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.

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.

Unfit for Office? Ex-Aide Says San Diego Mayor Harassed Her

Someone call the HR department for the city of San Diego: Your mayor is out of control.

According to press reports, Mayor Bob Filner’s former communications director has filed a sexual harassment suit against hizzoner. Irene McCormack’s complaint alleges that Filner had asked her to work without wearing panties, demanded kisses, and dragged her around in a headlock while whispering sexual advances.

We’re well past the tip-of-the-iceberg stage here. On July 10, prominent former supporters claimed Filner sexually harassed more than one women and urged him to resign.

McCormack is the first alleged victim to reveal her identity, however.

The mayor knows his conduct is wrong. He said as much in a video released immediately after the initial allegations against him surfaced, in which he said “I need help.”

In the case HR needs a refresher on sexual harassment and its prevention, here’s the EEOC’s page on it.

Court: Rejected Applicant Can Pursue ADEA Claim Against Apprenticeship Program

Are union-sponsored and operated apprenticeship programs subject to the Age Discrimination in Employment Act? It’s an open question, since the law itself is silent on the matter and until 16 years ago the EEOC was of the view that they were not covered.

The answer is important considering the emphasis that politicians and economists are placing on job retraining as a way to get more people back into the workforce and lower the unemployment rate.

Providing one answer to that question, a U.S. district court judge last week ruled that an applicant in his 40s who was denied admission to an apprenticeship program for electrical workers an proceed with his ADEA claim.

When Congress passed the ADEA in 1967, it left out apprenticeship programs, and the agencies responsible for enforcing the statute–first the Department of Labor, now the EEOC–also initially said that these programs were not covered.

But the EEOC changed its position in the mid-1990s and now says that these programs are covered. That was enough for the federal court to let John Snowwhite continue with his ADEA claim against IBEW Local 117 Joint Apprenticeship & Training Fund.

Congress’ silence on apprenticeship programs does not mean that it intended to exclude these programs, the court said. What it does suggest is that Congress intended to leave the issue to the enforcement agencies.

And the reasonableness of the EEOC regulation covering apprenticeship program “is demonstrated by the fact that the fund’s apprenticeship program is the most direct route for an electrician to gain the skills needed to become an IBEW member and to gain employment with” an electrical association contractor, the court said.

The case is Snowwhite v. Local 117 Joint Apprenticeship & Training Fund, N.D. Ill., No 1:11-cv-08466, 7/16/2013.

Appeals Court: No Dodd Frank Protections for Internal Company Complaints

The protections for whistleblowers under he Dodd Frank Wall Street Reform and Consumer Protection Act apply only to employees who file a complaint with the Securities and Exchange Commission, the Fifth U.S. Circuit Court of Appeals ruled on July 17.

Complaints filed internally with one’s employer don’t trigger the whistleblowing protections, the appeals court panel said, affirming dismissal of a whistleblowing lawsuit by Khaled Asadi, who at the time of the events in question was serving as General Electric’s Iraq County Executive.

According to Asadi, Iraqi officials informed him of their concern that GE Energy had hired a woman closely associated with a senior Iraqi official to curry favor with him in negotiating a lucrative joint venture agreement. Asadi, concerned that this alleged conduct violated the Foreign Corrupt Practices Act, reported this issue to his supervisor and the GE ombudsman in the region.

Shortly following these internal reports, Asadi received a “surprisingly negative” performance review. GE Energy pressured him to step down from his role as Iraq Country Executive and accept a reduced role in the region with minimal responsibility, he alleged. Asadi did not comply and, approximately one year after he made the internal reports, GE Energy fired him.

Dodd Frank provides only one definition of “whistleblower,” and that is someone who initiates, testifies, or assists in any investigation, action, or judicial or administrative action of the SEC based on or related to the information disclosed, the appeals court ruled.

Only then does the individual have a private right of action to enforce the law’s whistleblower protections, it said.

Here’s the court’s ruling in Asadi v. G.E. Energy.