The Supreme Court’s Defense of Marriage Act (“DOMA”) ruling will impact the “spouse” definition in the Family and Medical Leave Act (“FMLA”) (among other extensive impacts in the employment law and employment benefits industry). Employers can expect the Department of Labor to issue, relatively soon, some guidance on the definition of spouse in light of the DOMA ruling.

It is anticipated that the definition of spouse will look to the state of celebration – that is, the state where the same-sex union was performed, or what state issued the license, regardless of the state of residence of the couple. But, until the guidance is issued, what should an employer do “in the meantime?” Continue Reading DOMA and the FMLA – What Should Employers Do “In the Meantime”?

A trucking company has a practice of not returning any trucker to a driver position if that trucker has admitted to being an alcoholic, even if the trucker completes a treatment program. The EEOC sued on behalf of a trucker and challenged this practice. In this instance, however, the trucker did not complete a treatment program. He explained that he did not complete a program since it would be futile – he could not get his job back anyway.

In a recent ruling, a District Judge in Arkansas ruled that the trucking company’s practice of automatic disqualification of the alcoholic trucker violated the Americans with Disabilities Act (“ADA”). The Court ruled that a jury will have to decide the merits of the specific driver’s claim, but the Court entered an injunction against the trucking company from further use of its practice. EEOC v. Old Dominion Freight Line, Inc. (W.D. Ark. June 24, 2013) found here. Continue Reading EEOC Continues Attack on Employer Practices that “Automatically” Disqualify

The U.S. Supreme Court has ruled that a class action waiver in an arbitration agreement is enforceable. Although not an employment case, the decision likely signals that an employee’s waiver of the right to bring a class action will be enforceable if included in an employment agreement that requires arbitration to settle any employment-related dispute. American Express Company v. Italian Colors Restaurant, No. 12-133 (June 20, 2013). A copy of the opinion is available here.

What does this decision mean for employers? Continue Reading Supreme Court Says a Class Action Waiver in Arbitration Agreement is Enforceable

An employer received a report of a manager harassing his subordinates. The employer appears to take all the right steps: 1) conducting an investigation; 2) involving several higher-level managers in the decision-making process; and 3) even hiring an outside law firm to assist it in deciding what discipline to impose.

BUT, months later, after the manager had been suspended and had his pay docked (a “fine”), the employer has fired the manager (yet he still qualified for a large bonus), the manager’s assistant has resigned, the manager’s supervisor has resigned, another high ranking official with the employer has resigned and the employer is in the midst of a public relations nightmare.

Continue Reading Seemingly “Right” Process Cannot Save “Wrong Result”

The Seventh Circuit recently held that a purchaser in an “asset deal” of a business in receivership was found to be a successor employer for the purposes of a $500,000 wage/hour settlement. The liability was imposed on the purchaser even though the contract formalizing the asset deal expressly excluded that liability. Teed v. Thomas & Betts Power Solutions, LLC. Found here.

Continue Reading Successor Liability in “Asset Deal” Extends to Wage/Hour Liability

The Department of Labor recently issued new FMLA regulations. The new regulations will take effect March 8, 2013. The regulations will have limited impact on most employers. However, the new regulations will require employers to obtain and post a new poster with the revised language contained in the regulations.

The other, more substantive impact is limited. The new regulations relate primarily to employees who are active military or retired. For a qualifying exigency leave, the definition of “active duty” is now “covered active duty” and will somewhat narrow coverage for eligible employees – the coverage will now extend only to those whose related service members are being deployed to a foreign country. On the other hand, military caregiver leave has been expanded. That leave – which provides for as much as 26 weeks of leave in 12 months – now includes eligible employees who are caring for covered veterans as well as covered service members. Covered veterans are those with a “serious injury or illness” who were discharged or released under conditions other than dishonorable within five years of an eligible employee’s initial request for leave (subject to certain exclusions extending the time for requesting leave). These and other new provisions are included on the revised FMLA Employee Rights and Responsibilities Poster (WH 1420). Employers should obtain new posters now for posting by March 8.

If you have questions about the new regulations and how they will affect your leave policies or would like assistance obtaining the revised poster, contact any of our Labor and Employment attorneys.

The EEOC recently announced two multi-million dollar settlements relating to the targeted employers leave of absence practices. In November, the EEOC announced a $4.5m settlement with Interstate Distributor Company, based on claims that the trucking company did not provide reasonable accommodation to scores of employees who were terminated upon exhausting available leave time. The EEOC claimed that the company’s practice of automatically terminating employees after exhausting a set amount of leave without any interactive discussions with the employee, along with an alleged “no restrictions” policy violated the Americans with Disabilities Act (ADA).

Similarly, on December 18 (the same day that the EEOC announced its strategic plan), the EEOC announced a $2m settlement with Dillard’s Inc. based on similar allegations. There, Dillard’s was accused not only of having a practice of terminating employees after a specific period of leave but also of having a practice of seeking specific medical information from an employee seeking sick leave. According to the EEOC, these practices violated the ADA.

Continue Reading EEOC Continues Aggressive Look at Employer Leave Policies

The Equal Employment Opportunity Commission (EEOC) has approved its strategic plan for fiscal years 2013 to 2016 to set the agency’s national enforcement priorities. The Plan identifies the following six national priorities: eliminating barriers in recruitment and hiring; protecting immigrant, migrant, and other vulnerable workers; addressing emerging and developing employment discrimination issues; enforcing equal pay laws; preserving access to the legal system; and preventing harassment through systemic enforcement and outreach.

So what does this mean for employers? A few observations:

  • Look for the focus on “emerging and developing” issues to include continued emphasis by the EEOC on employers’ leave of absence policies. See companion blog entry on these developments here; employers would be wise to re-evaluate their leave policies in light of these developments, especially in eliminating any “automatic termination” language upon expiration of available leave;
  • Look for the focus on “equal pay” – which was an added enforcement strategy from the draft plan – to develop into an EEOC enforcement response to the Supreme Court’s decision in decertifying class claims in the Wal-Mart pay and promotion case;
  • Look for the EEOC to continue its strategy of attempting to convert individual charges into larger scale investigations of possible systemic violations.

The Americans with Disabilities Act (ADA) prohibits a covered employer from requiring an employee to undergo a “medical examination,” unless the examination is shown to be job-related and consistent with business necessity. The Sixth Circuit Court of Appeals recently held that an employer’s demand that an employee seek psychological counseling as a condition of continued employment may constitute a violation of the ADA.

In Kroll v White Lake Ambulance Authority, Case No. 10-2348 (6th Cir. 2012), the plaintiff, Emily Kroll, was an Emergency Medical Technician for White Lake Ambulance Authority (WLAA). She had an affair with a married co-worker and began to exhibit stress and anger at work. Several co-workers expressed to management concern for her well-being. On one occasion, while transporting a patient in emergency status, she was screaming at someone on her telephone. WLAA questioned whether Kroll could perform her job safely and told her that she must attend counseling in order to continue working. There was a dispute whether WLAA required that the counseling be psychological in nature. Kroll refused to seek counseling and did not return to work at WLAA. Continue Reading Requiring Employee to Seek Counseling May Violate ADA

The EEOC recently issued guidance on how an employer’s stereotypical responses to victims of domestic violence, sexual assault or stalking could run afoul of the discrimination laws. The guidance gives some examples which, to the savvy employer, may appear obvious examples of inappropriate (and unlawful) stereotyping. However, the guidance is worth the read. Why? A few reasons:

  1. So often, the characteristics that cause us the most challenge are those that we are blind to in ourselves but can so easily see in others. We employment lawyers and HR professionals are no exception. Thus, being reminded of (and challenged to rid) inappropriate stereotypes in our workplaces is never a wasted exercise.
  2. Some of the examples provided in the EEOC guidance can assist the next round of training. An employer would be wise to add some of the examples used in the guidance. This ‘ever-seeking-to-improve’ approach to training serves the important dual purpose of not merely providing more thorough training for legal defense, but most importantly, more thorough training for creating the kind of workplace that is responsive to the ever-changing needs of all employees – in essence, helping to create the kind of workplace where we all would want to work.
  3. Some may claim that this guidance serves as another example of the EEOC’s reaching for greater enforcement and “stretching” Title VII and other discrimination laws. An unbiased read, however, more likely will disclose that the examples do reflect inappropriate stereotypes that employers would be wise to rid from their workplaces.

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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