Sunday, May 30, 2010

Memorial Day History and Law

On the last Monday in May, we celebrate Memorial Day. Over two dozen towns claim to be the birthplace of the holiday. Of course, only one is correct: Boalsburg, Pa. OK, I may be a little biased, having grown up (and now living) minutes from the town. But here's part of the story from Albrecht Powell at
The Boalsburg Memorial Day story begins in October 1864 when three residents -- Emma Hunter, Sophie Keller and Elizabeth Myers -- met at the cemetery adjacent to the Zion Lutheran Church [to place flowers on graves of loved ones who died in the Civil War]. . . . [B]efore the two women [Emma Hunter & Elizabeth Meyer] left each other that Sunday in October, 1864, they had agreed to meet again on the same day the following year in order to honor not only their own two loved ones, but others who now might have no one left to kneel at their lonely graves. During the weeks and months that followed, the two women discussed their little plan with friends and neighbors and all heard it with enthusiasm. The report was that on July 4, 1865 -- the appointed day -- what had been planned as a little informal meeting of two women turned into a community service. All Boalsburg was gathered there . . . and every grave in the little cemetery was decorated with flowers and flags; not a single one was neglected.
Other towns have their own stories of how the holiday began.

On May 5, 1868, the holiday was formally recognized in General Order No. 11 from Union General John Logan. Originally, the holiday was called "Decoration Day." In a concurring opinion in the Supreme Court flag-burning case (Texas v. Johnson), Justice Kennedy recognized that: "Countless flags are placed by the graves of loved ones each year on what was first called Decoration Day, and is now called Memorial Day." The Uniform Monday Holiday Act officially declared nine federal holidays (MLK Day and Inauguration Day were later added) and declared that Memorial Day shall be celebrated on the last Monday in May. 5 U.S.C. § 6103.

President Lyndon Johnson issued a proclamation in 1966 recognizing Waterloo, NY as the birthplace of Memorial Day:
Congress has officially recognized that the patriotic tradition of observing Memorial Day began one hundred years ago in Waterloo, New York. In conformity with the request contained in that concurrent resolution, it is my privilege to call attention to the centennial observance of Memorial Day in Waterloo, New York, on May 30, 1966.
Of course, as a loyal Pennsylvanian, I'll point out that 1866 is two years AFTER the Boalsburg story in 1864.

Image: Honor the Brave, Memorial Day, May 30, 1917 from Library of Congress. No known restrictions on reproduction.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Friday, May 28, 2010

iPhone Workers Contract Not to Kill Themselves

FoxNews reports that a tenth employee has jumped to his death at iPhone-manufacturer, Foxconn, in China. This has prompted an unconventional move: "The spate of suicides at its factories has reportedly prompted Foxconn to ask workers to promise not to kill themselves" and "agreeing to be sent to psychiatric institutions if they appear to be in an 'abnormal mental or physical state for the protection of myself and others.'"

Foxconn has also responded by training mental health advisors and installing 1.5 million square feet of netting. Not surprisingly, the deaths have apparently led Apple and some of Foxconn's other clients to investigate working conditions there. The article cites the company's secretive corporate culture and indicates that workers actually live inside the factory complex.

This is certainly a bizarre, and in at least ten cases tragic, story. I have worked on drafting employment contracts and employee handbooks, and thankfully I can assure you that the no-suicide clause is not very common.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, May 26, 2010

Attorney's Fees in ERISA - "Some Success on the Merits"

On Monday, the Supreme Court issued two employment law decisions. Of course, readers of this blog already know about the Court's disparate impact statute of limitations decision in Lewis v. City of Chicago. In a second case, Hardt v. Reliance Standard Life Ins. Co., the Court addressed when attorney's fees are available to an ERISA claimant.

"In most lawsuits seeking relief under the Employee Retirement Income Security Act of 1974 (ERISA) . . . 'a reasonable attorney's fee and costs' are available 'to either party' at the court's 'discretion.' §1132(g)(1)." The Supreme Court held "that a fee claimant need not be a 'prevailing party' to be eligible for an attorney’s fees award under §1132(g)(1)." So, under what circumstances may a court award attorney's fees? Where "the court can fairly call the outcome of the litigation some success on the merits."

Fans of canons of statutory construction/interpretation will note that the Supreme Court dusted off an oldie but goodie: "Congress knows how to." The Court noted a separate provision that stated attorney's fees are available only when plaintiffs obtain "judgment in favor of the plan." The Court then explained, "Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases."

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, May 24, 2010

Supreme Court: Disparate Impact Arises Upon Application of Employment Practice

The Supreme Court issued an opinion in Lewis v. City of Chicago today. Although the Court is often divided on employment law issues, the Supreme Court was unanimous in today's holding by Scalia, J. that:
A plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice as long as he alleges each of the elements of a disparate-impact claim.
(Syllabus). So what brought about this decision?

It started with a written examination administered to applicants for firefighter positions (hmmm, where have I heard this setup before?). The applicants took the test in 1995 and the City divided them into categories in 1996. The categories were "Well Qualified" scoring 89+; "Qualified," scoring 65-88; and everyone scoring below 65 failed. The City then began to hire from the "well-qualified" pool for about six years until they depleted the "well-qualifieds" and dipped into the mere "qualifieds."

Starting in 1997, several African-American applicants filed charges with the EEOC, alleging discrimination. The City argued that the discriminatory act was the classification of applicants into the different pools. And that the application of that classification, the various hiring decisions made in subsequent years, did not reset the statute of limitations. Per today's 9-0 decision: Wrong!

The employment practice in question here was, "the City’s practice of picking only those who had scored 89 or above on the 1995 examination." If that application of the test scores constituted a disparate impact claim, then the date of that application should be used in analyzing the statute of limitations.

The City and its amici (individuals or groups not directly involved in the case but providing input in friend of the court briefs) had argued that today's holding "will result in a host of practical problems for employers and employees alike." Justice Scalia offered an interesting rebuke:
In all events, it is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted.
He'll no doubt keep that one in his back pocket for a rainy day.

The bottom line: Disparate impact may occur upon the application of a previously adopted practice.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Friday, May 21, 2010

Juniata County Added to Pennsylvania Courthouses Photo Album

I had two hearings in the Juniata County Court of Common Pleas this morning. By now, you know the drill... pictures for the Pennsylvania Courthouses Photo Album!

The Juniata County Courthouse is in Mifflintown, Pennsylvania. You can see scaffolding in some of the photos because the courthouse is getting renovated. You will also see an endangered species... a phone booth! Juniata County is another beautiful Pennsylvania courthouse to add to the album.

Click here to view the photo album on Picasa.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, May 20, 2010

Cost of Discrimination: $1 Billion

It takes a pretty big number to get employment law trials in the news. I don't know what the magic number is, but I know $1 Billion will suffice! An attorney representing the plaintiffs estimates that Novartis will end up paying about a billion dollars following a jury verdict for the plaintiffs in a gender discrimination case.

The Wall Street Journal reports that a federal jury awarded 12 women $3.37 million in compensatory damages. How does that become $1 Billion? Simple. Toss in a $250 million punitive damages award and factor in the estimated $750 million compensatory damages for the 5,600 women covered by the class-action (did I mention class action?), and Novartis could be looking at close to a $1 Billion price tag.

I think you're technically not supposed to capitalize "Billion," but c'mon, it's a BILLION! In a WSJ Law Blog entry by Ashby Jones, an employment lawyer calls the case a "game changer." The lawyer then goes on to cite this verdict, the recent certification of a class of approximately 1.5 million in a Wal-Mart case, and the current presidential administration's interest in addressing pay disparity to conclude: "You're going to see more class-actions filed, and more individual claims of gender and race discrimination. It could be a bonanza."

So, will this be a game changer? On the one hand, there's a bit of a "shock and awe" effect from a $1 Billion judgment. It may inspire some more plaintiffs to come forward, and more plaintiff's attorneys to represent them. And maybe some defendants will cough up some more money ("We don't wanna wind up like Novartis!"). On the other hand, it's hardly news that losing an employment discrimination jury trial involving a class of thousands will come with a hefty price tag. I guess we'll see.

Some of my favorite blogs have also covered this case:
Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, May 17, 2010

Waitress Fired for Facebook Status Update

Ashley Johnson was a waitress at Brixx Pizza... until she posted the wrong status update on Facebook. The Charlotte Observer reports on Facebook Post Costs Waitress Her Job.

Apparently some customers came into the pizza place and camped out for about three hours before leaving a measly $5 tip. So what was the offending status update (ear muffs kids...):
Thanks for eating at Brixx,you cheap piece of ---- camper.
It's not clear from the article, but I'm guessing the hyphens were replaced by the letters H, I, S, and T (in not quite that order).

Ms. Johnson allegedly broke two of her employer's policies:
  • A policy against speaking disparagingly about customers; and
  • A policy against casting the restaurant in a negative light on social networks.
There are lessons for employers and employees here:
  • Employees: Careful what you say on the Internet! Especially when you're discussing your employer.
  • Employers: It might be time for a social media policy. In situations like this, it helps to be able to point to a policy provision explicitly referencing social networking sites; and
  • Employers and Employees: Know the rules of the relationship. Employers should clarify their expectations regarding social media use, and employees should read the employer's policies in that regard.
Public employers need to be careful though! Public employees have free speech rights and the line between what speech public employers can limit and that which, under the First Amendment, they can not is often hard to follow.

HT: Centre Daily Times: Waitress Fired for Griping About Tip on Facebook.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, May 16, 2010

Smoking Laws for Employers

The American Lung Association website includes a great resource for employers regarding workplace smoking laws: a 50 state survey on tobacco laws. The project is called SLATI (State Legislated Actions on Tobacco Issues).

Smoking raises several employment law issues, including the possibility of impermissible discrimination. Several states have Smoker Protection Laws. South Carolina's Smoker Protection Law, for example, provides:
The use of tobacco products outside the workplace must not be the basis of personnel action, including, but not limited to, employment, termination, demotion, or promotion of an employee. No specific penalties specified for violation.
S.C. CODE ANN. § 41-1-85 (1991). States also have

Here in Pennsylvania, we do not have a Smoker Protection Law. Recently, a Bethlehem, PA hospital made news when it announced that it would screen applicants for nicotine and only hire non-smokers. Pennsylvania does, however, have a Clean Indoor Air law that provides in part:
Smoking is prohibited in public places, defined by the law as an enclosed area which serves as a workplace, commercial establishment or an area where the public is invited or permitted.
35 PA. STAT §§ 637.1 to 637.11 (2008)(emphasis added).

Of course, there are numerous exceptions. Employers need to know the laws regarding smoking in their jurisdiction and implement their policies and practices accordingly.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, May 13, 2010

Service Dog v. Allergies - ADA Accommodation Conflict

An interesting little ADA issue has generated a lot of buzz this week. The New York Times ran When Treating One Worker’s Allergy Sets Off Another’s; Jon Hyman's Ohio Employer's Law Blog ran Battle of the Accommodations; and Overlawyered had ADA Accommodation vs. ADA Accommodation.

The quick version:
  • Employee A has a potentially fatal paprika allergy
  • Employee A gets a paprika-sniffing dog that she brings to work
  • Employee B is allergic to the dog
So, what should the employer do? The NYT article quotes an EEOC ADA rep as saying "what’s important when you have two people with disabilities is you don’t treat one as inherently more important than the other."

OK, I don't have time to write a law review article on this but I'll offer a few initial thoughts:
  • An employee with a disability is entitled to a reasonable accommodation under the ADA. Bringing a service dog to work would accommodate the paprika-allergic woman in this scenario. However, bringing the dog to work compromises the health of another employee. If an accommodation adversely affects the health of other employees, does it impose an undue hardship? 
  • Even if allowing the dog does not impose an undue burden, the employee is not entitled to the specific accommodation she requests. The employer may identify and implement a different accommodation.
  • If allowing the dog is an undue burden, that does not absolve the employer of its obligation to provide a reasonable accommodation. 
  • Regardless of whether allowing the dog is an undue hardship, the employer would still need to engage the employee in the interactive process. Perhaps there is something else they can work out - another paprika detection mechanism, shift changes, a "dog friendly" zone, restrictions on food in the workplace, etc.
  • Complicating factor: Other laws expressly addressing service animals in the workplace. For example, my hometown of State College, Pennsylvania has an anti-discrimination ordinance that prohibits discrimination on the basis of "use of guide or support animals." Same language appears in the Pennsylvania Human Relations Act (PHRA)
Isn't this fun? The aforementioned Jon Hyman will appear on The Proactive Employer podcast for The Ultimate ADA Accommodation Cage Match: Your Dog Versus My Allergies. I'll definitely tune in for that.

[Update: Portions of this post were re-written to correct the error noted by the commenter below - properly referencing undue hardship where I had mistakenly used "not reasonable."]

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, May 12, 2010

Employee Evaluation Acknowledgment

The Legal Intelligencer ran an interesting piece today, 10 Tips for Avoiding Liability in Conducting Evaluations. The whole thing is worth a read but I'd like to focus on one of the 10 tips:
10. Meet. A manager who e-mails or drops a performance appraisal on an employee's desk closes the door to open communication . . . . Managers should communicate with employees about their performance appraisals. . . . It's best, of course, to have employees sign their appraisals acknowledging receipt, but if an employee refuses to sign — the employer today has an option that was unavailable years ago — send the employee a PDF of the review (with a cc to Human Resources).
Yes, managers can confirm delivery of the performance evaluation via email, but how can that be avoided?

A few tips for getting employees to sign the acknowledgment form:

  • Explain what it is: A record that the employee received a copy of the evaluation, like a receipt
  • Explain what it is not: It does not indicate that the employee agrees with the evaluation or that the employee admits any conduct covered in the evaluation;
  • Put it on the form: Make the two points above in the text of the form itself; and
  • Give the employee a copy
And if they still won't sign it? Make a record of that on the form itself. Do not be obnoxious, just write something plain and direct (ex. "Employee refuses to sign acknowledgment form."). Then email a copy, but make sure you save a record of the email.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, May 10, 2010

It's Official, It's Kagan - New SCOTUS Nominee

President Obama announced Elena Kagan as his pick to replace Justice Stevens today. This comes as no surprise as her name has been floating around as the front-runner from the day Stevens announced his retirement.    Aside from her name, what do we know about her? A New York Times op-ed explains some of her views, but she doesn't seem to have much of a record.

Last time around, now-Justice Sotomayor had developed a very extensive record in the field of employment law, having served as a judge in district court and the Second Circuit. We simply don't have that with Kagan... yet. Information has a funny way of surfacing during the confirmation process. I'll let you know if anything particularly employment law-y happens.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Friday, May 7, 2010

Lawffice Space's First Birthday

Today marks Lawffice Space's first birthday! One year ago today, I posted the first entry, Statement of Purpose. It continues to serve as my Statement of Purpose and has since been modified to include a disclaimer. The first substantive entry was ADAAA 2008 Retroactivity? Not a Chance. Which, by the way, continues to be the case.

I will post more reflections and fun facts about the past year over the weekend. I simply don't have time today, but what kind of proud parent would I be if I missed my only blog's first birthday? Hopefully I have fulfilled my stated goal of providing "the latest (not necessarily greatest) case law, statutory law, and current events from the world of employment law."

Thanks for reading, and I look forward to blogging for many years to come.

Wednesday, May 5, 2010

The Un-pretty Protected Class?

Imagine you represent a corporate defendant, and in the course of discovery you receive the following interrogatories:
1. On what date did Defendant terminate Plaintiff?

2. Who did Defendant hire to replace Plaintiff?

3. On a scale of 1 to 10, how hot is the person described in response to interrogatory #2.

4. Would you describe the Plaintiff as visually repulsive?
What the heck kind of discovery is this!? Perhaps, Plaintiff is trying to establish a prima facie case of appearance discrimination. While I had some fun at the outset, there's actually a serious argument behind the premise.

The Beauty Bias: The Injustice of Appearance in Life and LawIn an interesting National Law Journal op-ed, Prejudiced toward pretty, Deborah Rhode (author of The Beauty Bias) makes the case for eliminating appearance discrimination in the workplace. She cites studies finding that attractive people are "more likely to be viewed as intelligent, likeable and good [and] more likely to be hired and promoted and to earn higher salaries."

She also points out that appearance discrimination has a disparate impact on women and some racial minorities. For example, women are judged more harshly for being overweight and showing signs of aging, along with spending far greater time and money on their appearance. Some darker skinned minorities with "less 'Anglo'" features face greater workplace bias.

Employers surely have better criteria than "attractiveness" on which to base hiring decisions. I like to use the surgeon example when discussing discrimination: If you needed a life-saving operation would you seek out the best looking surgeon to perform the operation? I think not.

I don't expect Title VII to be amended to add "unattractive" as a protected class any time soon, but it's an interesting issue.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Tuesday, May 4, 2010

Lie Detectors (Polygraphs) in Job Interviews

Job interviews can be pretty stressful. You know what would make them even worse? A polygraph machine (aka a lie detector)! So why don't employers use them? They could ask you important questions, like "Have you ever stolen money from work?" and "Would you steal from work if you knew you wouldn't get caught?"

So why don't employers use this valuable tool? First, it might dissuade qualified applicants from applying for jobs. If I walked in to a job interview and saw a polygraph machine, I'd walk right back out. On top of that, and more on point for this blog, it's generally against the law!

The Employee Polygraph Protection Act of 1988 (.pdf) generally makes it unlawful for an employer to:
directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test.
29 U.S.C. § 2002. And in Pennsylvania,
A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.
18 Pa. Cons. Stat. Ann. § 7321. There are exceptions for:
employees or other individuals in the field of public law enforcement or who dispense or have access to narcotics or dangerous drugs.
The federal law likewise has some exceptions for things like national security and FBI contractors.

And finally, I can't discuss the nightmare of lie detectors without leaving you with perhaps the greatest clip in the history of train wreck television. Here's part I:

The whole episode is here. It's an episode of the show Moment of Truth in which a contestant admits she was once fired for stealing money, flashed a stranger for laughs, loved an ex on her wedding day (while her husband looks on), believes she should be married to that ex, had sexual relations with someone other than her husband while they were married... but the lie detector busts her when she tries to say she believes she's a good person. Cringeworthy.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, May 3, 2010

Mandatory Compliance Plans for Wage, Safety, and Equal Employment

Late last week, the New York Times ran a story: U.S. Outlines Plan to Curb Violations of Labor Law. Spoiler alert: Through mandatory compliance plans:
In a move that will affect most American corporations, the Labor Department plans to require companies to prepare and adopt compliance plans aimed at ensuring they do not violate wage, job safety and equal employment laws.
No details yet, but the Department of Labor is drafting the proposed rules as I type.

Deputy Labor Secretary Seth Harris
Presumably, the rules will go through the ordinary notice of proposed rulemaking and comment period before they issue a final rule. The article points to one specific area of concern: misclassification of workers as independent contractors.

This has the potential to be huge, but let's wait and see what the DOL comes up with. Will it help workers? We'll see. One group it will almost certainly help: Labor and employment lawyers, who will no doubt start receiving requests to draft these plans.

Image: Deputy Labor Secretary Seth Harris, quoted in NYT article. Source: Dept. of Labor website, Public Domain as Work of U.S. Government.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, May 2, 2010

Third Circuit Test for Medication or Treatment as a Disability

As you may recall, I recently announced that I am blogging on ELinfonet. My latest post is up: 3rd Cir. Addresses ADA Claims Based on Side Effects of Medication.

Brief Summary
Suppose an employee does not have a disability as that term is defined by the Americans with Disabilities Act. But, the employee is on medication or receiving a treatment that impacts his or her ability to work. Must employers provide reasonable accommodations under the ADA?

The Third Circuit adopted a 3-prong test for determining when medication/treatment constitutes a disability.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.