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FMLA notice’s failure to include job restoration rights might be interference if employee prejudiced

August 10th, 2016  |  Kathy Kapusta  |  Add a Comment

In a case emphasizing the importance of providing proper notice to employees of their FMLA rights, the Fourth Circuit found that the notice a federal reserve bank purportedly sent to an employee failed to inform him of his right to job restoration. And because he presented evidence that he would have structured his leave differently had he known his job was protected, the federal appeals court revived his FMLA interference claim.

When the employee’s supervisor noticed he was having problems with his work and attendance, he told the bank’s medical director the employee might be depressed. The medical director had previously treated him for depression and knew the employee had taken antidepressant medications “for a long time.”

Diagnosis. Not long after, a counselor diagnosed him with “major depressions” and several weeks later, he was admitted to a hospital for psychiatric treatment. His physicians recommended that he enter a 30-day rehabilitation program for treatment of depression and alcohol dependency. Purportedly concerned that taking time off would result in his termination, he refused.

Around that time, he submitted an application for short-term disability, which also functioned as a request for FMLA leave. Attached to the application was his physician’s statement taking him out of work for a month. Fearful of losing his job, the employee reported to work but was sent home because he didn’t have a doctor’s note. He returned the next day with a doctor’s note and was sent on a three-day work assignment in another city. While he drove a company vehicle and stayed in a hotel at the company’s expense, he did not report to work.

Upon his return to the office, he was placed on a performance improvement plan and was ultimately terminated for failure to properly communicate unscheduled time off and insubordinate behavior for leaving work despite instructions to complete the PIP. He then sued, alleging that the bank violated his rights under the FMLA and the ADA and the district court dismissed his claims on summary judgment.

FMLA interference. On appeal, the employee argued that the bank failed to provide him individualized notice of his job protection rights as required by the FMLA, which affected his ability to take the medical leave he needed. Under the FMLA regulations, a statement of the employee’s right to job reinstatement must be included in the rights and responsibilities notice an employer sends an employee who may be entitled to FMLA leave, said the court, observing that the bank did not contest that the only relevant document in the record failed to show notice of the employee’s job restoration rights. Therefore, the employee established for purposes of the bank’s summary judgment motion that its notice did not comply with the regulatory requirement.

Prejudice. And while the FMLA does not provide relief unless the employee has been prejudiced by the violation, the court found sufficient evidence to show that the employee, who returned to work prior to the expiration of the medical leave he initially requested, would have structured his leave differently had he known his job was protected. He initially requested medical leave from November 10 to December 10 in accordance with his physician’s note but instead of taking the leave, he returned to work early. He claimed that had he known of his right to reinstatement, he would have taken the full 30-day leave of absence set out in his initial FMLA application to obtain the inpatient treatment.

Further, his testimony that “I think [a notice of job protection rights] would have made a huge difference because I wouldn’t have been so fearful of losing my job and I would have known I could have gotten help and that I had the support of the bank and that they wanted me to get well. And I could have gone to treatment” was supported by the testimony of his family. Indeed, said the court, after his termination, he completed an inpatient treatment program.

Employer takeaway. This case should serve as a reminder to employers that failure to comply with the FMLA’s notice requirements could constitute interference with, restraint of, or denial of the use of FMLA leave. If an employee is able to demonstrate harm as a result of an employer’s failure to provide a required notice, the employer may be liable for the harm suffered. Employers should review all forms and policies to ensure that they are in compliance with this requirement.

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Landmark agreement will make kiosks accessible to the blind and those with low vision in Massachusetts

August 5th, 2016  |  Deborah Hammonds  |  Add a Comment

Massachusetts Attorney General Maura Healey and the National Federation of the Blind (NFB) recently announced a first-of-its kind agreement with Pursuant Health, Inc. that will make health care kiosks accessible to Massachusetts individuals who are blind or have low vision.

Pursuant Health, Inc. is an Atlanta-based company that manufactures and operates thousands of self-service health care kiosks in retail stores nationwide. The company’s kiosks offer biometric health screenings including vision assessments, blood pressure screening, weight and BMI assessments, and pain management advice. According to the joint press statement, released on July 27, the agreement will provide meaningful benefits to individuals nationwide who are blind or who have low vision, including 27,000 Massachusetts residents who are legally blind.

According to the terms of the agreement, Pursuant Health will implement a detailed project plan to make their kiosks and website accessible to consumers who are blind or visually impaired. The kiosks will be made accessible over time and will be reformatted to provide audio instructions and easily locatable “hot spots” on the kiosk screens to help blind consumers navigate the system. Membership options to make it easier for blind consumers to activate the kiosks and track their individual health assessments will also be made available.

In addition, Pursuant Health will make payments totaling $95,000 to the AG’s Office and the NFB, to be used to further improve access and opportunity for individuals with disabilities.

“Living the lives we want as blind people includes monitoring our own health so that we can take steps to maintain or improve it,” said NFB President Mark A. Riccobono. “Health information has the potential to be more accessible than even to the blind with twenty-first century technology, but only if the manufacturers of technology keep accessibility in mind. We are delighted to have reached this agreement with Pursuant Health, working with the outstanding civil rights advocates in Attorney General Healey’s office, and believe that it will result in health information kiosks that set an industry-leading example.”

“Technology should be used to improve people’s lives, not create barriers. We must take steps to ensure that all Massachusetts residents have equal access to health care services, and that technology is accessible to consumers with disabilities. We are pleased to have worked with the NFB and Pursuant Health to make these kiosks accessible,” said AG Healey.

This agreement is the most recent result of collaboration between the AG’s Office and the NFB. The matter was handled by Assistant Attorney General Genevieve C. Nadeau, Chief of AG Healey’s Civil Rights Division on behalf of the Commonwealth, and by Daniel F. Goldstein of the Baltimore firm Brown, Goldstein & Levy, LLP on behalf of the NFB.

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Recent updates to OFCCP documents

July 28th, 2016  |  Cynthia L. Hackerott  |  Add a Comment

Earlier this month, the OFCCP requested Office of Management and Budget (OMB) approval to update its complaint form and began using modified compliance audit documents that were recently approved by the OMB.

According to a supporting statement published as part of a notice in the July 1, 2016 edition of the Federal Register (81 FR 43254- 43261), the OFCCP is seeking comments regarding its request for OMB approval of changes to update the OFCCP’s complaint form in light of recent changes to Executive Order (EO) 11246, A copy of the proposed revised form and corresponding instruction sheet is also included in the notice. Written comments are due by August 30, 2016.

Although no private right of action exists under the three laws — Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veteran’s Readjustment Assistance Act of 1974 — that are enforced by the OFCCP, any employee or applicant for employment with a government contractor may file a complaint with the Department of Labor alleging discrimination on the basis of race, color, sex, religion, national origin, and status as a qualified individual with disabilities or protected veteran. To facilitate the complaint process, the OFCCP provides a complainant with a complaint form (Form CC-4) entitled, “Complaint Involving Employment Discrimination by a Federal Contractor or Subcontractor.”  The OFCCP investigates the complaint but retains the discretion whether to pursue prosecution. In appropriate circumstances, the OFCCP may refer the complaint to the EEOC pursuant to a Memoranda of Understanding a joint regulation between the two agencies.

In its current Information Collection Request (ICR), the OFCCP is seeking approval of the revised complaint form and accompanying instructions page to reflect two amendments to EO 11246: (1) EO 13672 (79 FR 42971- 42972), which added “sexual orientation” and “gender identity” as protected bases, and (2) EO 13665 (79 FR 20749-20750), which protects any applicant or employee who inquires about, discusses, or discloses compensation.

The agency reports in the supporting statement that it received 790 complaints in fiscal year (FY) 2013, 699 complaints in FY 2014, and 769 complaints in FY 2015. Therefore, on average, the OFCCP receives about 753 complaints annually.

OMB approval for the current version of the form (OMB Control No 1250-0002) expires on August 31, 2017.

Modifications to audit documents now in force. Also on July 1, the OFCCP announced that it would begin using newly revised audit documents that were approved by the Office of Management and Budget (OMB) on June 29, 2016.

According to the OFCCP, it made clarifying edits to the Scheduling Letter and accompanying Itemized Listing that the OFCCP uses to initiate supply and service (non-construction) contractor compliance evaluations to ensure contractors understand the information being requested and to strengthen the agency’s assurances of confidentiality for the information provided. In addition, the OFCCP has also included language in the renewed Scheduling Letter that provides a more complete description of its investigatory and enforcement processes. The revised documents are available on the RegInfo.gov website (OMB Control Number 1250-0003). OMB authorization for the revised documents expires on June 30, 2019.

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Employee’s crying foul on race discrimination after positive drug test result doesn’t save job

July 26th, 2016  |  Ron Miller  |  Add a Comment

A Native American woman, who was discharged from her employment after testing positive for marijuana use following a random drug test, could not maintain a claim for discrimination based on race, ruled a federal district court in Arizona. In Yazzie v. County of Mohave, the court determined that even if the employee could establish a prima facie case of discrimination, the employer set forth a legitimate, nondiscriminatory reason for terminating her. The employee was employed in a safety sensitive position operating heavy equipment. If she was impaired by drugs or alcohol while on duty, the likelihood of harm to herself and the general public would be substantially increased. Because the employee admitted to illegally consuming marijuana and tested positive for marijuana while on duty, the employer’s decision to terminate her fell entirely within its policies.

Drug testing policy. The employee worked for the county’s public works department for over 17 years. As a heavy equipment operator, she was required to maintain a commercial driver’s license (CDL). Additionally, employees who operated commercial vehicles, including heavy equipment, were regarded as being in safety sensitive positions. The employer maintained rules governing discipline for employees who tested positive for drugs or alcohol while on duty. Employees were subject to random drug tests. The employee knew that the work rules prohibited the consumption of marijuana, signed acknowledgements that she received a copy of county policies, and attended training sessions addressing the prohibited consumption of illegal drugs.

Nevertheless, after being selected for a random drug test, the employee tested positive for marijuana use. Initially, she asserted that the result was a false positive because she had consumed a prescription drug. Ultimately, she acknowledged that the positive result stemmed from her recent marijuana use. She was placed on administrative leave and ultimately terminated. Thereafter, she filed this lawsuit. In response, the employer filed a motion for summary judgment.

Discrimination claim. The employee alleged that the employer discriminated against her based on race and/or ancestry in violation of Title VII, Section 1981, and Section 1983. Specifically, she claimed that other non-Native American employees received more frequent promotions and pay raises. She also asserted that “the County did not terminate other similarly situated non-Native American employees who violated the County’s Drug and Alcohol Policies.”

Here, the court concluded that the employee failed to present any direct or circumstantial evidence indicating that the employer was more likely than not motivated by discriminatory intent. Applying the burden-shifting McDonnell Douglas framework, the employer did not dispute that the employee was a member of a protected class, was qualified for the employment position, and experienced an adverse employment action. However, it did argue that she failed to show non-Native American employees were treated more favorably than her. Alternatively, the employer contended that the employee did not demonstrate that its legitimate, nondiscriminatory reason for terminating her—testing positive for marijuana while on duty—was pretextual.

Failure-to-promote claim. As an initial matter, the court found that the employee’s claims that she was discriminated against for promotions between 1995 and 2002 were time barred as she did not file this lawsuit until 2014. With respect to the remaining claims, the court found nothing in the record to support her failure-to-promote claim. Similarly, nothing in the record established that non-Native Americans were promoted faster or more frequently than the employee.

As to her termination claim, no admissible evidence supported her assertion that similarly situated, non-Native American employees tested positive for drugs or alcohol while on duty but were not terminated. The undisputed facts demonstrated that all 10 employees who failed drug or alcohol tests since January 2010 were terminated or resigned in lieu of termination. Because the employee failed to set forth a prima facie case of discrimination, summary judgment was granted in the employer’s favor on her Title VII and Section 1981 claims.

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Obama Administrations seeks rehearing of immigration reform case

July 19th, 2016  |  Pamela Wolf  |  Add a Comment

The Obama Administration has filed a petition asking the Supreme Court to grant rehearing of a case that would have put the president’s immigration reform policy to the test had there been a full panel of nine Justices. In U.S. v. Texas, the administration turned to the High Court after the Fifth Circuit upheld a district court injunction that stands in the way of an executive enforcement guidance to implement the Department of Homeland Security’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

However, lacking a ninth Justice who might have spurred a different outcome, the ruling was a 4-4 tie that left the Fifth Circuit decision and the nationwide injunction intact.

In the wake of the unexpected death of Justice Scalia, President Obama nominated Merrick Garland to fill the vacancy on March 16, but Republican senators have said they will not permit a vote on the nomination until after the November election. It has now been 125 days since Garland’s nomination; reportedly, every other Supreme Court nomination in history has received a vote in the Senate within that time. The immigration ruling underscores some of the fallout from the deadlock.

Immigration reforms. The challenged guidance was directed to the DAPA program, which would have allowed DHS to halt deportation proceedings and issue work permits and other benefits to a specific class of undocumented immigrants. The program sought to implement immigration reform measures proposed by Obama in November 2014 after immigration reform had stalled in Congress. The preliminary injunction also blocked a proposed expansion of a similar program, Deferred Action for Childhood Arrivals (DACA), initially implemented in 2012.

In the Supreme Court, the federal government argued that the states that challenged the guidance were not objects of the policy; therefore, the Fifth Circuit’s ruling on the injunction barring implementation of the guidance was contrary to Article III of the U.S. Constitution. Moreover, by refusing to remove the injunction, the appeals court also got it wrong as to the often-asserted discretion in providing deferred action for certain aliens already living in the United States, according to the government.

Reasons for rehearing. The petition for rehearing acknowledges that “it is exceedingly rare for [the] Court to grant rehearing.” However, the government asserts that when the Court “has conducted plenary review and then affirmed by vote of an equally divided court because of a vacancy rather than a disqualification, the Court has not infrequently granted rehearing before a full Bench.” The petition cites examples of instances in which there was an equally divided court and a rehearing was granted because it appeared that a majority on one side or the other might be mustered. The petition asserts that, “In such situations, the Court has not infrequently held the case over the Court’s summer recess, holding oral arguments months later.”

The government also argues that this case is different than Friedrichs v. California Teachers Ass’n and Hawkins v. Community Bank of Raymore, both of which were 4-4 rulings that resulted this term due to the vacancy on the Court. While the issues presented in those cases may “freely recur” in other cases, the guidance at issue here is “unlikely to arise in any future case,” the petition states. The government also points out that the preliminary injunction in this case bars implementation of the guidance anywhere nationwide, that there is no reason to expect that the district court will issue a permanent injunction that is any narrower, and that there is no other pending case challenging the immigration guidance.

Definitive ruling needed. The petition also presses for a definitive ruling. “Unless the Court resolves this case in a precedential manner, a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States,” the petition urges. “As this Court recognized in granting certiorari, this Court instead should be the final arbiter of these matters through a definitive ruling.”

The National Immigration Law Center quickly issued a statement supporting the administration’s bid for rehearing: “The Supreme Court failed millions of immigrant families, and our country as a whole, when it deadlocked in U.S. v. Texas. Now, the justices have an opportunity to right this wrong and fulfill their duty to the American people.

U.S. v. Texas is without a doubt one of the most consequential immigration cases in recent history. It is appropriate and, in fact, necessary for the Court to rehear the case with a full bench and deliver a decisive ruling. We commend the Justice Department for taking a necessary first step toward ensuring that those whose lives are hanging in the balance get a fair day in court. We hope the Supreme Court will recognize that the millions of families living in limbo—and our country as a whole—deserve better than a non-decision. We beseech the justices to grant a rehearing.”

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