United States: Recent Developments in Employment Law

The Second Circuit Upholds Absolute Privilege for Statements Made on a Form U-5

On June 14, 2007, the U.S. Court of Appeals for the Second Circuit affirmed the district court's determination that statements made on an NASD Form U-5 are subject to an "absolute privilege" and therefore do not give rise to liability in a defamation lawsuit. As discussed below, Rosenberg v. Metlife, Inc., No. 05-4363 (2d Cir. 2007), resolved an unsettled issue in New York regarding the protection afforded to National Association of Securities Dealers ("NASD") member firms that are required to state the reasons for termination of a registered representative on a Form U-5. Some New York courts found such statements to be subject to an "absolute privilege," while other New York courts (as well as the Sixth and Seventh Circuits Courts of Appeal, applying the law of Tennessee and Illinois, respectively) ruled that these statements are subject to a lesser, "qualified privilege," which can be overcome by demonstrating that the statements were made with actual malice. The Rosenberg decision should provide comfort to securities industry employers who seek to provide a full and fair explanation of the circumstances surrounding a New York employee's termination without risking increased exposure to defamation or libel lawsuits.

Form U-5

The NASD requires its members to file a Uniform Termination Notice for Securities Industry Registration, known as a Form U-5, within 30 days of the voluntary or involuntary termination of a registered representative and to provide a copy of the form to the employee. The Form U-5 sets forth the employer's statement of the reasons for the termination. In addition, the form contains a number of disclosure questions regarding whether the employee has been subject to criminal charges, customer complaints or an internal review for violating investment-related rules.

Factual Background

Metlife hired plaintiff-appellant Chaskie Rosenberg in 1997 to work as a financial service representative in its All-Boro agency. Beginning in 1998, Metlife initiated inquiries into the All-Boro agency's practice of accepting third-party checks for the payment of life insurance premiums. According to Metlife, third-party payments are problematic because they can be indicative of "speculative insurance practices and possible money-laundering activities." These inquiries evolved into two full-scale audits in 1999 and the closing of the agency. Metlife transferred Rosenberg to a different Metlife agency, but ultimately terminated Rosenberg's employment following the results of the second of two audits. Upon Rosenberg's termination and in accordance with NASD regulations, Metlife filed a Form U-5, stating the reasons for his discharge as follows:

An internal review disclosed Mr. Rosenberg appeared to have violated company policies and procedures involving speculative insurance sales and possible accessory to money laundering violations.

The Form U-5 also indicated that Rosenberg had been under an "internal review for violating investor-related rules."

Rosenberg filed an action against Metlife in the U.S. District Court for the Southern District of New York, alleging, among other things, that Metlife's stated reasons for his termination in the Form U-5 were defamatory and made with malicious intent. The district court dismissed Rosenberg's libel claim, holding that statements made on a Form U-5 are absolutely privileged and, therefore, do not subject the speaker to liability.

Rosenberg argued on appeal to the Second Circuit that the district court erred in finding statements on a Form U-5 to be absolutely privileged and asserted, instead, that they should be subject only to a "qualified privilege." As explained by the Second Circuit, as a general matter, an "absolute privilege" is reserved for communications made by "individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings" and can also extend to "preliminary or investigative stages" of such proceedings, particularly when "compelling public interests are at stake." By contrast, a statement is subject to a lesser "qualified privilege" when it is "fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned." Communications that are protected by a qualified privilege are not actionable unless a plaintiff can demonstrate that the statement was made with malice.

The Second Circuit determined that Rosenberg presented an unsettled issue under New York State law and, as such, asked the New York Court of Appeals, New York's highest court, to determine whether statements made by an employer on an NASD Form U-5 are subject to an absolute or qualified privilege in a defamation lawsuit.

The Court of Appeals' Decision

Before the Court of Appeals, Rosenberg argued that "the filing of a Form U-5 is too remote from the NASD's quasi-judicial functions to warrant the application of an absolute privilege." Metlife countered by arguing that an absolute privilege should apply because "the filing of a Form U-5 with the NASD is a preliminary step in a quasi-judicial process and because such a privilege best serves the public interest in encouraging full and truthful disclosure."

The Court of Appeals agreed with Metlife and concluded that statements on a Form U-5 are to be afforded an absolute privilege. The court emphasized that the NASD is a "quasi-governmental entity" and one of its "central responsibilities" involves the "investigation and adjudication of suspected violations of the SEC's laws and regulations as well as the NASD's own rules." According to the Court of Appeals, the Form U-5 plays a "significant role" in this self-regulating process and is "often the first indication that the NASD receives regarding possible misconduct by members of the securities industry." The Court further noted that the NASD's investigatory actions "ultimately inure to the benefit of the general investing public, which faces the potential for substantial harm if exposed to unethical brokers." Based on these regulatory and public interests, the Court of Appeals concluded that statements made on a Form U-5 are subject to an absolute privilege in a suit for defamation.

What This Means for Employers

The Rosenberg decision is an important ruling for broker-dealers and should provide comfort to NASD firms that seek to provide a full and fair explanation of the circumstances surrounding a New York-registered representative's termination without exposing itself to litigation risks. Under theRosenberg Court's decision, however, an NASD firm is not immune from all potential liability stemming from allegedly defamatory statements contained in a New York employee's Form U-5. As noted by the Court of Appeals, registered employees who are maliciously defamed on a Form U-5 may commence an arbitration proceeding or court action seeking to expunge any alleged defamatory language.

Furthermore, since the Sixth Circuit (applying Tennessee law) and the Seventh Circuit (applying Illinois law) have each concluded that statements contained on U-5 forms are subject to the lesser "qualified privilege," employers terminating registered representatives in Tennessee and Illinois will not enjoy an absolute privilege for the statements they make on a Form U-5. Employers terminating registered representatives in other states should be guided by the law of the state where the employee is employed.

The Supreme Court Upholds Exemption from the Federal Minimum Wage and Overtime Requirements for "Companions" to the Aged or Infirm Employed by Third Parties; Decision Has No Effect Under State or Local Laws That Do Not Grant an Exemption for Companions

In a unanimous decision, the U.S. Supreme Court upheld a U.S. Department of Labor ("DOL") regulation that provides for an exemption from the minimum wage and overtime requirements of the federal Fair Labor Standards Act ("FLSA") for companions to the aged and infirm who are employed by home health agencies and other employers other than the family or household of the recipients of the companionship services. Long Island Care At Home, Ltd. v. Coke. In most states, the Court's decision is significant for employers who are in the business of providing such services. However, the FLSA requires employers to comply with applicable state laws or local ordinances that contain minimum wage and/or overtime hours requirements that are more favorable to employees than the FLSA. Therefore, the Supreme Court's decision does not apply to employees of third parties who provide such companionship services in states or localities that do not provide for the companionship exemptions available under the FLSA.

Factual Background and History of the Case

In 1974 Congress amended the FLSA to extend the federal minimum wage and overtime requirements to many domestic service employees not previously covered by the FLSA. At the same time, Congress created an exemption that excluded from FLSA coverage employees employed in "domestic service in employment" who provide "companionship services" for individuals who, because of age or infirmity, are unable to care for themselves. The exemption left it up to the DOL to define and delimit the terms of the exemption by regulations.

The DOL then issued two sets of regulations that were involved in the Coke case. The first set, designated as "General Regulations," defines "domestic service in employment" in relevant part as "services of a household nature performed by an employee in or about a private home . . . of the person by whom he or she is employed . . . such as cooks, waiters, butlers, valets, maids, housekeepers. . . ." The second set of DOL regulations, entitled "Interpretations," states that exempt companionship workers include those who are employed by an employer or agency other than the family or household using their services. The Supreme Court described this regulation as the "third-party regulation."

Evelyn Coke had been employed by Long Island Care at Home to provide companionship services to the employer's elderly clients in the clients' homes. In 2002 she sued her then former employer for minimum wages and overtime under the FLSA in the federal court for the Eastern District of New York. Long Island Care argued that Coke was an exempt employee under the companionship exemption and the DOL third-party regulation. The district court granted Long Island Care's motion for judgment on the pleadings, and Coke appealed to the U.S. Court of Appeals for the Second Circuit in New York. The Second Circuit reversed the district court, finding that the DOL's third-party regulation was unenforceable because it was outside the scope of authority Congress had delegated to the DOL, was inconsistent with the more general General Regulations and was an interpretative regulation to which the courts were not required to grant deference.

The Supreme Court's Decision

The Supreme Court reversed the Second Circuit and held that the third-party regulation was valid. The Supreme Court rejected each of the reasons given by the Second Circuit in support of that court's holding. First, the Supreme Court reasoned that the DOL had not exceeded its authority in promulgating the third-party regulation because Congress had specifically left the defining of terms used in the exemption to the DOL. Second, based on the legal principle that the specific normally controls over the general, the Court reasoned that the more specific third-party regulation controlled the General Regulation. Third, the Court found that the third-party regulation was not an interpretative regulation because the DOL complied with the notice and comment procedures established by the Administrative Procedure Act in promulgating it, and such procedures are not normally employed in promulgating interpretive regulations.

What the Decision Means for Employers

As a result of the Coke decision, home health agencies and other third-party employers of employees that provide "companionship services" for the aged or infirm are not required in most states to pay their employees who provide such services the federal minimum wage or overtime pay at one and one-half times their regular hourly rate for working hours in excess of 40 in a work week. "Companionship services" include household work related to care of the aged or infirm person, such as making beds, washing clothes and other similar services. Companions may perform other general household work; however, if such other work exceeds 20 percent of the employee's total hours of work in a week, the exemption is lost. "Companionship services" do not include services for the care and protection of the aged or infirm that require or are performed by trained personnel, such as registered nurses or licensed practical nurses. Those employees are entitled to payment of the federal minimum wage and overtime as covered domestic workers when working in the residence, unless some other exemption from FLSA coverage applies to them.

Third-party employers in states or municipalities whose laws or ordinances do not provide for an exemption from the state or local minimum wage and overtime requirements for employees that provide companionship services for the aged or infirm must comply with those requirements. Some states do not exempt such employees from coverage for the state minimum wage or overtime pay, or both, or they provide for different variations and conditions concerning the exemption from the state minimum wage and overtime requirements for employees who provide such services. By way of example only, Illinois law requires employers to pay the state minimum wage and overtime pay to employees who provide such companionship services in that state. Similarly, Michigan law requires the payment of the state minimum wage and overtime pay to employees of third-party employers who provide companionship services to the aged or infirm in that state. New York law requires the payment of the state's minimum wage to employees of third-party employers who provide such services, as well as overtime pay at the rate of time and one-half of the state's minimum wage, rather than the employee's regular rate. The law in Minnesota requires the payment of that state's minimum wage and overtime pay to such employees except for payment of a total of up to eight hours per 24-hour day if the employee stays overnight with the client and is paid the state minimum wage for four overnight hours. There are a number of variations in state laws. Therefore, third-party employers engaged in the business of providing companionship services for the aged or infirm should be aware of the state and local laws and regulations applicable to their operations in the states and localities in which they engage in business.

Transgender Protections Afforded Under New Jersey Law Against Discrimination

The State of New Jersey recently expanded its anti-discrimination statute, the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq., to include "gender identity or expression" as a protected class effective June 17, 2007. "Gender identity or expression" means having or being perceived as having a gender-related identity or expression whether or not stereotypically associated with a person's assigned sex usually at birth. Based on this definition, the LAD affords protection to transsexuals, cross-dressers, persons who are asexual or persons whose gender is ambiguous or not traditionally feminine or masculine. The LAD now prohibits discrimination against persons on the basis of gender identity or expression in both employment and places of public accommodation.

The new law arose as a result of the New Jersey Appellate Division's ruling in Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501 (App. Div. 2001), where the court found that "gender dysforia" (being uncomfortable with one's gender) is a handicap under the LAD. The Enriquez case involved a physician who was diagnosed with the disorder and alleged that her employer refused to renew her employment contract after she began taking steps to change her gender from male to female. The trial court dismissed her claim finding that she had no cause of action under the LAD. The Appellate Division reinstated her case ruling that gender dysforia diagnosed by a medical professional is a disability under the LAD. The court also found that discrimination on the basis of gender dysforia is a form of sex discrimination. The court reasoned that it was "incomprehensible" that the legislature would bar discrimination against heterosexual men and women, homosexual men and women, bi-sexual men and women, and persons perceived as such, yet would "condone discrimination against men or women who seek to change their anatomical sex because they suffer from a gender-identity disorder." The court concluded that sex discrimination under the LAD includes gender discrimination and provides protection from gender stereotyping and discrimination, including that based on a gender transformation.

What This Means for Employers

The effect and implications of the new law are clear in some respects, yet not in others. It is clear that all New Jersey employers should amend their anti-discrimination and anti-harassment policies to include "gender identity or expression" in their list of protected classes. Employers are advised to check the New Jersey Department of Labor's website for the updated posting required to give notice to employees of the protections afforded under the LAD. Additionally, employers should make sure all training classes and modules explain "gender identity or expression" and inform the workforce that "gender identity or expression" is a protected class under New Jersey's anti-discrimination law.

This change in the law affects other workplace policies as well. When it comes to dress codes, employers are permitted to require employees to adhere to reasonable grooming standards and dress codes, except employers must allow employees to appear, groom and dress consistent with the employee's gender identity or expression. Less clear is the issue of restroom usage. The new legislation requires that places of public accommodation permit transgender individuals to be admitted to such places "based upon their gender identity or expression." This amendment affects the use of single sex facilities such as restrooms and locker rooms.

The practical implications of the new law are somewhat vague. If a man identifies himself as a woman and wears a dress to work, does an employer have a duty to accommodate his request to use the ladies restroom? Will women claim that they are being subject to a hostile work environment in such circumstances? Will employers be forced to bear the expense of installing a separate, single-stall, unisex bathroom to avoid this conundrum? These are questions that remain unanswered and present practical concerns that employers will grapple with in light of the statutory amendment. When faced with these sensitive issues, employers should confer with legal counsel for assistance in navigating through the new and uncharted waters of the LAD.

New Florida Employment Law Provides Protection to Employees Who Are Victims of Domestic Violence

On June 12, 2007, Florida Governor Charlie Crist signed new legislation that requires employers to provide up to three days of leave to employees who are the victims of domestic violence, or who have a family or household member who is the victim of domestic violence. The law, §741.313, Fla.Stat. (2007), has an effective date of July 1, 2007, and provides for civil damages or equitable relief if an employer fails to comply with the statute. Therefore, employers should take immediate steps to ensure that their leave policies are in compliance with the new law.

The following questions and answers provide a brief highlight of the law's most important provisions.

To whom does the law apply?

The law applies to all employers who employ 50 or more employees, and to all employees who have been employed by the employer for at least 3 months.

What is the law's definition of "domestic violence"?

Under the statute, "domestic violence" is defined as any "assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." The term "family or household member" includes spouses, former spouses, persons related by blood or marriage, persons presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.

How and when must the employee provide notice of leave to the employer?

Except in cases of imminent danger to the health or safety of the employee, or to the health or safety of a family or household member, an employee who wishes to seek leave from work under the new law must provide the employer with "appropriate advance notice" in accordance with the employer's policy. The notice must include "sufficient documentation" of the act of domestic violence as required by the employer. Unfortunately, the new law fails to define what constitutes "sufficient documentation" of the act of domestic violence. Therefore, it is up to the employer to determine whether "sufficient documentation" has been presented by an employee.

What does the new law contemplate the employee using the leave for?

The law permits an employee to seek leave from work to engage in any of the following activities:

• Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;
• Obtain medical care or mental health counseling, or both, for the employee or a family or household member to address physical or psychological injuries resulting from the act of domestic violence;
• Obtain services from a victim-services organization, including, but not limited to, a domestic violence shelter or program or a rape crisis center as a result of the act of domestic violence;
• Make the employee's home secure from the perpetrator of the domestic violence or to seek new housing to escape the perpetrator; or
• Seek legal assistance regarding the act of domestic violence or to attend and prepare for court-related proceedings arising from the act of domestic violence.

What are the confidentiality requirements for private employers?

All private employers must keep any information relating to an employee's request for leave on the basis of domestic violence confidential.

Must the leave be with or without pay, and how does it affect the employee's vacation, personal and/or sick leave?

The employer has the discretion to decide whether the three-day leave is with or without pay, but the employee must exhaust all vacation, personal, and sick leave before receiving the three-day leave. However, the statute specifically provides that the employer may waive this requirement.

What kinds of penalties may an employer face for violating the new law?

An employer may not interfere with, restrain or deny the exercise of an employee's right to avail himself or herself of the protections afforded by the new law. If an employer violates the statute, the employee may be entitled to damages for all wages and benefits that would have been due to the employee had the statute not been violated. However, an employee may not recover damages for lost wages and benefits for leave that is without pay.

Granting of FMLA Leave Is Not Conclusive Evidence That Employer Regarded Employee as "Disabled"

In a recent federal appeals court opinion, the Tenth Circuit held that an employer's granting of an employee's FMLA leave request did not mean that the company regarded the employee as disabled.

The case, Berry v. T-Mobile, Inc., involved a customer-service team manager. Barbara Berry had received favorable performance reviews for several years. When a new supervisor came onboard, one of his tasks was to evaluate the strength of the customer service department and to assess the strengths and weaknesses of the department's managers. The new supervisor found Berry to be lacking in certain management skills. Berry received numerous verbal counselings from the supervisor.

In October 2003, Berry approached her supervisor and told him that she was concerned that she might be terminated "any day." Her supervisor reassured her and stated that he felt she had made recent progress in the areas in which she needed to improve. Two weeks later, the supervisor sat in on one of Berry's coaching meetings and again advised that her coaching of her subordinates needed improvement. Shortly after this meeting, Berry approached her supervisor and stated that she needed a rest from work due to the extreme fatigue she was experiencing as a result of her multiple sclerosis. Berry had been diagnosed with MS twelve years earlier, and her supervisor knew this. The supervisor suggested to Berry that she apply for time off under the Family and Medical Leave Act ("FMLA"). Berry did so, and her application for FMLA leave was granted. The very next day, T-Mobile terminated her employment. T-Mobile contended that the decision to terminate Berry's employment had been made before she filed her FMLA leave request.

Berry filed suit. In addition to other claims, Berry alleged that she was terminated for having a disability. The district court granted summary judgment in favor of T-Mobile. Relying upon Berry's medical records, the district court found that although Berry's MS was an "impairment" under the ADA, it did not "significantly limit" her major life activities.

Under the ADA, an employee must establish that he or she (1) has a physical or mental impairment that substantially limits one or more major life activity; (2) has a record of such impairment; or (3) is regarded as having such an impairment.

On appeal by Berry, the Tenth Circuit considered whether the evidence established that Berry had a substantially limiting impairment or whether she was regarded as having one. The court found that the medical documentation failed to demonstrate that Berry was "substantially limited" in her major life activities. Berry contended that because T-Mobile was aware that she had MS and was aware that she was having extreme fatigue and cognitive lapses as a result of the MS, and because her supervisor recommended that she apply for FMLA leave, the company "regarded" her as having a disability. The Tenth Circuit disagreed. The court noted that "disability" is a term of art under the ADA. Furthermore, the court noted that the provisions of the FMLA are wholly distinct from the provisions of the ADA, and that a "serious health condition" under FMLA (which might entitle an eligible employee to take leave under FMLA) was not the same as an ADA "disability."

What This Means for Employers

The good news for employers is that this decision supports the concept that the purposes of the FMLA and the ADA are separate and distinct, and that eligibility for FMLA leave due to a "serious health condition" does not necessarily mean that the person has an ADA "disability." For example, under the FMLA, an otherwise eligible employee who breaks his or her legs while skiing and spends at least one night in a hospital would qualify for leave under FMLA due to a "serious health condition." Unless complications or continuing limitations resulted, the same person would probably not be viewed as having an ADA disability. Despite this decision, employers should be careful when assessing FMLA requests to couch inquiries and discussions in terms of the employee's "serious health condition" and should avoid using the term "disability."

This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.

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