Is February 29th a "Free Day" for Employers?

In a previous life, I was an IT consultant. One year, I had to work on February 29th. Always the team player, I took it in stride. But in my head, I thought "what a ripoff! Here I am, working on this extra day, and I'm not getting paid any extra!"

Two of my fellow employment law bloggers have explained this phenomenon in employment law terms: Dan Schwartz (here) and Jon Hyman (here). As they correctly note, employers don't need to pay salaried, nonexempt employees any extra money for the time they work on February 29th - a free day!

Not so fast! I can think of three reasons why this "free day" is just our collective imaginations:

1. Leap Year is Frequent and Predictable. We have a February 29th once every four years (technically, there are a few exceptions, but not worth the trouble to address). Employers know this when they make salary offers. Employees know this when they accept job offers. Accordingly, February 29th should be "priced in" to the employment agreement.

2. Salaried Employees Work Flexible Hours All the Time. Salaried employees don't get paid any overtime. So, in the non-leap years, employers can just assign approximately one extra day of work per year (spread out across the year). Employees will put in the same time commitment as if they came in that extra day on the 29th. The point here, is that it's not clear whether salaried employees are actually expected to put in an extra day's worth of work on leap years or not.

3. What Extra Day? Most salaried employees work on weekdays. According to this handy tool, 2010 had 261 weekdays. Wanna guess how many weekdays (including February 29th) in 2012? Yup, 261. I will concede, however, that last leap year (2008) had 262 weekdays, and 2011 only had 260 days - so there are some "extra" weekdays here and there.

So, next time you feel like you're getting ripped off by working on leap year (which I'm guessing will be 4 years from now), just remember: Your salary probably includes this day - in fact, you're probably getting "overpaid" in non-leap years; maybe you're working an extra day's worth of work in non-leap years but it's just spread out (instead of all on February 29th on leap years); and you often get that extra workday back in the form of an "extra" weekend day in non-leap years.

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.

Latest Publication: Taking and Defending Depositions

I recently contributed a chapter to the Pennsylvania Bar Institute publication, Taking and Defending Depositions. Pennsylvania attorneys lovingly know their materials as the PBI Yellowbooks. I authored the chapter, Federal & State Rules of Civil Procedure Governing Depositions in Pennsylvania.

The materials are available as part of a CLE course (register here). I am not an instructor for the course, just an author. My McQuaide Blasko colleague, Katie Oliver, is an instructor though. So check it out!

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.

Top 5 Signs Lawyers Should Know About Pinterest

It seems like a new social network is born every minute. There's just no way to keep up with them all. But Pinterest is generating so much buzz that lawyers should at least know what it is (I'm not sayin' you need to spend 12 hours a day "pinning" recipes, but just have a general awareness of it).

Why do I say that? Here are the Top 5 signs:

5. I'm on there! And so are other lawyers. I locked up PhilipMiles on Pinterest (if you wait too long, you get stuck telling people, "Yeah, it's 'philip' but with an F and 3 L's... double underscore... milez, yeah with a Z, then the number 12786... yup, Filllip__Milez12786").

4. Mashable Touts It. If you're not familiar with Mashable, they basically drive "coolness" on the web. One article, How Pinterest Changed Website Design Forever, has been retweeted over 4,700 times!

3. Even the Mainstream Media Knows About It. Mashable still too niche for you? How about CNN explaining Why Pinterest is 2012's Hottest Website?

2. Legal Publications Are Covering It. Mashable just for Internet dorks? CNN too fluffy? OK, how about The Legal Intelligencer then? Yup, even the legal mags are writing about Pinterest, including this blog entry: Pinterest for Lawyers: Legal Marketing or Waste of Time?

1. Pinterest Discovery is Happening. I'm not going to pretend I've had any cases revolving around Pinterest accounts... but I have received a discovery request specifically requesting Pinterest account information. Yes, it actually comes up in practice.

So, what is it? It's a "virtual pinboard." To learn what that means, check out the above links, or read Pinterest's About page.

Sidenote about my experience: For the reasons above, I think lawyers should have some general awareness of Pinterest. But, while I'm on there, I frankly haven't been too excited about it. I had trouble finding topics that interested me, until I saw History... so I clicked it... the first result? A picture of Disney's Genie telling Aladdin, "I showed that bitch the world," to which Aladdin replies, "Bitches love worlds." Ummm, not exactly what I anticipated.

Update (2/27/2012 9:36 AM): It turns out that there's actually some good law content on there: See Elizabeth Kramer (Sterling Education Services).

Image: Pinterest Logo used in commentary on Pinterest.

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.

DOMA Ruled Unconstitutional - COTW #80

Two days ago, a federal judge ruled DOMA unconstitutional in Golinski v. U.S. Office of Personnel Mgmt. - and, it's the Case of the Week!

The challenge actually arose in the employment law context. An employee of the 9th Circuit tried to enroll her same-sex partner of 20 years (registered domestic partner in San Fran in 1995 and Cali in 2003, and then legally married in Cali in 2008) in her family health care plan, which she purchased through her employer. However, under the Defense of Marriage Act (DOMA), a spouse is defined as a member of the opposite sex.

So, her request was denied (it's a little more complicated than that - there was some back and forth between Judge Kozinski of the 9th Circuit, who tried to enroll her, and the Office of Personnel Management). So, we have a party who has been harmed by a law that discriminates on the basis of sexual orientation... which becomes a lawsuit.

I've already given away the punchline - the law was ruled unconstitutional. One of the interesting aspects of the decision is that it applied a heightened level of scrutiny to sexual orientation discrimination. The judge applied the following four-part analysis:

(1) the history of invidious discrimination against the class burdened by the legislation;

(2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;

(3) whether the distinguishing characteristics are “immutable” or beyond the class members’ control; and

(4) the political power of the subject class.

The judge concluded that those four factors required a heightened level of judicial review (other courts have applied the lowest level, "rational basis" review). The judge also held, in the alternative, that the law wouldn't have even passed the lower bar of rational basis review.

I think there's a strong argument that the law required heightened scrutiny because it discriminates on the basis of sex (which receives heightened protection). After all, if the spouse had been a man instead of a woman she would have received health benefits. Mason Law Prof. Ilya Somin argues this point regarding the Prop 8 case. However, applying heightened scrutiny to discrimination on the basis of sexual orientation itself would be an interesting development in the law.

I don't know which case it will be, but I suspect that SCOTUS will take up one of the sexual orientation cases soon and we'll get some definitive way of handling them - rational basis, heightened scrutiny, or as sex discrimination (heightened scrutiny). Or maybe that's wishful thinking, and we'll get some new weird balancing test that depends on the right involved and comes down in a splintered 3-2-2-2 opinion and we'll be more confused than ever. We'll see...

Note to readers: Apologies for the lack of blogging these last two weeks. Between a surprise publication deadline, a funeral, a sick child, a trip to Lancaster, and battling my own illness (I'm all better, thanks for asking), my blogging fell off. Lawffice Space should be back in full force next week.

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.

Another Presidents Day is Upon Us

James Madison

Today is Presidents Day! . . . or, is it Presidents' Day? . . . or, is it Washington's Birthday? You can read my prior post about the history of the holiday here, which includes an image of the actual signed bill marking the federal holiday (clarifying that it is Washington's Birthday).

Although, even some mainstream media outlets get confused - FoxNews claimed the holiday was renamed and now honors Lincoln - I'm pretty sure that's wrong, but I'm still waiting for any information to the contrary.

Adding even more confusion, states have their own holidays. So, as I explained last year, Yes Pennsylvania, There is a Presidents' Day! And yes, it is the possessive Presidents', unlike the federal holiday Veterans Day (which is not possessive). But wait! Pennsylvania calls it Veterans' (possessive) day.

I give up. Whatever you call it, enjoy the day.

Image: That's James Madison... he was president. I'm not sure if today's holiday honors him, belongs to him, or is all about Geroge Washington though.

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.

"Firing someone because of lactation or breast-pumping is not sex discrimination" - COTW #79

In a case that has been around the blogosphere and back again, Judge Lynn Hughes of the Southern District of Texas held that discriminating against lactating women was a-ok as a matter of law. You can read the full opinion for EEOC v. Houston Funding here, and it's the Lawffice Space employment law case of the week!

The employee in this case had a baby in December 2008. She was out of the office for about nine weeks and decided to call and let her employer know that she was ready to return. During the call, she claims she asked if she could use a back room to pump milk . . . and they fired her . . . because they discriminate against women who lactate. Can you believe it?

Frankly, I'm skeptical. The employer claims it fired her for job abandonment and actually made the decision prior to the call. During the call, they explained to her that they had filled the position because they had not heard from her. But, the EEOC brought this (what I would call) "test case" so they're giving this theory a whirl. So, far the test is not going well.

The opinion's analysis was brief and to the point:

[L]actation is not pregnancy, childbirth, or a related medical condition. She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination . . . . Even if [the employee's] claims are true, the law does not punish lactation discrimination.

And that's the end of that (until appeal).

So, can employers really discriminate against women who ask to pump milk at work? I'll offer two quick points on the subject:

1. This judge's opinion is . . . how to put this nicely . . . "conclusory." It contains no serious analysis, and I think it is possible, nay plausible, nay probable that other courts will see this matter differently.
2. "Obamacare" amended the FLSA to require reasonable break time (and a reasonable space) for nursing mothers.

This case of the week aside, I'm leaning towards "no, an employer cannot discriminate against lactating mothers," but we shall see.

There are about a quadrillion other blog posts on this topic. I'll just point you to Jon Hyman's (which itself links to many more).

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.

Don't Forget the Religious Accommodations!

Business Insurance published a great article by Judy Greenwald, Knowledge, Training Key to Avoiding Religious Discrimination Claims. It's tough to say what exactly makes an employment law article "great" . . . but a quote from me never hurts ;-)

Philip K. Miles III, an associate with McQuaide Blasko in State College, Pa., said employers “need to understand they have an obligation to engage in the interactive process with employees who seek accommodation for their religion.” While most employers are aware they have such an obligation with respect to disability, they “may not be quite as aware, or don't have, a process to handle religious accommodations,” he said.

Religious accommodation is often overlooked. While it's not a particularly common form of discrimination, the number of claims is slowly but steadily rising.

UPDATE: I should note that the linked chart shows total religious discrimination claims, not necessarily acommodation claims.

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.

Teacher "Hates" Students on Facebook, Lies, Jokes About Child's Death - Reinstated! - COTW #78

What should fifth grade students learn from their teachers? Honesty? Compassion? Respect? Proper use of an apostrophe to indicate possession? These sound like things the teacher in this Case of the Week needs to learn.

Here are the cringe-worthy facts:

• The day after an NYC student drowned on a field trip to the beach, the NYC teacher at the heart of this case posted on Facebook: "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!" (is it nitpicking to point out the failure to use an apostrophe in "devils"?).
• Her friend asked if she would "let little Kwame float away." The teacher replied on Facebook, "Yes, I wld not throw a life jacket for a million!!"

At this point, one of her Facebook friends (not to be confused with real friends) turned her posts over to an assistant principal.

• When questioned, the teacher lied by saying that she didn't remember the posts but that one of her friends had access to her page (this is the kind of response you'd expect from a 5th grade student, not a 5th grade teacher).
• A school district investigator questioned the friend, who shockingly took full responsibility for the posts!... until the investigator explained the concept of incarceration for perjury... then the friend admitted that the teacher had asked her to lie.

Well, what do you think happened? She got fired. Does that shock your sense of fairness? Well, here's the New York court's opinion in Rubino v. City of New York. The court concluded that the teacher's "termination is so disproportionate to her offense as to shock one's sense of fairness" and therefore vacated her termination under a New York education law.

Look, I don't practice in New York or know anything about its education law . . . but you're telling me that a teacher who jokes about a local student drowning, "HATES [her students'] GUTS," wishes that they would drown, lies to her supervisors, and conspires with a friend to interfere in the investigation, can not only keep her job but it's actually against the law to fire her!?

You can read more, including some lively discussion, over at the Volokh Conspiracy. Sidenote: she reportedly makes $78,885/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.

Refusal to Rescind Resignation is Not an Adverse Employment Action

You may recall a recent 3rd Circuit ruling that placing an employee on a Performance Improvement Plan (the dreaded "PIP") is not an adverse employment action sufficient to bring discrimination claims. What about a lowered evaluation, plus a PIP, plus denial of a transfer request, plus a refusal to accept the employee's resignation? Nope - at least according to the Eastern District of Pennsylvania.

The employee in Cashman v. CNA Financial Corp., 2012 WL 113667 (E.D. Pa. Jan. 13, 2012) had received an "exceeds expectations" in a draft review, which was later changed to a mere "meets expectations." Then he was placed on a PIP. He then emailed his employer that he was retiring in about a month and a half . . . but then, he emailed again:

My original decision to retire was made during a period of extreme stress caused by an unwarranted work performance review. I was recovering from a stress related illness and facing tests to determine the possible reoccurrence of Cancer. Management was aware that I was treating for this condition.... I was presented with a [p]erformance [i]mprovement [p]lan which I believe may have been prejudicial in relation to my age and ongoing medical conditions. 

The employer responded by essentially saying, "thanks, but no thanks." The plaintiff responded by essentially saying, "thanks, but here's an FMLA, ADEA, and ADA lawsuit." Oh, there was a last ditch effort by the employee to secure a transfer to another department in there too.

The Court ran through his proffered adverse employment actions and dismissed them all one by one. The Court even rejected them for purposes of bringing a retaliation claim (which is a different, I consider it lower, standard).

The message for employers is clear: if there are employees you want to terminate, get rid of 'em while you can. For employees, two age-old lessons:

1. Don't quit your job until you're sure you want to quit your job; and
2. Don't quit your job if you want to sue your employer. 

Re: #2 - There are certainly times when you can and should quit anyways... but getting a PIP and negative review is probably not one of them.

HT: The Legal Intelligencer - Refusal to Rescind Resignation Not Adverse Employment Action.

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.

PA Court Weighs in on Employee vs. Independent Contractor

Employee or Independent Contractor? How employers classify the people who work for them can have important implications for everything from taxes to wage and hour issues. The IRS has its take, and there are tons of court opinions weighing in on wage and hour issues. This classification also matters for unemployment compensation though. And, a Pennsylvania court provided some helpful insight.

In Pennsylvania, generally claimants who were employees can receive UC benefits, but those who were "self-employed" can not. The analysis is similar to the employee vs. independent contractor analysis. Under PA UC law, an individual is an independent contractor where:

(a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and 

(b) as to such services such individual is customarily engaged in an independently established trade occupation, profession or business. 

43 P.S. §753(l)(2)(B).

In Hartman v. UCBR (opinion here), the Pennsylvania Commonwealth Court applied that legalese gobbledygook to a real-life situation. I love it when a court comes right out and states the holding:

We conclude that, as a matter of law, where an employer supplies all equipment, pays a fixed rate even when a job does not take place, requires that its business cards be distributed and other business cards be collected, and even goes so far as to determine how early a person must arrive at a job and what clothing a person is to wear, that employer is exercising significant control over the manner in which Claimant is performing his duties. Accordingly . . . Employer did not meet its burden of proving that Claimant was an independent contractor. 

This decision provides some helpful guidance for making the right call in the always tricky field of worker classification.

Image: Photo of Centre County CareerLink (where UC referee hearings are held) by P. Miles.

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.

Unpaid Internships Under Attack!

Unpaid internships have picked up some unwanted mainstream media attention lately. Recently, a former unpaid intern filed a lawsuit against Harper's Bazaar, alleging violations of state and federal wage and hour laws.  She's also hoping to make it into a class action against other Hearst publications, including Cosmo, Seventeen, and Good Housekeeping.

The New York Times ran a "Room for Debate" feature, with differing opinions answering Do Unpaid Internships Exploit College Students? The way they framed the debate seems to suggest their opinion, doesn't it? It's not, Are Unpaid Internships Freakin' Awesome!?... it's Do Unpaid Internships Exploit College Students?

As usual, Lawffice Space was ahead of the curve with The 6 Requirements for Unpaid Internships back in April 2010. I won't make you click through, here they are:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees;

3. The trainees do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

You can also read guidance from DOL's Wage and Hour Division: Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act.

I worked at an unpaid internship in law school (at a non-profit). I absolutely loved it and it led directly to a paid position with that employer later in school. I was in the middle of transitioning careers (from IT to law) and the internship gave me some legal experience on a resume that was predominantly IT-related. Apparently they're not for everyone...

Image: DOL Wage and Hour Division seal used in commentary on wage and hour issues. 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.

3rd Circuit on FMLA Supervisor Liability - COTW #77

Let's get down to business - the employment law Case of the Week is Haybarger v. Lawrence Cty. Adult Probation and Parole, No. 10-3916 (3d Cir. Jan. 31, 2012). It's a Family and Medical Leave Act (FMLA) case that touches on two important issues: 1. when a supervisor can be individually liable under the FMLA; and 2. whether a supervisor at a public agency can be individually liable under the FMLA.

Can a Public Agency Supervisor be Individually Liable Under the FMLA?

The Third Circuit started with number two. The FMLA defines "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The definition also includes "any public agency." So, can we mix those two as a combo deal (i.e. an individual "person" and a "public agency"), to hold a supervisor at a public agency individually liable under the FMLA?

Third Circuit says . . . YES! The Sixth and Eleventh Circuits have already said NO. The Fifth and Eighth, and now the Third, have all said YES (I guess that makes it the "majority view"?). It's a pretty big Circuit split on a fairly common issue so this could make a good Supreme Court case one day.

When is a Supervisor an "Employer" who can be Individually Liable Under the FMLA?

The Court really provided some nice guidance here:

[A]n individual is subject to FMLA liability when he or she exercises "supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation" while acting in the employer's interest.

And, they lifted some helpful language from a Fifth Circuit FLSA opinion on the issue:

[A]n individual supervisor has adequate authority over the complaining employee when the supervisor “independently exercise[s] control over the work situation."

Lawyers, you can also score bonus points by dropping in the legalese-tastic catch phrases: "totality of the circumstances" and the "economic reality" of the employment situation. Finally, the Court also noted some specific relevant factors from the Second Circuit:

(1) had the power to hire and fire the employee; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records.

The Third Circuit sent the case back down to the district court for further proceedings.

For additional analysis, check out:

• Molly DiBianca's 3d Cir. Finds Individual Supervisor Liable Under FMLA;
• Eric Meyer's Ouch, that hurts! Supervisors may be liable for FMLA violations; and
• Judy Greenwald's Supervisor can be Held Liable for Violations of FMLA.

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.

Social Media Policies: NLRA Disclaimers Take a Hit

My latest post on ELinfonet is up! Please check out The Death of NLRA Disclaimers in Social Media Policies? My new article covers NLRB guidance on social media policies, and explains why a simple disclaimer that the policy "will not be construed or applied so as to prohibit NLRA-protected activity" is a big failure. It also includes some tips for a better disclaimer that addresses some of the NLRB's concerns (although the NLRB hasn't had any trouble raising new concerns, so proceed with caution!).

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.

Lawffice Links 2/1/2012

Some fresh Lawffice Links for your reading pleasure:

• Top 10 Reasons Employees Get Fired.


• CBS Sports blogger fired over false tweet prematurely reporting Paterno's death.


• Pregnant, and Pushed Out of a Job (NYT op-ed).


• Ban on courtroom tweets considered in Pennsylvania.


• Fun factor: Thousands of Internet users remade Star Wars, 15 seconds at a time.

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.