Tuesday, July 31, 2012

Chart of FLSA Claims by Year - It's a New Record!

Wage and hour claims are on the rise! Life, Inc. reports in Growing Number of Workers Complain About Being Shortchanged. The article includes numbers from Seyfarth Shaw and a bar chart of FLSA claims by year - but I like line charts, so:

You may have noticed that the data point on the right, above 2012, is the highest part on the chart. You know what that means? It's a new record! (assuming, which I think we can, there are no pre-1996 points that are higher). Also, you don't need an advanced degree in calendar-ology to know that 2012 isn't even close to over yet.

HT: Rich Meneghello via Twitter.

The raw data:

1996: 1558
1997: 1633
1998: 1562
1999: 1717
2000: 1854
2001: 1961
2002: 2035
2003: 4055
2004: 3426
2005: 3464
2006: 4389
2007: 6786
2008: 5302
2009: 5644
2010: 6081
2011: 7006
2012: 7064

Monday, July 30, 2012

UPDATE: EEOC Settles Obesity Discrimination Lawsuit

Some of you may recall the lawsuit filed by the EEOC against BAE Systems, alleging obesity discrimination for terminating a morbidly obese employee without making any effort to reasonably accommodate him. The EEOC alleged that BAE violated the ADA. You can read some background here (it was Case of the Week #60).

Well, the case settled. According to an EEOC Press Release:
The consent decree settling the suit, signed by Judge Gray H. Miller, requires the company to pay $55,000 in monetary relief to Kratz and provide him with six months of outplacement services. Additionally, the decree requires training for the company’s managers and human resources professionals on equal employment opportunity compliance, disability discrimination law and responsibilities regarding reasonable accommodation to employees and applicants. The company must also post an anti-discrimination notice.
The EEOC continues to take the position that "[t]he law protects morbidly obese employees and applicants from being subjected to discrimination because of their obesity."

Image: EEOC logo used in commentary on EEOC. Not official use.

Sunday, July 29, 2012

Pennsylvania Act 109: "8 and 80" Rule for Healthcare Workers & More

Apologies in advance for a post that has a limited audience - a state law affecting specific industries. Pennsylvania Act 109 amends the Minimum Wage Act (copy showing changes here). As the Department of Labor and Industry describes Act 109:
The amendment adopts the federal Fair Labor Standards Act’s “8 and 80” rule for individuals employed in hospitals or establishments primarily engaged in the care of the sick, aged, or mentally ill people. Under the 8 and 80 system, employers and employees can agree to calculate overtime on a 14-day, 80-hour work period rather than the traditional 40-hour workweek. Therefore, overtime wages are required when an employee works in excess of 8 hours in any workday and more than 80 hours in a 14-day work period.
One interesting aspect of the Act is that it incorporates by reference the FLSA, instead of enacting the actual text from the FLSA:
An employer shall not be in violation of this subsection if the employer is entitled to utilize, and acts consistently with, section 7(j) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 207(j)) and regulations promulgated under that provision.
Question for you statutory construction buffs: What if the incorporated section changes? Are PA employers exempt if they comply with the amended FLSA? Or are PA employers only exempt if they comply with the FLSA as it stood st the time the PA law was enacted? I'd argue the former, but would be willing to entertain arguments in support of the latter.

One more quick note on Act 109, it also:
provides an overtime exemption for air carrier employees who work in excess of forty hours in a workweek as a result of a voluntary agreement among employees to trade scheduled work hours or air carrier employees who have collective bargaining agreements or other agreements that cover the required hours of work and compensation.
Not to be too particular or anything . . . .

Image: Personal photo of Capitol Building in Harrisburg, PA

Friday, July 27, 2012

Does the ADA Require Segways? It Just May - COTW #102

Does the ADA require Disneyland in Californ-I-A to allow Segways? It just may. (I can make things out of clay, and lie by the bay). The Case of the Week (HT: Heather Bussing) is Baughman v. Walt Disney World Company (opinion here), an ADA case from the 9th Circuit and written by fan-favorite Judge Kozinski.

The plaintiff has muscular dystrophy and sought an exception to Disney's policy prohibiting two-wheeled vehicles so she could bring her Segway. When Disney refused, she "sued Disney under the Americans with Disabilities Act ('ADA'), claiming that Disney denied her full and equal access to Disneyland."

The ADA defines discrimination in part to include:
[A] failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities . . . .” § 12182(b)(2)(A)(ii).
Disney claimed that because the plaintiff could use a wheelchair (allowed under Disney's policy), allowing a Segway is not "necessary." Annnnd, this is why Judge Kozinski is a fan favorite:
Read as Disney suggests, the ADA would require very few accommodations indeed. After all, a paraplegic can enter a courthouse by dragging himself up the front steps, see Tennessee v. Lane, 541 U.S. 509, 513-14 (2004), so lifts and ramps would not be “necessary” under Disney’s reading of the term. And no facility would be required to provide wheelchair-accessible doors or bathrooms, because disabled individuals could be carried in litters or on the backs of their friends. That’s not the world we live in, and we are disappointed to see such a retrograde position taken by a company whose reputation is built on service to the public.
The Ninth Circuit ruled in favor of the plaintiff, and reversed the grant of summary judgment in favor of Disney and remanded to the trial court.

In case you think Judge Kozinski is down on Disney, he concludes with a message of hope:
New technology presents risks as well as opportunities; we must not allow fear of the former to deprive us of the latter. We have every confidence that the organization that, half a century ago, brought us the Carousel of Progress and Great Moments with Mr. Lincoln can lead the way in using new technology to make its parks more welcoming to disabled guests. As the man who started it all said, "Disneyland will never be completed as long as there is imagination left in the world."
Awww, am I the only one who hears "It's a Small World" in my head right now?

Tuesday, July 24, 2012

Fired for WHAT!? - 7/24/2012

Welcome to another installment of Fired for WHAT!? - the best termination stories from around the web:
  • Standing on Lettuce - Huh? A Burger King employee posted a picture of himself on 4Chan . . . at work, standing in the lettuce bins. Plus side? Employers are now aware that 4chan exists. Also, they tracked the guy using the geo-tagging on the images. This story has tech lessons for all!
  • Setting Fire to a Nuclear-Powered Submarine - This will not just get you fired, but carries the possibility of prison for life. "[The employee] said he set the second fire (I forgot to mention there were two fires) after getting anxious over a text-message exchange with an ex-girlfriend about a man she had started seeing . . . . He wanted to leave work early, so he took some alcohol wipes and set them on fire outside the submarine." What could go wrong?
  • Bestiality and Child Molestation - Nothing funny about this one - it is not so much a "fired" as a "not hired." Honesty at a job interview will get you a few points . . . but despicable acts like this will cost you about a billion points. He didn't get the job, and now faces criminal charges.
Let me know if you have an interesting termination story and, if you're lucky, it might get featured on a future installment.

Monday, July 23, 2012

Miles on Facebook Passwords in Job Interviews

I know, I know . . . this topic never gets old! In any event, I authored an article for the Centre Daily Times, Welcome, What's Your Password? The article covers some of the risks of job interviews in which the employer demands a social media password. It is intended for a mainstream audience, and approaches the subject from both the employer and employee perspective. Enjoy!

You may also want to check out my previous blog entries on this subject, including:
Wow, I didn't realize I had written quite that much about this topic. Bottom line: demanding/providing social media login information at a job interview is probably a bad idea for employers and employees alike. And, depending on your state and the pending acts of various legislatures, possibly illegal.

Image: Facebook logo used in commentary on Facebook.

Friday, July 20, 2012

Rock 'n' Roll Double Feature! - COTW #101

I have quite a line up for you today - not one, but two, of the greatest music acts of all time. Do you love Motley Crue and Hole? Of course, we all do . . . or did . . . at least a little . . . maybe . . . like 20 years ago.

Tommy Lee is perhaps best known for creating the genre of celebrity porn as the drummer for hair band Motley Crue. While Tommy Lee is usually the one doing the rocking, according to HR Hero he is now the one getting rocked . . . by employment law!
[Lee's former assistant] now complains that Lee denied him overtime despite being on call 24 hours a day and working up to 16 hours a day when Lee was on tour. He also claims that whenever Lee was upset with him, he would dock his pay. Further, the lawsuit alleges Sullivan often paid for supplies for Lee, his family, and his business but wasn’t reimbursed for the expenses. But perhaps the impetus for the lawsuit lies in Sullivan’s accusation that Lee smeared his reputation and interfered with his ability to get another job in the rock world. The lawsuit alleges that after Sullivan left Lee’s service, Lee began "a campaign of disparagement" that sabotaged potential tour manager jobs with the bands Bush and Godsmack.
Motley Crue to Bush to Godsmack - It's like he's working his way through the 80s, 90s, and 00s. I wish him well, and that he one day makes it to bands that are currently popular. HR Hero reports that the case settled for $400,000.

I promised you a double feature. The second act (headliner?) is Courtney Love of Hole. Eric Meyer has the scoop on a former assistant's lawsuit against Courtney Love. He points us to a San Francisco Chronicle article on the same.
[T]he rocker's former assistant [claims] that she is owed unpaid wages and was subjected to unethical requests such as instructing her to hire a hacker and falsify legal letters.
She filed a lawsuit based on wrongful termination, wage violations, and breach of contract.

Perhaps we should change the cliche to sex, drugs, rock 'n' roll, and employment law! Ok, maybe not.

Thursday, July 19, 2012

Sleeping at Work Probably Won't Help Plaintiff's Discrimination Claim

Last week, the Third Circuit released its opinion in Vasbinder v. Dept. of Veterans Affairs (opinion here).The plaintiff was a boiler plant operator,
responsible for continuously monitoring the plant’s equipment to prevent malfunctions that could result in explosions, property damage, interruptions of medical services, injuries, or fatalities.
Surely he took those responsibilities seriously right (hint: if his case is on this blog . . . well, I don't want to give it away just yet)?

Plaintiff alleges that he was demoted and denied an open position due to age discrimination and retaliation. But maybe the employer had a nondiscriminatory reason for these actions . . . like, maybe one day the plaintiff was the only one working at the plant and his supervisor:
found [Plaintiff] sleeping on the floor of the office, with a pillow, one or two blankets, and an alarm clock.
Yeah, that's not gonna help the ole' discrimination claim. The plaintiff claims he was just "relaxing." The Court checked the record for evidence of discrimination and pretty much came up empty. The Third Circuit affirmed summary judgment in favor of the plaintiff DEFENDANT (sorry, flipped the parties originally).

HT: Eric Meyer - His post on this case includes analogies to Homer Simpson and George Costanza, and includes music like Daydream Believer and Beds are Burning. Now that I think about it, my measly post pales in comparison . . . .

Image: Third Circuit seal is a public domain work of the federal government. Not official use.

Tuesday, July 17, 2012

PA Bill Would Prohibit "Pregnancy" Discrimination

Pennsylvania House Bill No. 2542 (text here) would add "pregnancy" to the list of protected classes under the Pennsylvania Human Relations Act (PHRA). The PHRA is Pennsylvania's version of Title VII, protecting individuals from employment discrimination. The proposed law would just insert "pregnancy" into the existing text, prohibiting discrimination
. . . because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability or pregnancy or the use of a guide or support animal because of the blindness, deafness or physical handicap of any individual or independent contractor . . . .
Question for strict textualists . . . does the pregnancy have to be "non-job related"? I'd love to litigate the case where that issue comes up! The bill also defines "pregnancy" as "women affected by pregnancy, childbirth or related medical conditions."

Back in 1978, the Pregnancy Discrimination Act amended Title VII to expressly define sex-based discrimination to include pregnancy. So, what's the point of the PA bill? It's tough to say. Title VII only covers employers with 15 or more employees, and the PHRA covers employers with 4 or more employees. I guess you could argue that the PHRA amendment covers those 4 to 14-employee employers. There are also some subtle nuances that make the PHRA a little different from Title VII (different damages, individual liability, etc.).

One HUGE note for employers though . . . pregnancy discrimination is already prohibited by the PHRA whether it expressly includes it or not! "Discrimination based on pregnancy constitutes sex discrimination . . . under the PHRA." Gallo v. John Powell Chevrolet, Inc., 765 F. Supp. 198, 209 (M.D. Pa. 1991); and H.S.S. Vending Distributors v. Pennsylvania Human Relations Comm'n, 639 A.2d 953, 954 (1994)(employer "terminated [Plaintiff's] employment because she was pregnant, in violation of the Pennsylvania Human Relations Act (Act)").

And, for comic relief, the Commonwealth Court's 1975 holding that the PHRA "requires that pregnancy be treated as any other disease." Unemployment Comp. Bd. of Review v. Perry, 349 A.2d 531, 533 (1975).

In any event, amending the PHRA to include "pregnancy" should have little practical effect. If you can think of any, drop me a comment because I'd love to know. I guess it doesn't hurt to expressly include it so that employers know their obligations (and employees know their rights). Now, we'll wait and see if it passes . . .

UPDATE: I guess the amendment would also remove the issue from the judiciary. In theory, a court could hold that pregnancy discrimination is not currently covered.

HT: The NEW! PBA Labor and Employment Law Section LinkedIn Group (ya gotta be a member to be a member, so sign up today).

Image: Personal photograph of the Capitol Building in Harrisburg, PA.

Friday, July 13, 2012

Is Your Job Too Hard? File a Lawsuit! - COTW #100

Cue the confetti - we have hit Lawffice Space employment law Case of the Week #100! And, it's a great case of the week. It might be one of the most ridiculous employment law cases ever . . . but maybe we shouldn't jump to conclusions.

The case is Armstrong v. I-Behavior, Inc. (complaint here). According to Above the Law:
Accountant Tammy Armstrong is claiming wrongful termination and intentional infliction of emotional distress because her employer asked her to do a lot of work. She also wants to be paid overtime because her employer had the audacity to claim her as a salaried worker and then paid her a salary. Basically, if she wins, then every single junior office worker in law or finance should be able to sue their employers.
And there's some support for that description. It's hard to believe that a "Senior Accountant" is not an exempt employee, and her allegations do appear to allege constructive discharge because her job was too hard. For example:
On August 2, 2011, fearing that the increasing stress and pressure placed on her by Defendant would cause her further and more severe heart problems, Ms. Armstrong was forced to resign her position in what amounted to a constructive discharge.
But let's give Ms. Armstrong the benefit of the doubt here. She also alleges that she was subjected to "verbal abuse" and "assault." She also claims her heart problems resulted in two trips to the emergency room, and her employer refused to engage in the "interactive process."

Sure, "working too hard" sounds like an awful basis for a lawsuit. But if she was indeed verbally abused and assaulted . . . well, that doesn't sound so ridiculous. And, if she has a serious heart condition, then her employer probably does have an obligation to engage in the interactive process. That doesn't mean they have to give her the accommodation she wants (or any accommodation for that matter), but they should at least attempt to resolve the problem.

I'm going to reserve judgment on this one . . . .

Thursday, July 12, 2012

Scranton, PA Becomes Employment Law Ground Zero

Scranton, PA is perhaps best known as the hometown of the fictional company Dunder Mifflin from The Office. It's actually a real town, and I have found that it has a certain charm. Recently, Scranton has drawn enormous media attention because its mayor cut all city employees' pay to minimum wage, $7.25/hour, because the city is out of money.

To absolutely nobody's surprise, this has led to lawsuits:
  • FLSA Overtime Lawsuit (complaint here): This is a collective FLSA action alleging that the city's employees are not receiving their overtime pay. The named plaintiffs are fire fighters, police, and public works employees.
  • Disability Benefits Lawsuit (complaint here): Under Pennsylvania's Heart and Lung Act, police officers and fire fighters can collect certain disability benefits when they are injured in the line of duty. This lawsuit, filed by police and fire fighters, claims the plaintiff had their disability benefits unilaterally cut to minimum wage without any type of due process (in violation of the Constitution).
  • Petition for Civil Contempt (available here): The workers file a petition for contempt against the city and mayor for violating a previously obtained preliminary injunction. The injunction provided in part that the city was prohibited from "reducing and/or withholding the wages of City of Scranton fire fighters, police officers and employees of the Department of Public Works below that specifically provided by the . . . collective bargaining agreements.
Those are the only worker lawsuits I'm aware of . . . for now. The mayor has his own lawsuit (complaint here) trying to compel city officials to "take immediate action regarding the passage of the Revised Recovery Plan." We'll see how this thing plays out . . . .

Image: I took that photo in Scranton, PA. It shows the Lackawanna County Courthouse (PA State Court) in the foreground and the Middle District of Pennsylvania (federal court) in the background.

Wednesday, July 11, 2012

Fired for WHAT!? - 7/11/2012

Welcome to another installment of Fired for WHAT!?, the top termination stories from around the web:
  • Fired for saving someone's life - This story has been all over the mainstream media - a beach lifeguard left his spot to save a man from drowning in an un-lifeguarded area of the beach. His employer immediately terminated him (and a few others either left in protest or were fired for saying they would have done the same thing). Everyone has been offered their jobs back - although the lifesaver says he's not going back.
  • Fired for banning cell phones in yoga class - A yoga instructor who taught classes at Facebook claims she was fired for her no cell phones policy. A class member complained and the instructor got fired. Her termination notice reportedly says, "Unless a client requires us to specifically say no to something, we prefer to say yes whenever possible" (insert eye-roll).
  • Who wants to get fired? - A new website called We Know What You're Doing pulls certain publicly available Facebook posts. The topics include drug use, hangovers, phone numbers, and "Who wants to get fired?", which apparently pulls variations on the "I hate my boss" theme. Some are more colorful than others. For example, right now we have "Well I hate my boss, He's a little bitch If he keeps it up, I'll make him quit Or I'll go crazy I'm going crazy."
If you have a great termination story, let me know! You can drop a comment below or hit me on Twitter (@PhilipMiles).

Monday, July 9, 2012

PA Judge Provides Social Media Discovery Rundown

In Trail v. Lesko (opinion here), Allegheny County Judge Wettick provided a great resource for anyone researching social media discovery issues. Judge Wettick authored a 20-page opinion, running through nine Pennsylvania state court decisions addressing discovery of social media in litigation:
[The Pennsylvania] Courts of Common Pleas that have considered discovery requests for Facebook information appear to follow a consistent train of reasoning. The courts recognize the need for a threshold showing of relevance prior to discovery of any kind, and have nearly all required a party seeking discovery in these cases to articulate some facts that suggest relevant information may be contained within the non-public portions of the profile. To this end, the courts have relied on information contained in the publicly available portions of a user's profile to form a basis for further discovery.
The opinion also covered other jurisdictions, including Michigan, Nevada, Indiana, Kansas, and New York. The Judge noted that "[u]nlike our Common Pleas Court cases . . . other jurisdictions have wrestled to establish a middle ground between the wholesale denial of the request on the one hand and the granting of unlimited access to the user's profile on the other."

So, what about Trail itself? Well, that's the funny thing . . . after the extensive rundown of cases, the issues in Trail are no-brainers with only brief analysis. Plaintiff's motion to compel discovery of the defendant's Facebook account was denied. The defendant had already conceded liability and admitted to driving with a .226% blood alcohol level (that's pretty drunk, FYI). So, what good would Facebook discovery do?

Defendant also had a motion to compel discovery of Plaintiff's Facebook account. This was likewise denied. The only support for the request was two undated photos that were not inconsistent with the plaintiff's injuries.

The analysis here probably doesn't break any new ground, but the opinion is still a great resource because of its in-depth look at existing case law in the area of social media discovery.

Image: Facebook logo used in commentary on Facebook.

Friday, July 6, 2012

SCOTUS Grants Cert. in FLSA "Pick Off" Case - COTW #99

The Supreme Court recently granted certiorari in Genesis HealthCare Corp. v. Symczyk and it's the employment law Case of the Week! You can read the 3d Circuit opinion here. I know what you're thinking . . . "hey, wasn't that Lawffice Space Case of the Week #57 back on September 8, 2011?" Yup! Read my analysis of the Third Circuit's opinion here.

Per the Petition for Cert., the Question Presented is:
Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff ’s claims.
This captures the flavor, but fails to explain what's really going on in this case.

Under the Fair Labor Standards Act (FLSA), plaintiffs can bring a "collective action." It's kind of like a class action, but it is governed by the FLSA, not Fed. R. Civ. P. 23 (governing class actions generally). Under the FLSA, plaintiffs must opt-in to the collective action.

Switching gears for a moment, under Fed. R. Civ. P. 68, a defendant can offer judgment to a plaintiff. Here, the defendant offered the initial plaintiff everything she could possibly claim in her lawsuit. Here's the important part: the defendant made the offer before any other plaintiffs had opted in to the FLSA collective action.

Under Article III of the Constitution, federal courts can only hear actual "cases" and "controversies." If the lead, and at the time only, plaintiff has no interest in the case (because she has already been offered everything she could possibly obtain through the lawsuit), is there really a case here? Or is it moot, and therefore ought to be dismissed?

The trial court said nope, get it outta here! The Third Circuit reversed, holding that you can't just pick off the lead plaintiff to destroy a potential collective action - ya gotta give people a shot to opt in (I'm sure both courts used proper English and not "outta" and "gotta," but you get the point). Now, the Supreme Court will decide.

Thursday, July 5, 2012

Social Media Privacy Protection Act Pending in Pennsylvania

The Social Media Privacy Protection Act (available here) is new legislation pending in the Pennsylvania General Assembly. The proposed legislation is a response to the near-universal outrage over employers requesting Facebook and other social media passwords from job applicants.

The Act is short and to the point. The primary prohibition is:
An employer may not request or require that an employee or prospective employee disclose any user name, password or other means for accessing a private or personal social media account, service or Internet website.
And thou shall not discharge, discipline, or penalize an employee (or threaten to do one of those things), or refuse to hire an applicant, for refusing to disclose the info.

Employers can still "promulgate and maintain workplace policies governing the use of an employer's electronic communication devices" and "monitor the usage of the employer's electronic communication devices." Also, employers are still free to check out info available "within the public domain." The penalty for a violation? Civil penalty up to $5,000.

Maryland has already passed similar legislation, which I covered here. There seems to be a consensus that demanding passwords is a bad idea, and there's a strong concern that requesting passwords may violate the Stored Communications Act. The Pennsylvania Act is in committee - no idea whether it will pass or not.

HT: PBA Labor and Employment section listserv (membership has its privileges!).

Image: Facebook logo used in commentary on Facebook.

Wednesday, July 4, 2012

Fourth of July Fun Facts

Happy Fourth of July! I'm taking a holiday, but here are some fun facts from previous Fourth of July posts:

  • The 4th marks the birth of our country . . . but July 4th is also the day that we lost some of our founding fathers, with some telling final words - July 4, 1826: Famous Last Words.
  • We all know July 4, 1776 was the day the Declaration of Independence was signed . . . right? Nope. Find out the true story here.
  • We think of the Declaration of Independence as the birth of our nation . . . but did you know that it is also America's first employment law?
I hope everyone has a happy Fourth.

Image: Personal photo of Independence Hall in Philly.

Monday, July 2, 2012

DOL Issues FMLA Guide

FMLA Employee GuideLast week, the Department of Labor issued the Family and Medical Leave Act Employee Guide. It's a helpful resource for employers and employees alike. Check out the flow charts! The guide is concise enough to serve as a quick reference, but detailed enough to touch on some of the finer points. For example, the guide offers a paragraph on "key employees" and military caregiver leave.

Jeff Nowak has more at FMLA Insights.