Suits In The WorkPlace

Email Bites Employer - Again

I never get tired of these cases. Last week, an Idaho Federal District Court recently denied summary judgment to an employer in an age discrimination case. In Wold v. El Centro Fin., Inc., 2009 U.S. Dist. LEXIS 50958 (D. Idaho June 16, 2009), the plaintiff argued that he had been rejected for a position because of his age, 46.

As is common these days, much of the hiring process was electronic. Wold emailed his resume to El Centro, expressing his interest in a job opening. The resume made its way around the company, and ended up in the inbox of the company CEO. The CEO, apparently thinking that he was responding to his own HR staff, actually sent an email to the plaintiff which stated, in part: "Damn. I'm here late trying to get through emails -- I just saw this one I missed somehow and it is a week old. Check it out -- I don't know what I think. He must be old -- and just looking for something to do."

Do I even need to tell you how the story ends? Wold doesn’t get the job, and sues for age discrimination. The employer moves for summary judgment, and loses, primarily because the court concluded that the email from the CEO was evidence of discriminatory intent. No kidding.

Likewise, do I even need to discuss what might be “lessons learned” from this case? 1) Don’t refer to protected characteristics when making employment decisions, especially not in writing; and 2) Check that TO: field before you hit send.

posted Friday, June 26, 2009 9:42 AM by Rod Satterwhite with 0 Comments

New Supreme Court Case Takes an Arrow Out of an ADEA Plaintff's Quiver

The Supreme Court case, Gross v. FBL Financial Services, Inc., is a pro-employer case that makes it more difficult for workers to establish age discrimination. In a sharply divided 5-4 ruling, the majority (by way of an opinion from Justice Thomas) held that an employee asserting federal age discrimination bears the responsibility to prove that age was the main factor that led to the alleged adverse employment action. In Gross, the case centered on whether employees in non-Title VII cases must present direct evidence of discrimination to secure a "mixed motive" jury instruction, which would then shift the burden of proof to the employer (note - this opinion does not impact an employee's ability to prove age discrimination by direct or circumstantial evidence). Instead of directly responding to that issue, the majority stated that "[t]his court has never held that this burden-shifting framework applies to ADEA claims[,] and we decline to do so now." Holding that a plaintiff's burden of proof under ADEA is tougher than it is under Title VII, the majority opinion noted that "the ADEA's text does not authorize an alleged mixed-motives age discrimination claim. "To establish a disparate treatment claim under [the ADEA text], a plaintiff must prove that age was the 'but for' cause of the employer's adverse decision."

A few initial comments on the case:

(1) The opinion does not directly impact an employee's ability to prove age discrimination by direct or circumstantial evidence. Thus, while a burden-shifting jury instruction in ADEA mixed motive cases are "out for now" (see comment below), an age claims will still turn on the evidence (both direct and circumstantial) developed in the record. I do not see this case as having a material impact on the number of age claim brought by jilted employees, however I do think the opinion will impact where the claims are brought, which brings me to Point No. 2.

(2) Many states have their own FEP statutes that will deviate from this precedent. Although states vary, most states "bundle" protected classes into one FEP statute and the mixed motive standard and burdens are established under state law precedent. Indeed, Gross is, at its core, a statutory interpretation case. So I don't see its impact trickling down to age claims under state law.

(3) The majority opinion makes so much of the 1991 Amendment to Title VII (which is the prime difference cited as to the text of Title VII and the ADEA) that I would not be a bit surprised to see an amendment to the ADEA in the next Congressional session much like we saw with respect to the ADA last year.

We will keep an eye on this case as it is cited and analyzed.

posted Monday, June 22, 2009 10:02 PM by David Greenspan with 0 Comments

Can You Hear Me Now? -- Voice Recognition as Accommodation

The United States District Court for the Eastern District of Louisiana recently issued a 41-page opinion discussing ADA accommodation requirements, including whether an employer must provide voice recognition software to an employee who suffered from a loss of fine motor skills.

The plaintiff, Maria Picard (“Picard”), was a medical transcriptionist who had carpal tunnel syndrome and a degenerative neuromuscular disease. While on FMLA leave for carpal tunnel surgery, Picard asked her supervisor for permission to use a particular brand of voice recognition software – Dragon Naturally Speaking – and for permission to either use a quiet room or to work nights and weekends. Picard asserted that this software would allow her to transcribe without relying on her limited fine motor skills. After consultation with Human Resources, the Hospital denied her request. Picard later submitted two letters from physicians which opined that her condition represents a significant handicap in her profession and that she be permitted to use the Dragon software. The Hospital concluded that at the time, the letters did not indicate a medical necessity, and because she was meeting the productivity requirements, they would not fulfill the request. Picard later resigned and took a position at a different medical center.

She sued her former employer, alleging discrimination and retaliation under the ADA. The Court ultimately held that Picard produced sufficient evidence to raise a jury issue on her failure to accommodate claim based on St. Tammany’s denial of voice recognition software that could minimize painful typing.

The Hospital initially argued that Picard could not show she is “disabled” under the ADA. The Court, however, noted that the vast majority of federal courts to consider CMT have treated it as an ADA-covered disability, and held that although an inability to type, standing alone, is insufficient to show that a plaintiff is disabled, here Picard “claims to have great difficulty holding heavy objects, doing household chores, typing, writing, turning pages, tearing pieces of paper, using a stapler, and doing ‘anything with fine motor skills.’” The Court determined that based on this evidence, a reasonable jury could conclude that Picard was substantially limited in the major life activity of performing manual tasks.

The Hospital next argued that requiring the purchase of voice recognition software, and the other requests, were not reasonable accommodations. The Court, however, found that there was “nothing facially unreasonable about [the] request to have a software program installed on her computer and to be permitted to work in quiet conditions. Those changes are precisely the sort of accommodations that Congress contemplated when it passed the ADA.” The Hospital argued that it did accommodate Picard in a number of ways including its purchase of Dictaphone ExSpeech software. However, although Picard briefly used this software, she claimed the most commonly used keystrokes were too painful because of the carpal tunnel surgery. Additionally, although the Hospital granted Picard a leave of absence for her carpal tunnel surgery, the surgery did not cure her CMT, or otherwise address her typing limitation.

Two important lessons flow from this case. First, these types of accommodation-denial claims are likely to increase for employers in light of the newly enacted ADA Amendments Act, which significantly broadened the scope of “who is disabled” under the Act. Second, it highlights the importance for employers to engage in the interactive process with employees. Here, it appears the hospital may have assumed that providing one brand of software eliminated their obligation to consider a different one. A more extensive dialogue with the employee may have revealed why one was better suited to the task than the other. Based on the opinion, it’s clear that the Court understood and bought into the plaintiff’s argument on that front.

posted Monday, June 15, 2009 10:32 AM by Rod Satterwhite with 1 Comments

Military Caregiver Leave and Qualifying Exigency Leave (Parts 4 and 5 of 5)

Summary of the NDAA

In January 2008, President Bush signed into law the National Defense Authorization Act (“NDAA”), which expanded the FMLA to allow eligible employees to take two new categories of FMLA leave: (1) military caregiver leave; and (2) qualifying exigency.

Military Caregiver Leave

Under the NDAA, an eligible employee is entitled to a total of 26 workweeks of leave during a single 12 month period to care for a servicemember who 1) is on the temporary disability retired list; 2) has a serious injury or illness for which h/she is undergoing medical treatment, recuperation or therapy; or 3) is otherwise on outpatient status. A “serious injury” is one which was incurred in the line of duty while on active duty that may render the servicemember medically unfit to perform the duties of his/her office, grade, rank or rating

If time qualifies as military caregiver leave and regular FMLA leave, the employer must designate the leave as military caregiver leave first. The leave is to be applied on a per-covered-servicemember, per-injury basis such that an eligible employee may in fact be entitled to take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember with subsequent injuries or illnesses, except that no more than 26 workweeks of leave may be taken in any single 12 month period.

Eligibility

Eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces, including the National Guard and Reserves, or a member of one of these who is on the temporary disability list. To care for a covered servicemember, an eligible employee must be the spouse, son, daughter or parent or next of kin of a covered servicemember. “Next of kin” means the nearest blood relative other than the spouse, parent, son or daughter.

Notice requirements

An employee must provide the employer at least 30 days advance notice before military caregiver leave is to begin if the need for the leave is foreseeable. If this is not practicable, notice must be given as soon as possible – i.e., complying with the employer's normal notice or call-in procedures, absent unusual circumstances.

Certification

An employer can require that an employee’s leave to care for a covered servicemember with a serious injury or illness be supported by a certification completed by an authorized health care provider of the covered servicemember. In most cases, the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter. The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the specific circumstances to do so.

Qualified Exigency Leave

An eligible employee is entitled to a total of 12 workweeks of leave to use within a 12-month period for any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is on active duty or was called to active duty status in support of a contingency operation. Such leave may be taken intermittently. Note that this is not an additional 12 weeks of leave; rather it is an additional basis on which an eligible employee may take their existing 12 weeks of FMLA leave.

Eligibility

Employees are only eligible for this leave if they have a spouse, son, daughter or parent who is on active duty or was called to active duty status in support of a contingency operation – no “next of kin” provision applies. Also, “active duty” is limited to members of the Reserve components, the National Guard and certain retired members of the Regular Armed Forces and retired Reserve.

This leave is only available where the Secretary of Defense designates the call to active duty as an operation in which members of the armed forces are or may become involved in military actions, operations or hostilities against an enemy of the United States or an opposing military force.

Qualifying Exigencies

The Department of Labor has identified eight categories of qualifying exigency leave. In each case, the need for the leave must arise out of the fact that the employee’s spouse, son, daughter or parent is a covered military member.

1) Short notice deployment: Deployment on seven days or less of notice for a period of seven days from the date of notification.

2) Military events and related activities: Official ceremonies, programs or events.

3) Childcare and school activities: Leave to attend non-routine, urgent school functions of the son or daughter of a covered military family member.

4) Financial and legal arrangements: Leave to address the covered military family member’s absence while on active duty, such as preparing a will.

5) Counseling: Leave for an employee to attend counseling provided by someone other than a health care provider, as long as counseling arises from active duty service or call to active duty.

6) Rest and recuperation: An employee may take up to five days leave to spend time with a covered military family member on rest and recuperation leave.

7) Post-deployment activities: For a period of 90 days following the covered military family member’s termination of active duty status, the employee may take leave to attend ceremonies related to the return of the covered military family member.

8) Additional activities not addressed in other categories if agreed upon by employee and employer

Notice

Same as Military Caregiver Leave

Certification

An employer can require an employee seeking to take leave to provide a copy of the covered military member’s active duty orders or other documentation, including the dates of the covered military member’s active duty service. The Department of Labor has created an optional certification form (WH 384) for employers to use. Employers are permitted to call a third party to verify a meeting and also may contact the appropriate unit of the Department of Defense to confirm. They are not permitted to require second or third opinions or recertification.

posted Monday, April 13, 2009 7:46 PM by David Greenspan with 0 Comments

THE NEW FMLA REGS (PART 3 of 5) - The Certification Process

The Certification and Recertificaton Process:

The Who? The What? & The When?

The new FLMA regulations provide for three critical changes in the certification and recertification process. These changes deal with which employer representatives may contact the health care provider who performed the certification, the content of fitness-for-duty certifications, and new timing provisions for both employers and employees. By learning these three simple changes to “the who, the what, and the when,” you’ll know all you need regarding the new certification and recertification process under the new FMLA Regulations.

The Who

The Who are an English rock band formed in 1964. The primary lineup was guitarist Pete Townshend, vocalist Roger Daltrey, bassist John Entwistle and drummer Keith Moon. They are one of the most influential rock bands of the 1960s and '70s, and recognized as one of the greatest rock and roll bands of all time. But I digress…

The Who?: Who can Contact an Employee’s Health Care Provider.

In response to concerns raised by employees regarding their medical privacy, the new Regulations specify which employer representatives may contact the health care provider who provided the employee certification. This representative must be either:

A health care provider
A human resource professional
A leave administrator; or
A management officer

The Regulation is equally clear, however, as to which employer representative may not contact the employee’s health care provider. Under the new regulations the employee’s direct supervisor may not contact the employee’s health care provider who provided the employee’s certification.

The What?: Information & The Fitness-for-Duty Certification

A fitness-for-duty certification allows employers to enforce uniformly-applied policies or practices that require all similarly-situated employees who take leave to provide certification that they are able to return to work The new Regulations change some of the content that employer’s can obtain during the fitness-for-duty certification process. Under the new Regulations an employer may:

Require that the certification specifically address the employee’s ability to perform the essential functions of the employee’s job; and
Require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave where reasonable job safety concerns exist.

The When?

The Regulations also clarify several different timing provisions for when employers can ask for a recertification from an employee and how long employees have to correct any deficiencies in their certifications or recertifications. The new provisions are summarized below.

The Regulations provide many new timing provisions within the certification and recertification process.

Employers may now request a new medical certification each leave year for medical conditions that last longer than one year.

Employers may now request a new medical recertification for an ongoing condition every six months in conjunction with an employee’s absence.

The employee has seven days to cure any deficiencies in their certification or recertification after the employer has notified the employee that their certification is either incomplete or insufficient. It’s also worth noting that if an employer believes that a medical certification is incomplete or insufficient, the employer must specifically tell an employee in writing what information is lacking. This written notice triggers the employee’s seven days to cure the certification.

The Why?:

These changes are aimed at bringing the certification and recertification process into compliance with the Health Insurance Portability and Accountability Act (“HIPPA”) by ensuring that the employee’s medical information is kept private. By clarifying the certification and recertification process, both employers and employees will be able to navigate the process with fewer pitfalls.

The Summary

There you have it—the “who,” the “what,” the “when” (and even the “why”) of the new FMLA Regulations and the certification and recertification process. For those of you that still want to read more, you can read the Regulations in their entirety. The certification and recertification provisions begin at 29 C.F.R. §§ 825.305 and end at 29 C.F.R. 825.313.

[Special thanks to Melissa Taylormoore, an associate in our Tysons Office]

posted Monday, February 16, 2009 10:34 PM by David Greenspan with 0 Comments

Employee Notice Requirements - the Bright Side (Part 2 of 5)

Last week we discussed the notice obligations imposed on employers by the new FMLA regulations. This week we're going to review one of the more employer-friendly sets of changes brought about by the regs: employee notice requirements; i.e., how much notice does an employee have to provide, and what do they need to say?

Foreseeable Leave

Section 825.302 addresses foreseeable leave, and retains the traditional 30-day notice requirement. If it is not possible to provide 30-days' notice, notice must be provided as soon as practicable. Again, this part isn't really new. However, the regulations now go further and state that it is usually "practicable" to provide notice the same day or the next business day, absent extenuating circumstances. This new language should be helpful for employers who have employees with last-minute notice problems. For qualifying exigency leave, there is no 30-day requirement, but an employee still must provide notice as soon as practicable. The regulations also provide that employees must comply with the employer’s usual notice and procedural requirements for leave. The language that prohibited an employer from delaying or denying leave if the employee did not follow such procedures has been deleted.

Employees still have no obligation to specifically mention the need for FMLA leave; the regulations now provide additional guidance as to what constitutes “sufficient information.” The Department of Labor (“DOL”) clarified that the specific information mentioned need not be provided in each case, and that the information required depends on the situation. However, some examples are: information that a condition renders the employee unable to perform the functions of the job; or if the leave is for a family member that the condition renders the family unable to perform his/her daily activities; that the employee is pregnant or has been hospitalized overnight; the anticipated duration of the absence; or that the employee is under the continuing care of a health care provider.

If the leave is for a previously-certified FMLA-qualifying condition, the employee must specifically reference the particular reason or the need for FMLA leave.

The new regulations also add references to explain the notice requirements for qualifying exigency leave and military caregiver leave. Interestingly, if an employee fails to give 30 days' notice and the leave was forseeable, the employer can require the employee to provide an explanation as to why 30 days' notice was not provided.

Unforeseeable Leave

Employees are required to provide notice of unforeseeable leave as soon as practicable under the facts and circumstances of the case. It is generally practicable for the employee to provide notice within the time prescribed by the employer’s usual and customary notice and procedural requirements that are applicable to such leave. Thus employers can apply procedural requirements such as "you must speak to a supervisor and not just a co-worker when you call in" as long as those rules apply equally to non-FMLA leaves.

As with foreseeable leave, the new regulations retain the standard that the employee need not specifically mention the FMLA when requesting leave but now provide additional information regarding what type of information is “sufficient.” The regulations also (finally) explicitly state that calling in “sick” is insufficient to trigger the employer’s notice requirements. An employee must also respond to questions from the employer designed to determine whether the leave is FMLA-qualifying.

The employee is required to specifically mention the condition or the FMLA if the leave is for a previously-certified FMLA-qualifying reason.

Consequences

The new regulations also provide guidance clarifying the consequences of an employee’s failure to provide timely notice of the need for leave. The old regulations only explained the consequences for a delay where the need for leave was foreseeable and the employee could have provided 30-days notice. Now the regulations also address situations where the need for leave is foreseeable less than 30-days in advance, and where the leave is unforeseeable. The new regulations also provide examples of what it means to delay leave.

Overall, the new employee notice requirements are generally employer-friendly. The language of the regulations makes it clear that it is the employee's obligation, at all times, to provide enough information for the employer to determine that it is an FMLA leave request. For employers who have been dealing with employee abuse in this area, these changes should prove helpful.

posted Thursday, February 05, 2009 9:28 AM by Rod Satterwhite with 0 Comments

Employer Notice Requirements - New FMLA Regs (Part 1 of 5)

One of the major changes under the new FMLA Regulations is the “notice requirements” an employer owes to its employees. In an attempt to consolidate and clarify the employer’s obligations, the Department of Labor (“DOL”) has split the notice requirements into four main categories, and placed them all in 29 C.F.R. 825.300. The main changes are explained below.

1. General Notice Requirement. What changes for 2009 and beyond is that the Regulations now permits employers to post the notice electronically (only if all employees and applicants can access to the information – i.e., a personal work email account). Additionally, employers now must also distribute the policy (moving a “best practice” into a legal requirement). A prototype general notice is provided in Appendix C; the prototype has been modified to include additional information to employees about what the employee needs to say for the information to be considered “sufficient” to alert the employer that the request may be for an FMLA-qualifying reason.

2. Eligibility Notice Obligations. The DOL has modified these regulations to consolidate, strengthen and clarify the requirements. Under the old regulations, employers were required to notify employees of their eligibility to take leave within two business days after receiving sufficient information that the employee may be on leave for an FMLA-qualifying reason. The DOL has expanded this time period to five days to provide employers additional time to more accurately calculate whether the employee is eligible to take FMLA leave. This notice should address only the statutory eligibility criteria, and is separate from whether the employees have leave, and separate from whether the reason for the absence is covered. If an employee is ineligible, the notice need only state one reason for such ineligibility. The new regulations also clarify the frequency with which such notices may be given. Once eligibility is satisfied for a particular condition, the employee remains eligible for the entire 12-month period. If the employee requests leave for a different reason and the employee’s eligibility status has changed, the employer is required to notify the employee of such determination within five days.

3. The rights and responsibilities notice requirements. The employer must provide this notice at the same time as the eligibility notice, and must notify the employee of any changes within five days. Additionally, this notice must tell the employee the method that will be used for establishing the 12-month period of entitlement, and the start date of the “single 12-month period” for Military Caregiver Leave. The employer must also explain the conditions that will apply to the use of paid leave that runs concurrently with FMLA leave. The medical certification may be included, but is not required to be provided at this point. This notice may be distributed electronically provided that the employee has access to the information.

4. Notice obligations to Employee. Once an employer has received enough information to determine whether the leave qualifies as FMLA leave, the employer must notify the employee whether the leave will be designated as FMLA-leave within five days. Where an employer wishes to request that a fitness-for-duty certification address whether the employee is able to perform the essential functions of his/her job, the designation notice must state this. Additionally, the employer must provide a list of the essential functions. In order to encourage employers to communicate with employees early on, the regulations clarify that this notice may be provided at the same time as the eligibility notice where the employer has enough information to determine whether the leave will be designated as FMLA leave. As with the rights and responsibilities notice, if any information changes, the employee must notify the employee of the changes. This notice should inform the employee of the number of hours that will be counted against the total FMLA entitlement. However, in the case of intermittent leave where this information may be unknown, the employer only needs to provide the information upon request, and no more often than every 30 days if leave is taken during that period. The regulations permit an employer to notify the employee of the number of hours counted orally, and then follow up with a notification on the employee’s pay stub.

Finally, it is of note that the new Regulations also codify the Supreme Court’s decision in Ragsdale, eliminating categorical penalty provisions. Failure to comply with the employer notice obligations may still constitute interference with FMLA rights, and if the employee shows harm, the employer may be liable for lost compensation and benefits, other monetary losses, or any other appropriate relief.

[Special Thanks to Briton Nelson, an associate in our Richmond Office, for preparing this material]

posted Wednesday, January 28, 2009 4:33 PM by David Greenspan with 0 Comments

FMLA Deconstructed

This is just a quick reminder that the final regulations to the FMLA, issued on November 17 by the Department of Labor, take effect today. The final regulations will implement the new military leave entitlements and make a variety of changes that will impact the day-to-day administration of FMLA leave. We fully recognize that all of our readers have probably read every word in all 750 or so pages of the comments and final rule. Nevertheless, Suits in the Workplace will begin a multi-part series breaking down the most significant aspects of the new regs, and the impact they will likely have on employers. Expect a detailed discussion of the following topics:

1) Employer Notice Requirements
2) Employee Notice Requirements
3) Certification and Recertification
4) Military Caregiver Leave
5) Qualifying Exigency Leave

More to follow . . .

posted Friday, January 16, 2009 3:57 PM by Rod Satterwhite with 0 Comments

Happy New Year – Avoiding a Calendar Anomaly That May Bring An Extra Payday To Your Employees

In every year there is one day that occurs 53 times rather than the usual 52 (7 days times 52 weeks a year is 364 days, not 365). In 2009 this "extra day" falls on a Thursday – one of the two biggest paydays of the year. This means that if you pay your employees on a bi-weekly Thursday basis, they will see 53 paydays instead of the usual 52 in 2009. If your offer of employment is an annualized number (i.e., "you will receive $100,000 per annum") then this anomaly is not a legal issue for you but, of course, may result in an employee relations issue. However, if you offer pay on a bi-weekly basis, i.e., "you will receive $2,000 every other Thursday ") you may contractually be obligated to pay the person 27 pay cycles for a calendar year 2009.

Of course, from an accounting standpoint, most employers divide base salary by the number of pay periods resulting in the payment for the particular pay period. However, an employer who pays a bi-weekly Thursdays basis, will either have to pay out an extra paycheck for 2009 or divide the annualized payment by 27 – which will result in a reduction of the employee's pay in each of the 27 pay periods. For example, a company with 50 salaried workers making $2,000 every two weeks would incur an extra $100,000 in salaries for calendar year 2009 – hardly an insignificant number in light of the recent economic woes. It might be prudent to examine your offer letters and employment agreement in light of this calendar anomaly.

By the way, for those of you who pay employees on Fridays, this issue will be on your plate in 2010.

posted Wednesday, December 17, 2008 8:38 PM by David Greenspan with 0 Comments

FMLA Regs on the Way

Be on the lookout for new regulations to be issued by the Department of Labor relating to the Family and Medical Leave Act, according to this and several other recent stories. The regulations may be published as early as today, based on information from our sources. You may (or more likely may not) recall that these regs are nearly 2 years in the making: we noted in a post here in November 2006 that the DOL had opened the comment period for the regulations.

Based on the proposed regulations, the changes will certainly have an impact on the day-to-day administration of leave under the FMLA. Although it is not clear that the final regulations will adopt all the changes in the proposed regulations, some areas mentioned in the proposed regulations include:

Additional notice requirements the employer must provide to the employee regarding paid leave substitution
Employees who miss time under FMLA may now be disqualified from perfect attendance bonuses
Voluntary light duty work resulting from a worker's compensation injury is no longer considered FMLA
Employers will have 5 days instead of 2 to notify employees of their eligibility for FMLA under certain circumstances
Employers must provide additional information, such as the amount of FMLA used, and the reason for denying FMLA coverage
Employees must follow employer call-in procedures even for FMLA leave
Employers must allow employees 7 days to cure deficiencies in medical certifications

Remember, these are examples of the potential changes, based on what was in the proposed regulations. You shouldn't start changing policies or notice letters until the final regulations are issued and digested by lawyers, pundits and pollsters. Once we have the regulations and have analyzed them, we'll publish a more thorough summary and analysis here.

posted Friday, November 14, 2008 8:36 AM by Rod Satterwhite with 0 Comments

Looking for "Lazy in DC"

I recently came across an interesting Law Review Note discussing some things you may want to consider when looking at publicly available shared information sites (i.e., MySpace, Facebook, Youtube) in the hiring context.

The note, The Newest Way to Screen Job Applicants: A Social Networker's Nightmare, 60 Fed. Comm. L.J. 597 (Carly Brandenburg, June, 2008), identifies three primary legal concerns when it comes to conducting Internet searches on job applicants. These issues relate to privacy, credibility and hiring discrimination.

Okay, the first issue is a relatively easy one. While I can see a situation where an applicant would assert a claim sounding in privacy, the few cases that address this issue find that a person does not have a privacy interest in what he or she makes publicly available in the public domain. However, some social networks require each user to log-in and to acknowledge its privacy policy or "terms of use" policy. Don't forget to read that policy - it may say things like "may not be used for commercial use" (like the Facebook one) - that probably just means "no advertising" but other sites may have more draconian terms of use.

The second issue is credibility. Anyone can post anything online. Therefore, employers who intend to rely on information posted online for hiring decisions should verify the accuracy of that information before relying on it. This is one of the main reasons we have the Fair Credit Reporting Act - a separate topic in and of itself. The key here is that unless you can see the John Q. Smith who you just interviewed is the same John Q. Smith who goes by the screen name "Lazy in DC" and had a bright orange Mohawk earlier this year (apologies to any "Mr. Smiths" out there), it is best to very strongly consider the source.

The third issue is "unintended, unnecessary knowledge." Sometimes it is better not to know. This is true when it comes to the unknown protected classes of your applicants. For example, if an interview went well and then the next day you look at a Myspace profile (with a bunch of pictures) you now know the candidates gender, race, nationality, marital status and religious affiliations. Therefore, employers should be very cautious when determining if information acquired from the Internet is relevant to job performance and whether there is a legitimate and legal reason to discount a candidate based on what they might have posted online.

Finally, let me say: (1) I am aware of the irony that I am posting this information on a blog free and available to the world (not that the world is looking); and (2) I do not have, nor have I ever had, an orange Mohawk (let’s see if Satterwhite can say the same).

posted Tuesday, November 11, 2008 4:18 PM by David Greenspan with 0 Comments

Red, White or Blue - Politics in the Workplace

You may or may not know, but there is a pretty big election just a few weeks out, and as such, the water cooler conversations about politics are heating up. I have received several calls over the past few weeks from clients wondering about the restricting of political speech and/or display in the workplace. From a legal perspective, private employers are generally free to restrict all political speech in the workplace while also preventing employees from wearing tee shirts, creating screen savers or wearing buttons expressing political preferences. The one major caveat here has to do with political speech interposed with union issues. In fact, the NLRB's general counsel officer issued a memorandum on July 22, 2008, styled as a "Guideline Memorandum concerning unfair labor practice charges involving political advocacy," which I commend to you.

This election has been so divisive that it has the potential to spark discussions on a wide range of issues from race to national origin to gender, age and religion – and we all know that conversations about protected classes have no place in the workplace. Most people think they have a First Amendment right to free speech wherever they go and don't realize that when it comes to the private workplace, their assumptions are just plain wrong. In theory, so long as everybody is treated equally, an employer can prevent all political speech in the office during work hours. However, it is not recommended that companies take such draconian measures. Focus on the concept of respect for other opinions when counseling political conversation in the workplace. If there is a need to draw a line, be consistent in your administration of political limitations. Consistency breeds credibility when it comes to the administration of policies and practices in the workplace.

It is also important to practice what you preach. Managers are often just as "involved" in the political discourse in the workplace as any other group of employees. Federal laws prevent employers from requiring their employees to contribute to a federal political campaign and there are limitations on how often workers can be solicited for donations. However, the more important issue is to refrain from creating an atmosphere where employees feel pressured to follow the politics of their managers, supervisors or the company itself.

So whether you are for Barak Obama, John McCain or even Ron Paul, just remember that campaigning must be kept 100 feet from all polling stations and should be kept 100 feet from the water cooler too.

posted Tuesday, October 21, 2008 8:35 PM by David Greenspan with 0 Comments

What Happens in Vegas Doesn't Always Stay in Vegas

A diabetic employee from the City of Bethlehem, Pennsylvania, was discharged for dishonesty by calling in sick for two days, when she was actually in Las Vegas having her lips and eyebrows permanently tattooed. The employee brought an action against the City, its Mayor, its Director of Human Resources and its Business Administrator (no word if the tattoo artist was a named defendant) claiming: (1) that she was terminated because of her gender and disability (Type-II Diabetes); (2) she was unlawfully retaliated against for seeking an accommodation under the ADA, as well as for having reported harassment under Title VII; (3) that the City interfered with her FMLA rights; and (4) she was denied procedural due process under the Fourteenth Amendment in violation of Section 1983 in light of her public employment.

Although the parent in me says that tattling on a co-worked isn't a “nice thing to do,” somebody saw fit to send an anonymous note to the Mayor stating that the employee was in Las Vegas on vacation rather than on sick leave. Upon her return, the City asked her about her absences and, according to the opinion, the employee lied – telling the City that she had not been to Las Vegas but rather had been in her sick bed at her boyfriend's house. In support of this story, she even produced a note, allegedly from her doctor, confirming her illness. A City investigation ensued and it was determined that the employee lied. As a result, she was terminated for dishonesty.

The City filed a successful Summary Judgment Motion and the employee appealed to the Third Circuit. The Court determined that the employee failed to offer any evidence of discrimination or retaliation, noting that the employee “presented no evidence that any male employee of the City improperly took sick leave, lied to the City about the circumstances surrounding the sick leave, and then attempted to cover up his whereabouts to the City Administration [.]"

The most curious part of the opinion was the discussion regarding the FMLA interference claim. For those of you that agree with me that the FMLA is the most easily manipulated employment-related federal statute, the Court provided strong pro-employer language discussing an employee notice requirements where the leave is foreseeable (an employee must give 30 days advance notice if the need for leave is foreseeable). As the court said, "We agree with the District Court that there is no reason why Ms. Hughes could not have notified the City of the need for FMLA leave either from Las Vegas or when she returned to Pennsylvania." I must confess, I was somewhat surprised and chagrined to see that nowhere in the opinion did the Court acknowledge the fact that going to Las Vegas for a two day vacation to have your eyebrows and lips permanently tattooed for cosmetic reasons may not qualify as a serious health condition.

One last question – aren’t there any tattoo artists in Atlantic City? Isn’t a three hour drive is a whole lot easier than a four hour flight?

[The case is Hughes v. City of Bethlehem, No. 07-2349 (3d Cir. Oct. 2, 2008)]

posted Thursday, October 16, 2008 3:28 PM by David Greenspan with 0 Comments

Changing of the Guard

It is with mixed emotions that I announce a changing of the blogger guard at Suits in the Workplace. My co-blogger and friend Lou Michels has decided to focus his efforts elsewhere, and we will miss his wit and wisdom greatly. On the bright side, I'll be joined by my colleague David Greenspan, another member of our L&E team at McGuireWoods. David is a great guy, knows his stuff when it comes to employment law, and will probably be pretty funny once he loosens up a little. So don't give him too much of a hard time in his first few posts. Welcome, David.

posted Thursday, October 16, 2008 9:44 AM by Rod Satterwhite with 0 Comments

Standards Are Standards

Notwithstanding my dislike of the Family and Medical Leave Act because of the latent uncertainty it introduces into attendance issues, the statute does have some well-defined requirements, especially regarding eligibility. A recent case out of the 7th Circuit shows just how tightly those requirements should be applied.

A former postal worker sued the USPS for an FMLA violation when it terminated her for absenteeism.

The facts in this case could only apply to someone working for the government. The employee was hired in 1993 as a mail handler and terminated at least four times over the next seven years for poor attendance. She also received multi-day suspensions for failure to show up to work regularly. However, following each termination, the plaintiff was able to talk her way back and get the firing changed to a suspension instead.

In October, 2001, plaintiff's supervisor ordered her to clock out two hours early as a punishment because she was being insubordinate. Plaintiff later disagreed with the supervisor's determination, but failed to properly grieve the discipline within the appropriate time frame.

After plaintiff missed more time in December, 2001, the USPS had enough and fired her. She sued under the FMLA, claiming that she had a bona fide medical reason for missing work. The USPS initially admitted that the plaintiff worked the required 1250 hours in the 12 months preceding her unscheduled absence, but then amended its answer and denied that plaintiff was qualified for FMLA leave. In support of its contention, the Post Office produced plaintiff's payroll records crediting her with 1248.8 paid hours and 1249.8 time-clock measured hours. On the basis of the 1.2 or .2 hour shortfall, the district court awarded summary judgment to the Postal Service, finding that the plaintiff was ineligible for FMLA protection because of the failure to meet the 1250 hour threshold.

The plaintiff appealed, arguing: that the time that she spent putting on her Post-Office issued gloves, shirt and shoes should have been factored in to give her the needed additional time (the FLSA exception); that the two hours that she lost on the suspension should be added to her work totals because she was wrongly ordered to clock out (the union contract exception); and that the 1.2/.2 hour shortfall was so minor that the court shouldn't really count it, but should instead give her credit for meeting the minimum threshold (the teenager coming in after curfew exception).

The Seventh Circuit upheld the district court, noting that the ex-employee introduced no evidence to dispute the accuracy of the payroll records and that a failure to meet the requirement is a failure to meet the requirement. The court would not add in the additional 1.2 / .2 hours to bring her to 1250 hours, nor would it give her credit for the 2-hour suspension (because she had not grieved the suspension timely) and finally ruled that the donning and doffing of minimal amounts of non-unique safety clothing is not compensable time and could not be counted.

There are two important lessons here. The first is that statutory standards are exactly that, and courts will enforce them when confronted with irrefutable evidence that an employee has failed to make the grade. The second is that even small disparities in things like time records can have huge effects down the road. This case would have gone the other way if the company had not held the plaintiff to her grievance requirements, or if its timekeeping records had not been pristine. Particularly with troublesome employees, the company that plays strictly by the rules can usually hold the employee to the same strict standard.

posted Wednesday, September 24, 2008 3:40 PM by Lou Michels with 1 Comments