Yesterday, the EEOC announced that “a Pittsburgh hospital has agreed to pay $100,000 and furnish other equitable relief to settle a disability discrimination lawsuit brought by” the EEOC which “had charged the hospital with firing an employee because she had cancer.” The lawsuit suit was filed at Civil Action No. 08-1358, filed in U.S. District Court for the Western District of Pennsylvania. According to the EEOC’s lawsuit, the plaintiff “needed a reasonable accommodation for her disability after she had surgery for cancer and underwent chemotherapy. [She] was a longstanding employee of LifeCare Hospitals of Pittsburgh or its predecessor and had a good performance record.”
According to the EEOC’s allegations, the defendant employer “initially provided a reasonable accommodation to” the plaintiff. However, “in about August 2007 the regional director of finance suddenly stopped accommodating [her] disability and demanded that she return to work full-time with no restrictions.” After she “returned to work full-time, the supervisor discriminated against her because of her disability, including substantially increasing her workload, removing her full-time staff assistant, and subjecting her to unwarranted work scrutiny.” Ultimately, “the hospital fired [the plaintiff] because of her disability.”
The EEOC announced that “the consent decree resolving the lawsuit prohibits the hospital from engaging in disability discrimination and retaliation. As part of the settlement, the hospital will also train all employees regarding the ADA’s prohibitions against disability discrimination. LifeCare did not admit liability in the consent decree, which is pending judicial approval. . . . During Fiscal Year 2008, disability discrimination charges rose to 19,453 -- an increase of 10 percent from the prior fiscal year and the highest number of disability bias charges filed with the EEOC in 14 years.”
Insomniacs can read the full press release at http://www.eeoc.gov/press/5-12-09.html.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Wednesday, May 13, 2009
Thursday, May 7, 2009
Sixth Circuit: Not Religious Discrimination to Require Religious Objector to Union Dues to Pay Full Dues to Charity Instead of Merely Agency Fee.
Today, a divided panel of the Sixth Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a former union member against the UAW. Reed v. UAW, No. 07-2505 (6th Cir. 5/7/09). According to the Court’s opinion, the plaintiff “claims that UAW, in violation of Title VII of the Civil Rights Act of 1964, failed to provide a reasonable accommodation for his religious objection to financially supporting the union.” The Court affirmed dismissal of this claims on the grounds that the plaintiff could not show an actionable employment action merely from the fact that religious objectors were required to make a charitable donation in any amount of the full union membership dues instead of the lesser amount of the agency fee charged to non-union members (which was 22% less than regular union member dues).
According to the Court’s opinion, the UAW constitution, “grants both members and non-member agency fee payers ‘the right to object to the expenditure of a portion of his/her dues money for activities or causes primarily political in nature’ and to receive a rebate for that portion. UAW and AM General also are parties to a letter agreement that allows any employee with a bona fide religious objection to joining or supporting a labor union to satisfy his union security obligation by making a payment equal to full membership dues to one of three charities mutually designated by UAW and AM General.” After the plaintiff resigned his union members based on religious objections (which was supported by a letter from his pastor), the union began deducting the agency fee from his pay (which was less than the amount of full union dues he had been paying). When the plaintiff objected to paying even the agency fee, the union responded that it would refund the agency fees deducted from this paycheck if he paid an amount equal to the amount of full union dues to an approved charity. The plaintiff did so and then filed a Charge and lawsuit objecting to being required to pay to the charity an amount equal to full union dues instead of just the lesser amount of the agency fee charged to non-members. The plaintiff claimed that being required to pay the charity an amount equal to the regular union dues instead of the lesser agency fee amount was not a reasonable accommodation of his religion.
The majority agreed with affirming the dismissal of the claim, but for different reasons. In the lead opinion, the judge found that there was not a material adverse employment action in that the plaintiff was not disciplined or discharged. The judge did not believe that the plaintiff could prove a prima facie case by complaining about a minor difference in pay deductions (i.e., the 22% difference between the agency fee charge non-members and the amount of union dues charged to full members and to religious objectors). The concurring opinion, on the other hand, found that the union’s action was a sufficient accommodation of the plaintiff’s religious beliefs.
Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0166p-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
According to the Court’s opinion, the UAW constitution, “grants both members and non-member agency fee payers ‘the right to object to the expenditure of a portion of his/her dues money for activities or causes primarily political in nature’ and to receive a rebate for that portion. UAW and AM General also are parties to a letter agreement that allows any employee with a bona fide religious objection to joining or supporting a labor union to satisfy his union security obligation by making a payment equal to full membership dues to one of three charities mutually designated by UAW and AM General.” After the plaintiff resigned his union members based on religious objections (which was supported by a letter from his pastor), the union began deducting the agency fee from his pay (which was less than the amount of full union dues he had been paying). When the plaintiff objected to paying even the agency fee, the union responded that it would refund the agency fees deducted from this paycheck if he paid an amount equal to the amount of full union dues to an approved charity. The plaintiff did so and then filed a Charge and lawsuit objecting to being required to pay to the charity an amount equal to full union dues instead of just the lesser amount of the agency fee charged to non-members. The plaintiff claimed that being required to pay the charity an amount equal to the regular union dues instead of the lesser agency fee amount was not a reasonable accommodation of his religion.
The majority agreed with affirming the dismissal of the claim, but for different reasons. In the lead opinion, the judge found that there was not a material adverse employment action in that the plaintiff was not disciplined or discharged. The judge did not believe that the plaintiff could prove a prima facie case by complaining about a minor difference in pay deductions (i.e., the 22% difference between the agency fee charge non-members and the amount of union dues charged to full members and to religious objectors). The concurring opinion, on the other hand, found that the union’s action was a sufficient accommodation of the plaintiff’s religious beliefs.
Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0166p-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Wednesday, May 6, 2009
DOL Issues FMLA Opinion Letter Formally Killing 1995 Two-Day Rule for Employees to Give Notice of Need for FMLA Leave.
Yesterday, in Letter Opinion FMLA2009-1-A (1/6/09), the Department of Labor published on its website an Administrator Letter Opinion which formally withdrew Letter Opinion FMLA-101 from January 1999 which barred employer attendance policies that required employees taking intermittent FMLA leave to report within one hour after the start of their shift. The requesting employer complained that the 1999 Letter Opinion prevented employers from “applying internal call-in policies, disciplining employees under the no call/no show policies or disciplining employees who call in late, as long as the employees provide notice within two business days that the leave FMLA-qualifying, regardless of whether they could have practicably provided notice sooner.”
The FMLA itself requires employees to provide “such notice as is practicable” when the need for leave is not foreseeable 30 days in advance. However, the 1995 regulations essentially interpreted “as soon as practicable” to mean within two business days. This interpretation was formalized in the 1999 Letter Opinion. The DOL noted that the FMLA regulations were substantially revised in November 2008 and became final on January 16, 2009 because the “one to two business days time frame set forth in the 1995 regulations had been misinterpreted as permitting employees to business days from learning of their need for leave to provide notice to their employers regardless of whether it would have been practicable to provide notice more quickly.” In the Notice of Proposed Rulemaking, the DOL explained the proposed rule change because it “expected that it will be practicable for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leaving during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours.)” Thus, “absent unusual circumstances, employees may be required to follow established call-in procedures (except one that imposes amore stringent timing requirement than the regulations provide) and failure to properly notify employers of absences may cause a delay or denial of FMLA protection.”
In particular, “[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. . . . In both situations, employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”
Therefore, “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced. . . . Thus, . . . [if] an employer policy require[es] employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence. “
Insomniacs can read the full opinion letter at http://www.dol.gov/esa/whd/opinion/FMLA/2009/2009_01_06_1A_FMLA.htm.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
The FMLA itself requires employees to provide “such notice as is practicable” when the need for leave is not foreseeable 30 days in advance. However, the 1995 regulations essentially interpreted “as soon as practicable” to mean within two business days. This interpretation was formalized in the 1999 Letter Opinion. The DOL noted that the FMLA regulations were substantially revised in November 2008 and became final on January 16, 2009 because the “one to two business days time frame set forth in the 1995 regulations had been misinterpreted as permitting employees to business days from learning of their need for leave to provide notice to their employers regardless of whether it would have been practicable to provide notice more quickly.” In the Notice of Proposed Rulemaking, the DOL explained the proposed rule change because it “expected that it will be practicable for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leaving during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours.)” Thus, “absent unusual circumstances, employees may be required to follow established call-in procedures (except one that imposes amore stringent timing requirement than the regulations provide) and failure to properly notify employers of absences may cause a delay or denial of FMLA protection.”
In particular, “[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. . . . In both situations, employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”
The Department recognizes that call-in procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice . . . . In that situation, the employer may not enforce the more stringent timing requirement of its internal policy. Additionally, where unusual circumstances prevent an employee seeking FMLA-protected leave from complying with the procedures, the employee will be entitled to FMLA-protected leave so long as the employee complies with the policy as soon as he or she can practicably do so.
Therefore, “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced. . . . Thus, . . . [if] an employer policy require[es] employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence. “
Insomniacs can read the full opinion letter at http://www.dol.gov/esa/whd/opinion/FMLA/2009/2009_01_06_1A_FMLA.htm.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Monday, April 27, 2009
USCIS Again Delays Mandatory E-Verify Implementation For Federal Contractors Until June 30, 2009
As summarized here on December 9, 2008, January 12, 2009 and February 3, 2009, the federal government published its final regulation in November which will require many federal contractors and subcontractors to begin using the e-verify program to confirm the employment eligibility of many existing and newly-hired employees as federal service and construction contracts and solicitations are issued or amended. However, although the implementation date was initially scheduled to be January 15, 2009 and was pushed back to February 20, 2009 and then to May 20, last week it was once against postponed – this time until June 30, 2009. In other words, federal agencies have been directed to postpone the insertion of a new clause into procurement contracts and solicitations requiring contractors and subcontractors to enroll and utilize the e-verify program. This regulation implements Executive Order 12989 which was amended in June 2008.
The USCIC website now provides, among other things, that “This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. Federal contracts awarded and solicitations issued after May 21, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.”
Additional details about the e-verify requirements and exemptions are included in the December 9 posting [Many Federal Contractors and Subcontractors Required to Use E-verify Program After January 15, 2009. ]
Contractors remain free to utilize the e-verify system before the June 30 implementation date.
Insomniacs can read the UCSIS announcement at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=534bbd181e09d110VgnVCM1000004718190aRCRD&vgnextchannel=534bbd181e09d110VgnVCM1000004718190aRCRD
The USCIC website now provides, among other things, that “This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. Federal contracts awarded and solicitations issued after May 21, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.”
Additional details about the e-verify requirements and exemptions are included in the December 9 posting [Many Federal Contractors and Subcontractors Required to Use E-verify Program After January 15, 2009. ]
Contractors remain free to utilize the e-verify system before the June 30 implementation date.
Insomniacs can read the UCSIS announcement at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=534bbd181e09d110VgnVCM1000004718190aRCRD&vgnextchannel=534bbd181e09d110VgnVCM1000004718190aRCRD
Tuesday, April 21, 2009
Supreme Court: Outside Attorney's Confidential Investigation Report is Exempt from Ohio's Public Records Law
Today, a per curiam Ohio Supreme Court dismissed a mandamus action brought by the Toledo Blade seeking the investigation report written by a private attorney on behalf of a governmental body on the grounds that the report was exempt from Ohio’s public records laws because of the attorney-client privilege. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., Slip Opinion No. 2009-Ohio-1767. The report had been prepared after the Toledo mayor alleged that the port authority’s president was having an extramarital affair with the port authority’s chief outside lobbyist in violation of authority rules, etc. The port authority retained its outside law firm to conduct an investigation, which included reviewing documents and interviewing employees and other witnesses. The attorney prepared a report, which was distributed to each member of the authority’s board. “The board members were informed that the report was confidential and could not be shown or disclosed to any third party. Following a subsequent special session, copies of the report were returned to the law firm.” The authority then fired the president.
In response to the newspaper’s public records request, the authority provided copies of all documents reviewed by the attorney in the course of her investigation, but did not produce a copy of the report itself, claiming attorney-client privilege. According to the Court, “R.C. 149.43(A)(1)(v) excepts ‘[r]ecords the release of which is prohibited by state or federal law” from the definition of “public record.’ ‘The attorney-client privilege, which covers records of communications between attorneys and their government clients pertaining to the attorneys’ legal advice, is a state law prohibiting release of these records.’”
The Court rejected the newspaper’s argument “that the factual portions of the investigative report are not covered by the attorney-client privilege, because they do not constitute legal advice.” The common law attorney-client privilege “protects against any dissemination of information obtained in the confidential relationship. . . . In fact, most courts that have expressly addressed the issue of whether an attorney’s factual investigations are covered by the attorney-client privilege have determined that such investigations may be privileged. . . . For example, in Upjohn v. United States , 449 U.S. 383, 390-39, the United States Supreme Court recognized that the “first step in the resolution of any legal problem is ascertaining the factual background and sifting through facts with an eye to the legally relevant.” “[T]he Upjohn pronouncement hardly stands alone. Courts have consistently recognized that investigation may be an important part of an attorney’s legal services to a client.” The Court concluded that “the relevant question is not whether [an attorney] was retained to conduct an investigation, but rather, whether this investigation was ‘related to the rendition of legal services. . . . The attorney-client privilege “does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.”
In short, “[t]he [attorney-client] privilege applies when legal advice of any kind is sought from the legal advisor in that capacity and the client’s confidential communication relates to that purpose.”
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1767.pdf
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
In response to the newspaper’s public records request, the authority provided copies of all documents reviewed by the attorney in the course of her investigation, but did not produce a copy of the report itself, claiming attorney-client privilege. According to the Court, “R.C. 149.43(A)(1)(v) excepts ‘[r]ecords the release of which is prohibited by state or federal law” from the definition of “public record.’ ‘The attorney-client privilege, which covers records of communications between attorneys and their government clients pertaining to the attorneys’ legal advice, is a state law prohibiting release of these records.’”
The Court rejected the newspaper’s argument “that the factual portions of the investigative report are not covered by the attorney-client privilege, because they do not constitute legal advice.” The common law attorney-client privilege “protects against any dissemination of information obtained in the confidential relationship. . . . In fact, most courts that have expressly addressed the issue of whether an attorney’s factual investigations are covered by the attorney-client privilege have determined that such investigations may be privileged. . . . For example, in Upjohn v. United States , 449 U.S. 383, 390-39, the United States Supreme Court recognized that the “first step in the resolution of any legal problem is ascertaining the factual background and sifting through facts with an eye to the legally relevant.” “[T]he Upjohn pronouncement hardly stands alone. Courts have consistently recognized that investigation may be an important part of an attorney’s legal services to a client.” The Court concluded that “the relevant question is not whether [an attorney] was retained to conduct an investigation, but rather, whether this investigation was ‘related to the rendition of legal services. . . . The attorney-client privilege “does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.”
In short, “[t]he [attorney-client] privilege applies when legal advice of any kind is sought from the legal advisor in that capacity and the client’s confidential communication relates to that purpose.”
Before the attorney-client privilege applies to communications relating to investigative services, the client for whom the investigation was conducted must show that other legal advice or assistance was sought and that the investigation conducted was integral to that assistance.” After applying this test to the facts here, it is manifest that the factual investigation conducted by attorney Grigsby was incident to or related to any legal advice that the attorneys hired by the port authority would give concerning the mayor’s allegations of misconduct by the port authority president. More specifically, the attorney’s investigation required her to draw upon her legal training and experience as well as her knowledge of the law governing the port authority and its policies and personnel. Both the port authority and its outside counsel knew that the investigation was replete with various legal issues and consequences that would be better resolved by the port authority employing its long-time attorney to conduct the investigation and prepare the report. Legal issues included interpretation of Hartung’s employment contract, an analysis of ethics law and criminal law, potential tort claims by Hartung and Teigland, and the construction of a confidentiality provision in the settlement agreement concerning a previous port authority investigation. Legal analysis facts in the investigation is integrated throughout the report.
Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-1767.pdf
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
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