Paid Leave? Leave in Lieu of Overtime Pay? Changes May Be Coming.

 

By Kathleen Jennings (kjj@wimlaw.com)

Is a federal law requiring employee paid leave in the works? It appears that House Republicans are expected to introduce a bill shielding employers from state and local paid leave requirements if they offer workers a certain amount of paid time off for family and medical reasons. The amount of leave that a business would have to offer to be eligible for the safe harbor would vary based on number of employees. Business groups have been advocating for federal legislation addressing paid leave as an alternative to the various state and local leave laws that are being passed. Basically, for covered employers, the federal law would preempt state and local laws, giving those eligible employers and their HR personnel one federal law to comply with. Some states, including New York and Washington, are already working on passing their own paid leave laws. The Society for Human Resource Management is one of the organizations that has been lobbying in support of a federal law. It is too to tell whether this legislation, and if so, in what form. We will provide updates as necessary.

Another Republican Wage-Hour initiative is a bill that was introduced earlier this year by House Republicans to allow companies to offer employees compensatory time (time off) rather than time-and-a-half pay. The Working Families Flexibility Act of 2017, if passed, would allow nonexempt workers to earn compensatory time off at a rate of no less than 1.5 times every hour for which they would have otherwise earned overtime pay. The bill also would

  • cap the amount of comp time employees could accrue at 160 hours,
  • require employers to pay out annually any unused comp time,
  • give employers 30 days to pay out any unused comp time beyond 80 hours, and
  • require employers to pay out any unused comp time accrued upon termination for any reason.

The House Bill (H.R. 1180) passed on May 2 without any Democratic support. The bill is now in the Senate (S. 801), where it will need some Democratic support in order to pass. There is significant opposition to this bill, so it is by no means a done deal. We will also monitor this legislation and provide updates as necessary.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

No Small Potatoes: Six Figure Settlement of Claims That Citizens and Lawful Permanent Residents Treated Differently

By Kathleen Jennings (kjj@wimlaw.com)

A recent settlement between potato processors in Washington State and the Department of Justice shows the consequences of treating lawful permanent residents differently than American born citizens. In the case of the potato processors, those consequences amounted to a $225,750 settlement of claims that they discriminated against immigrant workers when asking for work authorization proof. (U.S. v. Wash. Potato Co., DOJ OCAHO, settlement announced 5/17/17).

What caused the potato processors, Pasco Processing LLC and Washington Potato Co., to becomes targets of the discrimination claims? They required immigrant workers, but not U.S. citizens, to provide specific documentation to prove they are authorized to work in the U.S. when they completed their I-9 Forms.

According to an administrative complaint filed by the DOJ last November, 99.5 percent
of Pasco’s lawful permanent resident employees hired between November 2013 and October 2016 were required to provide “List A” documents to prove their identity and work authorization. Those documents, which include green cards, were submitted through E-Verify, an electronic government system that confirms work eligibility. In comparison, however, only 2.15 percent of U.S. citizen employees presented List A documents, the DOJ said. The DOJ asserted that the companies’ practices violated the Immigration and Nationality Act, which prohibits citizenship or national origin discrimination.

Pro Tip: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) an employee may present to establish employment authorization and identity. Furthermore, the refusal to hire or continue an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.

Wimberly Lawson can audit your company’s I-9 Forms to ensure that they are completed lawfully. Please contact Jim Wimberly at (404) 365-0900 or jww@wimlaw.com to set up an audit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Another Facebook Fail: Posting Vacation Pics During FMLA Leave

By Kathleen Jennings (kjj@wimlaw.com)

When will employees learn that the things they post on social media almost always get back to their employer? An example of an employee who learned this lesson the hard way comes to us from the 11th Circuit Court of Appeals. In Jones v. Gulf Coast Health Care of Del., LLC, No. 16-11142 (11th Cir., 2017), Rodney Jones served as Activities Director for Accentia, a long-term-care nursing facility. He requested and received FMLA leave so that he could undergo rotator cuff surgery. Jones was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy. While on the 30 days of additional leave, Jones twice visited the Busch Gardens theme park in Tampa Bay, Florida and went on a trip to St. Martin. Jones spent his time at Busch Gardens walking around and taking pictures of the park’s Christmas decorations. He sent these pictures to his staff via text message, hoping to give them ideas for decorating Accentia’s facilities. Jones also visited his family in St. Martin for three days. He posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean. Let’s face it, this guy was having way too much fun on FMLA leave, and he seemed to be rubbing everyone’s face in it. This was not going to end well.

Jones eventually returned to work as planned, and he presented his supervisor, Daniels, with a fitness-for-duty certification confirming that Jones could immediately resume his job as Activities Director. Daniels responded by showing Jones the photos from Jones’s Facebook page, which depicted the trips that he had taken while on medical leave. Oops.

To make matters worse, when Jones asked Daniels how he had obtained the photos, Daniels responded that “you can thank your wonderful staff, they just ratted you out,” but also remarked that “maybe if you’re going to have a Facebook account, you shouldn’t have it on public.” Daniels then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended so that Daniels could investigate his conduct during medical leave. Although Jones was given an opportunity to respond to these charges in a letter, he failed to do so. Several days later, Jones’s employment was terminated.

Jones filed suit, alleging that, in suspending and later terminating him, Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. The District Court granted summary judgment in favor of the employer on both claims. The 11th Circuit affirmed the decision to grant summary judgment on the interference claim, but reversed the decision on the retaliation claim, finding that there were disputed issues of fact because the employer offered inconsistent reasons for Jones’ discharge.

The employer prevailed on the FMLA interference claim because Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record was devoid of proof challenging Accentia’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion. Thus, Jones lost the right to be reinstated after failing to comply with this policy.

On the retaliation claim, the 11th Circuit clarified the law of the Circuit by holding that temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs. In Jones’ case, he was terminated the day he returned from FMLA leave, so the temporal proximity between the end of FMLA leave and termination was as close as it could get. In addition, the Court found that Daniels’s alleged comment that “corporate was not going to like the fact that [Jones] was taking FMLA leave during the ‘survey window'” corroborated Jones’s claim that his FMLA leave and his termination were not “wholly unrelated.”

Accentia also offered inconsistent reasons for Jones’ discharge, which will almost always preclude summary judgment.

Pro tip: When terminating an employee, a decisionmaker should be able to identify the reasons for termination at the time of the decision, and communicate them to the employee. If the employee files a lawsuit, the employer needs to be consistent with its reasons for the termination, unless it discovers new, previously unknown evidence of misconduct.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Non-Union Facilities Can Keep Union Reps Out of OSHA Inspections

By Kathleen Jennings (kjj@wimlaw.com)

Non-union employers can breathe a sigh of relief this week — OSHA has changed its enforcement policy regarding the participation of union representatives in workplace inspections of non-union facilities. In a 2013 interpretation letter (known as the “Fairfax Memo”), OSHA addressed which people not associated with the employer or government can be selected by compliance officers to accompany them on inspections. OSHA took the position that it had a right to select union advocates to participate in workplace inspections, even in non-union facilities. Not surprisingly, employer groups were not happy with this interpretation, and the Fairfax Memo was challenged in Court by the by the National Federation of Independent Businesses. Last week, OSHA rescinded the Fairfax Memo and announced that the guidance would be removed from OSHA’s manual on how staff should conduct inspections.

This is one less headache for non-union employers dealing with OSHA inspections. If an employer is going to have anyone present at an OSHA inspection, it should be the company’s counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Can the Use of One Racial Epithet Be Enough to Create a Hostile Work Environment? Yes, It Can.

By Kathleen Jennings (kjj@wimlaw.com)


If employers did not already have enough incentives to train supervisors in the avoidance of workplace harassment claims, an additional incentive comes from a decision by the U.S. Court of Appeals for the Second Circuit. In Daniel v. T&M Prot. Res., LLC, 2d Cir., No. 15-560-cv, (unpublished 4/25/17), the Second Circuit held that a single incident or comment, if severe enough, can give rise to employer liability under Title VII of the 1964 Civil Rights Act. In that case, a building security supervisor referred to Otis Daniel as “you f****** n*****,” according to court records. That comment was severe enough, said the Second Circuit. This comment was one about 20 separate incidents of harassment alleged by Daniel during his 15 months with T&M.

One can imagine other epithets directed at people based on their gender, race, national origin, or other protected categories, that may be classified as “severe” enough to rise to the level of actionable harassment. Supervisors need to be trained regularly on the types of conduct—verbal and non-verbal—that could give rise to complaints of harassment. Even one ugly epithet has the potential to cost a company a lot of money, just in the costs and legal expenses of defending a lawsuit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Is an Employer Required to Terminate an Employee Who Has Been Accused of Sexual Harassment? Not Necessarily.

By Kathleen Jennings (kjj@wimlaw.com)

By now, most everyone is aware of the termination of employment of a television personality who has been accused of sexual harassment. According to news reports, his former employer has reached settlements with five women who had complained about sexual harassment or other inappropriate behavior by him. The agreements totaled about $13 million. The termination followed an investigation by an outside firm into additional allegations of harassment.

This same company also saw the dismissal of its CEO due to sexual harassment allegations.

So does this mean that a company should always terminate an employee who is accused of sexual harassment? It depends on the circumstances.

When an employer becomes aware of a complaint of harassment, it has a duty to investigate. If the investigation reveals that the complaint has merit, the company should take prompt, effective remedial action. The goal of any remedial action is to make sure that the harasser does not commit further harassment in the workplace. The most effective way of achieving this goal is to terminate the harasser. Whether the employer uses this ultimate punishment should depend on some of the following factors:

  • How serious was the harassment? As a general rule, incidents of unwanted touching of another, especially private parts, need to be dealt with most severely. If the harassment was verbal, there is a difference between one or two off-color jokes and profane, obscene or distasteful comments directed at another employee or his/her anatomy.
  • What is the harasser’s employment history? Is this a long-term employee who has never been in trouble? Or a fairly new employee?
  • Has this employee been accused of harassment before? If there is already one verified complaint of harassment against the employee, then any future verified complaints mean that he/she has not gotten the employer’s message that harassment in the workplace is unacceptable, and termination may be the most logical option.
  • What is the harasser’s response to the accusations? Is he/she defensive? or remorseful? If he/she refuses to admit that he/she did anything wrong, even when there is solid evidence to the contrary, there is a risk that the behavior may occur again.
  • Is there another punishment, such as demotion, suspension without pay, disqualification from bonuses or profit-sharing, or the like, that will get the harasser’s attention enough that the behavior will not happen again?

If an employer decides to give an employee one more chance, any punishment should be supplemented with harassment prevention training. That training may be extended to others in the same office, department, or facility if the employer determines that there is a systemic problem. In addition, if possible, the harasser and the recipient of the harassment should be physically separated.

Finally, regardless of what action the company takes against the harasser, everyone must be reminded that the company will not tolerate any retaliation against any employee who makes a good faith complaint of harassment.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Suspension Without Pay for Hitting Supervisor With A Vehicle Is Not Retaliation. No Kidding.

By Kathleen Jennings (kjj@wimlaw.com)

Some employees will litigate any employment decision they don’t like, even if there appears to be little or no basis for a claim. A recent example comes to us in a decision from the U.S. Court of Appeals for the 5th Circuit, Cabral v. Brennan, (5th Cir., No. 16-50661, 4/10/17). In this case, Mr. Cabral, a postal worker, was suspended for two days without pay after he hit one of his supervisors with a postal vehicle and was unable to produce a valid driver’s license or occupational license after the incident. Cabral, who is a Mexican-American over the age of 40, alleged that the suspension was actually in retaliation for his complaints about race, national origin and age discrimination.

That’s right–he hit a supervisor with a vehicle. And was suspended. Did Mr. Cabral really think he would not be disciplined for that?

The 5th Circuit ruled that the employer was entitled to summary judgment, reversing the district court below. The basis for the 5th Circuit’s decision was that the two-day suspension without pay was not a “materially adverse” action that would support a claim for retaliation under Title VII. A materially adverse action is one that would dissuade a reasonable employee from making or supporting discrimination charges. The 5th Circuit noted that whether a suspension is considered a “materially adverse” action will depend on the specific facts of each case. Mr. Cabral was unable to present any evidence other than his own stated conclusions that he experienced emotional or psychological harm because of the suspension, and therefore, could not, as a matter of law, show that the suspension was a “materially adverse” action.

The Takeaway: Some employees think that if they make a complaint about discrimination, they are suddenly made of Teflon and protected by the anti-retaliation provision of Title VII from any and all discipline. That is not the case. However, employers do need to exercise extra care in disciplining employees who have engaged in protected activity such as complaining about discrimination in the workplace. As we have noted in a previous blog post, retaliation is the most frequent claim in EEOC Charges. This court decision gives attorneys another tool for successfully fighting retaliation actions.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.