Archive for December, 2012

Md. Law Firm Explains Benefit Rules for Private Employers Under Same-Sex Marriage Law

Same sex couples in Maryland are already lining up to take their wedding vows following the voters’ approval in November of their right to marry. The provisions go into effect at the stroke of midnight, tonight,  Jan. 1, 2013.

Thinking about what benefits you do or do not have to provide same-sex couples? An article released this week by the Calhoun Law Group of Bethesda, Md. explains the same-sex marriage laws applicable to private employers.

It’s part one of a two-part series. In their next installment, they say they’ll discuss the rules that apply to other types of employers.

Here’s the article.

And with that, it’s onto 2013. Happy New Year everyone!

Union Picketing OK on Business’ Private Walkway, Cal. High Court Holds

Want to picket for better wages and employment conditions on an employer’s private walkway? You can legally do that in California, according to the state’s supreme court, which ruled on Thursday that two state laws protect labor speech on private land in front of a business that is the subject of a labor dispute.

In this case, members of the United Food and Commercial Workers local picketed the private walkway in front of the customer entrance to a Ralphs Grocery Co. supermarket in a Sacramento shopping center. The point of the picketing was to inform consumers about the dispute.

The state supreme court ruled that although the picketing was not protected under the state’s constitution, it is protected under the Moscone Act and Labor Code Section 1138.1.

Here’s the court’s ruling.

New IRS Proposed Rules Address Employer’s “Shared Responsibility” Under Affordable Care Act

The IRS today proposed regulations interpreting the provisions of the Affordable Care Act that require employers to pay into a “shared responsibility” fund for providing health insurance coverage to their employees.

Those provisions kick in in 2014, when the individual mandate portion of the law goes into effect. As most everyone knows, the law requires everyone to have health insurance or to pay a fine. Employers have their responsibility, too. They either have to provide affordable health insurance to their employees–or if they do not–contribute to the “shared responsibility fund.”

In general, employers with 50 or more full-time employees or equivalents will have to pay into the fund if they do not offeraffordable health coverage that provides a minimum level of coverage to their full-time employees–if at least one of their full-time employees receives a premium tax credit for purchasing individual coverage on one of the new Affordable Insurance Exchanges.

Together with the proposed rules, the IRS issued a set of helpful questions and answers covering such topics as when do the provisions go into effect, which employers are subject to the provisions, under what circumstances will an employer owe the payment, how will the payment be calculated, and transitional relief.

The transitional relief is available for employers that have a fiscal year-based health insurance plan that starts sometime in 2013 and crosses into 2014, then the individual mandate takes effect.

Under this relief provision, for example, if during the most recent open season preceding December 27, 2012, an employer offered coverage under a fiscal year plan with a plan year starting on July 1, 2013 to at least one third of its employees (meeting the threshold for the additional relief), the employer could avoid liability for a payment if, by July 1, 2014, it expanded the plan to offer coverage satisfying the Employer Shared Responsibility provisions to the full-time employees who had not been offered coverage.  For purposes of determining whether the plan covers at least one quarter of the employer’s employees, an employer may look at any day between October 31, 2012 and December 27, 2012.

Transitional relief is also available to help employers that are closteto their 50-employee threshold determine their options for 2014.  Rather than being required to use the full twelve months of 2013 to measure whether it has 50 full-time employees (or an equivalent number of part-time and full-time employees), an employer may measure using any six-consecutive-month period in 2013.  So, for example, an employer could use the period from January 1, 2013, through June 30, 2013, and then have six months to analyze the results, determine whether it needs to offer a plan, and, if so, choose and establish a plan.

There’s a wealth more of information in the FAQs, which I encourage you to read on your own.

And my customary shotout to fellow blogger Christine Roberts, who gave these proposed rules the usual thorough analysis at her E is for ERISA website.

11th Cir. Says E-Mail Inadequate to Trigger FLSA’s Protection in Breast Milk Express Case

A female employee cannot sue her employer for retaliation under the Fair Labor Standards Act provision entitling her to time and a private room for expressing breast milk, the 11th Circuit U.S. Court of Appeals ruled yesterday.

The basis for the retaliation claim was an e-mail the employee sent her supervisor containing her request. The court ruled, however, that “some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance.”

The court said that neither the context nor the content of the supervisor’s e-mail to her supervisor put the latter on notice of the lodging of a complaint. The circumstances surrounding the email would not have informed a reasonable employer that the employee  was filing a complaint, it said. Before sending the email, the employee had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism.  She decided to express breast milk in her office without notifying any supervisors. “She did not complain or ask for a different location.”

Here’s the court’s full ruling.




Settlement Ends American Samoa’s “Campaign Against Older Workers,” EEOC Says

Confirming that the Equal Employment Opportunity Commission’s reach into the workplace does not stop at the waters’ edge, the agent announced last week that it settled age discrimination charges against the government of American Samoa.

The lawsuit alleged that the U.S. territory–located in the South Pacific Ocean–forced a class of workers age 50 and older into retirement or reassigned them into undesireable positions to free jobs for younger persons.

The campaign began in the island’s HR department, but then spread to all governmental departments, the EEOC charged.

The EEOC filed the Age Discriniation in Employment Act lawsuit against the island in the U.S. District Court for the District of Hawaii.  In announcing the settlement, the commission said the parties entered into a three-year consent decree in which American Samoa government agreed to create a reinstatement process for all government employees over the age of forty who were terminated or forced into retirement because age discrimination. The human resources department will solicit and investigate claims of age-based removals and reinstate all affected workers if a position exists.

The Samoan government also agreed to revise its existing policies and complaint procedures to address age discrimination and retaliation; designate an equal employment opportunity (EEO) consultant to assist with compliance; train all government employees on their rights and responsibilities under EEO laws with an emphasis on age discrimination across all departments; provide additional training to managers, supervisors and lead employees on discrimination issues; and allow the EEOC to monitor compliance and review the handling of internal complaints.

“Attractive” Employee’s Firing OK Under Civil Rights Law, Iowa Supreme Court Holds

A dentist did not engage in unlawful gender discrimination under the Iowa Civil Rights Act when he fired a female assistant on the grounds that the way she dressed in the workplace made her “too irresistible” to him and threatened his marriage, the Iowa Supreme Court ruled on December 21.

The assistant argued that this was gender discrimination because she did nothing wrong and the only reason she was fired was because she was a woman.

But the high court justices–all of them men, by the way–drew a distinction between an isolated employment decision based on personal relations and a decision based on gender. The court said it seemed odd at first glance to have the question of whether the employer engaged in unlawful discrimination turn on the employee’s conduct, assuming that such conduct (whatever it is) would not typically be a firing offense. “Usually our legal focus is on the employer’s motivation, not on whether the discharge in a broader sense is fair because the employee did something to “deserve it.”

There was no sexual harassment in this case, nor even any real flirtation. The dentist and his assistant exchanged texts about his family, and at one point he admonished her to wear her lab coat so her clothing wouldn’t be so revealing. It was actually the dentist’s wife who demanded she fire the assistant, viewing her as a threat to her marriage, and the couple consulted a senior pastor in their church, who supported their decision.

The court explained: Title VII [of the 1964 Civil Rights Act] and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.”

The ruling has already generated negative media commentary that it is unfair to women, and will likely generate more.

What do you think?

Read the court’s ruling here.


EEOC Obtains $25K for Wronged Seventh-Day Adventist Job Applicant

The Equal Employment Opportunity Commission on Friday announced settlement of a religious discrimination lawsuit against a Birmingham, Alabama-based manufacturer that allegedly failed to try to accommodate a Seventh Day Adventist job applicant who needed his Sabbath off.

The settlement is a reminder to employers that the reasonable accommodation process required under Title VII of the 1964 Civil Rights Act applies at every stage of the application process, including during interviews.

Altec will pay $25,000 to settle charges it discriminated against James Wright, who applied for employment at Altec’s Burnsville, N.C. manufacturing facility, the EEOC said. According to the lawsuit, Wright, a Seventh Day Adventist, held the sincere religious belief that he could not work on his Sabbath,  which runs from sundown on Friday until sundown on Saturday. The EEOC alleged in its complaint that when  Altec learned during a job interview that Wright objected to working from  sundown on Friday to sundown on Saturday based on his religion, it decided not  to hire him.

Altec failed  to make a sincere effort to accommodate Wright’s need for religious observance, the EEOC said. Besides paying Wright $25,000, the company agreed to provide annual training on religious discrimination to all  of its managers and supervisors at its Burnsville, N.C. facility.  In addition, Altec must post a notice on  employees’ rights under federal anti-discrimination laws and provide periodic  reports to the EEOC on individuals not hired and actions taken in response to  employee requests for religious accommodations.

Here’s the EEOC’s press release announcing the settlement, and here’s a refresher on Title VII’s reasonable accommodation requirement.

OFCCP Gets Nod to Proceed With Functional Affirmative Action Plan Proposal

The Office of Federal Contract Compliance Programs (OFCCP) can go ahead with its new process for government contractors seeking approval for an development of written affirmative action plans by business function or unit rather than by establishment.

Traditionally, government contractors have been required to submit their affirmative action by plans by establishment, basically where their workers are located. However, the OFCCP has also allowed contractors to submit AA plans by business function, for example, sales, IT, or HR.

The OFCCP issued a new directive on functional affirmative action plans in June 2011. Like all proposed federal rules, the directive had to get the approval of the U.S. Office of Management and Budget before it could go into effect.

OMB gave its approval on Dec. 11 of this year.

You can learn much more about the functional AAP and the new OFCCP directive at

NLRB Rebuked by D.C. Circuit in Case Against Newspaper Publisher

A newspaper publisher was within its rights under the National Labor Relations Act to take actions against nine union-supporting employees for protesting what they perceived to be a blurring of the line between opinion and news content on the Santa Barbara News-Press, the U.S. Court of Appeals for the District of Columbia Circuit ruled on Dec. 18.

Reversing a ruling by the National Labor Relations Board, the appeals court said that the board “misconceived the line between protected and unprotected activity” when it ruled against Ampersand Publishing LLC, the newspaper’s owner.

In the course of the dispute, Ampersand discharged nine union-supporting employees—two allegedly for biased reporting, a third for refusing to fire one of the allegedly biased reporters, and six for participating in a protest rally on a public highway. Ampersand  cancelled another union supporter’s column and gave four others lower annual evaluation scores than theyhad received in the past.

An administrative law judge held that the employees were engaging in “concerted activity” and the actions against them violated the law.

But the appeals court said that the First Amendment affords a publisher—not a reporter—absolute authority to shape a newspaper’s content. Those policies do not constitute a “term or condition of employment” in which employees have an interest in engaging in concerted activity.

Therefore, the board’s decision and order were vacated.

Here’s the court’s full ruling.

Executive’s Contradictory Comments About Fired Employee Breathes New Life Into ADEA Suit

It’s not rocket science, just common sense. If you fire an employee for alleged misconduct and later contradict yourself by saying the employee shouldn’t have been fired, you may have a lawsuit on your hands.

That’s what happened to Takeda Pharmaceuticals America, whose corporate executive fired Barbara Kragor, a 49-year old sales rep, and then later called her an “exceptional employee” who should not have been fired.

Today the U.S. Court of Appeals for the Eleventh Circuit ruled that this admission, coupled with other suspicious evidence that age had to do with her firing, was enough evidence to send her case to a jury.

Direct from the court’s opinion: “When the employer’s actual decisionmaker, after terminating an employee for misconduct (or the appearance of misconduct), says without qualification that the employee is exceptional, did nothing wrong, did everything right, and should not have been fired, that contradiction—when combined with a prima facie case—is enough to create a jury question on the ultimate issue of discrimination.”

Courts don’t like those contradictions–and neither will a jury.

Here’s the full text of the ruling.