Wednesday, September 30, 2009

Senate to Examine Gross v. FBL

The Senate Committee on the Judiciary has scheduled a hearing on, and I quote, "Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?" The witness list includes:

  • Jamie Leigh Jones of the Jamie Leigh Foundation, an organization dedicated to victims of crime working overseas for government contractors and subs;
  • Prof. Michael Foreman from my undergrad alma mater, Penn State, where he directs the Civil Rights Appellate Clinic at the law school; and
  • Jack Gross, plaintiff in Gross v. FBL Financial.

That last name's the biggie. I have covered the Gross case fairly extensively on this blog, including a summary of the Supreme Court's opinion. The Supreme Court case places a higher burden on Age Discrimination plaintiffs (as compared to Title VII plaintiffs) in "mixed motive" cases. I'll point out that I predicted Congressional action was likely in the end of that summary. Before I get too self-congratulatory I should note that it's just a hearing and to my knowledge no precise action has been proposed.

Senate Judiciary Committee Chairman, Patrick Leahy (D-VT), issued a statement expressly stating that the hearing will focus on Gross (and Circuit City v. Adams, applying the Federal Arbitration Act to employment contracts). Leahy describes Gross as a decision that makes it "more difficult for victims to prove workplace discrimination." The hearing is scheduled for Wednesday, October 7, at 10:00 am and will be webcast live online (presumably here - then click "Webcast"). Will the Senate drop Gross like they did Ledbetter? Stay tuned...

UPDATE (10/8/09): New legislation introduced in the House and Senate - Protecting Older Workers Against Discrimination Act.

Tuesday, September 29, 2009

Somebody IS Watching You!

If you're anything like me, the mere mention of "the money you could be saving by switching to Geico" will leave, "I always feel like, somebody's watching me" stuck in your head for days. Well, that and the fact that it's on TV every 30 seconds. If you get the feeling somebody's watching you at work there may be a very reasonable explanation: Somebody IS watching you... or at least your email.

A new study by Proofpoint (as reported by the National Law Journal - subscription required), shows that 38% of large employers are monitoring outbound emails! That's up from 29% in 2008, approximately a 30% increase. To me, the most astonishing statistic was that one third of the companies surveyed, "employ staff whose primary or exclusive job is to monitor the content of outbound email" (emphasis added).

This is just another example of the double-edged sword of the Internet. Surely these same companies are using the web to broadcast their marketing across the globe. On the other side, their trade secrets can also be shared across the globe in an instant.

Then there's the third side (the triple-edged sword?): companies have the technological capability to monitor attempted electronic disclosures. Of course, how this is perceived by employees is another matter entirely (OK, lots of edges). Finally, employees maintain some expectation of privacy in the workplace which may impact acceptable monitoring practices. So goes the back-and-forth, pros and cons, of the web.

Saturday, September 26, 2009

Paid Vacation Act and its Fun "Facts"

Over the summer (I can't believe summer's over, what happened?), I posted an entry Vacation Time - Use it or USE IT! That post described a proposal by employment lawyers for employers to force employees to take vacations. Congress had its own idea this summer: force employers to provide paid vacation time.

On May 21, 2009, Reps. Grayson, Lewis and Hinchey introduced the Paid Vacation Act of 2009 (.pdf)(HR 111-2654). The gist of the Act is that employers with more than 50 employees will be required to provide one week of paid vacation while those with 100 or more employees must provide two weeks of paid vacation. The GovTrack report on HR 111-2654 shows that it is in committee now with only four co-sponsors so we'll see if this thing gets any traction.

In the meantime, the bill contains a number of interesting findings. As you can tell by the use of quotes around the word "Facts" in the title, I'm not sure I'd take all of these as gospel. I found some of them fascinating nonetheless.
(1) according to the Bureau of Labor Statistics, each year the average American works one month (160 hours) more today than in 1976;
(2) job-related stress costs business $344 billion a year in absenteeism, lost productivity, and health costs;
(3) some 75 percent of visits to primary care physicians come from stress-induced problems;
(4) 147 countries require paid vacation leave, and the United States is the only industrialized Nation without a minimum annual leave law;
(5) one of the fastest growing economies in the world, China, requires 3 weeks off for employees, which they call ‘‘Golden Weeks’’;
(9) men who don’t take regular vacations are 32 percent more likely to die of heart attacks, and 21 percent more likely to die early of all causes;
(10) women who don’t take regular vacations have a 50 percent greater risk of heart attack, and are twice as likely to be depressed as those who do;
(12) vacations allow workers and businesses to increase productivity, decrease stress-related health costs, and provide time for family strengthening and bonding.
If this act is passed and employers follow the advice of some employment law attorneys to mandate employees take vacation then you have an interesting scenario: Congress makes employers give vacation time; and employers make employees take vacation time. The only question that remains is "Who will force Congress to take vacation time?" As a near-decade resident of the DC area I assure you that won't be necessary!

Thursday, September 24, 2009

Lawffice Space on Facebook!

Ladies and gentlemen, it's official - Lawffice Space is on Facebook. Now I know what you're thinking, "Phil, I already subscribe to the Lawffice Space emails, subscribe in a reader, 'favorited' it in Technorati, and visit the web site 35 times a day... why should I become a fan of Lawffice Space on Facebook?" Great question!

First, there's some small chance you use Facebook more often than you visit Lawffice Space. This will allow you to see new entries from your Facebook account as though it were just another update from one of your old friends. Second, there will be some Facebook exclusive content! Nothing major (no Facebook-only posts), just little fun facts and updates. Third, it provides a way to engage. Not everyone is a fan of the comment framework for blogs and prefer the Facebook system. Finally, I hope to generate some conversation on employment law topics using the Discussions feature.

New Facebook apps are created everyday so who knows what crazy stuff will go on in the future... you do not want to miss out on the action! So become a fan of Lawffice Space on Facebook today!

Tuesday, September 22, 2009

HIPAA, ADAAA and Other Random Letters

Tonight's post is my first dual HIPAA and ADAAA post... I'm pretty sure it will be my last as well. Contrary to the tongue-in-cheek title, the letters are not random, in fact they are acronyms for acts of Congress. They are: the Health Insurance Portability and Accountability Act (HIPAA); and the Americans with Disabilities Act Amendments Act (ADAAA). They both have big (albeit unrelated) news, hence this post.

Part of the Stimulus plan (American Recovery and Reinvestment Act of 2009, ARRA if you're feelin' the government acronyms thing) required HHS to pass new regulations. The regulations will require covered entities to "provide notification in the case of breaches of unsecured protected health information."

The new HHS regs are here and they take effect tomorrow (today for my email subscribers)! The final rule takes effect September 23, 2009. Fortunately, the kind folks at DLA Piper have written a nice little summary.

The ADA Amendments Act took effect at the start of this year. Congress delegated some regulatory tasks to the EEOC. An EEOC press release indicates that the proposed new regs will be published in the federal register sometime this week. But hey, why wait? Through some magic, the folks at HR Hero tracked down and shared a copy today. I haven't read all 93 pages yet but I will provide additional coverage soon. One final note, the EEOC also published some Q and A on the proposed rules.

Sunday, September 20, 2009

$4.5 Million Failure to Communicate

"What we've got here is a failure to communicate." - Cool Hand Luke

The Sun-Sentinel reports that a Florida-based law firm just got hit with a $4.5 million judgment for its failure to communicate. The firm had previously filed an employment discrimination suit on behalf of Jackie Young. A judge dismissed the suit in September 2001 because of "errors in the lawsuit." The firm then notified Ms. Young... in October 2002! By that time it was too late to refile.

In the firm's defense, a senior partner claims this is all the fault of a
"rogue lawyer who filed this case without authority and contrary to his supervisor's clear direction. Unbeknownst to the firm and his colleagues, the case was filed and dismissed due to his error. Mr. Romeo purposely hid that information from all parties."
The "rogue" was apparently fired and later disbarred.

Even if the firm is not to blame, the message from the judgment is clear: Communicate! Whether it's good news or bad, people would rather be informed than kept in the dark. Finding out your case was dismissed is bad. Finding out your case was dismissed over a year ago, nobody felt like telling you (or even worse, they forgot about you!), and your lawsuit is now barred is much much (much) worse!

The firm intends to appeal the judgment. Even if the judgment is eventually reduced to zero, the publicity is damaging for the firm and the costs to litigate through to (at least one) appeal are high. No matter what, they'll end up paying quite a price for a failure to communicate.

Thursday, September 17, 2009

Happy Constitution Day!

On this date, in 1787, the members of the Constitutional Convention signed the document that would define our nation, the United States Constitution. What should I write about? There are so many things that impacted the Constitution... from the Magna Carta to Madison; Montesquieu to Mason; and even a few that didn't start with 'M'. Or, perhaps I could write about the Constitution's impact on employment law... from Lochner to Pickering.

Instead, I'm going to do something I do every year on Constitution Day: I'm not going to write about anything at all, I'm going to read the Constitution. We all know the preamble:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
And most people are pretty familiar with the Bill of Rights. When was the last time you read the Articles though? So, that's what I'm going to do to celebrate Constitution Day... read the Constitution.

If you're one of my email subscribers (who get the emails the morning after I write the posts) or stumbled on this post after September 17th, don't worry! It's never too late to celebrate Constitution Day and you can read the Constitution any day you want.

Image: James Madison, "Father of the Constitution" - Wikimedia Commons (reproduction of public domain image).

Wednesday, September 16, 2009

Employers Responsible for Weight-Loss Surgery

The National Law Journal reported today on two cases in which employers were required to pay for their employees' weight-loss procedures. Both cases were similar in that the employees claimed the weight-loss procedures were necessary to undergo surgery for work-related injuries. In one case, an Indiana pizza shop was ordered to pay for a $20,000+ "lap-band" surgery!

Employers are concerned that injured employees will essentially try to "tack-on" the weight loss procedures any time they get surgery for work-related injuries. It could also prove an expensive point of litigation with battling experts hashing out alternative weight-loss methods and the necessity of weight loss.

Obese employees could view these cases as a victory but should not be so quick to celebrate. Sure, there's a good chance their weight-loss procedures could be covered should they need it for an operation for a work-related injury. But, employers will be aware of this potential cost of hiring and employing obese individuals. This could lead to discrimination against a group that is often discriminated against with little legal protection. I will note that the ADA covers obese individuals in some circumstances and some state laws may provide coverage as well.


Monday, September 14, 2009

Discriminatory Policy's Price Tag

In my last post, Discrimination's Price Tag, I described a suit brought by an individual college math instructor that resulted in a $1.2 million judgment. Hopefully that sounded like a lot of money (because it is). While an individual may win a decent-sized judgment, employers may end up paying out even more money in the case of discriminatory policies.

Case in point, the EEOC recently issued a press release detailing its settlement with insurance giant, Allstate.
"In its lawsuit, filed in October 2004 under the Age Discrimination in Employment Act (ADEA), the EEOC charged that in the year 2000 Allstate adopted a hiring moratorium for a period of one year, or while severance benefits were being received, that applied to all its employee-sales agents who were part of its Preparing For The Future Reorganization Program."
The problem? The EEOC alleges "more than 90 percent of the agents subjected to the hiring moratorium were 40 years of age or older." As the EEOC press release explains:
"In 2005, the U.S. Supreme Court held in Smith v. City of Jackson that a facially neutral policy, such as Allstate’s hiring moratorium, which disproportionately affected those age 40 and over violated the ADEA unless the policy was based on a reasonable factor other than age."
Allstate chose to settle the matter. The price tag? $4.5 million! That's just the tip of the iceberg though. The settlement "also provides for discrimination prevention training, posting of notices, reporting and monitoring, and other relief designed to educate Allstate managers in order to prevent future violations of the ADEA." And then there were of course Allstate's legal fees which were no doubt substantial. Do you think a national press release from the EEOC alleging your business's policies discriminate on the basis of age hurts? I'm sure it's not the kind of marketing for which Allstate is looking.

End Note: This post and its predecessor dealt specifically with the litigation costs of discrimination. In a future post I will deal with the costs of discrimination itself.

Thursday, September 10, 2009

Discrimination's Price Tag

Occasionally, I like to put actual dollar figures on cases so my readers can get a feel for the consequences of discriminatory employment actions. The August issue of Pennsylvania Jury Verdict Review and Analysis included an employment law case from New Jersey. The case involved a math professor who resigned from a county college after 24 years of employment.

She later tried to come back claiming that she was in the manic phase of a previously undiagnosed bipolar disorder when she resigned. The school refused, prompting the law suit. She claimed the school "knew or should have known that she did not possess the mental capacity to understand the consequences of retiring and [the school] acted wrongfully in refusing to permit her to rescind the resignation."

The jury found for the plaintiff. The price tag: $1,200,000. $200,000 in back pay and $1,000,000 in future pay. To put that in perspective, that would be one semester's worth of tuition at this college from over 800 students (assuming an in-county student taking 15 credits)!

Wednesday, September 9, 2009

Ohio gets a bad case of Lactate Intolerance

In some ways, a recent Ohio Supreme Court case is one of the most boring employment law cases ever. After all, "the evidence in the record demonstrates that [the Plaintiff] took unauthorized breaks from her workstation, and Isotoner discharged her for doing so" hardly sounds controversial. Wow, someone was skipping out on work and got canned, how interesting.

Why then, does The Juggle on WSJ report an "angry buzz among bloggers?"Martha Neil on the reports the case is "igniting controversy on the Internet." And the Columbus Dispatch article has drawn 135 comments at the time of this blogging. The reason? The Plaintiff, LaNisa Allen, was leaving work, without telling anyone, to pump her breasts for milk to later feed her child.

The case is Allen v. totes/Isotoner, Corp., 2009-Ohio-4231. Understandably, people viewed this case as a test for whether Ohio's pregnancy anti-discrimination law covered lactating mothers. As the concurring opinion points out, however:
"It is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly in issue."
As described above, Isotoner had a legitimate non-discriminatory reason for terminating Ms. Allen, her breaks were unauthorized. Ms. Allen presented no evidence that Isotoner's reason was just a pre-text for discrimination, and by law she must lose on summary judgment. Therefore, whether breast-pumping is covered by Ohio law was irrelevant in deciding the case.

The Court did not address the issue. At all. Period. The Dispatch article cites the executive director of NARAL Pro-Choice Ohio as hoping "employers won't interpret the ruling as an invitation to deny new mothers breaks for breast-pumping." As the issue was not addressed I see no reason why they would. The Dispatch also describes the holding as:
"The state law banning discrimination against pregnant women does not protect new mothers who take unauthorized breaks to use a breast pump."
I suppose that's technically correct, though I would bold, italicize, triple underline, and change the font to 24 point for the word "unauthorized."

Monday, September 7, 2009

Reminder: E-Verify Begins for Federal Contractors

Just a quick reminder that important new e-verify provisions take effect tomorrow (or if you are an email subscriber, today!) on September 8, 2009. Federal contractors and subcontractors will be required to verify the employment eligibility of new hires.

The E-Verify system allows employers to compare information provided on an employee's I-9 Employment Eligibility Verification Form (.pdf) to an online government database to verify employment eligibility and the authenticity of social security numbers. The program remains voluntary for employers with limited exceptions. DHS reports that 141,000 employers have run over 7 million queries as of August 8, 2009.

For more information:

Saturday, September 5, 2009

History of Labor Day

Labor Day, the first Monday in September, is known for many things: Cookouts, a day off from work, the end of summer, and the day after which you can no longer wear white pants. The U.S. Department of Labor describes the true reason for the season, however, as a tribute to "the social and economic achievements of American workers [and their contributions to] the strength, prosperity and well-being of our country."

Believe it or not, the first Labor Day was actually held on a Tuesday. On September 5, 1882, the Central Labor Union organized a march of approximately 10,000 workers in New York City. The workers took an unpaid day off from work and marched from City Hall to Union Square. They did the same thing in 1883 and similar events were held in other cities in following years. The Examiner describes the early Labor Day events as more like protests than celebrations.

Labor Day initially became a formal holiday through municipal ordinances passed in 1885 and 1886. Five states passed legislation recognizing Labor Day in 1887 (Pennsylvania first celebrated the holiday on September 2, 1889). The holiday continued to spread and in 1894 Congress made Labor Day a legal holiday in D.C. and the territories.

According to the Department of Labor web site, the first proposal for the holiday outlined the observance and celebration of Labor Day:

"a street parade to exhibit to the public 'the strength and esprit de corps of the trade and labor organizations' of the community, followed by a festival for the recreation and amusement of the workers and their families."
Today, many of us celebrate Labor Day a little differently. Or perhaps, for many of us, we celebrate in much the same way. No matter how you celebrate, have a safe and happy Labor Day!

Public Domain photo - Image of meat cutters wearing checkered overcoats marching in a Labor Day parade in Chicago, Illinois - Library of Congress.

Thursday, September 3, 2009

3d Circuit Applies Title VII to Gay Man

Before I am accused of using a misleading title, let me state unequivocally that the 3d Circuit did not hold Title VII covers homosexuals. But in Prowel v. Wise Business Forms, Inc., Title VII potentially provided protection to a man who:
"has a high voice and walks in an effeminate manner . . . . did not curse and was very well groomed; filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot 'the way a woman would sit.' [He] also discussed things like art, music, interior design, and decor, and pushed the buttons on his nale encoder with 'pizzazz.'"
And yes, he is a gay man.

His co-workers harassed him mercilessly, calling him "Princess" and "Rosebud," not to mention anti-gay slurs. They also placed "man-seeking-man"newspaper ads with mocking commentary on his workstation.

The Court concedes that it is possible Prowel was harassed because of his sexual orientation. The Court also notes, however, that it is possible Prowel was "harassed for his failure to conform to gender stereotypes." The Court concluded that "[b]ecause both scenarios are plausible, the case presents a question of fact for the jury and is not appropriate for summary judgment."

This provides homosexual employees with a potential Title VII claim for gender stereotyping. It may become somewhat irrelevant if Congress passes ENDA. I'll also note that some state statutes, and even some local ordinances, already prohibit discrimination based on sexual orientation.

Tuesday, September 1, 2009

Gross v FBL "but for" Standard Inapplicable to FMLA

The Supreme Court decided Gross v. FBL Financial on June 18, 2009. Of course, Lawffice Space was there... well, not there... but here, online, with a summary of the now-famous ADEA case. Tonight's entry covers a 6th Circuit case applying the lessons from Gross to a Family and Medical Leave Act (FMLA)-based claim. Hunter v. Valley View Local Schools, 08-4109 (August 26, 2009).

1. Gross applied to the ADEA.
Gross was an ADEA case. It held that in ADEA mixed motive cases (where age is one of multiple bases for an adverse employment action) the burden of persuasion does not shift to the employer. Instead, the employee always bears the burden of proving that age was the "but for" cause of the employer's action. This is different from Title VII and ADA cases in which the burden may shift to the employer in mixed motive cases.

2. Gross applied to the Juror Act
Just last week I explained that a District Court had applied Gross to a Juror Act claim and held that the same "but for" standard now applicable to ADEA claims also applied to Juror Act claims. In other words, plaintiffs always have the burden to establish that their employer would not have taken an adverse action "but for" the plaintiff's jury duty.

3. Gross applied to FMLA
In Hunter, the Plaintiff established that her use of FMLA leave was a motivating factor in her employer's decision to place her on involuntary leave. The 6th Circuit applied Gross to the FMLA and guess what? The "but for" standard does not apply! Instead, the mixed motive burden-shifting, applicable to Title VII and ADA claims, applies.

What's the difference between FMLA and the Juror Act (and ADEA)? First, the FMLA does not include the magic "because of" language that the Supreme Court translated into "but for" causation. Second, and perhaps more importantly, Congress delegated to the Department of Labor the job of drafting regulations to implement FMLA. Those regulations read, in part: "employers cannot use the taking of FMLA leave as a negative factor in employment actions...."

It's actually pretty straightforward: If the statutory language (or statutorily authorized regulations) provide that a violation occurs when an impermissible reason is "a negative factor" or "a motivating factor" then mixed-motive burden-shifting is appropriate. If the statute says a violation occurs only when an employer takes an adverse action "because of" an impermissible reason then the Gross "but for" standard applies.

See also Jon Hyman's post on Hunter on the Ohio Employer's Law Blog.