Employment Law
page 2
Employee can use up vacation
time before taking family leave
fall 2014
page 3
Protections for disabled
workers are expanding
Worker fired shortly before her
job anniversary can sue
page 4
Training and orientation
may have to be ‘on the clock’
Workers’G‘rightS.R.toB complain’
is
,E .
expanded by U.S. government
RAEME
R
ROWN
SQ
The Brown Law Firm, LLC
464 Common Street, #354
Belmont, Massachusetts 02478
(617)
851-0867
direct
• (253) 830-7396 - fax
individually -and
together
ecently, a car salesman in
[email protected]
• www.brownlegalservices.com
to improve their situation.
Arizona met with the
owner of
the dealership and a couple of
managers to complain about his
wages, commissions and break times. During
the discussion, the owner became frustrated
and told the salesman that if he didn’t like
things the way they were, he was free to seek
employment elsewhere.
The salesman flew off the handle, and
unleashed a torrent of obscenities at his boss.
Not surprisingly, he was fired.
End of story, right? Not quite. Even though
the salesman didn’t belong to a union, he
complained to the National Labor Relations
Board. And the Board decided that he had
been wrongfully fired, and ordered the
dealership to reinstate him with full back pay.
How could this be?
Under federal law, all employees –
regardless of whether they belong to a
union – have a right to complain about their
pay and working conditions, and to work
This sort of complaining
and agitating is sometimes
called “protected concerted
activity.”
The National Labor
Relations Board is the arm
of the federal government
that decides when employers
have violated workers’
right to engage in this
sort of activity, such as by
retaliating against them. And in the last few
years, the Board has become much friendlier
to employees.
Although the car salesman’s case was
unusual and extreme, the Board decided
that his rant was “protected activity.” That’s
because the meeting with his bosses had
dealt specifically with wages and working
conditions. The Board also said that the
owner’s remark that the salesman was free
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to look for work elsewhere “provoked” his
explosion, and that while the salesman was
profane, he never actually threatened to harm
anyone.
In a similar case in New York, an off-duty
Starbucks barista came into his store with
several co-workers to protest a regional
manager’s policy against baristas wearing
pro-union pins. This set off some friction with
the off-duty manager of a different Starbucks
GRAEME S.R. BROWN, ESQ.
The Brown Law Firm, LLC
464 Common Street, #354
Belmont, Massachusetts 02478
(617) 851-0867 - direct • (253) 830-7396 - fax
[email protected] • www.brownlegalservices.com
continued on page 2
Employee can use up vacation time before taking family leave
©istockphoto.com
The federal Family and Medical Leave Act allows
certain workers to take up to 12 weeks of unpaid
leave for a medical problem, for the birth of a
child, or to care for an ailing family
member.
Usually, businesses want to
minimize the time that an employee
is away from work. So a lot of
companies have a policy that requires
employees to use up their accrued
paid vacation or sick time as part of
their 12 weeks of leave.
Suppose an employee has two
weeks of vacation, and wants to take
off 12 weeks to care for a sick relative.
A business that has such a policy could require that
the employee take the vacation as part of the leave.
The employee would be paid for two of the 12 weeks
of leave, but would have no accrued vacation time
left when he or she returned to work.
However, a recent decision from a federal appeals
court in San Francisco suggests that employees who
want more time away from work might be able to
obtain it by strategically declining to take family leave.
So in the above scenario, an employee could take
two weeks of vacation to care for a sick relative, and
then apply for 12 weeks of unpaid leave, resulting in
14 weeks of being away from the job.
Even though the employee is taking the vacation
for a reason that would qualify for family leave, the
employee could specifically tell the company that he
or she is not asking for family leave during the two
weeks – but wants to apply for family leave after the
paid vacation runs out.
Although the employee is using the initial time off
for a reason that’s covered by the family leave law, it
doesn’t “count” as family leave unless the employee
wants it to, the court said.
Workers’ ‘right to complain’ is expanded by the U.S. government
continued from page 1
In some cases involving
genuine disputes over
workplace issues
and conditions, the
government is giving an
awful lot of leeway to
employees to exercise
their right to gripe.
location who happened to be in the store having
some coffee. Profanity ensued, and the barista
ultimately threatened the visiting manager.
The barista was fired two weeks later for cursing
in front of customers. His termination papers,
however, noted that he was a strong union supporter.
The Board decided that, based on the worker’s
termination papers, his support for the union must
have played some role in his firing. It said that
Starbucks couldn’t prove that it would have fired him
anyway even if he wasn’t pro-union, and it ordered
him reinstated with back pay.
Still another case involved a Nevada hospital
employee who quarreled with a hospital cashier. He
was suspended after he allegedly threatened to “take
care of ” her.
The worker was told not to contact any employees
while he was out. He ignored this, and obtained
statements from co-workers attesting to his character
and circulated a petition citing the cashier’s allegedly
disrespectful behavior toward other employees.
When he returned from leave, he submitted the
petition to a supervisor asking to have the cashier
fired. He was fired instead.
But the Board sided with the employee. It said that
since a lot of other employees apparently had real or
perceived problems with the cashier’s attitude, and
since her attitude affected their working conditions,
the employee’s petitions amounted to “protected
concerted activity.”
Finally, the Board recently decided that a Georgia
company violated its workers’ right to complain
after it instituted a “no gossip” policy that prohibited
workers from talking about co-workers’ personal
life outside their presence; talking about their
professional life without their supervisor present, or
spreading rumors about them.
The company fired an employee for “gossiping”
after she discussed a colleague’s firing with some of
her co-workers.
But the Board sided with the employee, saying
a company doesn’t have the right to prohibit
employees from discussing legitimate workplace
concerns with one another.
Of course, none of this means that it’s generally
okay for workers to swear at their bosses or threaten
their co-workers. It’s obviously not. But in a small
number of cases involving genuine disputes over
workplace issues and conditions, the government is
giving an awful lot of leeway to employees to exercise
their right to complain.
If you have any questions about how this trend
might affect you, we’d be happy to discuss it.
Protections given to disabled workers are expanding
Under the federal Americans with Disabilities Act,
workers who are otherwise qualified for a position
but who have a disability must be given “reasonable
accommodations” that enable them to do the job.
In other words, if a worker has the skills,
training and aptitude to do a job, but needs some
modifications – such as a flexible schedule, a more
handicap-accessible workplace, or minor alterations
to job duties – the employer has to allow them, as
long as they don’t overly burden the business.
For example, Jane Harris worked as a resale steel
buyer for Ford Motor Company. Her job required
telephone and computer contact with co-workers,
and she received excellent performance reviews.
However, she also suffered from a severe case of
irritable bowel syndrome, which was so bad that she
often couldn’t drive to work or get up from her desk
without soiling herself.
Ford had a policy that allowed employees
to telecommute up to four days a week, but
when Harris asked to be able to telecommute to
accommodate her condition, Ford refused, claiming
that “teamwork” and her physical presence in the
office were essential to her job.
Eventually she sued, and a federal appeals court
in Ohio allowed the suit to go forward, saying that
she might have a good case because technology has
improved and the types of jobs an employee can do
while telecommuting have expanded considerably in
recent years.
Meanwhile, a chemical engineer in Illinois
suffered from ADHD and bipolar disorder. To
accommodate her medication schedule, her
employer had allowed her to start work at 10 a.m.
But after two years, a new supervisor arrived
and ordered her to show up at 8:30 a.m. She was
eventually fired for violating the new attendance
policy.
A federal court allowed her to sue, saying that
the 10 a.m. start time was apparently a reasonable
accommodation since it had worked well for two
years.
And did you know that a worker doesn’t actually
have to be disabled to be protected by the Act – as
long as the employer thinks the worker is disabled?
For example, a
sales consultant
in Nevada told
his manager that
he needed to take
medical leave to have
knee surgery, and
that he would be out
for at most a week.
But the manager
apparently didn’t
believe him, and
thought the surgery
would leave him unable to work for much longer.
The manager fired him, and said he could return
later but only if he provided a doctor’s note releasing
him to work.
A federal judge allowed the employee to sue. Even
though the employee wasn’t actually disabled, his
employer believed he had a serious disability, and so
he was protected by the law.
Worker fired shortly before her job anniversary can sue
The federal Family and Medical Leave Act applies
to workers only if they have been on the job for
at least a year. So does that mean a company that
doesn’t want to accommodate an employee with
pregnancy complications can fire her one day before
her first-year anniversary, so she’s not eligible for
protection under the law?
No way, according to a ruling by a federal judge
in Minnesota.
The judge sided with a property manager named
Ena Wages who was fired after her doctor ordered
her not to work more than 20 hours a week.
The management company claimed that a 20-houra-week schedule was untenable, and it had a right
to fire her because she hadn’t been there a year and
wasn’t yet covered by the law.
But the court said the employee could have legally
used her paid sick or vacation time to bridge the gap
until she had been working a year, and so she was
entitled to family leave.
This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call our firm today. The information in this
newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.
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GRAEME S.R. BROWN, ESQ.
The Brown Law Firm, LLC
464 Common Street, #354
Belmont, Massachusetts 02478
(617) 851-0867 - direct
(253) 830-7396 - fax
[email protected]
www.brownlegalservices.com
| fall 2014
Training
and. orientation may have to be ‘on the clock’
GRAEME S.R. BROWN
, ESQ
The Brown Law Firm, LLC
464 Common Street, #354
Belmont, Massachusetts 02478
(617) 851-0867 - direct
(253) 830-7396 - fax
[email protected]
www.brownlegalservices.com
©istockphoto.com
In general, hourly workers are paid only for
time they actually spend performing their job
duties. But there are exceptions. For example,
courts have recently ruled that workers should also
be paid for time they spend
putting on and taking off safety
equipment, and even for time
they spend showering before
leaving the premises if they have
been working with hazardous
materials.
And according to a federal
judge in Chicago, training and
orientation for new hourly hires
who haven’t started work yet
should be considered paid time
as well.
In that case, nearly 10,000
people hired to work as security
guards for Securitas Security
Services USA were forced to attend an unpaid
orientation and training session before starting
their employment.
The guards brought a class-action lawsuit seeking
pay for the training session, and a judge approved a
six-figure settlement.
However, not all training is necessarily on-theclock. For example, a federal appeals court in St.
Louis recently decided that H&R Block – which
makes all of its seasonal tax preparers go through
a 24-hour educational update before being rehired
for tax season each year – doesn’t have to pay the
preparers for the training.
According to the court, the tax preparers aren’t
“employees” when they undergo the training. That’s
because they work only during the tax season,
they have to reapply each year, and they can collect
unemployment during the off-season.
As you can see, the rules can be complicated and
confusing.