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    Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. We cover topics including addressing harassment and discrimination in the workplace, developing labor law, navigating through ADA(AA), FMLA and workers’ compensation issues, avoiding wage and hour landmines, key legislative, case law and regulatory changes and much more!
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New “Place of Celebration” DOL Final Rule Increases the Availability of FMLA Leave for Same-Sex Spouses

Contributed by Steven Jados

On February 25, 2015, the U.S. Department of Labor issued a final rule modifying the definition of “spouse” under the federal Family and Medical Leave Act.

This final rule, which will take effect on March 27, 2015, is a shift from the current language of 29 C.F.R. §§ 825.102 and 825.122(b), which defines “spouse” to mean “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

As of March 27, the definition of “spouse” under the FMLA regulations will no longer depend on an employee’s state of residence.  Instead, whether someone is an according-to-the-FMLA spouse will be determined by the law of the state where the employee’s marriage occurred—the “place of celebration.”  Specifically, the new definition will be:

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.

Employers will note that this change still does not put parties to a civil union or domestic partnership on equal footing with married couples.

In light of the fact that not all states currently recognize same-sex marriage (or common-law marriage for that matter), this rule change may require employers may to take extra steps to determine where an employee’s marriage occurred.

As employers must now make such an inquiry, it is critically important that employers request documentation to establish the existence of a FMLA-defined marriage in a non-discriminatory matter.  Additionally, FMLA forms will need to be reviewed and updated, and those employees who administer FMLA programs or otherwise receive FMLA requests (which could mean virtually any supervisory or managerial employee), must be trained to understand that determining a spouse’s FMLA eligibility may be more complex than it has been in the past.

Lack of Documentation Sinks Employer’s Defense to Retaliation Claim

Contributed by Jonathon Hoag

Timing may not be everything when it comes to employment retaliation claims, but it is a critical factor.  An employee who can show adverse employment action taken on the heels of engaging in some type of protected activity (e.g. complaining to the EEOC) is in prime position to assert the employer unlawfully retaliated.  A fundamental step to proving retaliation is to show the employer was aware of the protected activity at the time of the adverse employment decision.  Naturally, an employer that is unaware of protected activity cannot retaliate against an employer for engaging in protected activity.

In a recent 7th Circuit retaliation case, the employer asserted it could not have retaliated against the employee for filing a charge with the EEOC because it made the decision to terminate the employee prior to getting notice of the EEOC charge of discrimination.  The district court agreed and granted summary judgment in favor of the employer and dismissed the lawsuit.  The 7th Circuit disagreed and revived the employee’s claims – primarily because the employer did not have any documentation to show the decision was made to terminate the employee prior to learning about the EEOC charge.

The employee worked within a housing shelter and had been warned on numerous occasions about mistreating and threatening residents.  The employer asserted that after it issued yet another warning to the employee, the employee accused coworkers and members of the board of lying to try to get him fired.  The employer further asserted that the executive director and the board president met and decided to terminate the employee – 5 days before learning of the EEOC charge.  However, the employer did not actually carry out the termination until the day after it received the EEOC charge.

The 7th Circuit pointed out the obvious – terminating the employee the day after it learned he filed an EEOC charge was suspicious timing.  There were other factors that prompted the 7th Circuit to revive this case and give the employee his day in court, but the factor the 7th Circuit stressed most was that there was no documentation of the meeting in which it was decided to terminate the employee (which the employer claimed took place before notice of an EEOC charge).  Had there been some form of authentic documentation to show the decision was made to terminate the employee 5 days before a copy of the EEOC charge was delivered to the employer, it might have alleviated the court’s concerns about the accuracy of the employer’s story.

Retaliation claims now top the list as the most prevalent type of claim filed with the EEOC.  The fact an employee engages in protected activity does not shield that employee from legitimate adverse employment action, but employers do have to be prepared to “prove” there was not a causal connection between the protected activity and adverse action.  Detailed documentation of employment decisions is a must to break the causal connection – and ideally will show the employment decision was made by persons or at a time in which knowledge of the protected activity was unknown…the absolute best defense to a retaliation claim.

Collectively Bargained Retiree Health Benefits for Life? U.S. Supreme Courts Says Ordinary Contract Principles Apply

Contributed by Kelly Haab-Tallitsch

On January 26, 2015, the U.S. Supreme Court established a new standard for the vesting of collectively bargained retiree medical benefits, holding in M&G Polymers USA, LLC, et al. v. Tackett, et al., that collective bargaining agreements (CBAs) must be interpreted using ordinary principles of contract law and rejecting the presumption that collectively bargained retiree welfare benefits vest for life.  M&G Polymers, No. 13-1010 (U.S. Jan. 26, 2015).

In M&G Polymers, a group of retirees brought suit against their former employer after the announcement that retirees would be required to begin making contributions toward their retiree health coverage premiums. The plaintiffs argued that a CBA provision requiring the employer to pay 100% of retiree medical premiums created a vested right to contribution-free health care benefits beyond the expiration of the CBA’s three-year term. The Sixth Circuit Court of Appeals found in favor of the retirees based on an “inference” that collectively-bargained retiree health benefits were intended to vest for life, absent language to the contrary.

The Supreme Court expressly rejected the Sixth Circuit’s “inference” of lifetime benefits, stating that the inference placed a “thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements,” and distorted attempts to ascertain the parties’ real intent. Relying on the Employee Retirement Income Security Act (ERISA), the Court found that “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life,” but must use ordinary contract principles to determine whether retiree health benefits continue past the expiration of a CBA.

The concurring opinion in M&G Polymers cautioned that clear and express language is not required to demonstrate intent that retiree benefits vest, intent may arise from the implied terms of an agreement.  As such, employers must be cautious in negotiating and drafting CBA provisions relating to retiree welfare benefits.  If the inclusion of an express term that retiree benefits do not survive the expiration of the agreement is not possible, employers must take care to avoid any language that could be interpreted (under ordinary contract law) as demonstrating the intent to provide vested or lifetime retiree medical benefits.

Further, employers should review all retiree benefit plan documents and communications to ensure the contractual term of the benefit is clearly explained and consider how best to include language that will reserve the right to amend or terminate the arrangement, wherever possible.

More Bad News for the Employer of the Misbehaving Employee

Contributed by Anita Johnson

Terminating an employee for willful misconduct while on light duty related to a compensable workers’ compensation claim, has long resulted in the employee’s loss of total temporary disability benefits in most jurisdictions.  However, an Illinois Supreme Court recently decided that termination of an employee based on questionable conduct (engaged in by other employees without discipline), does not provide a basis for termination of total temporary disability benefits.

Rather than focus on an evaluation of the issue of misconduct, the Court applied a test as to whether or not the petitioner’s condition had stabilized at the time he was working under restrictions.  The most obvious issue with this test is that most light duty programs are temporary.  The Court did affirm that voluntarily refusing light duty work would result in loss of total temporary disability benefits.

In a recent case, Matuszczak v. The IL Workers’ Comp. Comm., 2014 IL App (2d) 130532WC, the defense focused on the rationale employed in most states, maintaining that certain conduct resulting in termination amounts to a refusal of work.  The case involved the termination of an employee after he repeatedly stole cigarettes from his employer with knowledge that the theft could result in his termination.  In that matter, the Illinois Appellate Court refused to analyze the willful quality and knowledge of the petitioner, applying only a standard as to whether or not his medical condition had been stabilized at the time he was terminated.  The court awarded total temporary disability benefits.  The court specifically ruled that knowledge of the employee that his conduct could have resulted in termination did not amount to a refusal of light duty work.

This decision leaves employers in Illinois that return an injured employee to work under temporary restrictions in the uncomfortable position of being unable to discipline that employee for willful and sometimes even outrageous/criminal misconduct, without then providing unlimited total temporary disability benefits.  Once severed from employment, the injured worker has no incentive to ever have the condition resolved and restrictions removed and will be able to establish difficulty in finding employment elsewhere.  This obviously flies in the face of all other leave laws and the concept of “temporary” light duty programs in that they provide work for the injured worker while his condition is moving towards maximum medical improvement.  These programs keep the injured worker conditioned and attached to the workplace and workforce which has long been the recommendation of psychiatric, therapeutic and medical providers.  It appears that this issue will have to be addressed by Illinois legislation as the courts are unsympathetic to this catch-22 for employers.

No Bullies Allowed!

Contributed by Noah A. Frank

Beginning January 1, 2015, California employers (with 50 or more employees) must provide anti-bullying training to supervisors within 6 months of assuming a supervisory role, and during biannual anti-sexual harassment training.  California broadly defines workplace bullying as: “Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  This may include:

  • Repeated infliction of verbal abuse (e. g., derogatory remarks, insults, and epithets),
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or
  • Gratuitous sabotage or undermining of a person’s work performance.

There is no question that bullying has negative impacts in the workplace.  It lowers morale and productivity, and may lead to union organizing activity – especially when the bully is a supervisor.  Tennessee is the only other state with an anti-workplace bullying law (which applies only to public employers); and all states (except Montana) have school anti-bullying laws to protect students.  Many other states require or highly encourage some form of employment anti-harassment training (including Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Washington, and Wisconsin).

However, California’s law signals a dangerous shift in human resources management.  While there is no private cause of action, an employer that fails to incorporate anti-bullying into their biannual training will certainly see this as part of a discrimination/harassment/retaliation claim – and worse, will likely see claims for deficient training and enforcement.

Practical Advice

Audit your policies to ensure a productive workplace, free of illegal and otherwise unproductive harassment and discrimination.  For example:

  • Open Doors: provide employees with a retaliation-free mechanism to report concerns and have open dialogue with management.  Make sure they know about it.
  • Stop bullying.  If you don’t do it now, a new union may form tomorrow.
  • Establish appropriate conduct policies and enforce them.
  • Train supervisors to recognize and correct unproductive and inappropriate conduct.
  • Take proactive steps, such as moving, disciplining, or terminating bullies.

But use caution: implementing rules only after concerted protected activity (“once it is too late”) could also lead to unfair labor practice charges (see, Care One at Madison Avenue, 361 NLRB No. 159 (12/16/2014), discussed in our February 3, 2015 blog).  Thus, seek the advice of counsel when difficult or compound situations arise.

Federal Contractors – Protected Veterans and Disabled Individuals Need Love Too….

Contributed by Heather Bailey

Many federal contractors had their 2014 annual affirmative action plans in place prior to the March 24, 2014 effective date for contractors to begin analyzing and maintaining a hiring benchmark for protected veterans, as well as a utilization goal for disabled individuals.  However, the time is nearing to update those plans and be compliant with the new regulations.  What does this mean for you?


If you haven’t already started, you should begin asking your applicants to voluntarily self-identify whether they are a protected veteran or not (you do not ask them to identify the specific categories of veterans at this stage).  This is in addition to the existing requirement to then ask the person to self-identify once being given a job offer (which is where you can ask the specific categories).  Moreover, you should poll your current employees in anticipation of creating your upcoming affirmative action plan for 2015.  This is because you now have to analyze the amount of protected veterans you have in your workforce and if your outreach to veterans is effective in recruiting and hiring veterans.  The regulations give you two options: you can use the hiring benchmark posted by the OFCCP in its Benchmark Database or you can create your own following five factors such as applicant hiring ratios over the past year and the number of veterans in the previous four quarters who participated in the employment service delivery system in your state which is also posted in the Benchmark Database by the OFCCP.  Unless you have a compelling reason to create your own, the one-size fits all location benchmark can be used to simplify your analysis.  Then, you perform an analysis just like you do for your females and minorities to determine whether you meet the benchmark or not.

The good news here: you are not required to apply the benchmark to each specific job group – you can benchmark your company as a whole.  Lastly, your VETS-100A reports got a new name. Come August 2015, you’ll be looking for the VETS-4212 form to file.   Oh, and don’t forget to add “veteran status” to your EEO clauses!

Disabled Individuals

You need to start asking your applicants to voluntarily self-identify if they are disabled or not.  I know, this goes against everything we learned in employment law 101, but it’s true.  Do not reinvent the wheel and go rogue – use the actual self-id form created by the OFCCP, which can be found here:

http://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf.  Once offered a job, ask them to voluntarily self-identify again using the same form.  If you haven’t already, poll your current workforce using the same form – and then do so every 5 years for current employees.  The reasoning behind this is that some people may not want to identify themselves as having a disability prior to being offered a job, as well as, employees may develop disabilities over the course of time from the last time they were asked to self-identify.

Here, your recording efforts are a yard stick to see if you reached the aspirational national utilization goal of 7% of disabled individuals.  Again, you can focus on your entire workforce in your analysis of meeting this goal in your updated plan.  This is not to be used as a quota or a ceiling but a gauge to see if your recruitment efforts are once again effective.

It’s best to seek guidance from your employment labor counsel to ensure you are in compliance with all affirmative action requirements.  Waiting until the OFCCP audit letter comes may be too late.


Common Rules of Decency Could Get You In Trouble With the NLRB

Contributed by Beverly Alfon

Treat each other with dignity and respect.  Do not harass one another.  They seem innocuous enough.  However, the NLRB may deem these common rules unlawful, if they are implemented or more strictly enforced following protected activity, such as a strike or an election, or in the context of unfair labor practice charges filed against an employer.  In Care One at Madison Avenue, 361 NLRB No. 159 (Dec. 16, 2014), the board held that an employer violated the law by posting a memorandum shortly after a union election, urging employees to treat each other with “dignity and respect” and reiterating its workplace violence policy – even though the policy itself was lawful and the memorandum specifically acknowledged employees’ Section 7 rights.

The majority found that the employer failed to demonstrate a legitimate basis for issuing the memorandum because: (1) there was no evidence that threats actually occurred or that the employer attempted to investigate any alleged threats; (2) the memorandum referenced the recent union election and the “differences that arose in the workplace during the union’s campaign”; and (3) the memorandum “suggested that the employer believed that employees did not treat each other with dignity and respect when they engaged in protected union activity.” The fact that the memorandum was “posted on the heels of the union election and in the wake of several contemporaneous unfair labor practice charges,” weighed heavily for the majority.  They found that the employer “promulgated and posted the memorandum in response to the employees’ union activity” and employees would reasonably construe the memorandum to prohibit Section 7 activity.  The company’s acknowledgement of the employees’ right to support a union was not enough to save it because the memorandum “failed to make clear that employees also had the right to engage in protected activity in furtherance of those views.”

BOTTOM LINE:  In the wake of protected activity or in the context of other unfair labor practice charges, expect the NLRB to closely scrutinize any employer communications to employees that may be interpreted as an attempt to silence employees in the exercise of their Section 7 rights (e.g., loyalty requirements, confidentiality restrictions, limitations on leaving one’s work area, etc.).  This can be problematic for an employer who is trying to bring semblance and security back to a workplace because of a recent strike or a close representation election.  What should an employer do in light of this?

  • Gather and document evidence of harassment or other threatening activity – anything that will establish that the company is motivated by legitimate workplace concerns, and not any union or other protected activity.
  • Avoid referring to any protected activity or suggesting that employees generally failed to treat each other with “dignity and respect” by participating in the protected activity.
  • Acknowledge the employees’ right to support a union and engage in protected activity in furtherance of their views on work terms and conditions

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