Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
In the post on Sunday 4/10/16, we talked about a white officer passed over for promotion moving forward with his racial bias suit. The white Italian-American officer was passed over for an ethnically Hispanic officer; he alleged the former mayor, an African-American, specifically promoted the other officer due to race. The mayor argued that since the other officer self-identified as white, there could be no discrimination since “Hispanic” is not a race for federal discrimination purposes. A jury agreed with the plaintiff in May 2014 and awarded him $1.35M. The mayor appealed. The appellate court disagreed with the mayor, finding that Section 1981 claims include discrimination based on ancestry and ethnicity, including the lack thereof, and that same is also a cognizable claim under Title VII. Note: see the post regarding what the court did with the $1.35M jury award.
TAKEAWAY: It is much safer not to discriminate based on any non-job-related characteristic than to have to argue in court why the basis of discrimination is not illegal.
The post on Monday 4/11/16 put all jiggery-pokery aside to talk about Justice Scalia’s impact on employment law. He sided with employers in Young v UPS (arguing in his dissent for a narrower standard than was adopted by the majority). His narrower interpretation is in the post. He sided with the employee in EEOC v Abercrombie & Fitch (writing the majority opinion holding employers liable even if the applicant’s need for accommodation was but a motivating factor in the decision not to hire). More on Scalia’s legacy is in the post.
TAKEAWAY: It is always sad when a Supreme Court justice dies, but here Justice Scalia left big shoes to fill in the employment law area.
In the post on Tuesday 4/12/16 we talked about Employment Law 101: national origin, citizenship & immigration status discrimination. The starting point is, of course, Title VII. IRCA also comes into play. Both require employers not to discriminate on the basis of national origin, citizenship or immigration status relative to any significant aspect of employment. The post details the types of violations and what counts as national origin, citizenship or immigration status, as well as what to do if a managerial employee causes the violation or if national origin or citizenship is a job requirement, and whether retaliation can play a part. The post also gives some examples.
TAKEAWAY: Employers now are (or should be) used to ignoring national origin when making employment decisions. Citizenship and immigration status should be added to the “do not consider” pile too.
The post on Wednesday 4/13/16 was about record retention and disclosure rules under the ADA and FMLA. Be alert employers! The ADA focuses on whether discrimination occurred against the employee; therefore, records should be kept on the accommodation request and the reasons any attempts to accommodate were unsuccessful. The medical information MUST be kept in a separate file and treated as confidential. To whom that information may be disclosed is listed in the post. In contrast with the ADA, the FMLA requires that employers retain records for 3 years from the last date of entry for payroll information, dates and hours of leave taken, and other items listed in the post. Confidentiality of medical information is similar to that under the ADA.
TAKEAWAY: Know what you must keep and in what form (whether all together or in separate files) and who is permitted access to the files. Doing it incorrectly may subject you to liability and damages.
In the post on Thursday 4/14/16, we learned that prison officials illegally fired or punished guards because doctors didn’t let them work overtime due to medical conditions. Sounds convoluted but it’s really not. A federal lawsuit alleges that prison officials in Lackawanna County (about 2 hours north of Southcentral PA) took illegal action by firing 3 guards and punishing 3 others. The allegations include the officials calling them lazy or harassing them with derogatory names, fliers and posters for refusing to work overtime. Part of the County’s defense is that the EEOC already dismissed the charge on the basis that the union contract allows official to require guards to work overtime. Interestingly, the guards don’t want reinstatement. See the post for more details.
TAKEAWAY: The question is whether the ADA, FMLA and state law trump a union contract by requiring accommodation for, and preventing retaliation on account of, a medical condition.
The post on Friday 4/15/16 questioned how is the FMLA to be covered in joint employment situations. The post lays out generally the responsibilities under the FMLA along with which employer (primary or secondary) that responsibility falls to. For example, jointly-employed employees are to be counted for coverage and eligibility determinations by both the primary and secondary employers. The post covers other areas of responsibility including the employee-eligibility determination, notices, leave, and benefits.
TAKEAWAY: Joint-employer liability is not going away; even if you aren’t the primary employer, you might be the secondary employer and, as such, have liability under the FMLA. Know your obligations (and the employee’s’ rights).
Finally, in the post yesterday 4/16/16, we noted the subject FMLA policy was missing something kind of important. Make sure yours is not like this one. So what happened? The IL Dept. of Corrections didn’t specify the 12-month period it would use to calculate employees’ entitled to leave. That came up in the context of a suit by a former employee who’d taken time off and requested it count as FMLA leave. DOC said he exceeded his allowable time and terminated his employment. He sued for FMLA interference because he’d never been told how the leave was being calculated or from what date the calculation started (among others in the post). In ruling against DOC on its summary judgment motion, the court said that DOC hadn’t proven that it clearly articulated when the 12-moonth period for calculating FMLA leave began. Therefore the court calculated it in a way most beneficial to the employee (which left him with additional eligibility to cover the absences). The court then sent the matter to a jury trial.
TAKEAWAY: Most employers merely reiterate the legal requirements: leave within a 12-mnth period for eligible employees. Be more specific or the lack thereof might come back to bite, hard.
York, Pennsylvania 17403