Image: EEOC logo used in commentary on EEOC. Not official use.
Tuesday, January 29, 2013
Image: EEOC logo used in commentary on EEOC. Not official use.
Friday, January 25, 2013
- Eric Meyer's The Employer Handbook - Holy smokes! As in, up in smoke for Obama's Labor Board selections
Long-standing precedent had applied this provision narrowly so as to exclude permanent separation in exchange for consideration from the employer.
Well, kiss that precedent goodbye. In a 5-3 decision (Justice Orie Melvin did not participate), the Pennsylvania Supreme Court held:
[W]e overrule the longstanding interpretation of the Commonwealth Court precluding employees who accept their employer's early retirement packages from receiving unemployment compensation benefits. We instead conclude that the VLO Proviso of Section 402(b) of the Unemployment Compensation Law, 43 P.S. § 802(b), applies to an “otherwise eligible claimant” who accepts an early retirement plan offered pursuant to an employer-initiated workforce reduction. See 43 P.S. § 801.The case was remanded - I assume to determine whether the employee was "otherwise eligible."
Wednesday, January 23, 2013
While the employee took slacking to brave new heights, he left a lot of room for improvement. For example, he could have negotiated the opportunity to "work from home" (I mean, if his work can be done from China then surely he could telecommute, right?). And then, he could do anything he wanted - presumably, something cooler than watching cat videos. If he really wanted to raise the bar, then why stop at one job? With somebody else doing all the work, he could easily hold down five or six jobs and make a killing!
HT: Derek Bottcher (.vcf), my Mason Law classmate and currently an employment lawyer at Cooley.
UPDATE (1/23/2013): It turns out the employee was a little smarter than I gave him credit for! From a different article:
[H]e also padded his income as a contract worker for other local firms, for which he also relied on his Chinese outsourcing arrangement.So, he did pick up some extra income! (HT - Greg Mankiw via email from my father)
Tuesday, January 22, 2013
A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:
(2) is incapable of self-care due to that disability;
(3) has a serious health condition; and
(4) is in need of care due to the serious health condition.
It is only when all four requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter.Read the full document for details on the individual elements. Now might be a good time to dust off your FMLA policy to see if you have this covered.
Image: DOL logo used in commentary on DOL. Not official use.
Monday, January 21, 2013
Per the Petition for Certiorari, the question presented is:
Whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).In other words, does Title VII retaliation require "but for" analysis (like Gross v. FBL under the ADEA) or "mixed motive" analysis (like Price Waterhouse v. Hopkins under Title VII discrimination provisions).
The Petition notes a 3-2 circuit split on the issue. This case could mark a huge expansion of Gross v. FBL's reach. In the words of Judge Easterbrook, applying Gross, "unless a statute (such as the Civil Rights Act of 1991) provides otherwise, demonstrating but for causation is part of the plaintiff’s burden in all suits under federal law." Fairley v. Andrews, 578 F.3d 518, 525–26 (7th Cir. 2009) (emphasis added). We may find out if Judge Easterbrook is right . . . .
Friday, January 18, 2013
She taught Spanish and French in high school for about 33 years. Then, the school transferred her to middle school where the kids are smaller . . . and apparently scarier (to her at least):
She was "unable to control her blood pressure, which was so high at times that it posed a stroke risk," according to the lawsuit, which includes a statement from her doctor about her high blood pressure. "The mental anguish suffered by (Waltherr-Willard) is serious and of a nature that no reasonable person could be expected to endure the same."The school claims it was just killing the high school French program (in favor of online courses), and my favorite defense argument of all time: "She wants money." Yeah, that's pretty much why people file lawsuits (I know, I know, there are a few exceptions). Of course, the school could probably settle the lawsuit, or have just kept paying her to teach French courses except that it didn't want to spend the . . . yup, money.
In any event, the case is headed to trial where I think the plaintiff faces an uphill battle. There's a strong, "gimme a break" factor to this one even if she really does have this phobia. We'll see though . . . .
Tuesday, January 15, 2013
The 5-page letter itself is a masterpiece and I beg you to read the whole thing:
[Y]our coworkers were complaining about your flatulence in the workplace and went on to state that it was the reason none of them were willing to assist you with your work.By far, the best part is a chart showing the dates and times of approximately 60 "events."
On an unrelated note: The thrill of victory - Lawffice Space is the featured blog on the ABA Journal right now! . . . . The agony of defeat - Lawffice Space finished 4th in the final Blawg 100 voting. Of course, it was an honor to make the Blawg 100 cut as one of only six employment law blogs and thanks to those of you who voted. And, congrats to Molly DiBianca and the Delaware Employment Law Blog gang for a stunning come from behind victory to take first place.
Posted by Philip Miles at 8:18 AM
Friday, January 11, 2013
What possible justification could the police have for such an action? Did you say HIPAA? Probably not, because that wouldn't make any sense . . . wait . . . oh dear:
The deputy wrote on the citation, "While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson."Let's see what a Stanford law professor has to say about that:
The allegation that his recording of the incident violated HIPAA . . . is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.
The rule deals with how health care providers handle consumers' health information.
"There's nothing in HIPAA that prevents someone who's not subject to HIPAA from taking photographs on the public streets," Granick said. "HIPAA has absolutely nothing to say about that."That sounds about right to me.
Now, you may be thinking "Phil, what does this have to do with employment law? Wait, is this just another shameless ploy to promote your Medical Records Law seminar?"
Thursday, January 10, 2013
Employers, Employees, and Medical Records Requests
- Family and Medical Leave Act (FMLA) – Serious Health Condition Certification
- Americans With Disabilities Act (ADA) – Disability Confirmation and Reasonable Accommodations
- Genetic Information Nondiscrimination Act (GINA)
- Health Care Providers as Employers
- Fitness for Duty Certifications
- Litigation Discovery and Subpoenas
Jon Stepanian, my colleague and author of Defense of Medicine, will also be speaking.
Posted by Philip Miles at 9:59 PM
The EEOC defines religious beliefs to "include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." 29 C.F.R. § 1605.1. I think that covers some vegans and vegetarians who have moral objections to the treatment of animals.
The Court agreed, by holding that the plaintiff could move forward with her claim. However, this is only the motion to dismiss phase so the Court only held that it was plausible that she held her beliefs about veganism with a conviction equivalent to religion.
Bottom line: it's not enough to just ask "is Vegan a religion?" If the aversion to animal products is part of a set of religious beliefs then yes, it probably is a religion. If the individual has really strong beliefs on the subject even if it's not part of a specific recognized religion, then yes it is still probably a religion. On the other hand, if the employee just thinks "meat tastes icky" and cheats and has a burger now and then - or when it's something really important like a sweet new leather purse . . . then it's probably not a religion.
Enjoy some on-point links from around the blogosphere:
- Religious Accommodation Required for an Employee's Veganism? Maybe by Eric Meyer
- Firing "Religions" (Veganism) Raise Interesting Problems for Accommodation Requests by Jon Hyman
- 3 Employer Bummers including Veganism a "Religion" by Robin Shea
- Veganism Considered Equal to Religion in Employment Discrimination Lawsuit. Sorta Maybe for Now by Jason Das
- Court Holds Veganism Could Plausibly be Held a Religious Belief by Jamie Laplante
Image: Lettuce from Wikipedia under Creative Commons License.
Wednesday, January 9, 2013
In this case, the employer was a hospital. The Court issued an opinion (linked above) refusing to dismiss the claim. Now, it is important to remember that a motion to dismiss is just about the lowest hurdle a plaintiff has to clear. As the Court recognized:
The Court’s ruling in no way addresses what it anticipates as Defendant’s justification for its termination of Plaintiff, the safety of patients at Children’s Hospital. At this juncture there simply is no evidence before the Court regarding what, if any, contact Plaintiff might have with patients, and/or what sort of risk her refusal to receive a vaccination could pose in the context of her employment.If I were a betting man, I'd guess that the employer will ultimately win this one but at a fairly significant cost (litigation is not cheap).
The inquiry is context-specific. So, while a hospital might have a really strong health and safety argument, an employee who telecommutes from a plastic bubble in his home has a pretty strong argument that the employer has a duty to accommodate him by giving him a pass on the flu shot.
If you're an employer that requires vaccines and an employee requests an exemption from the requirement based on religion or another protected characteristic - recognize that even a hospital (at least in this case) couldn't get the lawsuit tossed at the motion to dismiss stage. So, there might be some pretty serious litigation costs heading your way. Of course, the health and safety concerns may still outweigh the risk of litigation.
HT: Eric Meyer on The Employer Handbook.
Image: Syringe from Wikipedia under Creative Commons License.
Tuesday, January 8, 2013
- Impersonating Armani on Facebook - "A Marion County Deputy was fired Wednesday for pretending to be fashion designer Giorgio Armani on Facebook and using the account to pick up a teenager, an internal investigation released Thursday shows." The article is a little unclear, but it sounds like he used the "Armani" account to convince a girl he was a fashion model so he could sleep with her - sadly, it apparently worked. (HT: @Eric_B_Meyer).
- Peeing Too Much - Amazingly, an employer allegedly terminated a pregnant employee because she was taking too many bathroom breaks during her pregnancy. We probably all agree that this is terrible practice, but is it unlawful? Generally, employers are not required to provide pregnant employees with accommodations - but they are required to accommodate pregnancy-related conditions that constitute disabilities under the ADA. These are tough cases for both sides - my take is that employers should just be reasonable and provide simple accommodations like bathroom breaks. (HT: Jennifer White).
- Sandwich Artist Threatens Customer Over Ketchup - Gawker has a funny defense of a Subway "Sandwich Artist" who was ready to throw down to defend the integrity of . . . the cheesesteak!? When a customer tried to get ketchup on his cheesesteak, the employee allegedly kicked over a chair and tried to fight him. He also told him "there's ketchup three aisles down" - get your own ketchup! I'm going to side with the employer on this one.
Friday, January 4, 2013
The male (and married) employer ran a dental office, and the employee was a female (also married) dental assistant. Although the facts do not include any allegations of an actual romantic relationship between the two, there was some . . . err, "questionable" conduct.
The employer complained to the employee that her clothing was "too tight and revealing" and (cringe-alert) "he once told [her] that if she saw his pants bulging, she would know her clothing was too revealing." The employer also, "once texted her to ask how often she experienced an orgasm." For the employee's part, she "allegedly made a statement regarding infrequency in her sex life." But this is not a harassment suit, it's a disparate treatment suit.
The employer's wife objected to what she perceived as the employee's flirting, frequent text messages, clothing, and coldness to her. Eventually the wife insisted her husband terminate the employee because "she was a big threat to our marriage." So he did.
At one point, the Court restates the issue presented as whether an employee "may be lawfully terminated simply because the boss views the employee as an irresistible attraction." The Court relied on non-binding precedent differentiating relationship-based termination from gender-based termination. Ultimately, the Court concluded:
[W]e ultimately think a distinction exists between (1) an isolated employment decision based on personal relations (assuming no coercion or quid pro quo), even if the relations would not have existed if the employee had been of the opposite gender, and (2) a decision based on gender itself.Summary judgment for the employer affirmed. I should note that the employee was replaced with another woman, which bolstered the employer's defense.
Now, I know how you all think . . . "Irresistible? I'll be the judge of that!" Well, here's a video featuring an audio interview and still pictures of the employee.
Thursday, January 3, 2013
- What did I do? Hung out with my family, watched the entire Dark Knight Trilogy, and read The Hobbit (haven't made it to the theatre to see the movie version yet). I haven't read it since I was in about 4th grade . . . I didn't remember there being so much singing - is the new movie a musical?
Wednesday, January 2, 2013
The most popular entry of the year was EEOC and NLRB Tag Team Workplace Investigations. It's easy to see why this was so popular - it had the two big federal employment law agencies, a new development in enforcement strategy, and it impacts something that almost every employer does from time to time - workplace investigations.
Falling just a few clicks short of the title was the Saved by the Bell Employment Law Blog Carnival. What can I say? People love the Bell! Of course, it didn't hurt that it was a blog carnival featuring great posts from many of the best employment law bloggers out there (and I'm sure they helped spread the word).
Finally, I would like to recognize the top "Case of the Week" for 2012. In a runaway, it was Is Your Job Too Hard? File a Lawsuit! (COTW #100). Before you quit your job and run to the courthouse, read the entry. The plaintiff's claim is a little more complicated than the title lets on.
I hope you enjoyed 2012, and I'm looking forward to 2013. Happy new year!
Posted by Philip Miles at 8:44 AM