Do you know? Breastfeeding at work

Today, I start what will become a weekly feature, which I am calling, “Do you know?” I have a lot of different sources from where I get ideas – recent cases, newspaper articles, other blogs, search terms, or something else that happened to catch my eye. Often, I use one of these sources to give people some general information about a specific area of employment law. For example, take a look at recent posts on FMLA intermittent leave, or meal and rest breaks under the FLSA.

Starting today, and hopefully every Tuesday from now on, I’m going to be presenting a general refresher on a different topic. Today’s topic: breastfeeding employees.

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Did you know? Ohio has one of the most liberal breastfeeding laws in the country. R.C. 3781.55 provides:

A mother is entitled to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted. “Place of public accommodation” has the same meaning as in section 4112.01 of the Revised Code.

In April 2007, the Ohio Civil Rights Commission issued its first probable cause finding under this statute, against a fitness club that prohibited a member from breast-feeding her 6-month-old son in its daycare area.

Does this provision prohibit an employer from stopping a lactating employee from taking time out of her day to nurse or pump. Under 3781.55, the question hinges on the definition of a “public accommodation.” A “place of public accommodation” is any “inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.” This provision typically covers public areas that have to be accessible to the disabled. Because private work areas are not generally open to the public, this provision typically does not apply to employees. So, although there are cases on this issue, my best guess is that 3781.55 does not apply to the employer/employee relationship.

Just because 3781.55 might not protect a mother’s right to nurse at work does not mean that a company should immediately prohibit the activity. To the contrary, a company has to take a look at its other similar policies. A no-breast-feeding policy will, by its very nature, only apply to women. What other similar policies might a company have? Does it allow bathroom breaks during the work day? Smoke breaks? Other personal time? If so, a ban on nursing during the work day very well might be deemed discriminatory on its face, because it is necessarily targeted only at women. In other words, before you discipline that employee for taking break to pump, stop and think whether you want to risk the likely lawsuit and the bad publicity that will probably go along with it.

Spurned employee loses retaliation lawsuit for lack of protected activity

Alshafi Tate cleaned offices for Executive Management Services. He also had a year-long sexual relationship with his supervisor, Dawn Burban. Indeed, according to Tate, he and Burban had consensual sex two or three times per week, sometimes at work and other times at the home of a co-worker.(1) Tate decided to end the relationship after he got married, but Burban would repeatedly call his home, and would tell him that if the relationship ended, he would lose his job. When Tate rejected her ultimatum, Burban instigated an altercation that ultimately led to his termination for insubordination.

Tate sued the company for sexual harassment and retaliation. A jury found against Tate on the harassment claim, but in his favor on the retaliation claim. Despite the favorable verdict on the retaliation claim, the jury awarded him $0 in compensatory damages. The judge later awarded him $7,830 in back pay, and his lawyers $65,129.39 in fees and costs.

EMS appealed the verdict on the retaliation claim. In Tate v. Executive Mgmt. Servs., Inc. (7th Cir. 10/10/08), the 7th Circuit reversed the verdict on the retaliation claim, finding that Tate had not engaged in a protected activity:

In order to engage in protected conduct, Tate only has to show that he reasonably believed in good faith the practice he opposed violated Title VII. ...

Even if we assume, for purposes of argument, that there may be circumstances in which a person who rejects his supervisor's sexual advances has engaged in a protected activity, Tate has not shown that he "reasonably believed in good faith the practice [he] opposed violated Title VII." ... There is simply no evidence in the record that Tate believed that Burban's actions were unlawful. In fact, the only statements that Tate made to Burban were that they "were not good with each other" and he "was not messing with her anymore," statements which do not indicate that Tate believed he was being sexually harassed. ...

We do not dispute that Tate protested about Burban's behavior; the problem is that he did not necessarily believe that her behavior was illegal at the time. ...

The Court dodged the real issue - whether a person who rejects a supervisor’s sexual advances has engaged in a protected activity. More often than not, I think they would be.

This case, however, points out the importance of character in employment cases. An employment lawsuit often is a morality play, and the judge and jury will determine the case on the character of the actors. Did the employee perform worthy of keeping his or her job? Did they employee behave as the jurors would have in his or her situation? Did the employer treat the employee fairly? Did the employer treat the employee as the jurors would have liked to be treated?

In this case, there is little doubt that the jurors punished Tate for what it perceived as amoral behavior. He slept with his boss, cheated on his wife, and then sued only when it backfired on him. He was not a sympathetic character to whom the jury could relate. While the jury may have believed that the employer did not fairly treat him, they were more put off by Tate's own misconduct. Thus, the zero dollar verdict, and the appellate opinion that skirted the real issue.

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(1) I'm reminded of the following exchange from the Seinfeld episode, The Red Dot:

Mr. Lippman: It's come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
George: Who said that?
Mr. Lippman: She did.
George: Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon... you know, cause I've worked in a lot of offices, and I tell you, people do that all the time.

WIRTW #51

It's impossible to escape news about the economy. The Connecticut Employment Law Blog lists 5 laws employers should be thinking about in today's economy. Meanwhile, Know HR lists 5 things employers should be telling their employees about their 401(K)s.

I've written previously on the ADA Amendments Act. Overlawyered discusses one attorney's argument that under the new ADA amendments, "being male" might qualify as a protected disability. Let me be the first to say that I'll eat my hat if any court ever says that my maleness qualifies as a disability.

The Delaware Employment Law Blog instructs on the handling of permanent replacement employees during a labor strike.

The Workplace Prof Blog discusses oral argument in a 3rd Circuit case on the issue of gender stereotyping under Title VII versus sexual orientation discrimination. The male plaintiff, who by all accounts acted very effeminate, argued that he was discriminated against because he did not conform to his co-workers' sexual stereotypes. The district court dismissed his sexual harassment claim because discrimination on the basis of sexual orientation is not unlawful. The appellate court will decide whether anti-gay discrimination is more based on sexual orientation or gender stereotyping. For my thoughts on this issue, see D.C. Court rules in favor of transgendered job applicant.

Work Matters argues that women should stop taking advantage of their sexuality by making bogus harassment claims to take revenge on men that had jilted them.

George's Employment Blawg talks about the importance of defining the terms of an independent contractor arrangement in a written agreement. I've also written before on this issue.

HRWorld writes on working through cancer.

The Privacy Law Blog reports on a 3rd Circuit decision which held that it was illegal for a labor union to access driver records for union organizing purposes.

Next week we'll celebrate the 1 year anniversary of this column, and announce a new weekly feature that will be joining the blog.

Supreme Court hears oral argument in Crawford v. Nashville - asks whether participating in an investigation equal protected activity

The Supreme Court started its term this week, and wasted no time hearing its first employment case. Yesterday it heard oral argument in Crawford v. Metropolitan Government of Nashville, which is out of the 6th Circuit. Crawford asks if Title VII's anti-retaliation provision protects an employee from being fired because she cooperated with her employer's internal sexual harassment investigation.

Vicki Crawford was terminated after she participated in an internal investigation of a sexual harassment claim made by a co-worker. The 6th Circuit held that her employer had no retaliated against her because participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity. The Court reasoned that a contrary result would chill employers' investigations because they would not interview witnesses for fear of potential retaliation liability. Crawford, not surprisingly, has argued the converse, that employees will likely avoid aiding employers with internal investigations if they believe they can be fired for do so, which will chill the investigations.

The Workplace Prof Blog has a thorough analysis of the oral argument. The Justices' questioning seems to indicate that case can go either way. The Justices were clearly bothered by a couple of things. First, the opposition clause would only protect those who take the employee's side, and not those that might support the employer. Practically, this should be a non-issue because those employees that support the employer should not have to fear retaliation. Secondly, the Justices expressed a real fear about opening the floodgates to federal court with a slew of retaliation claims based on purely internal investigations.

It is here that I agree with Professor McCormick from the Workplace Prof Blog. Ultimately, this is a policy driven, and not statutory driven, case. It should come down to whether five of the Justices value protecting the sanctity of internal workplace investigations. It seems that the employee has the better of the argument. Employees already perceive that they can be fired if the company doesn't like what they have to say. As one who's done his fair share of internal investigations, take it from me that it's hard enough as is to get employees to voluntarily cooperate. Assurances of no-retaliation are usually necessary to get them to open up, if at all. A ruling for the employer in this case would make internal investigations all that much harder to conduct. Because internal investigations are essential to our harassment jurisprudence, the Court would be sending the wrong message by coming down on the employer's side in this case.

A call for the reform of ballot measures

It's so nice when labor and business gets together to make a common sense decision for the betterment of all. Last month, Ohio's labor unions and business organizations compromised on the removal of the Healthy Families Act from November's ballot. Now, Colorado's unions and employers have done the same on its four controversial ballot measures.
The Denver Post reports that labor and management have reached an accord that will remove the following four issues from its ballot:

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

Look, these ballot initiatives are scary. In Ohio, one labor organization only needed 250,000 signatures to place the populist, yet very dangerous, Healthy Families Act on the ballot. A system that can be so easily hijacked by special interests looking to push an agenda needs to be fixed. Supposedly, we elect legislators to enact, and a governor to sign or veto, legislation. They are supposed to speak as the collective majority will of the electorate. Yet, the legislature and the governor would have had no say-so if 50% plus 1 voted in favor of the Healthy Families Act.
One possible fix is a super-majority (60%?) to pass a ballot initiative. Another is to require many more signatures than the relatively small number that currently suffices. A third option is to eliminate ballot initiatives altogether. On balance, the super-majority option seems to makes the most sense - it preserves the sanctity of our separation of powers, allows the populace to still have a direct say on issues they it deems to be of great importance, and limits the ability of dangerous laws to play to populist sentiments.
This change is necessary to protect our state's economy from what is coming down the pike in two years when labor unions begin gathering signatures for the next anti-business ballot measures, such as those that were recently removed in Colorado.

Determining the 12-month period for FMLA leave

The FMLA allows eligible employees to take 12 weeks of unpaid leave during any 12-month period. Don't assume, however, that the FMLA's 12-month period equates to a calendar year. In fact, the FMLA allows employers to choose from four different methods of calculating the 12-month period:

1. The calendar year.
2. Any fixed 12-month "leave year," such as a fiscal year, a year
   required by State law, or a year starting on an employee's
   anniversary date.
3. The 12-month period measured forward from the date any
   employee's first FMLA leave begins.
4. A "rolling" 12-month period measured backward from the date an
   employee uses any FMLA leave.

Employers are free to choose any one of these four methods, as long as the choice is applied consistently and uniformly to all employees. Once a company picks one, it cannot change to another without first giving all employees at least 60 days notice, and only if the change does not cause any employees to lose any leave time.

There are pluses and minuses to each of these options. The first two  options are definitely the easiest to administer. However, they could allow for employees' double-dipping. An employee with a serious health condition could take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year (provided the employee recertifies the need for the leave). The same 24-week problem could impact option three.

Under option four, each time an employee takes FMLA leave the remaining leave entitlement would equal any balance of the 12 weeks that had not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1, the employee would not be entitled to any additional leave until February 1 of the next year. However, beginning on the next February 1, the employee would only be entitled to four weeks of leave, with an additional four to accrue on June 1. and then again on December 1. This method offers employers the most flexibility, but is clearly the most difficult to administer and track.

Importantly, you have to designate one of these options. If an employer fails to do so, a court will apply the option that provides the most beneficial outcome for the employee.

Intermittent leave allows for recertification of the serious health condition each year

Let's say you have an employee who suffers from chronic migraine headaches. She applies and is approved for intermittent FMLA leave on September 24. Your company uses the calendar year to calculate FMLA eligibility benefits. During her period of intermittent leave, her condition worsens and she takes an extended period off, which lasts into the beginning of the next calendar year. Because you assume that FMLA eligibility cannot carry over from one year to the next, you ask the employee to recertify her need for FMLA leave as of January 1. When she fails to do so, you begin counting her absences as unexcused, and ultimately terminate her for excessive absences.

When the inevitable lawsuit is filed, are you correct that FMLA eligibility expires at the end of the FMLA year? Can you require the employee to recertify the need for the leave at the beginning of the next FMLA year, and legally deny further leave if she fails to do so? According to the 6th Circuit in Davis v. Michigan Bell Tel. Co. (9/29/08), the answer is yes:

[A] series of absences, separated by days during which the employee is at work, but all of which are taken for the same medical reason, subject to the same notice, and taken during the same twelve-month period, comprises one period of intermittent leave. That leave, however, can only extend to the end of the twelve-month FMLA period in which it began. Once a new twelve-month FMLA period begins, any additional absences caused by that same chronic condition would constitute a new period of intermittent FMLA leave. Otherwise, there would be no point at which the initial period of intermittent FMLA leave ended and a new period commenced. Under that scenario, employees would never have to reestablish their eligibility for FMLA leave and would therefore be perpetually entitled to twelve weeks of FMLA leave per year based on a single eligibility determination. (internal quotations and citations omitted).

Thus, absences caused by the same chronic condition, but occurring in different twelve-month FMLA periods, constitute different periods of FMLA leave. If a company has an employee with a chronic condition that spans two years, it can legally re-determine the employee's FMLA eligibility at the beginning of each leave year, according to the Davis opinion.

This opinion has significant implications on how an employer chooses to calculate the FMLA leave year, an issue we'll look at tomorrow.