Today’s post is about another recent employment-law decision from the Third Circuit.  For those of you who want the shortened version, feel free to skip to the end of the post for the valuable Lesson Learned.

Background

The plaintiff-employee, Mary Burton, founded and ran two companies, which were sold to the defendant-employer, Teleflex. Following the sale, Burton became employed by Teleflex pursuant to a written employment agreement.  Burton was 67 years old.3d businessman quits_3

In February 2012, the EEOC approved its Strategic Plan for fiscal years 2012-2016.  The Plan establishes a framework for achieving the EEOC’s mission to stop and remedy unlawful employment discrimination by focusing on strategic law enforcement, education and outreach, and efficiently serving the public.  The second performance measure of the plan requires the EEOC to approve a Quality Control Plan. The QCP will revise criteria to measure the quality of agency investigations and conciliations throughout the nation.

The EEOC has requested input from interested parties regarding recommendations for quality indicia of investigations or conciliations or general recommendations for improving the quality of our intake process, investigations and conciliations.  The EEOC’s current interest in improving its conciliation track record likely is related to a recent string of cases challenging the sufficiency of the agency’s conciliation efforts.  One such case was issued last month by a federal court in Pennsylvania.

Background

If you’re a die-hard fan of The Who, you may not want to read the rest of this post.  Don’t misunderstand, I, too, am a fan.  Which is why I was all sorts of excited to see them in Atlantic City on Friday night. stick figure businessman in spotlight_thumb

The band did not disappoint.  Overall, I’d say the show was pretty good.  Guitarist Pete Townshend, though, was far better than “good.” Townshend was great; and I mean great.  Well worth the price of admission.

Lead singer, Roger Daltry, on the other hand, left a lot to be desired.  Daltry was, well, a diva. He barely sang at all-or at least not as much as I’d hoped.  Mostly, he sort of stood there, swinging his mic around-sometimes catching it and sometimes not.  As he stood at the edge of the stage, not singing, shirt unbuttoned so to expose way, way, too much skin, it was as if he was saying to the audience, “Yes, it’s me.  I am really here on the stage before you.  Try not to faint from excitement.”

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.

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. 

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.

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.

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.

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:

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.

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