Tuesday, June 30, 2015

New Overtime Regulations and the Avoidance Problem (VIDEO)

I posted a new video to Vimeo: New Overtime Regulation and the Avoidance Problem.

New Overtime Regulations and the Avoidance Problem from Philip Miles on Vimeo.

It's a brief overview of President Obama's Department of Labor's new proposed overtime regulations under the Fair Labor Standards Act (FLSA). Also, a brief discussion of the "avoidance problem.

NOTE: Lawyers are actually exempt from the salary requirement by a special carve-out (29 CFR 541.600)... so pretend Bob (my example in the video) is a store manager who oversees 2 or more employees instead (the "executive" exemption).

They're Heeeeerrrre - New Proposed FLSA Overtime Regs

At long last, today is the day. President Obama will announce the new proposed overtime regulations. You can read the Notice of Proposed Rulemaking here.

This will take me some time to read through. After reading the executive summary, the main thrust is raising the minimum salary requirement for certain FLSA overtime exemptions:
Under the current regulations, an executive, administrative, or professional employee must be paid at least $455 per week ($23,660 per year for a full-year worker) in order to come within the standard exemption . . . . In order to maintain the effectiveness of the salary level test, the Department proposes to set the standard salary level equal to the 40th percentile of earnings for full-time salaried workers ($921 per week, or $47,892 annually for a full-year worker, in 2013).
Two things stick out: (1) That's a huge increase!; and (2) It's not a specific number - instead it's tied to the 40th percentile of earnings, so it will (presumably) increase over time. The administration estimates that an additional 5.1-5.6 million people will be affected by the change in the next 10 years.

You can find additional resources here, including:

I'm sure I'll have some more thoughts after I dig a little deeper, so stay tuned . . . .

Monday, June 29, 2015

That White Guy Lost . . .

Yes, white males are a protected class... I blogged about this a year and a half ago. One of the cases I cited was Burlington v. News Corp. The employee, a white guy, was fired for using the n-word. He filed a race discrimination lawsuit, claiming that black employees use the word without discipline.

I give him credit for managing to clear the summary judgment hurdle, but all that gets you is a jury trial. Did you really think a jury was gonna be like, "yeah, it's totally the same when white people use racial slurs!" If you did, you were wrong - at least in this instance: Jury Issues Defense Verdict in Case of Anchor Fired for Racial Slur.

Friday, June 26, 2015

New EEOC Guidance on Pregnancy Discrimination

Yesterday, the EEOC issued an updated version of Enforcement Guidance: Pregnancy Discrimination and Related Issues. Per the press release, it covers:
  • the PDA's application to current, past, and potential pregnancy; 
  • termination or refusal to hire someone because she is pregnant and other prohibited employment actions based on pregnancy; 
  • application of the PDA to lactation and breastfeeding; 
  • prohibition of forced leave policies; 
  • the obligation to treat women and men the same with respect to parental leave policies; and 
  • access to health insurance.
I suspect many readers will be most interested in the section on "equal access to benefits" in the wake of Young v. UPS.

The EEOC has compiled a bunch of other related guidance and other documents here.

Tuesday, June 23, 2015

$2.25 Million GINA Verdict in the "Case of the Devious Defecator"

Yup, you read that right - an actual GINA case! Oh, and a giant verdict number and a bizarre poop reference... I'm just gonna let the judge's order from earlier in the case get you caught up:
Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses.1 To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, to submit to a cheek swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and Dennis were not a match. With the culprit apparently still on the loose, Lowe and Dennis filed suit under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which generally prohibits employers from requesting genetic information from its employees.
Well, yesterday, a jury awarded the plaintiffs $2.25 million in Lowe & Reynolds v. Atlas Logistics Group Retail Services. Volokh Conspiracy has a great post on it, with some excerpts from closing arguments.

I can understand the employer's frustration. Something had to be done about "the devious defecator." But DNA testing is a blatant violation of GINA, so I'm not sure what the employer was thinking. According to the above-linked order, the employer claimed that the DNA analysis was not covered by GINA because it did not reveal the employees' propensity for disease.

Forgive me for being so blunt... but this sounds like a pretty stupid argument. GINA prohibits "genetic testing" and specifically defines "genetic testing" to include "analysis of human DNA." 42 U.S.C. § 2000ff(7). So their argument was that their analysis of DNA was not covered by a statute that prohibits, literally, "analysis of DNA"? Huh?

GINA is still pretty new, so we're trying to figure out how to value these claims. How much should employers compensate an employee for unlawfully analyzing his DNA? Apparently, the jury in this case valued it at $2.25 million.

3d Cir. on FMLA "Negative Certifications" and Right to Cure

Yesterday, the Third Circuit issued an interesting precedential opinion in Hansler v. Lehigh Valley Hospital Network.

A Negative Certification?

The employee sought intermittent leave and submitted an FMLA certification form to her employer. The form indicated that she was "“requesting intermittent leave at a frequency of 2 times weekly starting on March 1, 2013 and lasting for a probable duration of one month– or until about April 1, 2013.” Unless you're a real FMLA expert, you probably don't see the problem.

An employee seeking intermittent FMLA leave for a chronic "serious health condition" must establish that the condition "continues over an extended period of time." As she was only requesting intermittent leave for about a month, she did not meet that requirement. The employer therefore denied her FMLA leave, concluding that her certification was a "negative certification" (a certification that establishes that the employee is not entitled to FMLA leave - some courts have held that employers may rely on such "negative certifications"). The employee subsequently missed work, and the employer fired her because the absences were unexcused. The employee was diagnosed with diabetes and high blood pressure, but only after her termination.

A Right to Cure?
Not official use.

Let's turn to a different aspect of FMLA. If an employee submits an "incomplete" ("one or more of the applicable entries have not been completed") or "insufficient" ("a complete certification, but the information provided is vague, ambiguous, or nonresponsive") certification, then (s)he has a right to cure. The employer must notify the employee in writing of the information needed to make the certification complete and sufficient. The employee then has seven days to cure the defects. The employer apparently did none of those things in this case (because it concluded that the certification was "negative" not "incomplete" or "insufficient").


At first glance, the certification appears to be complete and sufficient - it just indicates that she only needed the leave for a month, so she didn't meet the "extended period of time" requirement. Right? Wrong.
[A] sufficient medical certification must state, among other things, both the probable duration of the condition and the expected duration of the intermittent leave. 29 U.S.C. § 2613(b). [Employee's] certification is vague and nonresponsive insofar as it requests intermittent leave for one month but fails to specify whether the one month duration refers only to the length of her leave request or to the duration of her condition.
Therefore the employee was entitled to the 7-day opportunity to cure the insufficiency. If that sounds like a bit of a stretch to you, you're not alone - this was a split decision and the dissent's not buying this explanation.

So, what does this mean for employers? Well, a super-cautious employer would seek clarification or a cure from the employee for apparently "negative" certifications. At the very least, employers should double-, triple-, maybe even quadruple-check a "negative certification" before flat-out denying it, knowing that the Third Circuit will try to find a way to interpret it as "incomplete" or "insufficient" instead.

Wednesday, June 17, 2015

Medical Marijuana as a Reasonable Accommodation?

Yesterday, I blogged about the Colorado Supreme Court's decision that an employer could terminate an employee for medical marijuana use despite a state statute forbidding employment termination for "lawful" off-duty conduct. The decision did not specifically address whether off-duty medical marijuana use could constitute a "reasonable accommodation" for a disability (in the CO case, the employee clearly has a disability).

So, how about it? Can allowing medical marijuana be a "reasonable accommodation" for a disability? No. At least not under the federal Americans with Disabilities Act (ADA). The ADA generally requires employers to provide a reasonable accommodation (unless it imposes an undue hardship or poses a direct threat) to a "qualified individual with a disability."

The problem with medical marijuana is that marijuana is still illegal under the federal Controlled Substances Act. The ADA provides that:
[A] qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
42 U.S.C.A. § 12114. I think that pretty much resolves the issue, doesn't it? Chime in with a comment if you see it differently.