Supreme Court hears oral argument in Federal Express v. Holowecki

The United States Supreme Court today held oral argument in Federal Express v. Holowecki. It is the first of six employment cases the Supremes will decide this term. The issue in Holowecki is what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act before plaintiff can institute a private lawsuit.

The plaintiff, Patricia Kennedy, submitted an Intake Questionnaire, with an accompanying affidavit, to the EEOC, which alleged that Fed Ex had committed age discrimination. She did not, however, file a Charge of Discrimination at that point. The EEOC neither assigned a charge number to the submission, nor did it inform Fed Ex that it had received the Intake Questionnaire. Five months later, Kennedy filed a class-action ADEA against Fed Ex, and waited another month before finally filing a formal Charge of Discrimination with the EEOC.

An individual claiming age discrimination may not bring a civil action against an employer without first filing a charge of discrimination with the EEOC within 180 or 300 days (depending on the jurisdiction -- it's 300 days in Ohio) of when the alleged discrimination occurs. The employee must wait sixty days after filing the charge at the EEOC to bring suit. After receiving a charge, the EEOC must promptly notify the employer of the charge and seek voluntary resolution of the claims. The district court granted Fed Ex’s motion to dismiss, finding that the submission of the Intake Questionnaire did not constitute a "charge" under the ADEA. The Second Circuit, however, reversed. It held that a charge is sufficient when the employee names the employer and generally describes the alleged discriminatory acts, and if a reasonable person would find that the employee intended to file a charge.

It will now be up to the Supreme Court to determine what constitutes a charge for purposes of opening the jurisdictional gate to the courts on federal age discrimination claims. Links to all of the lower courts' decisions, the various Supreme Court briefs, and the oral argument transcript are available here.

Fed Ex, has a compelling argument to make. Under the appellate court's ruling, the employee can proceed to federal court on an age discrimination class action lawsuit, without the employer, who had no notice that a charge had even been filed with the EEOC, having the benefit of trying to settle the claim pre-lawsuit. During the EEOC's conciliation process, the stakes are decidedly much lower than they are once an actual lawsuit is filed. For one thing, claimants usually are not represented by counsel at the EEOC. The same is rarely true in federal court. Thus, Fed Ex can claim real prejudice by not having had the opportunity to resolve this case via the EEOC's informal conciliation process.

The following interplay between Chief Justice Roberts and Fed Ex's counsel illustrates this tension:

Chief Justice Roberts: I mean, once the lawyer's involved and they're in litigation and all that, they're not going to take conciliation efforts with the same light as before.... Did you undertake conciliation efforts after her formal, her filing of the Form 5 charge?

Connie Lensing: We were in a lawsuit, Your Honor, and so that sort of changes everything. We can't, we can't talk to her. We can't -- you know, the discovery process is what you then would use to investigate, rather than an informal investigation.

If I was to bet how this case will come out, however, I'm betting on the Roberts Court handing down its second pro-employee decision in as many terms. The EEOC's own internal policies and procedures seem to indicate that the Intake Questionnaire constitutes a "charge," even though it is not a formal charge document. Fed Ex should have received notice of the Intake Questionnaire, putting it on notice of the allegations against it and getting the ball rolling on the processing of the claim and the conciliation process. It is at least possible that the Supreme Court will invalidate the EEOC's own internal rules, but doubtful on what essentially amounts to a clerical issue.

OCRC backtracks on new maternity leave regulations

In a stunning turn of events that will surely please small business owners, the version of Ohio's new maternity leave regulations that the Ohio Civil Rights Commission will present to the Joint Committee on Agency Rule Review does not contain a blanket right to 12 weeks of pregnancy and childbirth leave. Instead, 12 weeks of leave is only to be mandated "when medically necessary."

Where an adverse employment action taken against an employee who is temporarily limited, in part or in whole, in her ability to work due to pregnancy, childbirth or a related medical condition is based upon an employment policy or practice under which less than twelve weeks of paid or unpaid pregnancy, childbirth or maternity leave is available when medically recommended, such policy shall be presumed to have a disparate impact on women and constitutes unlawful sex discrimination unless justified by business necessity. OAC 4112-5-05-(G)(4).

The "medically recommended" language did not appear in the originally published version of the approved regulations, and appears to have been slipped in by the Commission at the last minute.

Thus, the new regulation, which this morning's Plain Dealer reports would most likely be in effect by mid-December, will now require companies with four or more employees, including new and part-time employees, to offer three months' unpaid maternity leave, when recommended medically. In other words, businesses will only have to provide as much leave as certified by an employees' physician. The PD quotes one local attorney as being skeptical that doctors would honestly represent their patients' needs for leave, and may certify on request 12 weeks even though not necessarily medically necessary. I can only speak from experience that when my wife gave birth, her doctor would only certify her medically necessary leave for 8 weeks, and he told us it would have been 6 weeks if she hadn't had a C-section. My guess is that more often than not, doctors will stick to these generally accepted guidelines.

The Plain Dealer article quotes OCRC General Counsel Matthew Miko on the Commission's intent to always require a medical certification for maternity leave:

The Ohio commission says it is merely trying to clarify existing regulations that are confusing because they call for giving pregnant women "reasonable" time off, without spelling out what that is. The commission also said it always intended that women would have to get a doctor's recommendation for the leave. Language stating that was added to address business owners' worries that the plan was for a carte blanche benefit, said Matthew Miko, the commission's general counsel. The commission is not defining what form or document women will need from their doctors -- if any at all. Rather, companies will be expected to follow the same practices they use with other employees who are absent because of illness.

The regulations do not define "medically recommended," and omit any discussion of what rights a company has if it disagrees with a doctor's certification. These and many other issues will be hashed out in the courts over the next many years.

All companies should work with their employment counsel to update leave policies to include these new pregnancy leave rules, and should put in place appropriate medical leave forms for employees' doctors to use to certify the medical necessity for maternity leave.

Fly Eagles Fly -- Coach's situation illustrates associational diability claims under the ADA

Last week's win again the lowly Vikings aside, my beloved Philadelphia Eagles are a mess. Pre-season hopes have been dashed by Donovan McNabb's still-healing knee, wide receivers incapable of getting open, and, maybe, the personal turmoil of the head coach. Yesterday, a Montgomery County, Pennsylvania, judge sentenced each of Andy Reid's sons to 23 months in jail for different motor vehicle, drug, and gun violations. It was reported that one son was caught smuggling 89 pills into jail in his anus (yuck), and both were found in possession of a pharmacy's worth of legal and illegal drugs: OxyContin, morphine, Vicodin, Adderall, Prozac, Valium, cocaine, marijuana, testosterone, heroin, Trileptal and Percocet. During sentencing, the judge described the Reid house as a "drug emporium," characterized the brothers as "drug addicts," and opined that the Reid family "is a family in crisis." (See Judge: Jail for Reid sons; a family 'in crisis')
Let's suppose that the Eagles never rebound this season, finish well out of the playoff picture, and ownership decides to go in another direction next year and fires Andy Reid. Does Coach have a claim for discrimination? The answer is that he very well might. The Americans with Disabilities Act not only protects employees with disabilities, but also employees who are associated with individuals with disabilities: "'Discriminate' includes ... excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. 12112(b)(4). It is just as unlawful to fire an employee because of a family member's disability as it is to fire an employee because of the employee's own disability. There is no doubt that drug addiction is a protected disability. Thus, if let go at season's end, Coach Reid could have a colorable claim that he was terminated because of his association with his drug-addicted sons.
Interestingly, unlike a claim brought by a disabled person, an employer is not required to reasonably accommodate an employee based on an association with a disabled person. Thus, Coach Reid would not be able to claim that the Eagles discriminated against him by not granting him sufficient time off to care care for his sons. Under the FMLA, however, the Eagles might have an obligation to grant the Coach 12 weeks of leave because of his sons' addictions could qualify as a serious health condition.
This issue is one that rarely comes up, but when it does it presents a potential trap for the unaware employer. For more information on associational claims under the ADA, I recommend the EEOC's Questions and Answers About the Association Provision of the Americans with Disabilities Act.

What else I'm reading this week #3

Call Centers, No-Fault Attendance Policies and Making It Rain EEOC Charges..., from the HR Capitalist, discussing the unlikely effect of consistent treatment on a charge of discrimination.

Supreme Court to Rule on Issues Affecting Age Discrimination Claims, from the New York Employment Lawyer Blog, reporting on next week's oral argument on the issue of whether an EEOC intake questionnaire constitutes a "charge" of discrimination (more on this case next week).

Scary Halloween Story to Employers: Retaliation Case Award of $5.5M, from The ABA Journal, reporting on the multi-million dollar verdict in a harassment and retaliation case.

Trick Or Treat Training (Or How to Train for Terminations), from the Evil HR Lady, analogizing advice to children for safe trick-or-treating to advice to managers and supervisors for safe terminations.

Google Trial Shows Danger of "Ageist" Remarks, from the Manpower Employment Blawg, reporting on the dismissal of age discrimination case against Google being reversed by the appellate court and sent back for trial, in large part because of ageist comments.

The Interviewing and Hiring Process: Five Things every HR Generalist should know, from the Pennsylvania Employment Law Blog, giving some practical advice on interviewing and hiring.

Damned if you do, damned if you don't: "Fetal Injury at Work", from Overlawyered, discussing fetal injuries at work and protective employment policies. Compare that article, however, to Mandatory maternity leave does not qualify flight attendant for unemployment.

Overtime lawsuits for big auditing firm: Could it lead to problems for other firms?, from Sequence Inc. FRAUDfiles, picking up on the recent wave of wage and hour lawsuits, this time by auditors against public accounting firms.

Carnival of HR is available

This week's Carnival of HR is available courtesy of HRO Manager, a blog dedicated to information on human resources outsourcing. In addition to featuring two posts from yours truly, it discusses many other excellent HR and employment law posts from the blogosphere from the past two weeks. I encourage all of my readers to check out HRO Manager and the other blogs listed in the Carnival.

The dog ate my sanity -- employee's strange behavior may place company on notice of "serious health condition"

Employees' excuses for missing work come in all shapes and sizes. For Beverly Stevenson, it was her fear of dogs that kept her away from her warehouse job at Hyre Electric Company, and her strange behavior on the job that, according to the 7th Circuit, should have put her employer on notice of a serious health condition for FMLA leave.

On February 9, 2004, a stray dog somehow entered the workplace and approached Stevenson. She immediately felt physical and mental symptoms, including a headache, a rush of blood to her head, a tightening of her neck and back, and agitation. When her supervisor entered the work area, Stevenson began screaming obscenities that animals shouldn't be there. After three or four minutes she calmed down, but two hours later she informed a manager she was feeling ill and had to go home. She did not visit a doctor until the next day, when she advised her supervisor that she wasn't feeling well and would be absent from work. On February 11, Stevenson returned to work to confront Hyre's president, screaming at him about dogs being in the building. After that encounter, Stevenson told her supervisor that she could not work and left. Stevenson continued to call in sick until February 17, when she only worked for a few hours, only to leave after feeling harassed despite having her workplace moved to accommodate her fear of stray animals. On February 23 she attempted to return to work with a doctor's note excusing at least some of her past absences, but she could not enter the building as the locks had been changed to keep her out. Hyre would also not accept her doctor's note. Stevenson's union asked the company for an explanation as to why the note was insufficient, and the doctor offered to supply whatever information the company sought. Hyre never responded to either request, and instead on March 9 notified Stevenson that she had been terminated effective February 25.

Typically, an employee is not entitled to the protections of the FMLA unless and until that employee notifies the employer of the need for the leave, either 30 days in advance or as soon as practicable if shorter. While it is the employee's burden to notify the employer, typically the employee just has to provide the employer with enough information to show that the employee believes there is an entitlement to FMLA leave. It then becomes the employer's responsibility to request additional information from the employee's doctor to confirm the FMLA entitlement.

Stevenson never told Hyre that she was missing work because of an illness. The 7th Circuit, however, found that Stevenson's case should go to a jury because a factual question existed as to whether Hyre had constructive notice of her need for FMLA leave. Constructive notice of a serious health condition may be established by either clear abnormalities in the employee's behavior or the employee's inability to communicate. The court concluded that one could find that Stevenson's behavior was so bizarre that it amounted to constructive notice of the need for leave. It was undisputed that she was a "model employee" prior to the dog incident on February 9. The company president acknowledged that her behavior on February 9, 11, and 17 was so strange that he had to change the locks: "We were concerned about Beverly coming into the workplace.... I was concerned about having a very angry employee." Thus, Hyre should have been on notice of Stevenson's need for FMLA leave:

Lengthy encounters of yelling and swearing at one's superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employees calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give Hyre notice of a serious mental health condition.

Companies have to be proactive with employees' needs for FMLA leave. If an FMLA-eligible employee has been absent from work, and you think it might be related to a medical reason, you act at your company's peril if you do not at least try to determine if the absences qualify for FMLA protection. After all, having to cover for an employee for 12 weeks is much less painful that having to litigate a termination for 12 months or more.

Stevenson v. Hyre Electric Co. is available for download here.

Gap sweatshop allegations highlights child labor issues

I heard about the Gap sweatshop allegations (Gap: Report of kids' sweatshop "deeply disturbing") on the news while I was eating dinner last night. After watching video of children at work in a New Delhi sweatshop, Gap President Marka Hansen said, "It's deeply, deeply disturbing to all of us. I feel violated and I feel very upset and angry with our vendor and the subcontractor who made this very, very, very unwise decision."

In American workplaces, the Fair Labor Standards Act sets wage, hours worked, and safety requirements for individuals under age 18 . The rules vary depending upon the age of the minor, the job involved, and the state in which the work is performed. In Ohio, for example, children under 16 are permitted only to work 3 hours per school day and 18 hours per school week. Their hours are capped at 8 hours per day and 40 hours per week otherwise. Generally, those same children cannot work later than 7 p.m. (or 9 p.m. 6/1 through 9/1 and during school holidays of 5 days or more). 16 and 17-year-olds have no limits on how many hours they can work per day or per week, but they are prohibited from working after 11 p.m. and before 7 a.m. on schooldays (or 6 a.m. if not working the night before). The FLSA also prohibits anyone under 18 from working a job that is considered hazardous or involves the operation of a motor vehicle. As one could imagine, the Department of Labor takes child labor violations very seriously, and the consequences for violations can be severe, not to mention the potential PR nightmare. Just ask Marka Hansen.