'Tis better to be in federal court after all

I don't think I'm giving away any state secrets of the defense bar by saying that all told, employers would much rather be in federal court than state court. Federal court gives a better jury pool and a much better chance that a summary judgment motion will be granted. Now, a study commissioned by the American Constitution Society confirms this long held belief. According to the study, which was based on data from 1979 to 2006, plaintiffs who brought employment discrimination suits in federal district courts prevailed only 15 percent of the time, compared to 51 percent for non-employment related cases. Some other key numbers from the study:

• The filing of employment cases in federal court has dropped by 37% from 1999 to 2007.
• The courts of appeals reverse 41% of plaintiffs' victories in employment cases.
• The same courts of appeals only reverse 8.7% of defendants' victories in employment cases.

While comparable state court data is not available, it does not take a huge leap of logic to conclude that federal filings are down 37% because more cases are being filed in state court.

This study is not necessarily groundbreaking news, but it does underscore the importance of forum selection in an employment lawsuit, and the real value to a company to have its case heard in federal court.

[Hat tip: Legal Blog Watch]

WIRTW #48

The news cycle this month has certainly been interesting. I can't recall when 3 huge stories dominated in such rapid succession. We started with Sarah Palin, moved onto Ike, and now we're inundated with economic doom and gloom. I'm starting this week's review with the latter. The Labor and Employment Law blog discusses a recent survey that asked employees what they are most worried about. It makes for an interesting read, and gives companies some insight on what issues are important to their employees.

Of course, the election is always newsworthy these days. COSE Mindspring asks if presidential politics and office politics can co-exist. Rush on Business reports on a summary prepared about the presidential candidates' positions on small business issues.

In light of the upcoming season premier of The Office, That's What She Said reminds employers that now is as good a time as any to review personnel policies.

World of Work reports on a recent 6th Circuit case that I missed, in which the court held that a company's failure to reasonably accommodate an employee's disability supported the employee's constructive discharge claim.

The Manpower Employment Blawg gives 10 great tips for testifying in court or a deposition.

The Delaware Employment Law Blog discusses a topic I touched on yesterday, the inherent dangers in making deductions from employees' paychecks.

Finally, Workplace Privacy Counsel lets us know that web-surfing at work is becoming more acceptable.

A primer on intermittent FMLA leave

Is there anything more frustrating for HR professionals than intermittent leave under the FMLA? While I can't ease that frustration, I can provide short primer on the rules of games that must be followed.

What is intermittent leave and when does it have to be provided?

The FMLA provides that leave may be taken "intermittently" in the following circumstances:

• When medically necessary for planned or unanticipated medical
  treatment of a serious health condition.
• For recovery from treatment of a serious health condition.
• For recovery from a serious health condition.
• To provide care or psychological comfort to an immediate family member with a serious health condition.

Examples of intermittent leave include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy.

Treatment by a health care provider is not necessary if the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition.

Intermittent leave is not available after the birth or placement of a child for adoption or foster care, unless the employer agrees. A pregnant employee, however, is allowed to take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness.

May an employer transfer an employee to an "alternative position" to accommodate intermittent leave?

The short answer is yes, if the intermittent leave is foreseeable based on planned medical treatment for the employee or a family member. The alternate position must have equivalent pay and benefits, but not necessarily equivalent duties. The employer may increase the pay and benefits of an existing alternative position to make it equivalent, or may transfer the employee to a part-time job with the same pay and benefits. When the employee no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he/she left when the leave began.

It should go without saying that retaliation is still illegal, and an employer cannot transfer an employee as a means to discourage the taking of intermittent leave.

How is intermittent leave calculated?

Only the amount of leave actually taken may be counted toward
the 12-week FMLA entitlement. For example, a full-time employee working five days a week, one day off would equal 1/5 of a week of FMLA leave.

If an employee works part-time or a variable schedule, the amount of leave is determined  on a pro rata basis by comparing the new schedule with the employee's normal schedule. For example, if an employee who normally works 30 hours per week works only 20 hours a week, the employee's ten hours of leave would constitute one-third of a week of FMLA leave for each week the employee works the new schedule.

If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period would be used for calculating the employee's normal workweek.

An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave, provided it is at least one hour. Thus, if a payroll system only tracks time in whole days, that company will have to figure out a way to track intermittent leave by the hour.

May an employer deduct hourly amounts from an employee's salary for intermittent leave taken?

Again, the short answer is yes, but with a huge caveat. Any such deductions to the salary of an exempt employee will severely jeopardize that employee's exemption. Companies must take extreme care in making any deductions from the salaries of exempt employees.

UPDATE: House passes ADA Amendment Act; President expected to sign shortly

The Connecticut Employment Law Blog and World of Work have the details.

For my earlier thoughts on these amendments, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

The Ohio Healthy Families Act is dead, but what's next?

Aside from being key battleground states in the 2008 election, Ohio and Colorado have another similarity, one to which employers in our state should pay attention.

In 2006, both states' voters passed ballot initiatives that amended their respective state constitutions to provide for a higher minimum wage. Why, you might be asking, should Ohio businesses care about what Colorado voters did two year ago? Because both minimum wage ballot initiatives were union-backed, as was the Healthy Families Act, and as are four different measures on Colorado's ballot this fall that should have businesses scared for their lives. According to Business Insurance, Colorado employers are fighting four proposed constitutional amendments on November's ballot that would devastate businesses in that state, by:

• Eliminating "at will" employment and requiring private employers to have a "just cause" with supporting documentation before terminating employees.
• Mandating that all companies with 20 or more employees provide health insurance for workers and dependents.
• Removing workers compensation's "exclusive remedy" provision, and permitting injured workers to collect workers comp benefits and sue their employer.
• Holding corporate officials criminally liable for illegal company activities.

Ohio businesses quickly mobilized against the Healthy Families Act, and should be commended for their efforts to defeat it. Imagine, however, the devastating cumulative effect of no more at-will employment, mandatory health insurance, and private lawsuits for workplace injuries. Companies need to stay vigilant in their efforts to keep Ohio business-friendly, and combat the type of job-killing ballot initiatives that labor organizations are testing in Colorado. Do not think for a second that if one or more of these Colorado initiatives are successful that we won't see some combination of them in 2010.

As long as labor organization can place transparently populist anti-business measures on the ballot via petition drives, we need to be mindful of what is happening in Colorado and fearful that it will come our way in the next election cycle.

Do you need to control employee blogging?

Washington Redskins Tight End Chris Cooley apparently (and accidentally) posted pictures from the team's playbook on his blog. The Washington Post quotes Skins Head Coach Jim Zorn:

It "is quite interesting, I think for all coaches in today's technology-sound world," Zorn said. "At any level, not only the NFL level, but at any level there's MySpace, Facebook, there's blogging. I just think it's something that most coaches have never had to deal with or have dealt with. This will be my first experience. There's no rules, there's no laws.

"I think the rule of thumb that I'm going to have to contend with here is that if you have your own blog, and you're putting photos or you're even saying anything, that nothing really should be put in there that has Redskins playbook [on it]. That goes without saying. I think Chris used a little bit of poor discretion using that type of prop, if you will."

As this story illustrates, you can't always trust good intentioned employees to use good judgment, never mind disgruntled employees who want to harm your business. Coach Zorn says that there are no rules, but that does not have to be the case in your organization.

Companies should consider accounting for employee blogs and other social media in overall technology use policies. Do you want employees to blog at all? If not, say so in a policy. If so, consider implementing clear guidelines employees can follow about what they are and are permitted to say.

I also recommend taking a look at Dan Schwartz's (of the Connecticut Employment Law Blog) five tips for drafting a corporate blogging policy:

1. Employees can be instructed that they should not comment or use any confidential information about the company or discuss internal matters. (Whether the employee should be allowed to identify the employer is a business decision for the company.) 
2. Employees should be told that blogs should be done during non-working hours and not using Company resources, unless authorized by the company.
3. Employees should be told that the blog should have appropriate disclaimers that indicate that all views on the blog are those of the individual and have not been reviewed or approved by the [company].
4. Employees should be told that the blog should not imply sponsorship, endorsement or support by the company, nor should the blog use any logos or trademarks of the company.
5. Employees should be instructed that the blogs should not be libelous or defamatory, and that the blogs should avoid being written in a way in which it could be construed as harassing or discriminatory on the basis of a protected category.

Without some clear guidelines in place, employees don't know what's permissible and what's not, and like Coach Zorn, employers feel like they don't have and rules to fall back on. Common sense simply doesn't always work.

Senate unanimously passes amendments to ADA

Last week, the Senate unanimously passed the ADA Amendments Act (S. 3406). It is similar to the bill the House passed 402-17 earlier this year. Given this widespread bipartisan support, it is likely that we might see the first Democratically-driven employment law changes before President Bush leaves office. By doing so, this President Bush would expand upon the law first enacted by his father in 1990.

The highlights of the bill defines "substantially limits" to mean "materially restricts," it specifies examples of major life activities, and expands upon them to include major bodily functions, and helps employers by exempting from "regarded as" claims transitory or minor impairments that last or are expected to last for 6 months or less.

The biggest changes, though, will come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. If this bill becomes law, it will reverse that ruling, and require the determination of whether an impairment substantially limits a major life activity to be made without regard to the ameliorative effects of mitigating measures.

[Hat tip: Workplace Horizons]