The U.S. Department of Labor (DOL), offers a resource called eLaws Advisors, to help employers and employees understand the many federal employment laws. The website is actually more of an interactive tool that guides users through a series of question to provide specific information relevant to their particular circumstances. There are eLaws Advisors on wage and overtime issues, workplace poster requirements, health benefits, federal contractor compliance, and other topics.
April 2010 Archives
The trial in a class-action lawsuit alleging that Novartis Pharmaceuticals practiced sex discrimination against female employees has begun in a federal court in New York. The class of plaintiffs includes more than 5,600 saleswomen, who are seeking $200 million in damages. According to the New York Times, the suit alleges discriminatory pay and promotions targeting women, particularly pregnant ones.
It remains to be seen if the plaintiffs will be able to prove their case, but the allegations include some pretty shocking (and dumb) comments by managers, including my favorite, in which a manager reportedly told a saleswoman that he preferred not to hire young women, saying, “First comes love, then comes marriage, then comes flex time and a baby carriage.”
As we’ve long known, flexible schedules can play an important—often critical—role in work-family balance. Without the option, many women report they would not return to the workplace (at least for some period of time following their maternity leave) after having a new child. But the fact the option exists on the company books does not necessarily mean it’s an appealing one: in many workplaces they are offered, but not widely utilized because of the stigma associated with them. Other employees take advantage of them, but understand they’re a “career killer.” If the reported comment by a Novartis manager is true, it reveals a far more sinister possibility: the mere existence of flexible schedules may result in women being discriminated against from the outset, based on fear that they might actually use them.
As I’ve posted before, making an employment decision because of mere assumptions about a woman’s caregiving responsibilities and how that might affect her performance, is sex discrimination, plain and simple. It’s been labeled as Family Responsibility Discrimination or Caregiver Discrimination, and if it’s not based on actual performance, it’s illegal. So is failure to hire or promote a woman out of fear she might eventually utilize a firm’s flex-time schedule.
If employers are going to offer flex-time schedules, they can’t discriminate against the women who elect to use them. Even worse is treating women differently based on the mere possibility that they might use them.
Federal Judge Sue L. Robinson, U.S. District Court for the District of Delaware, has issued an important decision affecting Delaware employers in a case captioned, Tri-M Group, LLC v. Sharp, C.A. No. 06-556-SLR (D. Del. Apr. 14, 2010).
Tri-M Group, LLC, a Pennsylvania electrical contractor, was the successful bidder on a Delaware state construction project. It used apprentices registered in Pennsylvania, and paid them the apprentice wage rates prescribed under the Delaware prevailing wage law. An investigator for the Delaware Department of Labor learned that the apprentices were not registered in Delaware. The contractor asked him how it could register its apprentices in Delaware and was told that the Delaware law requires sponsors of apprentice programs to maintain a permanent place of business in Delaware. Even though Tri-M had maintained a construction trailer at AstraZeneca for some years, that was not considered to be a “permanent place of business.” The DDOL determined that the contractor was in violation of Delaware law and since the apprentices were not registered in Delaware, they had to be paid the higher journeyman’s rate. The contractor sued in Delaware District Court, contending that favoring in-state contractors by forcing others to pay higher rates violated the Commerce Clause of the U.S. Constitution. Judge Robinson agreed. She pointed out that several states in the region, “in a contest of wills over apprentice recognition,” had adopted discriminatory statutes designed to retaliate against and disfavor out of state contractors. Delaware’s statute was particularly blatant, in that it “discriminates against out-of-state employers on its face.” Therefore, a heightened scrutiny standard applied and the requirement that an apprenticeship program maintain a permanent place of business in Delaware would be declared invalid unless the state could show that the requirement “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” The court concluded that the DDOL could adequately protect its apprentices without using discriminatory means, and granted Tri-M’s motion for summary judgment.
The Department of Labor's Women's Bureau released its list of the 20 Leading Occupations of Employed Women. The data supports stereotypes such as "nursing is a woman's job" and "all secretaries are female." There were some jobs, though, that I was surprised to learn are largely held by women, including customer-service representatives and accountants and auditors. Here are the other 18 jobs and the percentage of each held by women, according to the DOL:
Secretaries and administrative assistants
Elementary and middle school teachers
Nursing, psychiatric, and home-health aides
First-line supervisors/managers of retail sales workers
Waiters and waitresses
Maids and housekeeping cleaners
Customer service representatives
Bookkeeping, accounting, and auditing clerks
Receptionists and information clerks
First-line supervisors/managers of office and admin support
Managers, all others
Accountants and auditors
Office clerks, general
Personal and home care aides
See the original:
Colwell v. Rite Aid Corp., is an accommodation case brought under the Americans With Disabilities Act (ADA), recently decided by the Third Circuit, which hears appeals from the federal courts of Delaware, Pennsylvania, and New Jersey. Jon Hyman, at the Ohio Employer's Law Blog, was the first to post about the Colwell opinion, noting that the decision offers employers some key reminders about best practices when dealing with an employee’s request for accommodations made pursuant to the ADA.
The plaintiff, Colwell, was hired in April 2005 as a part-time clerk at one of Defendant Rite-Aid’s stores. Her schedule varied but she generally worked the 9 a.m. – 2 p.m. shift or the 5 p.m. – 9 p.m. shift. During the summer, she was diagnosed with retinal vein occlusion and glaucoma in her left eye and she later lost vision in her left eye. As a result, she could no longer drive at night.
Because she lived in an area without public transportation or taxis, Colwell had no reliable way to get to work for the evening shift. She asked to be assigned only to the day shifts but her supervisor refused, saying that it “wouldn’t be fair” to other employees. Colwell provided her supervisor with a doctor’s note as proof that she could not drive at night. Again, her supervisor declined Colwell’s request to be assigned only to day shifts. Colwell had to rely on family members to transport her to and from work on the days she was scheduled to work at night.
Colwell contacted her local union representative, who tried unsuccessfully to convince the supervisor to accommodate Colwell’s request. The union rep set up a meeting for him and Colwell to meet in person with the supervisor but he failed to show up and the meeting was canceled.
Colwell, who had grown weary of the whole situation, submitted her letter of resignation. She filed suit a few months later.
The Employer’s Argument
As its defense to Colwell’s claims, Rite Aid argued that it had no duty to accommodate Colwell’s request because an employee’s commute to and from work is not sufficiently related to the job and, therefore, not the proper subject of an accommodation. This is an important point. The parties agreed that Colwell did not need an accommodation once she got to work—the question in this case was whether the employer had a duty to provide an accommodation to enable her to get there in the first place. The trial court agreed with Rite Aid, and held:
the ADA is designed to cover barriers to an employee’s ability to work that exist inside the workplace, not difficulties over which the employer has no control.
The district court went on to find that imputing a duty to accommodate Colwell’s request was tantamount to “mak[ing] an employer responsible for how an employee gets to work, a situation which expands the employer’s responsibility beyond the ADA’s intentions.” Colwell appealed.
The Third Circuit’s Ruling
On appeal, the question before the Third Circuit was “whether a shift-change request can be considered a reasonable accommodation for an employee who cannot drive at night” because of a disability. Before the Third Circuit, Rite Aid argued that it did not have a duty to accommodate Colwell’s request. In fact, it argued, it did not have a duty to even consider her request because her “difficulties amounted to a commuting problem unrelated to the workplace and the ADA does not obligate employers to address such difficulties.” The Third Circuit disagreed and ruled that, as a matter of law:
the ADA does contemplate an accommodation that involves a shift change to “alleviate [an employee’s] disability-related difficulties in getting to work.”
Here’s the basic rationale.
First, the court pointed to language in the ADA that specifically provides that a shift change may constitute a “reasonable accommodation.” Thus, a change in shifts is a change in a workplace condition entirely under the employer’s control.
Second, the court explained that, despite Rite Aid’s argument to the contrary, the scheduling of shifts is something done inside the workplace. The court distinguished this from an employee’s request for assistance in getting to work. For example, an employer would not have a duty to provide an employee with transportation to or from work. But an employer does have a duty, where reasonable, to accommodate an employee by changing the times that the employee is required to be at work.
For a Jury to Decide
It’s important to understand that the Third Circuit’s reversal does not mean a “win” for the plaintiff. Instead, the case will be remanded back to the district court for trial. At trial, the jury will be asked to decide which party, Colwell or Rite Aid, failed to meet its obligation to fully participate in the “interactive process” required by the ADA. That decision could go either way.
The jury could find for Colwell, based on the claim that the supervisor’s flat refusal to discuss a possible shift change was not a sufficient attempt at an accommodation. Or the jury could find for Rite Aid, based on the claim that the supervisor had agreed to meet with Colwell and her union rep but when the union rep failed to show up at the meeting, Colwell quit before further discussions could be had.
Alternatively, the jury could find that Rite Aid complied with its duty to engage in the interactive process but, for whatever reason, the shift change was not a viable accommodation. This would be a more difficult burden to meet but not an impossible one.
The Key Lesson
For many employers, this case may seem to have been decided on a technicality. The line between getting an employee to work and giving the employee a shift so that she can get to work seems to be a very thin line indeed. Putting aside the narrow difference, employers should look at the facts on a more basic level to derive the lesson to be learned. In other words, what, if anything, about the supervisor’s response just doesn’t seem fair?
The fact that the supervisor refused to even consider the request doesn’t seem quite right, does it? The supervisor’s immediate response was that a shift change wouldn’t have been “fair” to other employees. That may or may not have been the case. Shouldn’t she have at least bothered to ask the other employees?
The real lesson here is one that is a consistent theme in ADA issues: employers should always try to “work something out” when an employee requests an accommodation due to a disability. If you sit down and discuss the possibilities and then flush out as many options as you can, you will be a far better position.
But do it not because you have to; do it simply because you want to. You want to keep your good performers and not to make employees’ working lives any more burdensome than necessary. This is the same reason employers provide benefits and incentive plans. The same motivation should apply when an employee makes a reasonable request—start with the idea that you want to make the accommodation and take it from there.
It’s nearly time for the newest crop of summer associates (or, to the non-legal world, "interns"), to flood law firms across the country. “Summers,” as they’re called, need a lot of care if lawyers expect them to bloom into the highly sought-after combination of brilliant legal mind and burning desire to work around the clock.
Young Conaway makes a very organized effort to help the summer class acquire as much substantive knowledge as possible by assigning work from actual (as opposed to academic) cases, while still placing “getting-to-know-you” time at a premium. I’m a graduate of our summer-associate program and take a great deal of pride in both the program and the great lawyers that it helps to produce.
In my opinion, the best thing about our summer program is the writing component, led by John Paschetto. Lucky participants have their work reviewed by the world’s kindest editor and, by the end of the summer, are writing at a level far beyond where they started a few months earlier.
John mentioned that he was compiling a list of helpful websites and online resources for use in his writing program this summer. Being the compulsive list maker that I am, I couldn’t help but lend a hand. I’ve compiled a list of 50 of the best legal-writing resources on the web, plus 25 “just-for-fun” blogs about the horrors of spelling, grammar, and style gone wrong. (Remember the “fun” component, after all.)
I’m glad to share the list with our readers, regardless of how long it’s been since you were a summer associate. The entire list is reprinted below but, if you're in a rush, here's a copy in PDF for your research file. Don't forget to share it with your favorite summer associate!
A recent story about a judge in Ohio demonstrates why employers, when drafting a social media policy, may want to consider whether employees should be prohibited from posting anonymous comments online.
More than 80 anonymous, opinionated comments posted on a newspaper’s website were traced back to the personal AOL e-mail account of Ohio Common Pleas Judge Shirley Strickland Saffold. Many of the comments related to her high-profile cases.
Saffold’s 23-year-old daughter claimed responsibility for the comments but an examination of the judge’s court-issued computer shows that it was used to access the websites at the exact dates and times that the comments were posted. Comments included personal attacks against an attorney’s performance during trial and a statement that a defendant in a murder case was given a lenient decision by a jury because of his race.
Judge Saffold and her daughter are now suing the newspaper for $50 million for its release of her e-mail address (which is how she was "caught," if it turns out that she was, in fact, the poster of the comments).
For related posts on social media and its impact on the workplace, see:
Barry Willoughby and I attended Utica National Insurance Group's 2010 School Risk Management Seminar. During the seminar, the speakers were kind enough to allow us to generally comment on the topic of what school faculty and staff must know about emerging technology to keep staff and students safe. The conversation was dynamic and attendees asked some timely and tough questions about things like how to handle staff and student use of social networking sites like Facebook, Twitter, and MySpace to how to handle "sexting" at work.
We will be covering some of these same topics at our 2010 Employment Law seminar. To give you an idea of what the topic of conversation will be at our Employment Law Seminar, my materials from the School Risk Management Seminar are attached below. I look forward to seeing you at this year's seminar in the afternoon breakout session, "Special Rules for Schools," which I will be presenting with Michael P. Stafford.
LinkedIn, a social networking site targeted towards professionals, can be used as an online Rolodex—a place to store one’s contacts and a vehicle to maintain professional relationships. As with all social networking sites, LinkedIn and its potential uses should be on the radar of employers. One of the potential issues that has been discussed is the ability to make a “recommendation” on LinkedIn, whereby one user can make positive comments about another. Some critics have raised concerns about the problems that could arise should a former employee file suit for wrongful termination and use a positive recommendation left by his supervisor as evidence to support his claim.
Another, equally serious concern is the ability of employees to upload client and customer lists as LinkedIn contacts and the inherent loss of control over those contacts resulting to the employer. An offshoot of this problem is the subject of a new lawsuit, which demonstrates yet another way that social media is affecting employers.
Portfolio.com reports about a noncompetition lawsuit filed by TEKSystems, an IT-services and staffing company. In the suit, TEKSystems names three of its former employees and one of their new employers as defendants. The suit alleges that the employees breached their noncompete and nonsolicitation obligations by contacting at least 20 of TEKSystem’s contract employees.
So far, the allegations are nothing out of the ordinary in the world of noncompete and nonsolicit lawsuits. Employee promises not to steal customers or other employees when she leaves. Employee leaves. Employee tries to steal customers or other employees. Employer sues.
But then it gets interesting. TEKSystems alleges that it can prove the breach with evidence from the defendants’ LinkedIn accounts. TEKSystems claims that one of the defendants had LinkedIn connections with 16 of its contract employees and sent messages to those connections inviting them to visit her in her new workplace.
This is the first lawsuit that I’ve heard of that is based in part on evidence from an employee’s LinkedIn account. It’s a real-life example of the potential for harm to employers that can result from employees’ use of social media and emphasizes the need for employers to take a proactive approach with social media and the workplace.
Workplace flexibility has been a hot topic, a highlight of which was President Obama's White House Forum on Workplace Flexibility, televised earlier this week. The forum was designed as an opportunity for labor leaders, CEOs, small business owners, and policy experts to share their ideas and strategies for making the workplace more flexible for workers and their families. During the conference, the President compared flexible work schedules to the early stages of email: some companies have it, some don’t, but eventually, all companies will. Get ready employers – if you haven’t gotten aboard yet, the train may run you over!
With healthcare out of the way, the administration is freed up to focus on other priorities. During the campaign, then-candidate Obama included work-life issues as an important part of his agenda, committing to expand FMLA, to prevent caregiver discrimination, and to offer incentives to employers to expand flexible work arrangements. The forum indicates that work-life issues remain a focus of this administration. Although the Obamas now have a personal chef, chauffeurs, and other assistance to make their “balance” a little easier, I am sure that Michelle’s experience managing a demanding career and raising her two girls has helped to ensure this issue remains on the President’s radar screen.
The discussion has taken different varied focuses over the years, but the bottom line is this: for many reasons, in order to retain employees in the modern workforce, employers have to reinvent the old model of an ideal worker. Flexible work schedules are over and over again focused on as the reasonable way to accommodate the needs of both employer and employee. The impetus for employers to engage in this discussion has evolved a bit over the years.
First, employers were interested in the topic primarily due to the economics of investment in skilled workforce (particularly professional women), who often left the job because unable to balance their work and family responsibilities. Then Gen Y came along, with both males and females placing a greater value on “down” time, whether with family or pursuing other activities. Gen Y consistently ranks workplace flexibility among the most desirable employment benefits. With the economic downturn, the discussion turned to how flexible schedules could immediately help the bottom line (4-day workweeks, voluntary reduction in hours for reduction in pay, etc.).
Law and politics have not shied away from the discussion: both Republican and Democratic administrations have made important advancements to the cause of work-life balance. In 2007, the EEOC under the Bush administration issued it Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiver Responsibilities. In 2009, Obama’s administration issued Employer Best Practices for Workers with Caregiver Responsibilities, which focused primarily on flexible work arrangements. The White House Forum has work-life balance advocates everywhere eager to see what will come next!
See these related posts for more about work-life balance:
Courtesy of Someecards, home of some of the most sarcastic, yet endearing, online greeting cards around:
Happy April Fool's Day!
In 1989, when the Internal Revenue Service wrote the first proposed regulations for health flexible spending accounts (“FSAs”), it came up with the requirement that health FSAs must exhibit the “risk-shifting and risk-distribution characteristics of insurance”. This concept has been translated into of the “uniform coverage” rule.
The uniform-coverage rule requires that the maximum amount of an employee’s elective contributions to a health FSA must be available from the first day of the plan year to reimburse the employee’s qualified medical expenses. This means that if an employee elects to contribute to the health FSA $100 per month for the year, the employee must be reimbursed for qualified medical expenses up to the full $1,200 from the first day of the year, regardless of the amount actually contributed to the plan at the time that reimbursement is sought.
Under the uniform-coverage rule, an employee can potentially terminate employment having been reimbursed under the health FSA for more than she contributed up to the time of her termination. This rule has caused most employers to limit the amounts that employees can contribute to a health FSA, even though, prior to the effective date of provisions in the recent healthcare reform legislation ($2,500 annual cap after 2012), there is no statutory limit on contributions to health FSAs.
On March 26, 2010, the IRS released Chief Counsel Advice No. 201012060 (pdf), in which the Chief Counsel concluded that, if an employee's reimbursements from a health FSA exceed her contributions to the health FSA at the time of the termination of her employment, the employer cannot recoup the difference from the employee. Neither the previous proposed regulations nor the current proposed regulations regarding health FSAs (Prop. Treas. Reg. § 1.125-5(d)(1) (pdf)) stated explicitly that such recoupment is not permitted. This has always been known by practitioners to be the rule, much to the chagrin of our clients. Any attempt at recoupment of this sort will remove the risk shifting/risk distribution and result in the loss of favorable tax status for the benefits paid under the health FSA.
*This post was written by Timothy J. Snyder, Esq. Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections. His primary area of practice is employee benefits, which involves both the benefit provisions of provisions of the Internal Revenue Service and ERISA. He represents business and professionals in establishing, monitoring, and administering employee-benefit plans, new comparability retirement plans, non-qualified deferred-compensation plans, health, disability and life benefits, COBRA, HIPAA, ADA and ADEA.