Home  >  News & Publications  >  Client Alert December 1, 2003 MHTL Monthly Labor/Employment/Benefits Update Useful Cases And Updates - December 1, 2003 Late-Breaking News-FCRA Third-Party Investigations Changes Approved By Congress - Congress has approved changes long-sought by employers in the 3rd party investigation provisions of the Fair Credit Reporting Act. MISTAKE OF THE MONTH - Spotlight On The FMLA “I Never Heard Of This FMLA Law Before” - It certainly was an unpleasant surprise to this employer; presumably they’ve done some training since then. No, You Don’t Have Discretion In Granting FMLA Leave - While this case is somewhat baffling in part, it does illustrates some of the real-life problems and pressures employers can run into with the FMLA. FUNNY BONE CASE OF THE MONTH Maybe It Was A Stale Bagel - An employee claimed discrimination after being terminated for attacking a co-worker with a bagel which reportedly left the co-worker with a swollen forearm. OTHER EMPLOYMENT LAW HEADLINES Camera Cell Phones At Work, Or “Hey, How Did I Get On The Internet?” - A new potential workplace problem appears. Termination For Violation Of Last Chance Agreement Was Not Disability Discrimination - It was not disability discrimination to terminate an employee for violation of his fourth Last Chance Agreement. These agreements do not in and of themselves violate the ADA. Going Fishing Is Not Necessarily A Vacation - There was a legitimate business purpose for the company’s yearly fishing trip, so the IRS’s attempt to collect employment taxes on the value of the trip for each employee was rejected by the Court. Absent “Actual Malice,” It’s OK To Report Employee To State Licensing Authorities - Even though the reporter was chided by the licensing agency for filing a frivolous complaint, he was not liable to the employee because he did not act with actual malice. Workers' Comp Exclusive Remedy For Emotional Distress From Interrogation - Jury award of $50,000 for emotional distress was overturned. Workplace investigations into theft are a normal part of the employment relationship, workers’ comp is employee’s exclusive remedy. “Significant” Age Disparity Required To Maintain Age Discrimination Action - Age difference of 3-6 years between plaintiff and his replacement was not significant enough, absent direct evidence of age discrimination, to support an age discrimination claim. Inconsistent Positions In SSDI and ADEA Claims Fatal To ADEA Claim - While the Court didn’t come right out and call the plaintiff a liar, it might as well have. ADHD Not, In This Case At Least, A Disability Under The ADA - Doctor’s conclusory diagnosis of ADHD not enough to support claim of disability, especially where employee testified he could do the job. How Not To Handle A Reasonable Accommodation Situation - A case study in an employee allegedly railroaded out of a job in a none too subtle fashion. Each Paycheck Is A “Fresh” Act Of Discrimination - A distinction between a discrete act of discrimination such as a failure to promote or hire, and an act such as a failure to give a raise, which recurs with each and every paycheck into the future. SJC Rules Plaintiff Attorneys May Contact Ex-Employees - A plaintiff’s counsel may interview virtually any former employee, and certain categories of current employees as well, without informing the defendant’s counsel. WAGE & HOUR DEVELOPMENTS Company Liable For Late Wage Payment Despite Employee’s Agreement - Even though the employee agreed to defer her wages until the company’s financial situation improved, the employer was liable under the state Payment of Wages statute. Fired Employee Due Vacation Pay - This case is a good reminder to have clear personnel policies, even though the Court avoided the tougher question of whether or not an employer can deny a terminated employee vacation pay. AT THE SUPREME COURT Is It Reverse Age Discrimination When Older Employees Receive More Benefits Than Younger Employees? - In this case only employees age 50 by a certain date received retiree medical benefits. Younger employees claimed this was reverse age discrimination. The 6th Circuit Court of Appeals agreed; the Supreme Court will decide early next year after hearing oral arguments this month. Supreme Court Accepts HMO ERISA Preemption Cases - On November 3, 2003, the Court accepted two consolidated cases on ERISA preemption, a constant topic of litigation in the federal courts and a frequent flyer at the Supreme Court as well. LEGISLATIVE AND REGULATORY ACTIONS OF NOTE Status Of Wage/Hour Regulations Still In Limbo - Amendment to bar the Department of Labor from issuing revised regulations was still unresolved. Senate, But Not House, Votes To Expand I-9 Program - Electronic work authorization program may or may not be extended. Amendment Killing Cash Balance Regulations Approved - Treasury would be barred from issuing cash balance conversion regulations. EEOC Establishes National Call-In Center For Charge Advice - Telephone help in filing discrimination charges will be piloted in October 2004. Substance-Free Workplace Website - On line help with drug and alcohol free workplaces at www.dol.gov/dol/workingpartners.htm ON THE EMPLOYEE BENEFITS FRONT SJC Rules Same Gender Couples May Wed - Under the Massachusetts Constitution, the Commonwealth cannot bar the marriage of same gender couples. The decision may have implications for employers and benefit program administrators. Being Nosy Is Not Cause To Deny Severance Pay Under ERISA Plan - Under ERISA severance plan, termination for accessing confidential and personal computer files accessible to any employee was not “cause” to deny severance benefits. Follow-Up - Contingent Employee Status Under ERISA Plans - Two more cases rule eligible “employee” status is determined under the Plan definitions rather than “common law” status. 3rd Circuit Court Of Appeals Pleads For Preemption Guidance - Preemption becoming too confusing and unfair, according to 3rd Circuit Court of Appeals. ERISA Does Not Preempt State Law Employment Contract Claim - Alleged breach of a contract to continue plaintiff’s employment until he actually retired, and pay out bonus and profit-sharing, was not preempted by ERISA. ON THE LABOR FRONT Proposed Legislation Would Require Board To Certify Card Checks - Legislation filed this month basically would require employers to recognize a union solely on the basis of so-called “card checks” without holding a secret ballot election. Weingarten Redux - It was unlawful for employer to limit role of a Weingarten representative to a silent observer, but suspending an employee when he demanded participation of two union representatives was not. Good Faith Not Enough; You Have To Be Right - You have to be right that misconduct actually occurred to discipline an employee for his protected conduct-here, allegedly threatening employees if they did not sign union authorization cards. A good faith belief the misconduct occurred is not enough.