Lawful Discrimination and Off-Duty Conduct

Posted by Molly DiBiancaOn February 20, 2013In: Off-Duty Conduct

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Is discrimination ever legal? Most definitely. We all discriminate all day, every day. For example, nearly every morning, I discriminate against decaf coffee in favor the full-strength brew. The two pods are similarly situated right there in the rack. They brew in the same amount of time and cost the same. But I just can't bear the thought of the decaf.

Is my coffee choice discriminatory? You bet. Is it unlawful? Good heaven, let's hope not.

The same is true for the workplace. Employers can make employment decisions (i.e., discriminate), based on all sorts of things. Like who is the faster typist. Or who has the least number of dress-code violations. Choosing not to promote the employee who spends most mornings checking his Facebook account is discriminatory and it's totally lawful.

Off-duty conduct is similar is many ways. In most states, including Delaware, private employers can make adverse employment decisions, including the decision to not hire, based on an employee's or applicant's off-duty conduct. The rules are different for public employers.

An example of employment discrimination based on off-duty conduct that seems raise a lot of eyebrows is discrimination based on smoking. Approximately 30 states have a "smokers'-rights" statute, which protects individuals who use tobacco from workplace discrimination. But Delaware is not one of those states. Thus, in Delaware, employers can decide not to hire (or employ) any individual who smokes or uses tobacco.

Pennsylvania is another state without a smokers'-rights statute. Which is why the University of Pennsylvania Medical System's announcement that it will no longer hire smokers did not come as a big surprise. The Hospital of the University of Pennsylvania announced that it will permit current employees to continue to use tobacco--although those employees already pay a "smoker's surcharge"--an extra charge added to the employee's health-insurance payments.

New employees, however, will have to be tobacco free for 6 months in order to qualify for a position. And new employees, including doctors, who are found to have lied about their tobacco use may be terminated.

But not all new employees. Applicants for the Hospital's facilities in New Jersey get a pass because that state has a smokers'-rights statute.

Much to the Hospital's credit, it has published a great deal of information about the policy on its website.

Related Posts:

Bans on Smokers In the Workplace Continue
Health vs. Privacy: Employers Continue to Juggle Both
How Far Should Employers Go When It Comes to Employees' Health?
Not Everyone Is Fired Up About Smoking Ban
Employer Quits Its Smoking-Penalty Policy
Smokers' Rights in the Employment Context

New FMLA Forms and Poster Now Available

Posted by Molly DiBiancaOn February 19, 2013In: Family Medical Leave

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The Family and Medical Leave Act (FMLA) took effect 20 years ago.  To celebrate, the DOL released a survey on the impact and use of the FMLA.  According to the DOL, the survey found that “misuse of the FMLA is rare.”

Now, for those of you who have not laughed yourself right out of your chair, congratulations. For the rest of us, the reality is that FMLA abuse is, in many, many workplaces, a significant problem and, I bet many employers would say, maybe the most misused workplace law today.  Of course, I don’t have a survey to back up my conclusions. But there you have them, anyway.

Putting aside the issue of employee misuse and abuse, employer compliance with the FMLA is difficult, to say the least. It’s a very technical statute and seemingly harmless oversights can land an employer in court. 

One of the easiest ways to improve your odds of not getting it wrong with the FMLA is to use, consistently, the DOL’s standard forms.  Use of the forms is voluntary—you may, lawfully, use your own forms and/or create your own letters and abandon forms altogether.  But, really, why?  The FMLA is not a law for which creativity will be rewarded. 

The DOL has just released updated FMLA forms.  Download the forms and, if you don’t use them (and, really, why wouldn’t you?), at least take this opportunity to review your own forms and letters to be absolutely sure that you have encompassed every aspect of the DOL’s versions. 

Forms relating to military caregiver leave for a veteran are not included in the revised forms.  That rule does not take effect until March 8, 2013.  In conjunction with that effective date, though, comes another important requirement— a new FMLA workplace poster.  The new poster has an updated section regarding Employee Rights and Responsibilities.  You can download the poster from the DOL’s website.

Until then, you can download the rest of the forms (in PDF) for your review and use using the links below or, if you prefer, download the whole lot in a single PDF containing all of the new FMLA forms.

Another Employer's Auto-Deduct Policy Is Upheld

Posted by Molly DiBiancaOn February 19, 2013In: Fair Labor Standards Act (FLSA), Wages and Benefits

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In Creely v. HCR ManorCare, Inc., a class of 318 nurses, LPNs, CNAs, an admission coordinators alleged that they had not been paid for time worked during meal breaks. The employer was a nationwide provider of short- and long-term medical and rehabilitation care with more than 300 facilities. Each facility had its own management team and HR personnel but its policies were developed at company headquarters and implemented at all facilities.

The employer's meal-break policy required that hourly employees take a daily 30-minute meal break. The employer's timekeeping system automatically deducted 30 minutes from the time worked a shift longer than 5 or 6 hours.

Employees did not clock in or out for their breaks. An employee who missed a break was required to fill out a "missed-punch" form and submit it to a manager, who would sign it and turn it into the Payroll Department. Payroll personnel would then adjust the timecard to reverse the automatically deducted 30 minutes.

Unlike the plaintiffs in White v. Memorial Baptist Hospital, the plaintiff-employees here did not argue that the policy was per se illegal. They also did not argue that the employer had an unofficial "policy to violate" its lawful policy. Instead, they argued that they were denied overtime pay due to the employer's implementation of the auto-deduct policy. Specifically, they claimed that they had not been paid for breaks that they'd not taken because:

1. Defendant illegally shifted the burden of monitoring time worked to the employees by requiring them to cancel the automatically deducted time;
2. Defendant took no affirmative measures to monitor whether the employees actually received their meal breaks;
3. Defendant failed to train or inform employees or management what to do if a meal break was missed or interrupted; and
4. The employees didn't report missed breaks because they were discouraged from doing so.

It was these arguments that led the court to decertify the class, finding that the plaintiffs were not similarly situated for the purposes of the FLSA. The court found that the application of the lawful auto-deduct policy varied between managers and facilities. For example, some managers provided follow-up training to the plaintiffs on the missed-punch forms, while other managers were accused of actively discouraging the plaintiffs from submitting the forms. In other words, the Plaintiffs' knowledge of and training on the policy, and the application of the policy itself, varied in large part depending on the individual managers at the employer's facilities.

This case is yet another in a growing line of auto-deduct cases that fail at the final certification stage.
Creely v. HCR ManorCare, Inc., No. 09-2879 (N.D. Ohio Jan. 31 2013).

See also
The Legality of Automatically Deducting Meal Breaks
E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks

Manager's Drunk Facebook Post Leads to Retaliation Claim

Posted by Molly DiBiancaOn February 18, 2013In: Retaliation, Social Media in the Workplace

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Readers may recall the case, Stewart v. CUS Nashville, LLC, which is one of the few opinions on the discoverability of a party's social-media account. There were at least a couple of interesting issues in that decision but the most interesting part may be that the defendant is the entity that owns and operates Coyote Ugly Saloons. That's right--the one from the movie, where hot bartenders dance on the bar.

The case was initiated by two of those (presumably hot) bartenders, Misty Blu Stewart and Samantha Thomas. They originally brought claims under the FLSA, alleging an unlawful tip-pooling policy. Those claims are quite interesting--so much so that I'm going to write a separate post about them later in the week. So stay tuned for the FLSA angle.

In the meantime, I have to write about the retaliation claims that the named plaintiffs added to their complaint.

The Allegations
First, Ms. Misty Blue Stewart (yes, really). Ms. Stewart worked at the Coyote Ugly saloon in Nashville until she was fired for giving away free drinks (a/k/a stealing), in December 2009.
Ms. Stewart claims that, one month after she initiated her FLSA claim in April 2011, the founder and president of the franchise, Liliana Lovell, wrote a post on her blog, which is hosted on the Coyote Ugly website about the lawsuit: "This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft."

[Side Note: The rest of the post is pretty hilarious. You can read it on the Technology & Marketing Blog, where Venkat Balasubramani wrote about the case.]

Ms. Stewart had already found a new job, so she had no economic damages. Instead, she claimed that was "humiliated and embarrassed by the blog entry."

Second, Ms. Stone. Stone worked at the saloon in Oklahoma City. Her retaliation claim was based on two comments made by the Director of Operations, Mr. Huckaby. Huckaby was in town for a party that was being held at the saloon and, like all good Directors of Operations tend to do, apparently found himself two sheets to the wind before the night was over.

While under the influence, Huckaby posted on his Facebook page, "Dear God, please don't let me kill the girl that is suing me . . . that is all. . ." Stone, who was (of course), Facebook friends with Huckaby, saw the post about an hour later. The post was gone by the next day. Huckaby does not remember making the post or removing it.

The second comment occurred the next night. Ms. Stone testified that Huckaby learned that a customer had fallen down the stairs in the saloon and had threatened to sue. In response, Huckaby yelled out, "Why does everyone sue? I'm tired of all these bi***es taking their issues out on our company. They're f***ing idiots."

Ms. Stone testified that, although Huckaby was looking at the saloon manager, Amber Almond (yes, really, again), he sort of looked towards Ms. Stone as he yelled. Stone quit the next day and alleged constructive discharge. Huckaby does not remember making the statement.

The Decision

I'll start with my conclusions because, heaven knows, I hate to bury the lead. I think the court got this one wrong. As in wrong. So, there, I said it. I think this was a bad decision. You can decide for yourself.

With respect to Misty Blu, the court found that there was sufficient evidence of retaliation to survive the employer's motion for summary judgment. The employer argued that there was no evidence of an adverse employment action--a necessary component of a retaliation claim (i.e., an adverse action must be taken because of protected activity). The court disagreed and found that the comment in the founder's blog post about being fired for theft was, if false, enough to constitute an adverse action.

Here's the main problem I have with that decision--the employee had not been an employee for about 16 months at the time of the blog post. Not to mention that the employee was not referenced by name. And not to mention that there was no evidence that the employee hadn't been terminated for theft. The court seems to confuse a statement that the employee committed theft with a statement that she was fired for theft. They're not the same thing, are they?

Okay, moving on to Ms. Stewart. The court held that Stewart's claim of constructive discharge also could survive summary judgment. The sum total of the evidence that Stewart presented in support of this claim was as follows, assuming everything in her favor:

1. A manager from Corporate made a snarky comment--without naming any names or even job titles--apparently while in the bag, which Stone viewed for all of two seconds and which was taken down a few hours later.

2. The same manager, who, let us not forget, was in town only for this party, made a comment about "bi***es" who sued the company upon learning that the company was being sued by someone other than the plaintiff.

Folks, if this constitutes a constructive discharge, well, color me confused. How the court concluded that these two incidents could lead to the type of intolerable conditions that are required to warrant a constructive discharge is beyond me. Maybe the standard is significantly different in the 6th Circuit. Because here, in the 3d Circuit, the standard requires far more dire conditions. Thankfully.

After all of that has been said, though, where are we? What are the lessons of today's post? Well, try these on for size:

1. Please, please, please, discourage your supervisors from being Facebook friends with employees. It's a bad idea. Particularly if your supervisors have a tendency to "drunk post" from the workplace.

2. Don't let employees check Facebook while they're on the clock. Yeah, yeah, I know. You disagree. But if Stewart hadn't been permitted to check Facebook from her phone while on the clock, she wouldn't have seen Huckaby's post, which was gone a few hours later.

3. If you're the owner, founder, senior executive, etc., don't comment about confidential matters--including lawsuits and employee issues--on the company's publicly available blog. (Interestingly, the only other time I've seen this was also with a female bar owner, who made a similar comment on her Facebook comment and was sued for retaliation, which leads me to the next and final lesson for today. . . )

4. Read this blog. Had Ms. Lovell read the post I mention above about how social-media rules also apply to supervisors, maybe she would have avoided the whole mess.

Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Feb. 6, 2013).

Going Gaga over the Not-So-Little Overtime Monster

Posted by Molly DiBiancaOn February 13, 2013In: Fair Labor Standards Act (FLSA), Wages and Benefits

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Lady Gaga has cancelled the remaining dates in her Born This Way Ball tour. Try to hold back those tears, dear readers. I know you're upset.

I, too, am upset by this news, particularly because I had tickets to next week's show in Philadelphia. Ok, I didn't buy the ticket, it was a gift, but, dag nab it, I was going to put it to good use! Although "Mother Monster," as she's known, doesn't exactly make regular appearances on my playlist, she's supposed to put on one heck of a show and, by George, I was excited to see it!

Alas, it appears that the Rock 'n Roll gods, which would be the musical gods I pay homage to most days, may be punishing me for straying into the land of popular music. Hopefully I will be forgiven by attending the Mumford & Sons show on Sunday and The Who show in Atlantic City next Friday.

But I digress. Back to Gaga.

As I said, I am disappointed to hear that Gaga won't be able to perform next week. Disappointment is a sentiment that the pop star understands. She was very disappointed when her former personal assistant (and personal friend), sued her in federal court.

In the suit, the assistant, Jennifer O'Neill alleges that she is owed more than 7,000 hours in overtime pay because, she claims, she was "on call" 24 hours a day, 7 days a week. (No, really, that's what she alleges). She was paid--in case you're wondering--$75,000 per year.

Lady Gaga's defense rests, in part, on her claim that the assistant was not "on the clock" during all of those long nights but, instead, was hanging out with Gaga as her friend. Gaga insisted that she and O'Neill were spending time together as friends, not as employer and employee. Gaga went on to say that she had showed O'Neill the "time of her life," and that O'Neill "slept in Egyptian cotton sheets every night, in five-star hotels, on private planes, eating caviar."

That may be all well and true but it does not serve as a legal defense to a claim for unpaid wages. The FLSA provides that workers cannot waive their right to wages earned. So, even if O'Neill had said, "Ahh, Gaga, you needn't pay me anything for this work. It's payment enough that I have the honor to hang out with such a superstar and her jet-setter friends," she would not have waived her right to be paid for time worked.

Of course, that doesn't mean that she's entitled to overtime, either. We'll have to wait and see what the court says.

Until then, though, here's a snippet of entertainment to hold you over. During her deposition, Gaga gave plenty of entertaining testimony, as reported by the New York Post. Many of her comments sound like what I'd like to say to FLSA plaintiffs. Here are a few other gems with my comments in brackets:

"Are you going to stare at me like a witch this whole time -- honestly?"
[How many times I would have liked to say that to my opposing counsel and/or the plaintiff who is sitting across the table from me, giving me the death stare.]

"I'm quite wonderful to everybody that works for me, and I am completely aghast to what a disgusting human being that you have become to sue me like this."
[The sentiment of many employers, who feel the same way when an employee files suit.]

"You don't get a schedule that is like you punch in and you can play [expletive] Tetris at your desk for four hours and then you punch out at the end of the day. This is -- when I need you, you're available."
[Boy, that sounds an awful lot like "you're on call."]

And, now, my personal favorite:

"This whole case is bulls--t, and you know it."
[Well, that pretty much sums it up, doesn't it?]

Maybe Gaga is cooler than I've given her credit for, after all. For more celebrity testimony, see this post about rap star Lil' Wayne's deposition.

Posting Vacation Pics on Facebook While On FMLA Is a Bad Idea

Posted by Molly DiBiancaOn February 12, 2013In: Family Medical Leave, Leaves of Absence

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The FMLA turned 20 last week and there has been a flurry of articles and posts discussing how the FMLA has changed the workplace, whether it imposes too high of a burden on employers, and predicting how it will likely continue to evolve. All of the academic commentary aside, though, we all know that the FMLA is no easy row to hoe. The truth is that the law is a very technical one and its application must comply with very detailed technical requirements.

Which is why we get all sorts of excited over FMLA cases that are resolved in favor of employers. The case du jour is precisely that--a win for the employer. It's such a great set of facts, though, that I'm going to switch up the normal order of things and start today's post with my "lessons learned." Admittedly, they're a bit snarkier than usual. But, I dare say, spot on.

5 lessons for employees to learn from Lineberry v. Richards:

1. Give serious consideration to whether you should be Facebook friends with your coworkers. They'll rat you out in a heartbeat and you're a fool if you think otherwise.

2. Don't demand or request sympathy from your "friends." If they really are your friends, you wouldn't be asking. Whining about why you have not received a get-well card constitutes a request for sympathy.

3. Do not press "Send" until you have cooled off. Getting into an email flame war is never a good idea. It is a very, very bad idea when your boss is the target of your flames. It is an even worse idea when you tell tall tales in the inflammatory email. After all, what you type can and will be used against you in a court of law (and by your employer).

4. Don't lie, dummy. You'll get caught. There are cameras everywhere, including at the airport and in your friend's hands as they snap your vacation photos.

5. Don't sue your employer after you've been fired for lying. If your employer wins, information about your case and related acts of deceit will be posted all around the Internet. It may be embarrassing.

The Facts

The plaintiff-employee was working as a full-time R.N. for the defendant-hospital when she was injured on the job. She was approved for FMLA leave for the maximum 12-week period. By all accounts, she was a good employee with satisfactory performance.

While on FMLA leave, the employee took a prepaid, planned vacation to Mexico. Her physician (who worked at the hospital), approved the vacation and testified that it would not conflict with her recovery.

During her leave, her co-workers saw pictures of the employee on her Facebook page, which showed her on vacation, riding in a motorboat, drinking, etc. She also posted pictures of herself holding her infant grandchildren--one in each arm as she stood. In her status updates she talked about trips to Home Depot, babysitting her grandkids, and taking online classes.

Her co-workers complained to their supervisors about what they considered to be a misuse of FMLA leave. About half-way through her leave, the employee sent her supervisor an email complaining that she had not received a get-well card from coworkers. Her supervisor responded:

[T]he staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.

The employee, apparently unable to hold back, sent the following email reply:

As far as the airport, customs, etc., goes, I was in a wheelchairbecause I couldn't stand for that long. As far as the plane goes (3.5 hour flight), I was up and down the entire flight, but sitting is so much easier on me than standing. I am able to walk short distances, but am unable to stand for more than 10 minutes at a time.
* * * * *
I want to come back to work as soon as possible and wouldn't have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time.

The next week, her supervisor reported her belief that the employee was misusing her leave. On the same day the employee was approved by her physician to return to work, the hospital's HR and Loss Time Management departments decided she would be terminated.

In accordance with the hospital's progressive-discipline policy, the employee was called in for an investigative meeting prior to her termination. At the meeting, the employee reiterated that she had used a wheelchair in all airports on her trip. When the hospital's Director of Security Investigations presented the employee with the Facebook pictures, she admitted that she had lied and, in fact, had never used a wheelchair on her vacation.

She was fired for violating the hospital's policy prohibiting "dishonesty, falsifying, or omitting information." The employee sued, alleging that the hospital unlawfully interfered with her FMLA rights by denying her reinstatement upon return from leave and by retaliating against her for taking FMLA leave.

The court granted summary judgment to the employer on two alternative grounds. First, the court found that there was no evidence that the employee was terminated as a result of her FMLA leave. Instead, she was terminated because she violated the hospital's policy against dishonesty.

Alternatively, the court found that the employer was entitled to summary judgment under the "honest-belief" doctrine because the employer honestly believed, based on particularized facts, that the employee lied and misused her FMLA leave.

For those of you who may be keeping score, this counts as a "W" in the Employers' column.

Lineberry v. Richards, No. 11-13752 (E.D. Mich. Feb. 5, 2013).

[H/T to the Disability Leave Law Blog]

Lessons from a Shooting Close to Home

Posted by Molly DiBiancaOn February 12, 2013In: Delaware Specific, Workplace Violence

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Delaware experienced a tragedy yesterday at the New Castle County courthouse. As reported by ABCNews.com, a man embroiled in a custody dispute entered the courthouse lobby this morning shortly after 8 a.m. and opened fire, fatally wounding two women and injuring two Capital Police officers. The shooter exchanged gunfire with the officers and died at the scene.

The courthouse is just a few blocks away, on the same street as our firm's offices. Reports of the story spread quickly but were not confirmed until this afternoon. The courthouse was evacuated and will be closed tomorrow.

Gun violence certainly has been on the minds of many of us in the past several months. The dialogue has even extended to the topic of guns in the workplace. For example, despite the devastating events of the recent past, some state legislatures are considering legislation that would permit employees to keep loaded firearms in their vehicles, even in the employer's parking lot.

According to this post at Fox Rothschild's Employment Discrimination Report, 20 states have adopted a "parking-lot" law. Al Vreeling offers his thoughts on Alabama's recently proposed law in Guns Do Not Belong In the Workplace, at HR Hero.

Oklahoma's "open-carry" law takes a different approach and, as I understand it, provides an exception for employers, preserving their right to manage the workplace with the policies of their choosing. For those who are interested, our friends at McAffee Taft are hosting a free webinar, Guns or No Guns--Weighing Workplace Weapons Policies, on this issue on February 21.

Enforceability of Non-Compete Agreements in Delaware

Posted by Molly DiBiancaOn February 10, 2013In: Non-Compete Agreements

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Delaware's Court of Chancery is the court of choice for employers seeking to enforce non-compete agreements. As Delaware practitioners know, the Court has a long-standing practice of ruling from the bench, particularly in cases in which injunctive relief is being sought and where time is of the essence. See this post on the Delaware Corporate and Commercial Litigation Blog ("Regular readers will know that transcript rulings are often cited in this court as valid authority.") And this practice means that transcripts are an important, if not critical, source of information about how the court is likely to rule.

Vice Chancellor Glasscock served as a Master in the Court of Chancery for 12 years before being appointed to Vice Chancellor in 2011. Having been on the bench as Vice Chancellor for just a year, his non-compete opinions are limited. Which is why the transcript from a recent preliminary-injunction hearing offers Delaware counsel important insight.

Bridgeport Tank Trucks, LLC v. Smith, involved a non-compete agreement that resulted from the buyout of a business. As a result of the sale, the defendant, Mr. Smith, was subject to a restrictive covenant for a five-year period. The agreement did not contain a geographic restriction.

At the end of the five years, the plaintiff, Bridgeport Tank Trucks learned that Smith was in violation of the agreement and filed suit in the Court of Chancery seeking a preliminary injunction. At the preliminary injunction hearing, the Court addressed several important questions facing litigants in non-compete cases. Here are some of the highlights:

Temporal Restriction
In the employment context, a non-compete agreement is not usually enforceable for a period longer than two years. But when the agreement is tied to the sale of a business, the court general permits a longer period of restriction. That certainly was the case here, as the Court explained that it saw nothing "shocking" about the five-year limit.

Geographic Restriction
The Court did not make much of the absence of a geographic restriction in the agreement. In fact, the Court concluded that it would be able to "readily determine what area [the agreement] was meant to cover" from the "words of the agreement and extrinsic evidence." But perhaps more important to the Court's decision on this issue was the undisputed fact that Mr. Smith was competing in the area that the agreement would most certainly cover, even if construed narrowly.

Enforceability Provision
The Court found that the agreement was enforceable on its terms but noted that the parties had included a provision that they would not challenge enforceability. Although the Court did not expressly rely on this provision, it did seem to find the provision to be legitimate.

Extension of the Restricted Period
Parties seeking to enforce a non-compete agreement often request that the Court use its equitable powers to toll the restricted period. The Court does not commonly grant this request but, in Delaware, it is a potential component of the equitable relief. Here, the Court indicated that it would not toll the restricted period but acknowledged that it does have the discretion to do so.

The Court's indication that it would not toll the restricted period was really what decided the case. At the time of the hearing, there were just four months left before the covenant expired. The Court expressed concern that it was not likely to issue a decision before the end of the four months. Additionally, the Court explained that the injunctive relief sought by the plaintiff--that Mr. Smith either take his company out of business or sell his business--was not something that Court was inclined to order before a full trial on the merits.

Based on that Catch 22, the Court "suggested" to the parties that they consider reaching a settlement that would not be as drastic as the forced closure of Mr. Smith's business, while still protecting Bridgeport's rights. The Court stated that it would reconvene in one week's time. In the meantime, the Court explained, the parties should attempt to come up with some creative resolutions for their dispute, thereby avoiding the risks inherent in litigation.

The parties took the Court's advice and settled before the week had concluded. So, although we don't get a final ruling on the merits in this case, we do get some useful insight and commentary from Vice Chancellor Glasscock.

[H/T to Larry Cronin, who represented the Plaintiff in this case and who was kind enough to alert me to the case.]

Party Like It's the FMLA's Birthday

Posted by Molly DiBiancaOn February 8, 2013In: Family Medical Leave, Leaves of Absence, National Defense Authorization Act (NDAA)

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The Family Medical Leave Act (FMLA) celebrated its 20th birthday this week. And boy, oh boy, was the DOL was ready to celebrate!

And what kind of birthday would it be without a party? Acting Secretary of Labor Harris hosted a commemoration program that featured celebrity special guests, including former President Bill Clinton, former Senator Christopher Dodd, and former labor secretary Hilda Solis, among others. The entire program, which lasts about an hour, is viewable on YouTube.

But wait, there's more!! On February 5, the actual anniversary of the day the FMLA was signed into law, the DOL issued a final rule implementing expansions that cover military families and airline flight crews. Under the rule, military family members can take leave to care for a covered veteran who is seriously ill or injured. They can now take additional time, up to 15 days of leave, to be with a service member who is on leave from active duty. Additionally, the rule expands the FMLA's protections to airline pilots and flight crews who were frequently ineligible for FMLA due to their unique work schedule.

And, for those who really can't get enough of the FMLA, there is a new survey, "Family and Medical Leave Act in 2012: A Final Report," which was released just in time for the big celebration. According to the DOL, the survey shows that the FMLA "has had a positive effect on the lives of millions of workers and their families without imposing an undue burden on employers."

And, now, one for the road. Last month, the Wage and Hour Division issued an Administrator Interpretation providing guidance on the definition of "son or daughter" under the FMLA as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. Fact Sheet, FAQs

That ought to satisfy your FMLA thirst this Friday. Have a great weekend!

Give Me Some Credit! EEOC Credit-Check Case Dismissed

Posted by Lauren Moak RussellOn February 6, 2013In: Background Checks, EEOC Suits & Settlements, Hiring

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"Give Me Some Credit!" Maybe that's how the EEOC feels these days, after its high-profile suit against Kaplan Higher Education Corp. was dismissed on January 28, 2013. As readers may remember, the EEOC sued Kaplan in 2010, alleging that its pre-employment credit check policies had a disparate impact upon Black job applicants.

In a 23-page opinion, the U.S. District Court for the Northern District of Ohio dismissed the suit on Kaplan's Motion for Summary Judgment. The Court first excluded the expert witness testimony offered by the EEOC, holding that it was scientifically unsound. Expert witness testimony is key in disparate impact cases, because they rise and fall on the percentage of job applicants from a given classification as compared to the percentage of hires in the same classification. Among the key problems for the EEOC was that Kaplan, like many employers, does not collect demographic information on the race of job applicants. As a result, EEOC struggled to identify the races of those applicants that were rejected due to credit problems. In an effort to remedy the problem, the EEOC subpoenaed records from state DMVs, and used a team of "race raters" to review the DMV photos and assign races to the job applicants. The Court, not surprisingly, rejected this approach and the resulting expert witness analysis.

Next the Court addressed Kaplan's Motion for Summary Judgment. In the absence of any statistical evidence demonstrating an adverse impact caused by the use of credit checks, the Court held that the EEOC's case had to be dismissed.

There are several interesting considerations arising out of this litigation. First, as the Court's decision noted, the EEOC itself uses credit checks to vet job applicants! This should not come as a great surprise, as many employers use credit checks as one of a litany of tools at their disposal to identify the best-qualified candidates. Nonetheless, for an agency that has widely publicized the pitfalls of background checks in the hiring process, its adoption of the practice calls its hardline stance into question.

Second, the EEOC's past enforcement practices gave rise to many of its difficulties in this case. Many employment law attorneys discourage their clients from collecting race, gender, and other protected-characteristic data during the application process. In the past, the EEOC has used such information to support disparate hiring claims. Kaplan, in complying with EEOC best practices, deprived the EEOC of information that it needed to prove its case, thereby leading to the rejected "race rater" approach.

Finally, many employment law experts and EEOC-watchers are wondering if the Court's decision will put a damper on EEOC enforcement efforts directed at background checks. As readers of this blog know, background checks have been in the EEOC's cross-hairs for quite some time, with new guidance issued on the use of criminal background checks in April 2012. In light of the hurdles faced in this case, many are speculating that the EEOC may back off of its efforts to litigate these issues, focusing instead on conciliation efforts.

Only time will tell. In the meantime, employers can rejoice in a victory for the reasoned and supportable use of pre-employment credit checks.

I Believe, I Believe! A Vegan and a Flu Shot

Posted by Molly DiBiancaOn February 5, 2013In: Discrimination, Religious (Title VII)

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Can an employee be required to get a flu shot? Employers want a healthy workforce and, presumably, employees do not want to be sick. So a flu shot seems like a good idea. And an offer of a free flu shot for employees seems like a great perk.

But the goodwill-nature of a suggestion always seems to change when a suggestion turns into a requirement. Maybe it's just the rebellious teenager in all of us that reacts negatively to being told that we must do something. Maybe we all have authority issues. I don't know what it is about being ordered to do something that seems to set off an automatic negative response.

The real trick, though, is how to respond to that negative response. Push back? Stand your ground and insist? Or give in and abandon your request? This is the question that one employer had to deal with when its employee refused to get a flu shot.

In Chenzira v. Cincinnati Children's Hospital Med. Ctr., the employer required its employees to be vaccinated for the flu. Ms. Chenzira had worked for the hospital for 10 years when she was terminated for refusing to be vaccinated. She alleged that she refused on religious and political grounds because, as a vegan, she does not ingest any animal or animal by-products.

The employer moved to dismiss the complaint on the grounds that Veganism is not a true religion but, instead, is more of a dietary preference or social philosophy. The court denied the employer's motion, finding that the plaintiff-employee may be able to establish that veganism meets the requirements of a religious belief for purposes of Title VII's anti-discrimination provisions.

It is important to note that the court did not find that Veganism is or is not a religion. Instead, it merely held that, based on the face of the complaint, it was plausible that the plaintiff would be able to show that she subscribed to Veganism with a religious-like sincerity.

Here are two points to consider from this case.

First, take a deep breath and slowly exhale. Don't overreact. When a 10-year employee refuses to get a flu shot, consider whether this is a truly terminable offense. I would suggest that, based on the facts as they are described in the court's opinion, the answer is, "no." If it's not, let it go and move on. (The same advice applies in the context of Facebook comments by employees).

Second, do not be the arbiter of morality. Do not make a decision about whether an employee holds a "true belief" with regard to their religion (e.g., "She's not a real Catholic; she never goes to mass!"). And do not make decisions about whether a particular belief qualifies as a religion, as was the case here.

Instead, consider the practical approach. If the employee had not gotten a flu shot and she got the flu, would it have been the end of the world for the employer? Probably not. Although there are plenty of times when standing on principle is the right approach. But that is not always the case. There also are plenty of times when the better approach is a practical one.

Chenzira v. Cincinnati Children's Hospital Med. Ctr., No. 11-917 (S.D. Ohio Dec. 27, 2012).

Down But Not Out, Baby

Posted by Molly DiBiancaOn February 4, 2013In: Social Media in the Workplace

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Ok, dear readers. No doubt that, by now, you think I've abandoned my post. Fear not, loyal readers, fear not. I am entirely certain that I am now, once and for all, through with the bit of illness that managed to slow me down for the first three weeks of the new year. Now that February is here, though, I am absolutely determined to get back to it.

The story featured in today's post highlights a similar sense of bullish determination of a different sort. The story, which came to my attention courtesy of Evan Brown at Internet Cases, involves a 911 supervisor in New York. The supervisor-petitioner photographed a computer screen containing confidential and privileged information concerning a 911 caller's complaint of a gynecological emergency.

He also photographed the caller's name, address and telephone number, all of which he uploaded the image to his Facebook account, along with the caption "[c]an't make this up." Actually, what you can't make up is that the petitioner had the nerve to appeal his termination. Bullish determination, indeed.

Thankfully, the Court affirmed the decision to terminate, finding that, because the Facebook post violated the FDNY's policies and was a serious violation of trust (not to mention HIPAA!) the penalty imposed did "not shock [the Court's] sense of fairness."

Palleschi v. Cassano, No. 9104, 2013 N.Y. App. Div. LEXIS 433, 2013 NY Slip Op 437 (N.Y. A.D. 1st Dept. Jan. 29, 2013).

3d Cir. Issues a Bitchin' Constructive Discharge Decision

Posted by Molly DiBiancaOn January 24, 2013In: Harassment, Sexual, Retaliation

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Sexual harassment, retaliation, and constructive discharge. The trifecta of employment-discrimination claims. And all three were the subject of a recent decision from the 3d Circuit. The decision contains lots of interesting discussion points but I'll limit myself to just one for the purposes of this post.

The plaintiff-employee contended that she resigned because her boss called her a "bitch" during a meeting. The court explained that, to establish a constructive discharge, the employee must show that "the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." In determining whether the employee was forced to resign, the court looks to several factors, including whether she was threatened with discharge, encouraged to resign, demoted, subject to reduced pay, involuntarily transferred to a less desirable position, subject to a change in job responsibilities, or given poor performance evaluations.

So is being called a "bitch" at a meeting so bad that it could force an employee to quit?

You may be surprised to learn that the 3d Circuit did not answer this question in the negative. Nor did it find that this single incident was sufficient to constitute a constructive discharge.

Instead, it sent the question back to the trial court. The trial court had dismissed the claim based only on its dismissal of her sexual-harassment claim. Although the district court was correct when it determined that there cannot be a constructive discharge unless there was conduct over and above a hostile work environment. The district court held that, since there was no hostile work environment, there could not be a constructive-discharge claim. Although that theory is correct, the 3d Circuit explained, the district court had erroneously found that there was no hostile environment. Thus, the 3d Circuit directed the trial court to reevaluate the constructive-discharge claim after it had taken a second look at the hostile-environment claim.

Mandel v. M&Q Packaging Corp., No. 11-3193 (3d Cir. Jan. 14, 2013).

Don't Be a Quitter: The Duty to Mitigate

Posted by Molly DiBiancaOn January 23, 2013In: Discrimination & Harassment, Purely Legal

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An employee who is unlawfully terminated may be entitled to recover damages in a variety of forms, including front pay. Front pay can be a frightening prospect for the employer-defendant--just imagine having to pay a former employee for time he doesn't work for you. Not pleasant.

But, as is the case in most employment laws, the rules tend to balance out in a fair way. An employee who claims she was unlawfully terminated because of her gender cannot merely sit at home indefinitely and wait to collect a big jury award. The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate her losses.

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If an employee fails to look for work at all and, instead, elects early retirement, her damages are tolled. In other words, she will not be eligible for an award of front pay during any period in which she is not actively seeking work. The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment. If, instead, she elects to stay home and watch soaps all day, she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.

So, on one hand, if the employee makes constant and good-faith efforts to seek similar employment, she is eligible to receive front pay if victorious on her claims. On the other hand, she will receive no front pay if she voluntarily elects to remove herself from the job market. But, as with everything in the law, there are countless variations in between these two extremes.

For example, what if the employee decides not to look for work so she can stay home with her young children? But, once the kids are old enough, she elects to return to the workforce and begins again to actively seek employment? In the Third Circuit, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, she would not be able to collect front pay during the period when she stayed home but, once she started to look for work, she would be eligible for front-pay damages again.

And what if she elected to try a new career path and, in that effort, returned to college to complete her degree? In that case, the courts differ. Some say that she would still be eligible for front pay as long as she was ready, willing, and able to work. Others say that she could not be awarded front pay unless or until she returned to an active job search.
The cases are very fact specific and difficult to predict. However, at least in the Third Circuit, one thing is settled--an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.

Boss Gets Fired After She Busts Employees on Facebook

Posted by Molly DiBiancaOn January 22, 2013In: Social Media in the Workplace

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Employees getting terminated for negative comments posted on Facebook about their supervisors. This, I predict, will be the #1 issue facing employers in 2013. But here's an unusal twist on that story. What about the manager who rants about employees on Facebook? And not a petty rant or a profanity-laden post, either. Just a post that says something to the effect of, "Why'd you call in sick today if you're at a picnic?" A district court in Texas didn't have a problem with it.

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Plaintiff Virginia Rodriquez was a manager at a Sam's Club store in Texas when she was put on a performance-improvement plan so that any subsequent violation would result in her termination. Approximately 9 months after being placed on disciplinary status, Plaintiff viewed pictures of co-workers at a July 4th holiday party. Those same co-workers had called in sick to work that day. Apparently, Plaintiff was less than thrilled when she learned that her coworkers were out having fun while she was stuck at work or, perhaps, she was the only one not invited to the party. Either way, she wasn't happy about her discovery.

To express her displeasure, she posted on one of the employee's Facebook page, chastising the group for calling out. (The Court describes the comments as "public" but it is not clear whether they were actually public for all the world to see or only viewable by the user's Facebook friends.) The employee reported the incident to HR. Following an investigation, HR determined that Rodriquez had violated the company's Social-Media policy by "publicly chastising employees under her supervision, rather than waiting for the associates to return to work to discuss her attendance concerns." Because she was on probationary status, Rodriquez was terminated.

Sure enough, Rodriquez subsequently filed a charge of discrimination, alleging age and national-origin discrimination and retaliation. The state agency determined the Charge to be without merit but she filed suit anyway. On summary judgment, the court dismissed the plaintiff's claims, though, finding that the employer had demonstrated that its decision to terminate was based on her violation of the social-media policy. Specifically, the court held, the employer's decision to fire the plaintiff after she elected to publicly chastise her direct reports via Facebook instead of in person was legitimate and non-discriminatory.

I think most rational minded employment lawyers would agree that the court's decision was right. There was no evidence that the plaintiff was fired for anything other than her comments on Facebook, which violated the company's policy. That said, the facts of this case are reflective of the myriad of variations on the same problem--use of social-media to discuss work and co-workers. My prediction stands--this issue is not likely to go away any time soon.

Rodriquez v. Wal-Mart Stores, Inc., No. 3:11-2129-B (N.D. Tex. Jan. 9, 2013).