Legal Mystery: A Dead Body, PTSD, and an FMLA Lawsuit Come Together in N.J. County

A dead supervisor. An employee comes upon the body. Post-traumatic stress ensues. The employee–who also needs to take care of her mother–takes FMLA leave and is then placed on probation. The employee sues the employer, claiming an FMLA violation.

Sounds like the plot of a murder mystery, but it’s actually the essential outlines of a pending lawsuit against Union County, New Jersey.

The plot thickened last week when the U.S. District Court in New Jersey ruled that the employee could proceed with her FMLA suit, as there were factual issues outstanding that could not be resolved short of a trial.

Among these, the court explained, were whether in fact the county placed the employee on probation and denied her reeappointment because she had taken FMLA leave.

The judge put it this way: “Employers may not consider FMLA leave, paid or unpaid, as a basis on which to discipline their employees.”

And so Bravo v. Union County D.N.J., No. 2:12-cv-02848, 5/23/13, continues…

EEOC: Title VII Violated in Forcing Muslim Drivers to Deliver Alcohol

Two Muslim drivers who claimed they were fired because they wouldn’t deliver alcohol might be forgiven for thinking that their religious beliefs were the cause.

Now their employer–Star Transport Company, based in Illinois–is in the legal hot seat, accused by the Equal Employment Opportunity Commission of violating Title VII of the 1964 Civil Rights Act by not accomodating the drivers.

According to the EEOC, the company could have accommodated the drivers by assigning the alcohol delivery duties to other employees who didn’t object on religious grounds.

In its announcement of the lawsuit, the commission reminded employers that Title VII requires reasonable accommodation of employees’ religious beliefs unless doing so would cause an undue hardship.

Clearly the EEOC doesn’t believe there was undue hardship in this case, but rather that the company “chose to force the issue despite the employees’ Islamic religion.”

Wellness Rules Sweeten Incentives for Employees; Ban Discrimination by Employers

The government provides carrots–and some sticks–in final regulations issued today over workplace wellness programs.

Under the regulations, which apply starting January 1, 2014, an employer can offer up to a 50 percent discount on a smoker’s premiums if he or she participates in a tobacco cessation program.

Merely participating in a wellness program can fetch an employee a 30 percent premium discount.

Notice that the employee doesn’t actually have to quit smoking or lose weight in order to get discounts on their premiums.

Employers presumably benefit from these programs because they may cut their health care costs in the long run by having a healthier workforce.

However, the rules come with a catch: Companies cannot discriminate against workers whose medical conditions prevent them from meeting the program’s benchmarks. The rules further require the employers to provide “reasonable alternative” to employees who cannot meet those benchmarks but still want the discounts.

The rules also allow for workers to involve their doctors to help tailor programs with their employers.

So there’s something in these rules for everyone.

The final rules were issued by the HHS, Labor, and Treasury Departments, all of which have a role in enforcing the Affordable Care Act.

The rule will be published in Monday’s Federal Register, but as a public service I’m giving you an advance copy for you to read here.

OFCCP: Future AAPs Must Use 2010 Census Data

Attention federal contractors: It’s time to throw out that old census data from 2000 that you’ve been using for your affirmative action plans.

Starting with 2014 affirmative action plans, contractors must use data from teh 2010 census, the Office of Federal Contract Compliance Programs announced recently.

Known as the “2010 EEO Tab.” the 2010 data replaces the Census 2000 Special EEO file that OFCCP and covered federal contractors began using in January 2005.

The requirement to use the latest census data applies to all affirmative action plans that commence on or after Jan. 1, 2014, OFCCP said.

Here’s the text of the notice.

Laws, Tax Credits Aim to Make Life Better for Veterans Returning to Civilian Employment

This Memorial Day is not only an opportunity to recognize the valor and sacrifice of soldiers who gave their lives in defense of this country, but also to renew our efforts to make sure veterans get employment when they return and that they are treated fairly on the job. Here’s a rundown of what our laws require vis-a-vis returning veterans.

Ban on Discrimination: Employers are prohibited under the Uniform Services Employment and Reemployment Rights Act from discriminating in employment against service members upon their return from a period of military service. The laws includes protections for National Guard and reserve call-ups. The law is administered by the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS).

Affirmative Action: The Vietnam Era Veterans Readjustment Assistance Act–or VEVRAA-federal contractors must take affirmative action to hire and promote qualified veterans, including disabled veterans. Despite the law’s name, its protections are not limited to Vietnam Era veterans. They also encompass disabled veterans and veterans who serve in military campaigns for which a campaign badge has been authorized by the Department of Defense. This statute is enforced by DOL’s Office of Federal Contract Compliance Programs.

Neither of these laws, however, can compel an employer to hire a veteran. The veterans’ unemployment rate remains stubbornly high. To make a dent in that problem, the federal government provides a Work Opportunity Tax Credit to give employers a financial incentive to hire veterans. The credit, which was enacted in 2011, has been extended to the end of 2013.

This tax credit is for hiring the following eligible veterans:

• Short-term Unemployed: A new credit of 40% of the first $6,000 of wages (up to $2,400) for employers who hire veterans who have been in receipt of unemployment compensation for at least 4 weeks.

• Long-term Unemployed: A new credit of 40% of the first $14,000 of wages (up to $5,600) for employers who hire veterans who have been in receipt of unemployment compensation for longer than 6 months.Wounded Warrior Tax Credit

• Veterans with Services-Connected Disabilities: Maintains the existing Work Opportunity Tax Credit for veterans with service-connected disabilities hired within one year of being discharged from the military. The credit is 40% of the first $12,000 of wages (up to $4,800).

• Long-Term Unemployed Veterans with Services-Connected Disabilities: A new credit of 40% of the first $24,000 of wages (up to $9,600) for firms that hire veterans with service-connected disabilities who have been in receipt of unemployment compensation for longer than 6 months.The credit can be as high as $9,600 per veteran for for-profit employers or up to $6,240 for tax-exempt organizations.

Dont let these obligations and opportunities go to waste. Treat veterans the right way–and hire more of them–and they and the nation will benefit.

Minn. Supreme Court: Employer Not Off Hook Because Harassment Directed at Both Genders

Harassment violates Minnesota’s Human Rights Act even if it is directed at both sexes, the state supreme court ruled last week.

In a divided 4-3 ruling, the justices said that harassment violates the law even if the alleged harasser was abusive towards men and women equally. In order to violate the law, the harassment does not have to be because of the plaintiff’s sex, the court said.

The court’s ruling clears the way for three women who were employed by a fish house and motel to sue the businesses for allowing the sole owner to harass them and create a hostile work environment.

The court said that the businesses can be held liable for the alleged harasser’s conduct even if he was also abusive towards men.

The court also affirmed that the victims do not have to proof loss of pay or other employment benefits in order to prove their case. In addition, the owner cannot be held individually liable for aiding and abetting the harassment, since he is the sole owner and the alleged harasser.

Here’s the court’s ruling.

OSHA Bumps Safety Certification Requirements for Crane Operators Until 2017

Crane operators would have an addition three years–until 2017–to meet certification requirements for safe operation of their equipment, under a proposal announced yesterday by the Occupational Safety and Health Administration.

In 2010, OSHA issued a final standard on requirements for cranes and derricks in construction work. Under the standard, crane operators on construction sites must meet one of four qualification/certification options by Nov. 10, 2014.

OSHA decided to postpone the date, however, after a number of parties raised concerns about the qualification/certification requirements. OSHA said it is considering addressing these concerns through a later separate rulemaking.

In addition, the agency said it will propose to extend the compliance date so that the qualification/certification requirements do not take effect during potential rulemaking or cause disruption to the construction industry.

For your Memorial Day pleasure reading, OSHA has posted the minutes of stakeholders meetings it held on the certification/operation issues in April 2013.

Long Island Parish Settles Sexual Harassment, Retaliation Suit Brought by EEOC

A religious institution can choose its clergy without interference from the government, but it still must comply with employment discrimination laws, including preventing sexual harassment in its workplace.

Latest case in point: The Equal Employment Opportunity Commission yesterday announced settlement of sexual harassment and retaliation charges against Grace Episcopal Church of Whitestone, Inc., a parish of the Episcopal Diocese of Long Island.

According to the EEOC’s lawsuit, Grace Church’s interim rector subjected a secretary and a sexton to unwelcome advances, sexual remarks and touching, including grabbing their breasts and kissing them. The secretary was fired after she rebuffed the sexual advances, EEOC charged.

Under the terms of the settlement, the church will pay $192,000 to the two female victims; provide church and diocese employees and all churches within the diocese with copies of revised policies on sexual harassment; report sex harassment complaints received by Grace Church or the diocese to the EEOC; post a notice about the EEOC and the lawsuit at the church; and provide anti-discrimination training for employees.

Read more.

Third Circuit Nixes Title VII Suit by Fired Board Member of Family Business

An individual can’t run the company and at the same time be an “employee” entitled to the protections of Title VII of the 1964 Civil Rights Act, a federal appeals court ruled last month.

In Mariotti v. Mariotti Building Products Inc., the plaintiff was vice president, secretary, and member of the board of directors of the closely held building materials company.

After the shareholders voted not to relect him to the board, the plaintiff sued, claiming that he was subjected to a hostile work environment and fired because of his religious faith.

Tossing the suit, the appeals court said that since the plaintiff had “substantial authority at MBP and the right to control the enterprise,” that put him beyond Title VII’s protections.

He was not “the kind of person that the common law would consider” an employee, the appeals court concluded.

Appeals Court: Post-Stroke Symptoms Disqualify Deputy Sheriff Under ADA

Psychological fitness and the ability to handle stressful situations can be as much essential functions of a job as physical stamina. If your job involves dealing with the public, then you might be deemed unfit if you can’t handle its stressful aspects.

Such as the case earlier this month when the 10th U.S. Circuit Court of Appeals ruled that a deputy sheriff in Wyoming who wasn’t fully recovered after suffering a stroke could not proceed with a claim under the Americans With Disabilities Act.

Following the stroke, as confirmed by a psychologist’s reort, the deputy sheriff experiencedfagirue, lightheadedness, and “emotional disinhibition.” All of which meant he should not return to the job dealing with the public in stressful situations, the appeals court said.

The case is Koessel v. Sublette County Sheriff’s Dept., 10th Cir., No. 11-8099.