Legal Watch - February 11, 2015
February 11, 2015
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
The governor of Massachusetts recently signed a law passed by the legislature which expands the state parental leave law to include male employees. The law will do into effect on April 7. The new law replaces the former Massachusetts Maternity Leave Act which provided female employees with eight weeks of unpaid leave for the birth or adoption of a child. The new law received bipartisan support of both labor and management organizations in the state.
Under the new law, any full-time employee who has been employed for at least three months is entitled to eight weeks of parental leave and must be reinstated to his/her former or similar position when he or she returns to work. The leave may be with or without pay at the employer’s discretion. The law also states that if an employer agrees that the employee can take more than eight weeks of parental leave, the employee is still entitled to all reinstatement rights unless the employer “clearly informs” the employee that taking more than eight weeks of leave could result in denial of reinstatement or loss of other rights.
A federal district court judge recently allowed a Fair Labor Standards Act (FLSA) overtime claim to proceed on behalf of all the employer’s non-exempt employees, although the plaintiff filing the claim did not provide the name of any potential opt-in plaintiffs or affidavits from any employees wishing to opt in to the litigation. The judge ruled that the case may proceed as an FLSA collective action at the early-notice stage of the litigation concerning the allegations of the employer’s denial of overtime for employees’ missed meal breaks and on-call hours (Colbert v. Monarch Transportation LLC (D. Kan., No. 5:13-cv-04126, 1/23/15)).
The court held that, “While it would have been helpful to plaintiff to have the opt-in affidavits of fellow employees, and while it will be plaintiff’s responsibility to secure these opt-in plaintiffs, that will assuredly in question at the second stage.” The affidavits are not altogether necessary at the early stage of the proceedings. The plaintiff claimed that employees who routinely work through their 30-minute meal period have no way of being paid for their work. Additionally, the plaintiff claimed that the employer required all non-exempt employees to work 12 on-call hours each week without receiving any overtime wages for those hours.
A former teacher who claimed to have taken lave under the Family and Medical Leave Act (FMLA) to receive treatment for anorexia and was terminated from her position lost an FMLA discrimination claim because she did not provide the employer sufficient notice of her intent to take leave (Bernard v. Bishop Noland Episcopal Day School (2015 BL 13228, W.D. La., No. 13-03284, 1/20/15)).
The plaintiff had taken FMLA leave to deal with her anorexia. Upon return to work, her job performance plummeted. The school received complaints that she was unprepared for class and didn’t know her students’ names. Separately, her anorexia condition worsened and she began losing weight. The school terminated her for poor job performance. She then filed an FMLA discrimination and interference claim, alleging that she needed more FMLA leave to deal with her recurring condition and alleging that she was terminated because she took FMLA leave. The judge denied the school’s motion for summary judgment and the case proceeded to a bench trial. After trial, the judge denied the plaintiff’s FMLA claim, holding that she did not communicate her need for additional FMLA leave to the school before its decision to terminate her for poor job performance.
The U.S. Court of Appeals for the D.C. Circuit recently reversed an adverse ruling by the National Labor Relations Board (NLRB)’s that an employer’s restrictive baseball cap rule violated the National Labor Relations Act (NLRA). The D.C. circuit sent the case back to the NLRB, requiring it to review and reconsider its ruling that the employer violated the Labor Act (World Color Corp. v. NLRB (2015 BL 10681 D.C. Cir., No. 14-1028, 1/16/15)).
The case was filed by the Graphic Communications Conference of the Teamsters Union and alleged that the company’s rule that limited the wearing of baseball caps on the job to the parent company’s baseball cap unlawfully restricted employees from wearing “union” or “teamsters” baseball caps. The company defended its rule and stated that while the policy required the wearing of a company hat rather than any other hat, including a “union” hat, it did not restrict employees from accessorizing their hats to bear a “union insignia.” The appeals court agreed with the employer. The case will be sent back to the NLRB for further analysis and review consistent with the court of appeals decision.
Adjunct professors at Washington University in St Louis, Missouri voted in favor of representation by Service Employees International Union (SEIU) Local 1 in January by a vote of 138 to 111 in an NLRB supervised vote. SEIU has been actively organizing adjunct faculty in 11 metropolitan areas throughout the country and now claims to represent 23,000 adjunct professors nationwide.
Adjuncts at three California colleges also voted for representation by the SEIU in January (at Dominican University by a vote of 139 to 77; at St. Mary’s College of California by a vote of 204 to 64; and at Otis College of Art and Design by a vote of 77 to 70).
SEIU claims that resident physicians and fellows at Howard University Hospital in Washington, D.C. voted in favor of representation in mid-January. The NLRB has not yet certified the results, but the prospective bargaining unit will include 263 resident physicians and fellows at the hospital.