MHTL Monthly Labor/Employment/Benefits Update Useful Cases And Updates - January 1, 2004
MHTL Monthly Labor/Employment/Benefits Update Useful Cases And Updates - January 1, 2004
MISTAKE OF THE MONTH - More FMLAThe Tail Wagging The Dog - An Intermittent Leave Nightmare - An employee using intermittent leave threatened to go to the Department of Labor when he was put on probation for unexcused absences. The employer backed off, but it didn’t help them avoid being sued.
EMPLOYERS AND CORPORATE GOVERNANCE
Former AG Harshbarger Cautions HR Advisors On Corporate Governance - Controlling your own destiny in an uncertain world.
OTHER EMPLOYMENT LAW HEADLINES
Keep Track Of Those Naps - An employee fired for sleeping on the job survived summary judgment with evidence that a younger male employee was caught sleeping on the job three times before he got fired.
ADA Bars Disability-Based Hostile Work Environment - The Americans with Disabilities Act (“ADA”) protects employees from a disability-based hostile work environment, though in this case it wasn’t hostile enough.
30 Years Of Excellent Evaluations Undermines Termination For Poor Performance - Here the employer was in the position of explaining how a teacher with 30 years of excellent evaluations received such a poor evaluation from the new principal that it led to the teacher’s termination.
Restructuring Methodology Was Not Age Discrimination - Plaintiffs claimed that the company’s decision not to use prior performance evaluations in restructuring resulted in lesser-rated and younger employees being retained.
Was ULP (Unfair Labor Practice) To Terminate Non-Union Employee For Complaining To Client - In another case with no union involved, the NLRB ruled that it was unlawful for the employer to fire two employees who complained to its only client about a bonus paid by the client that was not passed through to the employees.
WAGE & HOUR/FMLA DEVELOPMENTS
Any Late Wage Payment Violates State Payment Of Wages Statute- According to the judge, the payment of wages statute says wages must be paid within 7 days of the end of the pay period, and if they are not, then there is liability - there are no excuses.
Probation Period Extensions Might Violate FMLA And/Or USERRA - A somewhat troubling case for any employer who extends a probationary period by the amount of FMLA or other protected leave taken during the probationary period.
Litigation Too Late To Challenge Need For FMLA Leave - You have to challenge the need for FMLA leave at the time of the request, not later in litigation.
AT THE SUPREME COURT
Supreme Court Sends “Failure To Rehire” Case Back To Lower Court - Court rules that a no-rehire for prior misconduct policy is a legitimate non-discriminatory reason for not rehiring someone.
Court Accepts “Constructive Discharge” Case - This is a case that could have significant implications in employment litigation.
Court To Decide If Benefit Suspensions Violate ERISA “Anti-Cutback” Rule - Does it violate ERISA’s “anti-cutback” rule to change rules for the suspension of pension benefits and apply those changes to current retirees?
LEGISLATIVE AND REGULATORY ACTIONS OF NOTE
Wage/Hour Regulation Revision Process Will Go Forward For Now - At the moment the DOL will continue overtime regulation revisions for release in March, 2004.
New EEOC Rule “Clarifies” Right To Sue Under ADEA - Plaintiff may sue before receiving EEOC “right to sue” letter.
Recent Medicare Bill Creates Health Savings Accounts - New Health Savings Accounts (“HSA”s) modeled on Individual Retirement Accounts.
EEOC Plans September 04 Publication Of Final Rule On Retiree Health Plans - Rules coordinating retiree health benefits with receipt of Medicare benefits.
Department Of Homeland Security Issues Proposed H-1B Visa Regulations - New rules supposed to conform current regulations to recent changes in the law.
OSHA Will Use Model MSDSs For Workplace Investigations - Stating that several workplace fatalities have been attributed to inaccurate material safety data sheets (“MSDS”), OSHA inspectors will start using model sheets.
Sarbanes-Oxley Act Whistleblower Claims - Sarbanes-Oxley Act whistleblower charges have become the second largest source of whistleblower claims at OSHA.
ON THE EMPLOYEE BENEFITS FRONT
Fund Required To Credit Years Of Service Prior To Break In Service - A pension plan must give a participant credit for all years of service (unless one of three narrow exceptions apply), even if those years of service pre-date ERISA’s enactment in 1974.
Does The Plan Document Or The SPD Govern The Administrator’s Discretion? - On this issue at least, the plan document; here, the SPD purported to grant discretion not found in the plan document.
Abuse Of Discretion Times Two - Improper for lower Court judge to substitute his judgment for that of the plan administrator, and thus that judge abused his discretion by finding that the plan administrator abused his discretion.
The “Golden Parachute” Didn’t Open In This Case - Section 510 of ERISA makes it unlawful for an employer to retaliate against an employee for exercising rights under an ERISA plan, though the claim did not work in this case.
ON THE LABOR FRONT
All Nurses In System Must Be Included In Bargaining Unit - Two cases in which the Board expanded a bargaining unit sought by a union to include various other sites.
Bar On “Sympathy” Strike In Contract Must Be Express - Generic “no strike” provision in contract does not include a sympathy strike; waiver of employee rights must be “clear and unmistakable.”
Solicitation/Distribution Policy Must Be Uniformly Enforced - Three cases in which the Board found an unfair labor practice where an employer discriminatorily enforced a solicitation/distribution policy against union organizers.
Broad Cease And Desist Order Imposed By Board - Broad “cease and desist” order upheld, despite risk that employer might avoid lawful discipline of employees because of fear of being held in contempt.
