Ohio Employer Law Blog

Tuesday, September 3, 2013

FMLA now covers same-sex spouses (sort of)

Ever since the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor, there has been a lot of hand-wringing over what the decision actually means and its impact on our employment laws.

Windsor held that DOMA’s interpretation of “marriage” and “spouse” to apply only to heterosexual unions is unconstitutional. Because this decision is limited to one provision of one federal statute, many have wondered how it will be applied to private insurance plans, and to other federal statutes, such as the FMLA.

Last month, we started to get an answer.

The Department of Labor’s Wage and Hour Division amended its Fact Sheet 28F, entitled Qualifying Reasons for Leave under the Family and Medical Leave Act. As best as I can tell, the DOL amended the Fact Sheet to make one material change — to add “same-sex” marriage to the definition of spouse. Thus, according to the DOL’s definition of “spouse,” an otherwise eligible employee of a covered employer is now entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.

It is important to note that this Fact Sheet is not the law. It is not part of the text of the FMLA, or even part of the DOL’s regulatory interpretation. It is merely the agency’s informational interpretation of the statute in light of Windsor.

Because courts do not have to accept this Fact Sheet as gospel on the meaning of “spouse” under the FMLA, neither should employers. It is an important first step, however, in the evolution of this issue and the development of same-sex leave rights under the FMLA.

While this issue develops in the DOL and the courts, employers need to remember that the FMLA is a floor, not a ceiling. Employers are free to provide leave of absence rights greater than the baseline the FMLA requires. Thus, employers that want to extend leave of absence rights, and other rights (such as benefits or employment-discrimination protections), to same-sex couples, need not wait for a legislative blessing. They were free to do so before the Windsor decision, and remain free to do so now. This Fact Sheet, however, signals that we are thankfully moving down a path to where someday, thankfully, this issue will no longer be open to debate or discussion.

Friday, August 30, 2013

WIRTW #286 (the “save me, San Francisco” edition)

If money was endless, and I wouldn’t miss my kids, I’d never come back… Enjoy your holiday weekend. I know I’ll be enjoying mine.

Here’s the rest of what I read this week:

Discrimination

The Times Says “Most Lawyers” Won’t Take Age Discrimination Cases Anymore. Really? — from Dan Schwartz’s Connecticut Employment Law Blog
Victimless Harassment? — from Workplace Prof Blog
Paula Deen Case Ends with a Whimper — from Phil Miles’s Lawffice Space
Employee Who Left Drug Rehab Not Entitled to ADA, FMLA Protections — from Smart HR Manager
Louisiana Federal Court Denies EEOC’s Request To Put Punitive Damage Cart Before the Compensatory Damage Horse — from EEOC Year-End Countdown

Social Media & Workplace Technology

Decision Shines Light on How Not to Investigate Employees Online — from Workplace Privacy Counsel
Infographic Explores BYOD Pros and Cons — from HR Daily Advisor
Three Important issues about your BYOD policy — from Mike Haberman’s Omega HR Solutions

HR & Employee Relations

The WWE’s Triple H on Moving Into Management: Your Company and Wrestling are the Same — from The HR Capitalist
John Deere in Trade Secrets Dispute with Former Factory General Manager — from Trade Secrets Blog
Noncompete Agreements – More Harm than Good? — from Texas Employment Law Blog
You Say Let’s Talk Severance/Your Employer Hears I Quit — from Donna Ballman’s Screw You Guys, I’m Going Home
Sudden severance switch raises bias red flags — from Business Management Daily
Employers Should Confront Threats Of Workplace Violence — from Washington Workplace Law
Eradicating Workplace Bullying through Policies and Training — from i-Sight Investigation Software Blog

Wage & Hour

Working for Nothing — from The New York Times
DOL offers the definitive word on FMLA and same-sex marriage. Kinda sorta. — from Eric Meyer’s The Employer Handbook Blog
Ohio Court Finds FMLA Is Subject to Arbitration Agreement — from Employment Essentials
The Dangers Lurking in the Treacherous Waters of FMLA Intermittent Leave Strike Again — from Labor & Employment Law Perspectives

Labor Relations

Twelve arrested in protest of Walmart firings and retaliation against activists — from Workplace Fairness
NFLPA Goes To Bat For Aaron Hernandez's Unpaid Bonus — from Deadspin
4th Circuit Revives “Sham Litigation” Suit Against UFCW — from Labor Relations Today

Until next week…

Thursday, August 29, 2013

Happy 10th Anniversary to my best friend

Ten years ago today, I married my best friend. To celebrate, enjoy this “greatest hit” from the archives — Accommodating religions starts at home (a love story).

Wednesday, August 28, 2013

Private eyes, they’re watching you…

No one likes the idea of a workplace in which managers keep a constant eye on employees. Workers find it creepy, and it’s not as if ambitious managers clawed their way up the ladder just to snoop on their underlings all day. Still, much of the surveillance now takes place electronically—in theory, freeing bosses to focus on other matters while monitoring software keeps everyone in line. So office spying isn’t going away.

So says this article on Businessweek.com, which nevertheless concludes that “electronic surveillance in the workplace is strikingly effective,” citing a survey [pdf] jointly conducted by professors at Washington University, BYU, and MIT.

I’m pretty sure, however, the type of workplace surveillance noted in a lawsuit filed by the EEOC falls on the creepy side of the line, as opposed to the effective. From the EEOC’s press release:

According to the EEOC’s lawsuit, between March and July 2010, Davis Typewriter Company’s operations manager commandeered the company’s security camera system to stream hours of footage of former employee Tracey Kelley’s breasts and body onto his office computer.

Surveillance and privacy have been hot topics of discussion of late. How you handle these issues in your workplace will depend, in large part, on how you want your employees to perceive you as an employer—as a partner in trust, or as a distrustful watchdog.

Rather than watching everyone, the more prudent course of action is only to watch when an employee gives you a reason to do so. Do you have reason to believe an employee is stealing from you? Then watch that employee. Do you think an employee is fraudulently using FMLA leave? Then watch that employees. Do you believe an employee is leaking secrets to a competitor? Then watch that employee.

To watch everyone, however, without reason, leads to “distrust, conformity, and mediocrity,” three traits to which you should not want your employees to strive, and which will not help you run a successful business.

Tuesday, August 27, 2013

Life imitating art? Pregnant and fired — when will employers learn?

The Ohio Chamber of Commerce brings us this funny video about how not to fire pregnant employee:

Sadly, life sometimes imitates art.

Last week, the EEOC announced that it had sued a Mississippi hotel operator for … you guessed it … pregnancy discrimination:

According to the EEOC’s suit, Te’Shawn Harmon informed her manager of her pregnancy on her first day of work. That evening, the manager terminated Harmon and replaced her with a non-pregnant employee.

Ugh. Some call it stupidity. I like to think of it as job security.

Monday, August 26, 2013

Litigation publicity as an adverse action for retaliation

Ray v. Ropes & Gray LLP [D. Mass. 8/16/13) [pdf] teaches a valuable lesson about what can go wrong when a dispute between an employer and a former employee goes public.

John Ray is a former associate of Boston white-shoe law firm Ropes & Gray. When the firm passed him over for partner, he first filed an EEOC discrimination charge, and then a lawsuit, claiming that the firm had illegally passed him over for partner. After Ray leaked to a legal blog a copy of an EEOC probable-cause finding on his retaliation claim, the blog sought comment from Ropes & Gray. The firm responded by providing a copy of an earlier EEOC no-probable-cause finding—which the blog published, and which included details about Ray’s performance reviews and an internal investigation into Ray’s alleged criminal conduct while at the firm.

In the subsequent litigation, Ray claimed that the release of the EEOC’s no-probable-cause finding was a sufficient adverse action to support a claim for retaliation under Title VII. The district court agreed:

Title VII prohibits an employer from responding to protected activity by taking an action that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” The threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.

On her Employment & Labor Insider blog, my friend, Robin Shea, takes issue with this aspect of the decision.

I don’t consider it “retaliatory” for the firm to want to protect its reputation by releasing, in pure self-defense, a document that is a public record. Mr. Ray had a right to file a charge and a lawsuit, but once he started bad-mouthing Ropes & Gray…, he opened a door that he shouldn’t have opened.

I agree with Robin. Ropes & Gray did not start the public war of words with its former employee. Ray took his issues public first. An employer should have the right to defend itself in the sphere of public opinion. If the employer fired the first publicity shot, I could better understand a finding of retaliation. Merely responding to a smear that someone else started, however, should not be viewed as an adverse action, no matter how wide Title VII’s retaliation lens might be.

Nevertheless, this case illustrates that retaliation comes in all shapes and sizes, and employers must act with extreme care when dealing with any employee who engaged in protected activity. If something such as responding to publicity started by a disgruntled ex-employee can constitute an adverse action, the scope of what acts fall outside Title VII’s definition of “adverse” is getting smaller and smaller, which makes these claims all the more dangerous for employers.