It's a brief overview of President Obama's Department of Labor's new proposed overtime regulations under the Fair Labor Standards Act (FLSA). Also, a brief discussion of the "avoidance problem.
NOTE: Lawyers are actually exempt from the salary requirement by a special carve-out (29 CFR 541.600)... so pretend Bob (my example in the video) is a store manager who oversees 2 or more employees instead (the "executive" exemption).
At long last, today is the day. President Obama will announce the new proposed overtime regulations. You can read the Notice of Proposed Rulemaking here.
This will take me some time to read through. After reading the executive summary, the main thrust is raising the minimum salary requirement for certain FLSA overtime exemptions:
Under the current regulations, an executive,
administrative, or professional employee must be paid at least $455 per week ($23,660 per year
for a full-year worker) in order to come within the standard exemption . . . . In order to maintain the effectiveness of
the salary level test, the Department proposes to set the standard salary level equal to the 40th
percentile of earnings for full-time salaried workers ($921 per week, or $47,892 annually for a
full-year worker, in 2013).
Two things stick out: (1) That's a huge increase!; and (2) It's not a specific number - instead it's tied to the 40th percentile of earnings, so it will (presumably) increase over time. The administration estimates that an additional 5.1-5.6 million people will be affected by the change in the next 10 years.
You can find additional resources here, including:
Yes, white males are a protected class... I blogged about this a year and a half ago. One of the cases I cited was Burlington v. News Corp. The employee, a white guy, was fired for using the n-word. He filed a race discrimination lawsuit, claiming that black employees use the word without discipline.
I give him credit for managing to clear the summary judgment hurdle, but all that gets you is a jury trial. Did you really think a jury was gonna be like, "yeah, it's totally the same when white people use racial slurs!" If you did, you were wrong - at least in this instance: Jury Issues Defense Verdict in Case of Anchor Fired for Racial Slur.
Yup, you read that right - an actual GINA case! Oh, and a giant verdict number and a bizarre poop reference... I'm just gonna let the judge's order from earlier in the case get you caught up:
Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses.1 To solve the mystery of the devious defecator, Atlas requested some of its employees, including Jack Lowe and Dennis Reynolds, to submit to a cheek swab. The cheek cell samples were then sent to a lab where a technician compared the cheek cell DNA to DNA from the offending fecal matter. Lowe and Dennis were not a match. With the culprit apparently still on the loose, Lowe and Dennis filed suit under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff, et seq., which generally prohibits employers from requesting genetic information from its employees.
Well, yesterday, a jury awarded the plaintiffs $2.25 million in Lowe & Reynolds v. Atlas Logistics Group Retail Services. Volokh Conspiracy has a great post on it, with some excerpts from closing arguments.
I can understand the employer's frustration. Something had to be done about "the devious defecator." But DNA testing is a blatant violation of GINA, so I'm not sure what the employer was thinking. According to the above-linked order, the employer claimed that the DNA analysis was not covered by GINA because it did not reveal the employees' propensity for disease.
Forgive me for being so blunt... but this sounds like a pretty stupid argument. GINA prohibits "genetic testing" and specifically defines "genetic testing" to include "analysis of human DNA." 42 U.S.C. § 2000ff(7). So their argument was that their analysis of DNA was not covered by a statute that prohibits, literally, "analysis of DNA"? Huh?
GINA is still pretty new, so we're trying to figure out how to value these claims. How much should employers compensate an employee for unlawfully analyzing his DNA? Apparently, the jury in this case valued it at $2.25 million.
The employee sought intermittent leave and submitted an FMLA certification form to her employer. The form indicated that she was "“requesting intermittent leave at a frequency of 2 times weekly starting on March 1, 2013 and lasting for a probable duration of one month– or until about April 1, 2013.” Unless you're a real FMLA expert, you probably don't see the problem.
An employee seeking intermittent FMLA leave for a chronic "serious health condition" must establish that the condition "continues over an extended period of time." As she was only requesting intermittent leave for about a month, she did not meet that requirement. The employer therefore denied her FMLA leave, concluding that her certification was a "negative certification" (a certification that establishes that the employee is not entitled to FMLA leave - some courts have held that employers may rely on such "negative certifications"). The employee subsequently missed work, and the employer fired her because the absences were unexcused. The employee was diagnosed with diabetes and high blood pressure, but only after her termination.
A Right to Cure?
Not official use.
Let's turn to a different aspect of FMLA. If an employee submits an "incomplete" ("one or more of the applicable entries have not been completed") or "insufficient" ("a complete certification, but the information provided is vague, ambiguous, or nonresponsive") certification, then (s)he has a right to cure. The employer must notify the employee in writing of the information needed to make the certification complete and sufficient. The employee then has seven days to cure the defects. The employer apparently did none of those things in this case (because it concluded that the certification was "negative" not "incomplete" or "insufficient").
Conclusion
At first glance, the certification appears to be complete and sufficient - it just indicates that she only needed the leave for a month, so she didn't meet the "extended period of time" requirement. Right? Wrong.
[A] sufficient medical certification must state, among other things, both the probable duration of the condition and the expected duration of the intermittent leave. 29 U.S.C. § 2613(b). [Employee's] certification is vague and nonresponsive insofar as it requests intermittent leave for one month but fails to specify whether the one month duration refers only to the length of her leave request or to the duration of her condition.
Therefore the employee was entitled to the 7-day opportunity to cure the insufficiency. If that sounds like a bit of a stretch to you, you're not alone - this was a split decision and the dissent's not buying this explanation.
So, what does this mean for employers? Well, a super-cautious employer would seek clarification or a cure from the employee for apparently "negative" certifications. At the very least, employers should double-, triple-, maybe even quadruple-check a "negative certification" before flat-out denying it, knowing that the Third Circuit will try to find a way to interpret it as "incomplete" or "insufficient" instead.
So, how about it? Can allowing medical marijuana be a "reasonable accommodation" for a disability? No. At least not under the federal Americans with Disabilities Act (ADA). The ADA generally requires employers to provide a reasonable accommodation (unless it imposes an undue hardship or poses a direct threat) to a "qualified individual with a disability."
The problem with medical marijuana is that marijuana is still illegal under the federal Controlled Substances Act. The ADA provides that:
[A] qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
42 U.S.C.A. § 12114. I think that pretty much resolves the issue, doesn't it? Chime in with a comment if you see it differently.
The Pennsylvania Wage Payment and Collection Law (WPCL) requires employers to pay employees "in lawful money of the United States or check." s 260.3. A class action lawsuit in Luzerne County claims that some McDonald's franchise owners are violating the WPCL by mandating that employees accept payment of their wages with JP Morgan-issued "Payroll Cards."
The employer argued that the cards were the functional equivalent of money or checks because they could be converted to cash at a bank or ATM. Luzerne County Judge Burke issued this opinion (HT: Law360) to the contrary. The Court concluded that the payroll debit cards were neither lawful money nor checks. Therefore, the employer was violating the WPCL by requiring employees to accept them as payment of wages.
This is a matter of first impression, and an appellate court may very well view the issue differently. The opinion expressly called for the views of the Pennsylvania Department of Labor and Industry (DLI), and also noted that pending legislation would include debit cards in the WPCL as an acceptable form of payment. However, for now, the only precedent (that I know of) in Pennsylvania is this decision holding that paying wages with debit cards violates the WPCL - so Pennsylvania employers use them at great risk.
Colorado has a quirky little statute that makes it unlawful for employers to terminate employees for "lawful" outside-of-work activities. As you may know, Colorado also has some pretty marijuana-friendly laws on the books.
Enter Brandon Coats. Brandon has a state license that allows him to use marijuana for medicinal purposes at home. He claims his employer, Dish Network, fired him for his medical marijuana use. He therefore filed a lawsuit claiming that his employer violated the no-firing-for-lawful-conduct statute. So, does he have a claim?
Yesterday, the Colorado Supreme Court issued its opinion in Coats v. Dish Network (opinion here). The Court affirmed the lower courts' decisions dismissing the employee's lawsuit for failure to state a claim. In short, the federal Controlled Substances Act is still on the books - and it still makes marijuana use illegal (even if you have a state license). So, Mr. Coats's marijuana use was actually not a "lawful" activity because it is illegal under federal law. Case dismissed.
I should note that most states don't even have statutory protection for off-duty lawful conduct - so presumably terminating employees for marijuana use would be even easier in other states. This issue will become much more complicated if/when the federal government decriminalizes/legalizes marijuana use.
Where have I been? This is my triumphant return from some kidney stone problems that have kept me out of blogging for a couple weeks. What better way to return than by hosting this month's Employment Law Blog Carnival (#ELBC)!
This month, I've come up with some totally fetch new catchphrases that you can work in to your employment law lingo!
Whooo..... WHOOOOooooo!
Imagine if every time someone brought up whistleblower claims, you just made obnoxiously loud train whistle sounds instead of using the word "whistleblower" - that would be so totally fetch. Ric Flair, show 'em how it's done. Now, practice your train whistles while you read Internal Whistleblower Complaints Raise Important Considerations on Epetein Becker Green's Financial Services Employment Law blog.
Dinged for OffCon
Yo, I heard you got dinged for offcon... which, of course means, "I understand you were disciplined for off-duty misconduct." Check out Rudner MacDonald's post, Discipline for Off-Duty Conduct (featuring a rather unfortunate parental advisory catchphrase FHRITP),
Endless Summer Policy
Michael Haberman has Will your unlimited vacation policy run afoul of the law? on the Omega HR Solutions blog. I'm sorry... did he say unlimited vacation? Heck yeah, sounds like an "endless summer policy" to me.
'Cause Plaintiff Says So
When an employer's summary judgment motion gets denied based on nothing more than the plaintiff's own self-serving testimony. Check out a real-life example, The 6th Circuit and Overtime: Uh Oh on the Michigan Employment Law Connection.
Clogged Drain
Same case as the last one, but this time from Bullard Law: The NLRB Convinces Its ALJ That The NLRA Protects Racist Picket Line Speech. The employer fired an employee for shouting comments about fried chicken and watermelon at black workers from the picket line - an NLRB ALJ reinstated him. In other words, the employer tried to flush him... but there was a "clogged drain"!
Stepped on the Sideline
When a party loses a case because it just barely crossed over some bright-line rule. Like when your FMLA claim gets denied because your "overnight" stay at a hospital started just after midnite and was therefore not "overnight." Donna Ballman explains it in Court Imposes FMLA Catch-22.
You gotta Fugitive that harassment!
Fugitive, you know, like the tv show and movie about the guy who won't give up until he's tracked down the one-armed man (we could also go with "You gotta Javert that harassment" if Les Mis is more your thing). Robin Shea explains, Harassment "Must-Have" No. 4: The Determination.
"I'm with the Government" Immunity
A fetch new way to claim derivative sovereign immunity! What, you've never heard of derivative sovereign immunity in employment law claims? Well, there's a good reason for that. But the issue is hitting the Supreme Court so get in on this hot new fad right away. See Fitzpatrick on Employment Law: Derivative Sovereign Immunity: Next Supreme Court Term's Bombshell?
I hope I didn't miss anyone - let me know if I excluded your submission and I'll be sure to add it, complete with its own fetch new catchphrase!
Building off of yesterday's posts regarding EEOC v. Abercrombie (here and here), there are two extraordinarily important questions left unanswered.
I touched on this yesterday: What level of suspicion is required? Justice Scalia reportedly announced this decision from the bench by stating "this is really easy." Yeah, the case of an applicant interviewing with a hijab is really easy. Of course the employer suspected the applicant wore the headscarf for religious reasons. But what about this hypo:
Interviewer: We need someone to work Saturday shifts. Applicant: I can't do that.
Now what? Call it a day? Inquire whether the reason the applicant can't work is for religious reasons (knowing that inquiring about religious beliefs in a job interview is generally considered a huge no-no)?
Let's assume the applicant does not get the job because he's not available on Saturdays. Fast forward to the lawsuit because - surprise! - he couldn't work Saturdays because of his religious beliefs. Here's the deposition transcript:
Attorney: Did you know the applicant couldn't work on Saturdays because of his religion. Interviewer: No, I had no idea.
Attorney: Did you suspect his religion precluded him from working Saturdays? Interviewer: Ummm, no?
Attorney: You are aware that some people can't work on Saturdays for religious reasons, right? Interviewer: I guess so.
Attorney: So you knew the applicant could have been one of those people right? Interviewer: I suppose so.
Attorney: So now you admit that you at least had some suspicion that this person needed a religious accommodation, right? Interviewer: Well, when you put it that way . . . .
What now? Does the employer lose on summary judgment or not? Yesterday's Supreme Court opinion does not answer that question:
While a knowledge requirement cannot be added to the motive requirement,
it is arguable that the motive requirement itself is not met
unless the employer at least suspects that the practice in question is a
religious practice—i.e., that he cannot discriminate “because of” a
“religious practice” unless he knows or suspects it to be a religious
practice. That issue is not presented in this case, since Abercrombie
knew—or at least suspected—that the scarf was worn for religious
reasons. The question has therefore not been discussed by either side,
in brief or oral argument. It seems to us inappropriate to resolve this
unargued point by way of dictum, as the concurrence would do.
In other words, of course this was easy for Scalia... he skipped the hard part of the analysis!
The other question that went unanswered: Does accommodating the applicant impose an undue hardship? This will vary from case-to-case, but it's worth noting that an employer still presumably has this defense available. And, employers have had some success in implementing "look policies." See, Cloutier v. CostCo (1st Cir.)(holding that an exception to the employer's "no facial piercing" rule would impose an undue hardship on employer where employees wore such jewelry as part of the "Church of Body Modification"). The "undue hardship" burden for religious accommodations is a pretty low bar.
An assistant manager at A&F interviewed an applicant who wore a headscarf to the interview. The assistant manager believed the applicant wore the headscarf for religious reasons but did not know for sure. When the assistant manager contacted the district manager, the district manager concluded that the headscarf violated A&F's "look policy" and directed the assistant manager not to hire the applicant.
1. The holding is straightforward:
Justice Scalia, author of the majority opinion.
To prevail in a disparate-treatment claim, an applicant need
show only that his need for an accommodation was a motivating factor
in the employer’s decision, not that the employer had knowledge
of his need.
2. Title VII does not impose a knowledge requirement. The Court focuses instead on the employer's motives:
[T]he intentional discrimination provision prohibits
certain motives, regardless of the state of the actor’s
knowledge.
3. This holding probably does not apply to disability accommodations under the ADA:
It is significant that §2000e–2(a)(1) does not impose a
knowledge requirement. As Abercrombie acknowledges,
some antidiscrimination statutes do. For example, the
Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reasonable
accommodations to the known physical or mental
limitations” of an applicant. §12112(b)(5)(A) (emphasis
added). Title VII contains no such limitation.
4. What is the practical impact on interviewers?
Justice Thomas derides the majority as creating "an entirely new form of liability: the disparate-treatment-based-on-equal-treatment claim" (because A&F's policy was facially neutral and applied to non-religious headwear such as baseball caps too). Justice Alito (concurring in the result) notes a hypothetical in which an employer requires applicants to work on Saturdays, and some applicants cannot work on Saturdays due to religious obligations.
In that hypo, what does an employer do when it tells an applicant that the job requires Saturday shifts? What if the employee says something vague, like "I can't work on Saturdays." What does the interviewer do then? Will the employer now have to ask why the employee cannot comply with the Saturday requirement? Will this holding make religion a topic of conversation in job interviews? If the employer refuses to hire that person, who later turns out to be unavailable for religious reasons, was the employer motivated by his need for an accommodation?
The majority appears to require (though does not expressly enumerate it as an element of the case) a "suspicion" element:
For example, suppose that an employer thinks
(though he does not know for certain) that a job applicant
may be an orthodox Jew who will observe the Sabbath,
and thus be unable to work on Saturdays. If the applicant
actually requires an accommodation of that religious
practice, and the employer’s desire to avoid the prospective
accommodation is a motivating factor in his decision,
the employer violates Title VII.
What level of suspicion is necessary? What if the interviewer has no clue why the applicant can't work on Saturdays, but knows that religious conflict is at least a possibility? In my opinion, the majority opinion fails to adequately explain this (Justice Scalia explains this omission in footnote 3 - although, I understand his point, this omission leaves great uncertainty in this area).
To prevail in a disparate-treatment claim, an applicant need
show only that his need for an accommodation was a motivating factor
in the employer’s decision, not that the employer had knowledge
of his need.
(per the syllabus). I'll read the whole opinion and provide further analysis.
