Friday, September 27, 2013

EEOC Sues Bank for Same-Sex Sexual Harassment - COTW #162

When you hear the phrase "sexual harassment", who do you think of as the harasser? The harassee? I think most people jump to the harasser being a man and the harassee being a woman. But, anyone who has seen Disclosure (nothing like a pop culture reference from 20 years ago!) knows that it's still sexual harassment if it's a woman harassing a man.

What if the harasser and the harassee are the same sex though? What if the harasser is a woman, allegedly sexually harassing an entire class of all women? You probably guessed it . . . it's still sexual harassment!

The EEOC issued a press release this week, announcing a new same-sex harassment lawsuit: EEOC Sues Wells Fargo for Same-Sex Sexual Harassment Female Manager Sexualized Workplace, Employee Forced to Quit to Escape, Federal Agency Charges. According to the release:
[F]our female bank tellers employed at a Reno, Nev., Wells Fargo branch regularly faced graphic sexual comments, gestures and images from a female service manager and another female bank teller. The harassment included invasive comments about their bodies and sex lives as well as inappropriate touching and grabbing. The EEOC also charges that the service manager suggested that the female bank tellers wear sexually provocative clothing in order to attract or retain customers and to advance in the workplace.
Same-sex harassment cases are starting to get more attention. Employers should not dismiss claims of sexual harassment just because the harasser and harassee are the same sex.

Thursday, September 26, 2013

Lawffice Space Ranked #10 Employment Law Blog

Hot off the presses! Straight from the shameless self-promotion department! Check out the Paralegal 411 Top 25 Employment Law Blogs. Coming in at number ten . . . do I even have to say it? . . . Lawffice Space.

There are several blog rankings floating around the Internet. Paralegal 411 seems to have some method to their madness:
We ranked the top 25 employment and labor law blogs based on their website popularity metrics including the number of websites linking to them, Google Page Rank, website authority, and Twitter followers. These blogs provide a wealth of information for students interested in the legal field or anyone seeking information about key employment law issues.
Sounds good to me. I'm also comforted by looking at the other blogs on the list, which includes most of my favorites.

Image: Paralegal 411 logo used in commentary on Paralegal 411.

Wednesday, September 25, 2013

Parties Petition SCOTUS to Hear Corporate Free Exercise Issue

Do corporations have religious free exercise rights? The Third Circuit said no. But, the Tenth Circuit said yes. Now, the losing parties from each case have petitioned the Supreme Court to address the issue.

The cases arise from an Affordable Care Act (aka Obamacare) provision requiring employers to provide health insurance th
at covers birth-control (among other reproductive issues). The appealing corporation from the Third Circuit frames the issue as:
Whether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the ACA.
You can read the details and find links to the petitions at SCOTUSblog here. Given the circuit split and the desire for SCOTUS review from both the federal government and the private sector, I think SCOTUS will take the case. We'll see though . . .

I should note that both cases involve a statute called the Religious Freedom Restoration Act. Only the Third Circuit petition raises First Amendment issues.

Tuesday, September 24, 2013

DOL Issues Guidance on ERISA and Same-Sex Marriages

Last week, the Department of Labor (DOL) issued post-Windsor (Supreme Court case striking down parts of DOMA) guidance on ERISA and same-sex marriages.

Per the DOL press release:
[I]n general, the terms "spouse" and "marriage" in Title I of ERISA and in related department regulations should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.
You can find a more-detailed explanation in the DOL's Technical Release No. 2013-04, including the clarification that:
The terms "spouse" and "marriage," however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.
This guidance is very similar to the IRS rule addressing federal taxes post-Windsor. This guidance is different, however, from the DOL's guidance on the Family & Medical Leave Act (FMLA), which defines spouse based on where the employee resides.

I'm coming to grips with the notion that a post-Windsor world requires lawyers to track a patchwork of federal rules, regulations, and guidance that may differ from statute to statute. I'm doing my best to keep up, but it should keep us employment lawyers busy for awhile!

Image: DOL Seal - Not official use.

Friday, September 20, 2013

Facebook "Like" Gets First Amendment Protection! - COTW #161

Last year, I blogged about a district court decision holding that a Facebook "Like" did not receive First Amendment protection (see here). I was skeptical, and predicted that other courts would find that "Likes" do receive protection.

Well, the Fourth Circuit Court of Appeals reversed that decision and held:
In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.
You can read the opinion here.

Fellow employment law blogger, Dan Schwartz, has some insightful commentary here, including:
Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really an endorsement of an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1″ on Google+? Or a Heart on Instagram?
I think the short answer is that all of these actions express something. What that "something" is will often be difficult to discern (and I suspect even harder to connect to an employment action in the context of public employee free speech retaliation cases).

Endnote: I just realized that, in an 81-page opinion, I selected the exact quote that Dan used. Whether that's coincedence, or me subconciously picking up on the language that I had seen in Dan's post . . . I don't know. Or, maybe the world's greatest legal minds just agree as to the most important part of the Court's opinion. ;-)

Thursday, September 19, 2013

Workplace Threats? Kiss Your Job and Your Unemployment Compensation Goodbye

In Zuraski v. UCBR, the employer terminated an employee after he was heard saying that his supervisors "don't deserve to live" and "I'm going to come into this place and spray it with bullets." This was actually his third incident involving threatening behavior.

Not surprisingly, the Unemployment Compensation Referee, UCBR, and Commonwealth Court all agreed that the employee had engaged in "willful misconduct" and was therefore ineligible for benefits. Notably, the Court concluded that the employee had violated a workplace rule, but even if he hadn't - "Claimant's conduct was beneath the standards of behavior that Employer had a right to expect of its employees." In other words, he wouldn't have been eligible for UC even if the employer didn't have a rule (I'd still recommend some type of workplace violence policy though).

Straight from the "he just doesn't get it" file - I'd also like to point out the Claimant's actual testimony:
C: I don't know what's threatening about wishing someone dead. This is what I said.

R: Wait, wait, wait. You don't know what's threatening about wishing someone dead? Did you just say that?

C: Yeah. Yeah. What's threatening? So I wish someone dead?, I didn't say I was going to do anything about it, there's nothing threatening about that, in my eyes....

* * *

C: Right, I, said, people like Tom Fedorko don't deserve to live and neither does Bosnik because he don't do nothing about it.... I didn't say I was going to come in there, I said you're lucky that someone don't come in here and spray bullets. That's what I said.
Apparently, the Referee, UCBR, and now Court didn't quite appreciate the nuance (and frankly, neither do I).

Tuesday, September 17, 2013

Today is Constitution Day!

Ah yes, today is Constitution Day! We celebrate on the date the Constitutional Convention signed the document back in 1787. Of course, it would take some time and fierce debate before it was ratified.

I recently read a good book on the ratification debates: Pauline Maier's Ratification The People Debate the Constitution, 1787-1788. If you're interested in the debates, check it out. I think people, on average, underestimate how close "we the people" came to rejecting this thing.

I guess I should bust out an employment law tie-in, since this is an employment law blog. The Constitution provides numerous protections for public employees, including due process, equal protection, free speech, free exercise, and more.

For a good example of how the Constitution impacts employment laws in other contexts, check out the Supreme Court's 2012 opinion in Hosanna-Tabor v. EEOC. The Court analyzed some First Amendment issues, including the ministerial exception to federal employment laws.

Finally, what would Constitution day be without the Constitution!? Read it here.

Friday, September 13, 2013

"Upskirt" Shots Lead to Attorney Suspension - COTW #160

I don't write a lot of posts about professional licensing issues, although I contend they count as employment law. The latest Case of the Week deals specifically with attorney licensing.

Last week, the Pennsylvania Supreme Court issued this order, suspending an attorney for 6 months (plus probation for 3 years and some mental health stuff). Nothing too interesting in the order - it's basically just accepting the recommendations of the Disciplinary Board.

But fear not, The Legal Intelligencer has the scoop in "Upskirt" Corporate Counsel gets Six-Month Suspension. If you're not familiar with the concept of "upskirts," they're photos and/or videos that creepy people take by secretly shooting/filming up girls skirts.

So, what did this attorney allegedly do? Per the article:
According to the report, on September 9, 2008, Boulware, in a Springfield Township, Montgomery County, Acme Market, followed a 16-year-old girl and her mother throughout the store, filming the girl with a video camera attached to his shoe as she bent over to pick up store items. Earlier that same day, Boulware followed an adult woman into the same market and similarly videotaped her up her skirt by standing close to her, the board noted in its report. Both incidents occurred without the knowledge and consent of the victims, the board's report said.
Seriously? At what point does someone decide that it's a good idea to strap a camera to his shoe and chase young girls around the grocery store trying to film up their skirts? Frankly, I think six months is light.

Thursday, September 12, 2013

The Obamacare Employer Mandate that's Still On

First post of the week on Thursday!? What's up with this dereliction of duty!? Sorry, it has been busy week.

I wanted to remind employers of an Obamacare mandate that as far as I know is still "on" - i.e. not delayed until next year like the employer insurance mandate. Under new provisions in the Fair Labor Standards Act, passed as part of the Affordable Care Act:
In accordance with regulations promulgated by the Secretary, an employer to which this chapter applies, shall provide to each employee at the time of hiring (or with respect to current employees, not later than March 1, 2013), written notice--

(1) informing the employee of the existence of an Exchange, including a description of the services provided by such Exchange, and the manner in which the employee may contact the Exchange to request assistance;
(2) if the employer plan's share of the total allowed costs of benefits provided under the plan is less than 60 percent of such costs, that the employee may be eligible for a premium tax credit under section 36B of the Internal Revenue Code of 1986 and a cost sharing reduction under section 18071 of Title 42 if the employee purchases a qualified health plan through the Exchange; and

(3) if the employee purchases a qualified health plan through the Exchange, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for Federal income tax purposes.
29 U.S.C.A. § 218b. Of course, we all know silly things like laws are just recommendations with no actual binding effect, right? (sadly, I'm not sure if that's sarcasm or honest analysis).

The Department of Labor has announced that employers may ignore that March deadline, and announced a new deadline of October 1, 2013. For the Department's specific guidance, see Guidance on the Notice to Employees of Coverage Options under Fair Labor Standards Act §18B and Updated Model Election Notice under the Consolidated Omnibus Budget Reconciliation Act of 1985.

Fox Business has some more coverage, and suggests that employers face a $100/day fine for noncompliance.

Image: DOL Seal - Not official use.

Friday, September 6, 2013

"Protected Activity" No Shield for Insubordination - COTW #159

An employee in the Third Circuit learned a tough lesson: "P
rotected activity" may protect you from retaliation, but it doesn't protect you from termination for insubordination.

The employee noticed an error in her paycheck and notified the manager - who immediately cut her a check for the difference. Nevertheless, the employee emailed the Pennsylvania Department of Labor, and also complained to her supervisor noting that the employer could get in trouble. Perhaps a little overkill, but generally so far, so good - right?

Well, a co-worker complained that the employee was being disruptive that morning and . . . I'll, let the Third Circuit take it from here:
When [the employee] arrived at the Theatre that evening, [her supervisor] told her that she needed to speak with her immediately. [the employee] stated that she had a scheduled sales call at 6:00 p. m. and did not have time to speak with [the supervisor] at the moment. [The supervisor] continued to insist, and [the employee] finally said, “I'll eat your ass if you want me to, but I have to make this phone call first .” She then proceeded to make the telephone call. [The supervisor] told [the employee] she was fired and tried to remove the phone receiver from [her] hand.
Garges v. People's Light & Theatre Co., 13-1160, 2013 WL 3481723 (3d Cir. June 28, 2013). And so she was fired.

Her response? A lawsuit under the FLSA, Title VII, and the Equal Pay Act. The result? She lost because she "did not show that the Theatre's reason for terminating her—insubordination—was a pretext for discrimination." Lesson learned.

HT: Janine Gismondi via the August 2013 Pennsylvania Employment Law HR Specialist.

Thursday, September 5, 2013

NLRB? There's an App for That

Last week, the National Labor Relations Board announced (press release here) a new iPhone/Android app. Per NLRB Chairman Pearce:
With this app, we are using 21st Century technology to inform and educate the public about the law and their rights.
The app is largely informational. Aside from a link to the NLRB website and a "phone" button to contact the NLRB, there really isn't much functionality there. The main show seems to be a collection of information about the NLRA that users can drill down into by selecting broad categories (starting with a menu of Employee, Employer, or Union).

Just another example of the NLRB's extensive outreach efforts.

Image: NLRB Seal - Not official use.

Wednesday, September 4, 2013

Lawffice Links - Ronald Coase and the Coase Theorem

Ronald Coase passed away on Monday at the age of 102. If you're not familiar with him, he was one of the founding scholars in the field of law and economics. I attended George Mason Law School, which emphasized law and economics. A running joke was that you could raise your hand in any class at any time and simply say "Coase Theorem" and inevitably be deemed correct and insightful. The least I could do was bake some Lawffice Links in his memory:

Tuesday, September 3, 2013

IRS Addresses Same-Sex Marriages Post-Windsor

Federal agencies are starting to stake out their positions following the Supreme Court's decision in U.S. v. Windsor. The Court struck down the part of DOMA that defined marriages as only those between one man and one woman for over 1,000 federal statutes.

The IRS recently issued Rev. Rul. 2013-17, which addresses same-sex marriages for purposes of federal taxes. Cutting straight to the holdings:
1. For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex.
2. For Federal tax purposes, the Service adopts a general rule recognizing a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.

3. For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband,” and “wife” do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships.
Now, if you're wondering what this will mean for employers, my friend Mike Chittenden emailed me about some IRS Q&A on benefits plans (and other issues arising from the new ruling). Specifically, check out Q&A 16-19. For example, qualified retirement plans must recognize legal same-sex marriages based on where the couple married, regardless of where they live (but domestic partnerships and civil unions do not count).

Image: That is apparently the IRS logo - not official use.