President Obama

A lot of ink has been spilled already, with tons more to come, about just how truly historic last night was. Given our country’s history, one cannot overstate the importance of the first African-American President. When you drill down a little deeper, however, President Obama will serve as a symbol of something potentially deeper. Will President Obama mean the end of affirmative action? Consider what happened. An African-American man, raised by a single mother, succeeded to the most important position in the world. Is it still credible for minorities to say that historic racism and biases makes it impossible for them to compete for jobs, and that the playing field needs to be leveled by quotas and preferences? Last night may prove to be the final leveling of the playing field and the functional end of affirmative action.

Only time will tell if we truly find ourselves in a post-racial era. What we know as we wake up this morning and start to absorb what happened yesterday is that if have not reached that mark, we have taken a giant step in its direction.

Do you know? The Pregnancy Discrimination Act at 30

Do you know? The Pregnancy Discrimination Act turned 30 years old last week. The PDA outlawed employment discrimination on the basis of “pregnancy, childbirth, or related medical conditions” as unlawful sex discrimination. It does not require that employers give pregnant women preferential treatment (that, after all, would discriminate against men), but it does mandate that pregnant women be treated as would any employee with a similarly disabling temporary condition. Yet, despite being ingrained into our way of thinking that pregnancy discrimination is wrong, the number of claims filed with the EEOC continue to rise. In 2007, pregnancy discrimination filings with the EEOC hit an all-time high of 5,587 (source: Time Magazine).

According to a study published by the National Partnership for Women & Families, the number of claims might actually be higher, as women may under-report pregnancy discrimination out of fear of causing long-term career damage. Who knows if this conjecture is true. What is true, however, is that employees, regardless of gender, have the right to have a career and a family and not be punished for the choice. The sooner businesses recognize this undercurrent of potential bias the sooner they can put measures in place to prevent pregnancy discrimination from becoming a potential problem area.

Court sanctions employee for perjury

I can’t tell you how many times I’ve had a client ask me, “I thought perjury is illegal. How can she lie during her deposition like that?” Well, perjury is illegal, but unless your name is Barry Bonds, it’s a crime that is usually not worth the scarce governmental resources it takes to prosecute it. Negrete v. Nat’l Railroad Pass (7th Cir. 10/27/08), decided last week by the 7th Circuit, illustrates that dishonest conduct in litigation has real implications.

In Negrete, the 7th Circuit affirmed the trial court’s dismissal of an employee’s workplace injury claim because he had missed repeated discovery deadlines, hidden and tampered with evidence, and lied in his deposition. Negrete was a former track repair worker for Amtrak. After the hurt his back at work, he claimed that the injury had left him permanently disabled and unable to work. The two key issues in the case were how badly Negrete was injured, and whether he was still able to work.

Negrete’s missteps included:

• Producing only 12 pages out of a 236-page medical report, which omitted a key medical opinion that he was able to work.
• Turning over documents that appeared to have been tampered with.
• Lying about his current sources of income.
• Lying about the extent of physical labor he performed on owned rental property.

Based on this misconduct, the Court concluded as follows:

True, Negrete often produced documents directly contradicting his deposition testimony, but that does not prove, as his lawyer claims, that his false testimony was inadvertent; it shows only that Negrete is a poor liar. Given Negrete’s repeated misconduct, it would have been hard to reach any conclusion other than that he was acting in bad faith.

Negrete also argues that the sanction of dismissal was too harsh because he is uneducated and lied only about collateral issues. But Negrete’s misconduct related to the most important issues of the case—how badly he was injured and whether he was able to work. And although Negrete may not be well educated, it does not take a graduate degree to understand that it is unacceptable to hide evidence and lie in a deposition.

This case should serve as a warning to all litigants, plaintiffs and defendants, that judges’ tolerance for shenanigans and dishonesty in discovery is getting lower and lower. Hiding evidence and lying will never help a case. Credibility is everything with judges and juries. One of our jobs as lawyers is to spin bad facts in the best light for our clients. We cannot do that, however, unless all of the facts are out on the table.

WIRTW #54

As I celebrate the Phillies first World Series title in 28 years, and Philly’s first title in any of the major sports in 25 years (believe it or not, the Phillies, Eagles, 76ers, and Flyers played a combined 9,029 games without producing a championship until Wednesday), we move our attention to more mundane issues, like next week’s Presidential election. Given the lack of media coverage over the last few months, I’m sure November 4 has snuck up everyone. So, I’ll try to catch everyone up on the labor and employment implications of next week’s vote:

• The Word on Employment Law with John Phillips gives us one last look at where the candidates stand on various pieces of legislation that impact employers.

• The HR Capitalist focuses on one key issue likely to be taken up by Congress early in 2009, the Employee Free Choice Act, and gleans some lessons from converse legislation in England three decades ago.

• The Workplace Prof Blog gives its take on politicking by employers, captive audience meetings for employees warning about the dangers of an Obama administration and how it could cause more economic pain by making it easier for unions to organize.

BLR’s HR Daily Advisor reminds everyone that it is fairness, and not the technical ins and outs of the law, that matters most to employees and juries.

On an issue I’ve spent some time discussing this week already, Law.com clues everyone in that the time is nearing to re-learn the ADA.

Fair Labor Standards Act Law addresses a very interesting issue, whether time waiting for a computer to boot at the beginning of the work day in considered “hours worked” under the FMLA.

The Connecticut Employment Law Blog asks what happened to the flood of ERISA fiduciary litigation that was supposed to come in the wake of Larue v. Wolff.

The Labor & Employment Law Blog reports that the Department of Homeland Security has reissued its final rule on the No-Match Safe Harbor Regulations. Recall that it was first issued last summer, and enjoined by the 9th Circuit. The rules have been in limbo since, and the new rules aim to address the 9th Circuit’s concerns.

The Federal Civil Practice Bulletin examines a decision that denied a motion to dismiss in a Title VII racial harassment case.

Will end this week with a little humor – HR World presents the annual list of the best employee excuses for missing work. The best, in my humble opinion:

• Employee said he had a heart attack early that morning, but that he was “all better now.”
• Employee was kicked by a deer (better not to ask for details).
• Employee contracted mono after kissing a mailroom intern at the company holiday party and suggested the company post some sort of notice to warn others who may have kissed him.
• Employee’s wife burned all his clothes and he had nothing to wear to work.
• Employee was up all night because the police were investigating the death of someone discovered behind her house.
• Employee’s psychic told her to stay home.

More on smoking as a disability

In commenting on my post on workplace smoking bans from earlier this week, Michael Moore at the Pennsylvania Employment Law Blog suggests that that the recent ADA Amendment Act (ADAAA) could make nicotine addiction a protected disability.

The recent ADA amendments significantly change the statutory definition of “disability.” In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity must be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of “disability.” The ADAAA expressly reverses that ruling by requiring the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures. Thus, when the amendments go into effect on January 1, 2009, a diabetic will be “disabled” under the ADA whether or not insulin is used to control the diabetes.

Michael argues:

The Americans with Disabilities Act was recently amended to expand the definition of “disability” to the point that it may encompass nicotine addiction. The few ADA cases on “smoking” as a disability have not recognized a claim based on the pre-amendment definition of disability. However, the rationale for denying disability status to “smoking” or “nicotine addiction” is squarely predicated on the remedial nature of the condition exempting it from coverage of the ADA as expounded in Sutton v. United Airlines, Inc. The ADA Amendments expressly abrogated Sutton.

Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.

I recognize that the ADAAA is going to expand the protections of the ADA beyond the scope of where courts have taken it in recent years. I do not believe, however, as some have argued, that it has been taken so far to encompass things such as nicotine addiction. We will have to take a wait-and-see approach on the post-amendment scope of ADA until courts start weighing in on exactly how broad the definition of “disability” has become. I stand by my earlier prediction, though, that smoking is not a protected disability under the ADA, a classification that should not change after January 1.

New FMLA regulations are on their way

On October 20, the Department of Labor forwarded its final draft of new Family and Medical Leave Act regulations to the Office of Management and Budget for its review. The OMB’s review process could take up to a month, and the OMB is expected to publish the new regulations some time in November.

In February 2008, the DOL proposed new FMLA regulations. It also asked for public comment. It is unknown what comments were received, and what changes, if any, were made to the proposed regulations as a result.

What we do know is that the proposed regulations suggested the following 12 key changes:

Changes to improve employers’ ability to plan and schedule around FMLA leaves:

1. An employee simply calling in sick does would no longer suffice as a request for FMLA leave. This change will greatly improve employers’ ability to plan and schedule around employees’ medical leaves.

2. Employers would be given greater latitude to deny a request for foreseeable leave if an employee do not provide sufficient notice.

3. An employee on intermittent leave for a chronic serious health condition would need to follow an employer’s standard call-in procedures for unscheduled absences. The employee would no longer be able to use intermittent leave and designate it as such after the fact.

Changes to the medical certification process:

4. The current process of employer conditionally designating FMLA leave as such pending the receipt of medical certification would be abolished. Instead, an employer would first advise an employee of his or her general eligibility for FMLA leave, and only approve the leave as FMLA-qualifying after the employee submits all of the required paperwork, including the medical certifications. This is one instance where bifurcating a process into two steps actually simplifies it.

5. Employers would be given more time to issue FMLA notices – five days instead of two – to employees requesting FMLA leave.

6. The DOL’s current medical certification forms would be revised.

7. Employers would be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of once.

8. Employers would be permitted to contact an employee’s healthcare provider directly to seek clarification or additional information about a medical certification, and would no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee’s doctor. While this change may have some effect on employee privacy, it will greatly improve the flow of information and streamline the ability of employers to make proper decisions based on full and complete medical information. This rule will also eliminate the expense and burden of companies having to retain their own doctors simply to ensure that a form is properly filled out.

9. Healthcare providers would be able to provide information on the diagnosis of the employee’s health condition on medical certification forms.

Changes to the meaning of “serious health condition”:

10. The meaning of “continuing treatment” under the definition of a serious health condition would be changed to specify that the two required visits to a healthcare provider must occur within 30 days of the beginning of the period of incapacity.

Other changes:

11. Employees would have a five-year cap on years of service for FMLA eligibility. This change would eliminate the problem of an employee working for a company for six months, leaving, returning 10 years later, and qualifying for FMLA leave after another six months of employment.

12. For employees that also qualify as disabled under the ADA, employers would be able to suggest reasonable accommodations that could preclude the need for FMLA leave without violating the FMLA.

I’ll have more on these new regulations, including which of the above changes made the final cut, when they are published in final form.

[Hat tip: BLR, c/o The FMLA Blog]

Do you know? Time off to vote on election day

Do you know? Ohio law requires that employers provide all employees a reasonable amount of time off to vote on election day. According to O.R.C. 3599.06:

No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.

The time off does not have to be paid, but companies should be wary of docking salaried employees.

Next Tuesday is election day. Voter turnout is expected to reach an all-time high. Don’t make the mistake of disciplining employees if they arrive late, leave early, or take a long lunch because they are exercising their right to vote.