Monday, January 30, 2012

DOL Proposes New FMLA Regs

The Department of Labor (DOL) issued a notice of proposed rulemaking to address the implementation of the servicemember leave and airline flight crew provisions of the Family and Medical Leave Act (FMLA). If you're really into this stuff, you can see the full 213-page notice here. Or, you can see the more succinct:
Or, you can just take the DOL's word for it that the "major provisions" are:
  • the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
  • a flexible, three-part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
  • the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.
HT: Dan Schwartz for being quick on the draw reporting this one.

Image: Public domain work of federal government. DOL seal used in commentary on DOL. Not official use.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Most Outrageous Employee Excuses

A quick post to kick off the week here at Lawffice Space. CareerBuilder released the results of its latest survey regarding excuses employees use for coming in late. The most common excuses were pretty standard . . . traffic, weather, kids. But, they also noted the most outrageous excuses of the year.

My favorites are:
  • Employee's cat had the hiccups;
  • Employee got distracted watching the TODAY show; and
  • Employee said he wasn’t late because he had no intention of getting to work before 9:00 a.m. (his start time was 8:00 a.m.).
The full list is worth checking out. Something tells me these are the same people who have "I Ran Out of Sick Days So I Called in Dead" stickers on their desks . . . .

Image: That's my cat, Merlin . . . he has never had hiccups - but I'll have to remember that excuse ;-)
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, January 27, 2012

Fired for Working Through Lunch - COTW #76

When two co-workers email you a case, the mainstream media picks up on it, and it has already hit the blogosphere... it's probably a good case of the week. The Case of the Week is an unemployment compensation case involving Sharon Smiley and a Chicago real estate company.

The gist of the story is that an employer fired a woman because she worked through her lunch break. Cue the moral outrage! Well, after a two-year battle, she finally won her unemployment compensation benefits.

 Shockingly (I say sarcastically) the employer may have actually had a reason for doing this. They had a policy requiring employees to take 30-minute lunch breaks. Maybe they think lunch breaks help keep their employees refreshed and motivated. Or maybe the employer has the policy because Illinois law requires employers to provide lunch breaks.

In any event, what could be more basic than an employer's right to set the schedules of its employees? In a previous Case of the Week, I covered a similar situation. An employee was fired for working too much. I explained that employees working through breaks could, and in that case did, also lead to FLSA lawsuits.

It seems like employers are stuck. They can't allow employees to work through breaks. If they enforce the break policy they might be stuck paying UC benefits (and/or facing an FLSA lawsuit anyway and/or facing the righteous condemnation of the media). What's an employer to do? Robin Shea has some tips on her blog entry on this case: OFF-CLOCK WORK: "Flintstone" laws in a "Buck Rogers" world.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, January 26, 2012

Lawffice Links 1/26/2012

I baked up some fresh Lawffice Links for your reading pleasure. They're jam-packed with federal agency goodness:


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 24, 2012

Charts of EEOC Charges by Type of Discrimination 1997-2011

The EEOC released charge statistics for FY 2011 today. I'll be honest... nothing too earth-shattering here. But, I noticed a few things:

  • Total charges leveled off, creeping up from 99,922 to 99,947 (or as the media might report it... "EEOC charges set all-time record!");
  • The heavy-hitters, race and sex, actually saw decreases;
  • Religion claims are up almost 10% (after rising about 12% last year);
  • Disability claims are still rising (and have been the fastest growing over the past 5 years), but they leveled off a little bit this year;
  • Finally, I ignored GINA again this year because there were only 245 claims (or as the media might report it... "GINA claims skyrocket, up 22%, a new record!").
OK, enough of my babbling, here are the charts:


Retaliation claims continue to rise and comprise a higher percentage of total claims:


And there you have it folks, another record year.


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, January 23, 2012

Fired for Wearing a Fake Penis?

When people find out I'm an employment lawyer, they almost always have questions. Those questions are invariably some form of "Can my employer fire me for __________." I can assure you that I have never been asked, "Can my employer fire me for . . . wearing a fake penis to work?"

A new case just filed in federal court in Scranton, Pennsylvania may just provide the answer. HT: Law and Daily Life for the details. A female line worker for J&J Snack Foods claims she is taking steps toward a sex change. Apparently, one of those steps is wearing a prosthetic penis while she works. Her lawsuit alleges that her fake penis was the reason she was fired.

She claims nobody could tell she was wearing it and that it didn't interfere with her work. How did the employer find out? The employee confided in a few co-workers and somehow the word spread. Unsolicited advice: when you tell your co-workers you're wearing a fake penis . . . word is gonna spread!

So, how does this become a lawsuit? She alleges discrimination on the basis of gender and gender identity. "Gender identity" is not a protected class per se under Pennsylvania law (PHRA) or federal law (Title VII). But, some transgendered plaintiffs have had success framing their cases as a form of gender discrimination. The plaintiff here also claims that a male co-worker who wore women's clothing and prosthetics to make him look female was treated differently.

With any luck, this will go all the way to the Supreme Court so I don't have to worry about finding good blogging topics for the next few years!

Image: Those are J&J Snack Foods' SuperPretzel SoftStix of course! Product image used in commentary on J&J.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, January 20, 2012

"Grandma" it's a "Lateral Move" (and an ADEA Claim!) - COTW #75

Grandma, don't forget to file your ADEA claim! Two of the key components of a discrimination claim are 1. establishing discriminatory motive; and 2. showing an adverse employment action. The employment law Case of the Week is Norris v. Millbrook, 2011 WL 5553082 (M.D. Ala. Nov. 15, 2011). It provides a succinct analysis of lateral moves as adverse employment actions, but first the discriminatory intent . . .

The plaintiff was able to establish her employer's discriminatory intent based in part on ageist comments from her boss. He repeatedly called her "grandma" in a derogatory fashion. He allegedly followed up by telling the plaintiff she needed Gingko Biloba (believed to be a memory enhancer). So, when the boss transferred her to a new position, age might have had something to do with it.

The employer argued that the transfer was a "lateral move" and therefore not an adverse action (or demotion). After all, the plaintiff's remuneration was not changed. But the Court noted:
Although Plaintiff does not dispute that there was no abatement in her pay or her benefits, she testified that her responsibilities "were reduced to almost zero" and that she was not supplied "any [necessary] equipment" and that she was a departmental outcast after the move.
The plaintiff was also, "moved to an unoccupied small desk in the corner of the records office that did not have a telephone or a computer."

That was enough to get "Grandma" past the defendant's summary judgment motion. "Lateral moves" can be tricky, and results may vary from jurisdiction to jurisdiction.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 17, 2012

Obama's "Recess" Appointments and the Constitution

President Obama kicked off the new year by making a handful of recess appointments, including three NLRB appointees. This touched off a firestorm of legal commentary. Volokh Conspiracy has a nice recess appointment round-up, featuring links to commentary ranging from libertarian-leaning Richard Epstein, to conservative John Yoo, to liberal Laurence Tribe.

At the risk of over-simplifying, here's the gist of the back-and-forth:
  • Certain appointments by the President require the "advice and consent" of the Senate.
  • Per Article II, Sec. 2, Cl. 3 of the U.S. Constitution: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
  • The Senate went home for the holidays.
  • Pro-Recess: A-ha! The Senate is in "recess" and Obama can make recess appointments!
  • Anti-Recess: Nope. The Senate is holding "pro forma" sessions!
  • Pro-Recess: Those don't count, President Obama can declare that the Senate is in recess.
  • Anti-Recess: Who do you think determines if the Senate is in recess... the President... or, I don't know... the Senate!? Talk about a no-brainer!
  • Pro-Recess: Yeah, but these "pro forma" sessions are just a bogus ploy to block recess appointments, the Senate isn't actually doing anything, so the President can call it what it is... a recess!
  • Anti-Recess: Not doing anything!? How quickly you forget! The Senate just passed the payroll tax extension during one of these pro forma sessions!
Well, I won't make you suffer through any more of my dumbed down version. If you're interested in this subject, the Department of Justice dropped a 23-page pro-recess opinion on January 6th. And, SCOTUSblog has the details on the first legal challenge to Obama's NLRB appointees. Maybe, if we're really lucky, we'll get some actual court opinions on this fascinating subject!


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, January 16, 2012

Today, at the Centre County Courthouse...

... arbitration panel hearing! Beautiful day to get out and see the courthouse in Bellefonte, PA.

Martin Luther King Jr. Day

Originally published on January 18, 2010. Co-authored by my wife, Sharon R. Miles

Martin Luther King Jr. Day is a federal holiday celebrated annually, honoring the late Reverend, Dr. Martin Luther King, Junior. The holiday is observed each January on the third Monday, near the day of his actual birth, January 15. Approximately 30% of non-federal employers give workers the holiday off (updated stat and link 1/16/2012).

Although King was assassinated in 1968, the holiday was not officially introduced until 1983. The campaign to honor this leader in nonviolent civil rights activism started not long after his death. Michigan Representative, John Conyers introduced the bill to Congress that would make King’s birthday a federal holiday. The bill was voted on by the House of Representatives in 1979; however it lacked the number of votes needed to pass by five. Opponents believed a paid holiday for government employees would be too pricey and many believed the holiday would be unprecedented given that King never held a public office, unlike those honored with a federal holiday before him.

The King Center turned to the general public and corporate and artistic communities for support in moving forward with a day to honor King. It was on November 2, 1983 when President, Ronald Reagan signed the bill creating the federal holiday. The holiday was officially observed in 1986, but only celebrated in the District of Columbia and 27 states. Other states refused to accept the holiday. For example, in the state of Arizona that same year, a holiday had been declared by Governor Bruce Babbitt after a bill to create the holiday failed to pass in the Arizona legislature. In 1987, Governor Evan Mecham withdrew the holiday, believing that it was illegally established. New legislation finally passed in 1989, but opponents were successful in mandating a ballot initiative which resulted in a rejection by Arizona voters in 1990. In response, rap group, Public Enemy created their song, “By The Time I Get to Arizona,” helping bring attention to the issue. The holiday was finally approved by Arizona voters in 1992.

Today, Martin Luther King Jr. Day is recognized nationwide.

The aforementioned Public Enemy video. WARNING: The video generated some controversy for its apparent advocation of the assassination of Gov. Mecham. Lawffice Space does not condone violence.



Public Enemy - By the Time I Get to Arizona

Friday, January 13, 2012

Negative Performance Review Not an Adverse Action - COTW #74

Lawsuits generally require damages. Employment discrimination lawsuits generally require a very specific type of damages, beginning with the "adverse employment action." This employment law Case of the Week provides some great analysis of whether and when a negative performance review can satisfy that "adverse employment action" requirement.

OK, you probably already read the headline of this post. But, it's actually a little more complicated than that. Eastern District of Pennsylvania, take it away:
Plaintiff also argues that he received lower performance ratings because of defendant's alleged discrimination, and that these lower performance ratings constitute adverse employment actions. The Court of Appeals has previously held that when a negative performance evaluation is accompanied by an increase in pay, the evaluation is not, by itself, an adverse employment action. Tucker v. Merck, 131 Fed. App'x at 857 (affirming district court's finding of no adverse action when plaintiff presented no evidence that negative evaluations impacted plaintiff's compensation); Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir.2001) (failing to find adverse employment action, despite negative evaluations, because plaintiff “was not demoted in title, did not have his work schedule changed, was not reassigned to a different position or location ..., did not have his hours or work changed or altered in any way, and ... was not denied any pay raise or promotion as a result of these reprimands”). Even a negative evaluation that results in a less than expected wage increase is not per se an adverse employment action. Equal Emp't Opportunity Comm'n v. Wyeth Pharm., 2004 WL 503417, at *2 n. 3 (E.D. Pa. March 11, 2004). Therefore, because of the clear precedent within this circuit, plaintiff's negative performance evaluations are not adverse employment actions.
Raffaele v. Potter, 2012 WL 33035 (E.D. Pa. Jan. 6, 2012). So, the negative review itself is not an adverse employment action - but keep an eye out for pay decrease, demotions, changes in schedule, and other changes to "terms and conditions of employment." <- Legal catchphrase! 


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, January 11, 2012

Just In: SCOTUS Rules 1st Amendment Bars Minister's Discrimination Claim

The Supreme Court just issued its opinion in Hosanna-Tabor v. EEOC. You can read my preview of the case here. A unanimous court held that the First Amendment bars discrimination lawsuits brought by ministers against their church. The teacher in question was a minister within the meaning of the ministerial exception.

The opinion just came out, so I'll likely have more analysis later. As always, HT to SCOTUSblog for live-blogging the decisions as they're released.

Note: There have been some technical difficulties with the Supreme Court's website - you may have trouble opening their opinion. My link is accurate, and I eventually downloaded the opinion successfully.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 10, 2012

Knox v. SEIU Oral Arguments Today

The Supreme Court heard oral arguments in Knox v. SEIU (SCOTUSBlog Case Page) today. You can read the transcript here. SCOTUSBlog describes the issues as:
(1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction?
(2) May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?
Plain English Issue: Does the First Amendment give state employees the right to decline to pay union dues used for political advocacy by the union?
Audio of the arguments should be available here on Friday.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Just In: Another SCOTUS Pro-Arbitration Decision

Earlier today, the Supreme Court issued its opinion in CompuCredit Corp. v. Greenwood. This is actually a credit card case, but it has some value in employment law because it involves the Federal Arbitration Act (FAA).

The plaintiffs' credit card agreements included clauses that required their claims to be resolved by binding arbitration. They filed lawsuits under the Credit Repair Organizations Act (CROA). The district court and Ninth Circuit held that Congress intended CROA claims to be nonarbitrable - therefore allowing the lawsuits to proceed without compelling arbitration.

Even if you know nothing about the law, there are two guiding principles for predicting the outcome here:
  1. The Supreme Court loves arbitration clauses; and
  2. The only thing the Supreme Court loves more than arbitration clauses is reversing the Ninth Circuit (a little sarcasm there... but not a lot).
True to form, the Court held (8-1 with only Justice Ginsburg dissenting) that:
Because the CROA is silent on whether claims under the Act can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) requires the arbitration agreement to be enforced according to its terms.
So, if you had aspirations of carving out nonarbitrable causes of action - the statute had better be pretty explicit. Justice Scalia cites the example of the Commodity Exchange Act which provides, "No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section." Yup, that's pretty explicit.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

The Proactive Employer 100th Episode Now Online

Last Friday, I had the pleasure of appearing on the 100th episode of The Proactive Employer to discuss employment law current events. Fellow employment lawyers, Jon Hyman and Dan Schwartz rounded out the panel, hosted by Stephanie Thomas. You can listen here:


Listen to internet radio with TheProactiveEmployer on Blog Talk Radio


If you can not see the embedded player, click here to listen online.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, January 6, 2012

I'm Live on the Interwebz TODAY at 2:00

The Proactive Employer is hosted by
Stephanie Thomas of Thomas Econometrics
Tune in to The Proactive Employer special 100th episode today at 2:00 PM est for special guest... ME! Jon Hyman and Dan Schwartz will also be on the program, hosted by Stephanie Thomas. You can listen live (here) and even call in at 347.945.5651. Remember, if you have a really hard question (like about some obscure provision in the Railway Labor Act or something), be sure to direct your question to Jon or Dan ;-).

UPDATE (1/10/2012): You can listen to the podcast here.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Too Smart to Hire? - COTW #73

Ordinarily, I try to pick new cases for the employment law Case of the Week. But, as the old saying (or advertising slogan) goes... if you haven't seen it yet, it's new to you. Thus the Case of the Week is Jordan v. City of New London, 225 F.3d 645 (2d Cir. 2000).

Robert Jordan, then 46, applied to be a police officer with New London. He was told that he "didn't fit the profile" and suspected age discrimination. Nope. In fact:
The city responded that it removed Jordan from consideration because he scored a 33 on the WPT (Wonderlic Personnel Test and Scholastic Level Exam), and that to prevent frequent job turnover caused by hiring overqualified applicants the city only interviewed candidates who scored between 20 and 27.
In short, Jordan was rejected because he was too smart!

Jordan filed a lawsuit, alleging that the city had violated his fourteenth amendment equal protection rights. The Second Circuit rejected his claim, concluding that:
[E]ven absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed-on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC-that there was such a connection.
Welcome to "rational basis" review, Mr. Jordan! No evidence that the policy is actually "rational" required (heck, cases have even held that the rationale doesn't even need to be the actual "basis"). Thus, the Second Circuit affirmed the lower court's grant of summary judgment in favor of the city.

Sidenote: New London is also the city that took Susette Kelo's home for the "public use" of building a private conference center (which was never actually built, if I recall). The Supreme Court infamously allowed the taking in Kelo v. New London. Yes folks, "rational basis" need not be "rational" or the "basis" - and "public use" can mean "private conference center." The law is funny sometimes.

HT: Discover Magazine - Too Smart to be a Good Cop.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, January 4, 2012

Just In: Obama Taps Three for NLRB Vacancies

The Chicago Tribune reports that President Obama made three recess-appointments to the NLRB: Sharon Block, Terence Flynn, and Richard Griffin. Obama is quoted as saying:
We can't wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that's why I am proud to appoint these fine individuals to get to work for the American people.
Frankly, this NLRB issue played out faster than I expected. 2012 is off to a fast start!

Image: NLRB logo used in commentary on NLRB - Not official use.

Blawger's Manifesto

My latest article, Blawger's Manifesto was published in the Jan/Feb issue of The Federal Lawyer. You can temporarily access some articles from the issue, which focuses on civil litigation, here (unfortunately, not including Blawger's Manifesto). A pre-publication version of Blawger's Manifesto is available here. Enjoy! And, as always, feedback welcome!

The Federal Lawyer is the national publication of the Federal Bar Association. The FBA provides some great resources for federal practitioners, including The Federal Lawyer. The current issue also includes a nice employment law article on Cat's Paw liability.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, January 3, 2012

Pennsylvania and Federal Employment Law in 2012

Due to my inability to predict the future, and the difficulty in detailing an entire year in one blog post, I'm going to keep this short. Here are just a few things on the employment law horizon in 2012.

Pennsylvania Unemployment Compensation
For Pennsylvania employers and employees, many of the new Pennsylvania Unemployment Compensation reforms take effect. The reforms include set-offs for large severance packages, new requirements that the unemployed actively search for employment, and new shared-work program provisions.

NLRB
The NLRB may cease to function for a little bit. but they lined up some stuff for employers in 2011. For example, the frequently delayed NLRA poster requirement should take effect on April 30, 2012. They also adopted new rules to speed up unionization votes.

SCOTUS
As readers of this blog know, I have not been a happy camper regarding the employment law cases (or lack thereof) for this Supreme Court season. But, I'm sure everyone is super-excited about the Patient Protection and Affordable Care Act (aka "ObamaCare") case coming this Spring. And who knows, maybe they'll grant certiorari in an awesome new employment law case - only time will tell.

Bold Prediction
My bold prediction for 2012 is that there will be no new federal employment laws (of any real consequence). OK, given the divide between the House, Senate, and Executive, maybe that's not so bold. But, it's the best I can do.

Do you have any predictions for 2012? Did I miss anything? Drop a comment. Also, join me on The Proactive Employer podcast this Friday at 2:00 pm eastern to discuss employment law and 2012.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.