Congress Considers Bill to Amend Burden of Proof in Age Discrimination Claims

In June, the United States Supreme Court issued an opinion in the case of Gross v. FBL Financial Services, Inc., in which the Court clarified the standard for showing age discrimination under the Age Discrimination in Employment Act (ADEA).  In short, the Court said that a plaintiff that claims age discrimination must show that but for the employee’s age, there was no other reason the employer would have taken the adverse action complained of.

This “but for” standard is more difficult for a plaintiff to show than the “substantial and motivating factor” standard other discrimination plaintiffs must show in claims brought under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of gender, race, religion, national origin, etc.  Under the “substantial and motivating factor” test, a plaintiff need only show that the protected class was a substantial and motivating factor – even if not the only factor – that led to the adverse action.

To address the different standards found in Title VII and in the ADEA, some Members of Congress have introduced HR 3721, which would be known as the “Protecting Older Workers Against Discrimination Act” (POWADA).  This bill, if passed, would amend the ADEA to provide that a plaintiff can recover in an age discrimination claim if he or she can show that age was a “motivating factor for the practice complained of, even if other factors also motivated that practice.”

President Obama made it clear that his legislative agenda included amending various employment laws to assist plaintiffs in making these types of claims, and the Administration already can take credit for one new law that overturns recent Supreme Court precedent in the area of discrimination, so it would make sense that this bill could see some support.  It is too early to tell right now, though, so I will continue to keep you posted.

Obama signs FMLA Amendments Relating to Military Caregiver Leave

Thanks again to the FMLA Blog for a quick summary of this week’s amendments to the FMLA. As I wrote last year, the FMLA was amended previously to provide certain types of leave for employees dealing with various family matters involving service in the armed forces.

The new provisions that were signed into law by President Obama this week further to expand the number and type of circumstances in which FMLA leave can be taken for military related reasons.

Employers should be sure that their FMLA policies are up to date to reflect these new military leave requirements.

Third Circuit: Freedom of Speech No Longer Exists in Kindergarten Classrooms

The United States Court of Appeals for the Third Circuit has ruled that a public school district acted permissibly when it prohibited a mother from reading a few verses from the Bible during an “All About Me” unit, in which parents came to the classroom to share information about each student and, in some cases, to read a portion of that student’s favorite book.

In the case of Busch v. Marple Newtown SD (June 1, 2009), the Court ruled, essentially, that a district has a great deal of control over the speech that is permitted in that type of forum.  As the Courts have said before,

Unlike parks, streets, and other traditional public fora, elementary school classrooms are not places for unlimited debate on issues of public importance.  Most of the time, school classrooms are reserved for teaching students in a structured environment.  Public schools may take on characteristics of public fora by “intentionally opening” facilities for “public discourse.” But in classrooms, during school hours, when curricular activities are supervised by teachers, the nonpublic nature of the school is preserved.  Speech occurring during these activities may be regulated under standards different from those that would apply in public fora. (citations omitted).

The Court also recognized, though, that age and context matter in determining what kind of control the district can retain.  In other words, the question of whether or not a forum has been opened to general debate or dialogue may be answered differently at the elementary level than at the secondary level, for example.

In this case, then, the Court ruled that the district could exert a great deal of control over speech in the kindergarten classroom, even though they did invite other parents to come into the classroom to speak to the class about each child’s interests.

It is important to note, though, that the Court in this case permitted the district to exercise rather significant discretion in determining what to allow and not allow.  For example, once Wesley had chosen the Bible as the favorite book that he wanted his mother to read for his “All About Me” presentation, Mrs. Busch selected a few verses from Psalm 118.  The Court noted the following:

[Mrs. Busch] selected verses 1 through 4 and verse 14 of Psalm 118 from the King James Bible:

1 Give thanks unto the Lord, for he is good; because his mercy endures forever.
2 Let Israel now say, his mercy endures forever.
3 Let the house of Aaron now say, that his mercy endures forever.
4 Let them now that fear the Lord say, that his mercy endures forever.
* * *
14 The Lord is my strength and my song, and is become my salvation.

Busch testified she chose these verses because (1) she and Wesley frequently read from the Book of Psalms; (2) she thought the children would like Psalms because they are similar to poetry; and (3) she desired a reading that did not make reference to Jesus, which she worried might upset some people given what she perceived in the past as hostility in the school district towards her Christian beliefs. She also testified that she intended to read the verses to the students without explanation and that, if asked questions about the reading, she would respond that “it was ancient psalms and ancient poetry and one of Wesley’s favorite things to hear.”

Additionally, the Court found as a matter of fact that

Other parents also participated in their children’s “All About Me” weeks by reading stories to the class, sharing snacks, and doing crafts. Among the stories read by parents were: The Grinch Who Stole Christmas, The Jolly Roger, and Green Eggs and Ham. Reilly also keeps a library of books from which she periodically reads to Wesley’s class. Among those books are several about holidays, including: Bear Stays Up for Christmas, Froggy’s Best Christmas, The Wild Christmas Reindeer, Ten Timid Ghosts on a Christmas Night, Christmas Trolls, The Best Easter Eggs Ever, Easter Bunny’s On His Way, The Night Before Easter, Hooray for Hanukkah, The Magic Dreidels, and The Hanukkah Mice.

Additionally, one parent, Linda Lipski, visited Reilly’s [the teacher's] class twice during the year to give presentations on Hanukkah and Passover that were planned in advance with Reilly. During Hanukkah, Lipski brought in a menorah and a dreidel and read “a Blue’s Clues Hanukkah story.” Later in the year, during the Passover holiday, Lipski “read The Matzoh Ball Fairy to the students and then offered them matzoh ball with chicken soup.” Reilly set up Lipski’s presentation by discussing Easter and Passover. She also discussed Christmas and Kwanzaa as part of the winter holiday unit in the social studies curriculum, and recalled a picture of a Christmas tree hanging in the classroom at the time of the Hanukkah presentation.

Presumably, the only distinction that the District could make between those permitted books and the Bible was that the Bible is considered to be scripture and, therefore, presumably could be considered proselytizing.  Despite opening the classroom forum for those books, though, the district was found to be acting within its discretion to limit the Bible reading.  This reflects the Court’s view that the mother’s free speech rights were so limited in that classroom that certain speech could be prohibited while other non-school-sponsored speech was still permitted.

The mother has indicated that she may be considering an appeal to the US Supreme Court, which is not obligated to hear the case.  Unless and until the Supreme Court reverses this decision, schools have a great deal of discretion, I believe, in regulating speech in this context.  As with all of these types of freedom of speech cases, each situation is very fact dependant, and you should consult legal counsel when making decisions like this.

Pennsylvania Legislature Considers Expansion of Human Relations Act

The PA State House currently is considering legislation to expand the coverage of Pennsylvania’s Human Relations Act.  The Act, originally adopted in 1955, prohibits certain types of discrimination that is based on a person’s race, color, religious creed, ancestry, age or national origin.

The new Bill, PA House Bill 300, would add sexual orientation and gender identity or expression to the protected classes.  Currently, neither PA state law nor federal anti-discrimination law prohibit discrimination on these bases.  Just under half of the states, however, include some protection for sexual orientation and/or gender identity.

The new law defines the term “sexual orientation” as “actual or perceived heterosexuality, homesexuality or bisexuality.”  The term “gender identity or expression” is then defined as “actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual’s assigned sex at birth.”

Just like the rest of protected classes already addressed by the law, this change would apply to discrimination in employment, housing and public accommodations.  It would not have any formal impact on other types of rights, such as the right to marry, etc.

The definitions are obviously rather broad, however, and could serve to expand significantly the scope of the Act.  Time will tell whether there will be support for the legislation, which was narrowly approved by the House State Government Committee and now is before the Appropriations Committee.  Stay tuned for more updates, as this bill moves its way through the General Assembly.

Obama Signs First Bill – An Employment Law Change Already

I previously wrote about the impact that an Obama Administration would have on employment law.  In that article, I mentioned that Obama had vowed to sign legislation that in effect would overturn a recent Supreme Court decision that precluded a female employee from bringing an equal pay claim, since she did not bring the claim within the requisite time limit from the initial decision by the employer to begin allegedly discriminating against her with respect to her pay.

President Obama kept that promise, when he signed his first piece of legislation this week, the Lilly Ledbetter Fair Pay Act of 2009 (named for the plaintiff in the case he sought to overturn).  The new law declares that discriminatory pay arrangements are to be considered continuing violations that occur each time the employee receives his or her pay.  This makes it much easier for plaintiffs to meet the statute of limitations.

In her case against her former employer, Ms. Ledbetter claimed that, some time ago, she was given an unfairly low salary.  She alleged that the violation occurred each time she got a paycheck that was lower than what she claimed it should have been, meaning that she could file a claim any time within 180 days of receiving one of the paychecks.  Instead, the Court found that the alleged discrimination occurred when she originally was given a lower salary, meaning that her claim had to be filed within 180 days of that original event or was lost forever.

The fact that this was President Obama’s first bill signing means little or nothing from a legal perspective, but it does perhaps signal the new administration’s focus on expanding worker rights.  Only time will tell whether or not the next four years will continue in that direction.

Moment of Silence in Schools Ruled Unconstitutional in Illinois

A federal judge ruled this week that an Illinois statute requiring a moment of silence in schools is not constitutional.  In essence, the judge appeared to rule that the moment of silence really is a prayer in disguise and that it, therefore, cannot be required by the state.

This was a trial court decision, so I am expecting that there will be an appeal to the Circuit Court.

This result likely is based on the actual language of the statute itself, so it is difficult to say how another Court would interpret another statute that provides for a moment of silence.  In the meantime, districts should continue to consult with counsel regarding these issues, as there can be many variables that influence a decision like this.

US Supreme Court Denies Request to Hear Home School Case

I have been involved in federal litigation on behalf of a Pennsylvania public school district that was sued by parents who claimed a religious exemption from the requirements of PA’s home school law.  Last fall, the United States Court of Appeals for the Third Circuit had upheld a lower court deicsion in that case, essentially concluding that the United States Constitution’s guarantees of religious freedom did not prevent the state from regulating home school programs in the limited manner that current law provides.

The parents in the case had asked the United States Supreme Court to review the decision, and this week the US Supreme Court denied that request (see the Court’s Order here – this case of Combs v. Homer Center S.D. is mentioned on page 11).  This essentially ends the dispute with respect to the federal constitutional claims.  In other words, the religious freedoms guaranteed by the First Amendment to the US Constitution do not exempt parents from compliance with the PA home school law and its requirement that the parents provide some evidence to the public school district that some appropriate education is in fact occurring.

There still are some state court claims that remain alive, however.  Specifically, the parents also claimed that a Pennsylvania statute known as the Religious Freedom Protection Act (RFPA) provides the protection that the parents sought in this case.  This question was not addressed by the Third Circuit, which actually sent that question back to PA state Courts since the RFPA is a relatively new statute that PA Courts have not had much opportunity to consider yet.

This week’s decision by the US Supreme Court marks a significant win for PA school districts.  Soon, though, the next chapter will begin, as the battle turns to state court and the RFPA claims.

PA Department of Community and Economic Development Ready to Kick Off Process of Consolidating Earned Income Tax Collection

Pennsylvania’s Earned Income Tax (EIT) system is grossly inefficient.  That was the conclusion of a prior study by the Pennsylvania Department of Community and Economic Development (DCED).

If you are a municipality that imposes an EIT, or someone who is responsible for paying or even withholding the EIT, you already knew that.  To put it in perspective, though, consider that Pennsylvania has more local taxing jurisdictions (more than 2,900) levying a local income tax than all other states combined.  Those taxes are collected by 560 different entities.  That’s a lot of opportunity for inefficiency – and lost revenue.  DCED estimates that some $237 million is lost annually.

In response, the Legislature adopted a plan to consolidate the collection of these taxes, by reducing the number of collectors to 69.  The tax collection districts will roughly follow county borders but will not split up those school districts that lie on the border between more than one county.

According to the law, known as Act 32 of 2008, the first step in this process is for DCED to finalize a map of the 69 new taxing districts.  The map was to be completed by January 16, 2009, and will soon be published in the PA Bulletin and on the DCED website.

This starts what will be a long process that ultimately will result in the naming of new collectors for each new Tax Collection District.  The new collectors will not begin serving until the year 2012.  Stay tuned, though, for more about how this change will occur.

Did Your Employees Call In Gay Today?

Today was the “Day Without a Gay” protest organized by gay rights activists, in an attempt to show how many gay workers there are in the American workforce.

As part of the protest, gay workers were encouraged to stay home and to refrain from spending money, also to show the collective impact gays can have in the economy.

Obviously, being gay is not generally a valid excuse for an absence, though employees could be free to utilize vacation or other leave time, assuming they comply with other applicable employer policies. Additionally, an employer is permitted to enforce attendance policies with respect to employees who do not comply with such policies in attempting to “call in gay.”

I do presume that the organizers of this event believe that “calling in gay” would be a valid excuse for missing scheduled work, like calling in sick would be. However, employers certainly are free to recognize the absence if they so desire. On the other hand, if an employer does not wish to support the cause, he or she may be nervous about enforcing attendance policies with employees who clearly are in violation, for fear of a discrimination claim.

Sexual orientation is not a protected class under any federal anti-discrimination statute, though. Some states do protect sexual orientation (PA does not), and among the various employment law changes suggested by President-elect Obama is the amendment of the Civil Rights Act to include this type of protection.

I do not anticipate a significant amount of fireworks to be caused by employers attempting to figure out how to handle employees who do literally “call in gay,” but it will be interesting to see what impact, if any, the protest has on American workplaces.

Labor Department Publishes Final FMLA Regulations – Part 3

In Part 1 of this series on the new FMLA regulations, we considered the exigencies related to military service that now are FMLA-qualifying events.  In Part 2 of the series, we looked at the regulations relating to the new 26-week leave entitlement for the care of a servicemember in the employee’s family.  The new regulations dealing with those two topics are brand new and are designed to address the new types of leave created by recent Congressional amendments to the FMLA.

In this third and final installment in this series, we will look at some changes made to the “old” FMLA provisions, to update or clarify existing issues.

Eligible Employees

In order to be eligible for FMLA leave, an employee must have worked for their covered employer for at least 12 total months.  The old regulations were silent, though, about whether the 12 months must be consecutive, and, if not, how far back an employer was required to look to calculate the 12 total months.  The new regulations make clear that the time must not be consecutive but that an employee only look back 7 years.

In other words, if an employee worked for a period of 6 months five years ago, and then returns to employment now, that employee need work only 6 more months in order to meet this eligibility requirement for FMLA leave.  The exceptions to this requirement that an employer consider time worked during the last seven years only is when the leave of more than seven years was due to military service or is addressed by some written contract or collective bargaining agreement that explicitly provides for reemployment after some specific type of leave.

Employer notice requirements

The new regulations consolidate all of the notice provisions into one section.  In addition, the regulations make clear that

“When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.”

The notable difference in the new regulations is that when an employer concludes that an employee is not entitled to FMLA leave, the notice must state explicitly that the employee is not eligible and must include at least one reason why the employee is not eligible.  The regulations also require that the notice include detailed information about various rights and responsibilities of the employee pursuant to the FMLA.

Also, consistent with recent US Supreme Court precedent, the employer may retroactively designate a leave as FMLA leave.  To do so, though, the regulations require that the retroactive designation not act to cause harm or injury to the employee.

Employee Notice

Generally, an employee must provide 30 days notice of the need for FMLA leave, when the employee knows that he or she will need such leave.  If 30 days notice is not practicable, the notice must be given as soon as practicable.  The regulations specify, then, that

“As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.  When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.”

Note that the notice must be given the same day or the next business day when the employee knows that he or she needs the leave.  The new regulations also specify that an employee can be required to comply with an employer’s regular policies relating to requests for leave.  For example, the employee may be required, consistent with the FMLA, to direct the leave request to a particular individual and to include in the leave request certain information normally required of employees who request time off.

Interestingly, the new regulations now provide that when an employee fails to provide adequate notice, the employer may delay the leave by the same amount of time the notice was delayed.  For example, if an employee could foresee the need for leave more than 30 days ahead of the time for leave, but did not give notice more than 30 days prior to the need for leave, the employer may delay the FMLA leave until 30 days after the notice was given.  Additionally, in a case in which the employee did not have an ability to provide notice 30 days in advance, the regulations provide this example:

For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week (thus, if the employer elects to delay FMLA coverage and the employee nonetheless takes leave one week after providing the notice (i.e., a week before the two week notice period has been met) the leave will not be FMLA protected).

There are a number of other changes to the regulations, but these are some significant ones that are sure to affect many leave requests.  As always, when making important personnel decisions, such as considering leave requests, be sure to get competent legal counsel in this rapidly changing and highly regulated employment environment.

-  Read Part 1 of the review of the FMLA regulations -

-  Read Part 2 of the review of the FMLA regulations -