Thursday, February 28, 2013

Fired for What!? - Don't Lick the Mashed Potatoes (& More!)

Here are three quick Fired for What's!? to get you through the week:

Don't Lick the Mashed Potatoes - A KFC employee was fired for posting a picture of herself licking (or pretending to lick?) a bin of mashed potatoes on Facebook. Random gripe: State College no longer has any KFCs. This has greatly diminished my quality of life. Could somebody please rectify this problem?

Voting for Obama - An Ohio woman filed a lawsuit claiming that she was fired right after the election because she voted for Obama. I'm not sure that's even a valid cause of action - but I guess we'll find out.

Bitter Barista - A Seattle coffee shop fired an employee over his blog, It's pretty much a list of random gripes and digs at customers from the barista's point of view. Ya mean the coffee shop didn't like that? Shocker. In his defense though, it's actually pretty funny.

Wednesday, February 27, 2013

U.S. Steel Alcohol Tests Win in Court

I had a speaking engagement yesterday evening and another one on Thursday, so my blogging will be a little light this week. I did want to toss this story out there though: Judge Throws Out EEOC Case Over Alcohol Tests at U.S. Steel.

A federal judge in W.D. Pa. threw out a "case the commission (EEOC) brought against U.S. Steel Corp over random alcohol testing for new employees at a plant in western Pennsylvania." An employee filed a lawsuit claiming that she was dismissed for a false positive caused by her diabetes. USS settled the individual case, but the EEOC continued its claims against the policy.

As I have mentioned previously, I interned at U.S. Steel in 1999. The plant in question is one of three in the "Mon Valley Works." I worked at one plant (Irvin) and toured another (Edgar Thomson) but have never been to this specific plant. That said, based on my experience in the other two (which was about 14 years ago) - they can be very dangerous! The thought of somebody operating that kind of machinery (or even being around it) while drunk or "buzzed" is horrifying. So, I can certainly understand why USS would want to take the precaution.

HT to Mike Chittenden vie email, and for some more analysis on the topic, check out Robin Shea's post: I'll be darned! Court finds that random alcohol tests don't always violate the ADA.

Friday, February 22, 2013

"No African American Nurse to Take Care of Baby" - COTW #131

The Case of the Week is Battle v. Hurley Medical Center (complaint)(HT: Jon Hyman). A nurse filed a lawsuit against the hospital for accommodating the requests of a racist patient.

The African American plaintiff was a nurse, caring for an infant. The infant's father allegedly requested to speak with the nurse's supervisor:
The father told the Charge Nurse that he did not want any African Americans taking care of his baby. While telling the Charge Nurse, he pulled up his sleeve and showed some type of tattoo which was believed to be a swastika of some kind.
Amazingly, instead of telling this guy "tough luck" (or some variation thereof), the hospital allegedly accommodated his request! The Complaint claims the hospital reassigned the baby to another nurse. And, just when you think it can't get any worse, they then allegedly put a sign on the baby's clipboard that read "NO AFRICAN AMERICAN NURSE TO TAKE CARE OF BABY."

As Jon Hyman pointed out in his post on this case - customer preferences generally do not provide cover for race discrimination in the workplace. If the allegations are true, it could be a tough round of litigation for the hospital.

Thursday, February 21, 2013

New FMLA Forms!

Hot off the presses - new FMLA forms!

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility and Rights & Responsibilities *
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency For Military Family Leave *
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave *
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave *

  • * Notes that the form is marked as Revised February 2013.

    Of course, you shouldn't need me to tell you when new forms come out. Instead, go to DOL's Family and Medical Leave Act page whenever you need a form. That way, you'll be sure you're using the latest and official form. There are few areas of employment law in which the government just tells you "here's a form that works - use this one!" Take advantage of it when it's available.

    HT: Molly DiBianca

    Image: DOL seal used in commentary on DOL. Not official use.

    Wednesday, February 20, 2013

    SCOTUS Grants Cert. in FLSA "Changing Clothes" Case

    Yesterday, the Supreme Court granted certiorari (i.e. decided it will hear the case) in Sandifer v. U.S. Steel (SCOTUSblog case page). Once upon a time, I was an intern at U.S. Steel - I worked in computer support, riding around a steel mill on a golf cart with a hard hat and flame retardant jacket fixing computers . . . but I digress. Per the Petition for Writ of Certiorari, the question presented is:
    Under the Fair Labor Standards Act, the period of time during which a covered employee must be paid begins when the worker engages in a principal activity. Donning and doffing safety gear (including protective clothing) required by the employer is a principal activity when it is an integral and indispensable part of the activities for which the worker is employed. Such requirements are common in manufacturing firms. However, under section 203(o) of the Act an employer need not compensate a worker for time spent in “changing clothes” (even if it is a principal activity) if that time is expressly excluded from compensable time under a bona fide collective bargaining agreement applicable to that worker. The interrelated questions presented are:
    (1) What constitutes “changing clothes” within the meaning of section 203(o)?
    (2) If a worker’s actions are a principal activity but fall within the scope of the section 203(o) exemption, do those actions nonetheless commence the period of time during which (aside from the clothes-changing time)the worker must be compensated?
    (3) If a worker engages in a principal activity which is not exempted by section 203(o), but which involves only a de minimis amount of time, does the activity nonetheless commence the period of time during which the worker must be compensated?
    Don't get too attached to questions 2 and 3 though . . . per the Supreme Court's Order: "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition." No date set yet, but it should be in the October 2013 term.

    Sidenote: Walker Lawrence, one of the employment lawyers on my Twitter emplaw list, is on the Petition for Writ of Certiorari. Congratulations! Follow him for updates on FLSA issues and other employment law goodness.

    Friday, February 15, 2013

    Attorney Bills Time . . . for Billing his Time - COTW #130

    The Supreme Court of North Dakota suspended an attorney for engaging in a number of questionable practices, including:
    [F]ailing to timely respond to his clients' request for information concerning the status of the bankruptcy and for a bill; charging unreasonable fees when Kitchen's bill included an hour of time to retrieve the file from storage and six hours of time to prepare the bill itself; failing to maintain the requisite degree of documentation to permit identification of trust account transactions and the periodic balances on hand for each client; failing to submit the requisite records to the Wisconsin Office of Lawyer Regulation to assist in its investigation; and misleading the Wisconsin Office of Lawyer Regulation by suggesting on several occasions that he was sending the necessary documentation but later conceding that he did not have it.
    I see . . . so seven hours to pull the file and prepare the bill!? Apparently that's frowned upon in North Dakota. I'm hardly an expert in 50-state law regarding the rules of professional conduct, but I can't imagine that flies anywhere.

    HT: Legal Profession Blog - Billing Six Hours for Preparing Bill is Unreasonable.

    Wednesday, February 13, 2013

    Obama's State of the Union 2013 and Employment Law

    I confess, I missed most of President Obama's state of the union address last night. Fortunately, there's a transcript here. He did touch on a few employment law issues.

    First, he halfheartedly threw a nod to the Paycheck Fairness Act in just one sentence of the speech:
    And I ask this Congress to declare that women should earn a living equal to their efforts, and finally pass the Paycheck Fairness Act this year.
    I'm not really sure how the PFA gauges earnings and efforts, let alone makes them equal - but I guess his speechwriters thought it sounded nice. The actual aim is to combat sex-based pay discrimination - i.e. it's okay to underpay - as long as you underpay everyone equally!

    President Obama also promoted an increase in the federal minimum wage:
    Tonight, let's declare that in the wealthiest nation on Earth, no one who works full-time should have to live in poverty, and raise the federal minimum wage to $9.00 an hour . . . . So here's an idea that Governor Romney and I actually agreed on last year: let's tie the minimum wage to the cost of living, so that it finally becomes a wage you can live on.
    That's a 24% increase in case you were wondering. I found it odd that he wants to implement a national minimum wage while seeking to tie that wage to the cost of living. If you really think the minimum wage should correlate to the cost of living, then why would you (just to use an extreme example) implement the same minimum wage in Millheim, Pennsylvania (low cost of living) as Manhattan, New York (high cost of living)? Or would the federal minimum wage be variable based on some local measurement of the cost of living?

    Realistically, I see little chance of either the minimum wage hike or the Paycheck Fairness Act passing the House of Representatives. But, stranger things have happened (plus, elections are just two years away!).

    Monday, February 11, 2013

    Proposed PA Legislation Would Make Online-Only Job Applications Unlawful

    The Pennsylvania Human Relations Act (PHRA) is Pennsylvania's employment discrimination statute. A new House Bill, HB 579, would amend the PHRA to define unlawful discriminatory practices to include employers that:
    Print, publish or advertise in any way a job opportunity in this Commonwealth that exclusively utilizes an Internet-based application for employment.
    It's not clear whether it has any chance of passing.

    HT: PBA Labor & Employment Law Section on LinkedIn.

    Friday, February 8, 2013

    3rd Circuit on Continuing Violation - COTW #129

    The Third Circuit recently issued a precedential opinion in Mandel v. M&Q Packaging Corp., analyzing a number of sex discrimination issues. Of particular interest, the Court addressed the continuing violation theory of hostile work environment sex discrimination under Title VII.

    The plaintiff allegedly suffered a parade of horribles over many years of employment. Just some of the highlights:
    Mandel claimed that, throughout her employment [she was] referred to as “woman,” “darling,” “the woman,” “fluffy,” “missy,” “hon,” and “toots”; having her body, clothing, and physical appearance commented on; being told that she was “foolish not to use [her] assets”; being told by Systems Manager David Benetz, when she asked for directions to a meeting at corporate headquarters, that “[f]or you . . . the meeting will start at my house tonight and we will conclude our part of it tomorrow morning  – maybe . . . we may need to postpone the meeting with everyone else a few hours to finish up . . .”; being told by Quality Manager Harold Brenneman that he fantasized about her while he was having sex with his wife; . . . [and] being told to clean the bathroom and make coffee.
    One more thing . . . and it turns out to be a very important thing:
    On April 6, 2007, during a meeting regarding sample orders, Bachert became angry, repeatedly called Mandel a “bitch,” and screamed “shut the fuck up.”
    Why is this important? Well, the plaintiff faced a statute of limitations problem . . . as in, almost all of the allegations took place outside of the statutory period for bringing a Title VII claim. However, the Court reminds us of the "continuing violation" theory:
    Under the continuing violation doctrine, discriminatory acts that  are not individually actionable may be aggregated to make out a hostile work environment claim . . . . [P]laintiff must show that at least one act occurred within the filing period.
    Hmmm, and how does the continuing violation doctrine apply to this case?
    Mandel has alleged at least one act that falls within the statute of limitations (i.e. Bachert calling her a “bitch” during a meeting), and many of the acts that  occurred prior to the  applicable limitations period involved similar conduct by the same individuals, suggesting a persistent, ongoing pattern.  We will, therefore, remand the case to the District Court for further proceedings, including a determination of the  scope of the incidents properly considered part of the continuing violation for the hostile work environment claim.
    And now you see why that one incident suddenly becomes very important. It effectively brings in the preceding offensive conduct that would otherwise have fallen outside of the statute of limitations. The Court directed the district court to analyze whether a hostile work environment existed by examining the "totality of the circumstances" instead of "pars[ing] out each event and view[ing] them separately." That last blow-up may wind up costing the employer dearly. At the very least, it has dragged this case out with a remand to the district court.

    Molly DiBianca has a post on this case, analyzing whether the final name-calling could constitute constructive discharge: 3d Cir. Issues a Bitchin' Constructive Discharge Decision.

    Wednesday, February 6, 2013

    Fired for What!? - "Fat Butt Obama", CarlyCrunkBear, and 10% to God

    I think this may be the best Fired for What!? lineup of all time - although, in the interest of full disclosure I must note that two of them are merely "suspended for what's" right now.

    10% to God - A pastor, upset that an 18% gratuity had been suggested on his Appelebee's bill, reportedly wrote on his receipt "I give God 10% why do you get 18." The waitress posted it to Reddit and was later fired. This is just social media for employees 101 - don't mock customers online, especially by sharing information that most people consider private.

    "Fat Butt Michelle Obama" - Hey, don't shoot the messenger! I'm just telling you what a high school football coach was recorded saying in his classroom. The school suspended him for 10 days.

    Carly Crunk Bear (may not be safe for work) - She's a teacher who was suspened over her Twitter account, but apparently she is extremely popular with her students. I wonder why? Maybe it's because her Twitter account includes topless photos, marijuana references (and a picture of what looks like a joint), and an instant Internet classic - a photo of her doing a bizarre headstand in her underwear. Apparently naked women and pot are popular amongst high school kids . . . who knew? The saga has spawned the Twitter hashtag #FreeCrunkBear.

    Free slang lesson for the day: "Crunk" is that special kind of buzz you can get only by smoking marijuana ("chronic") and getting drunk. Chronic + Drunk = Crunk.

    Tuesday, February 5, 2013

    Why the DC Circuit's NLRB Recess Appointments Decision Affects (Almost) Everyone

    By now, you've probably already heard that the DC Circuit Court of Appeals held that President Obama's NLRB "recess" appointments were unconstitutional. Yesterday, Dan Schwartz downplayed the importance of the decision. He raised some good points, including that most employers don't deal with the NLRB, the DC Circuit's decision is not binding in other circuits, and he noted the waning influence of unions generally. True, true, and true . . . but, I have some counterpoints:

    1. The NLRA Affects (Almost) Every Employer
    The NLRA has many union rules, but it also protects concerted activity aimed at addressing terms and conditions of employment at almost all private non-union employers.

    2. The DC Circuit is Not Just Another Circuit Court
    I am in the Third Circuit. Yes, it's true that the DC Circuit's decision is not binding precedent in the Third Circuit, but (and this is a HUGE but), the NLRA provides:
    Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside.
    29 U.S.C.A. § 160. In other words, if you get an NLRB decision you don't like, you can appeal it to your home Circuit, OR the DC Circuit . . . which is now a magical place where NLRB decisions are dead on arrival (I think appellants will be smart enough to adjust their appellate strategy accordingly).

    3. This Creates a Circuit Split on the Issue
    The DC Circuit's opinion acknowledges that it is splitting with the Eleventh Circuit. Why does that matter? It greatly increases the chances that the Supreme Court will decide this issue (which would be binding on everyone). In fact, Paul Clement just asked the Supreme Court to review this issue yesterday (in a case entirely unrelated to the DC Circuit case).

    4. It's Not Just About the NLRB
    The DC Circuit's decision was much broader than just striking Obama's appointment of NLRB members during a pro forma session of Congress. If the Supreme Court adopts the DC Circuit's reasoning, it would render all intrasession recess appointments unconstitutional. This would shift the balance of power between the executive and legislative branches in appointment battles.

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

    Friday, February 1, 2013

    Self-Employment Disqualification for Unemployment Compensation - COTW #128

    The Pennsylvania Commonwealth Court gave us a helpful reported unemployment compensation opinion in Lello v. UCBR.

    Generally, an unemployment compensation claimant in Pennsylvania is ineligible for benefits if he or she is "self-employed." However, there is an exception for "sideline" activity if the employee satisfies the Kress test:
    (1) the self-employment began prior to the termination of the individual’s full-time employment;
    (2) the self-employment continued without substantial change after the termination;
    (3) the individual remained available for full-time employment; and
    (4) the self-employment was not the primary source of the individual’s livelihood.
    The Lello opinion provides a nice analysis of the self-employment UC issue. The case also emphasizes that the focus of the second prong is the amount and nature of the work performed - not the amount of income (if any) earned.

    Lello was performing some freelance Internet work prior to his termination, but he wasn't getting paid. After his termination, he began receiving income but still did the same type of work and for the same few hours a week. Thus, he was eligible for benefits.