Employers may order employees to take seasonal and H1N1 vaccines, OSHA has ruled in a letter of interpretation. For more details, see the current issue of Maryland Employment Law Reporter. The Equal Employment Opportunity Commission has proposed changes to a key defense used by employers in ADEA claims. In a notice of rulemaking issued on Feb. 18, the federal agency has proposed an amendment of its "reasonable factors other than age criteria" that would create new criteria. For more details, see the March 2010 issue of Maryland Employment Law Reporter. M. Patricia Smith has been confirmed as the U.S. Department of Labor's Solicitor of Labor in a 60-37 vote. The Solicitor of Labor serves as DOL's chief legal advisor and litigator. Feb. 4. President Obama's proposed 2011 budget provides for increased funding to ramp up enforcement of improperly classified workers. Obama has proposed that the Labor Department receive an additional $25 million to hire 100 enforcement personnel to target misclassification. DOL is reviewing regulations implementing the new military family leave amendments to the FMLA that were included in the National Defense Authorization Act for FY2008. The amendments allow eligible employees to take up to 26 weeks of leave during a 12-month period to care for covered servicemembers. The amendments also allow eligible employees to take up to 12 weeks of FMLA leave for any "qualifying exigency" that stems from a call to active duty. The amendments took effect Jan. 6. Maryland's Labor Department has recovered $91,000 for back pay -- its largest ever recovery -- for an executive whose severance pay was withheld by his former employer. The company had challenged a finding of fiscal liability, but state investigators determined that the company, whose name was not released, failed to perform proper due diligence before hiring the worker. That failure was not sufficient grounds to extinguish the company's contractual obligation to pay severance, DOL said. The Free State's Department of Labor is investigating 600 claims of unpaid wages and has recovered more than $362,000 in wages so far this year -- that amount is more than it recovered in 2007 and close to the $456,000 it recovered in fiscal 2009. Job bias charges -- based on disability, religion and national origin -- hit record highs in FY2009, according to the EEOC. The number of charges alleging age-based discrimination reached the second highest level ever. The EEOC speculates that the spike in filings stem from economic conditions and changes to the agency's intake practices that eliminate many of the steps formerly needed for an individual to file a charge.

Federal workers are now forbidden from texting while driving government vehicles or while on official business using their own vehicles. The executive order signed by President Barack Obama in October went into effect Jan. 5. Employers would be required to provide unpaid break time and a location other than a bathroom for employees who are nursing mothers under an amendment (HR 3590) to the Fair Labor Standards Act included in the U.S. Senate's version of the health care reform bill passed Dec. 24. The Fourth Circuit has added a new wrinkle to the issue of worker payment for donning and doffing. Employers and unions can agree to exclude payment for donning and doffing of protective gear through collective bargaining under the FLSA, the United States District Court for the Fourth Circuit has ruled in Sepulveda v. Allen Family Foods. Senior Judge Marvin Garbis had dismissed the class action suit in September 2008 (see MELR October 2008). That decision put him at odds with Judge Andre Davis -- recently appointed to the Fourth Circuit -- who ruled in Perez v. Mountaire Farms (see MELR May 2009), that the poultry plant had to pay its workers for time spent donning and doffing. Maryland's top court has granted cert in several labor and employment law cases: Michele Collins v. National Railroad Passenger Corporation (see Maryland Employment Law Reporter September 2009), Walmart Stores, Inc. v. Larry Holmes, Sr. et ux (see MELR October 2009) and Valerie Willis v. Montgomery County, Maryland (see MELR September 2009). The U.S. Supreme Court has agreed to hear a case dealing with text messaging in government workplaces. The case stems from a California police department's official policy of allowing personal communications while reserving the right to monitor network communications. However, under an informal policy adopted by a supervisor, pagers belonging to SWAT team members were not inspected. But when one of the team member's messages were checked under a change in the supervisor's informal policy, managers were shocked to discover a high number of sexually explicit messages. The policeman sued, claiming that his Fourth Amendment rights against unreasonable government searches had been violated. In EEOC v. Xerxes Corporation, Maryland's federal district court threw out a worker's claims of hostile work environment and racial discrimination, describing the company's actions -- including prompt investigation, written warnings, EEO retraining sessions and unpaid suspensions -- as "quick" and "proactive." The case is unpublished. The U.S. Department of Justice has been asked to weigh in on a case pending in the Supreme Court. Staub v. Proctor Hospital asks the question whether an employer can be held liable for the unlawful bias of managers who caused but did not make a discriminatory employment decision. Appeals courts have issued conflicting opinions on the "cat's paw" theory of discriminatory employment actions. While the 4th Circuit has ruled that an employer may be held liable only for the motives of the formal or functional decisionmaker, other courts, such as the 3rd circuit, have ruled that an employer can be held liable for the motives of the manager whose actions caused the ultimate decision. Asking DOJ to provide an opinion often signals that the Supreme Court has decided to hear a case. The Supreme Court has granted cert in a case dealing with the question whether the National Labor Relations Board is authorized to render decisions while three of its five seats are vacant. The High Court was asked to determine whether the National Labor Relations Act authorizes the agency to act with only two members if the board previously delegated its full powers to a three-member group that included the two present members. Cert was granted Nov. 2.