Employment Law Lookout

Employer Beware: The FMLA Can Reach Further Than You May Think

Posted in Workplace Policies and Processes

By: Clark E. Smith

We all know that the FMLA’s protections kick in once an employee has been employed for 12 months.  But can those protections be triggered even before a full year’s employment?  One federal district court recently held that they can be.  Here’s why employers should take note.

The FMLA ensures that eligible employees have up to 12 weeks of protected leave per year to cope with a “serious health condition” that renders employees unable to perform job functions.  This leave can come in the form of a reduced work schedule—in other words, an employee can be provided a reduced leave schedule when a medical need can best be accommodated that way.  And the FMLA further prohibits employers from interfering with an employee’s protected right to take a reduced leave schedule, or for retaliating against the employee for doing so.  But the key caveat to these protections is that the employee must be FMLA-eligible.  To establish a claim, an FMLA plaintiff must first establish eligibility by showing that she would have been employed for at least a year when the FMLA leave was scheduled to begin.

Against this backdrop, consider the case of Ena Wages.  Ms. Wages worked as a property caretaker for Stuart Management Company at one of its apartment complexes.  She started working at Stuart on November 17, 2008.  On November 16, 2009, Stuart terminated her employment.  The importance of these dates becomes obvious when we learn that Stuart terminated Wages because she requested a reduced work schedule, per doctor’s orders.  Ms. Wages was encountering difficulties with a pregnancy.  Stuart initially accommodated her requests to forego certain activities—vacuuming, mopping, shoveling snow.  But management balked when her doctor ordered that she could not work more than 20 hours per week.  Instead of allowing her to continue with a reduced work schedule, management terminated her employment one day before her one-year anniversary with the company.

Wages brought suit against Stuart for a host of claims, including FMLA interference and retaliation.  Stuart asserted the logical defense that Wages was not eligible for the FMLA’s protections because she had not been employed for an entire year when it terminated her employment.  The district judge was not convinced though—because a court can considers a plaintiff’s FMLA eligibility as of the date that the leave is scheduled to start.  And although in Wages’ case, her leave would have begun one day before her year anniversary, the court noted that federal regulations provide that an employee may use non-FMLA leave to “bridge the gap” until her eligibility date comes due.  In other words, the court admonished Stuart for not letting Wages use PTO or vacation time to cover her reduced work schedule until she became FMLA-eligible on November 17th.  “The only reason Wages was not able to reach her eligibility date is because Defendant fired her before she could do so.”

These facts were enough for the court to summarily rule in favor of Ms. Wages on both her FMLA interference and retaliation claims.  In fact, the evidence was so strong that the judge ruled on the retaliation claim sua sponte, without Wages even asking for relief!  While this result may not have played out in every court, the facts of Wages’ case are enough to give any employer pause.  And more broadly, the case reminds us that employers need to keep their human resources professionals fresh and up-to-date on FMLA and pregnancy leave laws.  (Such as those that we recently blogged about.)  As always, a little bit of common sense can go a long way—should you fire a pregnant woman one day before she becomes technically FMLA-eligible?  This court said no, and held that the FMLA has a longer reach than we might have thought.

If you have questions regarding this topic, please contact the author, a member of Seyfarth’s leave accommodation team, or your Seyfarth attorney.

President Obama Expands LGBT Non-Discrimination Protections with Executive Order

Posted in Diversity, Retention & Pay Equity, Workplace Policies and Processes

By: Cameron A. Smith, Laura J. Maechtlen and Annette Tyman

Yesterday, President Obama signed an Executive Order prohibiting discrimination by the federal government or federal contractors on the basis of sexual orientation or gender identity.  Currently, only 18 states and the District of Columbia have laws explicitly protecting LGBT workers from being fired because of their sexual orientation or gender identity.  No federal law prohibits discrimination on these grounds, and efforts to extend workplace protections to LGBT employees through the Employment Non-Discrimination Act (“ENDA”) are mired in legislative gridlock.  Consistent with recent efforts to implement the President’s agenda through executive action on federal contractor minimum wage and equal pay initiatives, President Obama’s Order will affect approximately 24,000 companies that employ roughly 28 million employees, roughly one-fifth of the nation’s workforce.

President Obama’s Order applies to contractors or subcontractors who do over $10,000 in federal government business in one year by amending Executive Order 11246, first introduced by President Lyndon Johnson in 1965, to include sexual orientation and gender identity among race, color, religion, sex and national origin as grounds on which federal contractors may not discriminate.  The Secretary of Labor has been directed to prepare implementing regulations within 90 days (or by October 19, 2014).  While the Order is effective immediately, the obligations set forth in the Order will apply to contracts entered into on or after the effective date described in the regulations.  Once in effect, probably in early 2015, federal contractors will be required to maintain a policy against discrimination based on sexual orientation and gender identity with respect to employees and job applicants.

Efforts by some religious leaders for President Obama to include broad religious exemptions for federal contractors were rejected.  However, the Executive Order does not alter more limited religious exemptions that already exist in the regulations, which essentially allow religious organizations to hire and employ co-religionists.

President Obama’s order also amends Executive Order 11478 to include gender identity among the prohibited grounds of discrimination against federal employees.  First issued by President Richard Nixon in 1969 and subsequently amended by President Bill Clinton in 1998 to include sexual orientation, federal employees will now be protected against discrimination based on gender identity effective immediately.  While the Obama administration has previously interpreted existing law to protect transgender federal employees, federal employees will now be formally and explicitly protected from discrimination on the basis of gender identity.

Overall, some speculated that President Obama had been waiting to sign the Order to assess the Supreme Court’s recent decision in Burwell v. Hobby Lobby.  In Hobby Lobby, the Supreme Court ruled that, with respect to closely-held corporations, the government’s imposition of certain provisions relating to the contraception mandate conflicted with the religious beliefs of their owners in violation of the Religious Freedom Restoration Act.  Based on Hobby Lobby, certain religious groups have threatened to challenge the legality of President Obama’s Order because it omits a broad religious exemption.

While long-promised by President Obama and demanded by LGBT organizations, the Order’s impact may nonetheless be limited.  All of the top five federal contractors have non-discrimination policies that include sexual orientation and gender identity.  According to the Human Rights Campaign, nearly 90% of Fortune 500 companies already ban discrimination based on sexual orientation and roughly 60% of them ban discrimination based on gender identity.

Employers who do business with the federal government, or any state or municipal government inclined to follow President Obama’s lead, will need to review their non-discrimination, domestic partnership, and family and medical leave policies to include protections for LGBT workers.  Stay tuned for further information once the Department of Labor’s proposed implementing regulations are published.

We Need Your Votes! – Employment Law Lookout in the Running for ABA’s Top 100 Legal Blogs

Posted in Uncategorized

The American Bar Association is holding its annual competition for the 100 best legal blogs and Seyfarth’s Employment Law Lookout Blog is in the running.

Whether you are an avid reader of our timely legal and news updates, enjoy our complimentary webinars, or simply utilize our legal resources page, we would greatly appreciate your support in helping our blog make the ABA’s top 100 list.

You can cast your vote at http://www.abajournal.com/blawgs/blawg100_submit/.

Hurry, the deadline to vote is August 8, 2014.

Thank you for your support.

Employment Law Lookout Blog Celebrates ONE Year — Thank you!

Posted in Uncategorized

Employment Law Lookout readers — today marks the one year anniversary of the Employment Law Lookout Blog.  Since we started on July 17, 2013, we have published well over a hundred articles (featuring over 70 talented Seyfarth authors) on topics as wide ranging as Leave and Accommodation issues, to Social Media, to Whistleblower issues.  We’ve also kept our readers up to date on the latest developments in Federal and State law that may impact your workplace.  We have presented two wildly successful (IOHO – in our humble opinon) “subscriber only” webinars, and we continue to attract new readers every day.  Thank you.

As part of Seyfarth’s ongoing commitment to quality and content improvement, we welcome your continued feedback on how we can make the ELL Blog better for you.  We also invite your suggestions for content and topics within the Employment Law arena for our staff of writers and editors to be, well… on the Lookout.  To help with that, over the next couple of weeks, we will be rolling out a “voice of the reader” survey (with a “tip-of-the-hat” to our Trade Secrets Blog colleagues) where we hope to elicit additional feedback from you and identify topics for future blog posts for you.  Be … on the Lookout!

On behalf of the entire Employment Law Lookout team — thank you for a great year, and we look forward to many more to come.  Cent’anni!

And if you like the ELL blog – tell the ABA who each year seeks nominations for the “Blawg 100.”  We’d love to be nominated, but only you can do it!

Erin Dougherty Foley – Managing Editor

New Guidance From The EEOC Requires Employers To Provide Reasonable Accommodations Under The Pregnancy Discrimination Act

Posted in EEOC

By Paul Kehoe

Today, without the fanfare of a public meeting, the U.S. Equal Employment Opportunity Commission published Guidance on its website addressing the treatment of pregnancy under Title VII. Once again, it appears as if the EEOC adopted a position exceeding the statutory mandate that Congress bestowed upon it.  Requiring employers to provide a reasonable accommodation under Title VII of the Civil Rights Act of 1964 for all pregnant employees finds no statutory basis in the text of Title VII, the Americans With Disabilities Act, as amended, or the Pregnancy Discrimination Act (the “PDA”).  Indeed, the overwhelming majority of the Circuit Courts of Appeals that have reviewed the issue have held that the PDA does not include a reasonable accommodation requirement.  Despite that, a majority of the EEOC’s Commissioners determined otherwise.  Commissioners Barker and Lipnic both issued statements—immediately after the EEOC posted the Guidance on its website—questioning the wisdom of the majority’s actions on procedural and substantive grounds, each recognizing that the in adopting the new Guidance, the Commission sought to legislate changes to, rather than interpret, Title VII.

Controversy

This is a controversial issue for employers. On might reasonably argue that when the U.S. Supreme Court reviews Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013), in its next term, it should grant this Guidance the deference it deserves—none. 

This bald attempt to jump over a pending Supreme Court case and federal legislation, however, may backfire against the EEOC as the Supreme Court has rather routinely rejected EEOC guidance in recent years.  See, e.g., Vance v. Ball State University, 133 S. Ct. 2434 (2013) (rejecting the EEOC’s definition of “supervisor” and held that an employee is a supervisor only where the employer has empowered the employee to take tangible employment actions against the employee rather than the EEOC’s more expansive definition); Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (rejecting the EEOC’s position that retaliation claims under Title VII were subject to the “motivating factor” causation standard); Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694, 707 (2012) (rejecting the EEOC’s position that the ministerial exception did not apply to ADA retaliation cases).  The Supreme Court’s decisions were often based on the lack of statutory support for the EEOC’s positions.  Like all regulatory agencies, the EEOC does not operate in a vacuum or in pursuit of policies which it may desire to implement but rather may act only pursuant to the authority given to it.

Without a doubt, given the broad expansion of covered disabilities under the ADAAA, many more pregnancy-related impairments now likely rise to the level of an ADA-covered disability (e.g., anemia, pregnancy-related sciatica, pre-eclampsia, gestational diabetes).  In these instances, a pregnant employee would be afforded the same right to reasonable accommodation under the ADA as any other individual with a disability, regardless of whether the impairment was related to pregnancy.  In addition, twelve jurisdictions have adopted pregnancy accommodation statutes or ordinances.  However, the Guidance asserts that the reasonable accommodation requirement applies even for those pregnant employees whose impairments do not rise to the level of a disability under the ADA (e.g., those with a “normal” pregnancy) notwithstanding that under the ADA, pregnancy is not an impairment.

The standards adopted in the Guidance are currently proposed in the Pregnant Worker’s Fairness Act (the “PWFA”), S. 942 and H.R. 1975.  The PWFA, if enacted, would make it an unlawful employment practice to not provide a reasonable accommodation to the known limitations related to pregnancy or force a pregnant employee to take leave, among other things.  Rather than waiting until the legislative process is complete, the Guidance preemptively reaches the same conclusion under the theory that the reasonable accommodation requirements of the Americans with Disabilities Act of 1990 were incorporated into the PDA, which was enacted in 1978.

Implications For Employers

As a practical matter, employers will feel the greatest impact of the Guidance in the area of light duty and leave as applicable to female employees with “normal” pregnancies.  Currently, under federal law, where an employer’s policy provides leave or light duty for employees injured or otherwise medically limited in their ability to work for any reason, a pregnant employee is entitled to such leave—the fact that her limitation arises from a normal pregnancy, rather than an injury or medical condition—is irrelevant.  Conversely, as was permissible in Young, where an employer’s light duty or leave policy limits eligibility to those with a disability or those with on the job injuries, an employee with a normal pregnancy would not be eligible for light duty.  Under the Guidance, employers would be required to provide light duty and/or leave for all pregnant employees, regardless of whether they were “disabled” under the ADA.

Notably, the EEOC’s process in adopting the anticipated Guidance ignored the standards articulated by the Office of Management and Budget (“OMB”) in its “Final Bulletin for Agency Good Guidance Practices” (No. M-07-07, January 18, 2007). That document—which “establishes policies and procedures for the development, issuance, and use of significant guidance documents by Executive Branch departments and agencies”—sets forth a number of recommendations for significant guidance documents.  While it stops short of requiring agencies to provide pre-adoption notice and comment on all significant guidance documents, it recognizes that “it is often beneficial for an agency to do so when they determine that it is practical.  Pre-adoption notice and comment can be most helpful for significant guidance documents that are particularly complex, novel, consequential, or controversial.”

As this Guidance adopted a standard that is currently pending before Congress and the Supreme Court, a standard overwhelmingly (though not unanimously) rejected by the Circuit Courts of Appeals, and one which essentially eviscerates the EEOC’s prior position that pregnancy is not a disability (which was issued during a notice and comment rulemaking), all without public comment or an opportunity for dissenting Commissioners to publicly object to the Guidance, its adoption casts a pall over its legitimacy.  Unfortunately, the EEOC has decided that the legislative and judicial processes are not necessary when rewriting the statutes that it enforces.

Obama Pushes to Enhance Workplace Flexibilities with Latest Presidential Memorandum

Posted in Absence Management & Reasonable Accommodation, Workplace Policies and Processes

By Giselle Donado, Kevin A. Fritz, and Craig B. Simonsen

Recently, President Obama issued a Presidential Memorandum (“PM”) on Enhancing Workplace Flexibilities and Work-Life Programs.  79 Fed. Reg. 36625 (June 27, 2014).  This issuance comes during a recent trend pushing for the passage of several pieces of work and family-related legislature, including the Paycheck Fairness Act and the Pregnant Workers Fairness Act, and a call for continued support for the Affordable Care Act and raising the minimum wage.

The President announced in the PM that “it is the policy of the Federal Government to promote a culture in which managers and employees understand the workplace flexibilities and work-life programs available to them and how these measures can improve agency productivity and employee engagement. The Federal Government must also identify and eliminate any arbitrary or unnecessary barriers or limitations to the use of these flexibilities and develop new strategies consistent with statute and agency mission to foster a more balanced workplace.”

The PM reads very much like a statute, explaining policy, setting out rights and requirements, and listing deadlines for implementation.  Specifically the PM mandates:

  • Section 1: Right to Request Work Schedule Flexibilities.
  • Section 2: Expanding Access to Workplace Flexibilities.
  • Section 3: Expanding Availability and Encouraging Use of Work-Life Programs.
  • Section 4: Helping Agencies Encourage the Use of Workplace Flexibilities and Work-Life Programs.
  • Section 5: Agency Review of Workplace Flexibilities and Work-Life Policies and Programs.

Generally the PM requires agencies to facilitate conversations about work schedule flexibilities. President Obama calls on each agency to review, amend or establish procedures for work schedule flexibilities within 120 days of the date of the memorandum. So much so is the intent that agency heads are to ensure that workplace flexibilities are available to the “maximum extent practicable.”

Work-life programs, to the “maximum extent practicable: are to include dependent care programs, child care subsidies, emergency child care, and elder care; employee assistance programs, including counseling, resources, and referrals; support for nursing mothers, including worksite lactation support programs and resources; and worksite health and wellness programs, and opportunities to utilize those resources.”

While the PM specifically applies to federal agency employers, private employers that submit bids for federal work or contracting on federal projects may be impacted by what the federal agencies adopt in response.  For instance, federal project agency contacts that in the past may have been accessible five days a weeks, from 9 AM to 5 PM, may no longer be found during those standard hours.  In addition, what the EEOC determines to be “best practices” for federal agencies could be a preview of how it will handle private sector disability claims and charges.

For more information regarding this topic, please contact the author or your Seyfarth attorney.

Eleventh Circuit Says “NO” to Drunk Driving

Posted in Workplace Policies and Processes

By: Gena B. Usenheimer and Samuel Sverdlov

Of the issues arising under the Americans with Disabilities Act (“ADA”), few are more nuanced and complex than an employer’s rights and responsibilities regarding employees with an alcohol addiction or dependence.  Commercial truck drivers present a unique issue as companies that employ drivers to spend long hours on the road present safety concerns that are not present in all industries.  Yet, such companies are not exempt from the requirements of the ADA (and similar state and city laws) that prohibit discrimination against an employee who is a “qualified individual with a disability.”

Under the ADA, determining whether an employee is a “qualified individual with a disability” involves a two-step inquiry.  First, to be “disabled” an individual must have “a physical or mental impairment that substantially limits one or more of the major life activities of an individual,” “a record of such impairment,” or is “regarded as having such impairment.”  Such individuals are “qualified” when they can “satisfy the requisite skill, experience, education and other job-related requirements” and “perform essential functions of a position with or without reasonable accommodation.”

The United States Court of Appeals for the Eleventh Circuit recently addressed the issue of an employer’s liability for terminating a commercial truck driver who suffered from alcoholism, a condition that is often considered a disability under the ADA.  The focus of the Court’s analysis was on the relevant Department of Transportation (“DOT”) regulations which provide that a person with a “current clinical diagnosis of alcoholism” is not qualified to drive a commercial motor vehicle.  The regulations do not, however, instruct who makes the final determination of whether an employee has a current diagnosis of alcoholism—the employer or the DOT (or other) medical provider.  And this is where the dispute arose:  following the plaintiff-employee’s leave of absence to receive treatment for alcoholism, he obtained clearance by a DOT medical examiner that he was fit to return to work.  However, the defendant-employer received contrary guidance from the plaintiff’s alcohol treatment counselor, who diagnosed him with “alcohol dependence or alcoholism.”

The plaintiff argued that the DOT medical examiner determined he did not suffer from a current diagnosis of alcoholism, as evidenced by his having cleared the plaintiff to return to work, and that the DOT’s finding should be determinative with respect to this ability to drive a commercial truck.  The defendant, in contrast, argued that it is the employer’s obligation to make the final determination as to who is qualified to drive a commercial truck and that the treatment counselor’s diagnosis provided objectively reasonable evidence that the plaintiff did suffer from a current clinical diagnosis of alcoholism.  The Eleventh Circuit agreed with the defendant, finding DOT regulations place the onus on an employer to ensure its employees are qualified to drive a commercial vehicle.  Based on this, and the diagnosis from the treatment counselor, the Eleventh Circuit agreed that the defendant reasonably determined the Plaintiff was not qualified under the DOT regulations to drive a commercial vehicle and therefore did not violate the ADA in refusing to reinstate him.

While this decision appears to signal some leeway for employers in determining whether employees are qualified individuals with a disability, the Court’s holding will likely be limited to the particular facts of the case as DOT regulations apply to a niche subset of employers.  And while the heightened public safety concerns present in this case were not specifically addressed by the Court, they no doubt played a role in its decision.  Accordingly, employers operating outside of the DOT sphere should still continue to exercise caution when seeking to terminate or otherwise discipline employees with alcohol addictions.

Can Employers Discipline Employees Who Post False Claims Of Harassment On Facebook? Yes, But Beware Of The Pitfalls

Posted in Social Media, Workplace Policies and Processes

By: Jonathan L. Brophy

Employers know all too well, or are learning very quickly, that the intersection of their anti-harassment policies and their employees’ Facebook posts is something of a moving target.  Employers often feel unsure as to how far they can go in investigating an employee complaint of a co-worker’s internet conduct.  The United Supreme Court recently alleviated some of this uncertainty for employers that investigate claims of harassment but then, in the process, also encounter employees who lie about their Facebook posts.  The Court recently refused to review a Tenth Circuit decision Debord v. Mercy Health System of Kansas, Inc., 737 F.3d 642 (10th Cir. 2013), and in doing so, let stand some of the guidance provided by that Court.

The Employee’s Facebook Posts and Termination of Employment

In Debord, the employee posted on Facebook that her direct supervisor had intentionally overpaid employees and that he “needs to keep his creapy hands to himself . . . just an all-around d-bag‼”

The supervisor, who had seen the Facebook posts himself, reported the employee’s comments to the employer’s HR director.  The employee lied to the HR director, on three separate occasions, about posting the comments to her Facebook account, but then later admitted to posting the comments herself.  While the company was investigating her concerns, the employee then sent text messages about the investigation to other employees.

The company then terminated the employee for her dishonesty over authoring the posts while at work and her disruptive behavior during the investigation.  Plaintiff, however, then sued for sex discrimination and retaliation alleging, in part, that the employer fired her because of her Facebook posts.

The 10th Circuit agreed with the trial court that the employer acted lawfully when it fired the employee.  The Court noted that the employee’s Facebook posts did not amount to a legally protected complaint of sexual harassment.  First, the Facebook posts did not comply with the employer’s flexible system for reporting sexual harassment complaints.  Second, the Facebook posts did not provide any notice to the employer.  Finally, the employer did not fire the employee because she posted on Facebook, rather it fired her because she was dishonest about the posts and for being disruptive during the employer’s investigation.

This case scenario presents a couple of key take-aways for employers.

Beware of the Pitfalls of Investigating On-line Conduct

  • No Shoulder Surfing.  Many states now prohibit employers from asking an employee for their social media password or from accessing their social media sites in the presence of the employer.  In Debord, the supervisor and several other employees saw the publicly posted comments and the supervisor reported it—the employer did not actively seek out the social media information.  Be sure to know your jurisdiction’s current rules on accessing employee’s social media.  Seyfarth recently published a desk reference covering this topic.
  •  Balance Your Investigations.  Many states also now prohibit employers from retaliating against employees who refuse to provide access to their social media accounts—but exceptions may exist if the employee’s social media content is relevant to allegations of employee misconduct or employer policies.  Again, it is imperative to be current on the rules that apply in your jurisdiction.

  • Consider If Postings Are “Concerted Activity”.  In September 2011, the National Labor Relations Board concluded that an employer had improperly terminated employees it had perceived as violating the employer’s harassment policy because those employees were engaged in protected concerted activity when they posted comments about their supervisor.  In contrast, in Debord, the employee was not terminated for posting about her supervisor on Facebook, but rather for lying about posting while at work and for her disruptive behavior in the investigation that followed.  When investigating complaints about work made on Facebook, employers must consider whether there are any implications of “concerted activity” raised by the employees’ posts.

Employers should review their social media policies to ensure that the policies provide the most protection for the employer to enforce its anti-harassment, trade secret and other policies, but that the policies also do not unlawfully prohibit protected concerted activity.

Be sure to download Seyfarth Shaw’s Social Media Desktop Guide by clicking here.  Or contact the author or a member of Seyfarth Shaw’s Social Media Practice Group to get more information.

Interest Groups Weigh In On Significant New Jersey Supreme Court Case Involving the Scope of CEPA Whistleblower Claims

Posted in Whistleblower, Workplace Arbitration, Workplace Policies and Processes

By: Ada W. Dolph and Howard M. Wexler

New Jersey’s whistleblower statute, the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1, is frequently referred to as one of the most expansive whistleblower statutes in the country.  Currently before the New Jersey Supreme Court is the case of Lippman v. Ethicon, Inc., No. A-65/66-13 (cert. granted Mar. 14, 2014), which will have a significant impact on CEPA’s scope, and employee and employer interest groups are weighing in.  Most recently, several labor and environmental organizations hosted a joint conference call to discuss their amicus brief advocating that the Supreme Court use Lippman to expand CEPA to permit claims by “watchdog” employees—those employees for whom whistleblowing could be considered part of their job duties.  Oral argument on this case is set before the New Jersey Supreme Court for after September 2014.  We will continue to monitor developments in this case.

Lippman v. Ethicon

For those of you hearing of Lippman for the first time, here is the background that you need to know.  In Lippman v. Ethicon, Inc., 432 N.J. Super. 378 (App. Div. 2013), the New Jersey Appellate Division reversed a trial court decision which held that an employee failed to establish a prima facie claim of retaliation under CEPA, because he had “failed to show that he performed whistle-blowing activity.”  The employee, whose primary job was to review and report on product safety, allegedly advocated for the recall of certain products that, in his professional opinion, were harmful to the public.  He was subsequently terminated.

In reversing the trial court, the Appellate Division refused to abide by a preceding appellate case, Massarano v. N.J. Transit, 400 N.J. Super. 474 (App. Div. 2008), which held that an employee’s reporting was not protected whistleblowing activity because in doing so, she was “merely doing her job as the security operations manager by reporting her findings and her opinion.”  Lippman rejected the legal presumption that “an employee’s job title or employment responsibilities should be considered outcome determinative in deciding whether the employee has presented a cognizable cause of action under CEPA.”  The panel developed the following four-part test for establishing a prima facie case in situations involving “watchdog” employees: (1) The employee must reasonably believe that the employer’s conduct was violative of a law, government regulation or public policy; (2) The employee must establish that he or she refused to participate or objected to the unlawful conduct, and advocated compliance with the relevant legal standards to the employer or to those designated by the employer with the authority and responsibility to comply; (3) The employee must have suffered an adverse employment action; and (4) There must be a causal connection between the complained-of conduct and the adverse employment action.  The Appellate Division made a somewhat higher standard for “watchdogs,” requiring them to show that they have either (a) exhausted all internal means of ensuring compliance or (b) refused to participate in the offensive conduct.

Implications for Employers

The potential far-reaching implications of this decision are underscored by the fact that several employer and employee groups have filed amicus curie briefs with the Supreme Court, including the Employers Association of New Jersey, N.J. Business and Industry Association, New Jersey Association for Justice and a compilation of 27 environmental, labor and community organizations.  Whether and to what extent (if any) these “watchdog” employees will be able to avail themselves of CEPA is an issue that all employers with operations in New Jersey should monitor – stay tuned!

Department Of Labor Gets “Celebratory” With New Proposed FMLA Regulations

Posted in Workplace Policies and Processes

By: Kevin A. Fritz

The Family and Medical Leave Act (“FMLA”) allows employees to take leave from work to care for a family member with a serious health condition.  Last week, the Department of Labor proposed to amend Regulations that implement the FMLA—which would allow an employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.

Windsor Past

Around this time last year, in U.S. v. Windsor, the Supreme Court struck down the provisions of the Defense of Marriage Act that denied federal benefits to legally married, same-sex couples.  After the Windsor decision, but before last week’s announcement, employees were only eligible to take FMLA leave to care for a same-sex spouse if they also resided in a state in which same-sex marriage is legal.

“Celebration” Future

The DOL has now proposed to eliminate the residency requirement by broadening the definition of “spouse” to recognize legally married individuals under any state law.  The new definition is proposed as:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

This definition is consistent with the DOL’s September 2013 Guidance to employee benefit plans, which took a “place of celebration” approach to the definition of “spouse” and “marriage” for purposes of the Employee Retirement Income Security Act.  In practice, if the employee and his same-sex spouse were married in Illinois (a state that recognizes same-sex marriage), but now resides with his same-sex spouse in Indiana (a state that does not), the employee will enjoy FMLA rights to care for his spouse just as if he had resided in Illinois.

The proposed rule allows for eligible employees to take:

  1. FMLA leave to care for their same-sex spouse with a serious health condition
  2. Qualifying exigency leave due to their same sex spouse’s covered military service
  3. Military caregiver leave for their same-sex spouse

Implications

Remember, the FMLA applies to employers with 50 or more employees.  And the regulations are not final yet as the public must first have a chance to provide comment directly to the DOL.  But, once the FMLA Regulations are amended, affected employers should review all FMLA-related policies, procedures, forms, and notices.  Employers should also be aware of obligations under certain state and local laws may provide greater leave rights than the FMLA, such as leave to care for same-sex partners in domestic partnerships or civil unions.

As of posting, same-sex marriage is legal in California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.