Every minute counts for FMLA eligibility

A few years ago I had the privilege of arguing the winning side in Ricco v. Potter (6th Cir. 7/27/04). Ricco held that "make-whole relief awarded to an unlawfully terminated employee may include credit toward the hours-of-service requirement contained in the FMLA's definition of 'eligible employee,'" reasoning that "[t]he goal of a make-whole award is to put the employee in the same position that she would have been in had her employer not engaged in the unlawful conduct; this includes giving the employee credit towards the FMLA's hours-of-service requirement for hours that the employee would have worked but for her unlawful termination."

Pirant v. U.S. Postal Service (7th Cir. 9/4/08) illustrates the import of the Ricco holding. the USPS terminated Pirant for attendance violations. She claimed that the USPS violated the FMLA by terminating her for missing work because of an arthritic knee. One part of one day of work proved dispositive to her FMLA claim. On October 5, 2001, Pirant’s supervisor ordered her to clock out two hours early, claiming that she was being insubordinate and not doing her work. Pirant clocked out and went home two hours early. While she complained to a Postal Service Dispute Resolution Specialist, who advised that she could file a formal grievance for restoration of back pay if she still thought she had been wrongfully ordered to clock out two hours early. Pirant, however, never filed a timely grievance. The USPS secured dismissal of her FMLA claim because she had only worked 1249.8 hours in the preceding 12 months. Thus, she was 12 minutes short of the law's requisite 1,250 hours.

This case is a good lesson for companies that something as trivial as a grievance over 2 hours of missed work could end up being very significant. If Pirant had grieved that two-hour suspension and had won, she would have been over the 1,250 hour threshold. In that case, instead of fighting over her eligibility for FMLA leave, the employer would have been fighting over the motivation for her termination, a much harder case. However, because she failed to grieve that suspension, it was a moot point:

Pirant also argues that she should be credited for the two hours she alleges she missed when her supervisor improperly ordered her to clock out early. Citing the Sixth Circuit’s decision in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004), Pirant argues that hours not worked because of a wrongful suspension or discharge count as hours of service for FMLA purposes. Ricco does not help her here....

Here, Pirant was advised of her right to file a formal grievance and request for back pay after the October 5, 2001 clock-out incident. She did not do so—not, at least, until after she was terminated and long after the 15-day regulatory filing period had expired. Nor did she pursue any challenge to the dismissal of her belated grievance as untimely.... By failing to pursue a formal challenge to her suspension, Pirant has accepted that she is not entitled to either compensation or FMLA credit for the lost two hours.

[Hat tip: Workplace Prof Blog]

Are you ready for the return of labor unions?

Statutes are famous for their creative names. For example, did you know that the [USA] Patriot Act is actual short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act? The Employee Free Choice Act (ECFA) is no exception. After all, in a democracy who's against people having a free choice? If you are an employer of a non-union shop, you best decide that you are against it, and figure out a plan to cope with it if it becomes law.

Under current federal labor law, the tools used to recognize a union as employees' exclusive bargaining representative begin with a employee petition for representation by a union, and in most cases end with a secret ballot election. If more than 30% of employees, but less than a clear majority, sign petition cards requesting representation, the cards are submitted to NLRB to hold a secret ballot election. If more than 50% of employees certify their desire for representation, a union can choose to form based on the cards alone. An employer, however, does not have to recognize the card check petition and can require a secret-ballot vote overseen by the NLRB. Because most, if not all, employers will insist on a secret ballot election if given the opportunity, there are very few unions that end up being certified without an election being held.

The EFCA, however, will change this process by removing the secret ballot election. Under the EFCA, an employer would no longer have the opportunity to demand a secret ballot election. In other words, a majority of cards will be enough to certify a union.

Is there anything less democratic about people not being able to state their opinion via a secret ballot? I can't put it any better than Representative John Kline of Minnesota:

 

This bill has passed the House, but was held up by a filibuster in the Senate. Regardless, President Bush has already gone on record with a promise to veto it if it ever comes in front of him. Unsurprisingly, Barack Obama is in favor of the EFCA, and John McCain is against it. Even if McCain wins in November, this issue will not go away, as Congressional Democrats will continue to aggressively push for its passage.

For now, and even if the EFCA becomes law, the best defense against a labor union is simply being a good place to work. Having competitive wages and benefits, maintaining open lines of communication between employees and management, making personnel decisions for legitimate, non-arbitrary reasons, and fostering a sense of community all go a long way to deterring employees from even considering brining in a union.

What McCain's Sarah Palin decision teaches us about employment law

A lot of ink has been spilled in the last 10 days about John McCain's decision to choose Sarah Palin as his running mate. Much of that ink has focused on Palin's family issues that have come to light and whether McCain's team properly vetted her background. Suffice it to say that I'd like to see companies do more extensive screenings on even their hourly employees then it is believed McCain did on Palin.

Some of that ink has also suggested a sex-based bias in the treatment of Governor Palin as a mom and the role that plays in her ability to effectively perform her job. Some conservative pundits have suggested a bias because no one is questioning Obama's ability to govern and be a father at the same time.

While this debate has a lot to say about sexual stereotypes and the treatment of parents in the workplace, I'd like to use this debate to illustrate another point. On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act ("GINA"). Among other provisions, GINA makes it illegal for employers to discriminate against any employee because of the employee's genetic information, or the genetic information of an employee's family members. While it may seem legitimate to question whether Sarah Palin has the time to take on the Vice Presidency and effectively parent a special needs child, GINA instructs that such considerations are illegal.

WIRTW #46

With Ohio's Healthy Families Act officially dead, attention turns to legislation on the federal level. It is safe to say that if Barack Obama is elected President, employment law in this country will see its biggest transformation since perhaps 1964. On the horizon are landmark pieces of legislation, including the federal Healthy Families Act, the Employee Free Choice Act, the ADA Restoration Act, the Civil Rights Act of 2008, and the Lilly Ledbetter Fair Pay Act. The ABA Journal Daily News and Human Resource Executive Online have the details.

Work Matters, a blog I recently discovered, has an interesting take on race in the workplace.

The Business of Management points out that it is generally a bad idea to notify employees about a lay off via email.

The Delaware Employment Law Blog reports on the 10 best excuses for being late to work.

The Evil HR Lady gives some tips on how to handle an employee who frequently skips out of work because of headaches.

The Labor and Employment Law blog lists 8 steps employers should take to comply with HIPAA.

Fair Labor Standards Act Law talks about Kimoto v. McDonald's Corp., in which a California federal court refused to certify a wage and hour class action.

Finally, Workplace Prof Blog gives its opinion on a 3rd Circuit case which held that a Spanish-speaking employee could be bound by an arbitration agreement written in English.

Ohio Chamber of Commerce announces victory on paid sick leave

The Ohio Chamber of Commerce has weighed in on the timely demise of the Healthy Families Act:

The Ohio Chamber of Commerce is pleased the mandated sick leave proposal will be pulled from the November ballot.  We appreciate the courage Governor Ted Strickland exhibited as he worked diligently to protect Ohio’s economy from this extremely costly proposal.  We applaud his leadership and the leadership of Senate President Bill Harris and House Speaker Jon Husted on this issue.  They truly understood how detrimental this mandate would be to our state’s economy and the ability to attract and retain the jobs Ohioans so desperately need.  Ohio employers have always provided good-paying jobs with excellent benefits.  With this issue behind them, they can now get back to the work of growing their businesses and creating jobs.

Meanwhile, SEIU District 1199, the measure's sponsor, has indicated that it pulled the issue from the ballot after Gov. Strickland and Sen. Sherrod Brown pledged their help in enacting the law on a federal scale. In other words, stay tuned in 2009 for the resumption of this battle on Capitol Hill.

Victory (for now): Healthy Families Act to be pulled from ballot

Rumors started circulating early this morning that the Governor finally succeeded in getting the Healthy Families Act pulled from the ballot. Now, we have formal confirmation, courtesy of the Columbus Dispatch:

Ohioans for Healthy Families, the group that backed the paid sick-day amendment, said today that it has asked that the proposal be pulled off the Nov. 4 ballot.

Officials with the Service Employees International Union were holding a press conference this morning with Gov. Ted Strickland and U.S. Sen. Sherrod Brown, D-Ohio, to announce the decision.

Strickland and Brown said they would push for a separate law requiring paid sick days.

The compromise almost certainly will be Sen. Brown pushing for similar legislation in the Senate. If Obama wins the election, it is guaranteed that we will see the Healthy Families Act, in some form, on a national level. More on this to come.

On a personal note, thank you Governor Strickland for standing up for Ohio's businesses and taking a position that might not be popular with your base, but is clearly in the best interest of Ohio.

Now, I have to go find something to do to fill all my time that's been taken up by this issue.

Be careful what you ask for

Non-competes are a curious breed. They are often used, but difficult to enforce. What's the harm in trying, you might ask? If an employee signs a non-competition agreement and goes to work for a competitor, why not roll the dice and see if you can extract your pound of flesh from the former employee and your rival?

U.S. Foodservice v Marzich (N.D. Ohio 9/2/08)* illustrates the dangers. As a result of U.S. Foodservices's attempt to enforce a non-compete agreement against former executives, it is now faced with an Opinion and Order from a federal court that its agreement is invalid as a matter of law:

The breadth of solicitation and confidentiality covenants certainly extend beyond the reach necessary for the protection of Foodservice's business interests and presents an undue hardship on the Former Employees in violation of Maryland's law on restrictive covenants.... The Agreement lacks the narrow tailoring necessary to merely prevent the Former Employees from trading on the goodwill they created while serving Foodservice customers. Rather, the restrictive covenants appear designed to prevent any kind of competition by the Former Employees, which is not a legally protected interest under Maryland law.... While Foodservice has a legitimate interest in protecting its customer relationships, it does not have a legitimate interest in limiting ordinary competition. By prohibiting the Former Employees from soliciting business, "directly or indirectly" from any "Persons" in the universe of "Customers" who have ever made "contact" with Foodservice, "whether or not these [contacts] resulted in sales," the Agreement prohibits the Former Employees from engaging in conduct that could only reasonably be construed as ordinary competition.

If the company cannot enforce a non-compete against former executives, who can it enforce it against? A national company with more than 27,000 employees is now faced with the prospect of having an agreement that it can never enforce against anyone. For current employees, it will have to go back to the drawing board. For former employees, in the words of one of my former law professors, it's too bad, so sad, hard cheese.

This case certainly gives companies something to consider the next time an employee goes to work for a competitor.

*Full disclosure: KJK represents the defendants.