Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard
hrresource

HR Resource Blog

This blog is published by the attorneys in Capehart Scatchard’s Labor and Employment Group. On this site, employers and human resources professionals will find useful tips as to how to keep the workplace, and workplace policies, in compliance with state and federal employment laws.
View OTHER BLOGS

The FMLA and the “Honest Belief” Defense

Federal courts have upheld a defense to a Family and Medical Leave Act (“FMLA”) retaliation claim called the “honest belief” defense. The “honest belief” defense means that “where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave, that is a legitimate, nondiscriminatory justification for the discharge.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 152 (3d Cir. 2017). The “honest belief” defense, if proven, is a total defense to a retaliation claim, even if it later turns out that the employer was wrong and the employee did not in fact misuse the FMLA leave.

The Third Circuit recently issued a decision dealing with the “honest belief” defense. In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3d Cir. 2017), the Third Circuit upheld the trial court’s summary judgment in favor of the employer, Mondelez Global, LLC, on the grounds that the company had an “honest belief” that the employee had violated company policy with regard to taking FMLA leave.

Plaintiff, Capps, was initially hired in November 1989. He was employed as a “mixer,” which required him to operate a mixing machine that made dough. The Defendant, Mondelez, had a personnel policy that entitled an employee to FMLA leave for a “serious health condition of the employee that makes the employee unable to perform one or more of the essential functions of his/her position” and allowed for the use of intermittent FMLA leave when it was a medical necessity. The policy also required that the employee provide notice of the leave “as soon as practicable.” As part of the process of obtaining FMLA leave for the employee’s own serious health condition, Mondelez required a certification from the employee’s health care provider and noted, “As with all communications with the Company, the submission of false information to the Company regarding the need for FMLA leave, or the fraudulent use of FMLA leave, may result in discipline, up to and including termination.” Mondelez also had a policy entitled “Dishonest Acts on the Part of Employees,” which was considered a “Major Rule.” Violations of “Major Rules” were considered inexcusable offenses that would result in immediate suspension pending an investigation, which could lead to termination. Mondelez’s Dishonest Acts on the Part of Employees policy includes the warning that:

THE COMPANY WILL NOT TOLERATE DISHONESTY ON THE PART OF ITS EMPLOYEES, WHETHER IT BE COMMITTED AGAINST THE COMPANY, ANOTHER EMPLOYEE, ITS CUSTOMERS, OR OTHERS EITHER DURING OR AFTER WORKING HOURS” and that “ANY EMPLOYEE FOUND GUILTY OF A DISHONEST ACT WOULD BE SUBJECT TO DISMISSAL.” (emphasis in original).

Capps’ suffered from a condition in which there is a loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells. He experienced severe pain at times in the pelvic region, thighs and hips, which sometimes lasts for days or weeks at a time. As a result, he requested intermittent time off from work when flare-ups occurred. Capps’ intermittent leave request was approved and stated that he may need one to two days off per month for a duration of up to fourteen days per episode due to incapacity and treatment appointments. On Monday, February 11 and Tuesday, February 12, 2013, Capps took FMLA leave due to leg pain, and he returned to work for a full shift on Wednesday, February 13, 2013. Capps was scheduled to work on Thursday, February 14, 2013, but he called in stating he would be late to work because of leg pain. Later that day, he again called in and stated that he would be taking a full day of FMLA leave since the pain had not subsided. His doctor also signed Capps’ FMLA certification form dated February 14th. That evening, Capps drove to a local pub to get something to eat. According to Capps, at the pub he also drank three beers and three shots of alcohol with his friends, and he spent approximately two and a half to three hours at the pub. Afterwards, despite feeling too intoxicated to drive, Capps attempted to drive home. While driving home he was stopped by the police and was found to have a blood alcohol concentration level of 0.339%. Capps was released from jail the morning of February 15, 2013. He was scheduled to begin his shift at Mondelez at 1 p.m. on February 15, 2013, but called out on FMLA leave due to leg pain.

Capps returned to work on Monday, February 18, 2013. He did not report his arrest to anyone at Mondelez; nor was he required to under Mondelez’s policies. In the meantime, Capps was recertified and approved for additional intermittent FMLA leave from July 31, 2013 through January 30, 2014. Capps was eventually convicted of a DUI and sentenced to 72 hours in jail. In early 2014, a Human Resources Manager at Mondelez became aware of Capps’ DUI conviction and sentence by finding in his company mailbox a newspaper article reporting the conviction. Upon reviewing the criminal court docket related to Capps’ conviction, human resources representatives noticed that Capps’ arrest date and “court dates” appeared to coincide with days on which Capps had taken FMLA leave. Capps was eventually terminated for what the company believed was Capps’ violation of the Dishonest Acts on the Part of Employees policy.

Capps subsequently filed a lawsuit alleging retaliation and interference in violation of the FMLA. Capps was able to provide evidence that he had in fact properly used his intermittent FMLA leave and that there was no dishonesty on Capps’ part. At the conclusion of the discovery process, Mondelez filed for summary judgment claiming that it had demonstrated a legitimate, nondiscriminatory justification for discharging Capps, namely that they thought they had evidence that Capps’ had lied about the use of his intermittent FMLA. The district court granted Mondelez’s motion for summary judgment and the Third Circuit affirmed. The Third Circuit explained that FMLA retaliation claims require proof that the employer had an “intent” to retaliate against the employee for use of FMLA. The Court clarified that where an employer provides evidence that the reason for the adverse employment action taken by the employer was an honest belief that the employee was misusing FMLA leave (as happened here), that is a legitimate, nondiscriminatory justification for the discharge (even when that belief turns out to be wrong). Mondelez was able to show that Capps was continuously provided with intermittent FMLA and was re-certified for FMLA leave approximately every six months from 2002 through early 2014. It was not until human resources representatives received the newspaper article in 2014 alerting Mondelez to Capps’ DUI arrest and conviction, that an investigation began into Capps’ attendance record to determine if any of his FMLA leave coincided with the dates related to his arrest and conviction (and it was undisputed in the records that it appeared as if some of the dates on the court docket coincided with his intermittent FMLA use).

Therefore, an honest belief that an employee is misusing FMLA leave can be a valid defense to a FMLA retaliation claim. However, the employer must be cautioned that this defense requires evidence to back up the honest belief and the employer must be cautioned not to act in any way that will be seen as interfering with the employee’s FMLA leave in an attempt to gather evidence to support the honest belief defense. If an employer does believe that an employee is misusing FMLA leave, it is a good idea to get your company’s labor and employment attorney involved to make sure that the employer complies with all state and federal laws and does not inadvertently violate an employee’s rights under state and/or federal law.

Does My Employee Have to Tell Me He has a Condition Triggering FMLA?

The short answer is “NO.”  A recent Federal District Court decision suggests that employers are cautioned to “pay attention to” and ask questions about any mention by an employee of a serious health condition before they make the decision to take any negative employment action (firing, demoting, suspending, etc.)

The Result:

A Federal Court in New Jersey (Van Allen v. Print Art, Inc., 2017 U.S. Dist. LEXIS 55019 (D.N.J. April 11, 2017)) refused to rule that the employer did not have sufficient notice of a potential serious health condition protected under the Family and Medical Leave Act and instead, sent the notice issue to a jury to decide even though the employee’s complaints were vague and inconsistent.

Why is this Something for Employers to “Pay Attention To?”

This is important because (a) like many employers, Print Art, Inc. had a clear discipline policy for excessive unscheduled absences; (b) Mr. Van Allen’s communications to the employer were inconsistent and unclear (e.g., “My son has off…for the MLK holiday…I’m going to take the day….I had a family emergency last night and got no sleep…I broke out in rashes all over my arms, eyes, neck….[which] caused me to lose sleep”);(c) the employer, under its excessive absenteeism  policy, terminated Mr. Van Allen after it had notice of these issues; and (d) while the Court agreed that Van Allen’s complaints were vague, it refused to rule in the employer’s favor as a matter of law.

What’s an Employer to Do When the Employee’s Condition is Unclear?

 The short answer: obtain more information before taking action.  In Van Allen, the Court cited the FMLA and held that while employees must provide “sufficient information for an employer to reasonably determine whether the FMLA may apply…..this is not a stringent standard.”

Rather, “where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee…to ascertain whether leave is potentially FMLA qualifying.” As a result, even though the Court indicated that Van Allen’s complaints were vague and sometimes not suggestive of any request for FMLA leave, the Court concluded that the interpretation of “all of the communications” (including those about the rash) might lead a reasonable factfinder to conclude that the employer had sufficient notice of an FMLA-qualifying condition.

What’s the “Take-a-Way” Here?

When an employee makes any complaint about a health condition which might result in prolonged or intermittent absences from work or continuing medical treatment, engage in a dialogue with the employee to attempt to determine whether their absences may be considered to be protected leave under the Family and Medical Leave Act. Once that information is gathered, take appropriate action (medical certifications, etc.) to either grant or deny leave under the FMLA. And, as always, and because each and every employee’s situation is unique, if you have any questions about how to address the issue or whether the employee might be requesting or entitled to an accommodation under the Americans with Disabilities Act, consult your labor and employment attorney as soon as possible.

Employment and The Use of Medical Marijuana

New Jersey’s medical marijuana program went into effect in 2007.  Since that time, more than 11,000 persons have been issued ID cards under The Compassionate Use Medical Marijuana Act (“Act’) permitting them to use medicinal marijuana and to obtain the drug at one of the state’s five (5) marijuana dispensaries.

One of the issues that has perplexed New Jersey employers since the time of the Act’s passage has been whether an employer can either fire, or refuse to hire, a medicinal marijuana user if the employer has a drug free workplace policy, or if hiring or continued employment would violate other commitments to provide a drug free workplace under related federal laws. This issue arises because the Act is silent as to whether medicinal marijuana users have job protection because of that status. While the Act states expressly that employers have no duty to accommodate the use of medical marijuana while on the job, the law also states very vaguely that users cannot be denied certain unspecified rights or privileges because of their user status. Because of this uncertainty, employees are now resorting to the courts to determine what their employment rights are under the Act, and New Jersey Courts are finally getting the chance to weigh in on this controversial issue.

In a recent decision issued by the New Jersey Federal Court in February, 2017, a wrongful discharge claim brought by a medicinal marijuana user was dismissed on the grounds that the complaint failed to state a legally cognizable claim under New Jersey state law.  In Barrett v. Robert Half Corporation, Civil Action No. 15-6245 (CCC), plaintiff was an accountant who also was a medical marijuana user.  He did so to relieve back pain suffered as a result of an auto accident.  Plaintiff was tested for drug use as part of the employer’s testing program and was subsequently terminated.  In filing his suit, the employee claimed that the New Jersey Law Against Discrimination was violated because the employer was notified that the plaintiff was in the medical marijuana program and therefore had a duty to accommodate the drug use as treatment for his back problem.  The court held that merely notifying an employer about an employee’s participation in the state medical marijuana program does not constitute a request for accommodation of the underlying condition that allows for the medicinal use of marijuana.  As a result, no accommodation duty was violated by the employer.

The Barrett case is one of a handful of cases that are now working their way through the New Jersey courts.  As more decisions are handed down, employers should have a better idea of what their rights and duties are in terms of addressing medicinal marijuana issues in the workplace.  As these cases are being processed through New Jersey’s courts, employers should also keep a close eye on what is similarly happening in the New Jersey legislature.  Proposed legislation now pending before both the Senate and Assembly would make it unlawful for an employer to take any adverse employment action against any employee enrolled in the New Jersey Medical Marijuana program.  Because of these continuing developments, employers facing issues with employee use of medical marijuana should seek sound legal advice whenever contemplating possible adverse employment action against such employees.

One Click Can Seal The Deal

A popular argument that employees make regarding employer/employee agreements is that the employee should not be held to the terms of the agreement because the employee signed the agreement without actually reading the terms.  In a different twist, two employees claimed in a February 2017 case before the Third Circuit Court of Appeals, ADP, LLC v. Lynch, No. 16-3617, 2017 U.S. App. LEXIS 2159 (3d Cir. Feb. 7, 2017), that they were provided with a non-compete agreement by their employer, that they read the agreement but that they should not be held to the terms of the agreement because the employee never explicitly signed off on the requirement to comply with the agreement.  Instead, the employees clicked a button on a web page that only indicated that they had read the agreement.  The Court ultimately held that even though the employees only signed off on the fact that they had read the non-compete agreement, the agreement to comply was implied by the terms of the actual documents.

The Facts of the Case

Jordan Lynch and John Halpin worked as sales employees of ADP for six years before resigning to join ADP’s direct competitor, Ultimate Software Group. On five different occasions, both employees accepted incentive stock awards that were offered to certain employees based upon performance. To accept the stock incentives, the employees had to log on to a certain website containing award documents. The webpage stated that the employee must select the checkbox to indicate that he/she has read all associated documents before he/she can proceed. Next to the check box was a link to various documents, including an award document and a non-compete agreement. The first page of the award document stated that the acceptance of the award was conditioned upon acceptance of the non-compete agreement. The first page of the non-compete agreement reiterated this requirement and provided that for a period of 12 months after employment ended, the employee would not join an ADT competitor and would not solicit any business from current or prospective clients.

After the Lynch and Halpin resigned, ADP sued the employees claiming that they were soliciting current and prospective ADP clients and requested preliminary injunctive relief to enforce the non-compete agreement. The court granted the preliminary injunction in part.  The employees filed for reconsideration, which was denied.  The employees appealed.

The employees argued, on appeal, that they were never required to check a box on the webpage that said that they read and agreed to the terms of the documents.  Instead, the employees checked a box that stated that they had only read the documents. The Court rejected the employees’ argument. Even though the actual box that the employees clicked only stated that they had read the documents, the documents themselves explicitly advised that agreement with the non-compete agreement was a condition of accepting the stock award. Moreover, after checking the box that said that they had read the documents, the employees also clicked the “Accept Grant” button and entered their personal passwords. The employees were ultimately found to be bound by the employer’s non-compete agreements.

What Does this Mean?

This is a positive case for employers. It enforces the fact that as long as an underlying employment agreement states that the employees must abide by it, when the employee signs off that he/she has read the agreement, that employee is presumed to understand and consent to the terms of the agreement.

 

Is Your Employee’s Waiver of a Statutory or Constitutional Right Enforceable?

In the Winter of 2016, the New Jersey Appellate Division made a significant change to employment law in New Jersey when the Court held that without a clear and unambiguous waiver of the right to sue, an employee cannot be forced to arbitrate employment claims (meaning that generally, arbitration agreements found in employee handbooks cannot be enforced).  On February 6, 2017, the Appellate Division once again made a significant ruling regarding employment law and an employee’s waiver of a right to a jury trial.  Specifically, the Appellate Division held that a waiver of a right, in this case a waiver of a right to a jury trial, must be clearly and unambiguously established and there must be a mutual understanding of the terms of the waiver.  Although no specific language is required to accomplish the waiver of the jury trial, the employee must have full knowledge of his or her legal rights and an intent to surrender those rights.

The case, Noren v. Heartland Payment Systems, Inc., Docket No. A-2651-13T3 (App. Div. Feb. 6, 2017), involves Greg Noren, an employee with Heartland Payment Systems employed as a Relationship Manager from April 1998 through June 2005.  In July 2002, Noren signed an employment agreement which contained a provision waiving a right to a jury trial.  Specifically, the provision stated:

HPS and RM irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.

In January 2003, Noren signed another agreement, superseding all prior agreements.  However, this agreement contained an identical jury waiver provision and indicated that his employment was at-will.  In June 2006, Noren’s employment was terminated.  Although Noren demanded a jury trial, the demand was denied by the trial court as a result of the jury waiver provision.

In evaluating the jury waiver provision of the agreement, the Appellate Division noted that a person’s right to a trial by jury is guaranteed by the New Jersey Constitution and in the case of a CEPA claim (as well as other statutory claims such as claims under the New Jersey Law Against Discrimination), explicitly established by statute.  Therefore, the Appellate Division was required to determine whether the jury waiver provision was a “legally enforceable waiver of this constitutionally and statutorily guaranteed right. . . .”

The Court explained that when a contract contains a provision waiving a right, the waiver must be “clearly and unmistakably established.”  The Court went on to explain that a waiver “must reflect that [the party] has agreed clearly and unambiguously to its terms,” and that there cannot be a clear and unambiguous waiver “without a ‘mutual understanding’ of the terms of the waiver.”  A person waiving his or her rights must clearly understand his or her legal rights and must have a clear and unambiguous intent to give up those rights.

As was noted above, the Court indicated that there is no specific or required language for a waiver of rights provision.  However, the Court did explain that even though a specific statutory or constitutional right does not need to be identified in the waiver, the provision must still contain clear and plain language that is understandable to the average person that a statutory and/or constitutional right is being waived.  The Court stated:

In short, to effect a waiver, the language must clearly explain (1) what right is being surrendered and (2) the nature of the claims covered by the waiver.

The Court held that in the Noren case, the jury waiver provision did not identify or reference a waiver of a right to a jury trial in regard to statutory claims and did not extend the scope of claims as including all claims relating to the employee’s employment.  As a result, the jury waiver provision contained in Noren’s agreement failed to “clearly and unambiguously explain that the right to a jury trial” included a waiver of a jury trial as to a CEPA claim.  The Appellate Division remanded the case back to the trial court for a jury trial.

What does this case mean for you as an employer?  This means that any employee waiver (not just a waiver of a jury trial) of a constitutional or statutory right must be clear and unambiguous and must reflect that the employee has agreed clearly and unambiguously agreed to the terms of the waiver.  The waiver must be written in plain language that an average person can understand.  If you have employee contracts or employee manuals that contain waivers of constitutional and/or statutory rights, now is an appropriate time to undergo a review of those provisions to bring them into compliance with New Jersey law.

Third Circuit Clarifies Standard for Establishing Age Discrimination Claims

The Age Discrimination in Employment Act (“ADEA”) is a federal law that prohibits employment discrimination against employees over the age of 40.  One of the lingering questions under the law has been what happens when an employer adopts an employment policy that, while seemingly benefiting a group of employees over 40 years old, also simultaneously adversely affects other employees much older than 40.  For years, in these kinds of situations, federal appeals courts have held that there can never be such a thing as subgroup age discrimination under the ADEA, meaning that in the above example, the older subgroup of harmed employees could not claim age discrimination.  Recently, however, in Karlo v. Pittsburgh Glass Works, 2017 U.S. App. LEXIS 406 (3rd Cir. January 10, 2017), the federal Third Circuit Court of Appeals gave new life to this legal theory, and held that such a claim of age discrimination is now indeed cognizable under the ADEA in subgroup situations.

The legal question that the Third Circuit had to decide in Karlo was whether a subgroup disparate impact claim could be brought under the ADEA. Disparate impact is a way of proving discrimination where a facially neutral employment policy has an adverse impact on a class of employees protected under the discrimination laws. In Karlo, a group of employees over 50 years of age claimed that their layoff from respondent was improper age discrimination because a disproportionate number of employees over 50 years old were laid off while persons who were over 40 but under 50 years old were not. Relying upon past United States Supreme Court precedent holding that the ADEA prohibits all forms of age discrimination, not just age discrimination that happens to affect only persons who are over 40 years old age, the Third Circuit held in Karlo that disparate impact claims can be brought to prove age discrimination under the ADEA, even when the group that is benefited by the subject employer’s practice happens to be over 40 years old.

The Third Circuit’s decision has now created a “split” amongst how federal appeals courts have ruled on this issue. This means that the present decisional law on this issue is not uniform throughout the country. When this happens, the United States Supreme Court will often have to decide the issue to create the necessary uniformity on the standard to be applied by the federal courts. Therefore, until that eventually happens, employers must be more cognizant of how sometimes even a facially neutral employment policy that ostensibly makes no wrongful distinctions amongst employees may result in age discrimination because the policy harms older employees in a disproportionate way compared to other older employees. Because of this possibility, employers must not only make sure that their employment policies not expressly discriminate against older employees, but the impact of how such policies may apply and affect other older employees must also be evaluated so that such policies do not unintentionally discriminate against members of that protected class.

Because disparate impact claims are complicated and often difficult to recognize, employers are wise to seek sound advice from an experienced labor and employment lawyer whenever there is suspicion or concern that a neutral employment policy is having a harmful impact on a group of employees protected under federal or state anti- discrimination laws.

Legal Alert: Jury Reminds Employers that Age Discrimination is No Joking Matter

On January 26, 2017, after analyzing four days of trial testimony, a jury in the Federal District Court of New Jersey issued a verdict that Lockheed Martin (“Lockheed”) must pay $51.5 million to a Plaintiff in an age discrimination lawsuit.

The lawsuit, alleging violations of the Age Discrimination in Employment Act (“ADEA”) and the New Jersey Law against Discrimination (“LAD”), was brought by Plaintiff Robert Braden, who held the title of project specialist at Lockheed’s Moorestown, New Jersey location. Braden became a Lockheed employee in 1995 and was included in a 2012 reduction in force, when he was 66 years old. Out of 110 employees at the Moorestown location with the same title as Braden, five people were laid off and they were all over the age of 50.  Braden alleged that the company used no objective measurements to choose who would be laid off and that at the same time that the layoff took place, Lockheed continued to recruit and hire younger employees.  Braden also claimed that he was paid less than younger employees with similar positions and that he overheard company officials suggesting that it was preferable to give older workers lower evaluations and lower pay because they “have nowhere else to go.” Lockheed defended its actions by asserting that the layoff decisions were made for legitimate, non-discriminatory reasons.  Lockheed argued that Braden’s performance was consistently below average and that there was a lack of impending work for Braden’s skill set.

Ultimately, the jury found in Braden’s favor and awarded $520,000 in back pay under the ADEA, which was then doubled because the jury found that Lockheed’s violation of the ADEA was willful, and another $520,000 as emotional distress damages.  Braden was also awarded $50 million in punitive damages under the LAD.

This jury verdict sends a clear message to employers that age discrimination will not be tolerated and that a company should pay attention to the age of its employees when considering a reduction in force (or other adverse employment action). It is best for an employer to consult with legal counsel before conducting a reduction in force or before making any significant personnel decisions to ensure that the decision is made in compliance with the law.

Is a Job Duty Reassignment Considered an Adverse Employment Action?

Employers occasionally find themselves in a situation where they must reassign an employee to a different shift or a different duty assignment due to staffing needs or some other legitimate business reason.  Although the reassignment is usually lawful when it can be supported by legitimate business reasons, a disgruntled employee may claim that the reassignment is a discriminatory/unlawful adverse employment action.  This then leads to the question: when does an employee’s reassignment become an “adverse employment action” under the law?  The United States District Court for the District of New Jersey recently analyzed this question in Betts v. Summit Oaks Hospital, No. 14-06357, 2017 U.S. Dist. LEXIS 3535 (D.N.J. January 10, 2017).  The Court ultimately found that without evidence that the job reassignment had a tangible impact on the employee’s employment, the employee was unable to show that she suffered an adverse employment action.

Facts of the Case:

Defendant Summit Oaks Hospital (the “Hospital”) hired Willie Kay Betts (“Betts”) as a full-time nurse in November 2011. Betts was primarily assigned to the rehabilitation unit within the hospital but she was, at times, assigned to the detoxification unit. The Hospital regularly requires its employees to temporarily staff different units due to its varying staffing needs.

According to Betts, she was assigned to the detoxification unit in the hospital for the greater part of 2012.  Betts was not transferred to the detoxification unit, but she claims that she was staffed exclusively there until late 2012 or early 2013.  Betts also alleges that she was assigned to the detoxification unit more often than other nurses because of her race and color.  Betts resigned from her position with the Hospital in August 2015.

Betts filed a charge of discrimination against the Hospital with the New Jersey Division on Civil Rights and the Equal Employment Opportunity Commission (“EEOC”).  The EEOC conducted an investigation and issued a right to sue letter, detailing the EEOC’s determination that the Hospital had discriminated against Betts.  The EEOC declined to file suit against the Hospital and advised Betts of her right to file a private lawsuit.  Betts filed a lawsuit in United States District Court for the District of New Jersey, claiming that she was discriminated against on the basis of her race and color in violation of Title VII because she was assigned to the detoxification unit more often than Caucasian nurses were assigned there.

Analysis:

The Hospital filed for summary judgment. It argued that Betts was unable to establish that she suffered an adverse employment action, which is part of the prima facie case of discrimination.  An adverse employment action is a “significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing significant changes in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).  Here, Betts was sometimes assigned to work in the detoxification unit, when she had an alternative preferred unit. However, “minor actions such as lateral transfers and changes of title and reporting relationships are generally insufficient to constitute adverse employment actions.” Langley v. Merck & Co., 186 F. App’x 258, 260-261 (3d Cir. 2006). Although Betts preferred to work in the rehabilitation unit, Betts failed to show how her assignment to the detoxification unit had any tangible impact on her employment.  Betts’ pay, benefits and terms of employment remained the same throughout her employment with the Hospital.  Thus, Betts was unable to establish that she suffered an adverse employment action and summary judgment was granted in favor of the Hospital.

What does this mean?

      Employers have the ability to temporarily reassign employees based upon legitimate business needs.  If a reassignment does not have any tangible impact on the employee’s employment, this will not be considered an adverse employment action.  Since the question of whether or not a reassignment will have a tangible impact upon employment can be fact specific (and more complicated than it seems at first glance), it is best to consult with counsel before making significant reassignments of employees.

New Federal Overtime Rule On Hold: “What Do We Do Now?”

New employee overtime rules slated to take effect on December 1, 2016, have been placed on a nationwide temporary “hold” pending a final Court hearing on the matter. The new Fair Labor Standards Act regulation, which would have doubled the minimum salary threshold for those not eligible for overtime pay, has been delayed by a Federal Court in Texas. The question is: “What do we do now?”

What Happened? A Federal Court in Texas placed a nationwide “hold” on the regulation scheduled to take effect on December 1st requiring employers to make hard decisions on whether to double the pay for certain salaried employees (exempt from overtime) or pay them overtime for more than 40 hours worked in a week. In enjoining the implementation and enforcement of the new rule, the Court held that Federal law does not grant the Department of Labor the authority to use a salary-level test or an automatic updating mechanism (for minimum salaries). In doing so, the Court held that “[w]ith the Final Rule, the Department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test” and that “[i]f Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

What did the Regulation Actually Require?  It would have raised the minimum salary for every salaried employee not paid for overtime hours (approximately 4.2 Million nationwide) from $23,660 to $47,476 and also provided for automatic increases every three years beginning in January, 2020.

What Does the “Hold” Mean for Your Organization?   It means that you do not have to raise the “exempt” employees’ salaries beginning on December 1st (or pay them overtime) even if they work more than 40 hours. However, this may be a temporary delay since the Court issued only a temporary order until the issues can be decided after a full hearing and final decision.

What Do We Do if We Already Gave or Promised Our Salaried Employees Raises? This is a very sensitive topic since it may not only involve legal issues, but may affect your organization’s morale and finances.  In the first instance, you may want to consult with your legal counsel regarding your options which may include leaving those decisions in place (paying the raises or beginning to pay formerly “exempt” employees overtime) or advising employees that the raises (and/or overtime pay) will be postponed pending the final legal decisions on these issues. Other options may be available based on the nature of your business, your organizational structure, and any actions you have already taken to implement the FLSA regulation.

What is Our Recommendation?  First, consider the impact of any collective bargaining or employment agreement that may be in place. Second, and most important, and whatever path you choose, your reaction to the “hold” should be done with great care and after seeking advice from your legal team.

Termination for Failure to Receive a Flu Shot – Is this Religious Discrimination?

Now that Thanksgiving is over, flu season is in full swing.  Although it would not occur to most employers that requiring employees to receive a flu shot would cause legal problems, recent cases from Pennsylvania show that such a requirement may be problematic.

In September 2016, the U.S. Equal Employment opportunity Commission (“EEOC”) filed suit on behalf of a group of nurses and medical workers who allege that they were terminated by their employer, a hospital, because they refused to receive the flu vaccine for religious reasons. See U.S. Equal Employment Opportunity Commission v. Saint Vincent Health Center, No. 16-224 (W.D. Pa. September 22, 2016).  In that case, the Defendant employer had maintained a mandatory vaccination policy since 2013, which required all employees to receive a flu vaccine annually as a term and condition of employment.  Under this policy, an employee may request an exemption to the flu vaccine requirement for either medical or religious reasons. In order for an employee to qualify for a religious exemption, the employee must submit a form request.  The form requires the employee to obtain a certification by a clergy member or other third party that states that the employee requesting the exemption “practices a religion where influenza vaccination is contraindicated according to doctrine or accepted religious practices.” The policy also provides that any employee who has not been vaccinated for the flu and has not received an employer-approved exemption will be terminated.  The EEOC alleges that the employer failed to accommodate the religious beliefs of six employees, who are all participants of different religious sects.  Each of the employees requested a religious exemption and allegedly provided the employer with passages from religious texts to support their positions.  The hospital denied each of the requests for exemptions because the employees did not provide “proof of a religious doctrine.” This case is currently pending in the District Court of the Western District of Pennsylvania.

A similar case was heard in the Eastern District of Pennsylvania in August 2016 called Fallon v. Mercy Catholic Med. Ctr., No. 16-00834, 2016 U.S. Dist. LEXIS 105364 (E.D. Pa. Aug. 9, 2016). In that Case, Paul Fallon was employed by a medical center, which required that its employees receive the flu shot or request an exemption.  Fallon refused and submitted a letter and twenty-two page essay explaining why he should be exempt from the requirement.  Fallon is not a member of an organized religion, but he explained to his employer that he opposes vaccines and believes that their benefits are exaggerated and risks minimized.  Mr. Fallon’s request for an exemption was denied and he was terminated.  Fallon brought suit alleging religious discrimination under Title VII and wrongful termination in violation of Pennsylvania public policy.  The employer filed a motion to dismiss the Complaint, which was granted.  The Court held that Fallon failed to state a claim for religious discrimination under Title VII because Fallon’s opposition to vaccinations was entirely personal, political, sociological and economic, as opposed to being based upon religious orientation.  The Court also held that Fallon failed to establish that his termination threatened a clear mandate of public policy.

Although it is not clear what the outcome will be in the pending EEOC case, it is clear that there are stark differences in the facts between the EEOC case and Fallon’s case.  Employers, especially those in the medical field which require employees to receive flu vaccinations, should keep these cases in mind.  When faced with an employee who refuses to abide by an employer policy for “religious reasons,” whether it be related to vaccines or any other issue, it is best to speak with legal counsel about the specific facts at hand before denying or approving an exemption from the policy.

Capehart Blogs

Insurance
Bicyclists Covered by Auto Insurance with Limited Tort Must Establish a Permanent Injury to Sue for Pain and Suffering
Firm News
Shareholder Claire Ringel Retires
Liability
Municipality Found Immune From Liability for Pedestrian Accident Under Both Tort Claims Act and Landowners’ Liability Act
Subscribe to Blog Updates

Capehart Blogs

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage discovery dismissal Diversity & Inclusion Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Taxes Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter

Contact Information

  • Capehart Scatchard P.A.
  • (856)-234-6800
  • 8000 Midlantic Dr., Suite 300S, Mt. Laurel, NJ 08054-5016