Tuesday, January 27, 2015

House Democrats Introduce Bill to Give Federal Employees Paid Parental Leave

Following President Obama's calls during his annual State of the Union Address to provide paid leave for employees in both the private and public sectors, a group of Democrats in the House yesterday proposed a bill that would provide federal employees with six (6) weeks of paid leave for purposes related to the birth or adoption of a child. 

From the Washington Post article on the proposed legislation:
Currently, federal employees are eligible for 12 weeks of unpaid parental leave and can substitute paid sick and annual leave for part or all that unpaid time. Agencies additionally may advance leave for those purposes to employees who have accumulated an insufficient amount; the memo essentially removed the discretion they had over whether to grant such requests. 
Federal employees receive 13 days of sick leave a year with no limit on how much they can build up. They also get between 13 and 26 days of annual leave per year, depending on their length of service, but generally can carry no more than 30 days of it from one year to the next. Advanced leave amounts to borrowing against leave to be earned in the future. 
The momentum for such legislation in the private sector is still dim, if not non-existent.  This is at least an admirable step in Congress.

Wednesday, January 21, 2015

Massachusetts Amends Maternity Leave Law to Provide Greater Protections to Employees

Earlier this month, the former Governor of Massachusetts, Deval Patrick, signed into law “An act relative to parental leave,” amending and replacing the Massachusetts Maternity Leave Act (“MLA”). 

The original MLA provided eight (8) weeks of protected leave to female employees for the birth or adoption of a child, but, under the new law, protected leave is now extended to male employees as well.  The law applies to employers with six (6) or more employees and eligible employees only need to work for the employer for three (3) months. 

The new MLA may also may cover eligible employees beyond the eight-week leave period. According to the Act, if an employer agrees to provide parental leave for longer than eight weeks, the employer shall not deny the employee his or her rights under this section (including reinstatement), unless the employer clearly informs the employee in writing prior to the commencement of the leave and prior to any subsequent extension of that leave. Specifically, the employer must inform the employee that taking longer than eight weeks of leave will result in the denial of reinstatement or loss of other rights and benefits.

Additional changes to the MLA include:
  • If both parents work for the same employer, they are entitled to eight weeks in the aggregate for the birth or adoption of the same child;
  • While employees still must give at least two weeks’ notice prior to taking leave and returning from leave, the new law contains an exception for employees to provide notice “as soon as practicable” if delay is for reasons beyond the employee’s control;
  • Employers may decide whether the leave is paid or unpaid; and
  • Employees who have a child placed with them pursuant to a court order are also covered.
(Hat tip to Nixon Peabody for the news on this new law).

Thursday, January 15, 2015

Can My Employer Deduct From My Paycheck/Dock My Pay?

A very common question people have is whether their employer may deduct from their pay, or, dock their pay, for things like stolen items, mistakes, cash register shortages, damage to equipment, etc.  The answer is two-fold.

The Fair Labor Standards Act ("FLSA") is the federal legislation that applies to all employers in the United States and it allows for deductions from an employee's pay (nonexempt employees, that is) so long as it does not cut into the employee's minimum wage (currently $7.25/hour) or overtime pay.  Otherwise, the employer may make any deductions to their benefit.  Do note, however, that the FLSA does allow for deductions that do affect an employee's minimum wage or overtime pay for things like state and federal taxes, social security, and child support orders.

Since federal legislation doesn't protect employees much from paycheck deductions, it is then left for the individual states to pass legislation to restrict such.  In Wisconsin, employees have been protected from certain deductions since 1931 per Wis. Stat. section 103.455.    Subject to three (3) exceptions, Wis. Stat. sec. 103.455 provides: 
“No employer may make any deductions from the wages due or earned by any employee, who is not an independent contractor, for defective or faulty workmanship, lost or stolen property or damage to property.” According to the Wisconsin Supreme Court, the law “is aimed at preventing employers from using coercive economic power to shift the burden of a work[-]related loss from the employer to the employee.”
The three (3) exceptions are:
1)  unless the employee authorizes the employer in writing to make that deduction, or2)   unless the employer and a representative designated by the employee determine that the defective or faulty workmanship, loss, theft or damage is due to the employee's negligence, carelessness, or willful and intentional conduct, or3)  unless the employee is found guilty or held liable in a court of competent jurisdiction by reason of that negligence, carelessness, or willful and intentional conduct.
If an employer in Wisconsin violates Wis. Stat. sec. 103.455, the statute provides a remedy of "twice the amount of the deduction or credit taken in a civil action brought by the employee."  Thus, employers ought to tread very lightly when considering docking an employee's pay in Wisconsin.

Wednesday, January 14, 2015

7th Circuit Finds Employer That Included Employee's EEOC Complaint in SEC Filings Enough to Show Retaliation

In a case out of the Eastern District of Wisconsin, the Court of Appeals for the Seventh Circuit has reversed a grant of summary judgment in a case whereby a plaintiff, Celia Greengrass, sued her former employer, International Monetary Systems Ltd. ("IMS"), alleging that they retaliated against her when they named her in their annual SEC filings and casted her complaint as "meritless," which showed to prevent Greengrass from obtaining new employment.

The district court granted summary in favor of IMS stating that Greengrass lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act.  In reversing the lower court, the 7th Circuit held that Greengrass did make out a prima facie case of retaliation by demonstrating that she engaged in a statutorily protected activity when she filed her EEOC charge, that IMS engaged in an adverse employment action when it listed her name in its SEC filings, and that there was sufficient evidence for a rational trier of fact to find that IMS listed her name because Greengrass filed the EEOC charge.

As is the case in most employment law cases, the devil lies in the details of the facts and it wasn't JUST the fact that IMS mentioned the plaintiff in their SEC filing that got them in trouble.  In 2008, IMS did not mentioned Greengrass' EEOC complaint in their 2008 SEC disclosures, which, the court believed was due in large part to an email sent by IMS' general counsel whereby the company appeared confident it could avoid a "large damages award," because, without the EEOC's involvement, Greengrass "likely [would not] have the resources for a lengthy court fight."  Thus, the 7th Circuit concluded, a reasonable jury could conclude that IMS decided to retaliate against her not when she filed her charge, but when IMS saw that the EEOC was taking the charge seriously, and that the retaliation occurred in its next scheduled SEC filing in April 2009 when it did name Greengrass' complaint.

The Court also held that Greengrass presented evidence of animus as well because a reasonable jury could interpret IMS' general counsel's email as evincing a disdain for the EEOC process and animus against Greengrass for filing her complaint.

The case is Celia Greegrass v. International Monetary Systems Ltd., Case No. 13-2901 (7th Cir. Jan. 12, 2015)

Wednesday, December 10, 2014

ENDA Getting a Turbocharge

The Employment Nondiscrimination Act ("ENDA") is legislation that has been introduced and never passed in Congress for over two decades.  ENDA would make it unlawful for employers to discriminate against employees and applicants on the basis of their sexual orientation and sexual identity in the terms and conditions of their employment, inter alia, and Democratic Oregon Senator Jeff Merkley, despite a huge uphill battle with a Republican-controlled Congress, will propose a much broader, supercharged version of ENDA aimed at preventing discrimination against LGBT Americans, not just in employment but also with regard to public accommodations, housing, jury service and financial transactions.  Merkley hopes to have a bill, complete with bipartisan co-sponsors, ready for introduction in four to six months.  

There is a huge misconception amongst the American public that such a law already exists at the federal level, but such is not the case.  Twenty-one states currently prohibit discrimination based on sexual orientation and 18 of those, as well as the District of Columbia, also include gender identity. State lawmakers in places like Florida, Virginia and Utah are gearing up to fight for such measures in the coming session, while lawmakers in Michigan are currently in the throes of that debate.  Luckily for Wisconsin residents, they are protected against such discrimination under the Wisconsin Fair Employment Act.

In 2013, ENDA reached a historic milestone, passing the Senate in a bipartisan vote 64-32. Though the House did not take up the bill, Merkley says it helped propel President Barack Obama to issue an executive order in June that created LGBT nondiscrimination protections for roughly 28 million federal contractors and employees. 

Monday, December 8, 2014

Federal Judge Upholds Record $185 Million Jury Award Against AutoZone

A federal district judge in California upheld a record $185 million punitive damages jury verdict in a pregnancy discrimination lawsuit against AutoZone Stores. The verdict is a record for a single-plaintiff employment discrimination claim in the U.S. In addition to the punitive damages, the court affirmed $872,000 in compensatory damages. The plaintiff’s legal fees in the matter, which are payable by the defendant, are over $1 million to date.

Apparently California state law is very generous to plaintiffs as it allows juries to add such amounts when the employment discrimination is linked to the employer’s officers, directors or managing agents. In this case, the court concluded that AutoZone’s internal legal department fell within the statute’s definition for corporate ratification of the discriminatory action.

Tuesday, November 4, 2014

Wisconsin Employee Rights on Election Day

Many people wonder their rights to be able to go vote on Election Day when they have to work during the day during the majority of the time the polls are open.  Here is a quick summary of your rights pursuant to Wisconsin Statute, Section 6.76:

1) "...entitled to vote at an election is entitled to be absent from work while the polls are open for a period not to exceed 3
2) "The elector shall notify the affected employer before election day of
the intended absence." Wis. Stat. sec. 6.76(1)
3) "The employer may designate the time of day for the absence." Wis. Stat. sec. 6.76(1)
4) "No penalty, other than a deduction for time lost, may be imposed upon an elector by his or her employer by reason of the absence authorized by this section." Wis. Stat. sec. 6.76(2)
successive hours to vote." Wis. Stat. sec. 6.76(1);

So, get out there and vote!

Wednesday, October 22, 2014

Does FMLA Leave and Short-Term Disability Leave Run Concurrently?

A common "myth" that floats around is that an employer cannot require an employer who is out on Family and Medical Leave Act leave to also concurrently use their short-term disability benefits if they are employed for an employer who provides for such.  However, this is not true and most employers require that both run concurrently.  This is done because, while an employer is obligated to provide the 2 weeks (under Wisconsin FMLA) or 12 weeks (under federal FMLA) leave, they are not required to provide above and beyond that (barring a potential to provide leave as a reasonable accommodation under the Americans with Disabilities Act (ADA)) and if STD and FMLA is not ran concurrently, an employee could be off work well beyond 12 weeks.

Thursday, October 16, 2014

Halloween Edition of the Employment Law Blog

Mark Toth over at the ManpowerGroup blog hosted this month's edition of the Employment Law Blog Carnival and it's a Halloween edition!  Check it out here.

Tuesday, September 23, 2014

Western District of Wisconsin Denies Employer's Summary Judgment Motion in Age Discrimination Case

Diana Schaefer worked for Bank Mutual for 10 years, including eight years as a bank office manager.  In 2011, Schaefer got a new manager, Tom Kendall, who wanted to terminate Schaefer almost immediately.  When Kendall found out that Schaefer had submitted an inaccurate timesheet, despite that fact she was salaried, he told the director of human resources who then fired Schaefer, who was then 56-years-old, and Bank Mutual then hired a 36-year-old woman who lacked management experience.  Schaefer sued Bank Mutual alleging age discrimination under the Age Discrimination in Employment Act ("ADEA") in the Western District of Wisconsin, and in an Opinion and Order dated August 29, 2014, Judge James D. Peterson denied Bank Mutual's Motion for Summary Judgment holding that Schaefer "adduced sufficient evidence to support a reasonable jury verdict that Bank Mutual's purported reason for firing her was a pretext, and that Schaefer's age was the but-for case of her termination."

In his decision, Judge Peterson noted the relevant policies of Bank Mutual's regarding attendance and time keeping, as well as their disciplinary policy.  Though Schaefer was salaried and her hours were non-consequential to her pay as an exempt employee under state and federal wage and hour laws, Bank Mutual still required her to keep an accurate accounting of the days and hours she worked and had a policy stating falsification could lead to termination, which is how Schaefer came to be fired.  Judge Peterson also noted that Bank Mutual fired three (3) other managers for falsifying their time records since 2007, two of whom were over the age of 40. 

Schaefer proceeded under the indirect method of proving age discrimination, and the parties agreed to two prongs of the prima facie case:  that she is over the age of 40 (thus, in the protected class), and that she suffered an adverse employment action (she was fired).  The parties then disagreed over the two remaining prongs:  whether she was meeting the employer's legitimate interested, and whether younger employees were treated more favorably.  Bank Mutual argued Schaefer was not meeting their legitimate interest because of her falsification of time sheets, and Schaefer naturally argued that this was pretext.

Schaefer argued that the two time sheet errors were merely honest mistakes.  The court noted that Bank Mutual's policies state that they may terminate an employee who makes this mistake, and that her mistakes were not "falsification," and though they violated Bank Mutual's policies, they did not do so in a way that would warrant termination under those policies.  Furthermore, the Court noted that Bank Mutual declined to initially terminate Schaefer when Kendall first made the recommendation which evidenced that she was meeting their legitimate expectations.  Because she was able to show she was meeting Bank Mutual's legitimate interest, she is entitled to the benefit of a more relaxed showing at step four in her prima facie case:  she need only show that she was replaced by a substantially younger employee, which she also did.

Judge Peterson ultimately found Bank Mutual's termination of Schaefer to be "suspicious" given their written policies and the offenses for which Schaefer was terminated given Kendall's attempts to get her fired in the past. The court also noted at least one other employee who committed a similar violation and was not terminated like Schaefer.  Because Kendall influenced the human resource director's decision so heavily, the court applied the Cat's Paw theory of discrimination.

The case is Diana Schaefer v. Bank Mutual, Case No. 13-cv-713-jdp (W.D. Wis.)