Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

 

If you work in the field of human resources or employee benefits, you are doubtlessly familiar with the COBRA premium subsidy provisions of the American Recovery and Reinvestment Act of 2009 (ARRA), which provides a 65% reduction in COBRA premiums for employees involuntarily terminated from their jobs, or who have had their working hours substantially reduced, during the period from September 1, 2008 through May 31, 2010.  Employers are required to notify “assistance eligible employees” of their ARRA rights and, if they submit the required paperwork, reduce their COBRA premium by 65%, the cost of which the employer can recover through a tax credit.  The law also sets up an expedited process for employees to challenge denials of the premium subsidy by filing an appeal with the United States Secretary of Labor, who must issue a decision within 15 business days after receiving the appeal.  The employee can challenge the Secretary of Labor’s decision in court, but the Secretary’s decision is entitled to deference from the court.

On April 27, 2010, in a case of first impression, the United States District Court for the District of Columbia held that employees cannot short-circuit the appeal process by suing in court for denial of the COBRA premium subsidy.  In Dorsey v. Jacobson Holman, PLLC, Ms. Dorsey’s employment ended on September 16, 2007, at which time she elected to continue her health insurance coverage through COBRA.  On April 10, 2009, Ms. Dorsey requested that  Jacobson Holman provide the premium subsidy, claiming that she had been terminated.  Jacobson Holman refused, arguing that Ms. Dorsey she had voluntarily resigned.  Ms. Dorsey  followed up informally with a Department of Labor benefits advisor, but never filed an official appeal with the Secretary of Labor challenging the denial of her request for the COBRA premium subsidy.  Instead, she filed an action against Jacobson Holman in federal district court alleging violation of the ARRA’s COBRA subsidy provisions.

The court, however, dismissed the case, holding that Ms. Dorsey failed to properly exhaust her administrative remedies by filing an appeal with the Secretary of Labor.  The court described the ARRA as emergency legislation designed to get benefits into the hands of assistance eligible individuals quickly and noted that the required 15-day deadline for processing appeals furthered that goal.  On the other hand, “[i]t blunts that purpose to require – or allow – individuals to turn in the first instance to the courts.”    

For employers, this is good news.  They need not face the specter of frequent, and expensive, court challenges to decisions regarding whether separated employees are – or are not – eligible for the ARRA’s COBRA subsidy.  Rather, challenges to those decisions will usually get resolved through the Secretary of Labor’s relatively quick and cheap appeals process.    

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In Seybert v. International Group, Inc., Jane Seybert filed suit in the United States District Court for the Eastern District of Pennsylvania claiming that her supervisor, Brett Marchand, subjected her to gender-based harassment. Seybert testified that during a work-sponsored dinner, attended by co-workers and other supervisors, Marchand stated loudly in reference to a chocolate fountain dessert, “I heard it’s really good if you go down deep, into the chocolate, with your berry,” which Seybert contended was a sexual metaphor.

As the matter proceeded to trial, International Group produced several emails that Seybert exchanged using her work email account during working hours. Many of these emails featured stories, jokes, cartoons and photographs employing sexual words, metaphors and double entendres. Seybert’s attorneys filed a motion to prevent International Group from using the emails at trial, citing a federal rule of evidence that limits the use of “sexual disposition” evidence.

The judge, however, rejected the argument, stating that “[b]y exchanging these emails with others during her . . . work hours, and using IGI computers, Mrs. Seybert may have been sanctioning the humor that the emails contained – a humor that may be found similar to the supposed humor underlying Mr. Marchand’s comment at the . . . dinner.” The court also noted that the emails did not comment directly on Seybert’s own sexual history or conduct, but mostly contained jokes and stories about generic topics or made-up characters, like Santa Claus.

The jury apparently found this evidence persuasive. On November 6, it entered judgment in favor of International Group.

Just like for plaintiffs, email evidence can sometimes provide important information for an employer defending an employment discrimination lawsuit. Employers can take advantage of some of these benefits—and limit some of the costs associated with E-Discovery in employment litigation—by adopting policies that require the long term retention of departing employees’ email accounts. Who knows? It might just be your “smoking gun” in the end.
 

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Unlike the previous administration’s willingness to work with employers to resolve Occupational Safety and Health Administration (OSHA) complaints, under the Obama administration, OSHA intends to become more active in regulation promulgation and enforcement. Specifically, a pronouncement by President Obama’s new Secretary of Labor, Hilda Solis, encapsulates the new focus: “As I have said since my first day on the job, ... the U.S. Department of Labor is back in the enforcement business,” Solis said. “There will be no excuses for negligence.... And so long as I am the Secretary of Labor, the Department will go after anyone who negligently puts workers at risk.” 

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On April 22, 2009, in Diehl v. WCAB (IA Constr. & Liberty Mut. Ins.) , 972 A.2d 100,  the Commonwealth Court determined that even though an employer’s request for an Impairment Rating Evaluation (IRE) was beyond the 60-day window following the expiration of 104 weeks of total disability benefits, it was still entitled to pursue a petition to modify the claimant’s benefit status from total to partial without having to prove either job availability or earning power. This decision represents a reversal of the Court’s previous ruling in this case.

In Diehl, the IRE evaluation determined that the Claimant had an impairment rating of 28% (i.e., well below the 50% impairment threshold for change of status to “partial” disability). However, the employer requested the IRE well beyond the 60-day window. Upon receipt of the IRE determination, the employer then sought to unilaterally modify the claimant’s disability status from one of total disability to partial disability. The Claimant argued that the employer could not prevail by merely proving an impairment of less than 50%, but was also required to show evidence of job availability and/or earning power. 

In its April 2008 decision, the Commonwealth Court agreed with the Claimant and indicated that employers who seek to show that a claimant is no longer temporarily totally disabled must prove their case by not only establishing an impairment rating of less than 50%, but also through vocational rehabilitation proof. Specifically, an employer cannot unilaterally shift a claimant’s benefits from TTD to PPD upon a showing of an impairment rating below 50%, but must also demonstrate job availability or restored earning power. However, in its revised decision, the Court held that “under the Act, an employer seeking to change a claimant’s benefit status using results of an IRE requested outside the 60-day window must obtain an agreement from the claimant or an adjudication that the claimant’s condition improved to an impairment rating less than 50 percent. Proof of earning power and job availability is not required.”

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According to a decision by the Third Circuit, the simple fact that an employee receives FMLA leave does not necessarily mean that the employee is disabled for purposes of the Rehabilitation Act. Further, an employee does not automatically have a “record of disability” if the FMLA leave was approved.

In an October 21, 2008 unpublished opinion, the Third Circuit held that a nurse with post-traumatic stress disorder, depression, and alcoholism failed to demonstrate that she had a disability under the Rehabilitation Act. In Nicholson v. West Penn Allegheny Health System, 3d Cir., No. 07-4354 (2008 WL 4636353), the Third Circuit upheld the U.S. District Court for the Western District of Pennsylvania’s grant of summary judgment in favor of the West Penn Allegheny Health System.

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In a recent holding, the Third Circuit reiterated Pennsylvania’s “at-will” presumption in employment by declining to expand the recognized exceptions to that principle. In Pennsylvania, an at-will employee can generally be discharged at any time, with or without a reason. However, Pennsylvania courts have in the past recognized an exception where an employee’s termination violates a “clear mandate of public policy,” but such situations have been limited to circumstances in which an employer: (1) requires an employee to commit a crime; (2) prevents an employee from complying with a statutorily imposed duty; or (3) discharges an employee when specifically prohibited from doing so by statute.

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Unfortunately, the current economic climate has employers looking at the reality of layoffs and downsizing to weather this financial storm. When companies consider trimming their workforce to a significant degree, or plant closings to deal with tough economic realities, they often-times must also forewarn employees of these decisions. Aptly named the WARN Act, the federal Worker Adjustment Retraining and Notification Act, in effect since 1989, requires certain employers to provide sixty-days’ advance notice of such a “mass layoff” or “plant closing.” The purpose of the WARN Act is to give affected employees sufficient advance notice to adjust to and hopefully emerge from the impending job loss.

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After the U.S. Supreme Court ruled in 2007 that home health aides employed by third parties are exempt from overtime requirements under the federal “domestic services” exemption, the question of whether these same home health aides were also exempt from Pennsylvania’s minimum wage and overtime requirements under its “domestic services” exemption still remained. On September 4, 2008, the Pennsylvania Commonwealth Court answered that question in the negative in a case brought by Bayada Nurses, Inc. against the Pennsylvania Department of Labor & Industry (“L&I”).

As background, Pennsylvania’s Minimum Wage Act (“MWA”) exempts from minimum wage and overtime requirements “[d]omestic services in or about the private home of the employer.” Unlike the federal regulations, however, Pennsylvania’s regulation defines “domestic services” more narrowly as “work in or about a private dwelling for an employer in his capacity as a householder, as distinguished from work in or about a private dwelling for such employer in the employer’s pursuit of a trade, occupation, profession, enterprise or vocation.”   And unlike the federal regulations, Pennsylvania does not have a “companionship services” provision that would cover employees employed by third parties, such as Bayada’s and many other agencies’ home health aides.

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In Secretary of Labor v. Beverly Healthcare-Hillview, No. 06-4810, 2008 WL 4107489 (3rd Cir. September 4, 2008) the Court found that a nursing home operator was required to compensate employees for travel expenses and non-work time spent receiving treatment under the Bloodborne Pathogens Standard of the Occupational Safety and Health Act (OSHA). The Bloodborne Pathogens Standard requires that employers make the hepatitis B vaccine and other medical evaluations and treatments available to all exposed employees at no cost to the employee.

The Company at issue operated a nursing home in Pennsylvania, and two nurses who worked at the facility, received a “needlestick” while at work. Both nurses subsequently sought treatment for their wounds at an off-site medical facility. Their subsequent and ongoing treatment required them to return to that facility for periodic follow-up during non-work hours.

The Company paid for the cost of the medical evaluations and procedures, but failed to compensate the nurses for the non-work hours they spent receiving their follow-up treatments. Moreover, the Company did not compensate the employees for their travel expenses to and from the facility.

The Occupational Safety and Health Administration issued citations to the Company for failure to compensate the nurses for travel expenses and non-work time spent receiving treatment. The Company disputed the citations, and argued that the no-cost provision of the Act should not be read so broadly. 

Subsequently, an administrative law judge upheld the citations, but the Occupational Safety and Health Review Commission reversed, finding that the Company did not have “fair notice” of the broad interpretation of the no-cost provision.

Ultimately, the Third Circuit disagreed, and found that the Company had “fair notice” of the no-cost provision as a result of OSHA’s opinion letters, directives and prior caselaw. Specifically, the Court found instructive a 1999 opinion letter which stated that transportation under the Bloodborne Pathogens Standard may not need to be provided by the employer, but the employer must cover the cost of transportation. The same opinion letter also provided that when receiving a vaccine or commuting to have it administered, employees must be considered on-duty and compensated.   Accordingly, the Court agreed with the Secretary of Labor’s position that a “reasonable interpretation” of the no-cost provision required the Company to pay for travel expenses and non-work time.

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On July 23, 2008, the U.S. District Court for the Eastern District of Pennsylvania ruled that a Rastafarian police officer who refused to cut his hair may take to trial some of his claims of religious discrimination and retaliation. In Dodd v. SEPTA, 2008 WL 29202618 (E.D. Pa. July 2008) the Court partially denied the summary judgment motion of the Southeastern Pennsylvania Transportation Authority (SEPTA), holding that SEPTA’s proffered reasons for disciplining and discharging the plaintiff, Niles Dodd, may be pretextual for bias against Dodd’s religion and its requirement that he maintain uncut hair.

During the course of his seven year employment with SEPTA, Dodd became a Rastafarian. However, SEPTA’s appearance policy required male officers to keep their hair under their hats. Dodd was formally disciplined on several occasions for violating the policy. Subsequently, in late 2004 and early 2005, Dodd wrote and distributed memoranda criticizing SEPTA. As a result of these memos, SEPTA conducted an investigation to determine whether Dodd violated SEPTA’s procedures for making internal complaints when he filed his memos. The investigation ultimately led to Dodd’s discharge. Dodd sued SEPTA, claiming that he was subjected to religious bias, disparate treatment, a failure to accommodate his religion, hostile work environment harassment, and retaliation in violation of Title VII and the Pennsylvania Human Relations Act.

 

The Court found that Dodd was a member of a protected religious class, was a qualified police officer, and sustained several adverse employment actions, including an involuntary psychological test, several suspensions, and termination. In addition, the Court also found that SEPTA was aware of Dodd’s religion prior to the adverse actions and that its alleged nondiscriminatory reasons for firing Dodd, i.e., his repeated violations of the appearance policy and his violation of internal complaint procedures, may have been pretextual. The Court noted that Dodd was the only SEPTA officer ever to be disciplined for a violation of the department’s appearance standards, despite the fact that at least two other officers wore their hair below the uniform hat.

The Court also concluded that: (1) SEPTA’s appearance policy unlawfully interfered with Dodd’s religious beliefs, due to the fact that one of the tenets of Rastafarianism prohibited him from cutting his hair; (2) SEPTA failed to make good faith efforts to accommodate Dodd’s religious beliefs (e.g., letting Dodd wear a ponytail would not have caused SEPTA undue hardship); (3) Dodd’s ongoing encounters with his supervisors regarding his hair and religion were sufficiently pervasive to constitute a hostile work environment that had a detrimental effect on him; and (4) Dodd’s memoranda and his EEOC complaint implicated SEPTA’s nondiscrimination policy, and constituted protected activity for Title VII purposes; thereby, raising an inference of retaliation.

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A corrections officer has a duty to protect inmates. If he/she turns a blind eye on threatened or actual physical assaults of inmates for fear of retaliation by coworkers, the officer is not entitled to collect unemployment-compensation benefits after being fired for doing so. See Department of Corrections v. Unemployment Compensation Board of Review, -- A.2d --, No. 1205 D.C. 2006 (Commw. Ct. March 6, 2008).

The Lancaster Service Center and the Commonwealth Court of Pennsylvania agree on that. The Unemployment Compensation Board of Review disagreed, though, and awarded benefits.

On the employer’s appeal, the Commonwealth Court held that the corrections officer was not entitled to benefits because the officer’s fear of retaliation was not good cause for willful misconduct. The misconduct was violating his duty to protect inmates and therefore acting contrary to the employer’s best interests and intentionally disregarding the behavior standards that the employer could expect. (If an employee proves that he/she had good cause for willful misconduct, benefits can be awarded.) As the appellate court put it:

[I]t shocks the conscience of this Court that the Board concluded that a corrections officer who refused to report a threat of violence against an inmate and refuses to render aid to an inmate being beaten could use fear for his own personal safety as good cause justification for his refusal to render aid.

The corrections officer argued that he had good cause for the violations because he feared for his own future safety if his coworkers retaliated against him for thwarting the attack engineered by a fellow corrections officer. No doubt, this is not a position anyone would want to find themselves in. However, the officer’s fear was held not to justify his disregard of what he was hired to do.

The prudent thing for the officer to do would have been to act to protect the inmate, then enlist the employer’s assistance with dealing with any retaliation by coworkers. While that option might not have been appealing to the officer from a practical perspective, his employer had to be able to rely on the officer to discharge his duty of protecting inmates. An employer entity can only act through its representatives.

This decision can apply to other workplaces as well, standing for the general proposition that an employee who willfully violates a job duty because of fear of coworkers’ retaliation must not be awarded unemployment-compensation benefits.

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On February 11, 2008, the United States Department of Labor (DOL) proposed new regulations regarding the Family and Medical Leave Act (FMLA). One topic of the DOL’s many proposals is the waiver of FMLA claims. 

The FMLA contains a provision that makes it unlawful for an employer to interfere with or restrain the exercise of any right protected under the FMLA. The DOL's current regulations regarding this provision state that an employer cannot “induce employees to waive their rights under the FMLA.” As we have reported previously, this language led to a debate among the courts whether employers wishing to resolve FMLA disputes could do so at all, or only with supervision from the DOL or with court approval. The federal court in the Eastern District of Pennsylvania recently held that employers could resolve FMLA disputes already in existence through private separation or settlement agreements, but that the employer could not require employees to waive their future FMLA rights through such a settlement. Dougherty v. Teva Pharmaceuticals USA, No. Civ. A. 05-2336 (E.D. Pa. August 2006). In a contrary ruling, however, the United States Court of Appeals for the Fourth Circuit (embracing federal courts located in Maryland, Virginia, West Virginia, North Carolina and South Carolina) held that the DOL’s waiver regulations prohibited all FMLA settlements without supervision from the DOL or without court approval. Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007).

The DOL’s proposed regulations, citing efficiency concerns and the public policy of promoting prompt settlements, make it clear that although employers may not enter into agreements that waive an employee’s “prospective rights under FMLA,” they can settle retrospective or existing claims in private agreements without oversight or approval from either the DOL or from a court.

You may submit comments about the proposed regulatory changes electronically at www.regulations.gov until midnight April 11, 2008. 

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Pursuant to a recent decision by the Third Circuit, an employee's oral notification to his supervisor of his potential need for surgery served as sufficient notice for leave to his employer to warrant protection under the Family and Medical Leave Act. In a holding that broadens the type of conduct sufficient to put an employer on notice of an employee's need for FMLA leave, the Third Circuit Court of Appeals vacated the District Court of New Jersey’s grant of summary judgment for the employer on the plaintiff/employee's FMLA claim. Sarnowski v. Air Brook Limousine, No. 06-2144 (3d Cir. Dec. 12, 2007). (The Third Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.)

To exercise the right to FMLA leave, an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to give the employer notice that the employee seeks leave under the FMLA. Generally speaking, the employee does not have to expressly assert rights under the FMLA or even mention the FMLA. The decisive question is the manner in which the information conveyed to the employer is understood.  

In Sarnowski v. Air Brooke Limousine, Inc., the Third Circuit vacated and remanded the award of summary judgment to the employer dismissing the employee’s FMLA interference claim. In that case, Sarnowski was terminated eight days after informing his supervisor that his doctor had advised him of the need to monitor his heart and the potential need for additional surgery and 6 weeks of leave. At the time, Sarnowski had only recently returned to work after missing 6 weeks of work due to coronary bypass surgery. The plaintiff/employee argued that the defendant/employer interfered with his rights by terminating him after he notified his supervisor of the medical monitoring and the possibility of additional heart surgery. 

In analyzing what constitutes sufficient legal notice under the FMLA, the Third Circuit emphasized that the regulations do not require an employee to submit formal written requests for leave. Furthermore, the Court found that verbal notification which raises an employer's awareness of a potential FMLA covered leave, without an employee expressly asserting its rights or making mention of the FMLA, is appropriate notice pursuant to FMLA regulations. The Third Circuit interpreted the regulations to imply that providing precise dates and duration of the leave are not necessary. 

The Court’s decision in Sarnowski certainly invites employee abuse of the FMLA. Permitting employees to request leave even though they don't know if or when it may start burdens significantly an employer. In light of this decision, it is important for employers to train their human resources employees to recognize and respond to ambiguous employee statements about the potential need for leave.

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For the past two years, the answer to this question has been in a state of flux in Pennsylvania. In August 2006, the federal court in the Eastern District of Pennsylvania answered this question in the negative, and allowed an employee’s Family Medical Leave Act (FMLA) claim against her employer to go to trial, despite a severance agreement and release waiving any claim arising from or relating in any way to her employment. Dougherty v. Teva Pharmaceuticals USA, No. Civ. A. 05-2336 (E.D. Pa. August 2006). 

Then, eight months later in April 2007, that court reconsidered its decision and reversed itself, ruling that, yes, employers can settle FMLA claims brought by employees. Specifically, the court concluded that the FMLA regulations do not prevent an employee from waiving and/or settling any claims for past violations of the FMLA as part of a severance or settlement agreement. This ruling was supported by the United States Department of Labor (DOL), which has historically encouraged the settlement of such claims. 

Three months later, a divided Fourth Circuit Court of Appeals answered the question in the negative for employers in Virginia, West Virginia, North and South Carolina, and Maryland: absent prior court or DOL approval, the FMLA regulations bar all waivers or releases of employees’ FMLA rights, including the right to bring a claim for a past violation of the FMLA. Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007) . This decision would open the floodgates for employers to submit separation and severance agreements for DOL review, and settlement agreements to the court for approval, unnecessarily injecting the DOL and courts into what had heretofore been private negotiations between employers and employees.

To possibly settle this unsettled issue, the Supreme Court on January 14, 2008 asked the Solicitor General to weigh-in on whether the Taylor v. Progress Energy, Inc. decision was correct. Given the DOL’s position permitting the waiver of FMLA claims, the Solicitor General may recommend that the Supreme Court take on the issue and grant certiorari. Keep in mind that the Solicitor General serves as an advocate for government agencies, and the Supreme Court usually follows the Solicitor General’s recommendation.

Although the answer to the question may be far from certain, the import of these decisions for employers is clear. Employers need to exercise caution when drafting separation, severance, and settlement agreements that contain broadly-worded releases. The agreement should specify the statutes for which a waiver or release of claims is sought, and should include a severability clause that would save the otherwise enforceable provisions of the agreement. If the location of the employment relationship, or the law governing the agreement, lies in the Fourth Circuit, however, any waiver or release of FMLA claims is not valid without court or DOL approval, at least until the Supreme Court weighs in on this issue.

We haven’t heard the latest on this question, and I will keep you updated as the issue develops

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A school board expelled a tenth-grade student for the remainder of the semester after he admitted helping another student hack into the school’s computer system. In M.T. for A.T. v. Central York School District, the decision was upheld by a York County judge and, on November 5, 2007, by the Commonwealth Court of Pennsylvania.

This was not the first time the student violated the school’s computer use policy. He previously was suspended for making fake student ID cards. This time, he admittedly decoded encrypted information, obtained passwords that he was not supposed to have, used an administrative password to install software that enabled access from the Internet, and had access to several teachers’ accounts. Given the escalating nature of the offense, the appellate court found that the punishment was appropriate and, indeed, needed to get the student’s attention.

To justify the expulsion, the school board relied on its Student Code, including the Computer Use Policy, which parents and students receive through a Student Planner. The student had signed a copy of the Policy. At the hearing, the student did not testify, but his mother did, and she admitted that her son probably knew he should not have done what he did. The student argued on appeal, though, that he should only have been suspended, per the policy. The courts agreed with the school board that the policy had only a suggestion of suspension as a penalty, while the appendix to the Code stated that such a penalty was merely a guide. Therefore, the school board acted within its discretion, and consistent with its policy, when it expelled the student for what it considered to be a serious breach. The principal testified that security of its computer system is more important than ever because the school had moved to a paperless system.

This case has implications for employers as well as for schools. The legal analysis of the Code was consistent with how courts analyze employee handbooks with respect to employee misconduct and ramifications. Essentially, a contract analysis was applied to interpret the Code. Also, it indicates that schools (and employers) will be given latitude to protect themselves from hackers.

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Yet another reason why employers shouldn’t stereotype . . .

 

Employees who balance the demands of caring for a family with the pressures of paid work have always had a difficult time.  Now, those employees may be receiving a little help from the Equal Employment Opportunity Commission.  On May 23, 2007, the EEOC issued new and extensive enforcement guidelines regarding employers’ treatment of their “caregiving” employees.  Specifically, the guidelines address the growing problem of employees who have family responsibilities, and/or who must care for a family member, being subjected to disparate treatment.  As a preamble, the guidelines state:

 

Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment. The purpose of this document is to assist investigators, employees, and employers in assessing whether a particular employment decision affecting a caregiver might unlawfully discriminate on the basis of prohibited characteristics under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990.

 

At its most relevant, the guidelines state that employers who perceive an employee with caregiving responsibilities as unable to perform the same amount of work, or the same caliber of work, as its other employees may violate federal anti-discrimination laws.  This perception, or stereotype, on the part of the employer means family caregivers are provided with less career options and less chances for career advancement than other employees.  The guidelines state:

 

Individuals with caregiving responsibilities also may encounter the maternal wall through employer stereotyping. Writing for the Supreme Court in 2003, Chief Justice Rehnquist noted that “the faultline between work and family [is] precisely where sex-based overgeneralization has been and remains strongest.”  Sex-based stereotyping about caregiving responsibilities is not limited to childcare and includes other forms of caregiving, such as care of a sick parent or spouse.  Thus, women with caregiving responsibilities may be perceived as more committed to caregiving than to their jobs and as less competent than other workers, regardless of how their caregiving responsibilities actually impact their work.  Male caregivers may face the mirror image stereotype: that men are poorly suited to caregiving.  As a result, men may be denied parental leave or other benefits routinely afforded their female counterparts. . . Employment decisions based on such stereotypes violate the federal antidiscrimination statutes, even when an employer acts upon such stereotypes unconsciously or reflexively.  As the Supreme Court has explained, “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.”  Thus, for example, employment decisions based on stereotypes about working mothers are unlawful because “the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics.”

 

Given these guidelines, employers must be all the more vigilant and refrain from making employment decisions based upon stereotypes of the employee’s family responsibilities.       

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The U.S. Court of Appeals for the Third Circuit recently issued a decision that draws a line in the sand for purposes of the First Amendment.   Montanye v. Wissahickon School District, 2007 WL 541710 (3d Cir. Feb. 22, 2007).  The court makes clear that the First Amendment does not cloak all conduct with protection.  Not every action is constitutionally protected just because someone intends to express an idea.  An effort to convey a particular message must be proven and the likelihood that others would understand the message must be great.

Montanye was a ninth-grade teacher who was concerned about the mental health of one of her students.  When the student expressed suicidal thoughts, Montanye shared her concern with the student's mother and even attended some therapist sessions with the student (with the permission of the student and her mother because the student would only go if her teacher accompanied her).

The school district, upon learning about this, was worried about the propriety of the Montanye's interactions with the student.  After a hearing, it issued a letter, which the teacher said was a "constructive discharge letter."  Among other things, it instructed Montanye that, if she "engages in any conduct outside the school or outside her status of a teacher with any student or parent, she is to notify the school and advise the parent that she is doing so strictly in her personal capacity."

Montanye filed a lawsuit, claiming that her right to expressive conduct under the First Amendment was violated and that the federal Rehabilitation Act was violated.  She alleged that what she did amounted to protected speech and that the school wanted to chill her speech and punish her for assisting special education students.

The federal trial court dismissed her claims, and the appellate federal court affirmed.  Both claims were dismissed for the same reason.  That is, while Montanye's actions might have involved a "kernel of expression", her actions in assisting the student were not "expressive or communicative."   Montanye argued that her speech and conduct was constitutionally protected because it concerned a matter of great public importance in that she was helping the student achieve a healthy life and giving her educational and emotional support.  But the court rejected the argument, explaining that it was insufficient to convey a particularized message or to be understood as conveying such a message.

This case is a victory for schools (and employers, generally), which might have some trepidation about taking action they believe to be best for fear of treading upon First Amendment rights.  However, practically speaking, how it will play out in the halls of our schools remains to be seen.

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A California wage statute requires employers to give employees an extra hour's pay on any day that the employee misses a required meal or break period.  In other words, miss a fifteen-minute break, get an hour's pay.   In Murphy v. Kenneth Cole Productions Inc., the court was asked whether the extra hour's pay was intended as compensation for employees or as a penalty for employers.  In the first case, a three-year statute of limitations would apply to claims for the extra hour's pay.  In the latter, claims would be subject to the stricter one-year statute. 

Because the extra hour of pay is awarded with no reference to the actual amount of meal/break time an employee lost, one might think the award was intended to penalize employers for failure to comply with the statutory meal/break times.  One would be wrong.  The statute, according to the California Supreme Court, is all about compensating employees.  Claims for the extra hour's pay therefore survive for three years.  California employers are not amused:

Robert Tollen, who represented the defendant, Kenneth Cole Productions Inc., said the ruling could "easily" cost companies millions of dollars. Especially, he said, because of an ever-increasing number of wage-and-hour class actions in California.

"It's going to cost a lot of money," he said, "in a situation where there's not a significant degree of wrongdoing."

Although the case is thousands of miles from Pennsylvania, the moral of the story hits home:  businesses need to be mindful of compliance issues in all aspects of their operations.  As Kenneth Cole demonstrates, the cost of non-compliance with even the most trivial of regulations can be substantial.

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On March 2, the Court of Common Pleas for Monroe County issued a decision dismissing, on Preliminary Objections, an employment-related privacy case for failure to state a claim.  In Adamski v. Johnson, 80 D. & C. 4th 69, an employee sued her employer for invasion of privacy.  In a nutshell, the employee was going to have a surgery but, when her employer asked what type, the employee refused to answer.  Curiosity having been aroused, the employer allegedly "asked [employee's] fellow workers what surgery she was scheduled to receive, 'using the power of the employment relationship to force, coerce and intimidate' the[] employees to disclose [the] information."  The employee further alleged that, not only did the employer learn the concealed information, he also discussed it with others.  Of all the nerve, right? 

Naturally, litigation ensued. Continue Reading...

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This afternoon, I delivered a presentation (pdf warning) to the York Society of Human Resources Managers on the subject of identity theft.  Now, everyone understands identity theft from the perspective of a consumer, i.e., the poor sap whose identity is stolen, but identity theft from the perspective of an HR professional is, as I found out, a rather different kettle of fish. 

The presentation discusses two recent Pennsylvania laws that bear on identity theft as well as the federal "shredder law," all of which place obligations on businesses that maintain confidential/personal information, whether for customers or employees.  In addition, the presentation considers a relatively recent negligence case (pdf warning) out of Michigan as a cautionary tale for Pennsylvania businesses that don't take sufficient precautions to guard employees' confidential/personal information.  Although the law elucidated in the Michigan case is not yet the law of Pennsylvania, I suspect it may be if and when such a case percolates through the courts.  The very bottom line?  Businesses should stop using employee social security numbers for any purpose not strictly necessary.  If you can accomplish that, you've halfway cracked the nut.

Over at their joint blog, Becker and Posner bring a law-and-economics approach to bear on the issue of deterring ID Theft   Although the discussion is from last September, it remains interesting stuff.  Really, though, how could it not?

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