In This Issue:
New EEOC Questions and Answers on Little Known ADA Provision
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued a document that answers questions regarding a little known provision of the Americans with Disabilities Act (“ADA”) referred to as the “association” provision. This ADA provision prohibits an employer from discriminating against an applicant or employee who has a known association with an individual with a disability. The document draws attention to the provision’s existence, as well as some actions which would be considered discriminatory under the ADA. The actions include firing or refusing to hire someone based on concerns that the individual will acquire the condition of the person with whom the employee associates, refusing to provide health insurance for an employee’s family member with a disability if the employer generally provides such dependent health insurance, and firing or refusing to hire an individual out of a concern that the employer’s image will be negatively affected by the employee’s association with the individual with disabilities. Employers should be aware of the protections provided by this little known but significant provision.
Questions and Answers about the Association Provision of the Americans with Disabilities ActContact for more information: Tom H. LuetkemeyerDoctor’s Note is Sufficient FMLA Notice
Upon arriving to work after missing several scheduled work days, an employee was given a Family and Medical Leave Act (“FMLA”) certification to be completed within fifteen days. The employee took the form to his doctor who improperly filled it out. Rather than checking a box categorizing the employee’s condition, the doctor wrote in the word “bronchitis,” and the doctor failed to cite the exact duration of the incapacity. Because the certification was improper and would have been untimely filed if amended, and the employee had two strikes under the employer’s three strike policy, the employee was terminated. The employee appealed his termination, and the employer denied his appeal. The employee sued the employer asserting a violation of his rights under the FMLA. The Seventh Circuit determined that, although the form may have been incomplete, the employer failed to give the employee the opportunity to amend the form, interfering with his substantive rights under the FMLA. Employers need to be aware that a technical violation of the notice requirements may not be sufficient to deny an employee FMLA leave.
Kauffman v. Fed. Express Corp., No. 04-2433, --- F.3d ---, 2005 WL 2649978 (7th Cir. 2005) Contact for more information: Paul J. ChernerAdoption of Child Already Home is not an FMLA Qualifying Event
The U.S. Department of Labor (“DOL”) clarified whether adoption of a child already living in an employee’s home qualifies the employee for leave under the Family and Medical Leave Act (“FMLA”). In a recent opinion letter, the DOL stated that the purpose of the FMLA is to provide for care of a child who is “newly placed” with the employee. Under the FMLA, an employee may take up to twelve weeks of unpaid leave within a twelve-month period for the placement of a child for adoption or foster care. However, when an employee adopts the same child initially placed in foster care, this is not deemed a separate event for the purpose of qualifying for FMLA. The initial placement of the foster child is the only qualifying event, even if the adoption takes place more than twelve months after the placement. Employers should be aware that adoption of a foster child already in the home will not qualify for a second FMLA leave.
Labor Department Opinion Letter on Leave for Adoption of Child Already in Home, U.S. Department of Labor, Aug. 26, 2005 Contact for more information: James R. PiragesEmployers May Request New Certification for FMLA Leave
The Department of Labor’s (“DOL”) Wage and Hour Division recently released an opinion letter that indicates employers can request a new medical certification when an employee seeks qualifying leave under the Family and Medical Leave Act (“FMLA”) for the first time in a new leave year. An employer is also permitted to request a second and third medical opinion, as appropriate, in a situation where the employer has reason to doubt the validity of the new medical condition. The FMLA entitles employees up to twelve workweeks of leave for a serious health condition during a twelve-month period. If an employee seeks to obtain leave in an additional twelve-month period, a recertification is insufficient if the employer requests a new certification. Employers should be aware of their rights to reassess FMLA leave when an employee enters a new twelve-month period in order to avoid an employee’s abuse of this benefit.
Wage and Hour Opinion Letter, FMLA 2005-2-a (9/14/05) [released Oct. 17, 2005] Contact for more information: Andrew B. CripeOFCCP Gives Guidance on Definition of Internet Job Applicants
The Labor Department’s Office of Federal Contract Compliance Programs (“OFCCP”) has issued a final rule clarifying the requirements for federal contractors with respect to Internet-based job applicants. The OFCCP requires federal contractors, where possible, to obtain gender, race, and ethnicity data on applicants and employees. The new rule applies to jobs where the contractor accepts expressions of interest via the Internet and related technologies, including e-mail, resume databanks and employer websites. The rule states that, in order to be considered an “Internet applicant” for whom statistics must be recorded, four criteria must be met: 1) the individual must submit an expression of interest in employment through the Internet or related technologies; 2) the contractor must consider the individual for a particular position; 3) the individual’s expression of interest must indicate that the individual possesses the basic qualifications for the position; and 4) the individual must not have removed himself or herself from consideration prior to receiving an offer of employment. In addition, the new rule requires contractors to retain records for all Internet-based expressions of interest in which the contractor considers the individual for a particular position. This rule will be effective 120 days after publication in the Federal Register (effective February 4, 2006). As federal contractors expand their job applicant procedures to include more Internet-based applicants, they need to be aware of these evolving recordkeeping requirements.
41 C.F.R. Part 60-1 Contact for more information: Michael J. LeechDOL Offers Guidance on Sales Engineers as Learned Exemption
The Department of Labor’s (“DOL”) Wage and Hour Division recently released an opinion letter that explains when sales engineers who primarily perform engineering tasks qualify for the learned professional exemption under the Fair Labor Standards Act (“FLSA”) and do not have to be paid overtime, even though they perform some non-exempt sales work. Sales engineers, according to the letter, must possess at least a four-year degree in mechanical or electrical engineering and their work must involve a combination of sales and applications engineering activities. Once it is established that the engineer is performing exempt tasks, the employer should compare that work with the non-exempt sales work in order to determine how the engineer spent the majority of his or her time. This determination is made by weighing: 1) the relative importance of the exempt duties compared to other duties; 2) the amount of time spent on the exempt work; 3) the engineer’s freedom from direct supervision; and 4) the relationship between the engineer’s salary and wages paid to other employees. Employers who employ sales engineers should be aware of the criteria explained in this opinion letter in order to properly evaluate the status of sales engineers under the FLSA.
Wage and Hour Opinion Letter, FLSA 2005-28 (8/26/05) [released Oct. 17, 2005] Contact for more information: Clay M. UllrickEarly Retirement Incentive Plan Violates ADEA
A school district amended its early retirement benefits plan (“ERIP”) so that eligible teachers could receive a lump sum payment based upon the number of unused sick leave days accumulated as of the date of retirement. Teachers over the age of 65 who were denied the benefits of the new ERIP sued the school district alleging a violation of the Age Discrimination in Employment Act (“ADEA”). The school district argued that, while the new ERIP is discriminatory on its face, the plan was protected by the safe-harbor provision because it fulfilled two requirements: 1) voluntariness; and 2) consistency with the purposes of the ADEA. The Eighth Circuit held that the new ERIP impermissibly and arbitrarily discriminated on the basis of age. The Court explained that, while plans could involve a time-related window, the new ERIP fixed the upper limit of eligibility at the age of 65 such that the new ERIP was not protected by the ADEA’s safe harbor provision. Employers need to be aware that such upper limit age fixing of early retirement incentive plans are violations of the ADEA.
Jankovitz v. Des Moines Independent School Dist., 421 F.3d 649 (8th Cir. 2005)Contact for more information: James D. HarbertTermination Permitted for Affair with Co-Worker’s Husband
The Deputy Clerk for Circuit Court of Henderson County, Tennessee, was having an affair with an attorney who practiced in the county. The attorney eventually proposed to the Deputy Clerk although the attorney was still married to the Clerk and Master of the Chancery Court of Henderson County. The two women worked on the same floor of the Henderson County Courthouse. The Deputy Clerk’s supervisor decided to terminate the Deputy Clerk because the two women working in such close proximity created tension in the courthouse. The terminated Deputy Clerk brought a § 1983 complaint, alleging that her termination was in retaliation for her expression of her First Amendment right to intimate association. The Sixth Circuit upheld the termination. Assuming that this type of romantic relationship constituted a protected form of intimate association, all that is needed is a rational basis for the supervisor’s decision. As long as there is a plausible policy reason for the termination, there is no constitutional violation. Since the courthouse officials decided it was disruptive to the workplace to have an open romantic relationship with a man married to a woman down the hall, the terminated Deputy Clerk was not entitled to constitutional protection.
Beecham v. Henderson County, Tennessee, 422 F.3d 372 (6th Cir. 2005)Contact for more information: Justin M. PennWho is a Supervisor?
A “weekend supervisor” at a nursing home was the highest ranking employee on duty and was responsible for patient care, monitoring employees’ performance and dealing with patients’ families. The employee was authorized to write up employees for egregious violations of the nursing home’s rules and to attend management meetings. There was evidence that her recommendations that employees be sent home were accepted and that she evaluated at least one employee at the end of the probationary period. The employee was fired for circulating a petition protesting a change in working conditions. The National Labor Relations Board (“NLRB”) held that the employee was a supervisor and, therefore, it was not an unfair labor practice for the nursing home to fire her for circulating the petition. If the employee were not a supervisor, her firing would have been an unfair labor practice and she would have been reinstated with back pay. The NLRB based its decision, in part, on the employee’s discretion and her exercise of independent judgment in issuing disciplinary write-ups. Employers should be aware of the fact that the actual duties and responsibilities of an employee are critical in determining whether an employee is a supervisor or not.
Wilshire at Lakewood and Lisa Jochims, Case 17–CA–21564Contact for more information: Thomas Y. MandlerState Claims Pre-Empted by Collective Bargaining Agreements
Employees of a grocery chain claimed that the employer required them to work off the clock resulting in unpaid overtime, inadequate breaks per shift and insufficient scheduled days off per calendar week. The employees filed a class action suit alleging multiple violations of several Illinois state wage statutes and the One Day Rest in Seven Act. The employer argued that these claims arose out of their employment and, according to terms of the Collective Bargaining Agreement (“CBA”), the employees must take their claims to arbitration. The employees took the position that their claims arose out of independent statutory rights and not out of the CBA. The Appellate Court held that when a CBA establishes an appropriate dispute resolution process, employees must exhaust all available remedies under the CBA before seeking judicial relief. In this way, plaintiffs must prove either that the dispute is not covered by the CBA or that the union breached its duty of fair representation in order to avoid arbitration. Employers should be aware of their power to enforce alternative dispute resolution provisions found in their bargaining agreements if employees allege a violation of a statutory rights.
Kostecki v. Dominick’s Finer Foods, Inc., 2005 WL 2385856, (Ill. App. 1st. Dist. 2005).Contact for more information: Lori L. HoadleyDisability Benefits Negate Employment Discrimination Claims
An employee claimed that he was terminated by ExxonMobil Corporation because of his epilepsy (in violation of the Americans with Disabilities Act) and because he was over forty (in violation of the Age Discrimination in Employment Act). One year after his termination, he filed a claim and received Social Security Disability Insurance (“SSDI”) benefits by stating that he was unable to work after his termination because of his epilepsy. Exxon’s motion for summary judgment on the ADA claim was granted based on the legal concept of judicial estoppel. The SSDI application stated that he could not perform the duties of his position with or without an accommodation (which is an essential element of an ADA claim). Judicial estoppel precludes a litigant from taking a position in a legal proceeding that is contrary to a previously successful position in a different legal forum. The employee could not provide a plausible explanation why his SSDI application was not inconsistent with proving the essential elements of an ADA claim. The employee’s age discrimination claim was also dismissed because he could not prove that he was able perform his job since he had already obtained disability benefits based upon being disabled and unable to work. Employers should be aware of possible inconsistent statements that employees have made, particularly under oath, in other forums.
Johnson v. ExxonMobil Corp., No. 04-1269 (7th Cir. Oct. 18, 2005)Contact for more information: Linda K. HorrasEEOC Settlement for New Company Policy – Using Job Coach
An employee with an intellectual disability was employed by a large retail employer. The employee’s job coach visited the store several times in the first two weeks of the disabled employee’s employment, but came only about once a week after that. Store managers informed the job coach on several occasions that the employee was progressing well at the job. The employee later received phone calls informing her not to come into work. The employee followed these instructions. However, these directives did not come from her employer and the employee was terminated for failing to show up to work. The EEOC filed a complaint under the Americans with Disabilities Act (“ADA”) challenging the employee’s termination and charging that the employer denied the employee the reasonable accommodation for her disability by failing to involve her job coach. The employer denied any wrongdoing, but settled with the EEOC. In the settlement, the employer agreed to implement a national internal policy on the use of job coaches to help employees with disabilities better integrate into the workforce and perform successfully. Employers should be mindful that intellectually challenged employees are protected under the ADA and that job coaches are a part of their employment.
EEOC v. The Home Depot USA, Inc., No. 03-4860 (E.D.N.Y. Oct. 17, 2005)Contact for more information: Clint D. RobisonRace Bias Most Common EEOC Claim and Harassment is the Most Litigated EEOC Claim
An Equal Employment Opportunity Commission (“EEOC”) director recently addressed the topic of the most common types of charges filed with the EEOC. The director explained that race discrimination complaints accounted for nearly 35 percent of the charges filed with the EEOC, but that a very low number of them were found to be violations, in part because they are harder to prove or disprove. Conversely, sexual harassment complaints, the most frequently litigated claims, are easier to prove or disprove. The director also gave insight into the investigation process associated with various claims, noting that termination and discipline cases are demanding in terms of interrogation, documentation and follow-up, whereas retaliation claims are relatively easy to investigate.Contact for more information: Jodi L. JohnsonRegister Today for a Half-Day Seminar – Effectively Dealing with Current Labor & Employment Issues
This complimentary seminar brings together attorneys who specialize in different areas of labor and employment law, employee benefits and workers’ compensation. Attendees will get an overview of recent legislation and current trends in labor and employment law and the effects on employers.
LisleWednesday, November 2, 20059:00 a.m. - 1:30 p.m.Registration begins at 8:30 a.m.Wyndham Lisle3000 Warrenville RoadLisle, Illinois
Click here to register for the seminar.
Who should attend?
Human Resource ProfessionalsIn-House Legal CounselEmployers
8:30 a.m. - 9:00 a.m.Continental Breakfast and Registration
9:00 a.m. - 12:00 p.m.Seminar
An Update on Recent Important Court DecisionsSpeaker: Tom LuetkemeyerRecent Supreme Court and Seventh Circuit decisions that impact employers will be discussed.
The Latest Regulatory and Legislative Changes Affecting Employee BenefitsSpeaker: Lisa BurmanLearn about the new Roth 401(k)s, the grace period exception to the cafeteria plan "use it or lose it" rule, automatic rollovers to IRAs of involuntary cash-outs, and other changes.
Unions: Dead or Alive?Speaker: Thomas MandlerAnalysis of the recent decision by several unions to defect from the AFL-CIO, and the possible effects on employers.
Blagojevich Era Labor and Employment LegislationSpeaker: James PiragesA review of ground breaking legislation signed during Governor Blagojevich’s term that is designed to bolster the rights of employees.
Current Leave of Absence IssuesSpeaker: Paul ChernerLearn about recent developments regarding leave of absence issues arising under the FMLA, ADA and state law and their effect on employers.
How to Prevent Workers’ Compensation FraudSpeaker: Cheryl WilkeWhat all employers need to know about preventing workers' compensation fraud and maintaining all necessary evidence to prosecute employee's for filing fraudulent claims. A detailed analysis of the four key areas of fraud: false reports of accident; false statements of prior injuries; receipt of duplicative benefits and failure/refusal to return to work. Employers will be provided with necessary information to determine if fraud exists and how to use fraud as a defense to the payment of benefits.
Proper Documentation for Employment ActionsSpeaker: Andrew CripeFind out what documentation is necessary to properly handle personnel issues in an effort to decrease the likelihood of an employment-related lawsuit.
Homeland Security (Immigration) in the WorkplaceSpeaker: Penelope LechtenbergLearn about the common types of nonimmigrant visa classifications available for use by employers and the permanent residency process for long-term employment of foreign-born workers. Also learn about the I-9 procedure and recent immigration developments affecting the workplace
12:00 p.m. - 1:30 p.m.Luncheon
RegistrationTo register online for this complimentary seminar and luncheon please click on Registion links provided above, or call Katherine McCormack at 312-704-3329.
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.