Another Reminder That the Internet is a Public Place

I continue to be amazed (although I know I should not be) by the number of times we read or hear about some inappropriate photo posted on Facebook or MySpace, and the impact that the photo has on somebody’s employment.

I have previously written that the Internet is a public place, but today we got another reminder.  President-elect Obama’s chief speechwriter had a few embarassing pictures on his Facebook site for only two hours, which still was long enough for them to be viewed and distributed.

The pictures showed the speechwriter, Favreau, with a cardboard cutout of Hillary Clinton, Obama’s soon-to-be Secretary of State.  It is likely that the emergence of the photos will have at least some impact on this young man’s employment.

Kids, please remember – the Internet is a public place.

Parents Sue School Over Cheerleaders’ Nude Photo Suspension

Foxnews.com is reporting that the parents of two high school cheerleaders are suing the girls’ school district after the students were suspended for causing nude pictures of themselves to be sent around the school by text message.  The sending of the pictures appears to be at least somewhat inadvertent, and according to the students’ attorney the dispute is not so much that the girls were disciplined but rather the dispute is with the manner in which they were disciplined.

The case illustrates two important points.

First, text message photo cases are not going away any time soon.  Districts need to be careful when addressing situations involving inappropriate pictures, of all kinds, that are sent by text message on cell phones.  Although the Fox News article does not mention it, a common issue in cases like these is whether or not the school has any ability to discipline students for activity (like taking or distributing cell phone pictures) that takes place outside of school.  Be careful and consult counsel before taking action.

Second, due process is very important in investigating and punishing wrongdoing.  One of the students’ allegations, according to the article, is that the district violated the students’ due process by making the pictures available to more school personnel than necessary to investigate the incident.  Obviously, I do not know the detail of the process involved here, since we have this article for now, but the case makes clear that school districts must be careful to use the proper procedures to investigate and reprimand, or the student may prevail even if he or she ultimately did violate a rule or policy.  Again, seek proper counsel before and during such discipline.

Labor Department Publishes Final FMLA Regulations – Part 2

In Part 1 of my review of the new FMLA regulations adopted by the US Department of Labor, we took a look at what types of events would constitute “qualifying exigencies,” since the FMLA was amended to require that employers provide 12 weeks of unpaid leave for employees for such a purpose.

The recent amendments to the FMLA, however, include a second new reason for which an employee can qualify for leave.  An employee now is entitled to up to 26 weeks of unpaid leave – not just the normal 12 weeks for all other FMLA qualifying events – “to care for a covered service member with a serious injury or illness.”  This type of FMLA leave is available only for a spouse, parent, child or next of kin of the service member.

The new regulations, which become effective January 16, 2009, explain how this new type of FMLA-qualifying leave is to be applied.  The main language of the regulations provide the following:

Eligible employees are entitled to FMLA leave to care for a current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list.

Note first that the regulations clearly require that the care be for a current service member.  In fact, they go on to explicitly exclude care for a retired service member.

The regulations then go to define the term “serious injury or illness” as an injury or illness that is incurred by a covered service member in the line of duty that may render the service member medically unfit to perform the duties of his or her office, grade, rank or rating.

One interesting difference between this type of FMLA leave and all other FMLA-qualifying leave is that an eligible employee may take up to 26 weeks per 12 month period for this type of leave, as opposed to the typical 12 weeks for all other FMLA purposes.

The new regulations address how this works, when an employee may need to use both types of leave in the same 12 month period.  For example, if an employee takes 12 weeks of unpaid FMLA leave for the birth of a child (another FMLA-qualifying event), the regulations require that the employee still could take another 14 weeks during that same 12 month period to care for a spouse who has a serious injury or illness incurred in active duty military service.

Similarly, if an employee has taken 20 weeks of unpaid leave to care for a service member with a serious injury or illness, he or she only will be able to take another 6 weeks of FMLA leave, during that same 12 month period, for any other FMLA qualifying purpose.

In some cases, a leave that is to care for a service member with a serious injury or illness also will meet the criteria for a leave that is to care for a family member with a serious health condition, which was one of the original types of FMLA leave.  The new regulations make clear that when a leave could qualiofy for both, the employer must first consider the leave against the employee’s 26-week entitlement for the care for a service member’s serious injury or illness.

Finally, the last item of note with respect to this new type of FMLA-qualifying leave is that the regulations make clear that when a husband and wife are both employed by the same employer, they are entitled to a combined 26 weeks for this purpose.  This is consistent with prior regulations, which made clear that a husband and wife who work for the same employer are entitled to a combined 12 weeks for all other FMLA purposes.

In addition to new regulations that are designed to address the two new types of FMLA-qualifying leave, the new regulations also make some changes to the existing scheme.  That will be our topic for Part 3 of this series on the new FMLA regulations.  Stay tuned.

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

-  Read Part 3 of the review of the FMLA regulations -

Labor Department Publishes Final FMLA Regulations – Part 1

The United States Department of Labor has published final regulations interpreting several different provisions of the Family and Medical Leave Act (FMLA).  These new regulations go into effect on January 16, 2009.

Part of the purpose of the new regulations is to interpret the new amendments to the Act, which now provides leave for certain military-related purposes.  The recent amendments to the FMLA, which I previously wrote about, now permit an employee to take unpaid FMLA leave for “any qualifying exigency” arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces.

The new regulations define this term “qualifying exigency” as including a number of specified incidents, including (as paraphrased directly from the regulations):

1. Short-notice deployment. (To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty seven or less calendar days prior to the date of deployment.)

2.  Military events and related activities.  (To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member, etc.)

3.  Childcare and school activities.  (To arrange for alternative childcare, for example, when the active duty or call to active duty status of a covered military member necessitates a change in the existing childcare arrangement for a child a covered military member, or to provide childcare on an urgent, immediate need basis – but not on a routine, regular, or everyday basis – when the need to provide such care arises from the active duty or call to active duty status.)

4.  Financial and legal arrangements.  (To make or update financial or legal arrangements to address the covered military member’s absence while on active duty, such as preparing and
executing financial and healthcare powers of attorney, transferring bank account signature authority, or preparing or updating a will or living trust.)

5.  Counseling.  (To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or for the child of the covered military member, provided that the need for counseling arises from the active duty of a covered military member.)

6.  Rest and recuperation.  (To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.  This leave may be taken for only up to five days for each instance of rest and recuperation.)

7.  Post-deployment activities.  (To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period
of 90 days following the termination of the covered military member’s active
duty status, or to address issues that arise from the death of a covered military member
while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.)

8.  Additional activities that arise out of the covered military member’s active duty provided
that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

As you can imagine, the regulations provide more detail for the items described above.  If you have an employee who requests to take advantage of this new type of FMLA leave, be sure to consult with counsel to make sure that the new regulations are being followed properly.

I will write more later to outline some of the other changes that have been made to the regulations.

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

-  Read Part 3 of the review of the FMLA regulations -

What Impact Will An Obama Administration Have On Labor & Employment Law – Part 2

I previously wrote that President-elect Obama is certain to make a mark on the employment law landscape. An article at the New York Law Journal also has a nice summary of several more detailed employment law changes that Obama is likely to seek.

Notably, the author alleges that Obama would seek to expand the FMLA to provide authority for leaves of absence for other purposes, including parents’ attendance at childrens’ school activities. Also, according to the Author, Obama supports a federal mandate that all employers provide a minimum number of paid sick days.

With respect to labor laws, in addition to what I previously wrote about the proposed elimination of the secret ballot union election, Obama has proposed limiting the definition of “supervisor” under the National Labor Relations Act so that more persons would be considered part of a union.

The author also makes one other very good point. Ignoring all of the legislative efforts to be expected, President-elect Obama also is likely to appoint at least one Justice to the United States Supreme Court. A change in the Court could also have a significant impact on labor and employment law.

Stay tuned, folks….

Federal Court Rules That Parents Can’t Sue Under No Child Left Behind

Congress created the No Child Left Behind Act to regulate the activities of public school districts but not to give parents any specific power to enforce the obligations the law places on schools.  According to a Legal Intelligencer report at Law.com, that is the word from the United States Third Circuit Court of Appeals.

The Court yesterday upheld a decision by a lower court to throw out a proposed class action lawsuit brought by a group of parents against the Newark Public Schools in New Jersey.  The Court held that the Secretary of Education has the power to enforce the law but that the statute includes none of the language the Court would have expected to see if Congress wanted to give parents an individual right to enforce the law.

The decision can be found here.

On A Record Pace

Thank you, readers.  So far in November, The Public Sector Law Blog has seen more page views than in any other month but one in the now several year history of the blog.  At the pace we are on now, the month easily will end as having the most page views of any other.

Thank you, and stay tuned for more.

What Impact Will The Tough Economic Times Have On Labor & Employment Law

Last week, I looked at the impact that an Obama Presidency would have on labor and employment law.  Now, Reuters reports that the tough economic times also are likely to have an impact on this area of the law.

According to the report, with more and more employees losing jobs, there are bound to be more and more lawsuits for wrongful termination.  Additionally, as the article rightly points out, when people do not have a lot of options they tend to look to courts for a remedy.  This is unfortunate, because it can lead to an increase in the number of frivolous lawsuits by employees claiming that they were terminated for unlawfully discriminatory reasons.

What this means for employers is that you must be very careful when making employment decisions, even when the decisions are designed as cost savings measures.  You need to prepare for the possible suit before making or implementing your employment decisions – not after the fact when the employee files a discrimination charge.

Before taking any action, make sure to get good counsel, so that you can – as we say in our office – stay in the board room and out of the courtroom.

Supreme Court Hears Case Involving Religious Display On Public Property

The United States Supreme Court heard argument Wednesday on a case involving a Ten Commandments monument that had been placed in a municipal park.  In the case, a small religious group requested permission from the municipality to construct in the same park a similar monument to their religion.  Their argument was based on the fact that the Ten Commandments monument had been constructed at least in part by private donations and was located in a publicly owned park.

The claim, then, is both a free speech one as well as a religion case.  In other words, the plaintiffs had argued that the existing monument was, in effect, an establishment of religion.  Also, though, they argued that the municipality’s act of allowing some private persons give money to construct a monument in that park meant that they opened the forum to similar types of expression by anyone else.

The 10th Circuit Court of Appeals (based in Denver) based the decision on the free speech grounds alone, concluding that the municipality in fact did open that forum to others and, as a result, was required to let other groups pay for monuments in the same park.  While some desire the Supreme Court to order that the Appeals Court consider the case on an Establishment Clause basis as well, I suspect that the Court will remain in the free speech context to the extent possible.

A decision should be expected in the Spring, and will have an impact on all public entities.

What Impact Will An Obama Administration Have On Labor & Employment Law

With the historic victory by Barack Obama in last week’s Presidential Election, there is sure to be an impact on the labor and employment law landscape.

Obama has made labor and employment issues important parts of his campaign platform, and with his party controlling both Congress and the White House he should have every opportunity to implement at least some of his plan.  Following is a look at just a few of the major labor and employment issues we can expect to see addressed in the coming years.

Employment Discrimination

According to the Obama-Biden campaign website, an Obama Administration will work to expand employee rights under various anti-discrimination statutes.  According to the website, “Obama and Biden will work to overturn the Supreme Court’s recent ruling that curtails women’s and racial minorities’ ability to challenge pay discrimination.”  Although the site does not mention any case by name, it is likely that Obama is referring to the Court’s May, 2007, decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

In Ledbetter, the Court ruled 5 to 4 that an equal pay claim must be brought within 180 days (the applicable statute of limitations period) of the events that initially caused the discriminatory pay.  As a result, Ledbetter, who had worked for Goodyear since 1979, was unable to pursue her claim based on the inequality of raises given throughout her employment.  Ledbetter had argued unsuccessfully that each paycheck she received was evidence of a continuing violation of the Equal Pay Act.

According to Obama, then, his administration will work to overturn this decision and, in turn, greatly expand the ability of an employee to reach back to violations that occurred years and even decades ago.

Additionally, the Obama campaign site says, “[Obama and Biden] will also pass the Fair Pay Act to ensure that women receive equal pay for equal work and the Employment Non-Discrimination Act to prohibit discrimination based on sexual orientation or gender identity or expression.”

While current federal law already requires that women be paid equal pay for equal work, the proposed Employment Non-Discrimination Act would expand the scope of the current collection of federal anti-discrimination laws to add additional protections.  While some state anti-discrimination laws protect employees from discrimination on the basis of sexual orientation or gender expression, no federal law includes those protected classes.

Organized Labor

Although the campaign website does not seem to include any reference to it, Obama was a co-sponsor of, and has promised that as President he would sign, the ironically named Employee Free Choice Act.  I have previously written about this proposed law that would – despite the clever name – eliminate employees’ free choice and the right to a secret ballot election in some union organizing campaigns.

The law, which would make it easier  for unions to organize various workplaces, would be huge win for labor unions, whose membership has been declining for decades.  It’s no wonder the AFL-CIO spent so much money on their Anti-McCain effort.  Despite the fact that there is little information on the official Obama-Biden campaign site, the AFL-CIO also has put together a summary of Obama’s position with respect to the bill.  It appears that Obama either does not understand the current law or is intentionally misleading in an attempt to build support the bill, but that is probably another topic for another day.

In short, the passage of this new law would make it much easier for unions to organize, which would mean many new unionized workplaces.  Sources tell me that there may not be enough political support to allow the passage of this bill, but it appears to remain at least a goal of the new administration.

Summary

Clearly, there will be other changes in a new administration.  These few examples show pretty clearly, though, that President-elect Obama intends to expand employee rights both through new legislation and through the broader and more vigilant enforcement of current law.

EDIT: View Part 2 of this story