January 2012

Assume an employee asks for leave, to be taken in the future.  At the time of the request, the employee is not covered by the FMLA because the employee has not yet been employed for one year.  Later, the employee is terminated, and the termination occurs before the employee has been employed for a year.  Does the employee’s advance request for leave make the employee “protected” under the FMLA, even though the employee was never eligible for leave?

In a ruling on January 10, 2012, the 11th Circuit recently said yes.  The Court found that the FMLA “protects a pre-eligibility request for post-eligibility leave.”  The Court reversed the lower court’s dismissal of the case, explaining that the lower court’s ruling would allow an employer to terminate an employee to avoid having to provide rightful FMLA leave once the employee becomes eligible. Continue Reading Employee Not Yet Eligible for Leave Still Protected Under FMLA

Employers struggle with conduct that appears ambiguous but is interpreted by the “victim” as unlawful.  The dilemma arises most often in a sexual harassment setting.  For example, a co-worker comments that another’s clothes make her “look good” or that he “really likes” her perfume.  Employers, and courts, struggle with the intent behind this conduct.  For example, a recent case involved racial harassment allegations based in part on bananas and banana peels littering the truck of an African-American co-worker. Daily Report Online wrote about this case on its website last week.

Would such anonymous conduct support a claim for a racially hostile environment?  In December 2010, in granting summary judgment to an employer, an Alabama Federal District Court said, “No.” Continue Reading Employer Dilemma – How Should An Employer Respond to Ambiguous Workplace Conduct

A recent ruling reinforces that “how” an employer does what it does often is as important as what it does.  The case appeared relatively straightforward.  An employee missed a work shift and claimed intermittent FMLA leave.  One manager, who had been skeptical about some past intermittent leave use, saw the employee at a birthday party on the same day of the missed work shift.  The employer investigated.  There was evidence that the employee was at the party at the same time as some of the hours of her missed work shift.  The employee claimed she attended the party only after her shift would have ended, and that she was feeling better after resting for most of the day.

The employer terminated the employee, explaining it had an honestly-held belief that the employee had been at the party during her shift and was lying about it.  Rather than grant summary judgment to the employer, the Court ruled a jury trial was necessary.  Why?

Here are the reasons the Court did not defer to the employer’s claimed honestly-held belief under the “honest belief” rule: Continue Reading Employers Beware – “How” You Do Is Often As Material As “What” You Do

In a move that could significantly increase employer costs in the home care market, the Department of Labor has published proposed rules that will severely limit the current minimum wage and overtime exemptions for those who provide “companionship services.”

The proposed rules basically do two things:

  1. The rules narrow the definition of “companionship services. The Fair Labor Standards Act includes a specific exemption from minimum wage and overtime requirements for employees who “are employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” 29 U.S.C. § 213(a)(15).  Currently, the DOL regulations define “companionship services” to include “fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs.” The regulations also provide that “such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services.” Such services may also include the performance of general household work provided that such services do not exceed 20 percent of the total hours worked each week.  See 29 CFR § 552.6.

    The proposed regulations remove from the definition of companionship services the provision of “care”  for the elderly and limit the services to “fellowship” and “protection”.  “Fellowship” is defined as “social, physical, and mental activities” such as “conversation, reading, [and] games” and protection is described as being present with the person in their home or accompanying the elderly person outside the home to “monitor” their “safety and well-being”. “Intimate personal care services” may be provided as long as such services do not exceed 20 percent of the work performed.  “Companionship services” no longer includes any general household work unless such service happens to be incidental to the “fellowship” and “protection” being provided.

  2. The new rules prohibit third party employers from claiming the exemption. Not only is the scope of “companionship services” to be greatly limited but the exemption is now only available to the elderly person or their family.  Third party employers of employees who provide companionship services, even if such services meet the new limited definition, will not be able to take advantage of the exemption from the minimum wage and overtime requirements.

As a matter of federal law, employers can require employees to agree to arbitrate any employment dispute.  But, can that arbitration agreement force an employee to arbitrate only individual claims, not class (or collective) claims?  Recently, the National Labor Relations Board said NOClick here for the Board’s ruling.

This ruling appears at odds with a ruling by the United States Supreme Court in AT&T Mobility LLC v. Conception.  There, the Supreme Court considered a California state law that invalidated any arbitration agreement that included a mandatory waiver of class claims.  The Supreme Court noted that the right to pursue class claims is a procedural right, not statutory, and overturned the California law.  Some employers then adopted arbitration agreements that included waivers of an employee’s ability to pursue class or collective actions.  Continue Reading Labor Board Rules that Arbitration Agreements Forbidding Class Arbitration is Unlawful