Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
First up, the post on Sunday 3/16/14 was about illegal opposition conduct – what it is, what it looks like, and how expensive it can be. Once again providing legal fodder, Wal-Mart learned the hard way. Opposition conduct is when someone acts (or does not act) because s/he opposes something else that is against the law). For example, an employer wants an employee to write an incident report a certain way, but the employee refuses because the law requires that it be reported a different way; the refusal is a form of opposition conduct. In the situation mentioned in the past, Walmart took action against employees exhibiting opposition conduct; in the end, the EEOC sued and Walmart ended up settling and paying $87,500.
TAKEAWAY: An employee’s refusal to follow orders is not always insubordination; it might under certain circumstances be protected opposition conduct. Employers must know the difference.
On Monday 3/17/14, we talked about post-Windsor IRS guidance relative to benefits for same-sex spouses, cafeteria plan changes, FSAs and HSAs. Why do we care (and why should you care)? In the Windsor case the US Supreme Court found part of the federal Defense of Marriage Act (“DOMA”) unconstitutional; since then, the federal government has been recognizing same-sex marriages for federal tax and benefit purposes. Because this is effective no matter in what state the couple resides, it has far-reaching effects: employer-provided health coverage for same-sex spouses are not taxable under federal law, employees can pay for coverage using pre-tax dollars through a cafeteria plan, and can get reimbursement for same-sex spouse’s expenses under certain reimbursement plans. The IRS then issued guidance to help clarify matters for employers of same-sex couples.
TAKEAWAY: Even in PA, which does not recognize same-sex marriage, federal taxes and benefits DO recognize same-sex marriages and must be handles just like taxation of and benefits to opposite-sex married couples.
Next, on Tuesday 3/18/14 we went off-topic a bit to talk about the best underrated fast-food menu items. Why? Because let’s face it, we all end up eating out once in a while or bringing home food instead of cooking it ourselves. So we posted an article with the 12 best fast-food menu items that you might not know about. Included are sandwiches, sides, and drinks. Personally, I love the Jamocha shakes, but I’m going to have to try that peppermint hot chocolate …
TAKEAWAY: If you have to eat fast-food, try these items to get good taste with the fast.
Wednesday 3/19/14 we asked when 1250 is not 1250 and talked about the difference between hours worked and hours paid for FMLA purposes. Why does this come up? Because to be eligible for FMLA leave, an employee must have at least 1250 “hours of service” during the prior 12-month period. And that’s the rub; “hours of service” does not mean hours for which the employee received pay (which could include sick or holiday time), but hours actually worked. The post pointed to a recent federal court case involving Federal Express and its alleged wrongful denial of FMLA leave to an employee. There, both parties agreed that while his paid hours exceeded 1250, his hours actually worked did not, such that he was not eligible and FedEx’s denial was legal.
TAKEAWAY: Employer’s must carefully track hours actually worked, not just hours paid, so as not to be required to grant leave requests for which the employee is actually not eligible.
Thursday 3/20/14 featured a post about whether an employee was fired for a leave of absence request for which he was not eligible. The federal court hearing the case rejected the employee’s claim. The background is this: a teacher was going through a divorce in 2007 and began drinking – a lot. He started missing work. In the 2008-09 school year, he missed ore days than he showed up; he used all sick and personal leave days plus other days for which he wasn’t paid. He provided little to no excuses for the absences and was disciplined. On Day 1 of the 2009-2010 school year, he said he wasn’t returning and requested FMLA leave; 2 weeks later the employer sent him FLMA papers and advising that he needed to request the leave in writing He did not comply. In early October, after being notified of the employer’s intent to fire him, he quit. Then he sued for several things including FMLA violations (interference with and retaliation for him trying to take FMLA leave). Well, he wasn’t eligible for FMLA leave – he hadn’t actually worked enough hours in the prior 12-month period. Since he was ineligible, he couldn’t have been harmed by the employer’s handling of the FMLA request. Likewise, the Court found that he was fired for the absence without advance notice, not for the attempt to use FMLA leave, so the retaliation claim also failed.
TAKEAWAY: Employers should know the law, have procedures in place for how to proceed, and follow those procedures when the situation dictates.
The post on Friday 3/21/14 was all about age – the legal language to use in settlement agreements to properly waive age claims, that is. The Age Discrimination in Employment Act (ADEA) sets forth language that is required to be in a written document (and how it must be printed); if it is not done according to the law, then the (former) employee has NOT waived age discrimination claims (and can both keep the consideration and bring suit).
TAKEAWAY: As with all legal documents, make sure they meet all legal requirements so that you and your business get the protection you think you are getting. This is but one reason to consult an employment lawyer.
Finally, yesterday 3/22/14 talked about a breastfeeding mother who was found to have an FLSA retaliation claim (at least at the early stages of the suit). What happened? After refusing to use a bathroom to which she was directed, and continually asking for a suitable place to express milk; she was given a location that was unsanitary, not sufficiently private, or both. She ended up using a dirty locker room because it locked and the employer promised to clean it up (which never happened). Co-workers began harassing her while she was pumping milk – read the article for what they did – but the employer took no action against the co-workers. Then the employer retaliated by moving the employee to another shift and, even after she presented a medical note, kept her on the new shift and denied her overtime. The employee filed suit because the Patient Protection and Affordable Care Act (yes, fondly referred to as Obamacare) amended the FLSA by adding a provision known as the “Reasonable Break Time for Nursing Mothers.” That statutory amendment requires employers to provide non-exempt employees a reasonable break to pump milk for a nursing child for one year after birth and a place, not a bathroom, shielded from view and free from intrusion to express milk. NOTE: the federal court that denied the employer’s motion to dismiss found that the employee also might have stated a sec discrimination claim since the action was based on factors “that male employees need not – indeed, could not – suffer.”
TAKEAWAY: Know how applicable law has changed, what it requires of you as the employer and make sure your employees don’t act to the contrary.
Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.
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