Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

"Son" and "daughter" under the FMLA

The DOL  recently gave a broad definition to "sons and daughters" under the FMLA.  The DOL subtitles the announcement by saying "Interpretation is a win for all families no matter what they look like."  Secretary of Labor, Hilda Sols, is quoted as  saying  "No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill.  No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

Practice pointer.  Although courts have not yet had time to determine if the DOL's broad definition of son and daughter will be applied, it is likely to lead to litigation throughout the country.  Employers should examine carefully requests for FMLA leave by non-biological and non-legal parents on a case by case basis.

More Strange Stories

On June 2nd, I published an entry entitled"Two discrimination complaints where truth is stranger than fiction" which addressed a woman's claim that she was fired because she was too hot and an ex-football coach, who is white, suing the historical black university that dismissed him.  This week, Susan Antilla, with Bloomberg, published an article entitled "Sex harassment at work gets weirder, scarier."  She reviewed EEOC press releases, and come up with some of the stranger complaints made by employees.  I cannot do justice to them, so I would recommend that you read her article. 

Practice pointer.  Truth is stranger than fiction.  I routinely see allegations that make you go Duhhhh.  HR professionals need to continue to monitor the workplace, train the entire workforce on a regular basis, and take every complaint seriously, no matter how strange it may seem.

BlackBerries and Overtime

Last year, I wrote about the possible exposure to claims for overtime pay for the use of PDA's outside the regular 40 hour workweek.  A suit had been filed by various T-Mobile employees claiming that they were entitled to overtime pay since they had to use their PDA's after regular work hours.  NPR recently ran a story about a new class action lawsuit filed in Chicago by police officers.  Cheryl Corley's article, entitled "Using Your Blackberry Off-Hours Could Be Overtime" discusses a lawsuit filed by Sgt. Jeffrey Allen against the Chicago Police Department  alleging that he, together with other officers, had been given BlackBerries by the department and were using them routinely while off duty at the behest of the department, and not being compensated for it.  While using the BlackBerry for a minimal amount of time while off duty may not result in overtime, using 15 minutes a night may, and adds up in a hurry, especially in a class action suit.  Mayor Daley's reaction, as quoted in the article, is somewhat concerning, as he said the suit is "silliness in time of economic crisis" and "We're public servants.  If I asked for that, I'd be paid millions of dollars.  We'd have to take all the BlackBerrys away from the workforce."  Mayor Daley's quote is followed by a quote from Sean Rogers, an arbitrator who happens to be a former Washington D.C. police officer and is now the head of an arbitration firm:  "I don't think that any mayor would say that anti-discrimination laws are silly.  There are similar laws....I had one arbitration that involved 7,000 employees and they ultimately settled for something over $23 million."

Practice pointers.

As I have written and talked about in the past, it is important for companies to have electronic communications policies, including the use of PDA's away from work.  Companies that permit, or even require the use of PDA's away from work may be subjecting themselves to overtime claims by non-exempt employees.

Additionally, employers should have a policy concerning who will deal with the press.  In my opinion, I would not want a corporate CEO making the statements that were attributed to Mayer Daley: they may come back to haunt him as this case progresses through the court system. 

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In February, 2009, I wrote that "I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress. "  USA Today reports today that the number of ADA charges filed in 2009 hit an all time high: with almost 21,500 ADA related charges being filed with the EEOC.  The author, Marisol Bello, concludes that "the main reasons for the increase:  the recession and an amendment to the ADA that broadened the definition of what it means to be disabled."  Adverse employment actions claimed by people with disabilities include termination, passed over for promotion, not being transferred to a job that matches the persons abilities and not providing reasonable accommodations.  Chai Feldblum, the EEOC Commissioner, explains the EEOC's belief that the ADA provides broad coverage: "You might not think that you have a disability, but if you have a medical condition and you feel you are discriminated against based on that condition, then you are covered."  From an employer's point of view, the not so bad news is that of the 18,776 cases concluded by the EEOC last year, 60% were found to have no basis under its rules, and about half of the cases it did take resulted in an outcome favorable to the employee.

Practice pointer.  The ADA will continue to be a growing area of charges and lawsuits as the courts interpret the 2009 amendments to the ADA which was passed by Congress to increase those individual covered under the act.  Employers must be sure they are complying with the ADA when dealing with issues involving disabled workers, from hiring to termination, and every step in between. 

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I have regularly reported that FLSA overtime cases continue to be filed in large numbers.  Recently, the New York Times published an article addressing overtime issues in hospitals and nursing homes.  Robert Pear wrote that the Obama administration is looking into pay practices throughout the health care industry.  The investigation was prompted after a finding that many hospitals and nursing homes do not properly pay overtime to nurses and other employees who work in excess of 40 hours per week.  The Department of Labor has recently recovered more than $1.7 million in back wages for approximately 4,000 employees of SSM Health Care, a Roman Catholic system.  Partners HealthCare System in Boston paid more than $2.7 million in back overtime wages to 700 employees.  There is a proposed class action settlement in California involving Kaiser Permanente, requiring payment of $7.25 million to hundreds of medical workers who were allegedly classified as exempt.  Mr. Pear notes that "The Labor Department has hired 250 new wage-and-hour investigators, representing a staff increase of one-third.  The government wants to make sure workers get "every penny they earn," said Kenneth Stripling, a Labor Department official leading enforcement efforts in Birmingham, Ala.....Nursing assistants, licensed practical nurses, janitors and cooks "are particularly vulnerable to wage violations," Mr. Stripling said."   The president of the Greater New York Hospital Association is quoted as saying: "Hospitals are complicated organizations, and record-keeping for employees is astronomically complicated...Workers cannot just drop patient care when the lunch hour arrives.  We are not like an assembly line, which can shut down at lunchtime, or a bank, where people work 9 to 5."

Practice pointer.  As the DOL continues to increase enforcement of the FLSA, especially as it pertains to overtime, many industries, including health care, will be subject to increased scrutiny.  Now is a good a time as any for employers to review the classification of their employees to make sure that those entitled to overtime receive it if they work over 40 hours per week. 

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An ex-employee of Blue Cross Blue Shield of Alabama, Latonia Davis, pled guilty to charges of trafficking stolen identities.  Ms. Davis used the protected health information of BCBS members to try to obtain credit cards.  She apparently used the companies internal database to obtain the social security numbers of at least 7 people.  She was sentenced to a 10 year split sentence, to serve 18 months, followed by 3 years of supervised probation. 

Practice pointer.  Sensitive information, such as social security numbers, need to be protected by all companies.  This includes sensitive information of employees as well as customers/patients/members, etc.  Policies and procedures, as well as regular training, should be provided to any employee who has access to this type of sensitive information. 

Hewlett-Packard CEO resigns after Sexual Harassment Investigation

I often caution HR professionals that any employee, from the top to the bottom of the company, can be involved in sexual harassment.  On Friday, HP announced the resignation it's CEO, Mark Hurd following a sexual harassment investigation.  Mr. Hurd had on ongoing personal relationship with one of HP's contractors.  According to the Wall Street Journal, the woman at the center of the controversy is Jodie Fisher, a 50 year old sometime actress.  Ms. Fisher sent a letter to HP on June 29 alleging sexual harassment.  She now states that she is "surprised and saddened that Mark Hurd lost his job over this.  That was never my intention." Although the outcome of the sexual harassment investigation found that HP's sexual harassment policy was not violated, HP found that Mr. Hurd "demonstrated a profound lack of judgment" by filing several inaccurate expense reports meant to conceal the relationship.  According to the WSJ, Mr. Hurd "did not fill out his own expense reports and offered to pay back the amounts involved, which totaled about $20,000."  Interestingly, the WSJ is reporting that business experts are debating whether the HP board acted decisively or too rashly in terminating Mr. Hurd.

Practice pointer.  Policies and procedures are for ALL employees, even the CEO.  They must be enforced consistently and fairly for all, even if it means disciplining, up and including termination, the CEO, best sales person, or other valuable employee. 

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Americans With Disabilities Act Turns 20

This week marks the 20^th anniversary of the passage of the Americans With Disabilities Act. According to the Washington Post, the EEOC released a report indicating that “workers with targeted disabilities – including deafness, blindness, missing extremities, mental retardation, and partial and complete paralysis – represent less than 1% of the federal work force.” Based, in part, upon this report, President Obama issued an executive order requiring federal agencies to increase their efforts to hire 100,000 disabled employees over the next five years. “The order directs the office of Personnel Management, in consultation with the Labor Department, the EEOC and the Office of Management and Budget, to design strategies within 60 days for recruiting and hiring disabled workers. Personnel Managers at government agencies must be trained in employing the disabled. Agencies will then be required to development plans for recruiting and keeping the workers.” Also, this week, the House of Representatives passed legislation making the Internet and television more accessible to the disabled. The Bill, which now goes to the Senate, would require the telecommunications industry to caption on-line television programs and that telecommunications equipment that is used over the Internet be compatible with hearing aids. 

Practice pointer.  There has been quite a lot of recent activity concerning the accessibility of web sites for visually and hearing impaired individuals.  As with many laws, technology moves faster then the law can.  Businesses with web sites should be prepared to address these issues in the near future.

Update on Nursing Mothers

The U.S. Department of Labor, Wage and Hour Division, issuedFact Sheet No. 73 providing general information on the breakdown requirement for nursing mothers in the Patient Protection and Affordable Health Care Act which became effective on March 23, 2010. The DOL states that “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.” The DOL further points out that a bathroom is not a permissible location even if private. The location provided must be functional as a space for expressing breast milk. The DOL believes that “a space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.” The break time only applies to employees who are not exempt from the FLSA’s overtime pay requirements. Employers with fewer than 50 employees are not subject to the FLSA break time requirements if compliance with the provision would impose an undue hardship. An undue hardship “is determined by looking at the difficulty or expense of compliance for specific employers in comparison with the size, financial resources, nature, and structure of the employer’s business.” The DOL further finds that “employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated the same way that other employees are compensated for break time.”

Home Depot Male-on-Male Sexual Harassment Case Settles

I recently reported on the Home Depot case involving  store manager David Corbitt.  While on appeal before the 11^th Circuit in a rare en banc session, the case settled and the appeal was dismissed before the court could enter a ruling. In light of the fact that the 11^th Circuit decided to hear the case en banc, the December panel opinion was vacated.

Practice pointer.  In light of the 11th Circuit's granting of an en banc hearing, the issues raised in this case peaked the interest of the judges.  Since the case was settled before a decision was released, the 11th Circuit will need to find another case with similar issues in order to address the issues raised in this case. 

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Recently, the 2nd Circuit Court of Appeals, which governs New York, Connecticut and Vermont, found that pharmaceutical reps employed by Novartis are not exempt under the FLSA and are entitled to overtime for any hours worked exceeding 40 in a week.  The court, on the same day, ruled against Schering on the same issue.  The court found that these reps are not exempt from overtime as outside sales persons or as administrative employees under the FLSA.  Earlier this year, the 3rd Circuit Court of Appeals, covering Delaware, New Jersey, Pennsylvania  and the US Virgin Islands, found that a pharmaceutical sales rep for Johnson & Johnson and AstraZeneca reps were exempt under the administrative exemption.  The 3rd Circuit did not address the outside sales exemption.  A key factor in the 2nd Circuit's decision was the fact that the Department of Labor filed an amicus brief, arguing that the pharmaceutical reps were entitled to overtime.  The court granted "controlling deference" to the DOL's position since it was not "plainly erroneous or inconsistent with" the DOL's regulations on the issue.  It is important to keep in mind that the pharmaceutical industry is somewhat unique since the reps are barred by federal law from making actual sales to physicians.  They can give samples to physicians, but cannot take orders for the purchase of drugs, and they cannot obtain a binding commitment from a physician to prescribe their particular drug.  The 3rd Circuit, in reaching the opposite conclusion, found that pharmaceutical reps "make sales in the sense that sales are made in the pharmaceutical industry" and were entitled to overtime.  Having been married to a pharmaceutical sales rep, I know that they do work long hours, usually over 40 per week, and their income is quite substantial, with many experienced and successful reps making over $100,000.  The amount of overtime they would be entitled to, if the 2nd Circuits opinion stands, will be astronomical. 

Practice Pointer.  Although these cases deal with a very specific and highly regulated industry, there may be implications for other marketing jobs where actual sales are not made: such as those who may promote products sold by others, or marketing type employees who may not fall under the FLSA's administrative exemption.  I anticipate that with the split among the circuits, and the wide ranging implications of the split, there is a good chance that this issue will make it's way to the Supreme Court, although it may take a number of years. 

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Social networking sites continue to cause problems for many employees, including attorneys.  In a recent article entitled "Lawyers "step in it" Through Social Media Incompetence", a number of stories are discussed concerning lawyers who have found themselves in trouble through the use of social media.  These include a North Carolina Judge who was reprimanded for "friending" a lawyer in a case he was assigned to, and discussing the case on Facebook; a California lawyer was suspended from practice for 45 days for blogging about a trial in which he served as a juror: a Florida lawyer was fined $1,200 for blogging that a particular judge was "an evil, unfair witch"; and an Illinois public defender had charges filed against him for posting confidential client information on his blog, including first names and jail identification numbers. 

A short but interesting article  published by The Advertiser entitled "Should social media be part of the workplace?" is a common sense review of the pitfalls of social networking in the workplace.  Aileen Bennett writes,"With privacy settings dubious at best and other people being able to take our information and copy and share, we must presume that everything we put on line is public.  If you are writing something that you don't want your boss to see, my advice would be not to write it.  if you are sharing someting that you wouldn't tell your mother, don't share.  If you are updating your status with information that you wouldn't share with 500 strangers, think again."

Last week, USA Today ran a front page article entitled "Latest police weapon: iWitness".  According to the article, iPhones store a great deal of information, including screen shots after mapping applications are closed, the user's browser history and GEO tags and identifying information with photos posted online.  Law enforcement is being taught how to retrieve iPhone data in criminal investigations.  It is only a matter of time before iPhones will be forensically examined in civil cases and internal investigations involving employee issues.

Practice pointer.  Social media policies should be in place at corporations and other places of business.  This will give some guidance to both employers and employees as to what can and should be done while using social media. 

Update on June 2 post

On June 2, I posted an entry addressing the termination of a white football coach at an historically black university and the coach's filing of a lawsuit alleging discrimination. The Atlanta Journal Constitution now reports that 4 white students have filed suit against Savannah State University alleging that their football scholarships were pulled because they are white.  It will be interesting to see how these lawsuits progress. 

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The EEOC announced another large settlement involving a large Alabama company.  The EEOC issued a press release on July 1 announcing a $100,000 settlement with McGriff Industries, a Cullman company, to settle a racial harassment and retaliation lawsuit filed by the EEOC.  According to the EEOC, "certain employees and managers in the Cullman facility routinely  used racially derogatory comments, slurs, and insults directed at or about African-Americans. The racial  misconduct escalated to threats and intimidation, including a derogatory threat  to cut one of the black employees. White  and black employees were offended by the racial misconduct, but were rebuffed  and retaliated against -- one employee was terminated and another had  his work assignments changed -- when they complained."

Practice pointer.  Training.  Training.  Training.  Supervision.  Supervision.  Supervision.  I don't need to say any more. 

Health Care Reform amends FLSA to require breastfeeding breaks.  Nursing mothers are now allowed to take a reasonable break when they need to express breast milk, and employers are required to provide a private location, other than a bathroom.  This applies for up to one year after the child's birth.  Employers with less than 50 employees are exempt if "an undue hardship" would be imposed by causing the employer significant difficulty or expense. 

Practice pointer.  As the Obama administration continues to put it's mark on the workplace with new laws and regulations, this is just another one that is now in place and imposes new obligations on employers.

FMLA claim for depression rejected.  The 8th Circuit, in the case of Kobus v. The College of St. Scholastica, Inc. found that  an employer has no obligation to reasonably accommodate an employee under the ADA when the employee did not inform the employer that he needed an accommodation.  Kobus was a painter for the college, and due to personal and family issues, was diagnosed with depression and prescribed Paxil.  He told his supervisor that he was suffering from stress and anxiety, but did not mention the diagnosis of depression.  When he told his supervisor that he needed time off work to deal with his stress, the supervisor placed a FMLA from Kobus's mailbox.  Kobus responded that he did not need leave.  Shortly after, Kobus was written up for excessive absenteeism.  Kobus then asked for "mental health leave" and his supervisor again asked if he wanted FMLA leave, and Kobus advised him that he did not have a doctor to fill out the FMLA form.  Kobus submitted a letter of resignation and received 2 weeks severance.  Kobus never mentioned depression or his medications and did not mention his condition or FMLA leave during his exit interview.  Kobus then sued the College claiming he was forced to resign and he was denied his FMLA rights and was discriminated against under the ADA.  The trial court dismissed these claims on summary judgment, finding that Kobus did not pursue FMLA leave and  "in fact, expressly rejected it", and that the ADA claim was due to be dismissed since he never informed the College that he needed a reasonable accommodation due to a disability. 

Practice pointer.  This decision demonstrated the need to train supervisors on various laws that apply in the workplace, including FMLA and ADA.  The supervisor, even though no mention was made by Kobus for FMLA leave, offered to treat it as such, and Kobus refused.  The Court further found that the ADA was not violated since Kobus never informed the College that an accommodation was needed. 

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The EEOC continues to file suits and reach settlements around the country on a regular basis.  Most recently, the EEOC announced a settlement with a Starbucks store in Arkansas as the result of disability discrimination.  According to KATV, Chuck Hannay was not hired because he has multiple sclerosis.  The EEOC said that Hannay applied for one of six barista positions, but he was never contacted and individuals with less experience and ability were hired instead.  The Starbucks store agreed to pay $80,000, and was enjoined from discriminating on the basis of disability and retaliation.  According to EEOC Regional Attorney Faye Williams, "People with disabilities should have equal opportunities for employment....This case demonstrates the EEOC's commitment to combat discrimination that prevents individuals with disabilities from taking their rightful place in the work force.

In Houston, the EEOC announced that two Sonic Drive-In franchises, with common ownership and management will pay $55,000 to settle a sexual harassment lawsuit filed by the EEOC.  According to the EEOC, the primary owner of the franchises "promoted a young, unqualified family member to consecutively higher management positions within the restaurants and allowed him to use his position of power to sexually harass the teens starting in 2006".  The EEOC also contended that this manager permitted and encouraged other male employees and managers to join in the harassing conduct.  When a 17year old female rejected the sexual advance of the manager, he became abusive to her and threatened her with a knife.  In addition to the monetary settlement, the defendants were required to develop and implement new policies and procedures for addressing illegal discrimination in the workplace, and they must be approved by the EEOC prior to implementation.  Jim Sacher, the EEOC's regional attorney, was quoted as saying:  "This lawsuit was filed in order to protect some of our nation's most vulnerable and impressionable workers-teenagers who. often are newcomers to the workplace...."

Practice pointers.  The EEOC continues to be extremely active in pursuing lawsuits and settlements  around the country.  Press releases usually accompany the filing of lawsuits and the settlement of cases, resulting in negative publicity for the companies named.  It is important to implement proper policies and procedures, and train the entire workforce on a regular basis.  This includes family members. 

As mentioned in a previous post, the EEOC is concentrating on harassment of young workers.  As we are still in the summer employment season, now is the prime time for teenagers who have summer jobs to be harassed, discriminated against and otherwise mistreated.  Again, training and monitoring the workforce is a must.

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