Family and Medical Leave Act compliance can be one of the more challenging tasks employers face.  Some employers attempt to avoid the headache of FMLA administration by hiring a third-party administrator.  But employers beware (!) – outsourcing will not solve all FMLA problems.  An employer still needs to make sure it knows what is happening with an employee’s leave status.  A lack of communication between the employer and the administrator can lead to FMLA liability, as vividly demonstrated in the case of Shockley v. Stericycle, Inc.

In that case, a company hired a third-party administrator to manage its FMLA leave process for employees.  An employee requested FMLA leave and there was some confusion as to whether he needed block time or intermittent FMLA leave.  The employee was given one set of directions by the FMLA administrator and contradicting information from his supervisor and the company’s HR and benefits representatives.  His request for FMLA leave was ultimately denied because the company managers would not permit him to submit additional information as requested by the administrator.

This led to a cascade of unfortunate events.  Because the employee’s FMLA request was denied, his leave was considered unprotected and he was disciplined for attendance issues.  Then because of his attendance issues, he was told by his supervisor that he would not receive a raise.  When the employee walked out of the meeting with his supervisor in anger, he was then terminated for insubordination.  (Reminds me of the old children’s rhyme – for want of a nail, the shoe was lost…)

The employee then sued  his employer as well as individual defendants – the head of his department, the HR director, and benefits administrator.  The individual defendants argued that they should not be liable under the FMLA because they had no direct supervisory authority over the employee.  Sadly for them, the Court disagreed and found that each of them exercised some control over the terms of the employee’s employment.  So one of the lessons of this case is that management officials (and not just direct supervisors) can be held individually liable under FMLA.  That should provide serious incentive to all managers to make sure they comply with the FMLA.

The second lesson is that employers need to talk to their third-party administrators, to make sure everyone is on the same page about an employee’s leave request.  In the Shockley case, given the complete lack of communication between the company and its third-party administrator and the resulting conflicting instructions from all involved, the employee seems to have pretty strong claims that the defendants could be liable for interfering with the his right to take FMLA leave and for retaliating against the employee for trying to exercise his FMLA rights.  And all of this could have been avoided with a little communication.

 

As sexual orientation becomes more mainstream (not that I’m saying it’s accepted everywhere, by any means), gender identity issues are getting attention in our society.  Think of Bradley/Chelsea Manning, for example – his gender identity change added a crazy twist to an already juicy story about betraying our country.  When someone chooses to identify with the gender opposite their sex at birth, it stands out and can make some people uncomfortable.  This discomfort can lead to poor treatment.  But is that treatment prohibited by law?

More and more states are passing laws that protect gender identity.  And now, the EEOC has stated, for the first time, that gender identity, change of sex and/or transgender status is protected by Title VII’s prohibition on discrimination based on sex, among other things.  Although this decision was issued in the context of government employment, the EEOC’s analysis would apply equally to private employers.  Therefore, all employers should take note.

In Mia Macy v. Eric Holder, Macy, who was a male at the time, applied for a position in a laboratory of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (the “Agency”).  He was interviewed by the Director of the laboratory, who told him that he would be able to have the position assuming that he passed the background check.  He then told the Agency that he was in the process of transitioning from a male to a female.  Shortly thereafter, the now female Macy was told that the position was not longer available due to budget cuts.  When Macy pushed back for more information, she was informed that, in fact, someone else had been hired by the Agency for the position.  She then filed an EEO complaint with the Agency, alleging sex discrimination based on gender identity and sex stereotyping.

The Agency has one system for handling claims of sex discrimination under Title VII.  It has a different system for claims of sexual orientation/gender identity discrimination which, under that system, are not entitled to the same rights and protections as Title VII claims.  Thus, the Agency told Macy that her sex discrimination claims and the sexual orientation/gender identity claims would be split, with the EEOC handling only the sex discrimination claims.  Macy appealed this decision to the EEOC.

Contrary to the Agency, the EEOC found that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”  The EEOC relied on the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the U.S. Supreme Court recognized a claim for Title VII sex discrimination based on sexual stereotyping, where the plaintiff did not conform with gender-based expectations about how women should walk, talk and dress.  Citing a number of federal circuit and district court decisions, the EEOC found that decisions based on a person’s transgender status are “related to the sex of the victim,” and thereby violate Title VII.

So, interestingly, although sexual orientation is still not protected by federal law, it turns out that gender identity is.

Menopause is approaching for me, and I am really looking forward to those momentary personal tropical vacations (i.e. hot flashes).  I hear from my more senior female friends that the symptoms of menopause – irrational emotional upheavals, poor sleep, dizziness, migraines, etc. – can be quite debilitating, as well as frustrating.  You might think that these physical symptoms and their ensuing limitations on activity might be considered a disability, in light of the expansive definition under the amended Americans with Disabilities Act (ADAAA).  As I (somewhat flippantly) tell my clients, really, everyone is disabled now.  But a federal district court in California says it’s not.

In Sipple v. Crossmark, a female employee began experiencing symptoms of menopause, including the aforementioned hot flashes, migraines and dizziness.  She began wearing clothing with short sleeves and short pants, which were in violation of her dress code as a product demonstrator.  After her supervisor counseled her several times on her clothing, she provided a doctor’s note requiring dress code accommodations.  There were discussions with the Human Resources manager about other possible accommodations, but eventually the HR manager determined that other employers did not accommodate menopause.  She then told the employee that the Company could not provide the requested dress code accommodations.  The employee sued, claiming violations of the Fair Employment and Housing Act (FEHA), California’s anti-discrimination law.

FEHA disability claims are assessed under ADAAA standards, since the state law is based on the federal law.  Looking to federal caselaw, the court found that menopause, in and of itself, is not a disability, but rather “a natural progression over time . . . It is an inevitable part of the human condition for women.”  The court did recognize that the effects of menopause, if they affect a body system and limit a major life activity, can constitute a disability – but that the employee didn’t establish those circumstances in this case.

Legally, I know that this was the right decision.  Still, I’m sure the judge was a man.

Do you wonder why a large inflatable rat stands nearby when a union is picketing?  In the building trades, “rat” is a term that unions sometimes use to refer to a non-union contractor.  A union typically sets up its inflatable rat (or, in some cases, a skunk) at its picket line at a site (e.g., an office building) where the non-union contractor is performing services.  The inflatable vermin is used to embarrass either the office building owner or tenants in the office building, and make them uncomfortable.  The hoped-for effect is to cause the office building owner or tenant to cease its business relationship with the non-union contractor in order to make the rat go away.  Whether the rat is protected “First Amendment Free Speech” or a violation of the National Labor Relations Act as an impermissible tool in a confrontational union campaign depends on the surrounding circumstances.

We all know that stereotyping can be unfair and sometimes just dumb.  But expecting people to be manly men and girly girls can actually get you into legal trouble.  Sex-stereotyping can be the basis of a claim under Title VII, which prohibits discrimination and harassment because of sex, among other things.  A recent example of this involved a supervisor’s same-sex harassment of a male employee because he was not sufficiently masculine, in the supervisor’s view.

In EEOC v. BOH Bros. Const. Co. (Sept. 27, 2013), an ironworker on a bridge maintenance crew was subjected to almost-daily verbal and physical harassment by his supervisor because he didn’t act like a man, according to the supervisor.  In fact, the supervisor admitted that some of his teasing was because the employee used Wet Ones instead of toilet paper, which the supervisor thought was “kind of gay” and “feminine.”  Often 2-3 times a day, the supervisor would call the employee names like “pu–y,” “princess,” and “fa–ot.”  Several times a week, the supervisor would walk up behind the employee and pretend to hump him.  The supervisor deliberately showed his penis to the employee while urinating, and made other sexually offensive comments to the employee as well.  (Sounds like he’s still in junior high, doesn’t it?)

After the employee complained, the company did a brief investigation and concluded that the supervisor’s behavior, although unprofessional, was not sexual harassment.  The EEOC stepped in and sued the company.  At trial, the jury found that the employee had, in fact, been subjected to illegal harassment.  On appeal, a 3-judge panel of the U.S. Court of Appeals for the Fifth Circuit overturned the jury verdict, on the grounds that there wasn’t sufficient evidence that the harassment was “because of . . . sex” in violation of Title VII.  The EEOC then asked for a review of the panel’s decision by all of the judges on the 5th Circuit (an “en banc” review).

The 5th Circuit found that “a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.”  The 5th Circuit then found that the supervisor’s conduct was certainly “because of” the employee’s sex.  The evidence showed that the supervisor thought the employee was not a “manly enough man” and that he “hurled sex-based epithets uniquely at [the employee] two-to-three times a day, almost every day, for months on end.”

In this case, the employee’s actual sexual orientation wasn’t at issue, and the case doesn’t recognize sexual orientation discrimination as a violation of Title VII.  To the extent that an individual, regardless of sexual orientation, however, doesn’t conform to a masculine or feminine sexual stereotype, he or she would still be entitled to the protection of Title VII.  Bottom line – don’t stereotype!

 

The Livin Spoonful case is perhaps the funniest ALJ decision I have read in a LONG time.   This is the latest in the protected concerted activity train under the National Labor Relations Act.

The story involves a “gluten-free” “artisan” cracker company from Portland, literally based out of owner Brousseau’s kitchen and garage.  The company contributes food to Occupy Portland, Brousseau hires people via coffee shops, the employees listen to Marxist and “left-wing” talk radio all day, the employees are voluntary members of the Wobblies Union even when they are unemployed, and the “disciplinary” system’s first step starts with the premise that “mistakes are unintentional.”

But like all workplace utopias, this social experiment goes awry.  For starters, Brousseau hires Mr. Kohut and pays him 50 cents more per hour than some other employees.  Then, one day, while listening to Marxist radio, there arises a controversy because Kohut and some others espouse the belief that all workers are exploited, which hurts Brousseau’s feelings since he doesn’t think he is exploiting anyone.   A bunch of other events eventually transpire between him and Kohut (including letters, meetings, group protests) ending up with a big blow-up at work one day.  Brousseau, admittedly losing his cool, responds with a raised voice that they are not equals.  He then explains that they are equal as human beings but not in the workplace because he owns the business and has different responsibilities and liabilities.  To this, one employee said she now felt “unsafe” at work and Kohut suggested that a mediation was necessary.

Brousseau decides not to mediate and just terminates Kohut, having enough of him and his antics.  This leads Kohut to file an unfair labor practice (ULP) charge and the current case.  The Acting General Counsel (AGC) of the NLRB argued that Brousseau exhibited animus towards his employees’ protected concerted activity, in violation of the National Labor Relations Act.

But luckily, the story has a happy ending (for the now evil business owner).   The Administrative Law Judge (ALJ) who decided the ULP charge found that even though there was protected concerted activity, there was no animus towards the activity, citing all of the various benefits the business owner provided for his employees that were unappreciated (including, for instance, starting a maternity leave program when Kohut and his wife had their first child).   The ALJ takes the General Counsel to task for animus examples that “stretch the bounds of reasonableness.”

One such example was Brousseau turning off talk radio when his 9-year old daughter—named Persephone (who names their child Persephone?  Persephone is the goddess of the underworld for crying out loud!)—came into the room.  The Acting General Counsel argued with a straight face that turning off the radio was a sign of animus towards protected concerted activity – really.   The ALJ finally let it rip –

I likewise do not find animus based on Brousseau turning off the radio in early March.  His 9-year-old daughter Persephone came into the kitchen when the program was “getting to like the good juicy part” about why the administration “thought they could kill people.” To imply 35 animus based on this action is miles outside the bounds of reasonableness. The Acting General Counsel asserts that the short-lived rule that the employees could not listen to talk radio in the kitchen is suspicious because Persephone historically came into the kitchen every now and then for short periods of time. There was no evidence, however, that she was on the verge of hearing an explanation of targeted killings. Moreover, any inference of animus based on the rule is negated by Brousseau’s willingness a few days later, at Phillips’ request, to listen to talk radio with political content while Persephone was at school.

It’s a sad state of affairs when a 9-year old becomes the center of a ULP charge.

I like the EEOC – I really do.  They do important work, and most of the time they seem to get it right.  But every once in a while they dig in their heels over something patently ridiculous, leaving employers and management attorneys like me tearing out our hair in frustration.  So there’s no small measure of satisfaction when the EEOC gets benchslapped by a court for engaging in an unreasonable lawsuit, as just happened in EEOC v. Peoplemark, Inc.

As I mentioned in a recent blogpost, EEOC’s Attempt to Prohibit Use of Background Checks Rejected, the EEOC is being rather aggressive in its pursuit of employers using criminal background checks in the hiring of employees.  Although the EEOC’s own Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions contemplates the reasonable use of criminal records, the EEOC has been pursuing criminal background check claims against employers that just don’t make sense.

In the Peoplemark case, the EEOC brought suit against a temporary staffing company because a company VP told the EEOC that the company had a policy of denying jobs to those with felony records.  It turned out that the VP was mistaken (and what a mistake that was!), but the EEOC pursued the case even after it was clear that no such policy existed and that the company did, in fact, refer felons for jobs.  After the case was finally dismissed, the trial court scolded the EEOC for bringing a lawsuit that lacked merit from the beginning and forcing the company to incur significant defense fees and costs.  Deeming the EEOC to be unreasonable in continuing to litigate even after it was clear that there was no basis for its claims, the court ordered the EEOC to pay the company $219,000 in attorneys’ fees and $526,000 in expert fees, plus costs.  This award was upheld on appeal to the U.S. Court of Appeals for the 6th Circuit.

Frequently employers are forced to spend excessive sums of money to defend against frivolous claims.  Rarely do courts award fees and costs to employers who successfully defend themselves against such claims, and realistically, individual plaintiffs could rarely afford to pay them in any case.  So it really warms my heart on those extraordinary occasions when justice is served!  Three cheers!

The EEOC has been facing some controversy with regard to its April 2012 guidance on the use of criminal background checks, in which it discussed the appropriate use of criminal background information for employment purposes, which we discussed in a prior blog entry, “EEOC’s Updated Guidance on Arrests and Convictions.”  It would help if the EEOC were consistent in its position.

As we previously discussed in “EEOC’s Own Use of Criminal Background Checks,” the EEOC sued an employer for using criminal background checks in EEOC v. Freeman.  The employer in that case did not use a criminal record as an automatic bar to employment.  Rather, it tailored the use of criminal checks to the particular job positions in question; certain job positions did not require a criminal check, while others did.  As to the latter, only certain types of convictions were considered disqualifying.  Nonetheless, and shockingly inconsistent with its own guidance, the EEOC claimed that the use of criminal checks at all had an illegal disparate impact on minorities.

Fortunately, the U.S. District Court for the District of Maryland, in a strongly worded opinion issued on August 9, 2013, rejected the EEOC’s position as overly broad, and found the employer’s tailored approach to be legitimate and appropriate.  In a further slap to the EEOC, the Court noted that the EEOC itself uses criminal background checks in hiring.

Labor Peace Agreements Leading to Successful Organizing: The U.S. Chamber of Commerce’s Workplace Freedom Initiative has released a new report, “Labor Peace Agreements: Local Government as a Union Advocate.”   The report is a comprehensive overview of local “labor peace” legislation that is becoming more commonplace nationwide.   The trend noted by the Chamber usually involves states or municipalities including a “labor peace” provision as part of awarding a contract, project, etc.   By “labor peace” the legislation almost always means card check organizing and neutrality agreements.   This is a novel way that labor unions have successfully organized workers, even in the midst of their overall continuing membership decline.

Split in Organized Labor?: Steve Malagna of the Manhattan Institute writes in the Wall Street Journal of a growing split in organized labor between public sector and private sector unions.   This split is personified in New Jersey, where Republican Governor Chris Christie enjoys unlikely support from private sector unions in his re-election campaign, because of his strong emphasis on creating jobs and cutting back government largess.  Public sector unions, however, have been flabbergasted at Christie’s cutbacks on government spending.   While public and private sector unions usually keep their differences hidden, Malagna wonders if the split in New Jersey is about to spill over to the national stage, especially if Christie is a viable presidential candidate in 2016.

The $400,000 Strikers?   The stagehands at Carnegie Hall–who end up making $400,000 a year based on OT pay and benefits (yes, that’s $400,000 – I didn’t add an extra zero) are on strike over whether an expansion of the hall dedicated to education will be manned by the Union workers – or not.   The strike already cancelled a major concert gala at the facility.   While it’s difficult to imagine that the handsomely paid stage hands will generate much sympathy—even in New York—the New York Times coverage was a little odd, noting at the beginning that the Hall took its stance “with scant notice” but then further on down we learn that negotiations were ongoing for “more than a year.”   It remains to be seen whether the Hall will hire replacement stagehands and let the “show go on”—or if it’s “lights out” for the foreseeable future.

Due to the federal government shutdown, the Equal Employment Opportunity Commission (EEOC), the National Labor Relations Board (NLRB) and the Department of Labor (DOL) have issued contingency plans.  These plans set forth what the agencies will and will not do during the shutdown.

The EEOC’s contingency plan states that the EEOC will continue to perform only those functions “involving the safety of human life or the protection of property.”  Specifically of interest to private sector employers, the EEOC will:

  • Docket new charges
  • Continue to litigate lawsuits where a continuance has not been granted by the court
  • If necessary upon reviewing a new charge, file a court action to obtain preliminary relief to protect life or property
  • Maintain the EEOC’s information systems
  • Maintain the security of the EEOC’s offices and property
  • Perform necessary administrative support to carry out the above functions

The EEOC has also listed the functions that it will not perform during the shutdown:

  • Staff will not be available to answer questions or respond to correspondence
  • Charges will not be investigated
  • Litigation will be put on hold, to the extent courts grant the EEOC’s requests for extensions of time
  • Mediations will be cancelled
  • Outreach and education events will be cancelled
  • Freedom of Information Act (FOIA) requests will not be processed

In its contingency plan, the NLRB lists those services and programs that will remain operational during the shutdown, which are intended to protect federal legal actions already taken or to protect life or property.  The NLRB will:

  • Continue to litigate necessary court actions
  • Maintain the Office of Inspector General hotline, to receive calls reporting violations of laws and regulations relating to NLRB programs
  • Maintain the emergency contact telephone number for the public

The NLRB has also identified programs and services that will be closed during the shutdown, as a result of which the following functions will not be performed:

  • Representation case petition docketing, investigations hearing and elections
  • Unfair labor practice charge docketing, investigations, hearing, complaints and settlements
  • Other federal court litigation
  • Administrative Law Judge and Board decisions
  • Resolution of workplace disputes, including collective bargaining, protected concerted activities, and representational issues
  • Resolution of employer/employee disputes with the union
  • Remedial actions including backpay, reinstatement, reimbursement of union dues and fees, bargaining orders
  • Information Officer services to receive calls from the public and provide information about the NLRB’s functions and procedures
  • Outreach and Public Affairs services, including the website

As for the DOL, its contingency plan includes each of its divisions, which have identified what functions they will continue during the shutdown. All other functions, including information services and the website, will be suspended during the shutdown.  Of particular relevance to private employers are the Occupational Safety and Health Administration (OSHA) and the Wage and Hour Division (WHD).

OSHA’s contingency plan provides that it will continue to address emergency situations.  These are defined as imminent danger situations, meaning that “a danger exists which could reasonably be expected to cause death or serious physical harm immediately,” and workplace catastrophes and deaths.

The DOL’s Wage and Hour Division, which enforces the Fair Labor Standards Act and the Family and Medical Leave Act, stated in its contingency plan that it will only investigate incidents involving the serious injury or death of a minor while employed, any transportation accident, or any housing safety violation involving the serious injury or death of a farm worker.