Fiona W. Ong

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With the imminent blizzard of 2016, employers are thinking about work coverage issues. This is of particular concern for those employers who function on a 24-hour basis, like healthcare entities. In order to ensure coverage during perilous travel conditions, some employees may agree to (or even be required to) stay overnight. Obviously, any hours actually spent working must be paid, but they are likely not working during all of that time onsite. In fact, some of that time may be sleep time. What are the rules on pay under those circumstances? going%20to%20bed%20at%20night

The Fair Labor Standards Act provides that if an employee works for more than 24 hours, up to 8 hours of sleep time may be deducted pursuant to an agreement between the employer and employee.  The FLSA does not define what is such an “agreement.”  However, various courts have done so, and these courts have found that if an employer publishes a policy that explains the sleep time deduction and if employees continue to work for the employer, this constitutes an agreement for the deduction.  In at-will employment states, any employee who chooses not to agree to any company policy, including one like this, can certainly choose not to work for the company.  Conversely, the company can choose to terminate any employee who chooses not to agree to any of its policies.  That is what at-will employment entails.  If the company does not have a published policy on this issue, it will not be able to deduct for the sleep time.
Continue Reading Employees Staying Over in the Storm – Sleep Time Deductions

According to the federal district court in Mendillo v. The Prudential Ins. Co. of America, the answer is “yes.” But I struggle with this decision, because I think it ties an employer’s hands and undercuts the employer’s right to demand medical information under the Americans with Disabilities Act.

In this case, a call center employee was pretty seriously injured in a car accident.  There were some performance issues that pre-dated her car accident, and they continued after her return to work. About four months later, the employee’s responsibilities were changed so that her off-line work was taken away and she did telephone work full-time. She told her supervisor that the full-time telephone work would exacerbate her back pain, since she was able to get up and stretch  when she was doing off-line work. In fact, her back pain did worsen with the full-time telephone work, which caused her doctor to order that she cut back on her hours. In addition, her performance took an immediate and significant turn for the worse. She was able to improve her performance, but it fluctuated over the next year, finally resulting in her termination. She then sued, alleging a number of claims including that the company failed to accommodate her in violation of the ADA.
Continue Reading Must Employers Accept An Employee’s Stated Disability Without Question?

Fire Icon clip art Free VectorAs you may know, I love the quirky cases (like the Playgirl model who sued for sexual harassment). I recently came across a 2014 state case that falls into this category – the firefighter who is afraid of fire.

In City of Houston v. Proler, the captain of a firefighting crew refused to enter a burning apartment building, appearing to be frightened. He was reassigned to the training academy, but was eventually transferred back to active firefighting duty. Two years after the first incident, the captain arrived at a house fire. Again, he appeared to be frightened – unable to put on his equipment, take or give orders, and showing physical distress. He was hospitalized and diagnosed with “global transient amnesia.” Management (reasonably) considered this a “possibly dangerous situation,” and he was again reassigned to the training academy.

Nonetheless (and despite all common sense), the captain wanted to be reassigned to active firefighting. Because he was a union member, he filed a grievance under the collective bargaining agreement. Shockingly (to me), a hearing examiner ordered that he be returned to his fire suppression duties. Unsurprisingly (to me), the City appealed this decision to the trial court, at which point the captain brought claims against the City for disability discrimination under the Americans with Disabilities Act and Texas state law. Shockingly (to me), the jury found that the City had engaged in disability discrimination against the captain, although it awarded him no damages (he did get $362,000 in attorneys’ fees). Shockingly (to me) the Texas Court of Appeals affirmed the disability discrimination verdict.
Continue Reading Firefighter’s Fear of Fire Is Not Disability

Last time I talked about how to determine if an employee is a “key employee” under the Family and Medical Leave Act. This time, we’re going to talk about the actual steps you need to take in order to invoke this exemption.golden-key

There are very specific, mandatory notice requirements that apply. 29 C.F.R. Section 825.219(a) requires an employer to notify the employee of the employee’s status as a “key employee,” that it may deny reinstatement following FMLA leave if it determines that substantial and grievous economic injury will occur, and the potential consequences with respect to the maintenance of health benefits. This requirement may be met by checking off the appropriate provision on the DOL’s model “Notice of Eligibility and Rights & Responsibilities,” WH-381. (Are you using the DOL’s model forms? If not, why not? They’re actually pretty good – and I have never seen an individualized employer-prepared form that was any better! In fact, most employer-prepared forms that I’ve seen have various problems. Big ones.)

The employer should give this first notice as soon as it is able to determine that the employee is a key employee. Hopefully, this should happen when the employee gives notice of the need for leave, but may occur after the leave begins if the employer needs time to make that determination. Please note that if the employer fails to give timely notice, the employer will not be able to deny restoration – even if there is substantial and grievous economic injury!!!Continue Reading The Rules on the Key Employee Exemption Under the FMLA (Part II)

I’m an Family and Medical Leave Act geek – I find the twists and turns and intricacies of this law and its regulations just fascinating. ( I know, that’s really geeky). I was recently advising a client on the key employee exemption under the FMLA, which reminded me of how technical the rules are with regard to this particular issue. I thought some of you might appreciate a primer on this exemption – what it is and how to apply it.golden-key

Under the FMLA regulations, a key employee may be denied restoration to his job position if such restoration would cause “substantial and grievous economic injuries to the employer’s operations.” 29 C.F.R. Section 825.216. A key employee is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite. (Keep in mind that overtime payments to non-exempt employees can increase their income significantly and throw off the top 10%!)

The regulations discuss what “substantial and grievous economic injury” means. Of particular note, the “substantial and grievous economic injury” must be based on the restoration, and “not whether the absence of the employee will cause such substantial and grievous injury.” (Emphasis added). 29 C.F.R. Section 825.216. This is a very important distinction – several courts have found the employers failed to establish “substantial and grievous economic injury” where the employer focused on the effect of the employee’s absence rather than the impact of the employee’s restoration on its operations. Let me repeat that – FOCUS ON THE IMPACT OF THE RESTORATION, NOT THE ABSENCE!

Continue Reading The Rules on the Key Employee Exemption Under the FMLA (Part I)

Most employers are aware that violations of the Fair Labor Standards Act can result in an investigation by the U.S. Department of Labor, leading to back pay damages, as well as possible liquidated damages in an amount equal to back pay, and even civil penalties up to $1000 for each willful or repeated violation. prison-silhouetteState departments of labor may also conduct such investigations for violations of state wage and hour laws, which can result in similar monetary consequences. Employees may also bring a lawsuit against their employer in federal or state court.  But what many employers don’t know is that they could even end up in jail!

Under the FLSA, willful violations can result in criminal prosecution, with a second conviction resulting in imprisonment! State laws can be even more aggressive, as a Papa John’s franchisee recently learned to his dismay.Continue Reading Making Up Fake Employees Can Land You in Jail

So I found this case, Smith v. URS Corp., interesting because it involved a black employee Dollar signwho got what he wanted, but was still able to sue for discrimination.

The black employee received the job he applied for (training specialist) and more pay than he asked for ($57,668 instead of $46,000). He was given a classification title and job code of “Senior Training Specialist (65010)” and a job grade of S5.12. Five months later, a white applicant applied for the same training specialist job but asked for a $65,000 salary. He was hired into a Senior Training Specialist role at his requested salary, with a classification title and job code of “Staff Training Specialist (65010) and a job grade of S5.13. Shortly after that, another black applicant applied for a training specialist position with a desired salary of “58K to 65K.” He was given the same job title, classification, code and grade as the other black employee.

The first black employee sued for race discrimination after he was terminated pursuant to a reduction in force. The trial court threw out his claims on summary judgment before trial because the black employee had received the job he wanted and more pay than he sought. (Hmm, that seems pretty logical, doesn’t it?)Continue Reading Giving Employees What They Want Doesn’t Preclude Discrimination Claim

As you may know, the National Labor Relations Board substantially revised the rules governing the union elections process, by which employees choose whether or not they wish to be represented by a union. The controversial revisions greatly sped up the process, with the effect that employer had less time to educate their employees about the impact of unionization before an election is held – which means more unionization (hence the controversy!).

These revised “quickie election” rules took effect in April 2015. Because the rules themselves were not troubling enough for employers, we now have to contend with the Board’s expansive interpretation of those rules. Here’s an example of what I mean.

As part of the election process, the employer must provide a voter list to the union, containing the names and contact information for all employees eligible to vote in the election. Before the revisions, this list consisted of the names and addresses of eligible voters. This information is readily available from a company’s human resources department, through its database or records. The revised rule, however, requires that the list must now include “available” personal e-mail addresses, and home and cell phone numbers.Voting List

What does this mean? Well, in the Danbury Hospital of the Western Connecticut Health Network case, the employer generated a list from its HR database. The list contained the addresses and emails for all the eligible voters, and phone number for 94% of them.
Continue Reading NLRB Imposes Expansive (and Onerous) Requirements For Preparation of Voter List

So, someone who posed as a nude lumberjack for Playgirl is now upset about the (foreseeable!) consequences of his decision – teasing by his coworkers. And a federal court judge has found that the employee’s sexual harassment claim against his employer, based on his coworkers’ teasing, may have merit. To me, this case, Sawka v. ADP, Inc., is crazy on several levels!Axe

Let’s start with the employee. I find the lack of personal accountability in our society to be appalling. Many people are unwilling to take responsibility for their choices and actions – and, in my opinion, this employee falls into this group. It seems to me that if you choose to put it ALL out there in a sexually-focused publication that is intended for widespread public distribution, you should realize that people (including those you know!) will look at the pictures, comment on them, and, yes, tease you about them. Really, isn’t the whole point of posing for a magazine like Playgirl to invite such attention? Now, I understand that the pictures date from 1991, and perhaps the employee regrets having posed for them at this point in his life. But the passage of time does not and should not absolve him of his responsibility for his (in retrospect) possibly ill-considered decision.

Moreover, his expectations of what his employer should have done were, again in my opinion, unrealistic. The employee initially failed to complain because, in part, he found it “embarrassing.” (Really?) When he finally complained about his coworkers, the employer conducted an investigation, which included interviewing the list of witnesses he provided as well as others. The employee now contends that the employer should have searched the computers of his coworkers to verify that they had looked for his pictures on the Internet. But at the time, I am sure the employer believed it had addressed the issue by speaking with the worst offender about his comments and instructing the Vice President in charge of the office to report any further comments or Internet searches for the employee’s pictures. Given that the employee admittedly did not make any further complaints (although he now alleges that the comments didn’t stop), the employer undoubtedly thought it had resolved the problem.Continue Reading The Playgirl Model’s Sexual Harassment Claim

As you may know, I am a die-hard management lawyer. For example, I recently saw a production of J.B. Priestly’s, “An Inspector Calls.” The titular Inspector forces various members of a wealthy family in Edwardian England to examine their roles in putting a young woman on the path to suicide. In particular, the father had fired the young woman from his factory for being a labor agitator. I know I was supposed to sympathize with the young woman, but I frankly thought the father had behaved in an completely Baby Bottleunderstandable manner (although, of course, it would now be a violation of the National Labor Relations Act to do so). My husband told me, “Well, I guess you’re in the right profession.”

But every now and then, there is a case that just smacks of unfairness to me, even though it may be legally correct. Frederick v. State of New Hampshire was just such a case.

The employee’s new baby had difficulties with bottle feeding. In addition, the employee’s doctor provided a letter explaining that the employee should breastfeed as must as possible to minimize her anxiety disorder. In preparation for returning to work, the employee asked for either an extended break time to go to her baby’s nearby daycare center to breastfeed, or to have her baby brought to her and to be allowed to breastfeed her baby in the employer-provided lactation room.Continue Reading No Protection for a Breastfeeding Mother?