to be sexual to be based upon sex. In Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781 (7th Cir. 2007), a supervisor’s anti-female comments to his female subordinate were severe enough to support her hostile work environment claim without being sexual in nature.
  
  Further, courts have penalized employers for not specifically including gender harassment in their policies. In Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir. 2000), the court determined that the employer’s harassment policy was deficient because it recognized only harassment based on sexual advances and propositions, and not harassment based on gender.

• Religious harassment. In EEOC v. Sunbelt Rentals Inc., 521 F.3d 306 (4th Cir. 2008), the court found that a Muslim employee had a claim for hostile environment based upon religion. His supervisors and coworkers used religiously-charged epithets, called the employee names such as “Taliban” and “towel head,” and frequently hid his timecard and unplugged his computer.

• National or ethnic origin harassment. In Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003), an Hispanic employee presented sufficient evidence to pursue her claim of national origin hostile work environment. The employee claimed that she was taunted about her accent, that coworkers told her Hispanics should be doing cleaning jobs, and that the harassment was frequent and continuous.

• Harassment based upon color. While few court cases have been reported solely involving harassment based on color, color discrimination charges made to the EEOC have increased by over 200% since the mid-1990s. As a result, the EEOC has filed, and settled, several color discrimination lawsuits. These cases are somewhat unusual because they often involve protected class members harassing other members of the same protected class. Other cases combine color harassment with other harassment charges.
  
  For example, in EEOC v. Applebee’s Neighborhood Grill & Bar of Ga., Inc., No. 02-CV-829 (N.D. Ga. July 10, 2003), the employer agreed to take remedial measures (i.e., to provide additional training and reporting and amend its harassment and discrimination policies to include color as a protected class) and to pay the complaining employee $40,000 after a light-skinned African-American supervisor harassed a darker-skinned African-American subordinate. The employee had alleged that his supervisor repeatedly made derogatory remarks to him about his dark skin.

• Disability harassment. In Quiles-Quiles v. Henderson, 439 F.3d 1 (1st Cir. 2006), the court determined that the employee was subject to a hostile work environment, in part because his coworkers’ ridicule of his mental impairment was so severe and constant that he had to be hospitalized and eventually had to leave the workforce.

Six Topics to Include in Your Harassment Policy

The above court cases clearly show that to protect against liability your policy should specifically prohibit all forms of harassment, not just sexual harassment.

At a minimum, your policy should include the following elements:

1. A statement prohibiting all forms of harassment in the workplace. Specifically, you should prohibit sexual harassment and also harassment based on race, color, gender, national origin, religion, disability, pregnancy, age, and military status. In addition, you should include any other categories protected by your state’s equal opportunity laws, such as sexual orientation in California. And, you also should consider prohibiting harassment based on genetic information since the federal Genetic Information Nondiscrimination Act takes affect November 21, 2009.
2. A definition of harassment and, in particular, sexual harassment. This section should include the EEOC’s legal definition of both “quid pro quo” and “hostile environment” sexual harassment.
3. An explanation of what conduct is prohibited. Your policy should prohibit at least the following conduct:
   • Quid pro quo threats or promises by a supervisor (loss of job or promise of job, promotion, or other employment benefit);
   • Offensive touching;
   • Verbal harassment (lewd comments, sexual jokes or references, offensive or inappropriate personal questions, or negative comments based on the person’s protected class status);
   • Offensive pictures displayed in the workplace; and
   • Offensive or inappropriate written materials (letters, email messages, Web site and blog postings, or graffiti).

   Note that some of the prohibited conduct included above may not technically be considered illegal harassment by a court or agency, but it still warrants disciplinary action since it can have a negative effect on your workplace environment. For example, you can discipline an employee who uses obscene language or tells off-color jokes, even though that conduct generally would not be considered illegal harassment unless the employee engaged in it on an ongoing basis.

4. A complaint and resolution procedure. This procedure should include a bypass mechanism so that an employee does not have to complain to a supervisor or other person who may be involved in the harassment. It also should provide for an investigative process and a specific time frame for resolving complaints. If you already have a complaint procedure in place, you can use that as long as it includes these safeguards.
5. Specific disciplinary procedures. The policy should make clear the consequences for any violations. For example, it should specify that discipline, up to and including termination, may be imposed depending on the nature and severity of the situation and the number of occurrences.
6. A “no retaliation” statement. This reassurance helps employees trust the policy and believe that they will be protected if they make a complaint or cooperate in an investigation.

Training, Implementation, and Enforcement

The courts are regularly churning out decisions that find fault with employer harassment policies and set new compliance standards. As a group, these cases clearly demonstrate that having a well-written policy is not enough. You must go further to train your employees on its application and procedures for filing a complaint.

And, as always, you need to implement the policy consistently, making sure that all complaints are taken seriously and resolved quickly and fairly. Also, as a final safeguard, you (and your legal counsel) should review your policy on a regular basis to ensure that it continues to meet evolving legal standards.

Supreme Court Rules Against the City of New Haven in Highly Publicized Reverse Discrimination Case: What Does Ricci v. DeStefano Mean For Employers?

On June 29, 2009, in a highly anticipated 5-4 decision, the U.S. Supreme Court held in Ricci v. DeStefano that the City of New Haven engaged in unlawful intentional race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) when it discarded a firefighter promotional test because of the racial makeup of the successful test takers. The City claimed that the test had a disparate impact on minorities and that, if it certified the test results and proceeded with promotions, it would have been sued for discrimination by minority test takers. The Court held that the City had to show a strong basis in evidence that it would be liable in such a suit – something more than the statistical results of the test – in order to justify throwing out the test and discriminating against the successful test takers, most of whom were white. It further held that, upon its review of the factual record, the City could not meet this burden. Reversing the Second Circuit (which had affirmed the trial court decision), it found that summary judgment should be entered against the City. The factual background of the case, opinion of the Court and the implications of the case for employers are discussed below.

Background

In 2003, the New Haven Fire Department developed examinations for promotion to the ranks of Lieutenant and Captain in conformance with both (1) the City charter, which mandates that promotions be awarded on the basis of merit as determined by job-related exams, and (2) the collective bargaining agreement, which also requires that promotions be made in part on the basis of results of a written exam. It engaged a professional testing service that specializes in the development of tests for police and firefighters to assist in developing its promotional exam, which was designed to be job-related. After administering the test and learning that black and Hispanic candidates failed at a much higher rate than white candidates and that certifying the test would have resulted in no black firefighters and only two Hispanic firefighters being promoted, the City decided not to complete validation of the exam and not to certify the results of the test. The City’s decision resulted in no firefighters being promoted and a lawsuit by seventeen successful test takers. The plaintiff firefighters claimed that the City had engaged in intentional race discrimination in violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Defending its actions, the City claimed that had it certified the exam and proceeded with promoting the successful test takers, it would have faced an employment discrimination lawsuit under Title VII’s disparate impact provision from minority applicants who were not promoted. In support of this claim, the City pointed to the statistical results of the exam, which indisputably were sufficient to state a prima facie case of disparate impact discrimination. It also pointed to evidence supporting its belief that it would have faced a lawsuit from the unsuccessful test takers and to evidence suggesting that an equally valid alternative test might be developed that would have had a lesser adverse impact on black and Hispanic candidates. The plaintiffs countered with evidence that they said demonstrated that the City’s articulated motive of voluntary compliance with Title VII and avoidance of Title VII liability was not its true motive and that the real reason for its actions was that it desired a greater number of black and Hispanic firefighters to be promoted so that the ranks of Lieutenant and Captain more closely mirrored the racial demographics of the City, regardless of merit (as determined by the exam).

The district court granted the City’s motion for summary judgment, holding that the City did not discriminate against the plaintiffs because its motivation – to avoid making promotions based on a test with racially disparate impact – did not constitute discriminatory intent. Additionally, it found that while the City was “race conscious” in deciding to disregard the examination results, since no one was promoted, there was no basis for finding that it intended to discriminate against the plaintiffs on the basis of race or engaged in intentional race discrimination. The Second Circuit (with Judge Sotomayor on the panel) affirmed, accepting wholesale the decision and rationale of the lower court. The Circuit Court judges then voted 7-6 to deny a rehearing en banc, with the dissenting judges arguing that the decision raised novel questions that were indisputably of “exceptional importance.”

The Supreme Court granted review, for the purpose of resolving the question of how far an employer can go to avoid discrimination against one group before it crosses over the line and discriminates against another group.

The Supreme Court’s Decision

Justice Kennedy, writing for majority, joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, rejected the notion that an employer’s “mere good-faith fear” of liability was a legally sufficient basis for taking race-based actions. Instead, the Court held that an employer will be liable for making a race-based action like the City’s, purportedly undertaken for compliance purposes, unless the employer can demonstrate a “strong basis in evidence” that, had it not taken the action in question, it would have been liable for disparate impact discrimination.

The Court also explicitly approved of an employer’s “affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made.” But, the Court warned that once a selection process “has been established and employers have made clear their selection criteria, they may not invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” It bolstered the rationale for this standard by explaining that this standard properly balanced the competing disparate treatment and disparate impact provisions of Title VII and gives meaning to other provisions of Title VII, including its proscription on the adjustment of test scores based on race and protection of bona fide promotional exams.

Applying its newly articulated standard, the majority held that there was insufficient evidence that the tests given to the New Haven firefighters were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available. Thus, the Court found that New Haven did not meet the strong basis in evidence standard that would justify its action. On this basis, the Court reversed the decisions below and ruled that the plaintiff firefighters were entitled to summary judgment in their favor.

The Court did not reach the firefighters’ claim that the City violated their rights under the Equal Protection Clause of the Fourteenth Amendment, having already found against the City based on Title VII.

Justice Scalia wrote a separate concurrence, noting that the Court’s decision “merely postponed the evil day” when the Court will have to confront the question of whether Title VII’s provisions that forbid employment actions that have a disparate impact on one group, which “place a racial thumb on the scales,” are consistent with the Constitution’s guarantee of equal protection. Justice Alito also wrote a separate concurrence detailing facts in the record that, in his opinion, required the same result even if the dissent’s legal analysis and “good faith” standard had been adopted by the Court.

Justice Ginsburg authored a dissenting opinion, joined by Justices Stevens, Souter and Breyer, taking issue with the factual premise of, legal standard articulated by and ultimate outcome of the majority decision. In particular, she questioned the majority’s “enigmatic standard” of requiring that there be a strong basis in evidence that an employer will be liable under Title VII’s disparate impact provision before it can take race-based action in the name of compliance with that provision. She also suggested that the majority’s standard denies employers the ability to rely on U.S. EEOC guidance regarding affirmative action as a defense to liability. Justice Ginsburg warned that “[a]s a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate treatment litigation in which its chances for success – even for surviving a summary-judgment motion – are highly problematic.” Stressing the “dominant Title VII theme” of voluntary compliance, she asserted that the proper standard, as mentioned above, would be to examine whether New Haven had good cause to believe the selection process was flawed and not justified by business necessity.

Implications for Employers

Benjamin Franklin put it best when he said, “an ounce of prevention is worth a pound of cure.” Employers should try to avoid ever getting to the point of discarding a selection process because it has a disproportionate impact on one race. This decision only heightens the importance of careful planning and vetting of selection processes and criteria. Employers must work diligently at the outset to make sure tests and other selection processes are race-neutral, job-related and consistent with business necessity. They should review and comply with the Uniform Guidelines on Employee Selection Procedures. This may entail conducting an extensive and rigorous evaluation of various different selection methods and consulting with outside experts to analyze procedures.

Once an employer implements a selection process, the Court’s decision limits its flexibility in determining whether to discard the test based on the results. An employer is no longer free to disregard the test, even if the results have a disproportionate impact on one race, unless it is able to meet a fairly high and somewhat nebulous threshold of showing that there is a strong basis in evidence that, had it not discarded the test, it would have been liable under Title VII’s disparate impact provision based on the content and results of the test. As the dissent points out, the majority does not clarify what factors courts should consider in determining whether there is such a strong basis in evidence. Employers will have to wait for lower courts to flesh out how they will apply this standard in the Title VII context.

The majority opinion also makes clear that employers are free to take affirmative efforts to ensure that all employees have an equal opportunity to gain promotions before choosing a particular test or procedure. Thus, employers should continue to pursue diversity initiatives that are designed to eradicate artificial and discriminatory barriers to employment opportunities. Employers should continue their previous lawful efforts to voluntarily comply with Title VII. If an employer seeks to avoid implementing a selection procedure that disproportionately affects employees of a certain race, it should consider consulting an attorney to weigh its options and decide on the best path going forward to avoid liability.

While the Ricci case involved public employees, the ruling affects private employers as well because Title VII applies to both private and public employers. However, public employers are often required by local law to utilize tests for hiring and promotion decisions and have less flexibility in the design of selection criteria. Public employers will now have a more onerous burden in establishing valid selection criteria at the beginning of a hiring or promotion process because of the unique restrictions applicable to them.

Note : The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or pmarathas@proskauer.com. ©2009 Proskauer Rose LLP. All rights reserved. Used with permission.

U.S. Supreme Court Holds Plaintiffs in Age Discrimination Suits to Higher Standard

In an important ruling that increases the burden on plaintiffs in cases under the federal Age Discrimination in Employment Act (ADEA), the United States Supreme Court held on June 18, 2009, that plaintiffs in age discrimination cases always bear the burden of proving that an adverse employment action would not have been taken against them “but for” their age. Gross v. FBL Financial Services, Inc., No. 08-441. This ruling draws a distinction between the ADEA and Title VII, under which plaintiffs need only show that their membership in a protected class was a “motivating factor” in an employer’s action, and eliminates any shifting of the burden of persuasion in so-called “mixed motive” cases under the ADEA.

1. Background

FBL Financial Group, Inc. (FBL) reassigned longtime employee Jack Gross to a new position when he was 54. Gross considered the reassignment a demotion, and he filed an ADEA suit in District Court. At trial, Gross introduced evidence that suggested his reassignment was at least partially based on his age. The judge instructed the jury that it should return a verdict for Gross if it found that “age was a motivating factor” in FBL’s decision to demote him, and defined a “motivating” factor as one that “played a part or a role” in the decision. The judge further instructed the jury that it should return a verdict for FBL if FBL proved, by a preponderance of the evidence, that it would have demoted Gross regardless of his age. The jury found for Gross, and FBL subsequently appealed.

The United States Court of Appeals for the Eighth Circuit reversed, holding that the judge had instructed the jury incorrectly under the standard established in Price Waterhouse v. Hopkins, a 1989 Supreme Court case that set out the burden of persuasion in “mixed-motives” cases under Title VII, where the plaintiff alleges that both permissible and impermissible considerations played a part in the adverse employment action. Although there was no majority decision in Price Waterhouse, six Justices agreed that if a plaintiff in a Title VII case demonstrated that discrimination was a motivating factor behind the employer’s action, the burden of persuasion shifted to the employer to show it would have taken the same action regardless of the plaintiff ’s membership in a protected class.

Justice O’Connor, a member of this plurality, found that in order to shift the burden of persuasion to the employer, the employee must present “direct evidence” that the illegitimate consideration was a substantial factor in the employer’s decision. The Eighth Circuit found Justice O’Connor’s opinion for shifting the burden of persuasion controlled, and held that the District Court’s jury instruction was flawed because it allowed the burden of persuasion to shift to FBL if there was a preponderance of any evidence showing age was a motivating factor, rather than requiring direct evidence.

2. The Supreme Court’s Decision

The Supreme Court granted certiorari to answer the question of whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII discrimination case. But the Court never reached this question. Instead, Justice Thomas, writing for the majority, joined by Justices Scalia, Kennedy, Alito and Chief Justice Roberts, focused on the antecedent question of whether the burden of persuasion ever shifts to the defendant in a mixed-motive discrimination case brought under the ADEA. The Court held it does not, based, primarily, on textual differences between the ADEA and Title VII.

Although at the time the Court decided Price Waterhouse the language of Title VII and the ADEA was the same (i.e, making it unlawful to discriminate in terms and conditions of employment “because of” membership in the applicable protected class), the Supreme Court declined to extend the Price Waterhouse burden-shifting framework to ADEA claims. In reaching this conclusion, the Court emphasized that, after Price Waterhouse, Congress amended Title VII to provide for liability if discrimination was “a motivating factor” for the adverse employment decision, but it did not make a comparable amendment to the ADEA, which continues to make it unlawful to discriminate “because of” age.

The Court held that to establish that the challenged adverse employment action was “because of” the employee’s age, the employee must prove that “but for” his age, the employer would not have taken the adverse action against him. The Court went on to note the practical difficulties the lower courts have experienced in applying the Price Waterhouse burden-shifting framework, finding that such difficulties have eliminated any perceivable benefit to extending the framework to ADEA claims.

In an ardent dissent, which was joined by Justices Souter, Ginsburg and Breyer, Justice Stevens criticized the majority’s “unabashed display of judicial lawmaking.” The dissent stresses that the Price Waterhouse analysis is still valid and that the text of the ADEA requires only that age play some role in motivating a prohibited employment action, not that age be the “but for” reason for the employer’s decision.

Justice Breyer authored a separate dissent, joined by Justices Souter and Ginsburg, in which he discussed the difficulty of an employee proving an employer would not have taken an action “but for” an employee’s age because the employer is in a much better position to establish what his motives were in making a decision.

3. Implications for Employers

The Supreme Court’s decision is a significant win for employers defending against age discrimination claims. The decision clearly articulates the burden on plaintiffs bringing age discrimination claims, requiring them to show that “but for” their age, the employer would not have taken the adverse employment action. This standard increases the likelihood for pro-employer decisions at summary judgment and, if necessary, trial. Although employers will still want to introduce evidence to show that adverse employment actions were motivated by factors other than age, they will no longer have the burden to persuade jurors that age was not a motivating factor in the adverse action.

The elimination of the complicated burden-shifting paradigm is a double-edged sword in some respects. While it will simplify the analysis and help reduce jury confusion in cases limited to ADEA claims, it may lead to increased confusion, as noted by Justice Stevens, in cases in which the plaintiff is asserting both Title VII and ADEA claims because Title VII cases remain subject to the “motivating factor” standard pursuant to statute.

Unfortunately, employers may not have a very long opportunity to appreciate the benefits of the Supreme Court’s decision. This decision has already piqued the interest of Senator Patrick Leahy (D-Vt.), who criticized the opinion as “overreaching by a narrow majority of the Court [that] will have a detrimental effect on all Americans and their families.” Leahy compared the decision to the Court’s ruling in Ledbetter v. Goodyear Tire & Rubber Co., which was obviated by Congress this year. Indeed, the fate of Gross may be the same as that of Ledbetter: a short-lived victory for employers.

Note : The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or pmarathas@proskauer.com. ©2009 Proskauer Rose LLP. All rights reserved. Used with permission.

What You Need to Know About the Swine Flu Pandemic

By Christopher H. Coulter, MD, MPH, Chief Medical Officer

Many people were relieved when the swine flu (H1N1 influenza) turned out to be milder and spread less easily than initially feared. It came as a surprise when a flu pandemic was declared at the same time the number of U.S. cases was falling, leaving people confused about their risk of H1N1 flu and what to do about it. Taking the right steps requires understanding the risk and how to prepare for it.

Most people have had influenza and know about “flu season,” the winter months when most cases occur. A pandemic behaves differently than seasonal flu in a number of different ways. First, the virus spreads around the globe infecting countries in waves – as the number of cases decline in one country, they’re on the rise in another. Second, cases can occur at any time of year. Finally, the virus can return to a country and start another wave of infections in those who were not sick the first time around.

Influenza viruses also shift their behavior over time, so there are concerns that the virus might become more dangerous or spread more easily from one person to the next than what we’ve seen so far. For these reasons, health care experts are very concerned with limiting the spread of the virus and developing vaccines against it.

There are several steps you can take to protect yourself and your employees. First, you cannot get the flu unless you are in contact with someone who has it, so take precautions. It is spread both by touching infected surfaces and by breathing in virus particles that someone has coughed or sneezed into the air, so take the steps you’ve heard about to wash your hands frequently, avoid touching surfaces that infected individuals may have touched, and avoid breathing infected air. The cloth or gauze masks that you have seen do not block virus particles. If you will be exposed, purchase N95 respirator masks from the drug store and use them carefully – they won’t work if you breathe around them. If the pandemic becomes serious enough, steps will be taken to limit travel, decrease public assemblies like school and concerts, and many employers will take steps to limit contact between employees and with the public.

It makes sense to get a seasonal flu shot, even though it will provide limited protection, if any, against the H1N1 flu. It may help, and it will certainly decrease your chances of getting the seasonal flu. Current plans are to develop and release an H1N1 vaccine as early as October, and depending on your risk, exposure, and the vaccine availability, you should consider getting vaccinated. This may require a second shot.

With all the concern over flu and its effects on absenteeism and lost production, it may make sense to offer flu shots at your workplace. More people are likely to get flu shots if they are offered at a reduced rate or even completely paid for by their employer. If you are interested in hosting a flu shot clinic at your workplace, please contact your Precept Account Manager.

There are antiviral medications that may offer some protection, although the virus tends to develop resistance to these. Tamiflu and Relenza may have value in certain settings, but for most people it does not make sense to stockpile either one.

There have been no influenza pandemics for 40 years, and today we live in a different world, one with much greater contact than ever before. The H1N1 is a unique flu virus, making it impossible to predict how serious the pandemic will become. You may never hear about it again, but it makes sense to be prepared in case it comes roaring back. Stay tuned.