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Paid FMLA bill introduced

LEGISLATION AND ADMINISTRATIVE ACTION

Paid FMLA bill introduced. Bills have been introduced into Congress to provide paid FMLA. The Family and Medical Insurance Leave Act would establish a payroll deduction for employees and an employer contribution of 0.2% of wages to fund the pay. The fund would be administered by the Social Security Administration and pay up to 66% of an individual’s regular pay if they were on an otherwise unpaid FMLA leave. The bill would also expand FMLA coverage to those who work for companies with fewer than 50 employees.

NLRB will not require posters. The NLRB has dropped its rule requiring all private sector employees to post a notice advising employees of their right to form unions and collectively bargain. The NLRB lost two cases challenging the validity of the rulemaking process and has decided not to appeal. The NLRB may still pursue the issue by going back to the starting point and having a more careful rulemaking process.

New Jersey adopts reasonable accommodation for pregnancy. Governor Christy has signed a new law requiring employers to make reasonable accommodation to enable employees to work or preserve jobs during pregnancy. (Federal Title VII prohibits pregnancy discrimination but does not require accommodation.)

TRENDS

Thirteen more states raise minimum wage above the federal level. Almost half the states have now bypassed the Federal FLSA, $7.25 per hour, and mandate higher minimum wages. As of 2014, thirteen more joined this trend, bringing the total to 21 states, with several more considering action. President Obama will also be raising the minimum wage for workers under Federal contracts.

New Jersey’s EEO law may protect unpaid interns. Following a rash of cases on misuse of interns and volunteers, the Department of Labor and several states have renewed focus on these unpaid positions. As non-employees, they are not covered by employment laws. Now states, such as New Jersey, are introducing laws to give protection, and damages to unpaid interns in various situations (Bill S. 3064).

LITIGATION

The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state’s court decision, may not quite be “the law” in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).

U.S. Supreme Court

The court issued two employment related decisions on January 27:

Court defines clothing. Under the Fair Labor Standards Act, time spent changing into/out of (“donning/doffing”) special clothing required for the job (i.e., uniforms or specialty wear) is suppose to be paid time. However, the Act allows an exception for Collective Bargaining Agreements if the parties bargain for the donning/doffing of clothing to be unpaid time.

That is exactly what the CBA for U.S. Steel provided. However, some of the union members sought to get pay, a lot of it, by claiming their garb was not “clothing” but was specialty safety equipment (especially tough trousers, heatproof jackets, etc.) and outside the “clothing” scope of the FLSA exceptions. The court ruled that trousers, shirts, jackets, hats, etc. are “clothes” under the standard definition, whether special or not. All uniforms, etc. under the Act’s exception are “special” in some way or there would be no need for a donning/doffing provision. The two or three items at issue which might not qualify as clothing took only seconds to don or doff and were too de minimus to count. Sandifer v. U.S. Steel. Corp.

Company is immune from defamation charges for overstated reporting about angry pilot to TSA. An Air Wisconsin pilot got angry during a proficiency test, raised his voice, threw his headset and used profanity toward the instructor. The instructor reported the outburst, and management then scheduled the pilot on a flight home as a passenger and also immediately reported him to the TSA. The company informed the TSA that the pilot was a Flight Deck Officer permitted to carry a gun and that he might be armed, that he “blew up” and that the company was “concerned for his mental stability.” The TSA removed the pilot from the passenger plane, held him for questioning, found no weapon and eventually released him to continue home on another flight. In the meantime, the company had also proceeded to fire the pilot due to his angry outburst. The now former employee sued for defamation. He won, and the airline appealed. The Supreme Court overturned the verdict and dismissed the suit. The Aviation and Transport Security Act grants immunity from suit to those who report suspicious behavior, unless the report is “a knowing or reckless falsehood.” The plaintiff’s case alleged “a reckless disregard for the truth.” However, the Supreme Court found that the pilot had in truth had an angry outburst, and the employer had a factual foundation for its report of concerns. Its characterization of mental instability may have been overblown, but the Act does not require semantic correctness in a report, only a factual foundation. Requiring citizens to have to carefully diagnose and choose the precisely right language, especially in reporting as-it-is-occurring concerns would gut the purpose of the Act and diminish security. Air Wisconsin Airlines Corp. v. Hoeper.

Privacy – Misuse of Identity

Misappropriation of identity – liability for continuing to list former employee on company website. Failure to update a website resulted in a former employee having a civil suit for invasion of privacy/wrongful appropriation of his name. The employee had won awards for his work and articles while employed. The company website featured him as an example of its depth of skill and expertise, when promoting itself to customers and the public. However, it later fired the employee due to alleged deficiencies in his work and billings. Then the company continued the website unchanged for 19 months; still representing him as an award-winning employee of the organization. The court found a prima facie violation of the former employee’s rights. Though the company had a right to tout its employees and use their names while they were employed, that ended once they left. The 19 months of continued promotion was evidence of an intentional act of misappropriation, especially since he had written to the company to object. The court also found that the plaintiff had valid grounds for a claim of mental distress and emotional damages. It would be “particularly repugnant” and distressful for the plaintiff to be fired, unemployed and in financial distress, while the company was advertising his excellent skills and awards and making profits by representing that he was still part of the organization. Wagner v. Gallup, Inc. (D. Minn., 2014).

Discrimination

Age and Contracts

Professor took the money and must accept the consequences. An older professor requested a lengthy leave to research and teach at another university. His school counter-proposed a paid sabbatical for two separate years, if he would return and teach between the two years, and then retire at the end of the leave. He took the deal. He took the money. Then he decided he did not want to retire, and rescinded his retirement. The university retired him anyway, and he then sued for age discrimination due to the involuntary retirement. The court ruled that he had voluntarily entered a contract, which was enforceable. He got the benefit of the two years of paid leave deal and he could not breach the contract. Second, the statute of limitations for age discrimination began to run the day he knew about the retirement provision – not when it finally became effective. So his time to file under the ADEA was long past. Ortouy v. Northwestern U. (7th Cir., 2013).

Disability

Psychologist was not qualified to continue work. A clinical psychologist suffered increasing short-term memory loss, and forgot appointments, did not enter notes about patients, could not recall patient sessions, forgot to enter information for insurance payments, etc. He was placed on leave. Then his physician sent a notice that he was OK to return to work with the accommodations of close supervision of each of his appointments and charting, and a lighter case load with “no complex cases.” The medical center declined to restore the psychologist, and he sued for failure to accommodate. The court found that as a matter of law the psychologist was “not a qualified person with a disability” and the accommodations requested were unreasonable on their face. A professional employee hired to work autonomously cannot reasonably request close supervision and still claim to be “qualified” to perform the essential function of autonomous, independent professional work. Further, clinical psychologists are not hired to do simple, noncomplex cases. The nature of human psychology is that any case will fluctuate between more or less complexity over time, and the patient cannot be shifted from one psychologist to another every time the emotions become more complex. Stern v. St. Anthony’s Health Center (S.D. Ill., 2013).

“Something is wrong” and “might have a medical condition” are not sufficient to give notice of disability. A university employee was discharged for poor performance, missed assignments and a total mess-up on a student trip in which she forgot to make reservations; a bus full of students arrived at the destination to find that no reservation or arrangements had been made. She was given prior coaching and warnings over a several month period. At some point during that time she told a manager that she thought “something might be wrong” with her and she “might have a medical condition” and she was thinking of “going to get tested.” She provided no further information prior to the discharge. A month later she was diagnosed with Attention Deficit Disorder. She then brought an ADA case alleging the university should have known of and sought to accommodate her disability. The court dismissed the case. Her vague statements were insufficient to trigger the employer’s knowledge of a disability or the need to explore any accommodation. Not every “condition” is a disability, and the employee must be more clear and explicit about the nature of the condition and the desire for an accommodation. Fuocco v. Lehigh U. (ED PA, 2014).

Religion

Company may not require religious-based training – will pay $170,000. The president of a medical services company required professional employees to attend training courses involving Scientology religious practices, many conducted at the Church of Scientology. Employees objected but were ordered to attend. Two employees were fired for refusal. The EEOC brought suit, and the company settled, paying the discharged employees $170,000, agreeing to implement a practice of accommodating the various religious beliefs of employees and not inflicting a particular religious view or practice upon employees. EEOC v. Dynamic Medical Services, Inc. (EEOC Settlement, 2014).

Worker’s Compensation

Police officer rolled over by wheelchair was entitled to more leave – medical evaluation was defective. A police officer’s foot was crushed when she was hit and rolled over by an obese person in a motorized wheelchair. She took a Worker’s Compensation leave for 10 months. The department, frustrated by the length of recovery, sent the officer to an independent medical evaluation. The medical examiner took a whole 15 minutes to do a “thorough” examination of the officer and the entire medical records and then pronounced the officer fit for duty. The officer’s own doctor rendered a different opinion, stating that an additional month to six weeks healing was necessary. The department rejected that opinion, and then fired the officer for refusal to return when she followed her own doctor’s orders. In the ensuing case the arbitrator found the department’s position unreasonable based on an independent medical evaluation which lacked credibility due to its perfunctory and inadequate nature. In re Ill. Fraternal Order of Police and City of Murengo (2013).

Labor Arbitration

Policy violated contract but employee stayed fired. An arbitrator ruled that a company violated the CBA by implementing a new zero tolerance drug testing policy. However, the discharge of the employee who failed the drug test was upheld. He admitted to being under the influence while operating dangerous equipment. Thus, his knowing endangerment of others warranted discharge for a serious safety violation. Louisville In re Metro Govt. DPA v. Int. Brotherhood of Electrical Workers (2013).

Don’t touch – don’t slap. A male employee kept inappropriately touching a female co-worker during a company meeting. She slapped him in the face. She was fired. The arbitrator ruled that discipline was warranted, but termination was too harsh. “She had a right to defend herself and send a message” that he should stop improper physical contact. In re Knoll v. United Brotherhood of Carpenters & Joiners #1615 (2013).

Passenger’s abusive behavior does not justify physical assault by bus driver. “Clean hands” is an important doctrine to remember when confronted by frustrating situations. Though one person was the instigator, agitator, and totally wrong, the other who then over reacts can be found even guiltier; their hands look even dirtier in the final outcome. A bus passenger was drunk, out of order, and disruptive (eventually convicted of disorderly conduct). The bus driver reacted by screaming at her, knocked her to the floor with his fist, and proceeded to drag her off the bus. He was fired. The arbitrator upheld the discharge due to overreaction. He should have called security, exited the bus – assisting others to do so as well – and waited for security to handle the situation. In re Amalgamated Transit Union v. Greater Cleveland Regional Transit Authority (2013).

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