Huffington Post on At-Will Employment

Fellow avid employment law blogger, Attorney Jon Hyman, of the Ohio Employer's Law Blog, recently took part in a discussion on at-will employment that is definitely worth a watch:

Senate Republicans Call for Hearing on NLRB's Budget Request

This week U.S. Senator Lamar Alexander (R-Tenn.), the Ranking Member of the Senate Health, Education, Labor and Pensions Committee, along with 13 Republican senators today sent a letter to Chairman Tom Harkin requesting a committee hearing on the fiscal year 2014 budget request of the National Labor Relations Board, which asks for an increase in funding to accommodate increased hiring at a time the board’s caseload “has dropped almost 9 percent.”

From the press release on the hearing request:

The NLRB’s own data confirm that over a longer span of time—the last 20 years—the annual representation caseload has dropped by 59 percent, the number of representation cases the Board decided has dropped by 72 percent, the number of unfair labor practice cases has dropped by 33 percent, the number of unfair labor practice cases the Board decided has dropped by 63 percent, the number of elections held has dropped by 57 percent (although the union win rate has increased), yet during the same period funding has increased more than 70 percent. The letter was sent by Alexander along with Senators Jerry Moran (R-Kan.), Richard Shelby (R-Ala.), Thad Cochran (R-Miss.), Lindsey Graham (R-S.C.), Mark Kirk (R-Ill.), Mike Johanns (R-Neb.), John Boozman (R-Ark.)., Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.), Richard Burr (R-N.C.), Orrin Hatch (R-Utah), Pat Roberts (R-Kan.), and Tim Scott (R-S.C.).

May 2013 Edition of the Employment Law Blog Carnival is Live

Big thanks to Attorney Donna Ballman for hosting this month's edition of the employment law blog carnival titled, "We Are Family."  Enjoy!

Study Shows Few Dads Take Advantage of Paternity Leave

A study published in 2012 by researchers at the University of Virginia and the University of Connecticut found that only 12% of fathers took paid parental leave when it was offered, compared with 69% of mothers.  Currently, expecting mothers and fathers are only protected by two federal laws: The Pregnancy Discrimination Act and the Family and Medical Leave Act.  Currently, pregnant employees are treated no differently than other temporarily-disabled employees and expecting fathers have even less protection unless they qualify for FMLA leave.  There is pending legislation, The Pregnant Workers Fairness Act, which seeks to provide greater protections to pregnant and expecting father employees, but it does appear many private employers, like Yahoo, are voluntarily providing generous leave policies, but fathers are not utilizing the leave advantages.

A Marketwatch.com article on paternity leave shows, most companies offer more generous paternity leave than maternity leave:

While 11% of companies offered additional paid maternity leave beyond paid disability leave in 2011, more employers, or 13%, offered paid paternity leave. That’s because maternity leave is much more expensive for companies to offer, since mothers are much more likely to use all they are given (and might take the weeks off anyway, without pay), says Sladek. “There’s just a lot of societal pressures on men, more so than women, so it’s harder for men to take the full leave.”

Even when men do take paternity leave, they often spend some of it working, perhaps contributing to their employer’s bottom line even when not at the office. The researchers behind the 2012 study which surveyed male and female professors on the tenure track, noted a theme of dads on leave working more than caring for their infant: “We heard stories of male academics who took paid post birth leave in order to advance their publishing agendas,” they wrote. “Another had taken leave while his child was in full-time day care.”

Another surprising statistic is that only approximately 11% of the private sector workforce has access to designated paid family leave.  Pregnancy discrimination remains one of the more fluxing areas of employment discrimination and appears to continue to be a bigger issue for women than for men.

EEOC Obtains Its Largest Verdict in History

In a case of purely horrific facts that border on unbelievable comes good news from the Equal Employment Opportunity Commission who announced it obtained its largest verdict in the agency's history in correcting this tremendous wrong done to mentally-disabled workers at an Iowa turkey service facility.  The jury award was for $240 million!

From the EEOC's press release on the historic verdict:

EEOC presented evidence to the jury that Henry's Turkey exploited these workers, whose jobs involved eviscerating turkeys, because their intellectual disabilities made them particularly vulnerable and unaware of the extent to which their legal rights were being denied. The affected men lived in Muscatine County, Iowa, where they worked for 20 years as part of a contract between Henry's Turkey and West Liberty Foods, an Iowa turkey processing plant....Specifically, the EEOC presented evidence that for years and years the owners and staffers of Henry's Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.
Verbal abuses included frequently referring to the workers as "retarded," "dumb ass" and "stupid."  Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  The Henry's Turkey supervisors, also the workers' purported caretakers, were often dismissive of complaints of injuries or pain. 

"These men suffered isolation and exploitation for many years, while their employer cruelly consumed the fruits of their labor," said Robert A. Canino, regional attorney of the EEOC's Dallas District Office, which tried the case.  "Our society has come a long way in learning how persons with intellectual disabilities should be fully integrated into the mainstream workplace, without having to compromise their human dignity."

On top of this historic verdict, the EEOC also sued Henry's Turkey for the disparate pay these disabled workers received.  The EEOC earlier won a $1.3 million wage discrimination judgment when Senior U.S. District Court Judge Charles R. Wolle found that, rather than the total of $65 dollars per month Henry's Turkey paid to the disabled workers while contracted to work on an evisceration line at the plant, the employees should have been compensated at the average wage of $11-12 per hour, reflecting pay typically earned by workers without intellectual disabilities who performed the same or similar work.  The EEOC's wage claims for each worker ranged from $28,000 to $45,000 in lost income over the course of their last two years before the Henry's Turkey Service operation was shut down in February 2009.

Truly a sad story with a great ending.  Congratulations, EEOC!

EEOC Holding Meeting on May 8th to Explore Wellness Programs

Wellness programs have been at the fore of controversy lately, especially here in Wisconsin where several of the State's largest employer's have implemented policies that some have argued violate anti-discrimination laws.  The Equal Employment Opportunity Commission (EEOC) will finally address the issue in a meeting at their headquarters in Washington D.C. on May 8, 2013 at 9am est. 

From the EEOC's press release on the meeting:

The Commission will hear from invited panelists on the treatment of wellness programs under federal law, with an emphasis on understanding the ways in which the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other statutes EEOC enforces may be implicated by these programs.

The Commission is scheduled to hear from the following confirmed panelists:

• Christopher Kuczynski, Acting Associate Legal Counsel, EEOC
• Judith Lichtman, Senior Advisor, National Partnership for Women and Families
• Jennifer Mathis, Deputy Legal Director, Bazelon Center for Mental Health, on behalf of the Consortium for Citizens with Disabilities
• Amy Moore, Partner, Covington and Burling LLP, on behalf of the ERISA Industry Committee (ERIC)
• Karen Pollitz, Senior Fellow, Kaiser Family Foundation
• Leslie Silverman, Partner, Proskauer Rose, LLP; Former EEOC Vice Chair (2002-2008)
• Tami Simon, Managing Director, Knowledge Resource Center, Buck Consultants, on behalf of the American Benefits Council (ABC)

April 2013 Edition of the Employment Law Blog Carnival is Live!

Lorene Schaffer from Win Win HR has hosted another wonderful edition of the Employment Law Blog Carnival titled, "Tips for HR Spring Cleaning" and it's available here.  Enjoy!

EEOC Releases Q&A on The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking

The Equal Employment Opportunity Commission (EEOC) released a question & answer section on their website regarding "The Application of Title VII and the ADA to Applicants or Employees Who May Experience Domestic or Dating Violence, Sexual Assault or Stalking," which is a topic I discussed on this blog in the aftermath of the unfortunate salon shooting in a Milwaukee suburb.

The Q&A is available here and worth a read for anyone facing these problems in their personal life as they should not let it avoid their work in the workplace and should not be discouraged from discussing it with their employer.

CT District Court Holds an Employee's Being Called "Stupid" Not Enough to Give Rise to "Regarded As" Disability

An employee at a theme park who had no formal diagnosis for the mental retardation and learning disabilities sued his employer for, amongst several other counts, disability discrimination on both the actual and regarded as grounds but a federal district court in Connecticut granted summary judgment in favor of the employer holding that, on the actually-disabled route, “[s]elf-serving testimony, without more, is insufficient to create a material issue of fact…”  On the regarded as route, the court held a reasonable jury could not find that calling someone “stupid” is not evidence that the speaker perceived that person to be substantially limited in any major life activity.

These cases are never easy as employees often feel like their rights are being violated when they're being treated with hostility and being called names like "stupid," and rightfully so.  However, even with the passing of the Americans with Disabilities Act Amendments Act (ADAAA), even though it has made it easier for plaintiff's to show a disability, cases like these show the difficulties plaintiff's still face in proving discrimination and hostile environments.  

The case is Adams v. Festival Fun Parks (d/b/a Lake Compounce Theme Park), Case No. 11CV427.

Federal Paid Sick Leave Reintroduced in House and Senate

On March 20, 2013 Senator Tom Harkin (D-IA) and Representative Rosa DeLauro (D-CT) reintroduced legislation, the Healthy Families Act (H.R. 1286, S. 631), that would require employers to provide paid sick leave to employees.  The legislation, as proposed, is incredibly generous.  Specifically, the legislation would:

• Allow employees to earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually;
• Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as medical appointments; 
• The bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault. Employers with 15 or more employees would be covered by the law.
• Employees would be entitled to avail themselves of sick leave – which begins accruing from the first day of employment under the bill – after 60 days; 
• Paid sick leave would carry over from year to year, but may not exceed 56 hours unless the employer permits additional accrual;
• The Act would require medical certification if more than three consecutive days are taken off;
• If an employee leaves his or her job and is rehired within 12 months, that employee would be entitled to the accrued leave already earned and would be entitled to take sick leave immediately

The first attempt at this type of legislation first occurred in 2004 and has been attempted a few times since but hopefully this time is the charm though I expect some of the above provisions to not survive.