Delaware, Ahead of the (Pregnancy) Curves

By Lauren E.M. Russell

In Young v. United Parcel Service, Inc., the Supreme Court interpreted the language of the federal Pregnancy Discrimination Act, which requires that employers treat pregnant employees in the same manner as other individuals who are similarly limited in their abilities. Among the Court’s conclusions is that a policy that provides job-related accommodations to those who are injured on the job and those who have disabilities governed by the Americans with Disabilities Act may also have to be extended to pregnant employees with physical restrictions. The decision opens a lot of questions, but Delaware employers may have a leg up in compliance!

The Court’s Decision

In Young, the Court addressed the case of a young woman who became pregnant after having several miscarriages. In connection with her pregnancy, her doctor placed her on a lifting restriction. UPS informed Young that it could not accommodate her lifting restriction, and she was placed on unpaid leave. Young eventually lost her employer-sponsored health coverage, and filed suit against UPS for pregnancy discrimination.

UPS readily acknowledged that it refused to provide an accommodation to Young. It also acknowledged that it routinely provides accommodations to employees: (1) with a work-related injury; (2) who have lost their Department of Transportation certification; or (3) who have a disability within the meaning of the Americans with Disabilities Act, as amended. Historically, UPS’s policy would not have been a problem. As we all know, pregnancy is not, in and of itself, a disability. In addition, EEOC regulations have long held that an employer could have a policy that provided reasonable accommodations to work-related injuries, but denied such accommodations to similarly limited pregnant employees. The purpose of this carve-out is to allow employers to avoid workers’ compensation costs by putting injured employees back to work on light duty.

So what changed? The EEOC has changed its stance on pregnancy. Under the Americans with Disabilities Act Amendment Act, many more limitations now qualify as disabilities, including fertility problems. In addition, the EEOC has made clear that it will be targeting systemic discrimination, including pregnancy discrimination, over the coming years. In connection with this change, the EEOC has just issued a Notice of Proposed Rule Making, and we can expect new regulations with respect to pregnancy within the next year or two.

Setting those developments aside, the Supreme Court did not rule that UPS’s policy was unlawful. Instead, it simply ruled that the trial court had to consider whether there was a legitimate, non-discriminatory reason for the distinctions drawn between the three classes of employees that UPS does accommodate, and UPS’s refusal to accommodate pregnant employees with lifting restrictions.

Impact on Delaware Employers

The Young decision opens up a lot of questions, including what legitimate business considerations may justify a decision to accommodate some employees, while not accommodating pregnant employees. But Delaware employers have some additional guidance, in the form of the new pregnancy provisions of the Delaware Discrimination in Employment Act (DDEA)

As we have reported previously, the Delaware General Assembly amended the DDEA in 2014, to expressly prohibit discrimination against pregnant employees and to require accommodations of pregnant employees, even when they are not disabled within the meaning of Delaware anti-discrimination law. While this statute places a heavier burden on Delaware employers, it also provides some guidance in compliance with the Young decision. In Delaware, there is no question that pregnant employees are entitled to take advantage of the same reasonable accommodation processes that are available to disabled employees-there is no need to determine whether you have a legitimate non-discriminatory reason to make a distinction.

Bottom Line

While Delaware may have raised the bar on employer treatment of pregnant employees, the amendments to the DDEA do provide guidance to Delaware employers. Unlike many other states, we do not have to wait for courts to parse what business concerns are “legitimate,” and which are insufficient to justify different treatment of pregnant employees. We must accommodate them all, under the same standards as applicable to the ADA.

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Marriage Equality and the FMLA

The Supreme Court’s 2013 ruling in United States v. Windsor created a lot of uncertainty in the area of federal employment benefits. Because the federal government’s definition of marriage as being between one man and one woman was held to be unconstitutional, the decision left open the question of when same-sex couples were eligible for spousal benefits in a variety of contexts. In a move that is sure to simplify issues for multi-state employers, the Department of Labor is taking steps to clarify that issue under the Family & Medical Leave Act (FMLA).

The FMLA

The FMLA is a federal law providing unpaid leave to employees who have worked for a company for at least twelve months, and who worked at least 1,250 hours in the calendar year preceding the request for leave. Leave may be taken for a variety of reasons, including to care for a spouse with a serious health condition. Thus, a key consideration in determining eligibility for FMLA leave is whether the person for whom you intend to care is a “spouse” under applicable law. The term “spouse” used to be defined by the Defense of Marriage Act (DOMA). However, DOMA’s definition of marriage was declared to be unconstitutional under the Windsor decision.

The Reaction to Windsor

In the wake of the Windsor decision, the federal government was forced to come up with a new approach to federal benefits impacting spouses. Different agencies adopted different approaches, and sometimes applied different standards to different laws administered by the same agency. With regard to the FMLA, the U.S. Department of Labor adopted a “state-of-residence” rule, meaning that if a same-sex couple’s marriage was not legal in the state where they lived, they were not entitled to spousal leave under the FMLA. So, for example, in 2003 a same-sex couple living in Pennsylvania, who are employed in Delaware and came to Delaware to get married, would not be entitled to spousal leave benefits under the FMLA because their marriage would not be recognized by the Commonwealth of Pennsylvania (a federal judge in Pennsylvania struck down the state’s ban on same-sex marriage in 2014).

This “state-of-residence” rule imposed a significant administrative burden on employers, who would have to research the legality of a couple’s marriage in their home state as part of the FMLA eligibility analysis. The problems are particularly taxing on the East Coast, where individuals frequently live and work in adjacent states. It also created a problem for businesses with a telecommuting workforce, where the HR professionals could have to familiarize themselves with the laws in all 50 states.

A New Approach

Recognizing the administrative burden imposed on employers, the Department of Labor had revised its approach to spousal benefits under the FMLA, adopting a “place-of-celebration” rule. Under the new rule, so long as the marriage is legal in the location in which it is celebrated, the couple will be considered spouses for purposes of being entitled to leave under the FMLA. This approach reduces the administrative burden on employers, who can now treat same-sex marriages the same way that they treat traditional marriages: by reviewing a copy of the marriage certificate of simply assuming that the marriage is valid.

The new rule is part of a formal rule-making process, and will be issued on February 25, 2015. It becomes effective March 27, 2015.

Bottom Line

The Department of Labor’s revised approach to spousal leave benefits is intended to give same-sex spouses the same access to FMLA leave as all other married partners. It has the added benefit of simplifying the administrative process for employers, which is already onerous under the FMLA. Employers who have already voluntarily extended FMLA leave to all same-sex spouses will not experience any change in the process, and can breathe an added sigh of relief!

Lawsuits, Discovery, and the Right to Privacy In the Context of Social Media

A party’s “right to privacy” in the context of social media is the subject for numerous motions in civil litigation.  The scenario goes like this:  Plaintiff sues defendant, alleging injuries.  Defendants seeks discovery of Plaintiff’s social-media content, such as photos, posts, and comments, in the hopes of disproving liability and/or damages.  Plaintiff claims right to privacy in social-media content.  Court must decide.logo_from_dev

Because these cases are so fact specific, it can be difficult to extract a single principle or set of guidelines from their holdings.  But a recent case from an appellate court in Florida is a terrific example of the basic balancing act.

In Nucci v. Target Corp., the plaintiff claimed to have suffered physical injuries while shopping at a Target store.  Target sought to discover photographs of the plaintiff from her Facebook account going back two years before the incident through the present.  Target claimed that the photos would go to the quality of the plaintiff’s life before and after the accident to determine the extent of her loss.

The trial court agreed and ordered the plaintiff to produce the pictures.  The plaintiff appealed.  On appeal, the court examined in detail the balance between a party’s “right to privacy” and another party’s right to take broad discovery in civil litigation.  In the end, the appellate court agreed with Target and upheld the trial court’s ruling, ordering the plaintiff to produce the photographs.  I agree with the court’s ruling and find some of the points made in its opinion to be of particular interest.  Here are a few highlights.

First, unlike most states, individuals in Florida have a constitutional right to privacy.  In Delaware and most other states, there is no such right.  There is a federal constitutional right of privacy but that extends only to actions taken by the government.  So, for example, in Delaware, in order to claim privacy as a basis to avoid similar discovery, it would have to be the government seeking to obtain the pictures.  Thus, the Florida court had to address the privacy issue as an additional step over and above what would be protected in most other states.

With respect to privacy, the court explained that the right of privacy does not attach unless and until there is a “legitimate expectation of privacy.”  Here, the court concluded that, “generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established.”  The court agreed with other courts that have found that there is no “special privilege” or other protections for content shared via social-networking site.

Second, the court recognized the potential value of information and evidence shared via Facebook or other similar site.  The court explained that, particularly in a personal-injury claim,

. . . there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media . . .

Thus, the court held, the photographs sought by Target were “powerfully relevant” to the issue of damages.

This decision is so thoughtful and well written that it is, in my opinion, a leading example for other courts to follow when faced with decisions about what can and should be produced during litigation from a party’s social-networking accounts.

Nucci v. Target Corp., No. 4D14-138, 2015 Fla. App. LEXIS 153 (Fla. Ct. App. 4th Dist. Jan. 7, 2015).

See also:

How NOT to Produce Facebook Evidence

Waiver of Attorney-Client Privilege Via Facebook

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Discovery and Preservation of Social Media Evidence

Court Finds Duty to Preserve Personal Emails of Employees

Discovery of Social-Media Passwords

Delaware Chancery Ct. Finds No Privilege for Email Sent from Work Account

Employer Failure to Preserve Employee Social-Media Evidence

Is There a Reasonable Expectation of Privacy In Your Tweets?

EEOC Sanctioned for Failure to Produce Social-Media Evidence

Employees Must Turn Over Facebook Info For Harassment Claim

Discovery of EEOC Claimants’ Social-Media Posts

Call Me, Maybe. Discovery of Employee Identities

Spoliation of Facebook Evidence

Facebook Threats Constitute Legitimate Grounds for Termination

Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech.  Today’s post also is about threats made via Facebook but in the context of the workplace.  The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip tomorrow to Ohio. social media letterpress_3

In Ames v. Ohio Department of Rehabilitation & Correction, an employee, a Senior Parole Officer, was sent for an independent medical exam after she posted a Facebook comment that her employer believed to be a threat.  The comment was in reference to shooting parolees.  The employee claimed that the comment was a joke.  The psychologist who conducted the exam cleared her to return to work, finding no evidence of depression, anxiety, or mood disturbance.

A few months later, the employer received an “anonymous” complaint that the employee was using her state-issued computer for non-work purposes.  It turned out that the complaint actually was made by the new partner of the employee’s ex-girlfriend.  The new partner, of course, was a co-worker. There was an investigation and the employee was issued a written reprimand.

A few months later, the co-worker (partner of employee’s ex), files an incident report alleging that the employee had sent a threatening text message to the co-worker and the ex.  A few weeks later, the employee filed an incident report against the co-worker, alleging that the co-worker had used a state computer for, you guessed it, non-work-related purposes. An investigation was begun.

Days later, the co-worker notified the employer that the ex had filed for an order of protection against the employee.  In the motion, the ex claimed that, two years earlier, the employee had held a gun to her head.  The employee denied that any such incident had occurred.

In any event, the employer sent the employee off for a second IME, this time to discover whether she had a “propensity for violence.”  Now, I’m no psychologist, but I’m pretty sure that there’s no widely accepted methodology for determining whether a person has a “propensity for violence.”  Apparently, the psychologist who conducted the IME had similar doubts and gave an inconclusive report, failing to address whether the employee had any such “propensity.”  So the employer sent her off for a third IME, this time specifically asking the examiner to make such a conclusion.

The examiner declined to make such a finding, explaining that there is (as I believe I may have mentioned) no reliable way to make such a determination.  Nevertheless, a few months later, the employee posted a threatening message on Yahoo! Messenger to the ex.  She denied sending the message but resisted the employer’s attempts to determine if the account had been hacked.  As a result, she was terminated for the threat and for failing to cooperate in an investigation.

The employee sued under the disabilities laws, claiming she’d really been terminated because the employer perceived her to be disabled.  The employee lost, appealed, and lost again.

So, what are the lessons to be learned here?  Oh, my, there are so many.  Too many to discuss in full so I’ll give you the redux in bullet points:

1.  Love triangles in the workplace usually end badly.

2.  Threats of violence made via Facebook can serve as grounds for discipline.

3.  Failure to cooperate in an investigation constitutes grounds for discipline.

Ames v. Ohio Dep’t of Rehab. & Correction, 2014-Ohio-4774 (Oct. 28, 2014).

Issue of Threats via Facebook Heads to the Supreme Court

The intersection of Facebook use and Free Speech is complicated.  Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States. text message speech bubble or twitter keyboard_3

The basic legal principle at issue is what constitutes a “true threat.”  It is a crime to use the phone or Internet to make a “threat to injure” another person.  And “true threats” are not protected as speech under the First Amendment.  So, “true threats” to injure another made via Facebook can be punishable as crimes.  Otherwise, the speech would be protected by the constitution and could not be considered criminal.

But what’s a “true threat?”  Is that question to be answered by the “reasonable person” who would be subject to the threat?  Or does the speaker have to have intended his words as a threat to constitute a criminal act?

In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others).  At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics.  The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.”  So now the Supreme Court will decide what the “true test” for “true threats” should be.

The legal issue may appear easier than it is.  The facts of the case may make the speech and speaker less sympathetic.  For example, his Facebook comments included the following about his wife, after she left with their two children:

If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.

He later posted, “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”  And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.”  He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.

If You Need Me, I Will Be In the Hall of Fame

Well, it’s happened again. The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country by the ABA Journal Magazine.  Because this is my fifth year as an honoree, I’ve been inducted into the magazine’s Hall of Fame, where I join my friend Dan Schwartz, whose Connecticut Employment Law Blog was inducted in 2013.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again. It is, as the saying goes, truly an embarrassment of riches.

ABA Journal Top Blawg 100

To those who nominated us for the award, thank you.  To all of our readers, thank you. And to all of the many, many, many employment law bloggers who continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with seven other employment-law bloggers, each of who does a tremendous job reporting on the various aspects our shared practice area. Many of you already read the blogs of my co-winners but, if you don’t, you should.  I continue to be humbled by the company I have been permitted to keep.

Writing a legal blog is a labor of love. And, by that, I mean that it doesn’t pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat–especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really.  Voting is open through December 11.  You can find all of the Top 100 bloggers on Twitter through the ABA Journal’s list.

So, as Frank and Ed used to say in those classic Bartles & James commercials, “Thank you for your support.”

3 Tips for Harassment Investigations

Investigating complaints of inappropriate workplace conduct is a difficult challenge for any number of reasons. But conducting an immediate and thorough investigation is critical to both preventing lawsuits and to avoiding liability should a lawsuit arise. Human-resource professionals often ask for tips in handling this challenge. Here are three.male female sign_3

First, don’t be shy. An investigation of workplace harassment is not the time to be timid. Ask the tough questions and be direct. Don’t mince words or dance around the questions. Consider writing out the questions that you need answers to and actually check them off your list. If you don’t ask a straight question, you’ll never get a straight answer.

Second, don’t decide anything in advance. This is important because, if you’ve already made your mind up before you ask the question, you’ve already failed as an investigator. In order to get the information that you need, you must truly listen. And the interviewee will know if you’re not listening. So keep an open mind and don’t jump to conclusions.

Third, remember that there may be more than one version of the “truth.” It’s rare that I am presented with a complaining witness who I think is actually “lying.” It’s far, far more common that the complainant misunderstood the events or misinterpreted the meaning. And, frequently, for one reason or another, the complainant has repeated the story so many times in his or head that the story has become the truth. In other words, the complainant truly believes that the events occurred the way that he or she is describing them.

There is a tremendous body of social-science research about this third item. Eye-witness accounts can be, well, dead wrong. If you think you’re the exception, or, if you just want to see how differently people can see the same event, you may want to take a look at the “selective attention test” by Daniel Simons and Christopher Chabris.  Watch the video and see how many passes you count and then compare your answer to others . . . and then consider how certain you should be about the observations of the employees you’re interviewing.