Albo & Oblon, LLP
2200 Clarendon Blvd., Ste. 1201
Arlington, VA 22201
(703) 312-0410
Contact>>>
|
Feature Article
NEW
LAW PROVIDES ADDITIONAL PROTECTION FOR EMPLOYEES CALLED TO ACTIVE MILITARY DUTY
Employees who are called
to active military duty are provided additional benefits and protections under
the recently enacted Veterans Benefits Improvement Act of 2004 (“VBIA”),
which made two significant changes to the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”). One change expands the maximum
period for continued health coverage provided under USERRA from 18 to 24 months
when an employee is absent for a period of military service. The other change
imposes a new notice requirement on employers, requiring them to provide notice
of rights, benefits and obligations of employees and employers under USERRA.
USERRA has long provided protections
to employees who take leave from their jobs for a period of military service
but it was not always a law that was foremost in an employer’s mind until
the last few years, when significant numbers of employees began taking leave
in response to being called up for active duty. USERRA provides broad protections
to members of the uniformed services and applies to virtually all U.S. employers,
regardless of size. Generally, USERRA provides servicepersons with reemployment
protections after leave is taken for a period of service in the uniformed services.
USERRA also provides protections against discrimination, guarantees with respect
to pension benefits that accrued during military service and provides for the
option to elect continued health care coverage for persons participating in
an employer-sponsored health plan.
The VBIA, enacted on December 10,
2004, expands the rights regarding continuation of health care coverage that
are provided under USERRA by lengthening the period for which servicepersons
can extend their employer-sponsored health care from 18 months to 24 months.
Thus, under USERRA, if a serviceperson and/or the person’s dependents
have health care coverage in a group health plan in connection with the person’s
employment and the serviceperson is absent from employment for a period of service
with the uniformed services, the employer/health plan must allow the serviceperson
to elect to continue health care. The period of continued coverage may extend
for a period of 24 months beginning on the date that the absence begins or for
a period ending on the day after the person fails to apply for reemployment
or return to employment, whichever is a short period. The extended 24 month
period provided under the new law is effective for all elections made on or
after December 10, 2004. The remaining USERRA provisions regarding continuation
of health coverage have not changed.
The second change to USERRA, made
as a result of the VBIA, is the addition of a new provision requiring employers
to provide notice to persons entitled to rights and benefits under USERRA of
the rights, benefits and obligations of employees and employers. The Secretary
of the Department of Labor (DOL) provided the content of this notice in an interim
final rule published on March 10, 2005. Employers must be in compliance with
the new notice obligation by March 10, 2005 and may do so by posting the notice
in a prominent place where employees would customarily find such important notices.
For example, a prominent place might be a kitchen area in the office or cafeteria.
The notice is available in poster format from the DOL and can be downloaded
from the link listed below.
For more general information
on compliance with USERRA, employers may view the DOL website at http://www.dol.gov/vets/programs/userra/main.htm.
However, for more detailed assistance in compliance with USERRA you should consider
consulting with an attorney knowledgeable in this area.
USERRA Poster: http://www.dol.gov/vets/programs/userra/poster.pdf
Back
to Index
Learn more about Albo & Oblon
The Court Report
LAW
FIRM ASSOCIATE ENTITLED TO PUNITIVE DAMAGES FOR SUCCESSFUL RETALIATION CLAIM,
FOURTH CIRCUIT RULES
A female associate
in the Reston office of national law firm Mintz, Levin, Cohn, Ferris, Glovsky
& Popeo sued the firm for retaliation under Title VII, claiming that she
was fired after she complained of sex discrimination to upper management at
the firm. The case is Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky &
Popeo. At trial, the jury returned a verdict in the employee’s favor
and awarded her over $600,000.00 in compensatory damages, back pay and costs.
Judge Ellis from the Eastern District of Virginia refused, however, to allow
the employee to request from the jury an award of punitive damages against the
law firm. On appeal, the Fourth Circuit not only affirmed the jury’s verdict
regarding compensatory damages, but then found that the employee should have
been permitted to request punitive damages from the jury. The Fourth Circuit
based its decision on the fact that the prominent law firm had an employment
law practice within the Reston office, and therefore, would have possessed a
heightened degree of awareness regarding retaliation laws when it fired the
employee after she made her discrimination complaints. This case is significant
in that it appears to refocus the standard for punitive damages away from just
a showing of egregious or outrageous discrimination, and more on the mindset
of the employer and the known legal risks the employer accepts when taking adverse
action.
Dawn Gallina began working
as an associate at Boston-based Mintz Levin back in 1999, practicing out of
the firm’s Virginia office in Reston. She claimed in her underlying lawsuit
that her supervising partner harassed and demeaned her when he found out she
had kids and was a working mother. The partner vocalized what he perceived to
be a “commitment differential” between men and women at the firm.
Another partner cursed at her. When she complained to upper management of the
law firm, she was told not to file a formal complaint and that the matter would
be dealt with informally. The employee claimed that the law firm never did address
her complaints, and instead withheld a scheduled pay raise and then fired her
after giving her poor performance reviews. The law firm acknowledged taking
the adverse actions regarding pay and termination, but claimed that this was
all motivated by the associate’s poor performance and was not related
to her discrimination complaints.
Although the partner’s
statements regarding working women were indefensible, this case was clearly
lacking the egregious and outrageous conduct that normally gives rise to punitive
damages against employers in discrimination cases. Therefore, it is not surprising
that Judge Ellis refused to allow the issue of punitive damages to go to the
jury. What is surprising was the Fourth Circuit’s focus on Mintz Levin
and the fact that the firm has an active employment law practice, and therefore
was surely aware of the rules governing discrimination complaints and unlawful
retaliation at the time it fired Gallina.
The question going forward,
of course, is how far the Court is willing to extend this rationale. For instance,
would the Fourth Circuit have ruled the same way if Mintz Levin did not have
an employment practice at the firm, but did solely patent law? Or what if the
employer was a computer company with no heightened awareness of retaliation
laws? Employers, of course, should always err on the side of caution and take
every conceivable measure to avoid falling into the retaliation trap.
Back to Index
Learn more about Albo & Oblon
MARYLAND
SECURITY COMPANY HIT WITH $2.25 MILLION JUDGMENT FOR ROLE IN EMPLOYEE’S
KIDNAPPING AND SEXUAL ASSAULT
A
female security guard who was kidnapped from her workplace and sexually assaulted
by an ex-boyfriend has been awarded over two million dollars from a federal
jury in her lawsuit against her security company employer for its role in allowing
the ex-boyfriend access to her at her job. The victim had previously informed
her employer of a protective order she had obtained against the ex-boyfriend,
but despite this knowledge, her supervisor assigned her to work an outside post
where the ex-boyfriend was able to initiate the attack. The case had previously
been on appeal to the Fourth Circuit Court of Appeals, after the trial court
absolved the company of liability for the ex-boyfriend’s criminal conduct.
The Fourth Circuit agreed with the trial court that the company could not be
held liable for the injuries caused directly by the abduction and rape by the
ex-boyfriend. The Fourth Circuit ruled, however, that the company was liable
to the employee for the emotional distress resulting from her being involuntarily
stationed at the outside post where she initially came into contact with the
ex-boyfriend. It was on that limited issue that the trial was conducted, which
resulted in the multi-million dollar verdict against the security company.
Security, USA was a government
contractor that provided security guards to various Government agencies. Dominique
Gantt worked as a security guard for the company at the IRS building in Maryland.
In 1996, Gantt secured a protective order against a former boyfriend who had
physically abused her. She made her supervisors aware of the protective order,
and in response, the company sent notice to all managers that Gantt should only
be assigned to work posts inside the building and that the abusing boyfriend
was barred from the job site.
One particular female supervisor
was a friend of Gantt and her ex-boyfriend, and felt that the two just needed
to talk things through. The supervisor was plainly aware of the protective order
and the violent threats made by the ex-boyfriend against Gantt. Notwithstanding,
the supervisor ordered Gantt to work at a post outside of the building, ignoring
Gantt’s repeated protests to be moved to an inside location. The supervisor
then let the ex-boyfriend know where Gantt was working that day, and eventually,
the ex-boyfriend showed up at the job site. With a gun drawn, the ex-boyfriend
chased a fleeing Gantt down and forced her into his waiting van. Two other guards
who witnessed the kidnapping alerted the supervisor, but even then, the supervisor
was initially reluctant to call the police because she still felt the ex-boyfriend
only wanted to talk and would not harm Gantt. The supervisor was wrong; the
ex-boyfriend raped and repeatedly terrorized Gantt over the next six hours before
finally sparing her life.
After the ex-boyfriend was
put away in prison, Gantt went after the company for the supervisor’s
actions that placed her in the dangerous situation. Among the claims raised
by Gantt in her lawsuit against the company was that the supervisor’s
actions intentionally caused her severe emotional distress. The trial court
had dismissed that count against the company under the rationale that the emotional
trauma was caused by the criminal conduct of the ex-boyfriend, not by anyone
at the company.
On appeal, the Fourth Circuit
disagreed in part with the trial court’s logic, and reinstated the intentional
infliction of emotional distress claim against the company. Specifically, the
Fourth Circuit agreed with the lower court that the company was not culpable
for that emotional distress caused directly by the abduction and rape. The Court
said, however, that the company is liable to Gantt for the emotional distress
resulting from her being involuntarily stationed at the outside post where she
initially came into contact with the ex-boyfriend. The Fourth Circuit sent the
case back down to the lower court for trial on that aspect of the claim.
It is only natural that
friendships will form in the workplace, and companies often tout their congenial
working environment. This case reminds companies, however, of the potential
for trouble when the line between personal and professional is blurred beyond
distinction. The supervisor in question allowed her personal involvement with
Gantt and the ex-boyfriend to completely cloud her judgment, causing her to
severely compromise her managerial role within the company and contributing
to the horrifying ordeal that almost took the victim’s life.
Full
court opinion(PDF)...
Back to Index
Learn more about Albo & Oblon
NON-UNION
EMPLOYEES COULD NOT BE FORCED TO WEAR UNIFORMS BEARING A UNION’S LOGO,
FOURTH CIRCUIT RULES
The Fourth
Circuit Court of Appeals recently struck down a complaint brought by two BellSouth
employees who complained of BellSouth’s collectively bargained uniform
policy that required them to wear a uniform adorned with the logos of BellSouth
and the Communications Workers of America, AFL-CIO (CWA), even though they were
not members of the union. The National Labor Relations Board (NLRB) had previously
dismissed the employees’ complaint against BellSouth and CWA, after concluding
that “special circumstances,” namely the promotion of the company’s
public image, outweighed the National Labor Relations Act (NLRA) provision providing
for an employee’s right to refrain from concerted union activity. On appeal,
the Fourth Circuit ruled that, although the parties agreed that BellSouth’s
uniform policy was designed to promote BellSouth’s public image, the Court
found that BellSouth did not show evidence that the absence of the union logo
“unreasonably interferes with its established public image.” Therefore,
the Fourth Circuit said the non-union employees could not be forced to wear
the uniform bearing the union’s logo.
The non-union employees
asserted that the policy, which applied to certain classifications of employees
regardless of whether the employees were union members or not, violated the
NLRA in that it did not allow them to refrain from concerted union activity.
The Plaintiffs argued that this policy violated, in part, Sections 8(a) and
8(b) of the NLRA, which provide that it shall be an unfair labor practice for
an employer and a labor organization “to coerce employees in the exercise
of rights guaranteed in [Section 7].” Section 7 of the NLRA protects an
employees’ right to engage in union activities as well as refrain from
union activities. In response, BellSouth argued that the display of the CWA
insignia was intended to convey a “labor-management partnership which
makes service interruptions due to labor disputes less likely and represents
that their employees are well-trained, well paid, and more experienced with
a stable work environment.”
In upholding the non-union employees’ challenge to the uniform policy,
the Fourth Circuit explained that no evidence was presented to show this intended
image was conveyed by the union logo in the first place. The Court reasoned
that the union logo could just as easily be viewed by the public with suspicion
and could be associated with labor disputes, thereby detracting from its public
image. The Fourth Circuit also noted that the fact that the uniform policy was
a result of collective bargaining does not on its own create a special circumstance.
Therefore, the Fourth Circuit vacated the Board’s dismissal order, finding
that there was not a sufficient showing of “special circumstances”
that would outweigh the non-union employees’ rights under the NLRA.
Although the Fourth Circuit
recognized that special circumstances may outweigh the applicable NLRA provision
in this case, the Court made clear that it will require substantive evidence
supporting the special circumstances. Merely asserting that the special circumstances
are related to the company’s public image without substantial evidence
of this is not sufficient. A company should be prepared to show that the reasons
for having a policy that would otherwise contravene the NLRA, such as the uniform
policy at BellSouth, are more than merely related to public image or customer
exposure. To rely on the “special circumstances” argument, an employer
should be prepared to demonstrate how the elimination of the challenged policy
would “unreasonably interfere” with the company’s public image.
Full
court opinion (PDF)...
Back to Index
Learn more about Albo & Oblon
EMPLOYEE
NOT ENTITLED TO EXTEND FMLA LEAVE BEYOND 12 WEEKS BY SUBSTITUTING PAID LEAVE
A
private duty nurse who needed more than the 12 weeks of leave granted to her
under the federal Family and Medical Leave Act (FMLA) due to complications from
a pregnancy cannot extend her FMLA leave entitlement by using other forms of
paid leave, a Norfolk federal judge recently ruled in Miller v. Personal-Touch
of Virginia, Inc. FMLA leave is unpaid leave granted only for a serious
medical condition or birth of a child. The employee had hoped that her FMLA
leave would not begin until after she had exhausted her other accrued paid leave,
thereby allowing her longer than the maximum 12-week period. But the Court found
that her FMLA leave began as soon as she went out on bed rest for the pregnancy,
and any leave she took beyond 12 weeks from that date was outside of the FMLA’s
protections.
This case illustrates a
common misunderstanding by employers and employees alike to treat FMLA leave
just like any other type of leave granted to employees, be it paid vacation,
sick or personal leave. The difference is that these other forms of leave are
distinct from each other and can usually be taken consecutively. FMLA leave
is designed to provide an overall protection for someone who needs to take leave
for the specific purposes of a serious medical condition or birth of a child.
An employee can elect to be paid during all of the FMLA by using accrued paid
leave, but this paid leave is treated as concurrent with the FMLA leave, and
in no way serves to extend the 12-week maximum.
Back to Index
Learn more about Albo & Oblon
SUPREME
COURT TO DECIDE WHETHER CERTAIN EMPLOYEES MUST BE PAID FOR TIME SPENT WAITING
AND WALKING TO THEIR WORKSITE
The
United States Supreme Court has agreed to resolve a split among federal appellate
courts about whether workers who must don protective gear as part of their jobs
must be paid for the time spent waiting in line to receive the gear, as well
as for time spent walking to and from their worksite after donning the gear.
The specific employees in question are meatpackers who are required to arrive
at work before their shift actually starts and put on the protective equipment.
Under the Fair Labor Standards Act, employees are generally not entitled to
be paid for preliminary activities prior to the start of a shift, such as time
spent waiting to punch a time clock or walking to and from the worksite. The
wrinkle in the cases presented to the Supreme Court is that the employees are
required to show up at a central site and wait in line to receive and don protective
clothing, and then they must go from that central site to their individual worksites.
Depending on how the Supreme Court decides the issue, this case could have a
significant impact on the pre-shift requirements employers often place on employees.
Full
court opinion (PDF)...and HTML version
Back
to Index
Learn more about Albo & Oblon
VIRGINIA
TRUCK DRIVER WHO THREATENED HIS SUPERVISOR HAS HIS WRONGFUL TERMINATION LAWSUIT
DISMISSED
A Richmond truck driver who was fired after he had a dispute with his supervisor
over sick leave pay and allegedly invited the supervisor to “settle it
outside” has his race discrimination lawsuit dismissed by a Richmond federal
judge. The unreported decision was in the case Scales v. USF Logistics. The
fired employee claimed that his punishment of termination was harsher than that
received by employees of a different race. However, when pressed to give other
examples of employees who have threatened supervisors--the conduct for which
he was fired--the plaintiff could only give sketchy details of one other incident.
Even then, he could not say for certain that the two involved in that other
dispute were not joking around, and he conceded that upper management was not
aware of this other incident. Accordingly, the plaintiff could not carry his
burden of showing unequal disciplinary treatment, and his lawsuit was dismissed.
This case illustrates the often overlooked
avenue of potential employer liability for discrimination by unequal disciplinary
treatment. Companies can be held liable for unlawful discrimination if they
enforce disciplinary policies unevenly or more harshly against protected classes.
Thus, it is not enough for a company to justify a termination by showing an
employee broke one of the company’s rules. The company must ensure that
past infractions have been dealt with in substantially the same manner against
the rest of the workforce to head off any claim of unequal disciplinary treatment.
Back to Index
Learn more about Albo & Oblon
JUDGE
FOR YOURSELF
| Issue: |
An employee is fired
from his job after he has twenty unexcused absences from work over a six-month
period. The employee then files for unemployment benefits. Is he eligible
to receive such benefits? |
| |
|
| Answer: |
Under
a bill that was recently passed by the Virginia General Assembly, chronic
absenteeism or tardiness in violation of a known employer policy would
constitute “misconduct” that may result in disqualification
of benefits. Under Virginia law as it currently exists, chronic absenteeism
does not automatically disqualify someone from unemployment benefits.
The Virginia Code does contain certain examples of misconduct that would
result in a denial of benefits, such as a positive drug test or concealment
of a criminal record, but says nothing about chronic absenteeism. The
statute makes clear that the list is not all encompassing.
|
| |
|
The above articles
are for your personal information only and are not intended as legal advice. Nor
is this material intended to replace consultation with a professional. Always
consult a licensed attorney for your particular case. Nothing herein shall create
an attorney/client relationship. This newsletter is specifically for educational
purposes.
Subscribe/Unsubscribe
We welcome new subscribers.
If you would like to join our growing list please: click
here.
If you do not want to receive
this newsletter, please click here
and send the email. We will immediately remove your name from our subscription
list.
© Copyright
2005 Albo & Oblon, L.L.P., All rights reserved.
David
Oblon, Managing Partner, Albo & Oblon
Courthouse Plaza, Twelfth Floor
2200 Clarendon Boulevard Arlington, VA 22201
(703) 312-0410
|
