To Invoke FMLA protection for Care of Another, Some Geographic Proximity is
Required by the Employee
In an unpublished opinion, the 5th U.S. Circuit Court of Appeals has held that an individual who
requests FMLA leave to care for a seriously ill family member must have some role in providing the
“care” required by the relative’s illness. According to the Fifth Circuit, a father who left his seriously
injured daughter in the care of his wife while he readied the family’s home for their return was
unable to support a claim for FMLA retaliation after he was fired from his job at the conclusion of
his FMLA leave. Baham v. McLane Foodservice Inc., 5th Cir., No. 10-10944, unpub’d, 7/1/11.
MORE
Sixth Circuit Clarifies Employee's Burden of Proof for ADA Association
Discrimination Claim Under the Distraction Theory
The Sixth Circuit Court of Appeals recently affirmed the decision of a lower court holding that a
plaintiff was not entitled to trial on his associational disability claim under the Americans with
Disabilities Act (ADA) because he could not establish that he was terminated because of his
association with his disabled wife. See Stansberry v. Air Wisconsin Airlines Corp. (July 6, 2011).
The Court's decision clarifies what a plaintiff must show to prove a "distraction" theory claim under
the ADA. MORE
Think Your Employee's Divorce is a Sham to Get at Retirement Benefits? Don't
Out-Think Yourself
The Fifth Circuit issued its opinion in Brown v. Continental Airlines, Inc., 2011 WL 2780505 (5th
Cir.), a rather unusual case addressing what a plan administrator’s obligations are with respect to a
Qualified Domestic Relations Order (QDRO) when the plan administrator thinks the underlying
divorce that produced the order was a sham. In Brown, Continental alleged that the wives of nine
pilots received lump sum distributions of the pilots’ retirement benefits from Continental's defined
benefit plan by entering into fraudulent divorces where the couples continued to live together and
then remarried once the plan paid out benefits. The wives were able to obtain these lump sum
distributions because the plan provided that an ex-spouse to whom benefits are assigned can elect
to receive the same in lump sum form, provided that the participant was at least 50 years old.
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Piling On! DOL Proposes Rule Changes That Will Impact Employers
By now you're aware of the NLRB's proposed rule changes aimed at speeding up elections to
make it easier for unions to organize. The Department of Labor has also joined the fight to try and
keep unions healthy, with rule changes of its own. These proposals affect a law most employers
are unfamiliar with but which could, directly or indirectly, alter how you communicate with your
employees about unions. It's known as the LMRDA. MORE
Tatro v. University of Minnesota – Facebook Decision Will Influence
Employer’s Response to Threatening Posts
My post yesterday focused on the background facts and legal issues from the Tatro v. University of
Minnesota decision issued last week by the Minnesota Court of Appeals. You will recall that the
University disciplined a student for a post on Facebook referencing the desire to “stab a certain
someone in the throat” with a lab instrument. From an employment law perspective, I am happy to
see a case with facts and legal analysis that parallel so many of the fact scenarios I see every day.
Not that I see threats to stab someone every day, but I regularly see conduct that is perceived as
threatening to the Company itself or “raging” at another employee. MORE
Avoiding Discrimination Class Actions
Coming out of the recession, prudent employers will develop strategies to avoid systemic class
claims in their hiring processes. Since the economic decline that started in the fall of 2008, many
companies have experienced reductions in force, frozen vacant positions and engaged in other
attrition efforts all with the aim of cutting costs. With signs of possible economic recovery now on
the horizon for certain industries, some companies will soon execute plans to grow their
businesses and rebuild their workforces. Those employers with such hiring plans need to be wary
of the traps and other pitfalls that could trigger discrimination class action claims by rejected
applicants. MORE
Wisconsin Senate Considers Bill to Penalize Employers for Employing
Unauthorized Workers
Wisconsin employers that hire employees not legally authorized to work in the United States may
risk tough new penalties should Senate Bill 137 become law. The bill, in its current form, does not
distinguish between employment of an unauthorized person that is intentional or unintentional.
Another bill under consideration, Senate Bill 151, on the other hand, would allow employers to pay
their employees for making a customer or client referral. Currently, an employee who receives
such payment may be prosecuted under Wisconsin’s gambling statute for a Class B misdemeanor.
MORE
Illinois Overhauls Workers' Compensation Act
Illinois Governor Pat Quinn signed House Bill 1698 (HB 1698), an amendment to the Illinois
Workers' Compensation Act (IWCA) that will comprehensively reform Illinois workers'
compensation system. HB 1698, which primarily goes into effect on January 12, 2012 – with some
provisions going into effect this year – is expected to save Illinois businesses between $500 and
$750 million. The reform package also includes a complete revamping of the Illinois Workers'
Compensation Commission. Upon signing the bill, Governor Quinn said, "We began this process
months ago with the belief that we needed to maintain essential protections for injured workers,
while ensuring that the system treats our businesses fairly . . . . This overhaul is going to improve
the strength of our state's business climate and economy." MORE