1. law, govt and politics

Updates in
Employment Law
Elinor Schroeder
May 28-29, 2015
University of Kansas School of Law
EMPLOYMENT LAW UPDATE
May 29, 2015
Elinor P. Schroeder
Paul E. Wilson Professor of Law
University of Kansas School of Law
United States Supreme Court
Integrity Staffing Solutions v. Busk, 135 S.Ct. 513, 23 WH Cas2d 1485 (2014). The Fair
Labor Standards Act requires covered employers to pay nonexempt employees at least the
minimum wage and overtime for all time they spend working for the employer. Unfortunately,
“work” is not defined in the FLSA, although the statute does contain some exceptions to a
general rule of compensability. The Portal-to-Portal Act of 1947 exempts from the definition of
compensable time that time spent on activities that are “preliminary” or “postliminary” to the
“principal activity or activities” for which a worker is employed. On the other hand, courts have
developed a rule that an activity that is “integral and indispensable” to an employee’s principal
activity is itself a principal activity and is therefore compensable. The question on which cert
was granted here is whether time spent by warehouse workers in security screenings at the end of
their shifts in order to prevent employee theft is compensable under the FLSA.
Plaintiffs were former employees of a company that provides warehouse space and
staffing to clients such as Amazon.com. At the end of each shift, after they clocked out, they
were required to pass through a security clearance. They alleged they waited up to twenty-five
minutes to be searched; removed their wallets, keys, and belts; and passed through metal
detectors. The Ninth Circuit analyzed plaintiffs’ claims under the “integral and indispensable”
test from § 4(a) of the Portal-to-Portal Act, which the court found met, because the employer’s
theft concerns arose from the employees’ access to merchandise as warehouse workers.
The Supreme Court rejected the Ninth Circuit’s decision, unanimously, holding that an
activity is integral and indispensable to the principal activities an employee is employed to
perform “if it is an intrinsic element of those activities and one with which the employee cannot
dispense if he is to perform his principal activities.” It gave as examples the time battery plant
employees spent showering and changing clothes to remove the toxic chemicals to which they
had been exposed while working in the plant and the time meat packing employees spent
sharpening their knives because dull knives would slow down production, affect the appearance
of the meat, cause waste, and lead to accidents. Justices Sotomayor and Kagan concurred on this
point in particular. According to them, “an activity is ‘indispensable’ to another, principal
activity only when an employee could not dispense with it without impairing his ability to
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perform the principal activity safely and effectively.” The time waiting to go through security
screenings did not meet these criteria, so it is not compensable.
Damaging the plaintiffs’ case immensely were the fact that the Solicitor General and the
Department of Labor sided with the employer on the issue and that a 1951 DOL opinion letter
took the position that a preshift security search of employees in a rocket-powder plant “for
matches, spark producing devices such as cigarette lighters, and other items which have a direct
bearing on the safety of the employees,” and a postshift security search of these same employees
“for the purpose of preventing theft” were not compensable under the Portal-to-Portal Act.
Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 126 FEP Cas 765 (2015). The
question in Young appeared to be whether, and under what circumstances, the Pregnancy
Discrimination Act, a 1978 amendment to Title VII of the Civil Rights Act of 1964, requires an
employer that provides accommodations to nonpregnant employees with work limitations to
provide accommodations to pregnant employees who are “similar in their ability or inability to
work.”
Peggy Young worked for UPS as a delivery truck driver. When she became pregnant,
she gave UPS a notice from her doctor that she could not lift more than 20 pounds. UPS
generally required employees to lift up to 70 pounds, but it offered light-duty assignments to
three groups of workers: those injured on the job; those considered disabled under the Americans
with Disabilities Act; and those who had lost their Department of Transportation certifications.
Young did not fall within any of these categories, so UPS denied her request for a light-duty
assignment and instead placed her on unpaid leave. She sued, arguing that this failure to
accommodate violated the PDA.
The very interesting question the Supreme Court faced was the meaning of the second
clause of the PDA, that women affected by pregnancy, childbirth, or related medical conditions
“shall be treated the same for all employment-related purposes” as “other persons not so affected
but similar in their ability or inability to work.” Is the PDA a pure nondiscrimination statute, as
UPS argued? No, said the majority. That reading would render the second clause of the PDA
redundant, since the first clause (“the terms ‘because of sex,’ or ‘on the basis of sex’ include, but
are not limited to, because of or on the basis of pregnancy, childbirth, or related medical
conditions”) already prohibits discrimination on the basis of pregnancy. Or does the PDA require
UPS to provide the same accommodation to Young that it provides to the three groups of
employees who currently receive light-duty assignments, as Young contended? Not necessarily,
said the majority. Young’s reading amounted to a “most-favored-nation” approach of nearly
total equality with other workers similar in their ability or inability to work. The majority
thought Congress did not intend such a broad reading of the statute.
Instead, the majority adopted an interesting interpretation of the McDonnell Douglas test
for pregnancy discrimination claims. After the employer presents its legitimate,
nondiscriminatory reason(s) for taking the action it did, the plaintiff “may provid[e] sufficient
evidence that the employer’s policies impose a significant burden on pregnant workers, and that
employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the
burden, but rather - when considered along with the burden imposed - give rise to an inference of
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intentional discrimination.” The majority went on to say that Young could create a genuine issue
of material fact as to whether a significant burden exists by presenting evidence that UPS
accommodates a large percentage of nonpregnant workers while failing to accommodate a large
percentage of pregnant workers. “Young might also add that the fact that UPS has multiple
policies that accommodate nonpregnant employees with lifting restrictions suggests that its
reasons for failing to accommodate pregnant employees with lifting restrictions are not
sufficiently strong - to the point that a jury could find that its reasons for failing to accommodate
pregnant employees give rise to an inference of intentional discrimination.”
Worth noting is that the majority refused to “rely significantly” on the EEOC’s
Enforcement Guidance on Pregnancy Discrimination and Related Issues, promulgated on July
14, 2014, for a number of reasons, including the fact that the guidance was promulgated after the
Court had granted cert in Young.http://www.eeoc.gov. The agency has since stated that it will
revise the guidance to address the Court’s decision. Daily Labor Report, 4/23/2015.
Mach Mining, LLC v. EEOC, 135 S.Ct. ___ (4/29/2015). Under Title VII, if EEOC finds
reasonable cause to believe unlawful discrimination has occurred following investigation of a
charge, it must “endeavor to eliminate [the] alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.” If conciliation fails, EEOC may then sue
the employer; the statute leaves the decision whether to accept a settlement or bring suit entirely
in the hands of the EEOC, and it makes matters said and done during conciliation confidential.
The issue in Mach Mining was whether a court may dismiss an EEOC suit on the ground that the
agency has not adequately fulfilled its duty to conciliate.
The Supreme Court rejected the government’s argument that the EEOC’s efforts to
conciliate are beyond judicial review. Writing for a unanimous Court, Justice Kagan remarked
that “judicial review of administrative action is the norm in our legal system,” and nothing in
Title VII “withdraws the court’s authority to determine whether the EEOC has fulfilled its duty
to attempt conciliation of claims.” On the other hand, Congress gave EEOC broad authority over
the conciliation process, and therefore judicial review should be limited.
The statutory condition is that the EEOC must inform the employer about the specific
allegation against it, including what the employer has done and what employees or class of
employees have suffered as a result, and it must try to give the employer an opportunity to
discuss the matter in an effort to achieve voluntary compliance. This, said the Court, is a
manageable standard, which can ordinarily be met by a sworn affidavit from the EEOC stating
that it has performed these obligations but that its efforts have failed. If the employer provides
credible evidence of its own, in the form of an affidavit or otherwise, that the EEOC did not meet
this standard, then a court must conduct the factfinding necessary to decide this limited dispute.
If the court finds in favor of the employer, the remedy is to order the EEOC to undertake the
mandated efforts to obtain voluntary compliance.
EEOC v. Abercrombie & Fitch Stores, Inc, 731 F.3d 1106, 120 FEP 212 (10th Cir. 2013),
cert. granted, 135 S.Ct. 44 (2014), argued, 2/25/2015. As stated in the cert petition, the question
in this case is whether an employer can be liable under Title VII for refusing to hire an applicant
(or firing an employee) based on a “religious observance and practice” only if the employer has
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actual knowledge that a religious accommodation was required and the employer’s actual
knowledge resulted from direct, explicit notice from the applicant (or employee).
Here, 17-year-old Samantha Elauf applied for a job as a salesperson at an Abercrombie
children’s store in Tulsa, Oklahoma. Abercrombie employees must adhere to a dress code called
the “Look Policy,” which is intended to promote an East Coast “preppy” aesthetic. Among other
things, the Look Policy prohibits the wearing of black clothing and hats. When she arrived for
her interview, Elauf, who is Muslim, was wearing a black head scarf, or hijab, which she had
worn since she was thirteen because she believes it is required by her faith, plus jeans and a tshirt. Although the interview went well, she didn’t get the job; it turned out she was graded
down because of the head scarf. At no time during the interview was her religion or the head
scarf mentioned, although the interviewer later testified that she “assumed” Elauf was Muslim
and that she “figured that was the religious reason why she wore her head scarf.”
The EEOC’s position in the case is that an applicant should not be solely responsible for
asking a potential employer for a religious accommodation. Rather, the employer must act based
on its “understanding” of her religious beliefs if that “understanding” is correct, as was the case
here. On the other hand, Abercrombie argued the government’s view would require employers
to ask applicants about their religions and their religious beliefs, something they are not
supposed to do at all.
Green v. Donahoe, 760 F.3d 1135, 123 FEP 1425 (10th Cir. 2014), cert. granted,
4/27/2015). Question presented: Under federal employment law, does the charge filing period
for a constructive discharge claim begin to run when an employee resigns, as five circuits have
held, or at the time of an employer’s last allegedly discriminatory act giving rise to the
resignation, as three other circuits have held?
The major federal employment discrimination laws all require aggrieved individuals to
file a timely charge of discrimination as a prerequisite to suit. For private sector employees, the
time limit is 300 days in most states. The rules are more complex for federal sector employees,
but they, too, have a deadline - 45 days from “the date of the matter alleged to be discriminatory”
within which to initiate contact with an EEO counselor in their agency. See 29 C.F.R. §
1614.105(a)(1).
Marvin Green was the former postmaster in Englewood, Colorado, and had worked as a
manager for the Postal Service for 25 years. He alleged that the USPS forced him to resign by
creating intolerable working conditions in retaliation for his earlier filing of a claim of racial
harassment. All of the allegedly retaliatory actions against him occurred no later than December
16, 2009, when the manager of HR emailed Green’s representative threatening criminal
prosecution for actions an internal investigation had shown Green did not commit. Green
submitted his retirement papers on February 9, 2010, effective March 31, 2010. On March 22 he
initiated counseling within the USPS.
The Tenth Circuit held that the clock on the 45-day filing period began to run on
December 19, 2009, so that his March 22 filing was well beyond the deadline. It rejected
Green’s argument that the clock did not begin to run until the date he announced his resignation.
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Among other reasons, the court thought this date-of-resignation rule would allow the employee
to extend the date of accrual indefinitely, thereby “placing the supposed statute of repose in the
sole hands of the party seeking relief.”
The Tenth Circuit’s view is consistent with decisions from the D.C. Circuit and the 7th
Circuit. Mayers v. Laborers’ Health & Safety Fund of North America, 478 F.3d 364 (D.C.Cir.
2007) (per curiam); Davidson v. Indiana-American Water Works, 953 F.2d 1058 (7th Cir. 1992).
Five courts of appeals, the 1st, 2d, 4th, 8th, and 9th) have gone the other way, holding that the
filing period in a constructive discharge case begins to run when the employee resigns. Young v.
National Center for Health Services Research, 828 F.2d 235 (4th Cir. 1987); Draper v. Coeur
Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998); Flaherty v. Metromail Corp., 235 F.3d 133 (2d
Cir. 2000); Hukkanen v. International Union of Operating Engineers, Hoisting & Portable Local
No. 101, 3 F.3d 81 (8th Cir. 1993); American Airlines, Inc., v. Cardoza-Rodriguez, 133 F.3d 111
(1st Cir. 1998). See also Whye v. City Council, 278 Kan. 458, 102 P.3d 384 (2004) (cause of
action for constructive discharge begins to run when plaintiff tenders his resignation or
announces a plan to retire).
Family and Medical Leave Act
Regulatory Changes
In the wake of Windsor v. United States, the Department of Labor (finally) promulgated
final regulations amending the definition of “spouse” under the FMLA to use the state of
celebration rule rather than the state of residence rule.
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.
80 Fed. Reg. 10000 (Feb. 25, 2015, effective March 27, 2015), amending 29 C.F.R. § 825.102
and several related sections.
On March 26, 2015, the day before the amended regulation was to go into effect, a
federal district court judge in Texas enjoined the enforcement of the rule in a suit brought by the
attorneys general of Texas, Arkansas, Louisiana, and Nebraska, all states that do not recognize
same-sex marriages. The DOL’s position is that it will not try to enforce the rule against those
states, but that it will enforce the rule as to employers in the other 46 states and the District of
Columbia. All of this, of course, may or may not be moot, depending on the outcome of
Obergefell v. Hodges, the same-sex marriage case currently pending before the Supreme Court.
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Recent Cases of Interest
Johnson v. Wheeling Machine Products, 779 F.3d 514, 24 WH Cas2d 349 (8th Cir. 2015).
Johnson parses the statutory and regulatory definition of “serious health condition,” on which all
of plaintiff’s FMLA claims turn. The case law has established that the FMLA plaintiff has the
burden of establishing the presence of a serious health condition when leave is sought for that
reason. If Johnson did not have a serious health condition under the statute and regs, then the
employer could not have unlawfully interfered with his entitlement to rights under the FMLA,
discriminated against him because he exercised those rights, or retaliated against him for
opposing a practice made unlawful by the FMLA.
On May 12, Johnson was at work when he suffered from blurred vision, a stiff neck, back
pain, and a bad headache. He left and went to a nearby health care clinic, where he saw a
physician’s assistant, who diagnosed high blood pressure, prescribed medication, and told him he
should follow up with his regular doctor. The PA gave Johnson a note, asked him to fill in his
own name, and then signed his name. The note stated that Johnson had been seen at the clinic
and could return to work on May 16. Johnson returned to the plant, gave the note to his
supervisor, and then went home. The company had problems with the note because the PA had
not filled in Johnson’s name, so the next day an HR supervisor called Johnson and asked him to
get another note from the clinic. The second note was written by a paramedic at the clinic
because the PA was not available; this, too was rejected. The company’s policy was that
employees had to provide written documentation from their health care providers stating they
were “totally disabled from working” on the days of their absence. Johnson tried to get a third
note, but the clinic would not give a more detailed reason for his absence. Johnson was then
suspended and later fired for “altering, falsifying, or forging the work excuse.” He was never
given notice of his FMLA rights and obligations. Sometime after his firing, Johnson saw a
physician at his regular doctor’s office, who found that his blood pressure was normal and who
advised him to use exercise to control it. In his FMLA suit, Johnson never presented evidence as
to the specific date on which this follow-up visit occurred or any evidence that he ever saw the
PA at the clinic again.
The court found that his situation fell under 29 C.F.R. § 825.113(a), the “continuing
treatment” prong of the regulations. A serious health condition requiring continuing treatment
requires, in Johnson’s case:
(a) Incapacity and treatment. A period of incapacity of more than three consecutive, full
calendar days, and any subsequent treatment or period of incapacity relating to the same
condition, that also involves:
(1) Treatment two or more times, within 30 days of the first day of incapacity,
unless extenuating circumstances exist, by a health care provider. . . ; or
(2) Treatment by a health care provider on at least on occasion, which results in a
regiment of continuing treatment under the supervision of the health care
provider.
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A regimen of continuing treatment can include a course of prescription medication. 29 C.F.R. §
825.113(c).
Johnson’s problem was that there was no evidence that he had a follow-up visit to his
health care provider within 30 days of his first day of incapacity. Further, the PA who gave him
the prescription for the blood pressure medication, did not indicate when, if ever, Johnson should
follow up with his regular physician.
Gordon v. U.S. Capitol Police, 778 F.3d 158, 24 WH Cas2d 354 (D.C.Cir. 2015).
Plaintiff, an officer with the U.S. Capitol Police, alleged unlawful interference with her FMLA
rights under § 105(a)(1), 29 U.S.C. § 2615(a)(1), which makes it unlawful for an employer “to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided by”
the FMLA. Gordon’s employer tried, but ultimately failed, to discourage her from taking FMLA
leave, but she alleged that this attempt caused her harm, in the form of the equivalent of three
days’ pay and a fitness-for-duty exam on her record that may reduce her prospects for pay
increases, promotions, and transfers. After analyzing case law under a virtually identical
provision of the National Labor Relations Act, the D.C. Circuit concluded that effective
interference with FMLA rights was not necessary to state a claim under § 105(a)(1), only that the
employer conduct reasonably tends to interfere with the exercise of FMLA rights.
Budham v. Reading Hospital & Medical Center, 765 F.3d 245, 23 WH Cases 2d 312 (3d
Cir. 2014). Budham was a credentialing assistant at the Hospital; sixty percent of her job
involved typing. She broke the fifth metacarpal in her right hand on July 30 and came to work
the next Monday, August 2, with her hand in a metal splint. Later that morning she received an
email from the HR department telling her that her supervisor had reported she had an injury that
prevented her from “working full duty,” and giving her FMLA leave forms. Budham left work
that day. Later in the week, she saw an orthopedic physician. He stabilized her splint and, after
Budham told him she thought she could type with the five fingers on her left hand, he wrote a
note that said, “No restrictions on splint.”
Budham duly returned to work on August 16, only to face resistance from her supervisor,
who said she should be “at full speed” and able to perform at the “same capacity” before she
could return to work. Budham returned to her doctor and received another note asking that she
be excused from work until September 8. The doctor evaluated her again on September 8,
prescribed occupational therapy for her hand, and scheduled a follow-up appointment for
November 9. Budham emailed her supervisors that day, telling them her doctor would release
her to work as soon as she could move her fingers without problems. The Hospital extended
Budham’s FMLA leave until September 23, when it expired. It then replaced her with another
employee, and eventually, it fired her. She sued, alleging both FMLA interference and
retaliation.
The Third Circuit held that although it had never specifically addressed what constitutes
invocation of one’s right to return to work, Budham had presented enough evidence that a
reasonable jury could find she had done so on August 16. Her fitness-for-duty certification,
provided by her doctor, must merely certify that she is able to return to work. While an
employer may require that this certification address the employee’s ability to perform the
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essential functions of her job, the employer may do so only if it provides a list of these essential
functions to the employee at the time the employer gives the employee notice that she is eligible
for FMLA leave. See 29 C.F.R. § 825.312(b). The Hospital did not give Budham this list, so her
doctor’s fitness-for-duty certification was based only on the job description that Budham gave
him. Budham said that her doctor specifically asked her whether she felt able to type, and she
said she thought she could. Although the doctor’s communications where somewhat
inconsistent, the regulations contemplate this situation by allowing the employer to contact the
employee’s health care provider if the employee gives permission, which Budham did. The
employer, however, may not delay the employee’s return to work while contact with the health
care provider is being made. Id.
Wallace v. FedEx Corp., 764 F.3d 571, 23 WH Cases 2d 342 (6th Cir. 2014). Under DOL
regulations, an employer has the option of requesting in writing that an employee who is seeking
FMLA leave provide medical certification that she is suffering from a serious health condition.
29 C.F.R. § 825.305(a). When the need for leave is unforeseeable, the employer must give the
employee at least 15 days to return a medical certification form. §§ 825.305(b); 825.311(b). If
the employee fails to provide the medical certification within a reasonable period of time under
the circumstances, the employer may delay the continuation of the leave, and if the employee
never provides the certification, the leave is not FMLA leave. In order to impose these
sanctions, however, at the time the employer requests certification, it must also advise the
employee of the anticipated consequences of an employee’s failure to provide adequate
certification. § 825.305(d).
Here, FedEx personnel gave medical certification forms to Wallace and stated orally that
she needed to return them within 15 days. The regulations require written notice, however. The
forms themselves stated “Family Medical Leave is not automatic” and “[q]ualification under
FMLA will be determined upon timely receipt of the medical certification form (within 15
calendar days) if requested.” The forms themselves were left unmarked, with no mention of the
consequences of failing to return them. Therefore, a jury could properly find that FedEx
interfered with Wallace’s FMLA rights when it fired her for absenteeism, claiming she was
ineligible for FMLA leave.
Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 23 WH Cas2d 174 (3d Cir. 2014).
This case involves the famous (or infamous) mailbox rule from Contracts I, with its presumption
of receipt. Lupyan suffered from depression. Her supervisor suggested she take a personal leave
of absence. When she requested personal leave on her Request for Leave Form, however, her
supervisor then said she should apply for short-term disability coverage instead. She scheduled
an appointment with her doctor and received from Corinthian a Certification of Health Care
Provider, a standard FMLA form. Based on this document, Corinthian’s HR department
determined that Lupyan was eligible for FMLA leave, rather than personal leave. A supervisor
met with Lupyan and told her to check the box marked Family Medical Leave on the Request for
Leave Form. Lupyan contends, and Corinthian never disputed, that her rights under the FMLA
were never discussed during this meeting. Later that afternoon, Corinthian mailed Lupyan a
letter explaining her rights under the FMLA, or so it claimed. Lupyan said she never received it.
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Eighteen weeks later, Lupyan told Corinthian that she was ready to return to work, at
which point Corinthian told Lupyan that she had been fired because her 12-week FMLA leave
had expired. (Corinthian had some other reasons for the firing, which the court also rejected.)
Lupyan alleged this was the first time she knew that she was on FMLA leave. She contended she
would have and could have returned to work earlier had she known she was on FMLA leave,
thus satisfying the Ragsdale requirement that an FMLA plaintiff in this situation must be able to
show harm caused by the employer’s actions.
The court examined the presumption of receipt in the mailbox rule and how that
presumption can easily be rebutted (or the bubble burst, as the court put it) by testimony that the
letter had not been received. The court thought this fair, in this day and age, when it is so easy
for the party sending a letter to obtain actual proof of delivery. “In this age of computerized
communications and handheld devices, it is certainly not expecting too much to require
businesses that wish to avoid a material dispute about the receipt of a letter to use some form of
mailing that includes verifiable receipt when mailing something as important as a legally
mandated notice.” The only evidence of mailing Corinthian could present were affidavits from a
mailroom supervisor and the HR coordinator, written four years after the fact, that they had
prepared and sent the letter to Lupyan in the ordinary course of business. Therefore, Lupyan’s
denial of receipt was enough to create a genuine issue of material fact that had to be resolved by
a factfinder, and the district court’s entry of summary judgment for the employer was reversed.
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