Archive for July, 2013

Appeals Court Tosses FMLA Interference Claim Against Phone Company: Leave Certification Was Issue

Employers shouldn’t take an employee’s word for it that he or she needs FMLA leave. Make the employee go through the paces, as the FMLA rules allow. And don’t feel bound by the law’s 5-day requirement for asking for proof of the need for leave if you suspect that the leave or its duration may not be appropriate.

Those are the lessons from this week’s ruling by the Sixth Circuit U.S. Court of Appeals in a case brought against Ohio Bell Telephone Company by an employee who sought FMLA leave at the same time she was pursuing disability benefits.

The case involves a particular FMLA regulation that gives an employer 5 days to request certification of leave following a leave request, but that also allows delaying that request “if the employer has reason to question the appropriateness of the leave or its duration.”

In this case, the employee had also applied for disability benefits; the company’s benefits administrator chopped three weeks of her question.

That got the company thinking that maybe she wasn’t entitled to FMLA leave either, since the policy’s standard for an employee’s disability status was “similar enough” to the FMLA’s “serious health” standard for employee eligibility.

The company waited a while to request the certification, which the plaintiff never provided. So the two got tangled up in court, with the plaintiff charging that the delay had “interefered” with her FMLA rights.

The appeals court ruled against her. There was no interference, it said, only a reasonable question as to whether FMLA leave was appropriate.

Here’s the ruling in Kinds v. Ohio Bell Tel. Co.

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State AGs: EEOC’s View on Criminal Records Is “Overreach”

Red state attorney generals have a new pet peeve: The EEOC’s position on the use of arrest and criminal records in making hiring decisions.

Nine of them wrote the commission last week to complain that it is going too far under Title VII by declaring that criminal records should not foreclose all possibility of future employment.

The letter was signed by the attorney generals of West Virginia, Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, and Utah.

Last year, the EEOC issued a new enforcement guidance spelling out its view on the use of arrest and criminal records of job applicants.

The AGs’ letter singled out for criticism EEOC’s suits against Dollar General and BMW alleging that their no-exceptions policies on hiring persons with criminal records has a disparate impact against African Americans. I wrote about these cases when they were filed back in June.

The lettter says that the EEOC’s view is “misguided and a quintessential example of gross federal overreach.”

Judge for yourself whether the AGs are right. Here is a copy of their letter, issued on the West Virginia Attorney General’s office stationary.

One-Handed Vet Sues FBI Over Rejection From Training Program

Trial began today in a federal courthouse in Virginia in the case of a U.S. Army veteran whose left hand was amputated as a result of a war zone explosion and who then was disqualified by the FBI from becoming a special agent.

Considering the great number of vets returning from war with injuries and the challenges of reintegrating into the civilian workforce, this case is one worth watching.

According to the lawsuit, the trainee was turned down by the FBI because his damaged left hand prevented him from being able to shoot a gun in the manner desired by the agency.

Justin Slaby served in Iraq and Afghanistan and had part of his left hand amputated following premature detonation of a grenade in his hand.

According to his lawsuit, Slaby had always dreamed of becoming an FBI agent. However, he charged, after reporting for training at the agency’s facility in Quantico, Va., he alone among all the trainees had to undergo an extensive set of assessments and meetings and above and beyond what other trainees were required to compete.

Although “Slaby developed a technique to shoot five rounds with his non-dominant hand,” the “FBI told him that it did not approve of the manner in which he could shoot with his left hand, and ordered him to shoot only with his right hand,” the lawsuit charges.

The plaintiff claims that “[h]e was very proficient at that task, but immediately after the class was
over, the FBI informed [him] that he was being dropped as a Special Agent because of his
disability, a damaged left hand that does not interfere in his ability to perform the essential
functions of the job.”

This lawsuit under the Rehabilitation Act ensued, with Attorney General Eric Holder named as defendant.

It will be interesting to see how this case is resolved, specifically on the question of whether two fully functioning hands are needed to be an FBI special agent.

Here’s a copy of the complaint.

Third Circuit: Mennonite-Owned Company Must Obey ACA’s Contraception Requirement

Does the First Amendment’s guarantee of freedom of religion entitle a company to withhold contraception coverage from its employees because its owners have religious objections to doing so?

We could be one step closer to finding out definitively after Friday’s ruling by the Third Circuit that the First Amendment provides no such right.

In a 2-1 decision, the Third Circuit ruled that a Pennsylvania cabinet-making company owned by a Mennonite family is not exempt from the mandate.

The justices cited a “total absence of caselaw” in ruling that corporations ar not protected by the Constitution’s guarantee of the free exercise of religion.

“Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation–apart from its owners–can exercise religion, the majority opinion said.

One judge on the three-judge panel dissented saying that the lack of caselaw is “in all probability because there has never been a government policy that could be perceived as intruding on religious liberty on religous liberty as aggressively as the mandate.”

The ruling creates a split among the circuits–usually an invitation for the U.S. Supreme Court to join in.

The Denver-based 10th Circuit ruled recently that the chain story Hobby Lobby was likely protected by the Constitution and the Religious Freedom Restoraction Act from having to provide contraceptive coverage that violated the owners’ religious beliefs.

Which means that the issue may be teed up for the high court if it wants it.

Stay tuned.

Here’s the 3rd Circuit’s opinion.

Ex-Employee Can Sue for Discrimination Based on Wife’s Disability, Mass. Supreme Court Holds

Having a disability is not the only way to be protected by the ban on disability discrimination under Massachusetts’ Law Against Discrimination. That state’s highest court ruled last week that the ban also encompasses adverse actions taken against an employee because he or she associates with a disabled person.

The court’s expansive ruling under LAD gives a former employee’s lawsuit against his employer new life. According to the former employee, his former employer, Alimed Inc. fired him because his wife had a serious medical condition that was expense to treat.

The court said that even though the Law Against Discrimination does not mention any protections because of an individual’s associates, interpreting the law that way fulfills the law’s purpose.

“When an employer subjects an otherwise satisfactory employee to adverse employment decisions premised on hostility toward the handicapped condition of the employee’s spouse, it is treating the employee as if he were handicapped himself–that is, predicated on discriminatory animus, the employer treats the spouse’s handicap as a characteristic bearing on the employee’s fitness for his job,” the court said.

Here’s the court’s opinion.

Shelve That Idea: EEOC Sues Grocer That Wouldn’t Hire Women For Night Stocker Jobs

Was sexism at work in a grocery store’s refusal to hire any women for a night stocker position? The Equal Employment Opportunity Commission thinks so. And that’s why it has brought a Title VII lawsuit against Ultra Foods, a grocer in Merrillville, Indiana.

According to the commission’s lawsuit filed July 19, the defendant favored male employees for its night stocker position because of their sex and rejected qualified females who applied for this position.

If the store denied women jobs out of concern for their safety at night, that antiquated notion should have been discarded with empty vegetable boxes long ago.

A rather cut-and-dry case of sex discrimination if EEOC can prove its allegations–which may prompt the store to settle.

Read more.

Domestic Violence Leave Law to Take Effect in New Jersey

New Jersey has become the latest state to expand the scope of its leave laws to give protection to victims of domestic violence. Under the new law, which takes effect on October 1, domestic violence victims will be able to take up to 20 days of protected leave.

The law applies to employers with 25 or more employees.

To be eligible for the leave, an employee must have worked for the employer for at least 12 months and for at least 1,000 hours during the immediately preceding 12-month period.

Eligible employees will be able to take leave to:
•seek or receive medical treatment;
•obtain services from a victim services organization;
•obtain psychological or other counseling;
•participate in safety planning, moving, or taking other actions to increase safety;
•seek legal assistance; or
•attend, participate or prepare for criminal or civil court proceedings

Governor Christie signed the law on July 17.