Wednesday, September 28, 2011

Q: What Employment Laws Require Accommodation from an Employer?

A: Federally, only the Americans with Disabilities Act and Title VII with respect to religion.  State laws vary, however.

Federal Court Holds Not Returning Employee's Calls While on FMLA Leave May Amount to Retaliation

A case catching a lot of attention right now involves a decision out of a federal court in Pennsylvania where it was found that an employer's failure to return an employee's telephone calls while she was on FMLA leave is indirect evidence of retaliation. 


The plaintiff in the case took FMLA leave that was expected to last approximately two months.  The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates.  However, her supervisor often failed to return the calls.  In early November, she provided a return to work certification clearing her return for November 13.  She also contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return the call.  Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.  


Obviously behavior like that from an employer prompts an employee to seek legal counsel because they understandably feel that their termination was unlawful.  The employee then filed an FMLA retaliation, interference, disability discrimination and state law claim.  The trial court held that the supervisor's failure to return phone calls was evidence of "an antagonistic attitude toward the employee, particularly where - as here - such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee."  As such, it could be used as evidence of retaliation.  


The plaintiff's interference claims ultimately failed because the plaintiff could not show that she could return to work at the end of the 12-week period.  


The case is Kathleen Hofferica v. St. Mary Medical Center, Case No. 10-6026

Tuesday, September 20, 2011

7th Circuit Holds a Supervisor Can Be a "Comparator" Under Title VII

The Court of Appeals for the Seventh Circuit recently held in Rodgers v. White, No. 10-3916 (7th Cir. Sept. 2, 2011) that a district court erred in holding a supervisor cannot be comparable to a line employee for purposes of applying the McDonnell Douglas method of proof, vacating summary judgment and remanding the claim for trial.  In making their decision, the 7th Circuit stated: "We have observed in many decisions that employees of differing ranks usually make poor comparators, but the rationale behind that general rule does not apply in this case."  The Court further stated:
"Many times we have acknowledged that supervisors usually make poor comparators for plaintiffs claiming employment discrimination. But usually does not mean always, and we have not held that a supervisor is never an apt comparator. Supervisors typically make unrealistic comparators because, as relevant to the issues in a particular case, employees of higher rank commonly have different job duties or performance standards. And especially in situations where the plaintiff alleges discriminatory promotional practices, it is difficult for the plaintiff to show that he deserved to be promoted over an employee of a higher rank, who usually possesses more experience. Yet when uneven discipline is the basis for a claim of discrimination, the most-relevant similarities are those between the employees' alleged misconduct, performance standards, and disciplining supervisor. Formal job titles and rank are not dispositive; an employer cannot 'insulate itself from claims of racial discrimination' by making formalistic distinctions between employees. Thus, when a plaintiff and his supervisor were accused of making similar mistakes, were equally responsible for avoiding those mistakes, and were disciplined by the same superior, the plaintiff can make a realistic comparison with his supervisor for purposes of establishing a prima facie case of discrimination."
This decision makes sense because it recognizes the reality and practical work place in the real world.  It is encouraging to see the 7th Circuit applying Title VII and the McDonnell Douglas burden-shifting scheme in a flexible manner that allows for common-sensical results.

IRS Updates Guide on Use of Employer-Provided Cell Phones

The Internal Revenue Service (IRS) recently issued updated guidance (pdf) on the tax treatment of employer-provided cell phones, effectively treating both business and personal use of such phones as exempt from an employee’s wages.  The reasoning behind this update is that the IRS has noted that employers provide cellphones for numerous noncompensatory purposes.  Accepting what is a common business reality today, the IRS announced that if an employer provides an employee with a cell phone “primarily for noncompensatory business purposes,” the cell phone will be treated as a working condition fringe benefit and the value of the cell phone usage will be excluded from the employee’s wages.  However, not all employer-provided cell phone use is noncompensatory.  The IRS also noted that providing cell phones to “promote the morale or good will of an employee, to attract a prospective employee or as a means of furnishing additional compensation to an employee” do not qualify as being “primarily for noncompensatory business purposes.”

Thursday, September 15, 2011

NLRB's Mandatory Union Poster is Available!

The poster most employers are required to post under the National Labor Relations Act (NLRA) as of November 14, 2011 is now available for download but employers may pick the posters up at the local National Labor Relations Board (NLRB) regional office.  The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.


As I posted previously regarding the poster, failure to post this poster has two major consequences.  Specifically, failure to postcould result in an extension of the normal six-month statute of limitations for filing an unfair labor practice charge under the NLRA. Second, if an employer fails to post the notice, the NLRB has indicated it might take that into consideration as evidence of an employer's motive against unionization. That could be a relevant fact in an unfair labor practice charge, such as if an employee were claiming that he or she had been fired because of union activity.

Tuesday, September 13, 2011

2nd Circuit Holds Employer May Have Duty to Accommodate Employee's Commute To and From Work

In a potentially landmark case, the Court of Appeals for the Second Circuit had held that, under certain circumstances, an employer may have a duty to accommodate an employee in their commute to and from work.  The Court reversed the lower court's decision that held an employer has no legal duty to accommodate a worker's commute, as the commute is "outside the scope" of the employee's job.  The plaintiff has a hearing impairment, cancer, heart problems and asthma - was transferred from Queens to Manhattan for 13 months, during which she complained about problems associated with her commute.  The 2nd Circuit held that possible accommodations for her may have been "transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit."  The Court's reference to the accommodation of working from home deviated from traditional disability accommodation law.


The Court did say, as has always been the case with disability discrimination claims as it relates to the employer's duty to accommodate, that accommodating the commute turns on a case-by-case basis.  Upon remanding the case back to the lower court, the 2nd Circuit stated:
"On remand, the district court shall consider factors such as the number of employees employed by DOHMH, the number and location of its offices, whether other available positions existed for which Tinkelman showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening DOHMH's operations, and the reasonableness of allowing her to work without on-site supervision."
Interestingly enough, the Court rejected the plaintiff's suggestion for an accommodation of a special telephone or device for the hearing impaired while she worked in the Manhattan office.

The case is Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene,No. 10-3317-cv (2d Cir. Aug. 10, 2011)

Walgreens Fires Employee for Opening $1.39 Bag of Chips to Stabilize Low Blood Sugar

The Equal Employment Opportunity Commission (EEOC) has filed a suit under the Americans with Disabilities Act (ADA) in the Northern District of California against Walgreens for firing a veteran 18-year diabetic employee with diabetes who suffered a hypoglycemia even during work, and took a bag of potato chips worth $1.39 she was able to pay for them, in order to quickly stabilize her diabetes-related low blood sugar.


The full complaint can be found here.

Sunday, September 11, 2011

Trouble Wage & Hour Statistics from the Dept. of Labor

The Department of Labor ("DOL") has been busy recently revamping its website and recently offered a phone application to help hourly employees keep track of their time in an effort to ensure employers are complying with wage & hour laws.  Now the DOL has released recent statistics of 68,644 enforcement actions that revealed violations in 50,364 cases, and no violation in just 18,280. In other words, the DOL found violations in roughly 73% of all of its compliance actions. These findings resulted in findings of back wages due totaling $681,151,513, or about $13,524.57 per case in which a violation was found.  This is pretty disturbing data but hopefully with proper education and enforcement the stats will look better next time around.