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Retroactive FMLA: For Employers It’s All About The Timing

Published on: February 2, 2015 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

A recent holding by a New Jersey federal court in serves to remind employers that when employees fail to give timely notice of the need for medical leave they may be forfeiting the protections of the Family and Medical Leave Act (FMLA).

The Facts: On May 24, 2011 Camden County Corrections Officer Walter Radlinger had fully exhausted his intermittent family leave under the FMLA, and his subsequent absences were thus deemed absences without leave (AWOL) by the County, which triggered disciplinary action. In lieu of termination, the parties entered into a settlement agreement whereby Radlinger agreed to a 90 day staggered suspension, one year of probation and an acknowledgement that future abuse of the County’s FMLA, sick leave or absenteeism policies would result in termination proceedings.

THE SUPREME COURT SPEAKS: Time Spent by Workers at Employer Security Checkpoints is Not Compensable Under the FMLA

Published on: February 2, 2015 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

By: Kathleen Connelly, Esq.

In its rare unanimous, pro-employer ruling in the United States Supreme Court held that under the Fair Labor Standards Act (FLSA), employers are not obligated to compensate employees for time spent undergoing employer-mandated security checkpoints after normal working hours. The ruling resolved a split between rulings from the Ninth Circuit Court of Appeals, and all other federal appeals courts considering the issue – The Ninth Circuit Court ruled employers were obligated to compensate employees for this time, while other federal courts concluded the time was not compensable time worked within the meaning of the FMLA.

The Facts: Integrity Staffing Solutions, Inc. (“Integrity), a storage and order-filling facility for Amazon.com, implemented security procedures requiring workers to pass through security checkpoints for up to 25 minutes before leaving the facility. Employees challenged the practice, claiming that Integrity was obligated to compensate employees for these mandated post-shift activities under the FLSA. In the proceedings below, the District Court found that the time was postliminary and not compensable under the FMLA. The Ninth Circuit reversed in part, holding that these activities were compensable if they were necessary to the principle work and were performed for the benefit of the employer.

SUBCONTRACTOR’S RIGHTS PROTECTED AND LARGE CONSTRUCTION PROJECT RESUMES

Published on: January 13, 2015 | by Greg K. Vitali

Two years into a large federal design-build project through the Army Corps of Engineers here in New Jersey, the owner shut down the project and terminated the general contractor for cause, citing its failure to keep to the schedule among other issues. Our client, a mechanical subcontractor with an almost $1.5 million contract on the project, was caught up in the dispute. As the project sat dormant for a year, our client faced years of litigation to collect payment on work performed, the possibility of receiving only a percentage of the payments not made, and the loss of the rest of the work on the project that needed to be done. The client was also concerned about its obligations under the contract and the warranties on expensive equipment purchased for the project as it sat idle.

Lindabury construction attorney Greg Vitali was contacted by the client to provide guidance in protecting the client’s interest and rights. Greg stepped in to perfect the client’s bond rights under the Miller Act, thereby providing the client with additional assurances that it would be paid the monies due on the project. He also successfully negotiated a ratification agreement with the surety and the completion contractor that (i) resulted in an increase in the contract price to compensate the client for the consequences of the delays, and (ii) limited the exposure of the client for warranty claims on materials and equipment that had not yet been accepted but had otherwise sat idle at the project for over a year and a half. Through the efforts of Greg and the other parties, the dispute was resolved to everybody’s satisfaction. The owner and the surety are now able to proceed with the completion of the project. Our client avoided years of litigation and delays in payment. Instead, he was able to get back to work, receive payment in full for work previously completed but not paid, and obtain necessary and critical protections from the consequence of the delay.

Ignorance of Employee Rights Proves Costly – Jury Awards Hundreds of Millions in Pregnancy Discrimination Suit

Published on: November 26, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

By: Kathleen Connelly, Esq.

The Los Angeles Times and other news outlets have reported that following eight years of protracted litigation, a San Diego jury awarded nearly $186 million dollars to a former AutoZone manager who claimed she was demoted by AutoZone after she announced her pregnancy and was terminated after she filed a lawsuit challenging her demotion. The reported testimony of trial witnesses serves as a perfect illustration how an employer’s ignorance of basic employee rights can lead to obscenely high jury verdicts.

Rosario Juarez claimed that when she announced her pregnancy to her district manager in 2005 he responded “Congratulations . . . I guess” adding “I feel sorry for you.” Thereafter, Juarez’s performance was increasingly criticized and she was demoted. After Juarez filed suit to challenge her demotion, she was terminated for allegedly misplacing $400 of company funds. However, AutoZone’s defense of the case was crippled by the testimony of its loss prevention officer who investigated the missing funds that she never suspected wrongdoing by Juarez and thought she was being targeted by the company. To make matters worse, a former district manager testified that he was scolded by an AutoZone vice president for hiring too many women. Such testimony undoubtedly provoked the jury to award $185 million dollars in punitive damages as a punishment to AutoZone, in addition to the $872,000 awarded to Juarez for lost wages.

The Perils of Not Using a Prenup

Published on: November 13, 2014 | by James McGlew, II

By: James McGlew

The perils of getting married without a prenuptial agreement were made clear this week with the news of the divorce of billionaire Harold Hamm. Mr. Hamm, Chief Executive Officer of Continental Resources, was ordered to pay nearly $1 billion to his now ex-wife in one of the largest US divorce judgments ever. The order requires Mr. Hamm to pay his ex-wife one-third of the settlement, about $320 million, by the end of 2014 and the remainder to be paid in monthly installments of at least $7 million. This award will help to make the former Ms. Hamm one of the 100 wealthiest women in the United States.

As I'm sure you can tell by now, Mr. and Mrs. Hamm had no prenuptial agreement.

BIG MAC ATTACK: The NLRB’s General Counsel Uproots McDonald’s Franchisor-Franchisee Relationship

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

By: Sergio Simoes, Esq.

In July 2014, the General Counsel of the National Labor Relations Board (“NLRB”) shook the foundations of the franchisor-franchisee relationship when he determined that McDonald’s Corporation could be prosecuted as a “joint employer” with its franchisees in forty-three cases, charging unfair labor practices at its franchised restaurants. Consequently, whenever a McDonald’s franchisee fails to pay overtime, bars employees from taking mandated breaks, or commits another unfair labor practice, the McDonald’s parent organization may be held jointly responsible for the franchisee’s transgressions.

The General Counsel’s decision is particularly significant because approximately 80% of McDonald’s 3,000 U.S. restaurants are privately owned by franchisees. The NLRB and the labor organizers supporting the determination reasoned that because McDonald’s exerts significant operational control over how its franchised restaurants are run, including menu selections, uniforms, décor and other day-to-day operations, it should also be held responsible for violations of workers’ rights under the National Labor Relations Act.

Appellate Division Extends New Jersey Law Against Discrimination to Divorcing Employees

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The New Jersey Law Against Discrimination (“LAD”) has long prohibited discrimination against individuals on the basis of their “marital status,” barring employers from considering an individual’s status as married or unmarried in making any employment decisions. In the recent case of a New Jersey appeals court recently examined the scope of the marital status protections of LAD and determined that they also extend to engaged, separated and divorced individuals.

The Facts: Robert Smith, Director of Operations for the Millville Rescue Squad (“Millville”), supervised over one hundred employees, including his wife. In February 2005, Smith had an affair with a subordinate who later resigned, and shortly thereafter, Smith and his wife separated. Mr. Smith’s supervisor became aware of Smith’s affair and subsequent separation and told him he could not promise these developments would not affect Smith’s job, that it “all depends on how it shakes down.” Several months later, Smith’s employment was terminated for poor work performance. Smith’s supervisor purportedly told Smith that he had to present the situation to Millville’s board of directors because he believed there was no chance of reconciliation between Smith and his wife and “it’s going to be an ugly divorce.” Smith filed suit alleging marital status discrimination in violation of the LAD.

The Ruling: In the proceedings below, the trial court dismissed Smith’s marital discrimination claim because Smith failed to present evidence that Millville fired him because he was either married or unmarried. The Court reasoned that Millville had the right to terminate Smith because it was concerned about the potential impact his divorce proceedings might have on his work. Smith appealed that ruling.

Pregnant Employees To Get Expanded Workplace Accommodations Under LAD and EEOC Guidance

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In January 2014, Governor Christie signed the Pregnant Worker’s Fairness Act (PWFA), amending the New Jersey Law Against Discrimination (LAD) to expressly prohibit workplace discrimination on the basis of pregnancy. On the federal side, the United States Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”) on July 14, 2014, that reiterated i) the federal Pregnancy Discrimination Acts’ prohibition against treating pregnant employees less favorably than non-pregnant individuals with respect to the terms and conditions of employment; and ii) the Americans With Disabilities Act’s mandate that employers provide reasonable accommodation to women with pregnancy-related disabilities. While aspects of these pronouncements simply confirm the right to non-discrimination and reasonable workplace accommodations for pregnancy-related disabilities, there can be no doubt that these developments break new ground by extending the reasonable accommodation obligation to employee experiencing a normal pregnancy who is “affected” by her condition.

THE PRIOR LEGAL LANDSCAPE: Prior to the PWFA and the EEOC Guidance, pregnant employees in the workplace were accorded protections under the following laws:

Pregnancy Discrimination Act (“PDA”): Title VII amended to add pregnancy as form of gender discrimination. Employers of 15 or more employees are required to treat pregnant workers the same as non-pregnant workers who are similar in their abilities to work with respect to all terms and conditions of employment.

Is It Time to Limit Your Exposure to Employment Lawsuits?

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The New Jersey Judiciary reported that approximately 40% of lawsuits filed with the courts involve claims by employees against their current or former employers. In this current litigious landscape, are there actions employers can take to protect against potential employment lawsuits? As a result of a recent decision from a New Jersey appellate court, the answer is a resounding “Yes.” Under that decision, employers and employees are permitted to enter into agreements that significantly shorten the statutory time period in which employees can file suit against the employer. Employees who fail to file suit within the agreed-upon time period will be barred from pursuing their claims, notwithstanding the fact that the statutory limitations period has not run.

Statutes of limitation are time periods established by law in which lawsuits must be initiated. The statutes of limitation vary depending upon the causes of action being asserted. For example, breach of contract claims can be filed up to six years after the alleged breach; suits alleging violations of the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Wage & Hour Law must generally be filed within two years of the accrual of the claim; and whistleblower lawsuits under the Conscientious Employee Protection Act must be filed within one year of the accrual of the claim.

In its recently rendered decision in (“Raymours”), the Appellate Division of the Superior Court of New Jersey affirmed that an employer can require its employees to enter into agreements to shorten the statutory time period in which lawsuits can be filed against the employer, provided that the agreed-upon time period is reasonable.

New Jersey Supreme Court Raises the Bar for Health Care Whistleblowers under CEPA

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Clarifying the burden placed upon health care workers alleging New Jersey Conscientious Employee Protection Act (CEPA) violations, the New Jersey Supreme Court’s recent decision in 218 N.J. 8 (2014) illustrates the barriers facing employees who point to alleged violations of codes of ethics or employer policies to support whistleblowing claims.

The Facts: Registered Nurse James Hitesman served as shift supervisor for a nursing home operated by Bridgeway, Inc. (“Bridgeway”). In 2008, Hitesman e-mailed Bridgeway management expressing concerns that seasonal respiratory and GI symptoms were rising at an alarming rate at the nursing home. Unsatisfied with Bridgeway’s response to his concerns, Hitesman reported the increase in infections to governmental agencies and the media. In his communications with the media, however, Hitesman provided partially redacted copies of Bridgeway administrative logs that nevertheless disclosed information that could lead to the identification of patients. Bridgeway ultimately terminated Hitesman for his disclosure of patient information to the media in violation of the facility’s confidentiality policy and the Health Insurance Portability and Accountability Act (HIPAA).

Hitesman filed suit alleging that his discharge violated CEPA’s prohibition of retaliatory action against a health care employee who reports on, or objects to, employer activity that the employee reasonably believes constitutes “improper quality of patient care” or is “incompatible with a clear mandate of public policy concerning the public health.” Hitesman pointed out that “improper quality of patient care” is defined by statute as a violation of “any law, or any rule, regulation or declaratory ruling adopted pursuant to law or professional code of ethics.” To support his claim of a reasonable belief that Bridgeway’s infectious disease practices constituted improper quality of patient care, Hitesman relied upon the American Nursing Association’s Code of Ethics that obligated him to improve patient care, as well as Bridgeway’s Internal Code of Conduct and its Statement of Resident Rights as the governing standard for assessing Bridgeway’s misconduct.