Tag Archives: Employment Law

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.

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.

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

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.

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