Thursday, August 15, 2019

DOL: FMLA covers parent meeting to discuss child's IEP

Not official use.
Quick post today. In a new opinion letter, the U.S. Department of Labor Wage and Hour Division addressed a parents need "to attend a Committee on Special Education (CSE) meeting to discuss the Individualized Education Program (IEP) of the employee’s" child.

The "need to attend CSE/IEP meetings addressing the educational and special medical needs of your children—who have serious health conditions as certified by a health care provider—is a qualifying reason for taking intermittent FMLA leave."

The end. Told you it was quick.

Wednesday, August 14, 2019

Accommodation claim survives close shave at the Third Circuit

"Close shave" - It's a case about a guy with a skin condition, pseudofolliculitis barbae (PFB), who sought an accommodation to not have to shave his face or neck - get it? Full not precedential opinion here: Lewis v. Univ. of Penn.

The Plaintiff/Appellant succeeded in reversing summary judgment on three interesting issues (the Court hit even more issues, but these are just the highlights):

Constructive Discharge
Not official use. 

Constructive discharge is a resignation that is treated like an involuntary firing under the law. Courts look for an abusive and intolerable environment in which a reasonable person would feel compelled to resign. In Lewis, the Court held that evidence of the following was sufficient for a constructive discharge claim to survive summary judgment:
Lewis’s superiors disciplined him, altered his job responsibilities, removed him from a preferred assignment, and threatened Lewis with discharge.
Interactive Process

I try to emphasize this point with employers - yes, there are a bunch of technical requirements about what counts as a disability, what is a reasonable accommodation, when an accommodation constitutes an undue hardship . . . but the ADA requires that employers participate in an interactive process. So, make an effort to engage with the employee to see what you can do to help. As the Court described it, the employer must "engage in a good faith interactive process to identify accommodations."

The trial court dismissed the ADA claim because Lewis never expressly requested his desired accommodation (exemption from a medical certificate requirement). The Third Circuit reversed because Lewis had requested a related accommodation and the employer knew about his disability. This triggered their obligation to engage in the interactive process to identify a reasonable accommodation. Lewis claims he just got a flat denial with no effort to communicate about his needs.

Medical certificate counts as "disability-related inquiry"

Subject to some exceptions, the ADA generally prohibits disability-related medical examinations  and inquiries. Interestingly, the Court relied on EEOC Enforcement Guidance for the definition. "Disability-related inquiries may include . . . asking an employee to provide medical documentation regarding his/her disability." Here, the employer required some kind of medical certificate, so the trial court on remand will have to address whether it was for a legitimate purpose.

Tuesday, August 13, 2019

Termination letter immunity in Pennsylvania

Just passing along an interesting tidbit that I stumbled upon while researching something else:
Consistent with a policy favoring private resolution of disputes between employers and employees, Pennsylvania law recognizes the absolute privilege of employers to publish defamatory matter in notices of employee termination. Thus, a letter articulating the reasons for an employee's termination which is published only to the employee may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal. The purpose of the absolute privilege is to encourage the employer's communication to the employee of the reasons for discharge by eliminating the risk that the employer will possibly be subject to liability for defamation. Where the privilege is abused by the employer's publication of the defamatory material to unauthorized parties, the employer is no longer immune from liability. 
Miketic v. Baron, 675 A.2d 324, 327-28 (Pa. Super. Ct. 1996) (quoting Yetter v. Ward Trucking Co., 585 A.2d 1022 (Pa. Super. Ct. 1991), alloc. denied, 600 A.2d 539 (Pa. 1991) (add'l citations omitted).

A later decision held that the privilege was not abused/waived where the letter was signed by four people, "all of whom had an interest in the letter." Davis v. Res. for Human Dev., 770 A.2d 353, 358 (Pa. Super. Ct. 2001).

Monday, August 12, 2019

Third Circuit: Handful of Facebook posts did not create a hostile work environment

In Oncale v. Sundowner Offshore Svcs., Inc., Justice Scalia wrote that Title VII is not "a general civility code for the American workplace." To establish a claim for a hostile work environment, a plaintiff must establish "severe or pervasive" harassment. The Third Circuit just issued an interesting opinion addressing that issue in the context of Facebook posts.

The case is Chinery v. American Airlines, and it is a not precedential opinion. The harassment seems to have stemmed from a union leadership dispute that got a little ugly on Facebook. Here's how the Court described the Facebook posts (I try to avoid bloc quotes, but you really have to read the actual posts to get the full picture):

  • One flight attendant, who made negative comments towards those opposed to the Union contract, posted a picture of a broken record on Wingnuts (a Facebook group). Chinery believed that the picture was an immediate reaction to something she posted on Facebook and was in response to the complaints she made to American’s human resources department about him.  
  • During the campaign, a second flight attendant posted, “[T]his is war. [The incumbent union leaders] are my friends. If you f**k with my friends you f** with me and I don’t like being f**ked with :(.” (asterisks in original). Chinery interpreted this post as a personal threat since it referenced her campaign. 
Not official use.
  • A third flight attendant made multiple harassing posts: (1) in response to a post about the campaign, he wrote “it’s your cunstitutional [sic] right to vote NO [to the Union challengers]”;  (2) he mocked her use of flashcards to study the Union contract and then wrote “[t]old ya I can’t cunt [sic] to potato,” which Chinery contends was an offensive reference to her gender;  (3) he wrote posts calling those opposed to the collective bargaining agreement “cavalier harpies” and “shrews of misinformation,” adding “[h]ave any of them LOOKED in a mirror? Tuck your shirt in fat ass . . . Fix your hair . . . How bout [sic] a tie? A little lipstick?”;  (4) he posted a picture of a “bedazzled” vagina, which Chinery believed was directed at her friend for defending Chinery on Facebook; (5) according to Chinery, he posted a picture of the Wicked Witch of the West with the caption “I don’t have time for basic bitches,” which she argues was about her. 
  • About nine months after the election ended, Chinery was ordered to attend a disciplinary meeting based on allegations that she had taken a video of one of American’s vendors without permission. The meeting was rescheduled, and after a fourth flight attendant learned about the delay, he wrote on his personal Facebook page, “HOLY SHIT! I knew it!! Flipper has NOT had her meeting yet!” Chinery claims that “Flipper” is a derogatory term and that the comment was about her.
Not enough! The Court rejected the plaintiff's argument that the harassment was pervasive because social media is public and permanent. The Court recognized that some of the posts were "offensive" but "offhand comments and isolated incidents" are insufficient to create liability. Finally, the plaintiff alleged that the employer failed to enforce its own social media policy. That may be relevant when assessing respondeat superior liability - but it does not show severe or pervasive harassment.

Ultimately, the Third Circuit affirmed summary judgment for the employer. This may just be my subjective perception - but it seems like courts are becoming more hesitant to toss cases based on a lack of "severe or pervasive" harassment. Although this case is not precedential, it shows that plaintiffs still must clear that hurdle.

HT: Eric Meyer - When do (or don’t) Facebook posts create a hostile work environment?

Friday, August 9, 2019

Andrew McCabe lawsuit over FBI firing

From NPR: Ex-Deputy FBI Director Andrew McCabe Sues Over What He Calls Wrongful Firing.

This is an interesting employment law case, and you can read the full complaint here. McCabe raises several arguments:
Andrew McCabe - Public Domain Portrait

  • You can't fire me, I quit! - He claims he completed all of his work for the pay period in which he was fired, and therefore had effectively retired by the time he was terminated;
  • Even if I was fired, where's my due process? - He claims the FBI failed to follow the statutory framework for terminations and deprived him of due process under the Fifth Amendment to the Constitution; and
  • Partisan witch hunt! - He claims he was targeted for partisan reasons based on his perceived political affiliations, political expression, and intimate association. 
  • Mandamus! - The complaint begins by quoting Marbury v. Madison and ends with a request for mandamus (a con law nerd's dream) directing the FBI to recognize him as retired. 
Will he win? Who knows. These claims all seem plausible on their face. But, let's not forget, he was fired for allegedly leaking information to the media and a "lack of candor" in interviews with investigators. A legitimate reason can go a long way in wrongful termination lawsuits. 

Tuesday, August 6, 2019

DOL WHD takes new position on compensable time for truck drivers in sleeper berth

The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) issued a new opinion letter on an old issue - FLSA2019-10 (Compensability of time spent in a truck’s sleeper berth while otherwise relieved from duty).

In short, if a truck driver is relieved of duty and permitted to sleep (or do whatever (s)he wants) in an adequate truck sleeper berth, then that time is not compensable. That means employers do not need to compensate the employee for that time, or factor it in when calculating overtime.

Not official use.
The situation presented in the opinion letter was:
[A] workweek wherein a particular driver spent 55.84 hours driving, inspecting, cleaning, fueling, and completing paperwork, and 49.96 hours in the sleeper berth, during which time he was permitted to sleep, did not perform any work, and was not on call to perform work.
How many compensable hours? If you answered 55.84, give yourself a prize! This assumes that the truck driver is really off-duty.

By contrast, if the employee remains on-duty (ex. on call (often interrupted), studying job-related materials, or doing paperwork) then that is compensable time. Also, the law draws a distinction between “waiting to engage” and “engaged to wait.” The classic example of the latter is a driver who is required to wait at a job site for goods to be loaded into the truck. That driver is not just waiting to start work, he is on-duty waiting for the truck to be loaded.

This new opinion letter should benefit most employers, as the prior guidance (which was replaced by this new letter) only allowed employers to exclude 8 hours of sleep time as non-compensable for any trip longer than 24 hours (and no hours for trips under 24 hours).

Wednesday, July 31, 2019

Worker's Compensation claim denied for attorney allegedly killed by job stress

This case presents a sad intersection of employment law and the stress of the profession. The Commonwealth Court issued its opinion, affirming denial of WC benefits, in Touchstone v. WCAB. The decedent, a worker's comp attorney himself, allegedly "suffered a fatal heart attack and . . . psychosocial stress related to his work as a workers’ compensation attorney representing claimants, namely significant financial strain, was a substantial, contributing factor in his death."

The decedent passed away in the middle of the night after retreating to his home office to continue working. Some of the expert testimony undercut the theory that job stress caused his death though. The worker's comp judge (WCJ) held that "the Claimant did not meet her burden of establishing that psychosocial stress, specifically, financial strain, was a substantial contributing factor in Decedent’s death."

The Commonwealth Court reviews such decisions under a deferential standard, and will only reverse if there was a "capricious disregard of the evidence." The Claimant could not meet that standard here, so the claim remains denied. A sad story regardless of the outcome of the case.