Tuesday, January 29, 2013

EEOC Releases Charge Statistics for FY 2012 - Flatline

The EEOC updated its table of charge statistics from FY 1997, now through FY 2012. You can read the press release here. Generally, the total number of charges flatlined, but edging ever-so-slightly downward. However, some categories still saw an increase in the past year, notably sex, disability, and retaliation. The "experts" attribute the overall decrease to the publication of Eric Meyer's blog . . . I remain skeptical.

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

Friday, January 25, 2013

BREAKING: DC Circuit Rules Obama NLRB Recess Appointments Unconstitutional - Lawffice Links

Welcome to the first ever "BREAKING" Lawffice Links! You may ask, "Phil, how can you be 'breaking' any news if there are already so many stories to link to?" Ummmmmm . . . shut up and read the Lawffice Links:
HT to Mike Chittenden who first alerted me to this important decision via email.

Voluntary Retirement and Unemployment Compensation - COTW #127

The Pennsylvania Supreme Court recently reversed existing unemployment compensation precedent in Diehl v. UCBR. The employer planned a reduction in force, including layoffs of 20 employees. The employee in this case was not one of them.

However, the employer offered incentives to senior employees to retire and save the jobs of more junior employees. The incentives included a few years of health insurance and a buyout of unused vacation time. The 63-year-old employee in this case accepted the voluntary retirement option.

Pennsylvania unemployment compensation law includes a voluntary layoff option (VLO) provision:
[A] claimant shall not be denied unemployment compensation benefits for “accepting a layoff, from an available position, pursuant to a labor-management contract agreement, or pursuant to an established employer plan, program or policy.”
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

Fired for What!? - Outsourcing His Own Job to China

He had it all figured out - his employer paid him hundreds of thousands of dollars a year as a software developer. Meanwhile, someone in China was capable of performing the work and willing to do the work for only $50,000 per year. Yup, Man Reportedly Outsources his Own Job to China, Watches Cat Videos.

Unbeknownst to his employer, someone in China did all the work while the employee spent most of his time checking out cat videos, Facebooking, and surfing eBay. He pulled in a few hundred thousand dollars for his effort (somehow "effort" seems like a strong word here). The employer eventually caught on when they noticed that someone from Shenyang, China was logging into their network every day. Then they found the invoices from China on the employee's computer and terminated him.

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

DOL Issues Guidance on FMLA for Adult Children

Most people know that FMLA covers leave to care for a son or daughter who is under 18 and has a serious health condition. But, did you know that FMLA also covers a child who is "18 years of age or older and incapable of self-care because of a mental or physical disability?"

Last week, the Department of Labor issued its first Administrator's Interpretation of the year. In Administrator's Interpretation 2013-1, the Department addressed FMLA for adult sons and daughters. In summary:
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:
(1) has a disability as defined by the ADA;
(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

SCOTUS Grants Cert. in "Mixed Motive" Retaliation Case

On Friday, the Supreme Court granted certiorari in Univ. of Texas Sw. Med. Ctr. v. Nassar (SCOTUSblog page here). Please take a moment to admire the immaculate use of proper Bluebooking abbreviations (yes, I literally opened the online Bluebook to get it right - just for you).

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

Teacher Sues Because She's Scared of Kids - COTW #126

An Ohio teacher sued her employer because her phobia forced her to retire. What is she scared of? You guessed it (or just read the title): children. The Harrisburg Patriot News reports, Ohio teacher sues, claims firing over her phobia: fear of young children.

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

Flatulence Warning Withdrawn

I strive to bring you the important employment law decisions from around the country. I'm not gonna lie . . . this isn't one of them. But, it's too funny to ignore. The ABA Journal reports that the Social Security Administration withdrew its disciplinary letter accusing an employee of hostile flatulence in the workplace (yes, you read that correctly).

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.

Friday, January 11, 2013

Filming Police Encounter . . . A HIPAA Violation? - COTW #125

The St. Paul Pioneer Press reports Little Canada man videotaped sheriff's deputies, and got charged for it (HT: Volokh Conspiracy). A man recorded an encounter between police and a bloody-faced man outside of his apartment building. The police officer confiscated the camera, allegedly stating that she was just taking it for "evidence." The filmer was later charged with obstruction of legal process and disorderly conduct.

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?" Absolutely Nope, it's a solid reminder about one of the first things you should do when accused of violating a law: Check to see if the law even applies to you! Or, in HIPAA parlance, are you a "covered entity?" Also, some of you may remember that I have a personal interest in the right to photograph and film public places!

Thursday, January 10, 2013

Shameless Plug: Medical Records Law Seminar

Just a quick entry to announce that I will be speaking at the Lorman Medical Records Law Seminar in Altoona, PA on January 31, 2013. Click here for info and registration. I will be speaking from 10:45 to 12:15 on:

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.

Is Vegan a Religion Under Discrimination Law?

In yesterday's post, I addressed an employer's duty to accommodate employees who object to vaccines for religious reasons. That post was inspired by Chenzira v. Cincinnati Children's Hospital in which an employee was terminated for refusing to get a flu shot because she was a "Vegan." She filed a religious discrimination lawsuit . . . but is "Vegan" really a religion?

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.

I should also point out that religion and dietary restrictions are often intertwined. Don't eat pork, fast on certain days, only eat food that has been blessed a certain way . . . or, as a Catholic, my personal favorite: eat McDonald's Filet-O-Fish every Friday during Lent (not sure that's the exact rule). Here, the employee specifically cited the Bible in her request for accommodation. Pro tip: if the employee cites the Bible in an accommodation request, then I'd probably treat it like a religious accommodation request. Now, that's not to say you can't argue it's not really a religious accommodation request come litigation time.

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:
 . . . and about a million other bloggers.

Image: Lettuce from Wikipedia under Creative Commons License.

Wednesday, January 9, 2013

Vaccination Accommodation

Sometimes employers require their employees to get certain vaccinations, such as a flu shot. In Chenzira v. Cincinnati Children's Hospital, the employer terminated an employee who refused to get vaccinated for the flu. The employee refused to get the shot because she is a vegan and filed a religious discrimination lawsuit after she was fired.

Many bloggers have focused on whether "vegan" is really a religion (a topic I'll hit in a later post), but I wanted to hit a different issue: Are employers required to give employees a "pass" on vaccine requirements if they object on religious grounds? This issue also pops up when employees have a disability that precludes them from receiving the vaccine.

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

Fired for What!? - Armani, Ketchup on Cheesesteaks, and Peeing Too Much

The first Fired for What!? of 2013 is a triple feature! Enjoy:
  • 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.
Never a dull moment!

Friday, January 4, 2013

Court OKs Firing "Irresistible" Woman - COTW #124

In Nelson v. Knight, the Iowa Supreme Court endeavored to determine whether "a male employer [can] terminate a female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee." To the surprise of many mainstream media outlets, the Court held that this is A-OK.

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

Lawffice Links - While I was Out . . .

I took a brief break over the holidays, but I didn't completely ignore the blog. I stayed busy baking up some fresh Lawffice Links to cover the time I was out:
Happy 2013! Drop a comment if you have any newsworthy events from the last week or so, or just want to let me know what you did over the holidays.

Wednesday, January 2, 2013

Top Posts and "Case of the Week" for 2012

After a brief blogging hiatus over the holidays, I'm back for 2013. Before I officially kickoff the 2013 blogging, let's see what sold in 2012 (and by "sold" I mean the blog entries drawing the most hits)

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!