Employees May Be Entitled To Time Off To Vote, October 30, 2008
Thirty-one states have laws that require private employers to give employees time off from work to vote. These laws vary with regard to the conditions under which leave must be granted, the amount of leave that must be granted, and whether such leave is paid or unpaid. In Maryland, for example, every employer is required to give any employee who claims to be a registered voter up to 2 hours of paid time off from work on Election Day if the employee does not have 2 hours of continuous off-duty time when the polls are open. The employee is required to provide proof that he or she has voted or attempted to vote.
FMLA Complicates Absence Rate Calculations, October 29, 2008
Many employers have attendance policies that require employees to maintain an absence rate below a certain percentage of scheduled work days or face progressive discipline. In Dickinson v. St. Cloud Hosp., D. Minn., No. 07-3346, 10/20/08), the court considered whether days missed for FMLA-qualifying reasons somehow should be included when computing an employee’s absence rate for disciplinary purposes. The case involved a nurse who was fired by a hospital for excessive absenteeism. Hospital employees were supposed to have a non-FMLA absence rate not exceeding four percent. The absence rate was calculated by dividing the number of hours an employee was absent by the number of the employee’s scheduled work hours. However, the calculation completely disregarded any time when FMLA leave was taken, which was not included in time missed or scheduled work hours.
The FMLA regulations provide that “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under ‘no fault' attendance policies.” 29 C.F.R. § 825.220(c). The hospital contended that its calculation was proper because it treated FMLA leave neutrally. The nurse argued that FMLA leave must be included in the denominator of the absenteeism calculation, because not doing so increased her absence rate.
The court rejected the hospital’s method of calculation, finding that FMLA leave must be included in the total amount of scheduled work time (but not in time missed); otherwise “the taking of FMLA leave becomes a negative factor.” By using the hospital’s method of calculation, an employee who elects to take FMLA leave is allowed fewer non-FMLA absences before exceeding the four percent limit, which results in the FMLA leave being a negative factor for discipline under the attendance policy.
The following illustrates the difference in the two calculations:
FMLA Leave: 20 days
Non-FMLA Absences: 4 days
Total Time Missed: 24 days
Regularly Scheduled Work: 100 days
Hospital Calculation: 4 days / (100 days - 20 days) = 5% absence rate
Alternative Calculation: 4 days / 100 days = 4% absence rate
As illustrated by the example, if the hospital’s calculation method is used, an employee who elects to take FMLA leave will have a higher absence rate than another employee who did not take FMLA leave, even though both employees have the same number of non-FMLA absences over the same period of time.
Does An Employer Need Just Cause To Move An Employee's Desk? October 28, 2008
In 2007, Leahi Hospital, part of Hawaii's state health system, had a problem with employee productivity in its Health Information Management ("HIM") department. Because the HIM department was so slow in processing charts for discharged patients, the hospital was cited by the state government for failing a state survey and put on a federal government watch list. The hospital brought in a new manager to make sure the facility complied with government regulations, including improving efficiency in the HIM department.
The new manager quickly realized the source of the backlog of patient charts. The two clerks assigned to the HIM department spent most of their workdays socializing and listening to the radio, leaving patient charts scattered around the office. As part of her efforts to improve efficiency, the manager moved one clerk's desk to a file area, physically located in the office but away from her co-worker's desk, so that she could focus on reducing the chart backlog, rather than chatting all day. There was no change in the clerk's pay or work hours, and she received no disciplinary warning.
Angered that she could no longer work alongside her co-worker, the clerk filed a grievance with her union, which eventually took the issue to arbitration. The union argued that relocating the clerk's desk was tantamount to disciplining her and that the hospital did not have just cause to do so. The arbitrator disagreed and denied the grievance, finding that there was no discipline involved and nothing in the collective bargaining agreement gave employees the right to control the location of their workstations. As common sense dictates, management retained the right to move employee work areas to improve operations. Hawaii Health Systems Corp., 125 LA 741 (BNA July 8, 2008).
Retaliation Claims Require A Good Faith Belief That Illegal Activity Has Occurred, October 23, 2008
Alshafti Tate claimed he was fired when he refused to continue a consensual sexual relationship with his female supervisor. A jury found for Tate on his claim of retaliation under Title VII, which prevents employers from taking adverse action against employees who oppose illegal workplace discrimination, including sexual harassment. The jury verdict did not stand. The United States Court of Appeals for the Seventh Circuit reversed the verdict, because it found no evidence that Tate had opposed illegal activity. The key factor in the analysis on appeal was whether Tate refused to continue the relationship because he reasonably believed that his supervisor’s actions were unlawful. Tate never said anything indicating a belief that he was being sexually harassed. Instead, Tate contended that he ended the workplace relationship because he was married and he was not “messing with her any more.” All of the evidence indicated that Tate refused to continue the relationship for personal reasons rather than any concern about illegal workplace conduct. Therefore, Tate did not have a viable claim for retaliation under Title VII.
Tate v. Executive Management Services, Inc., - F.3d - (7th Cir. October 10, 2008)
Employees Who Present False Identification Documents May Be Guilty Of Identity Theft, October 22, 2008
The Supreme Court will decide an identity theft case involving a Mexican citizen who used false identification documents to obtain employment in the United States. The case involves Ignacio Flores-Figueroa, who used an invalid Social Security number and a false resident alien card to obtain employment with L&M Steel Services in Illinois. Both sources of identification listed the name Horatio Ramirez, but they contained numbers that had not been issued to someone with that name. Flores later presented his employer with a forged Social Security card and a forged resident alien card, both of which he had purchased. This time, both cards listed Flores’ real name, but the relevant identification numbers had been issued to other people. Flores was later convicted of violating immigration laws and sentenced to 75 months in prison, including 24 months for aggravated identity theft.
The Supreme Court decided to hear the case to resolve whether Flores is guilty of aggravated identity theft. The Identity Theft Penalty Enhancement, which was signed into law in July 2004, added an aggravated identity theft provision to the criminal code involving violations of immigration law. The 2004 law provides (18 U.S.C. § 1028A(a)(1) ):
- “Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”
Flores testified at trial that he had purchased the forged identification documents without any knowledge that the numbers belonged to real people rather than just being made up for him. The issue before the Supreme Court is whether a conviction for aggravated identity theft in these circumstances requires proof the defendant knew the means of identification belonged to someone else, or if it is enough to prove that the defendant knew the identification did not belong to him. The U.S. Circuit Courts of Appeal that have addressed this issue are currently split 3-3.
New Maryland Law Requires all Employers to Maintain Information on Employees Race and Sex, October 17, 2008
A little noticed change in Section 3-305 of Maryland’s Labor & Employment Article that was signed by the Governor in April 2008 now requires that - in addition to keeping information on wages and job classifications of employees - a company must keep track of employee race and gender. Most larger employers already do this, and any employer with more than 100 employees is expected and required to complete the EEOC’s EEO-1 form annually. Now, the Maryland Commissioner of Labor has proposed regulations that provide Maryland employers maintain the required information on race and sex using the same racial categories as those identified in the EEO-1. Comments on the Commissioner’s proposal are due by November 10, 2008.
The EEO-1's requirements were revised in 2005, and provide a two question format. First, when self-identifying "race," employees initially identify their Hispanic or Latino status, followed by identifying the race or races they consider themselves to be. Second, the EEO-1 provides for a category of "two or more races." Finally, the EEO-1 form provides for identification as "White," "Black or African American," "Hispanic or Latino," "Asian," and "Native Hawaiian or other Pacific Islander." To learn more about the EEO-1's requirements, go to http://www.eeoc.gov/eeo1/index.html To get a sample copy of the EEO-1 form, go to http://www.eeoc.gov/eeo1/eeo1_2007_d.pdf
Driving not a Major Life Activity Under ADA, October 17, 2008
Joining two other appellate courts, the 10th Circuit has held that driving is not a major life activity under the Americans with Disabilities Act (ADA). Kellogg v. Energy Safety Servs. Inc. d/b/a Oilind Safety LLC, No. 07-8072 (10th Cir. October 15, 2008). See Colwell v. Suffolk County Police Dept., 158 F.3d 635 (2d Cir. 1998) and Chenoweth v. Hillsborough County, Fla., 250 F.3d 1328 (11th Cir. 2001). The EEOC's regulation on major life activities does not include driving, said the Court, and while the list is not intended to be exhaustive, the activities mentioned "are all profoundly more important in and of themselves than is driving." The Court noted that those activities "are valued as much by the resident of a major metropolitan area as by an isolated rural resident. Driving, in contrast, may be a minor concern for one who is near convenient mass transit and can walk to work."
Grant of Intermittent FMLA Leave Does Not Carry Over, October 14, 2008
In an interesting case out of the Sixth Circuit, an employee who used intermittent FMLA leave in 2004 has been told she could not carry the approval over to the next calendar year, where the company used the calendar year method of leave useage. Davis v. Mich. Bell Tel. Co., No. 07-1512 (6th Cir. September 29, 2008). Upholding summary judgment for the employer the court held that the start of a new 12 month leave period permitted the company to re-evaluate the employee’s eligibility for leave, and that the company did not violate the FMLA when it fired the employee for absenteeism in early 2005.
"Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave," stated the court. "Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination." The court stressed that "Congress could not have intended this absurd result."
Supreme Court Employment Law Docket for 2008-09, October 13, 2008
Last week, the Supreme Court opened its 2008-09 term with six labor and employment law cases on its docket.
Agency Fees: On the first day of the term the Court heard Locke v. Karass (No. 07-610), which asks whether a public sector union may charge nonmembers who pay an agency fee costs for litigation incurred by the international union on behalf of bargaining units not related to the employees’ unit. The First Circuit said that a Maine union could do just that without violating nonmembers' First Amendment freedom of association rights. See 498 F.3d 49 (1st Cir. 2007)
ERISA Pensions: On October 7, the court heard argument in Kennedy v. Plan Administrator for DuPont Savings & Investment Plan (No. 07-636), which asks whether a qualified domestic relations order (QDRO) is the only valid way under ERISA for a divorcing spouse to waive the right to the other spouse's pension benefits. ERISA requires that a pension plan provide benefits may not be assigned or alienated, but states that the anti-alienation provision does not apply to a QDRO, which must specify the identity of beneficiaries, the particular plans affected, and the exact manner of calculating benefits. In this case, an employee died with a QDRO that had not been filed with the employee. The Fifth Circuit held that ERISA's anti-alienation provision, not federal common law, controls and that because the QDRO was not submitted to the plan, the wife had not given up her interest in the benefits. See 497 F.3d 426 (5th Cir. 2007).
Title VII Retaliation: As discussed in last week’s quick clip, on October 8 the court heard another retaliation case, this one involving the scope of Title VII retaliation. In Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn. (No. 06-1595), the question is whether an employee interviewed in an internal EEO investigation involving other employees is protected from retaliation under either the opposition or participation clause. The Sixth Circuit held that there is no such protection. See 211 Fed. Appx. 373 (6th Cir. 2006).
Idaho Campaign Finance Law: On November 3, the Court will consider whether an Idaho statute that prohibits local government employers from allowing employee payroll deductions for political activities violates the First Amendment free speech rights of unions and their members. Ysursa v. Pocatello Education Ass'n (No. 07-869). The Ninth Circuit said that the prohibition on payroll deductions, as applied to local governments, violates the First Amendment because it is a content-based restriction for which the state has no compelling justification. See 504 F.3d 1053 (9th Cir. 2007).
Arbitration, Labor and EEO Law: On December 1, the Court will consider whether employees covered by a collective bargaining agreement providing that statutory employment discrimination claims must be pursued through the contractual grievance/arbitration procedures have a right for a court to decide their age discrimination claims. 14 Penn Plaza LLC v. Pyett (No. 07-581).
Relying on Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Second Circuit held that "a union-mandated arbitration agreement purporting to waive a covered worker's rights to a federal forum with respect to statutory rights is unenforceable." See 498 F.3d 88 (2d Cir. 2007).
Pregnancy Discrimination: On December 10, the Court will consider whether the Pregnancy Discrimination Act of 1978 (PDA) is retroactive when it decides whether an employer must give full service credit for purposes of calculating retirement benefits for pregnancy leaves taken before the PDA took effect, if the plan gave full credit for other types of temporary disability leaves. AT&T Corp. v. Hulteen (No. 07-543). The Ninth Circuit held that the PDA is not retroactive and that there is no new act of discrimination when pension benefits are calculated. See 498 F.3d 1001 (9th Cir. 2007)
Supreme Court Considers Scope of Title VII Retaliation Claims, October 10, 2008
Retaliation has been on the Supreme Court’s mind a lot lately. Last term the Court held that retaliation claims are available under Section 1981 and to Federal employees under the Age Discrimination in Employment Act, despite the fact that neither act specifically provides for such a claim.
Now, the Court is considering whether an employee who never complained about sex harassment, but who disclosed harassment during an internal investigation in to allegations raised by another employee, can state a claim for retaliation. Crawford v. Metro. Gov’t of Nashville, No. 06-1595 (oral argument held October 8, 2008).
At oral argument, a clear majority of the justices seemed to support extending the scope of Title VII to cover this sort of claim. Anticipating this result, the only real question is how broadly the Court will interpret the "opposition" clause. For example, if in an investigation, when questioned, Susie discloses that she was also harassed but never files any sort of complaint, is that "opposition?" It looks like the Court will say it is. But what if Susie says only that "it would be terrible if the supervisor did harass someone," is that protected opposition, such that if some materially adverse action happens to Susie three months later she can state a retaliation claim? Look for the Court’s decision later this term.
Lying to Your Employer about Absences Just Doesn’t Work, October 10, 2008
This is a great story. Catherine Hughes worked for the city of Bethlehem, Pennsylvania. She is diabetic. In September 2003, Hughes flew to Las Vegas to have her lips and eyebrows permanently tattooed (the court’s opinion does not explain either (1) why she thought this was a good idea or (2) why she needed to go to Las Vegas for the tattoos). Two of the days that she was in Las Vegas she called in sick to work.
When the City received an anonymous tip that Hughes was really in Vegas and not sick, they asked Hughes to explain herself. Hughes then lied, both to the City and her union, claiming that she had been home in bed and even provided a note, allegedly from her doctor, confirming her illness. The City then fired her for dishonesty. Her union refused to process her grievance.
Hughes then sued the City in federal court for sex discrimination and harassment, disability discrimination and retaliation, violation of Section 1983, and violation of the FMLA. The District Court entered summary judgment on all counts for the City. Hughes then actually appealed. The Third Circuit affirmed. Hughes v. Bethlehem, No. 07-2349, (3d Cir. October 2, 2008) (unpublished).
The appellate court found no evidence of any sort of discrimination and affirmed that the City’s termination of Hughes for dishonesty was appropriate. Makes you wonder what Hughes and her attorney were thinking.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 1999 - 2010 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.tm
Home |
About Us |
Services |
Frank L. Kollman |
Peter S. Saucier
Darrell R. VanDeusen |
Clifford B. Geiger |
Anthony P. Palaigos |
Eric Paltell |
Sarah E. Longson
Randi Klein Hyatt |
Kelly C. Hoelzer |
Michael R. Severino |
John S. Bolesta |
News
The Employment Brief Newsletter |
Current Press Release |
Frank Kollman's Blog |
Article Synopses |
Glossary
Handbook |
Quick Clip Archive |
HR Forms & Policies |
Newsletter Mailing list |
Contact Us
