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Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update

Bubble, Bubble, Toil and Trouble! Are Mandatory Flu Vaccination Policies a Good Idea or a Recipe for a Legal Disaster? By Mary Cooper
Summer is over, and autumn has arrived. Football and fall leaves will soon usher in another dreaded flu season. For many employers, the arrival of flu season means more sick days and less production. The CDC reports that, on average, 5% to 20% of the U.S. population gets the flu virus each year with the peak from late November through early March. Those infected with the influenza virus can be ill for 5-7 days, which can mean major staffing problems for employers unlucky enough to have a facility-wide mini-epidemic on their hands. To prevent the flu virus from taking their workforces hostage, many employers have begun implementing mandatory vaccination requirements as a condition of employment. Generally in Arkansas, an at-will employment state, employers can require employees to get flu shots and terminate those employees that refuse vaccination. However, there are several exceptions and other issues employers should consider before implementing a policy requiring employees to get flu vaccinations. To read more, click here

A Zombie Apocalypse! Are Your Employees Arming Themselves at Work? By Greg Northen
With hit shows like AMC's "The Walking Dead" and recent movies like "World War Z," it seems the odds of a possible zombie apocalypse have never been higher. Regardless of your take on whether such an event could occur, the number of Arkansans applying for concealed carry licenses (CCLs) for firearms (for whatever reason) is similarly at an all-time high. In the first three months of 2013, applications for CCLs in Arkansas totaled more than half of the total number of 2012. As of May 2013, approximately 140,000 Arkansans had active CCLs.

The recent news involving Arkansas school districts arming and training staff for protection of students on school property has brought the issue of carrying handguns to the forefront in Arkansas. Notably, the Arkansas Legislature passed a new statute this year (effective July 4, 2013) that arguably allows for "open carry" in certain circumstances. (NOTE: there is much debate as to the interpretation of this statute, and the Arkansas Attorney General has narrowly construed the allowances of where an Arkansan can legally carry a handgun.) Some businesses are pushing back against State laws broadening citizens' rights to carry handguns. Starbucks, Caterpillar and FedEx are a few national companies pushing for corporate rights to prohibit firearms in the workplace. Basically, there are lots of questions as to when and where an Arkansan can lawfully carry a handgun. Click here to read more.

Trick or Treat? Checking an Employee's Facebook Page Can Be Scary! By Misty Wilson Borkowski and Joe Ramsey
On June 26, 2013, the United States Supreme Court issued a decision in United States v. Windsor that struck down a provision in the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same-sex spouses. Following the decision, federal agencies immediately responded with policy and procedure changes to implement the change in the law.

The U.S. Department of Labor updated its policy on who can be considered a "spouse" for benefits under the Family Medical Leave Act (FMLA). Under the FMLA, eligible employees can receive unpaid, job-protected leave and continuation of group health insurance benefits for specified family and medical reasons. The Act includes coverage when an individual takes leave to care for a spouse with a serious health condition or activities related to a spouse's military deployment. Accordingly, the DOL issued an updated guidance to acknowledge that spousal leave for same-sex spouses may be available under the FMLA. Click here to read more.

Jeepers Creepers! Don’t Let the OFCCP Final Rules Spook You! By Abtin Mehdizadegan
Federal contractors and subcontractors are likely all-too familiar with this phone call from HR or your affirmative action plan (AAP) compliance specialist: "It is time to update the affirmative action plans!" Last year, when you received this call-with respect to the "women and minorities" plan-it is likely that you gathered applicant data, prepared spreadsheets and updated written materials to reflect new goals and changes in your recruiting sources. For the individuals with disabilities and veterans plans, the process likely required minimal updating. This year, the call will sound a lot different, reflecting two significant rule changes propounded by the Office of Federal Contract Compliance Programs (OFCCP) regarding hiring and employment of protected veterans and disabled individuals. Click here to read more.

CGWG Case Corner

Supreme Court Issues Employer-friendly Decisions with Respect to Harassment and Retaliation Cases

Recently, the U.S. Supreme Court issued decisions in two cases impacting the ability of employers to defend against Title VII claims: University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University. In Vance, the Court narrowed the definition of "supervisor" for purposes of Title VII harassment claims, specifically in cases where claims were made against supervisors in instances of vicarious liability. In Nassar, the Court heightened the burden of proof required of an employee in Title VII retaliation claims. As a result of both decisions, it may be more difficult for workers to sue employers over discrimination in the workplace. Click here to read more about Vance and click here to read more about Nassar.

Court Rules that Supervisor's Comments Provide Evidence of Age Discrimination

The Eighth Circuit Court of Appeals has ruled that a 76-year-old security guard who was the subject of repeated comments about his age by one of the supervisors who decided to discharge the worker can proceed with his Age Discrimination in Employment Act (ADEA) claim. Based on its review of his personnel file, the Court found that the guard, Carlyn Johnson, had met the company's legitimate expectations, and that the supervisor's comments about Johnson's age indicated an unlawful motive for firing the worker. While it is unlikely that management was aware of the supervisor's comments, the case nevertheless provides an important reminder to fully investigate every discharge, particularly those involving employees in a protected class. Click here to read more about the case.