Friday, July 18, 2008

Employee fired for taking time off to undergo in vitro fertilization allowed to proceed with sex discrimination claim


Fertility is a very touchy subject. Most people assume that it is easy for a couple that wants to get pregnant to get pregnant. Unless you experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it's difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization (IVF) are both time consuming and time sensitive.

What happens when a woman undergoing IVF treatments needs time away from work for those treatments? If her company fires her because of her infertility (a gender-neutral condition), does she present a sex discrimination claim? In Hall v. Nalco Co. (7th Cir. 7/16/2008), the Court permitted a woman fired during her IVF treatments to proceed with her Title VII sex discrimination claim.

Hall worked as a sales secretary at Nalco. In March 2003, she requested a leave of absence to undergo IVF, which her supervisor, Mary Baldwin approved. The first IVF cycle failed, and on July 21 she filed for another leave of absence to begin August 18. Around the same time, Baldwin told Hall that their office was merging with another office, and that only the secretary from the other office would be retained. Baldwin told Hall her termination “was in [her] best interest due to [her] health condition.” Prior to informing Hall of her termination, Baldwin discussed the matter with a corporate employee relations manager, whose notes reflect that Hall had “missed a lot of work due to health,” and more specifically, in a section relating to Hall’s job performance, cite “absenteeism—infertility treatments.” Dwyer, the secretary who was retained, was a female employee who, coincidentally, had been incapable of becoming pregnant herself.

Hall alleged she was fired on account of being “a member of a protected class, female with a pregnancy related condition, infertility.” Without reaching the merits of Hall’s claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.

The 7th Circuit disagreed and reinstated Hall's claim. The Pregnancy Discrimination Act made clear that discrimination based on a woman’s pregnancy, or childbirth and medical conditions related to pregnancy or childbirth, is, on its face, discrimination because of her sex. The Court believed that the district court's reliance on infertility as a gender-neutral condition was misplaced given the facts of Hall's case.
Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.
Moreover, the Court was troubled by the timing of and circumstances surrounding Hall's termination:
Hall was fired shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt; her boss, Marv Baldwin, told her that the termination was “in [her] best interest due to [her] health condition.” In her notes documenting Hall’s termination, Jacqueline Bonin, Nalco’s employee-relations manager, wrote that Hall "missed a lot of work due to health,” and also noted in a section regarding Hall’s job performance, “absenteeism—infertility treatments.” This evidence is susceptible of both discriminatory and nondiscriminatory explanations; a jury will have to decide.
The lessons to take away from this case are several:
  1. The court got it absolutely correct that infertility treatments fall under the PDA as actionable sex discrimination. To me, it does not pass the smell test for the employer to rely on the retention of Dwyer to argue that it does not discriminate on the basis of infertility. Dwyer had not missed work for IVF treatments, and there was a clear factual question as to whether Hall would have been terminated but for her time away from to try to start a family.
  2. Sometimes, too much documentation is a bad thing. If you right it down, it will be used against you in a lawsuit. Kudos to the corporate employee relations manager for taking diligent notes, but I'm not sure it was in her company's best interest to fully document that it was terminating Hall because she had “missed a lot of work due to health” because of “absenteeism—infertility treatments.”
  3. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

Thursday, July 17, 2008

Ohioans to Protect Jobs and Fair Benefits vows to fight against Healthy Families Act


Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses, organizations, and others  that oppose the Healthy Families Act, has formally launched its campaign to defeat the November ballot initiative. It calls the sick leave mandate a "job killer" for Ohio, and has just issued the following news release:

Opponents of the union-backed mandated sick leave proposal today announced formation of a campaign committee to defeat the proposal, labeling it “a job-killer” that threatens Ohio’s economy at a time when it is already reeling.

The committee, representing a broad coalition of individual employers, trade associations and businesses organizations, said it intends to educate voters about the devastating effects the proposed state mandate will have on individual employers, their workers and the Ohio economy.

“Few people in Ohio are against sick leave,” said John C. Mahaney, Jr., treasurer of Ohioans to Protect Jobs and Fair Benefits. “But Ohio’s struggling businesses – particularly our small businesses – can’t withstand provisions in this proposal that threaten pay, benefits and jobs.”

“To make things worse, the proposal also severely penalizes employers who already provide sick leave by imposing rules that will make it much more expensive to operate assembly lines and facilities like hospitals and nursing homes,“ Mahaney added.

Mahaney said the mandate will brand Ohio as a “job-killer” in the eyes of businesses nationwide at a time when the state is in desperate need of new jobs.

“This proposal will make Ohio the only state in the union with a mandated paid sick leave law,” he said. “It will significantly drive up the cost of doing business when we can least afford it, and it will kill our job-development efforts.”

The provision that worries employers who currently grant sick leave is one that allows employees to take sick leave without warning in one-hour increments or less. Mahaney said such a provision poses a serious threat to production stability at process-dependent employers like assembly line manufacturers and staffing-critical operations like hospitals, nursing homes and day-care facilities.

“Companies like Honda, Ford, General Motors, Chrysler, Whirlpool and others have long-standing agreements that provide employees with good pay and benefits in exchange for work arrangements that ensure a continued high level of production,” he said. “This proposal directly interferes with long-established employer-employee relationships and the production stability achieved over many years of working together.”

Employers of every size worry that the cost to implement the mandate would require them to make up the difference by taking money from other benefits such as health care, curtailing raises or even cutting jobs, Mahaney said.

Ohioans to Protect Jobs and Fair Benefits promised a vigorous grassroots campaign in all 88 Ohio counties to defeat the proposal in November.

Ohio is suffering through its worst economic period in 20 years. This issue will make us one of the most business-unfriendly states in the country. With our nation's economy at a crossroads, Ohio's working people simply cannot afford our state to be branded a "job-killer."

If you want to get involved in this grassroots campaign, if you want to know how your business or organization can sign up as a supporter of Ohioans to Protect Jobs and Fair Benefits, or if you simply want more information on the dangers that the Healthy Families Act presents to Ohio, please contact me:

Jon Hyman - jth@kjk.com - 216-736-7226

Wednesday, July 16, 2008

Duty to reasonably accommodate obvious disabilities


Brady v. Wal-Mart Stores (2nd Cir. 7/2/08) asks whether an employer can ignore an employee's obvious disability when making employment decisions about that employee.

Patrick Brady has cerebral palsy, which very obviously manifested itself in his mannerisms. One trial witness testified: "Just by looking at him, you could tell he had a disability."

He applied for a part-time job at his local Walmart in its pharmacy department. He very quickly observed that his boss, Yem Hung Chin, was unhappy with his performance. He testified that "she was kind of short with me. At trial, Chin testified that she thought that Brady was too slow and that he appeared to have difficulty matching customers' names with their prescriptions. She thought Brady's performance was "absolutely awful,"and she "wanted [him] away from [her] prescriptions." Brady testified that he never handed out the wrong prescription, was never unable to find a prescription in the bin, and never required assistance from Chin or any other co-worker to perform his job.

After his first week of work, Walmart transferred Brady to collect shopping carts in the parking lot. After learning that Brady was unhappy with his new position, the store manager transferred him again, this time to stock grocery shelves. Frustrated, Brady quit and sued Walmart for disability discrimination. The jury returned a substantial verdict in his favor.

One of the issues on appeal is whether an employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. The court held that "an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled:

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.

Thus, if an employer knows of should know that an employee is disabled, the employer has a duty to engage in an interactive process with that employee to assess whether the disability can be reasonably accommodated.

For employers, the lesson is that one cannot turn a blind eye to an employee's obvious disability. Next week, we'll take a deeper look at the interactive process: what it means, how it is supposed to be carried out, and the risks inherent in ignoring it.

Tuesday, July 15, 2008

Dads get FMLA leave too


Even though new dads have the same FMLA rights as new moms, technically I'm not on FMLA leave. I'll be in and out of the office over the next several weeks as we get acclimated to our new family member. New parents don't qualify for intermittent leave:

(a) Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

(b) When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer's agreement, works part-time after the birth of a child, or takes leave in several segments. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.

Donovan Joseph Hyman was born at 12:42 yesterday, 7 pounds, 6 ounces, and 18.25 inches. And, not that I'm biased, but he's the best looking baby in the nursery.

Friday, July 11, 2008

WIRTW #39


Starting Monday, my posting may become more sporadic than I'd like, as my wife is going into the hospital to have our second child. I'll be taking care of my family responsibilities for a couple of weeks before I return to the office full time. I hope to do my best to keep posting, but it's all dependent on sleep patterns and how cooperative my normally very cooperative two-year-old wants to be. So bear with me, and I'll be back to regular postings later this month.

In the meantime, enjoy this week's best posts from other blogs.

The Delaware Employment Law Blog is taking everyone to HR Summer School by posting a series of "Back-to-Basics" articles on the 3 toughest employment laws - the ADA, the FMLA, and the FLSA. This week's lesson - What Does the ADA Require?

The Connecticut Employment Law Blog touches on a topic that I've covered before, that the presence of absence of fair treatment has a lot to do with whether an employee will sue you. For my thoughts on this issue, take a look at The Golden Rule of Employment Relations.

The Workplace Privacy Counsel lets us know about Sidell v. Structured Settlement Investments, recently filed in Connecticut, which will decide the limits on an employer's access, using its own computer equipment, to an employee's e-mail stored in an employee's personal e-mail account.

Case in point, the ABA Journal brings us the story of Philadelphia television news anchor Larry Mendte, fired for installing key stroke monitoring software on a station computer, which enabled him to access the private email account of his co-anchor, Alycia Lane. Philly.com has tons more on this bizarre story, including Lane's e-mailing of bikini photos of herself to NFL Network anchor Rich Eisen, who is married, her subsequent termination for allegedly assaulting a New York City cop, and the wrongful discharge lawsuit she has filed.

Electronic Discovery Navigator predicts that the added mobile technology made necessary by telecommuting will present an electronic discovery nightmare.

The Workplace Prof Blog lists 5 lifestyle choices that could cost an employee his or her job.

Thursday, July 10, 2008

A lesson in union avoidance


No company does more to avoid unions than Walmart. Case in point - Wal-Mart Stores Inc. (NLRB 6/20/08). In the summer of 2000, Walmart's Kingman, Arizona, Tire and Lube Express (TLE) employees contacted United Food and Commercial Workers. The Union filed a representation petition on August 28. Two days later, a labor relations team from Walmart's corporate headquarters arrived at the store. During the organizing campaign, members of that labor relations team did such things as: threaten to postpone any merit pay increases for the TLE employees during any contract negotiations; engage in surveillance of employees' union activities; grant benefits and improved working conditions to discourage employees from supporting the Union; discriminatorily and disparately apply and enforce its no-harassment policies to the detriment of employees who supported the Union; and discharge and deny COBRA coverage to employees for supporting the Union.

It is not much of a surprise that the NLRB found that Walmart engaged in unfair labor practices. The point, however, is not whether Walmart violated the NLRA, but in how Walmart handled the litigation. The organizing campaign started in August 2000. The NLRB issued its final decision and remedial order nearly 8 years later. And that timeline does not include any appeals to federal court, which will add at least another 12 - 18 months. Does anyone doubt for a second that Walmart's strategy is to drag this process out as long as possible, making it as costly, difficult, and time consuming for the union and its members? Does anyone want to wage a bet on how long it will take Walmart to actually sit down and bargain with this union? By the time Walmart has exhausted all of its appeals on every claim the Union could possibly bring, will any of the original LTE employees be left at the store? If not, how can the Union say a majority of the bargaining unit even wants a union? The de-certification petition will surely follow.

The lesson from this case is that a successful organizing campaign is not necessarily the end game for a unionized workforce. The laws might be tilted towards the unions, but for companies that have the resources and the patience, the process can be used to their advantage to ultimately break the union.

Wednesday, July 9, 2008

Ohio Supreme Court takes a stand against liability for bullying (sort of)


Fontella Harper and Beverly Kaisk were neighbors in a public housing project. Apparently, Kaisk had problems living next door to an African American family, and let them know about it, frequently and offensively. Harper complained to building management, who took no corrective action. Kaisk's lease included a provision requiring tenants to conduct themselves in a manner that "will not disturb the neighbors' peaceful enjoyment of their accommodations," and the landlord could have terminated the lease "for serious or repeated violations of material terms of the lease."

Harper sued the landlord for housing discrimination based its failure to take corrective action of the racial harassment. Yesterday, in Ohio Civil Rights Commission v. Akron Metropolitan Housing Auth., the Ohio Supreme Court held that a landlord is not liable for failing to take corrective action against a tenant whose racial harassment of another tenant created a hostile housing environment.

You might be asking, what does a housing discrimination case have to do with employment law? The plaintiff argued that a landlord should be liable for a hostile environment on the same basis that an employer can be held liable. The Court disagreed:

[I]mposing liability on an employer who knew or should have known about coworker harassment was an application of negligence liability....This liability of an employer for an employee's negligence derives from the established principles of agency law.... None of those factors apply to the liability of a landlord for the actions of a tenant. The agency principles that govern employer-employee liability have no parallel in the context of landlord-tenant disputes....

The amount of control that a landlord exercises over his tenant is not comparable to that which an employer exercises over his employee. As the appellants observe, a landlord does enjoy a measure of control through his ability to evict tenants. In the present case, the lease signed by Kaisk gives the AMHA authority to evict a tenant who disturbs other tenants' "peaceful enjoyment of their accommodations." The power of eviction alone, however, is insufficient to hold a landlord liable for his tenant's tortious actions against another tenant.... We therefore reject the argument that our precedent in the employment context applies to the cause of action at issue here.

It's not earth-shattering news that agency principles hold employers liable for discriminatory (e.g., sexual, racial, etc.) harassment of one co-worker by another. This case, however, also speaks to the Court's unwillingness to extend harassment liability beyond the current parameters of the law. The Court could have reasoned a duty to correct from the power to evict, and from that duty fashioned a remedy for the harassed tenant. The Court, though, expressly rejected that argument.

For those who hold out hope that Ohio courts might recognize a general cause of action for workplace bullying, this opinion is a strong signal that our state's highest court would reject such an attempt.

Tuesday, July 8, 2008

Medical questions during job interview doom employer in discrimination case


Doe v. Salvation Army, decided last week by the 6th Circuit, provides employers with a valuable lesson on the dangers of asking the wrong question during a job interview.

Doe (whose proceeded pseudonymously to protect his confidentiality) had a history of paranoid schizophrenia. During a job interview with the Salvation Army, Doe was told of the requirements for the job, including the expected work days. Doe advised that he could not work on Fridays because, "[he] had to see [his] doctor, and . . . pick up [his] medicine." Doe claims that the interviewer asked him in response, "what kind of medication," to which Doe responded "psychotropic medicine." Doe claims the interviewer then ended the meeting and Doe was ultimately rejected for the job.

The Salvation Army argued, and the district court agreed, that Doe was rejected for safety concerns, not for reasons solely based on his disability. The 6th Circuit, however, found there to be a genuine issue of material fact as to whether the decision not to hire Doe was based solely on his disability:

It was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, "I did not say flat out no," but rather, "I'll have to check [the insurance] out." As we now know, he did not do so.

An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. The district court stated that "[c]ourts have unanimously held that an individual with a disability 'cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.'" But in May 2005, Snider ended Doe's interview not because he concluded that Doe's employment as a driver would pose a risk to others, but because Snider "wasn't going to take a chance" on Doe.

The Salvation Army got in trouble because it sought the wrong information in the wrong way. The employer provided legitimate information - the required work hours - an essential function of the job. Unprompted, Doe then voluntarily disclosed medical information. At that point, the interviewer should have simply confirmed that Doe could not meet that particular essential requirement and moved on to a different topic. At that point the company could have rejected Doe based on his inability to work the required hours, a decision that would not have been tainted by the inappropriate follow-up question, "What kind of medicine?"

Monday, July 7, 2008

6th Circuit decides standard of proof for mixed motive cases


Disparate treatment claims under Title VII are categorized as either single-motive claims (where only an illegitimate reason motivated the employment decision), or mixed-motive claims (where both legitimate and illegitimate reasons motivated the decision). Mixed-motive claims are specifically covered in 42 U.S.C. 2000e-2(m): "An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
In Desert Palace v. Costa, the U.S. Supreme Court found that a plaintiff may prove a Title VII mixed-motive case by either direct or circumstantial evidence, and held that to obtain a mixed-motive jury instruction, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" The opinion left open the issue of whether the McDonnell Douglas burden-shifting framework should apply to a summary judgment analysis of mixed-motive discrimination claims based on circumstantial evidence as it applies to single-motive discrimination claims based on indirect evidence.
Since Desert Palace, the 6th Circuit has been silent on the issue of the proper evidentiary framework to apply to mixed-motive cases at the summary judgment stage. Some circuits have expressly applied the McDonnell Douglas analysis, some have applied a modified McDonnell Douglas approach, under with a plaintiff can rebut the employer's legitimate non-discriminatory reason either with evidence of pretext or evidence of the mixed motive.Yet another approach is to permit the plaintiff to rebut the employer's legitimate non-discriminatory reason with evidence that a discriminatory reason more likely than not motivated the decision.
In White v. Baxter Healthcare Corp., decided last week, the 6th Circuit finally weighed in on this issue:
The McDonnell Douglas / Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims. We likewise hold that to survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) "race, color, religion, sex, or national origin was a motivating factor" for the defendant’s adverse employment action.... This burden of producing some evidence in support of a mixed-motive claim is not onerous and should preclude sending the case to the jury only where the record is devoid of evidence that could reasonably be construed to support the plaintiff’s claim.
The Court, however, did not totally dismiss any applicability of McDonnell Douglas to mixed-motive cases:
Although the employee need not establish a McDonnell Douglas prima facie case to defeat a motion for summary judgment on a mixed-motive claim, setting forth a prima facie case of discrimination under McDonnell Douglas can aid the employee in showing that an illegitimate reason motivated the adverse employment decision. [Likewise, in] assessing whether an employee has demonstrated that an illegitimate reason was a motivating factor in the employer’s adverse decision, the court should also consider evidence presented by the employer that the protected characteristic was not a motivating factor for its employment decision. (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 720 (6th Cir. 2006) (Moore, J., concurring)).
Thus, to survive summary judgment in a mixed-motive case, the plaintiff need only show:
  1. an adverse action, and
  2. some evidence that the protected class was a motivating factor for that adverse action.
This burden is low, and will likely make it much easier for plaintiffs in the 6th Circuit (and most likely Ohio state courts, which follow 6th Circuit precedent) to defeat summary judgment in a mixed-motive case. It will also create an incentive for employees to frame their cases as mixed-motive cases, because these cases will be more likely to go to a jury under this standard than single-motive cases under the traditional McDonnell Douglas standard.

Friday, July 4, 2008

46.6 million reasons to think about settlement


In the largest verdict Ohio history, and what might be the largest single-plaintiff employment verdict ever, a Cuyahoga County jury has awarded $46.6 million to Ronald Luri against garbage hauler Republic Services. Cleveland.com reports that Luri was fired after he refused to fire three employees in their 60s. The jurors reported that they were outraged by Republic's conduct after it fired Luri: "The jurors said the key piece of evidence was an email penned by Luri's boss, Jim Bowen, the Ohio area president. Attorneys Shannon Polk and Richard Haber presented a computer expert who found that Bowen had post-dated the memo and added two paragraphs critical of Luri's job performance two weeks after Luri filed the lawsuit."

There are many lessons to be learned from this story, but none more important than this - companies need to be aware of the risks that are inherent any time they step into the courtroom in an employment case. In Ohio, only 6 out of the 8 jurors must agree on the verdict. Of the 8 total jurors, it is a sure bet that at least 6 will more naturally identify with the employee than the employer, which means that the company is usually playing from behind.

Secondly, as far as employers are concerned, an employee's performance history must be frozen in time as of that employee's termination date. Nothing will anger a jury more than a company that looks like it is trying to cover its actions, either by destroying damaging documents or creating helpful ones. The shenanigans the jury found to have taken place after Mr. Luri was fired was a significant factor in the verdict, and if his personnel file was frozen on his termination date, I predict that the verdict would have looked much different.

Unsurprisingly, it is reported that Republic will likely appeal the verdict. Regardless of how much of the $46 million holds up, employers should use this information as a wake up call. Litigation is dangerous. Juries are unpredictable. Some cases cannot be resolved and need to be tried, but sometimes it's better to live to fight another day.

Thursday, July 3, 2008

What I'm reading this week #38


I'm here a day early with this week's best from the blogosphere, starting with 2 posts from the New York Times' Shifting Careers series: Blogging About Layoffs, the Legal Implications, and Can Ex-Bosses Object When Ex-Employees Start Businesses?

The FLSA Blog has an interesting post on crisis planning for class action lawsuits.

The Delaware Employment Law Blog writes on a topic of the utmost importance to everyone this time of year - the office thermostat.

The Connecticut Employment Law Blog, meanwhile, reminds everyone of the important distinctions between hostile work environment and quid pro quo sex harassment claims.

The Pennsylvania Labor & Employment Blog opines that the Supreme Court's D.C. gun ban decision should have little impact on employers.

Finally, the Laconic Law Blog points everyone to the new I-9 form that employers must use beginning July 1. The only difference is its effective date; otherwise the form is unchanged.

Everyone have a fun and safe July 4th weekend, and I'll see everyone back on Monday.

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Wednesday, July 2, 2008

More on compensation for meal periods


Yesterday, a Minnesota judge ruled that Wal-Mart violated state wage and hour laws by failing to provide meal and rest periods to more than 56,000 of its employees. The judge found evidence of more than 2 million separate violations, and awarded the class of employees $6.5 million in back wages. The judge will hold a second hearing on possible penalties, which could exceed $2 billion.

In light of this news, now is as good a time as any to revisit my post from a couple of weeks ago on whether employees' meal periods counted as "hours worked" under the FLSA:

A bona fide meal period, however, is not considered hours worked. To be a bona fide meal period the employee must be totally relieved of his or her work duties. According to the Department of Labor: "The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating."

So, what does it mean to be "totally relieved of one's work duties?" The 6th Circuit falls in line with most of the federal courts in applying the "predominant benefit" test to determine whether an employee's meal period is compensable. Under this test, first applied by the 6th Circuit in Myracle v. Gen. Elec. Co., the employee bears the burden to prove that the normally non-compensable meal period should be compensable because it is spent predominantly for the employer's benefit. The key inquiry is whether the employee engaged in the performance of any substantial duties during the lunch break. As long as the employee can pursue his or her mealtime adequately and comfortably, is not engaged in the performance of any substantial duties, and does not spend time predominantly for the employer's benefit, the employee is not entitled to compensation under the FLSA for a lunch break. Thus, for example, it may not matter if an employee is "on call" during a meal break, unless the employee's meal is actually disturbed.

As most employment law issues, it is best to set out expectations about meal breaks in a clear policy. For example: "Each employee is entitled to a 30-minute lunch break each day. That lunch break is unpaid. Because it is unpaid, it is the employee's time to spend as he or she sees fit. Employees should expect to enjoy their lunch breaks without interruption by a co-worker, supervisor, or manager, except in the event of a emergency that requires an employee to cut his or her lunch break short. No employee is permitted to work through a lunch break without the prior approval of his or her immediate supervisor." Of course, such a policy is only as good as how it is enforced.

Tuesday, July 1, 2008

Did you know that FMLA policies are mandatory?


Did you know that if you are covered by the FMLA and have an employee handbook, the FMLA's regulations require that handbook to contain an FLMA policy?

If an FMLA-covered employer has any eligible employees and has any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. For example, if an employer provides an employee handbook to all employees that describes the employer's policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer's policies regarding the FMLA.

An annual review of an employee handbook or other policy manual is always a good idea. Laws are constantly in flux. New laws are passed (for example, Ohio's workplace smoking ban in 2006) that may require new guidance for employees. Courts issue decisions that may make old policies either obsolete or downright illegal. The only way to make sure that a handbook is up to date is to actually take a close look at it as often as every year.

The bottom line - if you have 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, and your handbook at all deals with employee benefits or leave rights (as most do), take a look at the handbook and make sure it has an FMLA policy.

Monday, June 30, 2008

Do wage and hour laws apply to independent contractors?


Every once in a while I'll answer a question that comes from my readers. Sometimes a question comes by email. Other times (to break down the 4th wall) they come from a search someone ran to find the blog.

Last week, someone asked, "Do minimum wage laws apply to 1099 independent contractors?" The answer is no. The FLSA (and Ohio's parallel wage and hour laws) only apply to employees.

But, companies should tread very carefully before classifying a worker as an independent contractor. Among the factors that the Department of Labor will examine in determining whether one is an employee or a contractor are:

  1. The extent to which the services rendered are an integral part of the principal's business.
  2. The permanency of the relationship.
  3. The amount of the alleged contractor's investment in facilities and equipment.
  4. The nature and degree of control by the principal.
  5. The alleged contractor's opportunities for profit and loss.
  6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  7. The degree of independent business organization and operation.

If a company errs by misclassifying an employee as a contractor, it would be liable for back wages (up to the minimum wage if the hourly rate is less) and unpaid overtime for two years, or even three years if employer was trying to willfully avoid the FLSA.

In other words, I would think long and hard before paying a worker like a contractor, and would not do so without some input from an employment lawyer and a written agreement setting forth the terms of the relationship.

To whoever typed that search into Google, thanks for the question. If anyone has any topics they'd like to see covered, email me and I'll do my best to accommodate.

Thursday, June 26, 2008

House overwhelmingly votes in favor of ADA Amendments Act of 2008


By a margin of 402-17, the House yesterday voted in favor of the ADA Amendments Act of 2008. The New York Times is reporting that the Senate is expected to take similar action soon, but that President Bush is concerned that "it 'could unduly expand' coverage and significantly increase litigation."

The highlights of the bill (the full text of which is available here) are several. It defines "substantially limits" to mean "materially restricts," it specifies examples of major life activities, and expands upon them to include major bodily functions, and helps employers by exempting from "regarded as" claims transitory or minor impairments that last or are expected to last for 6 months or less.

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
  • Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

All in all, the goal of this legislation is to be lauded: "To carry out the ADA's objectives of providing 'a clear and comprehensive national mandate for the elimination of discrimination' and 'clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA." These amendments may not necessarily increase litigation, but they will certainly make it more difficult for employers to get ADA cases dismissed on summary judgment.

Delay in reporting harassment dooms employee's claim


Federal Express terminated the employment of Deborah Thornton after she failed to return to work from a 16-month leave of absence taken because of alleged stress stemming from sexual harassment by her immediate supervisor, David Bragorgos. She did not report the retaliation to FedEx until two months after her leave of absence began, claiming that she feared retaliation from Bragorgos and others if she reported it. In Thornton v. Federal Express, decided early this week, the 6th Circuit rejected that argument and upheld summary judgment entered in the employer's favor.

An employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environment.

In other words, employees have an affirmative obligation to report harassment. In return, the employer has an affirmative to ensure that the employee can do so free from retaliation. The employee is not excused from her responsibilities out of a fear that the employer will not live up to its end of the bargain.

Wednesday, June 25, 2008

Is the FLSA anachronistic?


Earlier this week I wrote about whether employees are entitled to overtime pay for reading emails. Michael Moore (the author of the Pennsylvania Labor & Employment Blog, not the director of Roger & Me) posted a comment to my post that is so wonderful that I'm reprinting it to make sure that all of my readers see it:

ballpointpenThe only area immune from technology is the FLSA which is stuck in the year 1938, when it was enacted. Incidentally, this is the same year that the ball point pen was invented by the Argentine-Hungarian journalist László Bíró. I wonder if the DOL sat around in 1938 wondering if employees who wrote themselves work-related “To Do” list at home might actually be engaged in compensable work time activities entitling them to overtime?... or if the invention of the ball point pen (as opposed to the clunky fountain pen) would have so dramatically reduced these efforts that it would make the time de minimis?

Michael is dead on. As our employment laws move forward, the FLSA remains stuck in the past. The FLSA was enacted in 1938 to the curb worker exploitation, boost job creation, and bring the country out of the Great Depression. Last year, I asked if the 40-hour work week is still relevant in the modern world.  Michael's comment really drives home the point that a law enacted to address workplace conditions that existed during the Depression may need to be seriously reworked to address the realities of the modern workplace.

Protected activity does not protect theft of confidential information


Let's suppose an employee opts-in to a class action lawsuit against your company. Let's also suppose after she opts-in to the class action, she believes that her supervisor begins retaliating against her by treating her poorly. As part of discovery in the class action, she provides documents to her attorneys. Those documents not only include documents that might relate to the class action and potential retaliation claim, but also confidential customer files that she believes will jog her memory about specific instances of retaliation. The employer has a Privacy Policy, a Code of Conduct, and a Conflict of Interest Policy, all of which expressly prohibit the disclosure of confidential information, including customer information. When the employer learns of the delivery of the confidential customer files, it terminates her for violating company policy.

Does the delivery of the confidential files constitute protected activity for which the employee cannot be terminated? According to the 6th Circuit in Niswander v. Cincinnati Insurance, decided yesterday, the answer is it depends, but in this case no.

First, the Court analyze the dissemination for whether it constituted "participation" in protected activity. Because the confidential documents were not relevant to her claim, the Court concluded it did not:

This is not a case of an employee mistakenly or inadvertently delivering confidential information out of a belief that the documents provided direct proof of discrimination. Instead, Niswander delivered numerous documents, some of which were copies of e-mails from her supervisors related to her job performance, but some of which were claim-file documents that included confidential personal information of insured individuals....

Our analysis would be different if the documents that Niswander had given to her lawyers, and that they in turn produced to CIC, had reasonably supported her claim of gender-based pay discrimination—or if she reasonably believed that they did.

[C]oncluding that Niswander’s conduct here is protected participation ... would provide employees with near-immunity for their actions in connection with antidiscrimination lawsuits, protecting them from disciplinary action even when they knowingly provide irrelevant, confidential information solely to jog their memory regarding instances of alleged retaliation.

The Court also analyzed whether the dissemination qualified as "opposition" to an unlawful employment practice. The Court laid out 6 factors critical to its determination as to whether the dissemination of the documents was "reasonable" and therefore worthy of protection:

  1. How the documents were obtained.
  2. To whom the documents were produced.
  3. The content of the documents.
  4. Why the documents were produced, including whether the production was in direct response to a discovery request.
  5. The scope of the employer’s privacy policy.
  6. The ability of the employee to preserve the evidence in a manner that does not violate the employer’s privacy policy.

The Court found that the factors generally weighed against Niswander:

Although employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices, including discrimination and retaliation, “we are loathe [sic] to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation.” To hold in favor of Niswander would turn the opposition clause into “a license to flaunt [sic] company rules or an invitation to dishonest behavior.” (quoting O’Day v. McDonnell Douglas Helicopter Co. (9th Cir. 1996)).

This case underscores the importance for employers to have clearly written confidentiality and other policies to govern employee ethics. The disclosure of confidential materials could very well be transformed into protected activity if the employer does not take active steps to protect the documents' confidentiality.

Moreover, businesses must also act swiftly and decisively when discovering a breach of confidentiality by any employee. Separate from being smart business, consistent enforcement diffuses any claim by an employee like Niswander of pretext - that she was treated differently than employees who breached policy but who had not filed a lawsuit.

Tuesday, June 24, 2008

What would President Obama look like to employers?


crystal_ball2_bmwPreview Yesterday, Senator Barack Obama gave some insight into employment policy in his administration. RealClearPolitics has his words from a speech given in Albuquerque. The highlights:

  • He will push for the passage of the Lilly Ledbetter Fair Pay Restoration Act, which will overturn Ledbetter v. Goodyear Tire & Rubber. Recall that Ledbetter held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter Fair Pay Act would start the statute of limitations when the employee learns of the pay discrimination. In my view, this law would create a floating statute of limitations for pay discrimination claims, which severely undermines the important aspect of certainty that statutes of limitations provide for businesses.

  • To assist working parents, he would expand the Child and Dependent Care tax credit to 50%.

  • He would expand the FMLA to cover employers as small as 25 employees, to permit leave for the care of elderly parents, to allow parents 24 hours of annual leave to join school activities with their kids, and to cover employees who are victims of domestic violence or sexual assault.

  • Finally, he would require employers to provide all workers with seven paid sick days a year.

It's clear from Senator Obama's words that family responsibility will be a driving force in his administration:

As the son of a single mother, I also don't accept an America that makes women choose between their kids and their careers. It's not acceptable that women are denied jobs or promotions because they've got kids at home. It's not acceptable that forty percent of working women don't have a single paid sick day. That's wrong for working parents, it's wrong for America's children, and it's not who we are as a country.

It's hard to argue against greater family leave benefits on a national scale (The Ohio Healthy Families Act is an entirely different story). As I've said before, this country lags behind most of the civilized world, and even some of the third world, in family leave benefits. Until we solve this problem legislatively, aggressive plaintiffs will continue to push for judicial solutions - such as the $2.1 million verdict against Kohl's Department Stores in Cuyahoga County last year.

Overtime pay for reading emails


899402_you_have_mailMore than a year ago I asked the question, "Is time spent outside the office e-mailing from a Blackberry compensable under the Fair Labor Standards Act?" According to yesterday's New York Times, writers for ABC News are asking the same question.

BlackBerrys blur the lines between work and play. A recent dispute at ABC News asked: at what point does checking e-mail after hours constitute working overtime?

Several weeks ago, ABC’s news division presented three new writers with a waiver stating that they would not be compensated for checking their company-issued BlackBerrys after office hours. The waiver prompted some concern, leading ABC to take the BlackBerrys away from the three writers the week of June 9.

Before deciding whether time spent checking emails off-hours is compensable, several questions must be answered:

  1. How much time is spent? The FLSA permits employers to disregard and not pay employees for off-hours de minimis time. Time is considered de minimis if it is insubstantial or insignificant, cannot as a practical administrative matter be precisely recorded for payroll purposes, is no more than a few minutes in duration, and where the failure to count such time is justified by industrial realities.
  2. Is the employee checking emails of his or her choice, or is the employee essentially expected to be on-call 24/7?
  3. Does the employer require the employee to carry a PDA or Blackberry, or does the employee choose to do so as a matter of personal convenience?

The safest course of action for employers is to provide PDAs only to exempt employees. But, if companies are going to provide PDAs to non-exempt employees, they should have a policy in place stating that employees who check emails off-the-clock do so of their own choice, and that the time spent will not be compensated. Of course, such a policy is not foolproof, and businesses who make it possible for employees to remain connected off-duty will have to take the risk that the time might count as hours worked.

My take is that most emailing should meet the test for de minimis time. Checking an email takes at most only a few moments, and it would create an administrative nightmare for companies to have to track this time for pay purposes. While I am not aware of any cases discussing this issue, it is only a matter of time before we get some judicial guidance for companies that provide PDAs to non-exempt workers. In the meantime, this debate remains academic, albeit with significant real-world implications.