Recently in Third Circuit Employment Law 101 Category

August 28, 2014

Here's why you provide a list of essential job functions when approving FMLA

Trial is over!

I'm coming atcha live and direct from the bloggerdome with a sweet defense verdict in my pocket. Yup, yup!

[cue music]

[cue music]

And what do I come back to? A precedential Third Circuit opinion discussing an employee's right to return to work from FMLA.

I'll cover that for you after the jump...

* * *

Continue reading "Here's why you provide a list of essential job functions when approving FMLA" »

April 21, 2014

There is no right to be completely left alone while on FMLA leave

Thumbnail image for fmla.jpegOne of the questions I hear a lot from employers is: Can we communicate with employees on Family and Medical Leave Act leave and, if so, how much?

I'll get to that in a second.

#HelpShaneFightCancer

For the folks who missed my blog post on Friday, we're trying to raise some money for an eight-month-old baby with cancer. Please take a few minutes, read the post, donate if you can, and spread the word (hashtag #HelpShaneFightCancer). Thank you!

Now, back to the FMLA.

Over the weekend, I read this recent opinion from the Third Circuit Court of Appeals, which is right in my back yard. The case involved an employee who was informed that her job was being eliminated. However, her employer offered her another position within the company. The only catch was that she sign a non-competition agreement. The employee was given specific deadline in which to accept and sign. The alternative was termination with a severance.

Before the deadline, the employee suffered panic attacks, and the employer afforded her FMLA leave. But, after the employee commenced leave, the employer contacted the employee to reiterate the deadline to accept and sign.

This deadline came and went without the employee signing the non-compete. So, she was fired.

And then she sued for FMLA interference.

And she lost because I basically took the lede right from the Third Circuit's opinion:

"Passport imposed the requirement that O'Donnell sign the offer letter and the non-compete agreement before she took FMLA leave...Thus, O'Donnell knew that she needed to sign the forms well before she invoked her FMLA rights....As this Court has previously explained, 'there is no right in the FMLA to be left alone,' and be completely absolved of responding to the employer's discrete inquiries....There is no evidence showing that Passport in any way hampered or discouraged O'Donnell's exercise of her right to medical leave, or attempted to persuade her to return from her leave early.

Generally, you should be communicating with employees on FMLA leave. 

This is especially true where the employee is taking leave for his/her own serious health condition and that serious health condition could also be construed under the Americans with Disabilities Act as a disability.

Because once the ADA comes into the equation, an employer should have an interactive dialogue with the disabled employee. This open communication helps determine what reasonable accommodations(s) will allow the employee to perform the essential functions of his/her job. This could be additional leave after FMLA expires, or something else, such as light duty.

But, the only way you'll ascertain that is by communicating with your employee.

* * *

P.S. - And speaking of communicating, if you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group

April 4, 2014

3d Cir. on FLSA successor-in-interest liability. Or, as I like to put it, "No Blog Hits" Day

I was on such a roll this week. 

You guys were digging the heck out of my peeing in the breakroom post, David Crosby the alcoholic, and the one about a supervisor offering cash to sleep with an employee's wife.

You know who even read that last one? Scan down to the blog comments. Yep, that's a comment from the plaintiff himself. OMG!!!

But, can you hear the crickets now? I mean, cue the tumbleweed, because if there's anything that grinds momentum to a halt here at The Employer Handbook, it's a post about the Fair Labor Standards Act.

But, since the Third Circuit Court of Appeals, which is in my hood and surely knows what a jawn is without me having to hyperlink that jawn, issued this precedential opinion on FLSA successor-in-interest liability yesterday. So, it's the least I could do.

Well, the least I could do is cut right to the chase. So, here's the money shot:

"The imposition of successor liability will often be necessary to achieve the statutory goals [of the National Labor Relations Act and Title VII] because the workers will often be unable to head off a corporate sale by their employer aimed at extinguishing the employer's liability to them. This logic extends to suits to enforce the Fair Labor Standards Act....In the absence of successor liability, a violator of the [FLSA] could escape liability, or at least make relief much more difficult to obtain, by selling its assets without an assumption of liabilities by the buyer (for such an assumption would reduce the purchase price by imposing a cost on the buyer) and then dissolving."

So, buyer beware and either pay less for the acquired company or ---

Hey, is anyone still here? Bueller?

November 1, 2013

FACT OR FICTION: You can ban employees from consuming alcohol -- even off the clock.

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

If you operate a business in PA, NJ, DE or the USVI, then the answer is yes. This is true -- even if the ban extends to alcohol consumption off the job.

So says the Third Circuit Court of Appeals in this opinion from earlier this week, where an alcoholic employee, who had previously checked himself in to rehab, had violated the terms of a subsequent return-to-work agreement with his employer never to consume alcohol again.

The employee claimed that the agreement violated the Americans with Disabilities Act's ADA's prohibition of "qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability." The court; however, disagreed:

As numerous courts have recognized, employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees. Indeed, several of our sister circuits have explicitly endorsed agreements that bar an employee from consuming alcohol--whether at the workplace or otherwise...Although Ostrowski was subject to different standards than other Con-way employees who did not sign an RWA, this difference results from the terms of his agreement rather than disability discrimination.

Ultimately, the plaintiff could not show how the ban on booze singled him out because of his alleged disability (alcoholism) versus regulating his conduct (drinking alcohol).

So, the answer to today's question -- at least in the Third Circuit -- is FACT.

August 15, 2013

When it comes to ADA accommodations, reasonable is good enough

Under the Americans with Disabilities Act, an employer must make reasonable accommodation to the known physical or mental limitations of an individual unless the employer can show that doing so how cause it undue hardship.

Generally, an employee will initiate the process by advising her employer that she is disabled and needs an accommodation to perform the essential functions of her job. What then ensues is an interactive dialogue in which both sides work together in good faith to decide on what that accommodation may be.

But here's the rub:

The accommodation need only be reasonable; not the employee's first choice.

patrialmask.jpgHere's an example from a recent decision from the Third Circuit Court of Appeals:

A chemist had a disability that manifested itself when she became exposed to certain solvents. So, the employer offered her a full-mask respirator. It didn't work because she was claustrophobic and it caused her to suffer a panic attack. The employer then offered a partial-mask respirator, which the employee refused without explanation. But, she never suggested that the partial-mask was unreasonable. Instead, she preferred a transfer. Ultimately, she took sick leave and was terminated after she failed to return to work upon exhausting FMLA and her bank of paid time off. So, she sued under the ADA for a failure to accommodation and lost.

Reject the reasonable accommodation at your own risk.

Relying upon an ADA regulation, the Third Circuit reasoned that an individual who rejects a reasonable accommodation "to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified" for the job.

Have a good faith, interactive dialogue.

So, when an employee comes to you requesting an accommodation for a disability, I'm not suggesting that you should wax and twirl your handlebar mustache before offering her an "accommodation." But you don't have to accept her preference either. Instead, truly have an interactive dialogue with the employee to arrive at an accommodation that both sides can live with.

May 16, 2013

3d Cir: Obama NLRB recess appointments (Becker too) were unconstitutional

nlrb.jpgIn a 2-1 decision issued today (copy here), the Third Circuit Court of Appeals ruled that the National Labor Relations Board lacked the authority to act as early as March 2010, when President Obama appointed Craig Becker to the Board. The Third Circuit held that Member Becker's appointment to the Board while the Senate was on an intrasession recess (a break within a session of the Senate) was unconstitutional. Implicit in the court's decision is that the appointments of Members Block, Griffin, Flynn in 2013, while the Senate held pro-forma sessions, were also invalid.

The Third Circuit ruled that recess appointments are only valid if made during intersession breaks (i.e., between sessions of the Senate).

This decision is crazy-long (102 pages plus a 55 page dissent). Thankfully, my Dilworth Paxson colleagues, Erin Galbally and Marjorie Obod prepared an e-alert summarizing the decision.

If you do business in Pennsylvania, New Jersey, Delaware, or the US Virgin Islands, the net effect of this decision may be that, until the Supreme Court rules in this pending case, you can basically ignore just about anything* that the Board has done this decade (well, since March 2010). 

* From June 22, 2010 through August 27, 2011, the Senate had confirmed enough Board members for quorum. So don't ignore that stuff.

(h/t The Volokh Conspiracy)

May 1, 2013

Third Circuit says VIPs cannot sue for Title VII discrimination

Robert Mariotti was the vice-president and secretary of the company his father founded. Not only was he a corporate officer, but Mariotti also served as a member of the board of directors, and was a shareholder who could only be fired for cause.

In 1995, Mariotti had a spiritual awakening, which he claims resulted in a resulted in "a systematic pattern of antagonism" toward him in the form of "negative, hostile and/or humiliating statements" about him and his religious affiliation. Mariotti claimed that this behavior ramped up for over a decade and, ultimately, resulted in his termination. Thereafter, he sued his former employer for religious discrimination. The company moved to dismiss the claim on the basis that a shareholder-director-officer is not an "employee" under Title VII of the Civil Rights Act of 1964 and, thus, has no standing to assert a claim for religious discrimination.

What happened you say? Well, even if you read the lede, click through for full analysis...

* * *

Continue reading "Third Circuit says VIPs cannot sue for Title VII discrimination" »

April 15, 2013

Four ways to successfully defend an Equal Pay Act claim

This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.

The EEOC celebrated "Equal Pay Day" last week. So, now is as good a time as any to address the Act through this recent case from the Third Circuit Court of Appeals.

In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.

She sued.

She lost.

You see, there are four exceptions to the Act's general rule of equal pay for equal work:

  1. a bona fide seniority system,
  2. a merit system,
  3. a system which measures earnings by quantity or quality of production, or
  4. any factor other than gender

The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.

Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.

So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.

March 29, 2012

Fact or Fiction: FLSA preempts state wage and hour laws?

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post" d/b/a (just for today) "Eric's 36th-Birthday Post"

*** Sigh ***

Ahh...let's get to today's question:

May an employee raise claims in federal court against an employer under both the Fair Labor Standards Act (federal) and a state wage and hour law? Or is the latter preempted by the former, such that an employee may only pursue FLSA claims?

The answer to today's question -- at least in the Third Circuit Court of Appeals -- comes to us from a decision rendered Tuesday in Knepper v. Rite Aid Corp. There, the court recognized that the FLSA "evinces a clear intent to preserve rather than supplant state law." Consequently, it held that state wage and hour laws such as the Maryland Wage and Hour Law and the Ohio Minimum Fair Wage Standards Act -- two laws that track the federal overtime requirements -- are not preempted by the FLSA.

The answer to today's QATQQ is FICTION.

March 20, 2012

Distinguishing state & federal disability-accommodation claims

Thumbnail image for nj1.jpg

Let's say you operate a business in NJ. Your disabled employee comes to you requesting an accommodation for his disability. Does the mere failure to provide that accommodation trigger a claim under the New Jersey Law Against Discrimination (NJLAD)? What about under the Americans with Disabilities Act (ADA)?

I have two recent cases and two different answers -- depending on whether you are in state or federal court, plus some general accomodation tips for employers after the jump...

* * *

Continue reading "Distinguishing state & federal disability-accommodation claims" »

December 14, 2011

Fact or Fiction: Courts recognize retaliation against ex-employees

Thumbnail image for ffiction.pngThat's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post". So, let's get right to today's question:

Let's say I have a former employee who files a charge of discrimination with the EEOC. If a potential new employer comes calling from a job reference and I...

    1. give my former employee a bad reference;
    2. to get back at the employee for filing the charge; and,
    3. because of my bad reference, the former employee is not hired...

Have I engaged in actionable post-employment retaliation?

You bet I have! So, the answer to today's QATQQ is "FACT".

Consistent with the U.S. Supreme Court's decision in Robinson v. Shell Oil Co., here in the Third Circuit (PA, NJ, DE, USVI) post-employment retaliation is bad, bad, bad. In this Third Circuit decision, the court held that "an ex-employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act and arises out of or is related to the employment relationship."  Many state courts are on boards with this too (For example, check out this case from the NJ Supreme Court). A former employer engages in retaliation where its action results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm. In essence, post-employment retaliation must involve some harm to an employee's employment opportunities.

July 5, 2011

Legal? Replacing over 100 workers without any sort of notice

youarefired.jpgIn December 2006, 247 union workers went on strike at the Kohler manufacturing plant in Searcy, Arkansas. Three months later, Kohler hired 123 replacement workers.

Kohler and the Union settled their dispute in March 2008. As part of the settlement, Kohler agreed to reinstate the striking strikers. Kohler then fired the replacement workers and returned 103 of the original 247 striking workers to their former positions. 111 of the replacement workers then filed suit under the Worker Adjustment and Retraining Notification Act ("WARN") alleging that they should have been given at least 60-days notice before being laid off.

Did Kohler violate WARN? Find out after the jump...

* * *

Continue reading "Legal? Replacing over 100 workers without any sort of notice" »

May 10, 2011

How long does an employee get to review a severance agreement?

rustyfork.jpg

If you guessed 15 minutes, you would be right, according to a recent decision from the Third Circuit Court of Appeals.

And you don't need to point a gun at the employee's head? A rusty fork in the doo-dads "knowing and intelligent" waiver based on a "totality of the circumstances" will suffice.

What are those circumstances? Find out after the jump.


* * *


Continue reading "How long does an employee get to review a severance agreement?" »

January 3, 2011

Employers can refuse to hire bankruptcy filers

Confession: I find bankruptcy VERY boring. And I loathe it. I'm a labor and employment attorney. When partners approach my door with bankruptcy assignments, I pick up the phone and pretend to yell at opposing counsel. So far I'm batting 1000.

But when I learned that the Third Circuit in Rea v. Federated Investors ruled that a private employer may refuse employment to a job applicant who has ever filed for bankruptcy, I mustered up the will power for this blog post.*Checks ESPN.com* Consider it my 2011 bankruptcy contribution.

I'll break down the court's ruling after the jump.

Continue reading "Employers can refuse to hire bankruptcy filers" »

September 7, 2010

Third Circuit Employment Law 101: Who Does The FMLA Cover?

My blog designers told me that if I want to build SEO -- that's Search Engine Optimization to you rookies -- I'd better write about employment law issues affecting Pennsylvania, New Jersey and Delaware (duh!) and "optimize" my blog post titles with the keywords near the front.

Learn more about which employees are covered after the jump.

Continue reading "Third Circuit Employment Law 101: Who Does The FMLA Cover?" »