Workers could get reimbursed for use of personal cell phones

A company that required customer service employees to use their personal cell phones for work must reimburse them for the charges they incurred, the California Court of Appeals recently decided.

The employees brought a class-action lawsuit under a state law designed to prevent businesses from passing along their operating expenses to workers.

Even where employees had a cell-phone plan with unlimited minutes, the company still had to pay them a reasonable percentage of their cell phone bills, the court said. [Read more…]

Divorcing employees may be protected from discrimination

Many states have laws that protect employees from being discriminated against based on their “marital status.” A recent lawsuit in New Jersey suggests that these laws may extend to employees who are going through a divorce.

In the New Jersey case, the director of operations for a local rescue squad separated from his wife as a result of an affair he had with a co-worker on the squad. This made things extremely awkward in the workplace, because the man’s mother-in-law and two of his sisters-in-law also happened to work for the squad.

About a month later, the man’s boss fired him, noting that he and his wife were “going to go through an ugly divorce.”

The man sued, and claimed he had been discriminated against because of his marital status. [Read more…]

Are employees entitled to be paid when they’re ‘on call’?

Many jobs require employees to be “on call” when they’re not at work. But are employees entitled to be paid for this time? The answer, as so often happens, is, “It depends.”

A recent lawsuit involved a police officer and emergency medical technician in Maryland who was required to be on-call after her scheduled shift. She filed a lawsuit in federal court, claiming she was entitled to be paid for her on-call hours.

But a judge ruled against her. The judge said that during her on-call time, she wasn’t restricted in any way. She could stay in her home or she could travel around the area, and she could eat, sleep, watch TV, and spend time with her child. In other words, the fact that she was on-call didn’t interfere with her ability to engage in all her normal personal activities. [Read more…]

New rules for pregnant workers

Pregnant employees are entitled to certain rights under a federal law called the Pregnancy Discrimination Act. This law can sometimes be confusing. Recently, the federal Equal Employment Opportunity Commission issued guidelines designed to clarify how the law applies to workers and employers.

Here are some highlights:

  • The law prohibits discrimination against workers who are pregnant, but it also prohibits discrimination against workers based on their having been pregnant in the past or their possibly becoming pregnant in the future. Among other things, this means that it might be illegal for a business to ask questions of a job candidate designed to probe whether the candidate has children or plans to have children in the future.
  • A business cannot force a worker to take leave just because she is pregnant. A business can force a pregnant worker to take leave only if the pregnancy makes her unable to do her job.
  • Only women can take leave for pregnancy, childbirth or related medical conditions. However, if an employee offers parental leave to women after childbirth, it must also offer parental leave to men on the same terms.
  • An employer has to treat a pregnant employee who is temporarily unable to do her job the same way it would treat a non-pregnant employee who was temporarily unable to do a job. This means that if other employees would be given a temporary light-duty assignment (say, as a result of an on-the-job injury), then similar accommodations must be made for pregnant employees.

Company sued for retaliating against employee three years later

Deborah Malin worked in the IT department of a health care company. When she told her boss that she was going to report a co-worker to the human resources department for sexual harassment, her boss strongly discouraged her. But she reported the co-worker anyway.

Over the next three years, Deborah applied for several promotions, but she didn’t get any of them. Three years later, her department was reorganized, and she was demoted. She filed a lawsuit claiming that her boss had retaliated against her because of her harassment complaint three years earlier.

Her company argued in court that three years is a long time, and it didn’t make any sense to claim that Deborah was still being held back for something that happened literally years in the past. [Read more…]

Companies must stop harassment – even if it’s by non-employees

Everyone knows that a business can be sued if an employee is harassed because of race, sex, religion, etc., and the company doesn’t take appropriate action. But did you know that a business can sometimes be sued even if the harasser doesn’t work for the company?

That’s right – businesses sometimes have a legal duty to protect their workers from harassment by third parties, such as clients, customers, contractors, vendors, and other people they come into contact with in the course of their work.

A company that leases office space, for example, might have to protect against harassment by security guards or maintenance workers hired by the landlord, as well as by caterers and others who are brought in to do work on-site. [Read more…]

Worker fired shortly before her job anniversary can sue

The federal Family and Medical Leave Act applies to workers only if they have been on the job for at least a year. So does that mean a company that doesn’t want to accommodate an employee with pregnancy complications can fire her one day before her first-year anniversary, so she’s not eligible for protection under the law?

No way, according to a federal judge in Minnesota.

The judge sided with a property manager named Ena Wages who was fired after her doctor ordered her not to work more than 20 hours a week. [Read more…]

Employee can use up vacation time before taking family leave

The federal Family and Medical Leave Act allows certain workers to take up to 12 weeks of unpaid leave for a medical problem, for the birth of a child, or to care for an ailing family member.

Usually, businesses want to minimize the time that an employee is away from work. So a lot of companies have a policy that requires employees to use up their accrued paid vacation or sick time as part of their 12 weeks of leave.

Suppose an employee has two weeks of vacation, and wants to take off 12 weeks to care for a sick relative. A business that has such a policy could require that the employee take the vacation as part of the leave. The employee would be paid for two of the 12 weeks of leave, but would have no accrued vacation time left when he or she returned to work. [Read more…]

Training and orientation may have to be ‘on the clock’

In general, hourly workers are paid only for time they actually spend performing their job duties. But there are exceptions. For example, courts have recently ruled that workers should also be paid for time they spend putting on and taking off safety equipment, and even for time they spend showering before leaving the premises if they have been working with hazardous materials.

And according to a federal judge in Chicago, training and orientation for new hourly hires who haven’t started work yet should be considered paid time as well.

In that case, nearly 10,000 people hired to work as security guards for Securitas Security Services USA were forced to attend an unpaid orientation and training session before starting their employment. [Read more…]

Protections for disabled workers are expanding

Under the federal Americans with Disabilities Act, workers who are otherwise qualified for a position but who have a disability must be given “reasonable accommodations” that enable them to do the job.

In other words, if a worker has the skills, training and aptitude to do a job, but needs some modifications – such as a flexible schedule, a more handicap-accessible workplace, or minor alterations to job duties – the employer has to allow them, as long as they don’t overly burden the business.

For example, Jane Harris worked as a resale steel buyer for Ford Motor Company. Her job required telephone and computer contact with co-workers, and she received excellent performance reviews. However, she also suffered from a severe case of irritable bowel syndrome, which was so bad that she often couldn’t drive to work or get up from her desk without soiling herself. [Read more…]

Workers’ ‘right to complain’ is expanded by the U.S. government

Recently, a car salesman in Arizona met with the owner of the dealership and a couple of managers to complain about his wages, commissions and break times. During the discussion, the owner became frustrated and told the salesman that if he didn’t like things the way they were, he was free to seek employment elsewhere.

The salesman flew off the handle, and unleashed a torrent of obscenities at his boss. Not surprisingly, he was fired.

End of story, right? Not quite. Even though the salesman didn’t belong to a union, he complained to the National Labor Relations Board. And the Board decided that he had been wrongfully fired, and ordered the dealership to reinstate him with full back pay.

How could this be? [Read more…]

‘Appearance’ policies can conflict with workers’ religion

Most employers value a professional-looking workforce. But problems can arise when a company’s idea of what constitutes a “professional look” bumps up against the religious customs and traditions of employees and job candidates.

For example, in one recent case a member of the Sikh faith applied for a sales job with a New Jersey Lexus dealership. The dealer’s dress code prohibited beards, but the man’s religion required him to wear a beard. The employer apparently told the applicant that he could have the job if he shaved, but the man refused. [Read more…]

Sports bar pays $6.8 million for breaking rules on tips

Under federal law, it’s legal to pay service employees such as waiters, waitresses and bartenders as little as $2.13 an hour, as long as they receive enough in tips to equal at least the federal minimum wage of $7.25 an hour.

The law also allows businesses to require employees to contribute to a “tip pool” in order to distribute tips more evenly among employees.

However, if there’s a tip pool in place, none of the money in the pool can go back to the company. Also, managers and supervisors are not allowed to share in the pool, even if they occasionally wait tables or tend bar and receive their own tips. [Read more…]

Requiring a doctor’s note for ‘intermittent’ leave might be illegal

The federal Family and Medical Leave Act allows certain employees to take up to 12 weeks of unpaid leave for health problems, or to care for a new baby or a sick relative.

The Act also allows workers with serious medical conditions to continue working while taking small, periodic increments of “intermittent” leave. This is allowed as long as the worker provides a doctor’s certification that includes dates of expected treatment, the medical necessity of the leave, and how long the leave is expected to last. [Read more…]

Employees who return from military leave have special rights

Employees who leave for military service with the National Guard or Reserves have important job rights when they return from duty.

These rights are guaranteed by the federal Uniformed Services Employment and Reemployment Rights Act, or USERRA. This law protects military veterans from workplace discrimination due to their service, and also gives them the right to get their job back when they return.

The law generally applies as long as the employee (1) gave the company adequate notice before leaving, (2) was away less than five years, (3) was honorably discharged, and (4) applied to get his or her job back in a timely manner after returning from service.

What is a “timely manner” can depend on the length of service. For instance, if an employee was on active duty for more than 180 days, he or she must apply to get a job back within 90 days after completing service. [Read more…]

Confidentiality agreements can help both sides – but be careful!

Recently, a private school in Miami called the Gulliver Preparatory School decided not to renew the contract of its 69-year-old headmaster, Patrick Snay. Patrick sued the school for age discrimination.

The school settled the case by agreeing to pay Patrick $80,000. As part of the deal, Patrick signed a “confidentiality agreement.” This was a written contract saying that Patrick wouldn’t tell anyone the details of the settlement other than his wife and his lawyers.

Not long afterward, however, Patrick’s college-age daughter Dana wrote on Facebook that “Ma and Pa Snay won the case against Gulliver,” and bragged, “Gulliver is now officially paying for my vacation to Europe this summer.”

The message went out to more than 1,000 of Dana’s Facebook friends, including a number of Gulliver students and graduates. [Read more…]

You must protect employees from sex harassment … by customers

Everyone knows that businesses can be sued for sex harassment if an employee or manager harasses another employee. But did you know that you can also be sued if the harasser doesn’t work for you – if the harasser is a customer, contractor, or other person connected to the business?

That might not seem fair, since you have no control over a customer’s actions. But you still have a duty to provide a way for employees to complain, to investigate accusations, and to take reasonable steps to stop any harassment to the extent possible.

In one recent case, a graduate student who worked as a manager for the Hofstra University football team sued the university, claiming she had been harassed by some of the football players. [Read more…]

Employee goes to work for competitor – despite contract

Michael Holton was the president of a cancer radiation services company. When he took his job, he signed an agreement saying that if he left, he wouldn’t disclose any confidential information or trade secrets to a competitor for at least a year.

After the company merged with another business, Holton was terminated. A month later he went to work for a competing firm. His original company went to court, saying he shouldn’t be allowed to work for the competitor.

The original company wasn’t able to prove that Holton had divulged any specific confidential information or trade secrets. But it said it should win the case anyway, because Holton would “inevitably” disclose such information as part of working as an executive at the new company. [Read more…]

Whistleblower claims are on the rise

The federal government is encouraging employees to blow the whistle on company wrongdoing by offering what can be enormous financial incentives.

The federal Dodd-Frank Act offers a “bounty” to employees of public companies who report fraud and other securities violations to the Securities and Exchange Commission. Whistleblowers whose tips lead to a successful enforcement action or court penalty of more than $1 million can now automatically collect up to 30% of the penalty. (Previously, such rewards were at the SEC’s discretion, and were limited to 10% of the penalty.)

The law also provides whistleblowers with more protection against retaliation by their employer, protecting them not only for reporting actual violations, but also for reporting things they reasonably believed were violations, even if it turns out there was no wrongdoing. [Read more…]

Employee could be fired for Facebook rant

Two employees of a Chicago community youth center engaged in an expletive-laden Facebook conversation that included complaints about how they were treated by their employer. The posts were not visible to the public; only the workers’ Facebook “friends” could see them. But someone took a screenshot and passed the conversation along to a supervisor, who fired them.

One of the workers challenged the firing, arguing that the pair were actually engaged in “concerted activity” related to improving the workplace, and therefore their actions were protected by the National Labor Relations Act. [Read more…]

Timekeeping shortcuts get companies in trouble

It’s perfectly normal for employers to find shortcuts that enable simpler, more efficient recordkeeping. That’s why if you’ve ever worked for an hourly wage, you’ve very likely had your work time rounded to the nearest quarter-hour. That’s acceptable under the law.

Nonetheless, certain recordkeeping shortcuts can get businesses in trouble if they leave workers less than fully compensated.

For example, Aramark – a huge provider of food services, facilities and uniforms – was accused by employees of underpaying them as a result of its policy of rounding punch-in and punch-out times to the nearest 15 minutes, while also disciplining workers for clocking in more than five minutes late. The workers said this combination of policies resulted in their being underpaid an average of 30 to 40 minutes per pay period.

Some 3,000 Aramark employees sued the company, and Aramark paid a significant sum to settle the case out of court. [Read more…]

‘Sex harassment’ doesn’t require sexual interest

The classic image of sexual harassment is a boss who makes passes at employees or tries to use his position to extract sexual favors. But it’s important to know that “sexual harassment” is really much broader than that, and can include any situation where workers are made to feel uncomfortable in a way that relates to their gender – even if the culprit isn’t trying to seduce the victim.

For instance, one recent case was brought by a member of a bridge maintenance crew in Louisiana who didn’t seem to fit his supervisor’s idea of what a “rough ironworker” should act like. The supervisor, who viewed the worker as effeminate, allegedly harassed him by doling out verbal abuse, engaging in taunting gestures of a sexual nature, and exposing himself to the worker. [Read more…]

Bullying in the workplace

When most people think of bullying, they think of a tough kid demanding a smaller boy’s lunch money or “mean girls” ostracizing a classmate in a school cafeteria.

But as a highly publicized situation recently involving the NFL’s Miami Dolphins suggests, bullying doesn’t always stop after high school graduation. It often continues into adulthood, including the workplace.

In the Dolphins’ case, one teammate allegedly tried to “toughen up” another player through a series of abusive text messages and threats of violence.

While that case generated a lot of publicity, the vast majority of workplace bullying incidents don’t show up in the news media. But that doesn’t mean they aren’t real – survey after survey shows that a high percentage of Americans say they have experienced or witnessed workplace bullying over the course of their careers. [Read more…]

Company policy may override medical marijuana law

Many states have now legalized or decriminalized marijuana possession, and even more have legalized marijuana use for medical purposes. But while these laws may allow employees to avoid criminal consequences for smoking pot, they might not allow them to avoid workplace consequences.

Take the case of a Wal-Mart employee in Michigan. His doctors prescribed marijuana to control pain related to cancer, and he was a registered user under Michigan’s medical marijuana law. But when he tested positive for the substance under Wal-Mart’s drug use policy, the company fired him.

The employee sued Wal-Mart, but a federal appeals court upheld the firing. [Read more…]

Former shareholder couldn’t sue for discrimination

Bob Mariotti was a manager, shareholder and director of a family company that sold building supplies. At some point he experienced a “spiritual awakening” and began to expound religious ideas that often offended the other members of his family.

Eventually, the rest of the family decided to fire him as a manager. However, he continued to receive compensation as a shareholder and to act as a director for another six months, until he was voted out of those positions as well.

Mariotti sued the company for religious discrimination. But a federal appeals court in Philadelphia rejected his suit. [Read more…]

Company can’t fire worker whose spouse is sick

Marc Flagg worked for a Boston-area medical supplier for 18 years, apparently receiving positive performance reviews the whole time.

But in late 2007, his wife underwent surgery to remove a brain tumor, requiring expensive rehabilitative care afterward. As a result, Flagg had to leave work about a half-hour early each day to pick up his daughter from school. His manager apparently had no problem with the arrangement, or the fact that Flagg didn’t “punch out” during this time.

A few months later, Flagg’s wife was back in the hospital due to a recurrence of her tumor. The company then fired Flagg, claiming his failure to punch out resulted in his being paid for time he didn’t work. The termination meant that Flagg’s health insurance was cancelled and his unemployment benefits were denied. [Read more…]

OSHA goes after companies for discouraging workers from reporting injuries

First, the good news: According to the federal Occupational Safety & Health Administration, the number of reported workplace injuries dropped by more than 30 percent over the last 10 years.

Now the bad news: OSHA believes a big reason for the decline in reported injuries is that workers are becoming afraid that they’ll be retaliated against if they report them.

Of course, under federal law, it’s illegal for employers to retaliate against workers for reporting injuries, and it’s also illegal for them to reward employees in return for not reporting injuries. [Read more…]

U.S. settles first lawsuit under new health privacy law

The U.S. has settled its first lawsuit under the a new health care privacy law, and appears poised to aggressively target other employers who ask their workers about family illnesses.

The case involved a fabric distributor in Oklahoma that apparently required its workers to undergo physical exams in which they were asked whether cancer, heart disease or mental disorders ran in their families. The company quickly settled the case and agreed to pay $50,000 in damages to a job applicant who had been asked to provide such a family history.

This was the first lawsuit brought under the Genetic Information Nondiscrimination Act, or GINA. The law – which prohibits employers from asking about genetic testing results or family medical histories – was intended to encourage people to undergo genetic testing without having to worry about negative repercussions in the workplace. [Read more…]

Employee or contractor? Obamacare raises the stakes

It’s not always clear whether a worker should be treated as an “employee” or an “independent contractor.” But how a worker is classified it makes a huge difference to both workers and businesses – and that’s especially true as a result of the Affordable Care Act, better known as Obamacare.

Generally speaking, employers have a big incentive to treat workers as contractors rather than employees. If a worker is a contractor, then the employer might not have to worry about complying with wage and hour laws, payroll taxes, or unemployment and worker’s comp insurance. An employer might also be shielded from certain types of lawsuits, such as for discrimination, wrongful termination, or personal injuries that the worker causes to third parties. [Read more…]

Be Careful When Stating the Reason for Terminating an Employee

By: Geoffrey B. McCullough, Esq.

Question:  When an employer misstates the reasons for terminating an at-will employee is the misstatement a violation of public policy?

Answer:  If the termination “fall[s] within the scope of any of the recognized categories of public policy exceptions[,]” yes  In Massachusetts a general rule is non-union employees are employees-at-will and may be terminated at any time.  Exceptions to that rule are when the termination is unlawful, for example, when the termination is discriminatory or when the termination violates public policy.

The quotation above is taken from a public policy claim discussed in a March 12, 2014, Order of the U.S. District Court in the case Rosie Burgos v. GCA Services Group, Inc., (Lawyers Weekly No. 02-141-14) (O’Toole, J.) (USDC) (C.A. No. 12-11147-GAO).  In the case, Ms. Burgos, claimed her termination violated public policy because she was in fact terminated because her employer wished to reduce the workforce not because she was allegedly insubordinate.  But  her violation-of-public-policy claim failed because even if the employer, GCA Services, terminated her to reduce its workforce, public policy does not protect employees from the negative effects of a reduction in workforce.  [Read more…]

Employee could sue over broken promise of new job

Salesman Michael Cocchiara had worked for eight years at a Dodge dealership in Oregon when he suffered a heart attack, and his doctors told him he needed to get a less stressful job. He lined up a new job at a newspaper company, but the dealership asked him not to quit, and said that it would give him a new “corporate” job instead that would meet his health needs. Relying on this promise, Cocchiara turned down the newspaper job.

But the dealership then reneged, and didn’t give him the corporate job. He eventually found yet another job, but at much lower pay.

Cocchiara sued the dealership, claiming it committed fraud, and demanding lost wages. [Read more…]

Breast-feeding mother can sue employer

New mothers needing a private space to pump breast milk for their newborns is a reality of an increasingly modern workplace. Some employers or co-workers might be uncomfortable with this, but the law is likely to come down on the mothers’ side.

Take the case of a mother in Texas who wanted to go back to work as an account rep at a debt collection agency after staying home with her new baby for several months. During conversations prior to her return, she told her bosses that she would like permission to use a back room to express breast milk after she came back. The bosses apparently hemmed and hawed about her request, and once she received medical clearance to return, they told her someone else had filled her position. [Read more…]

Federal agents step up ‘surprise’ FMLA investigations

Under the federal Family and Medical Leave Act, employers with more than 50 workers must allow qualified employees to take up to three months of unpaid leave for personal medical reasons or to care for a sick family member.

At a recent conference, a senior Department of Labor official stated that compliance with the law has been a problem, and that the Department’s enforcement division planned to step up its on-site investigations into whether employers are following the law.

Investigators won’t necessarily show up unannounced, but they may arrive with only one or two days’ notice. The Department is looking particularly closely at what it considers violation-prone industries, including those with a lot of low-wage workers, physical laborers and non-union employees. [Read more…]

Criminal background checks may be ‘discrimination,’ U.S. says

The federal Equal Employment Opportunity Commission has sued two companies claiming that their use of criminal background checks was illegal because it amounted to discrimination against black employees and job applicants.

In one case, automaker BMW adopted a policy of blocking any employee or contractor with certain criminal convictions from access to its South Carolina facility – regardless of the person’s age at the time of the conviction or the nature of the worker’s duties.

The EEOC claimed that this policy had the effect of screening out black workers – many of whom had previously worked at the facility without a problem, but were denied access after the new background checks uncovered a prior criminal conviction. [Read more…]

Same-sex marriage ruling affects employee benefit plans

The U.S. Supreme Court’s decision striking down the federal Defense of Marriage Act will have a significant effect on employee benefit plans.

The federal law had refused to recognize same-sex marriages for purposes of federal taxes and other requirements. The Supreme Court said this law was unconstitutional, which means that same-sex couples who are married under state law now have to be treated as married under federal law.

Among other things, it now appears that:

  • Employees with a 401(k) or similar retirement plan will have to name a same-sex spouse as the primary beneficiary, unless the spouse waives this right.
  • Pension plans that offer “surviving spouse” annuities or “joint and survivor” annuities will have to include same-sex spouses. [Read more…]

‘Wellness’ programs: a shot in the arm, or a legal headache?

More and more companies are adopting “wellness” programs that reward employees for healthy behavior. This would seem to be a “win-win” for companies and their workers, because workers are rewarded for getting in shape, and companies can reduce health insurance costs and absenteeism while boosting morale.

But there are a number of legal issues raised by these plans. Companies should know that the legal boundaries of these programs are sometimes unclear. And workers should know that there are limits on how far an employer can go in delving into their private medical information.

Wellness programs can reward employees for a wide range of health-related behaviors, such as filling out a health questionnaire, attending a wellness fair, joining a gym, reducing cholesterol levels or quitting smoking.

Rewards typically include defraying the cost of a gym membership or contributing to the employee’s individual health insurance premium. [Read more…]

Government workers can sue for political retaliation

The First Amendment of the Constitution says that the government can’t punish you for your political views. But did you know that that means that if you’re a public employee, your employer can’t mistreat you for supporting the “wrong” candidate?

For instance, four employees of the Michigan racing commission supported the Republican candidate for governor in the 2006 election – who went on to lose.

The employees claimed that after the election, their Democratic bosses retaliated against them by making negative changes to their job duties and working conditions, in one case eliminating a position. They sued the state for “political affiliation discrimination.”

The state argued that the workers couldn’t sue because they had no formal affiliation with the Republican Party or with the losing candidate. [Read more…]

Government workers can sue for political retaliation

The First Amendment of the Constitution says that the government can’t punish you for your political views. But did you know that that means that if you’re a public employee, your employer can’t mistreat you for supporting the “wrong” candidate?

For instance, four employees of the Michigan racing commission supported the Republican candidate for governor in the 2006 election – who went on to lose.

The employees claimed that after the election, their Democratic bosses retaliated against them by making negative changes to their job duties and working conditions, in one case eliminating a position. They sued the state for “political affiliation discrimination.”

The state argued that the workers couldn’t sue because they had no formal affiliation with the Republican Party or with the losing candidate. [Read more…]

Dentist isn’t liable for firing ‘sexy’ assistant

Can a dentist fire a pretty dental assistant because his wife is jealous and thinks the assistant is a threat to their marriage? Or is this “sex discrimination”?

According to the Iowa Supreme Court, it’s legal to fire someone for being too attractive.

Melissa Nelson worked for dentist James Knight, and apparently the two flirted occasionally. Despite the flirting, Nelson said she never felt harassed in any way. By all accounts, she was happy and capable in her job.

But when Knight’s wife found out that her husband and Nelson had been texting each other, she became upset and demanded that Nelson be fired.

Nelson sued. She argued that her firing was “sex discrimination,” because she wouldn’t have been terminated if she had been male. [Read more…]

Worker gets unemployment after taking early retirement

An employee could collect unemployment compensation after accepting an early retirement package as part of his company’s reduction in force, the Pennsylvania Supreme Court recently decided.

The worker was a 63-year-old shipping clerk whose employer announced a round of layoffs due to poor financial conditions. To encourage more senior employees to leave so that more junior employees could keep their jobs, the employer offered an early retirement program. The worker accepted the offer.

He also filed for state unemployment benefits. The unemployment board denied his claim, finding that he voluntarily left his job and therefore was ineligible.

But the Pennsylvania Supreme Court disagreed. According to the court, early-retirement packages are really just another way for employers to accomplish a layoff. Therefore, workers who accept such packages shouldn’t be considered to have left their jobs “voluntarily.” [Read more…]

Worker with high-risk pregnancy may get extra leave

A woman who was ordered by her doctor to have complete bed rest after she was diagnosed with a high-risk pregnancy may be entitled to more pregnancy leave than is allowed by state law, says the California Court of Appeal.

In this case, the employer gave the woman the four months of pregnancy leave that was required by state law.  But when she was unable to return to work after 19 weeks of leave, it fired her.

The woman sued for disability discrimination. [Read more…]

Tired employees may be entitled to go to work late

We all have those mornings when we just don’t want to get out of bed. Usually this means hitting the snooze button a few times before rushing to get to work on time.

But what if a disability makes someone so tired in the morning that they can’t get to work on time? According to a recent ruling by the federal appeals court in New York, the employer might just have to wait.

In that case, a New York City social worker suffered from schizophrenia and took a prescription medication that left him “sluggish” in the morning.

His agency had a generous flex-time policy that allowed workers to arrive between 9:00 and 10:00 a.m., and didn’t actually consider them late unless they arrived after 10:15. [Read more…]

Do disabled workers have a ‘right’ to a job transfer?

Bob worked for years in a physically demanding job. But after he became disabled, he could no longer perform the work. Does he have a “right” to be transferred to different job that’s less physically challenging?

That’s a question that’s increasingly vexing both workers and employers.

The federal Americans With Disabilities Act says that companies have to “reasonably accommodate” employees who become disabled. And one of the ways that can happen is for the employee to be transferred to a different job that better suits his or her abilities.

So far so good. But what if the company typically fills such positions through a competitive hiring process … and what if there are other, more highly qualified workers who also want the job? Who wins? [Read more…]

Worker may get transfer to be closer to medical treatment

A secretary with the U.S. Forest Service might be entitled to a job transfer so she can live closer to available medical treatment for her vision problems, a federal appeals court recently decided.

The employee, who worked in Texas, suffered brain damage in a fall at work that resulted in her losing the left half of her field of vision. She requested a hardship transfer to an office in Albuquerque, New Mexico, where she would have access to specialists who were qualified to provide therapy for her injury.

The government denied her request, claiming it had no open position in Albuquerque. Her performance suffered because of her vision problems and she was forced to accept a demotion. [Read more…]

Alcohol testing could lead to discrimination claim

Many companies have substance abuse policies that require workers who have problems with drugs and alcohol to submit to random testing. If the worker fails a test, that can often be grounds for termination.

But a recent case from New Jersey shows that companies need to be very careful in how they handle such policies.

The case involved a woman who had worked for ExxonMobil for more than 30 years. She began to suffer from depression after her husband died, and while co-workers noticed a change in her demeanor, her performance apparently never suffered. Soon afterward, she voluntarily told a company nurse that she was an alcoholic and needed to enter a rehab program. [Read more…]

Companies are sued in court despite arbitration agreements

Arbitration agreements – in which workers and employers agree that any job disputes will be decided out of court by a neutral third party – are increasingly being used by businesses that want a quicker and more private way to resolve disputes.

But any such agreement needs to be worded and presented very carefully. Many businesses are finding that their agreements don’t protect them nearly as well as they thought.

For instance, a woman in Maine who was visibly pregnant during a job interview sued a prospective employer for pregnancy discrimination after she was turned down for a job.

The company said the case should go to arbitration, as required in its online job application. [Read more…]

New ‘undocumented worker’ program causes legal issues

A new government program that allows certain undocumented immigrants to receive temporary work authorizations is creating legal issues for both workers and employers.

The program is called “Deferred Action for Childhood Arrivals,” or DACA. It allows undocumented workers who were born after June 15, 1981 and were under 16 when they arrived in the U.S. to receive authorization to stay and work here.

Applicants must (1) have a high school diploma or G.E.D., (2) be currently enrolled in high school or an equivalency program, or (3) be serving in or honorably discharged from the military. They must also have a clean criminal history (although they can have minor traffic violations on their record, or an arrest for driving without a license). [Read more…]

What happens if a boss thinks a worker is abusing medical leave?

Tom Seeger was a phone technician in Cincinnati who took medical leave from his company due to a herniated disc. While he was on leave, he attended an Oktoberfest celebration downtown, and ran into several co-workers. The co-workers later told the company that they had seen Seeger at the party, and that he didn’t seem terribly impaired.

The phone company responded by firing Seeger for abusing his medical leave.

Seeger was upset. He claimed that he was following his doctor’s orders, and the mere fact that he could walk a short distance at a party didn’t mean that he wasn’t in frequent pain or that he was able to return to work.

This type of dispute is arising much more frequently than in the past, and is leading to a lot of lawsuits. [Read more…]

Ship worker entitled to ‘maintenance and cure’ for lymphoma

A merchant seaman who was diagnosed with lymphoma two months after ending his service on a tugboat was entitled to receive compensation from the ship owner for food, lodging and medical services, a New York federal appeals court ruled.

Such benefits – which are known as “maintenance and cure” – are available under general maritime law to seamen who are injured while serving on a ship.

The tugboat owner in this case argued that the worker wasn’t entitled to maintenance and cure because his disease didn’t manifest itself until long after his service on the boat had ended. [Read more…]

‘Rotating shifts’ might be illegal under disability rules

Many employers have “rotating shifts” where employees switch between day, evening and night shifts as a way of managing their workforce while meeting production and customer needs.

But in doing so, they need to be careful of employees’ rights under the Americans with Disabilities Act.

Take the case of a truck driver who suffered from fibromyalgia and sleep apnea that caused acute pain and fatigue. He claimed his condition made it impossible for him to work rotating shifts, and requested that his employer assign him to straight day shifts without overtime.

When the employer refused, he sued. And a federal appeals court in Chicago allowed the suit, saying that a jury should decide whether the worker’s long-term sleep problems and pain constituted a “disability,” and whether rotating shifts and overtime were truly essential to the worker’s job. [Read more…]