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Archive for the ‘Employment Law Blog (US)’ Category

Trends and the Economic Impact Involving Workplace Injuries

Posted on: December 6th, 2017

By: Jac O’Delle E. Wright

Employers, agents, brokers and insurers have every reason to keep up-to-date regarding trends and the economic impact involving workplace injuries.  Because of frequent changes, including those involving workers’ compensation legislation and case law, safety management programs and training, as well as indemnity and medical costs, it is important to consider the inclusion of reliable, actuarily-based reports into business plan models.

In California, the premier provider of this information is the Workers’ Compensation Insurance Rating Bureau (WCIRB) that tracks, among other things, projected loss and expense ratios, benefit rates, duration and nature of claims, renewal percentages, retrospective rating plans, hazard group severity multipliers, average returns on net worth, cost exposure pertaining to prescription medications and liens, and comparisons with other states.

The WCIRB is also tracking the long-term impact of State Senate Bill 863 reforms that primarily resulted from negotiations between employers and labor unions, with several provisions effective January 1, 2013 and beyond. Some of the objectives and impact of California’s legislation were to increase benefits for injured workers and, contemporaneously, address and/or limit the rising costs of medical treatment and related costs to employers in part, through the implementation of a Medical Provider Network program and a Utilization Review appeal process.

Similar information to that provided by the WCIRB for other states can also be viewed, including for the following locations:

Florida-National Council on Compensation Insurance (NCCI Holdings, Inc.);

Georgia -National Council on Compensation Insurance (NCCI Holdings, Inc.);

New York Compensation Insurance Rating Board;

New Jersey Compensation Rating & Inspection Bureau;

North Carolina Rate Bureau;

Pennsylvania Compensation Rating Bureau (PCRB)

It is of primary importance to correlate these industry costs and trends with the practical and legal implications as applicable to each individual employment circumstance. For further information, contact our local counsel at Freeman Mathis & Gary LLP, and, for California, contact Jac O’Delle E. Wright at [email protected].

Farmworker Union Sues to Overturn NC Law That Nixes Dues Checkoff and Voids Agreements Requiring Farmers to Sign Union Contracts

Posted on: November 20th, 2017

By: Paul H. Derrick

For years, the Farm Labor Organizing Committee, a small Ohio-based union that is the only labor organization representing farmworkers in the State of North Carolina, has used actual and threatened lawsuits as a means of getting farmers in the state to voluntarily recognize and bargain with it. The state’s Farm Act of 2017 contains provisions aimed at stopping that coercive tactic, and FLOC is making good on its promise to fight back.

The Farm Act makes it a violation of the state’s public policy for farms, most of which are small, family-owned operations, to collect membership dues from employees and forward them along to a union, even if the union and the farm have executed a collective bargaining agreement that requires such dues collection. The law also makes it a violation of public policy for a union to require that a farm enter into a union contract as a means of settling a lawsuit or avoiding litigation in the first place.

Represented by civil rights lawyers from the American Civil Liberties Union, the Southern Poverty Law Center, and the North Carolina Justice Center, the union and two individual migrant farmworkers, both of whom previously brought legal actions against their non-union employers, have filed a lawsuit in federal court against Governor Roy Cooper and the director of the North Carolina court system. The lawsuit claims that the Farm Act impedes their First Amendment right to participate in union activity and is racially discriminatory (i.e., because most of the state’s farmworkers are Latino). It demands that the court declare portions of the Farm Act to be unconstitutional and also asks that preliminary and permanent injunctions be entered to restrain state officials from enforcing those provisions of the law.

North Carolina farmers employ about 100,000 workers annually, and FLOC claims to have almost 5,000 dues-paying members among that workforce. Because there are no federal or North Carolina laws that give agricultural workers a right to demand a union election, FLOC insists that the only way it can organize workers is by actual or threatened lawsuits over issues such as alleged wage and hour violations, where part of the settlement demanded includes farmers voluntarily recognizing the union as the bargaining representative of their employees and collecting dues from the workers on behalf of the union.

A copy of FLOC’s lawsuit can be found here. We will continue to keep you apprised of developments in this area as they occur. In the meantime, if you have any questions or would like more information, please contact Paul Derrick at [email protected].

You’ve Got Mail! – EEOC Charge Filing Process Is Now Available Online Across the Country

Posted on: November 17th, 2017

By: William E. Collins, Jr.

For many people, “You’ve Got Mail” evokes fun memories of Tom Hanks and Meg Ryan bickering and then falling in love over the internet in the popular 1998 romantic comedy.  Now, however, this phrase may evoke far less pleasant emotions (at least for employers) as the EEOC announced earlier this month that its online Public Portal is available nationwide for employees to file charges.

The EEOC has been working on the roll-out of the Public Portal for years and, after piloting the Portal in the EEOC’s Charlotte, Chicago, New Orleans, Phoenix, and Seattle offices earlier this year, the EEOC has now launched the Public Portal nationwide.  The EEOC anticipates that the Public Portal will streamline the charge process and open up the intake and charge systems to more employees.

Not only can an employee provide and update personal information through the Public Portal, an employee can proceed with the normal intake process.  While the portal will not let employees immediately submit charges, the portal allows an employee to ask the EEOC representatives questions, provide them with information, and upload supporting documentation. At that point, an employee may digitally sign and file a charge online that is prepared with the help of an EEOC representative.

Because the EEOC plans to provide access to charging parties that have charges currently pending and the Public Portal allows instant communication with these charging parties, there is hope that the Public Portal will provide a more efficient and streamlined resolution for the 84,254 charges filed in the Agency’s 2017 fiscal year.  Because, however, the Public Portal provides an additional mechanism that is a faster, more immediate path toward filing a charge, commentators anticipate that employers could see an increase in the number of charges filed with the Agency.

While the exact impact of the EEOC’s Public Portal remains to be seen, employers should take this opportunity to:

  • Review and develop their internal reporting and complaint policies and procedures;
  • Ensure managers and supervisors have received appropriate training; and
  • Ensure key leadership and human resources representatives know what to do if they receive notice of a charge.

If you have any questions or would like more information, please contact Will Collins at [email protected].

En Banc Eleventh Circuit Decision May Substantially Undermine Judicial Estoppel Defense

Posted on: November 17th, 2017

By: William H. Buechner, Jr.

A  decision recently issued by the Eleventh Circuit sitting en banc may substantially undermine the judicial estoppel defense in employment cases.

A judicial estoppel defense may arise in many contexts, but the most common scenario is when the plaintiff files for bankruptcy, denies under oath the existence of any actual or potential claims on the bankruptcy schedules, obtains relief (either a complete discharge or confirmation of a reorganization plan) and then pursues (or continues to pursue) the claims that the plaintiff failed to disclose.  Under circumstances such as these, courts may bar a plaintiff from pursuing these claims, on the ground that such conduct makes a mockery of the judicial system by denying the existence of claims in one judicial forum and then pursuing those claims in another forum.  Courts also recognize that such conduct would permit the plaintiff to enrich himself to the detriment of the plaintiff’s creditors.  We have asserted the judicial estoppel defense successfully to defeat a number of employment claims.

In order to apply judicial estoppel, the defendant must establish that the plaintiff intended to make a mockery of the judicial system.  The Eleventh Circuit previously had held that a district court may infer this intent if the plaintiff knew about the omitted claim and had a motive to conceal it (which the plaintiff almost always does).  In Slater v. United States Steel Corp., 871 f.3D 1174 (11th Cir. 2017) (en banc), the Eleventh Circuit reversed the dismissal of the plaintiff’s race and sex discrimination claims on the ground of judicial estoppel.  In doing so, the Eleventh Circuit overruled the precedent summarized above and held that the court should consider all the facts and circumstances of the case in deciding whether the plaintiff intended to make a mockery of the judicial system. Id. at 1185.  The Eleventh Circuit explained that the district court may consider factors such as (1) the plaintiff’s level of sophistication; (2) whether the plaintiff has corrected the non-disclosures and if, so, under what circumstances; (3) whether the plaintiff informed his bankruptcy attorney of the claim before filing the bankruptcy disclosures; and (4) whether the trustee or the creditors were aware of the claim before the plaintiff amended the disclosures. Id.

In announcing this totality of circumstances approach, the Eleventh Circuit suggested that, if the bankruptcy court allows the plaintiff to re-open the bankruptcy case to disclose the previously omitted claim, this factor may weigh against the application of judicial estoppel. Id. at 1186-1187.  In addition, the Eleventh Circuit resolved an intra-circuit conflict and held that judicial estoppel should not be applied in Chapter 7 cases where the claim belongs to the trustee, unless the trustee (rather than the plaintiff) fails to disclose the claim with the intent to make a mockery of the judicial system. Id. at 1184-1185, 1188 n.16.  Of course, a bankruptcy trustee seldom, if ever, engages in such conduct.

The Eleventh Circuit’s decision follows similar decisions in the Sixth, Seventh and Ninth Circuits, whereas the Fifth and Tenth Circuits continue to hold that the plaintiff’s intent may be inferred if the plaintiff knew about the omitted claim and had a motive to conceal it.  Given this circuit split, it is possible that the Supreme Court may address this issue at some point in the future.

Absent intervention by the Supreme Court, it may be much more difficult for employers in the Eleventh Circuit to prevail on a judicial estoppel defense as a result of the Slater decision.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].

To FMLA or not FMLA, that is the question…

Posted on: November 10th, 2017

By: Christopher M. Curci

FMLA and ADA leave questions are some of the most frequent that we receive from our clients.  Deciding whether an employee’s absence should be designated as FMLA leave, or granted as a reasonable accommodation under the ADA, is a legal land mine.

Fortunately, at least one federal judge in Pennsylvania recognizes the employer’s dilemma.  In Bertig v. Julia Ribaudo Healthcare Group, LLC, the employee suffered from bladder cancer and asthma, which are disabilities under the law.  She requested and was granted one month of FMLA leave in May of 2012.  She returned to work in June of 2012 as planned.

Beginning in April of 2013 and continuing through April of 2014, the employee called out sick thirteen times for various reasons, such as foot pain and a sore throat. She was terminated for violating the company’s attendance policy.  The employee filed suit alleging that she informed management that her absences were related to her disabilities, therefore her absences should have been designated as FMLA leave.  She also brought a claim for failure to accommodate her disabilities under the ADA.

The Court ruled in favor of the employer. The employee admitted during her deposition that ten of her thirteen absences were unrelated to her disabilities.  Because her absences were not disability-related, her termination did not violate the FMLA or ADA.  But, the most important takeaway in this case is the Court’s implication that the employer was not obligated to make further inquiry as to whether those absences were related to the employee’s disability before it made the decision to terminate her employment.  That burden fell on the employee given the totality of facts here.

While this decision is very fact specific, it is nonetheless a win for employers who struggle with FMLA/ADA leave requests. Just because an employee took FMLA leave in the past for a disability does not necessarily mean that the employer has a burden to inquire whether subsequent absences are related to that disability – especially when the absences occurred ten months later and the employee gives non-disability related reasons for the absences.

All employers should have written FMLA and ADA policies advising employees of their FMLA and ADA rights, and should document reasons for employee absences. Christopher M. Curci represents employers in litigation and advises his clients on all aspects of employment law.  If you need help with this or any other employment issues, he can be reached at [email protected].