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Posts Tagged ‘Employment Law’

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].

Reminder: New York’s Paid Family Leave Program Goes Into Effect January 1, 2018

Posted on: November 7th, 2017

By: Robyn Flegal

In 2016, New York Governor Andrew Cuomo signed the nation’s most comprehensive paid family leave policy into law. New York will join California, Rhode Island, and New Jersey as the only states providing a paid family leave benefit. The New York State Paid Family Leave Program, effective January 1, 2018, will require that almost all private employers, including those with as few as one employee, provide eligible employees with paid leave. Eligible employees include (a) employees who have worked for twenty-six consecutive weeks, or (b) part-time employees working twenty hours or less per week who have worked for 175 days.

The program will initially require that these eligible employees receive eight weeks paid leave at 50% salary but, by January 1, 2021, employees will receive twelve weeks of paid leave at 67% salary. Benefits are capped at 50% of New York’s average weekly wage. The following are circumstances for which employees will be able to take paid family leave under the new statute:  (a) to care for a child within twelve months after birth, adoption, or foster care placement, (b) to care for a family member (including grandparents and domestic partners) with a serious health condition, and (c) in the event of a qualifying exigency when a family member is called to active military service.  Leave may be taken intermittently in full day increments during a fifty-two week period. Although employers may permit employees to use sick or vacation leave in order to receive full pay, employers cannot require employees to use their paid time off while on leave under this new law.  Employers can, however, require that FMLA and Paid Family Leave run concurrently.

Under the new law, employees must provide thirty days’ notice if such leave is foreseeable. During the leave, employers must maintain the employee’s existing health insurance benefits, and the employee is entitled to reinstatement in the same position held prior to the leave or to a comparable position with comparable pay, benefits, and other terms and conditions of employment.  Employers whose employees work in New York for thirty or more days in a calendar year must also obtain Paid Family Leave insurance coverage.

If you are a private company with employees working in New York (including employees who work in New York but live in another state or who work from home in New York), you should have a plan in place for implementation of this program, and you should update your policies to ensure compliance with the new requirements as of January 1, 2018.

For more information, please contact [email protected] or any of FMG’s Labor and Employment attorneys.

Employers Beware: Use Of Biometric Technology Can Expose You To Troublesome Lawsuits (Especially In Illinois)

Posted on: November 6th, 2017

By: William E. Collins, Jr.

The recent spike in claims against employers involving employee biometric data is a reminder that employers across the country should use caution before implementing technology utilizing employee biometric information.

How and Why Employers Use Biometric Technology
Employers are increasingly turning to technology utilizing biometric verification to ensure accurate time records and increase security. Biometric verification uses one or more unique identifiers from a person to verify their identity. These biometric identifiers include the use of fingerprints, finger geometry, and hand, face, or body scans. Employers use this technology to ensure accurate time records and increase security. Biometric verification combats “buddy punching”—where co-workers clock in or out for a fellow employee—and inaccurate time records because it requires the employee to be present in the workplace when the entry is made. By requiring the employee be physically present, the employer increases accuracy, security, and can restrict employee access to specified areas in the workplace. While this technology certainly has its advantages, it is not without risks to employers.

Flurry of Cases in Illinois
Since September of 2017, there have been more than 25 new lawsuits in Illinois State Court that allege violations of the Illinois Biometric Information Privacy (“BIPA”), which requires employers provide employees notice, obtain their consent, and clearly outline retention policies if using biometric identifiers.

Hyatt, Roundy’s, Zayo Group, Speedway, and Kimpton’s Hotels are a few targets of the most recent BIPA lawsuits. These companies allegedly violated BIPA where they required employees provide a fingerprint or finger geometry to clock in and clock out or to access company facilities without obtaining employee approval or outlining the scope and duration of use of the employee’s information.

The law imposes steep penalties for even unsuspecting employers where the liquidated damage provision of the statute is $1,000 per occurrence if the employer is merely negligent. And when the acts are willful or reckless, the damage is $5,000 per act. As you can imagine, this represents significant liability for employers and that potential liability quickly escalates when faced with the prospect of class action litigation. It was recently estimated that one company embroiled in one of the Illinois biometric fights faces the prospect of damages reaching $10 million.

Statutes Across the Country
While Illinois is the only state with a private right of action, several states place restrictions on an employer’s use of certain biometric information. For example, similar to Illinois, both Texas and Washington require that employers provide notice and obtain consent from employees prior to capturing biometric identifiers. In other states, certain actions involving biometric information are prohibited. In New York, most employers are prohibited from requiring fingerprinting as a condition of securing or continuing employment. While in California, employers are prohibited from sharing biometric data with third parties.

Even if your state does not regulate biometric information, you should be prepared because state legislatures are very active in this area. In 2017 alone, new legislation regulating biometrics was proposed in Alaska, New Hampshire, Connecticut, and Washington. Much of this legislation mirrored the statutes in effect in Illinois and Texas.

Federal Employment Laws are Implicated
Employers also must be cautious when implementing technology that utilizes biometric information because federal employment statutes may be implicated. Consider EEOC v. Consol Energy, Inc., where the EEOC brought a religious discrimination claim against an employer who implemented hand-scanning technology. There, the EEOC prevailed on behalf an employee who was declined accommodation for his religious belief that the hand-scanner used to clock in and clock out would provide information that could be used by the “Antichrist” to identify those with the “Mark of the Beast.”

In other instances, because eye, hand, or fingerprint scans potentially give medical information to the employer that alone, or through further analysis, could provide an employer information that they might otherwise not know, the use of biometric identifiers could bring ADA or GINA claims. For example, eye scans could reveal undisclosed eye disorders and diseases, finger print scans might reveal burns or tissue disorders, and hand-scans could reveal arthritis, scar tissue, or temperature distribution issues. As a result, employers implementing these programs must be careful to narrowly tailor their programs so that the information does not impact participation in benefit programs or that it does not otherwise lead to discrimination based on a disability.

The Bottom Line

Employers should be thoughtful and diligent when deciding to implement technology utilizing biometric identifiers as liability lurks for employers under both state and federal laws. Ultimately, employers should:

1. Carefully evaluate the decision to implement biometric verification technology and consult with legal counsel to better understand their obligations under state and federal law.
2. Develop a written policy and obtain written consent from employees when deciding to implement this technology.
3. Narrowly tailor what information is captured, how the information is stored, and who the information is shared with.

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

Recent Cases Remind Georgia Employers to Update Restrictive Covenant Agreements

Posted on: November 6th, 2017

By: Amy C. Bender

Many employers, in an effort to protect their valuable personnel and information, require employees to sign agreements containing restrictive covenants, which may include covenants not to compete, not to solicit employees or customers, or not to disclose confidential information. Georgia’s statute on restrictive covenants (O.C.G.A. § 13-5-80 et seq.), which was passed only a few years ago, generally is viewed as being pro-employer. It provides clear guidance on what types of limitations and language courts will consider reasonable and enforceable, and it allows courts to “blue pencil” (mark through) provisions that do not comply in order to give effect to the remainder of the agreement and achieve what the parties intended. The statute, however, applies only to agreements entered into on or after May 11, 2011.

As some recent Georgia Court of Appeals cases (Burson v. Milton Hall Surgical Associates, LLC and CMGRP, INC. v. Gallant) remind us, any agreements signed before that date will be interpreted according to principles developed through “common law” (case law). Under common law, restrictive covenants by default were disfavored and considered an illegal restraint of trade unless the employer could show they were reasonable. This often proved to be a difficult task for employers since the cases were confusing and at times inconsistent. Importantly, courts also did not have blue-penciling power; if even one part of a covenant was not enforceable, the whole covenant failed. Burson and CMGRP, while both filed several years after the enactment of Section 13-5-80, involved agreements that the employees had signed before the statute’s effective date. As a result, the agreements were analyzed under the old common law.

These cases serve as a good reminder to Georgia employers to review their restrictive covenant agreements to make sure they are up-to-date. If employers have any agreements that were signed before May 11, 2011, we recommend preparing and having employees sign new agreements that comply with the statute. FMG’s Labor and Employment Law team can assist your organization in reviewing current agreements, preparing new agreements, and representing you in disputes regarding agreements.

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

Do You Like Piña Coladas? What Questions Can An Employer Ask in Light of Recent Bans on Requests for Salary History Information?

Posted on: October 31st, 2017

By: Laura S. Flynn

Massachusetts, Delaware, Oregon, California, New York City, Philadelphia and San Francisco have passed laws banning employers from asking applicants about their salary history. The intent behind the legislation is to discourage perpetuation of the gender wage gap. Many employers are unclear as to what they are allowed to ask potential employees.

Generally, an employer can ask an applicant about their expectations in regard to salary, benefits, bonuses and/or commission structures. An employer can inform the applicant of the anticipated salary range for the position. While an employer cannot ask about prior W-2s or earned commissions, they can ask about gross sales or revenue. In California, employers are allowed to ask about any financial benefits an applicant would have to forego in order to take the new job, such as unvested equity or a future bonus. An employer can also ask about competing or counter-offers. In addition to inquiring about skills and prior level of responsibility, the questions asked of an applicant should seek information relating to objective indicators of work productivity. For example, an applicant for a legal position could be asked about her billable hours, her average billable rate, number of trials, and information regarding her client base. The salary history bans may prevent employers from hiring employees at below market rates. However, the anticipated decrease in pay disparities will likely result in an overall economic gain for employers, as the discovery of pay disparities by employees negatively impacts morale, can cause productive employees to leave, and can subject an employer to charges of gender discrimination.

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