The more technological of our readers may be aware of a brouhaha involving a website named Reddit. Reddit is best known, among the general population, for conducting structured question-and-answer sessions called Ask Me Anything (AMA), in which subjects respond to questions posted by Reddit users. The subjects of an AMA may range from the mundane (a trash man) to extremely high profile politicians, including President Obama. One Reddit employee, Victoria Taylor, was largely responsible for organizing and facilitating AMAs. Continue reading
The U.S. Department of Labor (DOL) released its proposed rule today that would broaden federal overtime pay regulations by raising the minimum salary threshold to $50,440 per year in order qualify for an exemption from overtime under the Fair Labor Standards Act (FLSA).
To help understand what this means, below are answers to some questions you might have:
Q. Why is the DOL making this change?
A. The proposed change was prompted by a memorandum President Obama issued in March 2014 which directed the DOL to “modernize and streamline” the regulations on exemptions from the FLSA’s minimum wage and overtime pay requirements. Continue reading
Marijuana is back in the news here in Delaware. Our state’s first Compassion Center is set to open later this month and legislation decriminalizing the sacred herb has been signed into law by Governor Jack Markell.
Delaware is by no means unique-it is part of a national trend towards decriminalization and even legalization occurring at the state level across the nation. However, as far as the federal government is concerned, marijuana remains illegal. Essentially, America is becoming a veritable patchwork quilt of differing, and inconsistent approaches-a situation that is creating headaches for employers, particularly those with national or multi-state operations, striving for consistency and uniformity in their drug policies.
A recent case from Colorado, Coats v. Dish Network, LLC, illustrates the conundrums employers now face.
Brandon Coats, a quadriplegic who suffered from painful muscle spasms as a result of his condition, began working for Dish Network as a telephone customer service representative in 2007. Subsequently, in 2009, he obtained a Colorado license to use medical marijuana. The next year, a random drug test revealed the presence of THC metabolites in his system, and his employment was terminated in accordance with Dish Networks drug policy. Significantly, there was no allegation that Coats ever used, or even possessed, marijuana in the workplace.
Coats sued Dish Network, relying on a Colorado statute that prohibits employers from discharging employees for “lawful activities” outside the workplace. In Coats’ view, Dish Network was prohibited from penalizing him for smoking medicinal marijuana lawfully under Colorado law during his free time. Dish Network disagreed, and argued that Colorado law didn’t apply because smoking marijuana was still unlawful under federal law.
Surprisingly, the Colorado Supreme Court agreed with Dish Network, concluding that the term “lawful activities” wasn’t restricted to those permitted under Colorado law but instead also encompassed federal law. As a result, because marijuana use remains illegal under federal law it could not be a “lawful activity,” and Dish Network was free to fire him based on the results of the drug test.
Obviously, the decision isn’t directly applicable to Delaware- we don’t have an analogous provision to Colorado’s “lawful activities” statute in our law and medicinal marijuana cardholders are protected directly in other ways. For example, under Delaware law although employers are not required to permit cardholders to possess, use, or be under the influence of marijuana in the workplace, a cardholder “shall not be considered to be under the influence of marijuana solely because” a drug test reveals “the presence of metabolites or components of marijuana” in their system. As a result under Delaware law, the mere presence of THC in Coats’ system would not have been a lawful basis for terminating his employment; Dish Network would have also had to demonstrate that he was “under the influence”- a tricky proposition for employers given the lack of agreement on generally accepted standards for measuring marijuana impairment.
Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. Ct. App. 2013).
By William W. Bowser
Under the Family and Medical Leave Act, an eligible employee can take up to 12 weeks of protected leave for his or her own “serious health condition.” A “serious health condition” is defined by Department of Labor’s regulations as one “that involves inpatient care … or continuing treatment by a health care provider.” While many FMLA cases have focused on the meaning of “continuing treatment,” the definition of “inpatient care” has seen little review. A recent decision by the Third Circuit Court of Appeals, which covers Delaware, recently focused on the issue.
Jeff Bonkowski worked for Oberg Industries as a wirecut operator and machinist. During a meeting with his supervisors on November 14, 2011, Bonkowski began to experience shortness of breath. His supervisors gave him permission to go home and he clocked out at 5:18 p.m. Shortly after 11 p.m., Bonkowski’s wife drove him to the hospital. Although he arrived at the hospital before midnight, he was not admitted into the hospital until shortly after midnight on November 15th. As we will see, these few minutes would be very important.
Bonkowski underwent comprehensive tests and was sent home on evening of the November 15– after staying in the hospital for about 14 hours. Oberg terminated him because he had walked off the job on November 14 and his absence on November 15. Bonkowski filed suit under the FMLA claiming that his absence from work on November 15th was a qualifying absence under the FMLA protecting him from discharge.
The District Court for the Western District of Pennsylvania threw out his case. It found that Bonkowski didn’t have a “serious health condition” because he did not receive “inpatient care.” It pointed to the definition of “inpatient care” contained in the DOL’s regulations which requires an “overnight stay in a hospital….” The District Court ruled that in order to have an “overnight stay,” Bonkowski would have to be admitted before sunset on one day and discharged after sunrise the following day. Since Bonkowski was not admitted until after midnight on November 15 and discharged the same day, he did not have an overnight stay.
Bonkowski appealed to the Third Circuit. While the Third Circuit rejected the “sunset-sunrise” rule used by the District Court but still ruled in favor of Oberg. It ruled that an “overnight stay” means a stay in for a substantial period of time from one calendar day to the next day measured from the time of admission to the time of discharge. Since Bonkowski was admitted after midnight on November 14, his stay did not constitute an “overnight stay.” Without such a stay, he could not have received “in patient care” and could not have a “serious health condition.”
The Third Circuit rejected the “sunrise-sunset” rule because the required time in the hospital would vary depending on the season of the year and geographic location. It also rejected Bonkowski’s claim that time spent at the hospital before actual admission should count because the “calendar day” rule would provide a bright line criterion for employers and employees alike.
In sum, Bonkowski FMLA claim was erased because of a few minutes waiting at the hospital. While the result may seem harsh, the rules does, at least, provide an somewhat understandable standard. This case does not resolve what a “substantial” time in the hospital means. In other words, will a stay just before midnight to just after midnight qualify? If not, just how many hours will be required? Stay tuned.
Bonkowski v. Oberg Industries, No. 14-1239 (3d Cir. May 22, 2015)
A bill pending in the Delaware legislature would expand the state’s anti-discrimination statute. House Bill 4 would prohibit discrimination on the basis of domestic violence, sexual offense, or stalking. If passed, the bill would have important implications for Delaware employers. Here’s what you need to know.
Which Employees Would Be Protected?
If adopted, the bill would prohibit employers from discriminating against employees because the employee was a victim of domestic violence. There are several scenarios where the implications of the law would be significant.
For example, assume an employee’s spouse is believed to be violent. The spouse comes to the workplace every day and sits in his car in the parking lot as a way to harass the employee. The employee refuses to report the spouse to law enforcement out of fear of the repercussions. The employer has a legitimate reason to be concerned. Not only is the spouse’s conduct disruptive to the workplace but it also gives rise to a potential incident of violence at the workplace.
If the employee continues to refuse to report the conduct, can the employer terminate the employee? Under the current law, yes. Under the proposed law, no. the proposed law prohibits an employer from taking adverse action against an employee because of domestic violence or stalking, both of which may be triggered under these facts.
Another possible scenario could involve co-workers in a domestic relationship. Assume the relationship goes south and both employees file for a protective order, each alleging domestic violence. Each has a therapist prepare a statement that he or she is the victim.
Can you terminate one of the two under the proposed law? No. Can you terminate both? Also, no. Must you permit both of them to continue to work in the same location, causing a seemingly volatile situation? Likely so.
What Are Employers Required to Do?
In addition to not discriminating, Delaware employers also would be required to make “reasonable accommodations” to an employee who is the victim of domestic violence, sexual offense, or stalking. Specifically, employers would be required to accommodate the employee’s “known limitations” related to the offense.
For example, an employer would be required to permit the employee to make use of any accrued leave in order to avoid the spouse in the parking lot. Or, perhaps, an employer could be required to permit the employee to use a different entrance and exit so to avoid being seen by the spouse. The scope of required accommodations is unclear, as the term is not defined in the statute but, as with disabilities-based accommodations, would likely be expansive.
How Should Employers Prepare?
If the law is passed, employers could be faced with challenging facts. Until then, employers may want to consider reviewing the following policies:
Violence in the Workplace. Be sure your policy contains safeguards to ensure preparedness and that your employees know how to respond in an emergency.
Anti-Fraternization. Consider whether you should impose restrictions on romantic relationships among employees.
Harassment. As with other types of harassment, employees should be informed of the appropriate channels of communication when they or their coworkers are being subject to unlawful harassment.
By Barry M. Willoughby
At our recent Annual Seminar, we discussed, EEOC v. Abercrombie & Fitch Stores, Inc., an action involving alleged religious discrimination in connection with a refusal to hire that was then pending before the U.S. Supreme Court. Attendees at the seminar will recall that the case involved an applicant for employment at Abercrombie who was turned down based on the Company’s “look policy,” because she wore a head scarf. Although the interview for this position did not involve any discussion of whether the applicant wore the scarf for religious reasons, and/or whether she would require an accommodation to allow her to wear the scarf while at work, the EEOC investigation established that the company’s representatives believed that the applicant was wearing the scarf for religious reasons and refused to hire her on that basis.
On June 1, 2015, as we predicted, the Court issued its Opinion finding that the employer had indeed violated Title VII’s prohibition against religious discrimination. Significantly, the Court ruled that actual knowledge of the employee’s need for a religious accommodation is not required. Instead, the Court found that the test is whether the employer’s decision was, in fact, motivated by illegal discrimination under Title VII.
Analysis and Recommendations
The Supreme Court decision correctly focuses on the question whether an employer’s adverse action was motivated by illegal discrimination rather than its knowledge of the applicants protected status. While knowledge, unsubstantiated or otherwise, of an applicant’s protected status will continue to be an important element of proof, the ultimate question in determining whether illegal adverse action has occurred is the employer’s actual motivation for its decision. As the Court noted, knowledge alone will not be a basis for liability, if, in fact, the employer’s actual motive was not discriminatory. On the other hand, an employer who is in fact motivated to discriminate based on unsubstantiated facts or suspicion, is nevertheless liable under Title VII.
We recommend that employers make sure that their decision makers understand that a decision motivated by illegal considerations will lead to liability regardless of their knowledge of the applicant’s protected status. We suggest that employers who are confronted with a potential religious accommodation issue directly address the issue with the applicant to determine whether an accommodation is necessary.
Following the familiar approach for addressing need for an accommodation of a disability is a good guide. If, as in Abercrombie, there is an obvious reason to believe that a religious accommodation may be necessary, the employer should affirmatively raise the issue and engage in the “interactive process” for determining whether an accommodation is required. If, on the other hand, there is no apparent reason for the employer to believe that an accommodation is necessary, the employer need not raise the issue.
At our Annual Employment Law Seminar last week, I spoke about the “Facebook Privacy” bill that was then pending in Delaware’s House of Representatives. The bill passed the House on later that day and is now headed to the Senate. For those of you who weren’t in attendance last week, here’s a brief recap of the proposed law.
The stated purpose of HB 109 is to protect individuals’ privacy in their personal social media accounts. Generally speaking, HB 109 would prohibit employers from requiring or requesting that an employee or applicant give the employer access to their personal social-media accounts-either by giving up their passwords or by logging in and letting the employer take a look (also known as “shoulder surfing”).
As we all know, though, with any law, the devil is in the details. And there are, not surprisingly, a few devilish details. For example. . .
HB 109 prohibits an employer from asking an employee (or applicant) from disclosing “a username . . . for the purpose of enabling the employer to access personal social media.” As written, that would mean that an employer could not ask a candidate what his or her Twitter handle is. Twitter is, generally speaking, a publicly available site.
So an applicant could have a public Twitter account, where he tweets racist or sexist speech or talks about how he likes to steal money from his current employer, but the employer wouldn’t be able to ask about it? Huh? I supposed we’d just have to wait till discovery in a lawsuit before we could ask for that (public information)? Not my favorite part of this law.
There are other confusing parts of HB 109 that I think likely are unintended consequences of the legislation. But, with 38 votes in favor and none against, it appears that the unintended consequences are well on their way to becoming law. We’ll see what the Senate has to say about it and will be sure to keep you updated. In the meantime, you can track HB 109 here.