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Employment Law Blog

Category: Employment Law

Sunday, June 26, 2011

Supreme Court on the Wal-Mart Sex Discrimination Class Action – Got Glue?

The Supreme Court recently issued its long-awaited decision in Wal-Mart v. Dukes (opinion), the largest class action discrimination suit in history. The bottom line is that the Court unanimously rejected the Ninth Circuit’s certification of a class comprised of approximately 1.5 million women who worked for Wal-Mart. The biggest impact of the Court’s decision, however, was the holding by five members that the claims lacked commonality. In the words of Justice Scalia, the class cannot sue over millions of employment decisions, “[w]ithout some glue holding the alleged reasons for all those decisions together.”

Now, employers facing or fearing class action discrimination suits will have to ask the preliminary question about the class: Got Glue? The Supreme Court’s opinion helps to define what is, and to a larger extent what is not, glue.

Corporate Policy

Can corporate policy be glue? You better believe it. In this case, however, there was no discriminatory policy. In fact, there was a company-wide policy of anti-discrimination. The plaintiffs tried to rely on Wal-Mart’s policy of granting broad discretion to individual managers in making pay decisions. But, in a company the size of Wal-Mart, “it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” In short, no glue.


The Court’s opinion notably downplays the value of statistical evidence in this situation. The plaintiffs provided statistical evidence which they maintain showed “statistically significant disparities between men and women at Wal-Mart [that] can be explained only by gender discrimination.” The Court reasoned that national and regional disparities failed to show discrimination at the district level, let alone the individual store level. “A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity.”


Affidavits from individuals showing anecdotal evidence of discrimination can provide some glue, but it depends on the circumstances. For example, the Court noted a previous case in which there were anecdotes for every eight members of the class, mostly coming from the operational centers where the class members were based. Here, the plaintiffs had only 120 affidavits for 1.5 million people. Fourteen entire states had no corresponding anecdotes, and half of all states had only one or two for the entire state. That’s not glue.


The Court found the proffered expert testimony in this case unpersuasive to say the least. A sociologist testified regarding “social framework” analysis, which allegedly showed that Wal-Mart’s corporate culture was susceptible to gender bias. But, the expert couldn’t “calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” No glue. In fact, it is questionable whether his testimony was even properly admitted.


The Court used the Wal-Mart case as an example of a class with no glue. As discussed previously, it also provides some hints about where future classes may find some.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 06/26 at 10:08 PM
Class ActionsEmployment LawSex Discrimination
Monday, June 20, 2011

Facebook Firing, Twitter Next?

You may remember that recently an employee was fired from her job for her CT employer AMR for posting negative information about her supervisor on her Facebook page. The case received notoriety because the firing caused the NLRB to file a charge against the company alleging that the company had violated the NLRA by firing this employee and by maintaining a social media policy that the NLRB claimed was overbroad.

Well, a similar case has now arisen involving an employee that was fired for comments he posted on Twitter or shall we call them for his “Tweets”. The Regional Director filed a charge against the company for this firing alleging that the firing violated the NLRA. However, the NLRB gave us some insight into the difference between the two cases (without actually discussing the Facebook Firing case) in an Advice Memorandum issued on April 21, 2011 by Barry J. Kearney, Associate General Counsel in the NLRB’s Division on Advice in which he advised the Regional Director to dismiss the charge against the employer.

In the Facebook Firing case, the employee was actually engaging in “concerted activity” on Facebook and this is what she was fired for. What does it mean that she was engaging in “concerted activity”? Well, it means that she was having a discussion on Facebook with her work friends and they were discussing her supervisor and her terms and conditions of employment. This is no different than standing around the water cooler talking with her co-workers about her supervisor and job and this is activity that the National Labor Relations Act protects. She cannot be fired for having these conversations. So the fact that they may have happened on Facebook rather than at the water cooler is irrelevant. As far as the NLR B is concerned, they are still protected.
So what happened in the Twitter case. In this case, a newspaper reporter that worked for the Arizona Daily Star newspaper was fired based on the tweets he was posting on Twitter. The newspaper was in the process of creating a Social Media Policy but did not yet have one although it did have an employee handbook. The employee used both his work computer at work, his home computer and his cell-phone to send his Tweets. The employee posted a Tweet making derogatory comments about the sports editors and sports department at the newspaper. HR then called him in to a meeting and he was told to stop commenting about the newspaper in any public forum and to stop airing his grievances publically. The employee allegedly continued Tweeting although he refrained about making comments about the newspaper.

Over a period of a month, he started sending Tweets that were inappropriate talking about some homicides that had taken place and then also sent a Tweet about an affiliate TV station that was again derogatory. He was suspended for three days and then he was terminated allegedly for violating the newspaper’s Respectful Workplace Guidelines. The newspaper relied on the fact that he had been “warned to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company” and yet he continued to engage in this activity.

What is most interesting about this case is how the NLRB viewed it and how it appears to differ from the Facebook firing case in CT. The NLRB held that this Twitter Firing did not violate the NLRA because of the fact that the tweets that the employee was fired for sending did not involve “concerted activity”. Although the employee claimed that the rule he was terminated for violating was “overbroad” as in the Facebook Firing case, the NLRB clarified that overbroad rules that could violate the NLRA only actually violate the NLRA and cause action by the NLRB when the employee was actually engaging in “concerted activity” at the time he/she was fired under the overbroad rule. Since the employee’s firing in the Facebook Firing case was actually based on her activity in discussing work conditions and making derogatory comments about her supervisor with other employees this was “concerted activity”. However, the NLRB reasoned that in this Twitter Firing, it was distinguishable because here the employee was not engaging in “concerted activity” when he was terminated. Rather, he was terminated for “posting inappropriate and unprofessional tweets, after having been warned not to do so, i.e. engaging in misconduct.”

The NLRB provided further insight by telling us that in this Twitter Firing case, the employee’s “conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.” Thus, this case is distinguishable from the Facebook Firing case because here the employee was discharged for tweeting inappropriate comments, ignoring warnings by his employer to stop this misconduct and continuing to post inappropriate comments despite these warnings by management. Significant to the NLRB was that his actions did not involve “concerted activity”.

The NLRB also commented on statements made by the employer in this case that could possibly be seen as overbroad and in violation of the Act but which were ultimately not a violation in this case because they were communicated to one employee as discipline during his lawful termination rather than being issued as a rule or policy to all employees. The statements that the NLRB indicated could violate the NLRA if made as a broad policy to all employees were as follows:

• Management warned the employee to “stop airing his grievances or commenting about the Employer in any public forum”; and
• Management warned the employee that he was prohibited from tweeting about anything work-related; and
• Management in its termination letter referred to that the employee had been told “to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company”.

This case is helpful from many perspectives. First of all it sheds some light into the NLRB’s thought process with regard to social media policies and how they could potentially violate the NLRA. In addition, it clarifies that even if an employer had an overbroad policy such as a policy that included the overbroad statements above, it appears that termination of an employee for violating that policy would still not be held to be a violation of the NLRA if the employee was not engaging in “concerted activity” while using social media and thus was terminated for social media posts that did not involve “concerted activity”.

Copyright© 2011 HR Learning Center LLC
Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
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As President of HR Learning Center LLC, Ms. Fleischer provides proactive solutions to management including on-site seminars and on-line webinars on a variety of employment law issues including sexual and unlawful harassment, workplace violence, FMLA and ADA. Ms. Fleischer can be contacted at 914-417-1715 or via e-mail at .(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 06/20 at 01:11 PM
Employment Law
Thursday, May 19, 2011

California Legislature Renews Marijuana Legislation

California politicians are back at it again. The Senate is considering SB 129, a bill which would make it illegal for employers to discriminate against medical marijuana smokers.

This new legislation follows on the heels of Proposition 19, which came before California voters in November 2010. Proposition 19 would have legalized the possession and use of up to an ounce of marijuana. California voters rejected that proposition by a margin of 54% no and 46% yes.

If the law passes, employers would be forbidden from taking any adverse action against an employee on account of the fact that the employee is a user of medical marijuana, or the fact that the employee tests positive for the use of medical marijuana.

SB 129 provides an exception to the discrimination ban where the employee is in a “safety sensitive” position.

The proposed law would permit an employer to terminate an employee who is “impaired” on the job because of medical marijuana. Like Proposition 19, the term “impaired” is not defined in SB 129.

The law would give an aggrieved employee the right to file a discrimination lawsuit.

California politicians may not be able to solve the state’s fiscal problems, but the do seem able to come together when it comes to legalizing drug use. In October, Governor Schwarzenegger signed Senate Bill 1449. That law essentially decriminalizes possession of an ounce or less of marijuana. The law states that there can be no jail time or probation, and fines cannot exceed $100. This is the equivalent of an infraction, like for a traffic ticket.

At the federal level, marijuana is illegal. The Controlled Substances Act (21 U.S.C. section 811) has no provision for medical use of marijuana. Federal law characterizes marijuana as any other controlled substance, such as cocaine and heroin. The law places this drug on “Schedule I,” meaning that it is considered highly addictive and having no medical value.

The California Supreme Court addressed the question of employee rights in the context of marijuana use in 2008. The case, titled Ross v. Ragingwire, involves a job applicant fired after a drug test came back positive for marijuana. The applicant presented a doctor’s note purportedly giving him a prescription to use marijuana for medical treatment. He claimed his use was legal under Proposition 215, the Compassionate Use Act. The California Supreme Court rejected his claim, ruling that the law provided no employment law rights, and that the employer was entitled to take adverse action because the drug remained illegal under federal law.

SB 129 has been approved in a Senate committee and it awaits a vote by the full Senate.  We will keep you posted on further developments.

Read the text of the proposed law.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
Employment Law Attorneys for Businesses

Posted by Christopher W. Olmsted on 05/19 at 10:25 PM
Employment Law
Thursday, April 14, 2011

USCIS Issues Final Rule on Employment Eligibility Verification Form (I-9)

U.S. Citizenship and Immigration Services (USCIS) announced today a final rule, scheduled to be published in tomorrow’s Federal Register, that adopts, without change, an interim rule to improve the integrity of the Employment Eligibility Verification (Form I-9) process.

The key changes made to the Form I-9 process by the interim rule and adopted by the final rule include:  prohibiting employers from accepting expired documents for completion of Form I-9 and adding and modifying several documents on the Lists of Acceptable Documents.  The final rule will be effective on May 16, 2011.  Employers may continue to use the current version of the Form I-9 (Rev. 08/07/2009), or the previous version (Rev. 02/02/2009).

USCIS Published the following FAQs along with its press release:

Questions and Answers

Q.  What does the final rule accomplish?
A. The final rule adopts, without change, the changes made to the Form I-9 process by the Department of Homeland Security’s (DHS) interim final rule that has been in effect since April 3, 2009. The changes further DHS’s ongoing effort to increase the integrity of the employment authorization verification process. The key changes include:

- Prohibiting employers from accepting expired documents
- Eliminating from List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated - Employment Authorization Cards)
- Adding to List A foreign passports containing temporary I-551 printed notations on certain machine-readable immigrant visas
- Adding to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

Q.  Why can’t I present an expired document?

A.  DHS wants to ensure that documents presented for use in the Form I-9 process are valid and reliably establish both identity and employment authorization. Expired documents are prone to tampering and fraudulent use. The requirement to present only unexpired documents takes into account the time limits placed on these documents by their issuing authorities. If a document does not contain an expiration date, as is often the case with a Social Security card, it is considered unexpired.

Q:  Does this final rule make any changes to how Form I-9 is completed?

A:  No. The final rule adopts, without change, the interim final rule published on December 17, 2008 and in effect since April 3, 2009. It does not make any changes to how the Form I-9 is currently completed.

Q:  Is USCIS issuing a new Form I-9 with this final rule?

A:  No. Because the final rule adopts the interim rule without change, USCIS is not issuing a new
Form I-9 with this rule.

Q:  Which versions of Form I-9 may I use?

A:  Employers may continue to use either the current version of Form I-9 (Rev. 08/07/2009) or the previous version (Rev. 02/02/2009).  These dates are located on the bottom right-hand corner of the form.

For more information, follow this link.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 04/14 at 03:24 PM
Employment Law
Tuesday, February 15, 2011

Supreme Court Holds that 3rd Party Retaliation Exists… but When?

In Thompson v. North American Stainless, the United States Supreme Court established that Title VII third-party retaliation claims exist. Specifically, an employer will be liable for retaliating against an employee who engaged in protected activity by terminating her fiancé. Now, employers are left wondering, “If firing the fiancé creates liability, what other relationships are covered?”

Justice Scalia, writing for a unanimous court (absent Justice Kagan who did not participate), provided some guidance but left many lines still to be drawn. Let’s start with the rule to be applied. The employer may be liable for retaliation where its actions “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” (aka the Burlington standard). That’s nice and all, but how is it applied?

The opinion lacks any real analysis regarding why firing the fiancé is sufficient to establish retaliation. Justice Scalia just states that the Court has “little difficulty” because it’s “obvious” that firing the fiancé meets the Burlington standard. While I agree, that’s not going to be much help in analyzing other situations. For example, whether suspending an employee’s girlfriend for seven days meets the standard is not-so-obvious.

Justice Scalia suggests that there are two factors that determine whether third-party retaliation is unlawful under Title VII: 1. The nature of the relationship; and 2. The severity of the employer’s action. Thus, he states: “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.” What about terminating a mere acquaintance? Or a “milder reprisal” against a “close family member”? And what about not-so-close family members?

We know the ends of the spectrum, but employers are largely left in the dark with everything in between. The district and circuit courts will start to fill those gaps as the third-party retaliation claims hit the courts. Chances are, there will be a lot more third-party claims now that the Supreme Court has blessed them. For now, employers will just have to be careful when taking actions against employees known to have some relationship to an employee who engaged in protected activity.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 02/15 at 02:01 PM
Employment LawSex Discrimination
Tuesday, January 11, 2011

Charges Including More Types of Discrimination

The EEOC just released its charge statistics for 2010, including historical data back to 1997. A few obvious things jump out at me. First, it’s a new record! In 2010 the EEOC received approximately 100,000 charges. Every single category, or basis for discrimination, saw an increase when compared to 2009. This year also marked the first year for GINA (Genetic Information Nondiscrimination Act) with a mere 201 charges.

The EEOC also included a note which stuck out to me:

The number for total charges reflects the number of individual charge filings. Because individuals often file charges claiming multiple types of discrimination, the number of total charges for any given fiscal year will be less than the total of the eight types of discrimination listed.

So I started wondering… is there any trend in how many types (or bases) of discrimination are being included in each individual charge? When I plotted the data, it turns out there’s an obvious trend:

From 1997 to 2010, the average number of types of discrimination included in each individual charge steadily rose from 1.43 to 1.66, an increase of 16%. For employers, this means a more complicated defense. It means discrimination charges are starting to include more types of discrimination. As the chart makes clear, the number has been steadily increasing over the years and I see no reason for this trend to stop.

Update (1/13/2011): I received an inquiry regarding my calculations so I am updating this entry to include my methodology so as to make clear what the chart actually depicts. I used the statistics provided by the EEOC (linked above). I calculated the sum of all of the rows for each year, excluding Total and Retaliation - Title VII Only (the latter would already be included in the row Retaliation - All). I then took the sum and divided it by the “Total” which the EEOC defined as “individual charge filings” to arrive at the average number of charges per individual charge filing.

Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.

Posted by Philip Miles on 01/11 at 02:13 PM
Employment Law
Sunday, May 02, 2010

3rd Cir. Addresses ADA Claims Based on Side Effects of Medication

In Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. Apr. 12, 2010), the Third Circuit addressed when an employee may bring suit under the Americans with Disabilities Act (ADA) based on conditions caused by medication. Employee Ed Sulima needed more time than most employees for restroom breaks. How much time you ask? Well, on one day in 2008 he spent approximately two hours in the restroom in one shift! While Mr. Sulima was morbidly obese and suffered from sleep apnea, these conditions did not create his bathroom issues. Instead, the culprit was Mr. Sulima’s weight loss medication.

So, are Mr. Sulima’s medication-induced gastrointestinal problems a disability under the ADA? It turns out they are not. But more importantly, the side effects from treatment and medication can constitute a disability under the three-prong test utilized by the Court in Sulima:

(1) the treatment is required “in the prudent judgment of the medical profession,”

(2) the treatment is not just an “attractive option,” and

(3) that the treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices.

This test was first laid out by the Seventh Circuit in Christian v. St. Anthony Medical Center, Inc., 117 F.3d 1051 (7th Cir. 1997). It is now the test in the Third Circuit as well.

In Mr. Sulima’s case, his medication was not “required in the prudent judgment of the medical profession” as evidenced by the fact that his doctor took him off the medication when learning of the side effects.

Other Issues
Sulima included a few additional interesting tidbits. First, in addition to addressing whether Mr. Sulima had an actual disability, the Court also analyzed whether he was “regarded as” having a disability. He was not. His employer knew his problems were side effects of medication and Mr. Sulima explained to them that his medication could be changed.

Second, Mr. Sulima argued that he was retaliated against for requesting an accommodation under the ADA. This does not require an actual disability but does require a “reasonable, good faith belief that [he] was entitled to request the reasonable accommodation [he] requested.” The Court found that Mr. Sulima lacked this “good faith belief” because he knew his condition was temporary and that he could change medications.

Finally, the Court applied the “old ADA” and not the new ADA Amendments Act (ADAAA). The Court did not analyze the issue, noting only that “[t]he parties here have not argued that these amendments have retroactive effect.”

Submitted by:
Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Posted by Philip Miles on 05/02 at 02:49 PM
Disability DiscriminationEmployment Law
Wednesday, April 28, 2010

DOL Publishes Updated Model Notices for Extended COBRA/ARRA Subsidy

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

The Department of Labor’s Employee Benefits Security Administration COBRA page now has available updated Model Notices, Application for Expedited Review of Denial of COBRA Premium Reduction, Fact Sheet, and Frequently Asked Questions (FAQs) that reflect the provisions of the Continuing Extension Act of 2010. They are available at  The new model notices include the recently extended eligibility deadline of May 31, 2010. The model notices may be adapted by employers and health plans to provide notice to ARRA eligible terminated employees.

General Summary of Subsidy:

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit. To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee’s employment. The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010. (An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.) The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. (Source: DOL website)


Posted by Christopher W. Olmsted on 04/28 at 01:12 AM
COBRAEmployment Law
Tuesday, April 20, 2010

Cat’s Paw Coming to Supreme Court

The cat’s out of the bag. Well, maybe not the whole cat, but at least its paw. Yesterday, the Supreme Court granted certiorari in Staub v. Proctor Hospital (09-400). In doing so, the Court agreed to decide an employer’s legal duty under the “Cat’s Paw” theory. The Question Presented is:

In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

Staub comes to the Supreme Court from a Seventh Circuit opinion (.pdf) addressing the Uniformed Services Employment and Reemployment Rights Act (USERRA). While USERRA protects military service members from discrimination in civilian jobs, the Supreme Court opinion will likely prove applicable to a host of other employment discrimination statutes such as Title VII.

The name, “Cat’s Paw,” comes from 17th century poet Jean de La Fontaine’s fable, “The Monkey and the Cat.” In the story, a manipulative monkey convinces an unsuspecting cat to steal chestnuts from a fire. As the cat burns its paw stealing the chestnuts, the monkey devours them one by one. In employment law, Cat’s Paw arises where a plaintiff seeks to impute the discriminatory animus of a nondecisionmaker to an innocent decisionmaker to hold the employer liable.

The Seventh Circuit held that the Cat’s Paw theory requires the discriminating nondecisionmaker to possess “singular influence” over the decision maker who responds with “blind reliance.” The decisionmaker merely relying in part on the nondecisionmaker is insufficient. Trial judges must make “a threshold determination of whether a reasonable jury could find singular influence before admitting evidence of nondecisionmaker animus.”

The Supreme Court will now likely establish the contours of the Cat’s Paw theory for courts to apply to employment discrimination cases in the future.

Submitted by:
Philip K. Miles III, esq.
Attorney, McQuaide Blasko
Publisher of Lawffice Space

Posted by Philip Miles on 04/20 at 02:44 PM
Employment Law
Monday, April 19, 2010


Bob has been out on FMLA for 12 weeks.  12 weeks I have had to keep his job open and now that he left me one employee short for 12 weeks he calls and tells me that he can’t come back to work yet.  I told him enough is enough.  If he does not come back tomorrow, I am going to fire him. 

No problem right?  WRONG!  FMLA is only the first issue when an employee is out on leave.  Managers also have to keep in mind the ADA.  Because when an employee tells a manager that he/she might not be able to return from leave, such a statement could constitute a request for a “reasonable accommodation” under the ADA.

The ADA requires employers with 15 or more employees to provide disabled employees with a “reasonable accommodation” when an employee requests such an accommodation.  Requesting an additional leave of absence even after 12-weeks of FMLA leave could be a request for a “reasonable accommodation” under the ADA even if the employee does not use the exact words “reasonable accommodation” and even if the employee does not mention the ADA at all. 

Managers need to understand that once a disabled employee requests a reasonable accommodation by asking for an additional leave of absence, the employer’s obligation to engage in the “interactive process” is triggered and if the employer fails to engage in the interactive proves and/or worse terminates the employee, the employer subjects itself to claims that it has violated the ADA. 

What does the interactive process require?  It requires a back and forth between the employer and the employee to determine:
1.  Whether the employee is a “qualified individual with a disability” and
2. If he/she is, then what accommodation based on medical information from the employee’s health care provider together with the job description, will enable the employee to be able to perform the “essential functions” of the job?

Keep in mind that the employer is not obligated to always give the employee the precise accommodation that the employee requested.  Rather, the employer is required to provide an accommodation that will enable the employee to perform the essential functions of the job.  Managers don’t really need to worry about determining what accommodation should be provided to the employee.  This is usually the job of Human Resources and the in-house legal counsel.  But managers do need to know that when the employee calls at the end of their FMLA leave saying they are still sick and need additional time out of work, the manager may not fire the employee.  Moreover, the manager should consult with and advise human resources so that human resources and the in-house counsel can engage in the interactive process with the employee and provide a “reasonable accommodation” which might be additional time out on a leave of absence. 

The manager should also be careful to adequately document all of this so that if the employee later claims violation of the ADA, the employer can defend its actions by demonstrating in a court of law that it engaged in the “interactive process” and that it provided the employee with a “reasonable accommodation” in accordance with the ADA.

Leave of absence issues can be tricky for employers.  However, understanding the employer’s requirements under both the FMLA and the ADA will enable the employer to ensure compliance with these important leave laws and help avoid liability in any future litigation that may arise. 

Submitted by: Melissa Fleischer, Esq.
HR Learning Center LLC
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As President of HR Learning Center LLC, Ms. Fleischer provides proactive solutions to management including on-site seminars and on-line webinars on a variety of employment law issues including sexual and unlawful harassment, workplace violence, FMLA and ADA. Ms. Fleischer can be contacted at 914-417-1715 or via e-mail at {encode=“” title=“”}

© 2010 HR Learning Center LLC


Posted by Patrick Della Valle on 04/19 at 11:55 AM
Employment Law
Friday, April 16, 2010

COBRA Subsidy Eligibility Extended To May 31, 2010

On April 15, 2010, President Obama signed H.R. 4851 into law. Among other matters, the new law amends the American Recovery and Reinvestment Act of 2009 (“ARRA”) to extend through May 31, 2010, premium assistance for COBRA benefits (health insurance continuation benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985).

The COBRA subsidy was originally provided as part of the ARRA in 2009. Generally, the subsidy pays for 65% of the former employee’s health insurance premium under COBRA (the employee pays the remaining 35%). Employers or the group health plan provider pay the 65% and can then apply for a tax credit.

Congress has extended the subsidy eligibility period several times. Earlier this year, the 2010 DOD Act extended the COBRA premium reduction eligibility period for two months until February 28, 2010. Additionally, the legislation increased the maximum period for receiving the subsidy for an additional six months (from nine to 15 months). A subsequent amendment extended the coverage period to March 2010, and yesterday’s legislation extends it to the end of May.

Therefore, employees who are involuntarily terminated on or before May 31, 2010 may be eligible for the subsidy.

The text of the legislation can be found here.

<u>Related Articles:</u>

Congress Extends COBRA Subsidy

COBRA Obligations Expanded

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 04/16 at 03:38 PM
COBRAEmployee BenefitsEmployment Law
Saturday, April 10, 2010

Pregnancy At Work: A Review Of California Employer Obligations

Q: How common is pregnancy discrimination?

Although most companies protect against pregnancy discrimination, the EEOC has recorded an increase in claims between 2001, when 4,287 charges were made, and 2009, when 6,196 charges were made. The chart below illustrates the trend.

Q: I own a California business with 20 employees. A new employee, who I hired three weeks ago, just announced that she is pregnant. Do I need to provide a leave of absence to this employee?

The answer depends on the details. Because your business employs fewer than 50 employees, the pregnant employee is not eligible for 12 weeks of FMLA or CFRA leave. However, California’s Pregnancy Disability Leave, which covers employers with five or more employees, and has no prerequisite length of employment, does cover your employee.

Unlike the FMLA and CFRA, which do not cover employees until they have worked for the company for at least 12 months, and until they have worked at least 1,250 hours during the year before the start of leave, California’s PDL has no waiting period. Employees are eligible for the leave immediately upon hire.

If your employee becomes medically disabled on account of her pregnancy (i.e. she is unable to perform her job duties) then she may take leave during that period of disability, for up to four months of PDL leave. At the end of the disability period, if she is able to return to work you must guarantee reinstatement to the same position.

If the disability ends, and the baby is born, you won’t be required to provide additional time off for baby bonding because PDL provides disability leave only. Although CFRA provides for up to 12 weeks off for baby bonding, your company is not subject to that leave law.

Your employee may use any accrued paid time off to take care of the baby. Your company can also voluntarily offer unpaid time off for the new mother. She may also qualify for state wage replacement benefits from the EDD.

Q: I am a California employer with 60 employees. I have a pregnant employee in the warehouse who states that on her doctor’s advice she should avoid lifting more than 40 pounds. In her current position in order fulfillment she must lift 50 pound boxes and she has asked to move to an open position in shipping where she wouldn’t do any lifting. Do I need to transfer her?

Although the FMLA does not require a transfer to light duty, under the California law, an employer must transfer a pregnant employee to less strenuous or hazardous position, where based on advice of a doctor, and where the transfer can be reasonably accommodated. 

Also, under the federal Pregnancy Discrimination Act (PDA) an employer should temporarily transfer a pregnant employee to light duty if the same right is available to other similarly non-occupationally disabled employees.

Here, your employee states that she cannot lift over 40 pounds. You are entitled to ask for medical confirmation of this restriction. Assuming lifting boxes is an essential part of her job, she cannot perform her duties. Since you have an open position which the employee is qualified to fill, it would be a reasonable accommodation to temporarily transfer her.

After the restriction is lifted, you should transfer her back to her original job.

Related Article: Pregnancy Discrimination Update: Sea Captain Unlawfully Terminates Pregnant Shipmate

Submitted by:
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Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Posted by Christopher W. Olmsted on 04/10 at 08:05 PM
California Employment LawEmployment Law
Monday, March 01, 2010



By: Melissa Fleischer, Esq.
    President and Founder
    HR Learning Center LLC

A hot topic for employers right now is keeping up with all the new technology and creating policies and practices to ensure lawful compliance with the employment discrimination laws as they intersect with all the new types of technology.  We have noticed that one of our most popular webinars now is our webinar on drafting policies for the new social media including creating legally compliant policies for blogging, cell phones and text messaging.  This webinar is so popular because employers are literally scrambling to figure out how to handle this explosion of social media in the workplace. 

Of course, together with this social media explosion come a host of legal issues that employers are exposed to and need to plan for.  One interesting issue that has arisen is the issue of an employee’s right to privacy when their employer monitors and reviews their text messages.  The US Supreme Court has recently agreed to hear such a case which should lend some guidance on this technologically advanced legal issue.  However, since this case involved an action by an employer that was a city, it involved the Fourth Amendment prohibition against unreasonable search and seizures which would not be applicable if this situation arose with a private employer.  Nevertheless, many employment lawyers are awaiting the outcome of this case to provide some direction on this interesting issue.

In this case, Quon v. Arch Wireless Operating Co., the Supreme Court will decide whether the City of Ontario in California violated Seargent Quon’s,  constitutional right to privacy when it reviewed text messages that he sent on his pager provided by the City.  Mr. Quon was a Seargent on Ontario’s SWAT Team.  The employer in this case, the City of Ontario, had the standard language in its e-mail policies stating that employees should not have any expectation of privacy and that the electronic messages could and would be monitored by the City.  When the pagers were given to the employees, they were given a copy of the e-mail policy and told that it applied to the text messages on the pagers. 

However, it turned out that there were statements by Seargent Quon’s supervisor to Seargent Quon stating that the text messages would not be monitored as long as any employee that went over in the amount of text messages they were allotted for the month paid for the overages. In addition, it turned out that the City had not actually monitored Mr. Quon’s pager or any of the other police officers’ pagers for a period of approximately eight months after the employees were given the pagers. 

When the City started monitoring Quon’s text messages, they found that he had used the pager and text messages for his own personal use which was a violation of the City’s e-mail policy and that there were some sexually explicit text messages.  The Seargent and his wife sued the City of Ontario claiming a violation of their right to privacy.  The Ninth Circuit issued a decision in this case holding that the City of Ontario had violated Mr. Quon’s right to privacy.  Crucial to the Ninth Circuit were the fact that although the City’s policy stated that employees should have no expectation of privacy, this had been negated by both the supervisor’s statements as well as the practice of the City of not monitoring the text messages for such a long period. 

It will be interesting to see what happens when the Supreme Court decides this case which should happen by June 2010.  One thing is clear.  Employers need to be extremely careful to not take any action that would be inconsistent with the declaration in their policy that employees should not have any expectation of privacy.  Just as with at-will employment, it appears that a supervisor’s statements that are contrary to an employer’s policy and an employer’s actions that are inconsistent with that policy can negate the statement in the policy and destroy the employer’s defense in such cases.  Moreover, it is important for employers to not just use the e-mail policies they have as the City of Ontario did in this case, but rather to develop and create legally sound social media policies that adequately address all of these important issues.

The lesson for employers is clear.  Not only is it important to have well-drafted social media, cell phone and texting policies but it is equally important to provide training to your managers so they understand how to avoid making any statements that could negate the no expectation of privacy statement in your policy.  The training should also help employers ensure that their practices and actions are consistent with the policy and don’t defeat the representations in the policy.  If you state that you will be monitoring employees’ text messages, clearly you should ensure that you are doing this on a consistent basis to prevent an employee’s arguments that your failure to do so provided him with a reasonable expectation of privacy despite the statement to the contrary in the policy.

It is not easy for employers to stay one step ahead in this ever changing technologically advanced world we live in.  However, with proper guidance on how to draft effective policies and proper training, employers can manage to ensure that their workplaces are legally compliant and that they are protected from the legal landmines that the 21st century social media and technologies have brought.

Copyright© 2010 HR Learning Center LLC
Submitted by: Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
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As President of HR Learning Center LLC, Ms. Fleischer provides proactive solutions to management including on-site seminars and on-line webinars on a variety of employment law issues including sexual and unlawful harassment, workplace violence, FMLA and ADA. Ms. Fleischer can be contacted at 914-417-1715 or via e-mail at .(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 03/01 at 12:31 PM
Employment Law
Thursday, February 11, 2010


By John P. Mahoney, Esq., Partner, TULLY RINCKEY, PLLC, Washington, DC†

Under the Civil Rights Act of 1964, as amended, employers may be found liable for sexual harassment of their employees.  There are generally two types of sexual harassment claims.  Traditionally, the first type is quid pro quo harassment, which occurs when a supervisor demands sexual activity in exchange for some workplace benefit.  The second type, which traditionally referred to as “hostile work environment” harassment, is defined as unwanted conduct of a sexual nature that is severe and pervasive enough so as to alter a term or condition of the employment or result in the creation of a hostile work environment.  Employees who engage in such unwanted conduct like sexual comments or gestures that interfere with the victims’ ability to do their jobs, may be guilty of sexual harassment.  Same gender sexual harassment is also prohibited by the Act. 

Employers are strictly liable for sexual harassment by their supervisory employees whenever the victim employee suffers some tangible employment action due to the harassment.  Tangible employment actions include such concrete personnel actions as terminations, demotions, suspensions, or adverse changes to working conditions.  If the harassment does not result in a tangible job action, the employer is still liable for supervisory harassment unless it can show that it used reasonable care to prevent and correct any harassment; and that the victim employee unreasonably failed to take advantage of the employer’s harassment complaint procedure. 

The keys for liability are whether the complained of conduct was unwelcome and whether it was severe and pervasive.  Isolated incidents, unless they are extremely serious, will not suffice to establish liability.  Occasional use of abusive language, gender-related jokes, or teasing, standing alone, is not sufficient to prove actionable sexual harassment.  The conduct must be both severe and pervasive, so the frequency of the alleged misconduct is relevant to establishing liability. 

Employers must realize that they can also be liable for sexual harassment by their non-supervisory employees, and even by customers of the employer, if the employer had knowledge of the harassment and failed to take necessary steps to correct the harassment.  Necessary steps may include promptly removing the harasser from the victim’s workplace, by disciplining the harasser, or by taking other actions to put the victim back to where they were, in terms of working conditions, before the harassment began. 

Employees who are the victims of sexual harassment or other actionable discrimination may be able to obtain awards of compensatory damages, and, in some cases, punitive damages, in either state or federal court.  Another important lesson for employers to keep in mind is that it is also unlawful under the Act to retaliate against any employee who files a complaint or otherwise opposes discriminatory or harassing conduct.  Harassment claims can also be brought under the Act for harassment based upon the victim’s race, color, national origin, religion, disability, age, or prior EEO activity.  Harassment claims must be taken seriously by employers, as they risk significant liability for ignoring or failing to correct such misconduct. 

Workplace harassment can result in severe damage to the victim in terms of emotional distress, and even physical symptoms.  In addition to discrimination claims, workplace harassment cases can also lead to actionable workers’ compensation claims.  Many states have anti-employment discrimination statutes that provide for unlimited damages awards in harassment cases.  To support claims of compensatory damages, it is important for the victim to seek proper medical attention.  Training employees and supervisors is a very effective way for employers to reduce and hopefully avoid workplace harassment claims.  Promptly investigating and correcting harassment may save a company lots of money, as well as the bad publicity that often results from meritorious workplace harassment claims. 

* Copyright© 2010 by TULLY RINCKEY, PLLC.  All rights reserved.

John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including sexual harassment cases.

Posted by Patrick Della Valle on 02/11 at 02:55 PM
Employment Law
Thursday, February 04, 2010


By John P. Mahoney, Esq. Partner, TULLY RINCKEY, PLLC, Washington, DC† (

Since 1974, federal government employees have been eligible to receive overtime pay under the Fair Labor Standards Act (FLSA).  The Office of Personnel Management (OPM) administers the FLSA in the federal government.  Generally, the FLSA requires that employers pay one and one-half times the regular hourly rate of pay to employees for any worked performed in excess of 40 hours in a given workweek.  However, the FLSA does not apply to everyone.  The statute identifies several categories of employees exempted from the overtime provisions of the Act.  The group of exempt personnel includes those “employed in a bona fide executive, administrative, or professional capacity.”

FLSA exemptions are to be “narrowly construed,” and limited to those employees plainly and unmistakably within their terms and spirit.  The FLSA, in effect, presumes non-exempt (covered) status.  The employing federal agency clearly has the burden of establishing an exemption.  This means that the agency must prove each element of a claimed executive, administrative, or professional exemption.  Otherwise, the agency is required to pay time and one-half overtime pay.

OPM has issued regulations that supplement the FLSA.  See 5 C.F.R. Part 551.  Those regulations state that if an employee is properly classified at the GS-4 level or below (or the equivalent level in other white collar pay systems), they are automatically considered nonexempt, which means they must be paid overtime, pay at time and one-half their regular hourly rate.  Employees properly classified at the GS-5 through GS-10 levels, or their equivalent, may be exempt only if they are an executive, administrative or professional employee.

Executive employees are managers and supervisors who have the authority to select, promote, advance in pay, or remove employees while exercising discretion and independent judgment.  If you are a GS-5 or 6, or a law enforcement employee at the GS7-9 levels, you must spend 80% or more of your work time on supervisory duties.

Administrative employees are those who are considered advisors, assistants, or representatives of management, such as management consultants, systems analysts, and human resources specialists, employees who perform work that is intellectual and varied in nature or of a specialized or technical nature that requires considerable special training, experience, and knowledge, and frequently exercise discretion and independent judgment under only general supervision.  To be exempt as an administrative employee, someone graded at the GS-5 or 6 level must spend 80% or more of his/her work time performing essentially administrative functions.

Professional federal employees, teachers, and school administrators are also exempt under the FLSA.  Professionals are those employees who require knowledge in a field of science or learning usually acquired through education or training at the bachelor’s degree or higher level or in a recognized field or artistic endeavor that is original or creative in nature.

Federal employees exempt under the FLSA receive overtime pay under Title 5 of the United States Code.  Under Tile 5, overtime pay is computed at the rate of one and one-half times the employee’s rate of basic pay or the GS-10, step 1 rate of basic pay, whichever is lower. 

Employees who want to challenge their status under the FLSA can file a grievance under their union’s collective bargaining agreement with their federal employer or in an overtime pay claim with their employing federal agency or OPM.  OPM encourages non-union federal employees to first obtain a decision on the claim from their employing agencies before filing an OPM overtime claim, although employees are not required to do so.  Going to the employing federal agency first may give the employee “two bites at the apple,” but OPM will generally side with the agency anyway, so it may not be worth going to the employing agency first. 

Federal employees not covered by union contracts may file overtime claims under the FLSA with the United States Court of Federal Claims or the appropriate U.S. district court.  However, the district courts can only hear claims that are less than $10,000.  If the claim is for more than that, it must be filed in the Court of Federal Claims.  Moreover, filing an administrative claim with an agency or OPM does not stop the running of the two-year statute of limitations (three years if the violation was willful or intentional) governing claims filed in court from when the claim arose.  The date on which the employing agency or OPM receives the claim is the date used to determine whether the claim is timely. 

If an FLSA claim is successful, the prevailing employee will be entitled to double pay (called “liquidated damages”) for a period of up to two or three years back from the date on which the claim is received, plus an award of attorney’s fees.  However, under certain circumstances, federal agencies may grant compensatory time off instead of overtime pay for an equal amount of time off.  The key is to secure the advice of a qualified attorney to assess the merits and value of your overtime pay claim before you file it.   

* Copyright© 2010 by TULLY RINCKEY, PLLC.  All rights reserved.

John P. Mahoney, Esq. is a Partner in the Washington, DC Federal Employment Law Firm of TULLY RINCKEY, PLLC.  (  Mr. Mahoney specializes in representing federal government agencies and officials, as well as federal contractors, in all facets of federal employment law, including overtime pay litigation.

Posted by Patrick Della Valle on 02/04 at 05:57 PM
Employment Law
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