Texas Court Says Title VII Does Not Cover Breastfeeding, but Employers Should Be Mindful of Florida Law and the FLSA Protecting Nursing Mothers

By Glenn Rissman on February 10, 2012 Posted in Disability & Leave, Discrimination & Harassment

A federal court in Texas recently rejected the Equal Employment Opportunity Commission’s attempt to bring a Title VII claim on behalf of a worker who claimed she was fired because she wanted to breastfeed at work. Title VII prohibits employers from discriminating on the basis of gender, pregnancy, childbirth, and related medical conditions. The Texas court, in EEOC v. Houston Funding II, Ltd., drew the line at breastfeeding. The court said that even if the employer terminated the employee because she wanted to breastfeed at work, firing someone because of lactation or breast pumping is not gender discrimination.

Although the Texas court refused to give Title VII protection to breastfeeding mothers, employers should be mindful of protections under Florida law and the recent amendments to the Fair Labor Standards Act (FLSA) covering breastfeeding. Under Florida law, a mother may breastfeed her child in any location, public or private, where the mother is otherwise authorized to be, even if the mother’s breast or nipple is exposed. A Florida employer must allow an employee to breastfeed her baby at work.

The FLSA also requires employers of 50 or more employees to provide nonexempt employees with reasonable break time and a private location, other than a bathroom, to breastfeed or express milk, unless doing so creates an undue hardship. The FLSA amendment does not define the phrase “reasonable break time” or explain how frequently such breaks much be given. However, what is “reasonable” will depend largely on the employee’s needs, because the amount of time needed to express milk varies by woman. Unless it is clear that an employee is abusing her break time rights, employers should defer to the employee with respect to the length of the break and the number of breaks taken each day.

Under the FLSA, a bathroom, even if private, is not a permissible location for the break. Employers are not required to maintain a space that is dedicated solely for nursing mothers’ use, but a shared-use room must be available to be used privately (and shielded from view and free from intrusion) when needed by a nursing employee to express milk. Ideally, the location should have an electrical outlet, a locking door, adequate ventilation, and a chair. While not expressly required under the FLSA, it is advisable to provide a small refrigerator, or a shelf in a currently maintained refrigerator, where employees can store their expressed breast milk.

Although the FLSA does not requires the employer to pay for the “reasonable break time,” if the employer already provides paid breaks (normally no longer than 15-20 minutes) to its employees, and the nursing mother uses that break time to express milk, then the nursing mother must be compensated in the same way the other employees are compensated for break time. Of course, if the nursing mother performs compensable work during the break, she must be paid for her time.

Federal Appellate Court Holds That FMLA Protects A Pre-Eligibility Request for Post-Eligibility Leave

By Glenn Rissman on January 20, 2012 Posted in Disability & Leave, Discrimination & Harassment

The federal appellate court that covers Florida, the Eleventh Circuit, recently decided what lawyers call a case a first impression – a legal issue that has not been previously ruled on by the court. The case is Pereda v. Brookdale Senior Living Communities, Inc., and the issue was whether an employee who is not yet eligible for leave under the Family and Medical Leave Act (FMLA) can sue an employer who retaliates against and terminates her before she can exercise her rights under the FMLA. The Eleventh Circuit ruled that, yes, the employee is protected against interference and retaliation based on a pre-eligibility request for post-eligibility leave.

The facts of the case are as follows. Pereda began working for the employer on October 5, 2008. In June 2009, she advised the employer that she was pregnant and would need leave under the FMLA after the birth of her child on or about November 30, 2009. Pereda said that after she disclosed her pregnancy and informed the company of her need for leave they began treating her unfairly – placing her on a performance improvement plan and writing her up for missing work related to her pregnancy. The company fired Pereda in September 2009, before she had worked for the company for twelve months, a requirement for FMLA leave. She sued for violation of her rights under the FMLA, claiming both interference with her rights and retaliation for trying to exercise her rights under the FMLA. The employer filed a motion to dismiss, and the trial court dismissed the claim, finding that Pereda had no claim because she was not entitled to the FMLA leave at the time she had requested it. Pereda appealed and the Eleventh Circuit ruled in her favor, finding that a claim does exist. (At this procedural stage, the only issue is whether a claim exists, not whether there is any merit to the claim.)

Although Pereda was not eligible for FMLA leave at the time she requested it, she would have been entitled to the leave at the time she gave birth and her requested leave began. The appellate court reasoned that, because the FMLA requires the employee to provide advance notice of the need for leave (at least 30 days’ notice when the need for leave is foreseeable), the employee is protected from interference prior to the occurrence of the triggering event for the leave, such as the birth of a child. Otherwise, an employer could use the advance notice against the “newer” employee and terminate the employee before he or she qualifies for leave under the one year/1250 hour service requirement. The court held that a pre-eligible employee has a cause of action if an employer terminates her to avoid having to accommodate the employee with FMLA leave once the employee becomes eligible. Similarly, the court found that the pre-eligible request for post-eligible leave is protected activity and that the employer cannot retaliate against the employee even though, at the time of the request for leave and the time of termination, the employee was not yet eligible for or entitled to FMLA leave.

The decision in Pereda clarifies the rights of employees not yet eligible for FMLA but who have requested leave to start once they are eligible. Florida employers covered by the FMLA should exercise care when taking adverse action against an employee who has requested FMLA leave even if the employee is not yet eligible for leave.

NLRB Says No to Requiring Employees to Sign Arbitration Agreements Prohibiting Group or Class Action

By Stearns Weaver Miller on January 19, 2012 Posted in Employee Benefits & Compensation, Employment Litigation, Labor Law

On January 3, 2012, the National Labor Relations Board (NLRB) ruled in D.R. Horton, Inc., that requiring employees, as a condition of employment, to sign an arbitration agreement prohibiting them from filing collective or class actions for employment-related claims violates the law. The decision involved an overtime case brought by Michael Cuda against his employer, Florida-based home builder, D.R. Horton, Inc. (“Horton”). Cuda claimed that Horton had misclassified a group of employees, including himself, as superintendents to shirk the overtime pay requirements under the Fair Labor Standards Act. When Cuda tried to bring a class wide arbitration on the overtime pay issue, Horton objected citing its “mutual arbitration agreement” that prevented employees from pursuing work-related group or class action arbitrations. Employees, including Cuda signed the agreement as a condition of employment.

Cuda filed an unfair labor practice charge with the NLRB, alleging that Horton violated the National Labor Relations Act (NLRA) by requiring its employees to sign the agreement. The NLRA provides that employees have the right “to engage in…concerted activities for the purposes of collective bargaining or other mutual aid or protection” (see NLRB OKs Employee Bad-Mouthing on Social Media). In a 2-0 decision, the NLRB agreed with Cuda.

The NLRB distinguished its ruling from the recent Supreme Court case, AT&T Mobility v. Concepcion, (2011), which held that pursuant to the Federal Arbitration Act (FAA) businesses could use “take it or leave it” form contracts to forbid consumers from joining together in a single arbitration. The NLRB said that the FAA did not trump the NLRA, a law historically protecting workers’ right to unionize and engage in concerted action.

Although the NLRB decided the case under a different statute, the result differs from the holding in the Supreme Court’s AT&T Mobility v. Concepcion decision. Employers who had hoped that an arbitration agreement could preclude employee collective or class actions will now face the argument that such agreements violate the NLRA and are void. To be continued…(an appeal is likely). It is also worth mentioning that if a Republican is elected President, he will appoint 3 members to the NLRB in 2013, who will likely withdraw this decision.

DHS Extends Temporary Protected Status for Certain El Salvadorans

By Glenn Rissman on January 12, 2012 Posted in Immigration

On January 11, 2012, the Department of Homeland Security (DHS) published a notice in the Federal Register extending the Temporary Protected Status (TPS) for certain El Salvadoran nationals in the United States. Currently, TPS status for qualifying El Salvadoran nationals expires on March 9, 2012. With the extension, Temporary Protected Status for eligible El Salvadoran nationals is extended through September 9, 2013.

TPS is a temporary immigration status granted to eligible nationals of designated countries because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of that country from returning safely or prevent the country from handling their return adequately. There are currently several countries designated for TPS, including Haiti, El Salvador, Nicaragua, and Honduras. Qualified nationals of the designated countries may remain in the United States and are given authorization to work.

El Salvadoran nationals already in TPS status must re-register with DHS during the 60 day re-registration period that runs through March 12, 2012. These individuals can also file Form I-765 application for employment authorization. However, because it is unlikely that they will receive a new Employment Authorization Document (EAD) before the current EAD expires, the Federal Register announcement also automatically extends the EADs of these TPS registered El Salvadorans for six months, through September 9, 2012. (The EADs would otherwise expire on March 9, 2012.)

Employers may accept the expired EAD card that has been automatically extended for proof of work authorization or continued work authorization through September 9, 2012, for Form I-9 purposes. Employers can recognize the automatically extended EAD because the notation “A-12” or “C-19” will appear on the face of the card under the word “Category.” In the case of qualified El Salvadoran nationals, the EAD will have an expiration date of March 9, 2012. When updating the Form I-9 for a current employee, in Section 1 and in Section 2, the employer should draw a line through the March 12, 2012 expiration date, write September 9, 2012 above the crossed-out expiration date, write “TPS Ext.” in the margin, and date and initial the change. Employers will need to reverify the employee on or before September 9, 2012. The employee may present any List A or List C document to establish his or her continued work authorization. The employer may not specify that the employee present a new EAD as proof of work authorization.

CLICK HERE to access a copy of the Federal Register notice.

If an Employee Works Overtime and No One Knows Will the Employer Be Liable? A Recent Case Says, "No."

By Glenn Rissman on January 9, 2012 Posted in Employee Benefits & Compensation, Employment Litigation, Wage & Hour/Employee Classification

We have all heard the riddle of whether a tree that falls in a forest with no one present makes a noise. A federal appellate court sitting in Indiana faced a similar question regarding a former employee’s claim for overtime compensation under the Fair Labor Standards Act (FLSA). In the case of Kellar v. Summit Seating Inc., a former employee claimed that she regularly came in to work 15 to 45 minutes before her shift but was not paid for her time. The problem was that no one knew that she came in early and engaged in the preparatory activities. In a somewhat surprising decision, the appellate court ruled for the employer in a very fact specific analysis.

The employee, Kellar, was a sewing manager. She was not an exempt employee because, among other things, the employer paid her on an hourly basis. Kellar claimed that she arrived at work 15 to 45 minutes before her 5 a.m. shift. She said that during that time she unlocked the doors, turned on the lights, turned on the compressor, made the coffee, distributed work to her subordinates’ work stations, and engaged in other preparatory activities so that the employees could start precisely at the beginning of the 5 a.m. shift. No one told Kellar to come in early, and the business owners, who did not arrive until after 7 a.m., did not know Kellar came in earlier, even though she clocked in before 5 a.m. It was common for employees of the business to clock in early and then socialize before the start of the shift. The business had a policy prohibiting employees from working overtime without prior approval, and Kellar reprimanded at least one subordinate for punching in too early. Although Kellar testified that she had a good relationship with the company’s owners, she never, in 8 years, told them that she was working before the start of her shift, never reported errors in her pay check, never requested overtime, and never told them that her pay had to be adjusted to compensate her for the pre-5 a.m. work.

The company argued that it was not liable for overtime pay because it did not have actual or constructive knowledge that Kellar worked overtime. The FLSA is clear that an employer must exercise control and ensure that work is not performed if it does not want the work performed. Normally, an employer must pay for overtime work even if it did not request the work and even if the employee does not report the work. Under the FLSA, an employer cannot accept the benefit of the work and not compensate the employee for the work. The court in Kellar, however, focused on the fact that the employer did not know about the work and had no reason to know about it. It was not controlling that Kellar’s time cards reflected that she clocked in early because, according to the court, the time cards did not necessarily mean that Kellar was performing pre-shift work; most of the company’s employees were in the habit of punching in early and then socializing until their shifts began. The company’s owners also had no reason to believe that Kellar was arriving early to work and apparently none of Kellar’s co-workers, including her sister, knew she was performing pre-shift work. The court therefore found that the employer did not know and had no reason to know that Kellar was working before her shift and, consequently, was not liable for any overtime pay to Kellar.

Kellar is a most unusual case and could have easily have resulted in a win for the employee because of the time cards showing a pre-5 a.m. clock-in time. Kellar offers good teaching points for FLSA compliance.

SEMINAR OPPORTUNITY: On January 18, 2012, Tobi Lebowitz and Glenn Rissman will host a seminar on the Fair Labor Standards Act. Please visit stearnsweaver.com/events to register and join us for an interesting discussion on other FLSA insights and pointers.

Can You Hear Us Now? – Federal Government Restricts Cell Phone Use by Commercial Drivers

By Stearns Weaver Miller on December 30, 2011 Posted in Employee Handbooks & Policies

The U.S. Department of Transportation has issued a new rule limiting the use of hand-held mobile telephones by drivers of commercial motor vehicles.

A commercial motor vehicle is defined as a self-propelled or towed vehicle used on the highways to transport person or property in interestate commerce; and that either:

- Has a gross vehicle weight/gross vehicle weight rating of 10,001 pounds or greater;

- Is designed or used to transport more than 8 passengers (including the driver) for compensation;

- Is designed or used to transport more than 15 passengers, not for compensation; or

- Is transporting any quantity of hazardous materials requiring placards to be displayed on the vehicle.

The rule, which goes into effect on January 3, 2012, restricts drivers from reaching or holding mobile telephones and pushing more than one button to operate a mobile telephone while driving. The use of a mobile telephone is permitted by the rule as long as drivers initiate, answer or terminate the call with the push of a single button within their reach and without holding it in their hand. The mobile telephone cannot be located on the passenger’s seat, sleeper berth or floor of the vehicle. To use the mobile telephone in compliance with the rule, the device must be mounted or secured within reach of the vehicle’s control panel.

Drivers who violate the rule will face civil penalties up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Commercial truck and bus companies that allow their drivers to use mobile telephones in violation of the rule will face a penalty of up to $11,000 for each violation.

Employers of commercial drivers should prepare and implement a policy consistent with the new regulation, and train their drivers on the policy. If you require drivers to carry mobile telephones, make sure that vehicles are fitted with holders mounted on the vehicle’s control panel and that your drivers are properly using the holders.

The NLRB, Again, Postpones Notice-Posting Rule Until April 30, 2012

By Glenn Rissman on December 25, 2011 Posted in Labor Law

On August 26, our colleague Lisa Berg posted an article on the National Labor Relations Board’s (NLRB) new rule requiring employees (union and non-union) to post a notice informing employees of their rights under the National Labor Relations Act, including the right to organize a union, form, join, or assist a union, bargain collectively, discuss wages, benefits, and other conditions of employment, raise complaints, strike or picket, and choose not to do any of these activities. On October 5, I posted an update that the NLRB postponed the implementation date of the notice-posting rule to allow for enhanced education and outreach to employers. Yesterday, the NLRB once again postponed the implementation date to facilitate the resolution of several lawsuits that have been filed by business groups challenging the notice-posting rule. The new implementation date is April 30, 2012.

Federal Court to Georgia: Transgender Employees Are Protected

By Stearns Weaver Miller on December 12, 2011 Posted in Discrimination & Harassment

Last week, the federal Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) ruled in favor of Vandiver Elizabeth Glenn, an employee who was fired after informing her employer, the Georgia Legislature, that she was a transsexual and planned on undergoing a complete gender transformation from male to female. Glenn sued the Georgia Legislature alleging sex and medical condition (Gender Identify Disorder) discrimination under the Equal Protection Clause of the U.S. Constitution. The Court found Glenn was a victim of sex discrimination. However, it did not address the merits of the medical discrimination claim stating that the decision provided Glenn with all necessary relief.

Judge Rosemary Barkett, who wrote the opinion for the unanimous three-member panel, stated,

An individual cannot be punished because of his or her perceived gender non-conformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes.

Since the Court’s decision was based solely on the protections provided by the Equal Protection Clause, it only applies to public sector employers, not private employers. However, Title VII of the Civil Rights Act, the law applicable to most private employers, was frequently referenced by the Court. The decision should put private employers on notice that discrimination against transgender employees may soon be prohibited in the private sector as well, either through court decisions or legislation. For businesses in South Florida there are already ordinances in Palm Beach County, Broward County and Miami Beach which protect applicants and employees from gender identity/expression discrimination.

Wishing You a Holiday Season Filled With Joy and Peace (And No Lawsuits)!

By Stearns Weaver Miller on November 14, 2011 Posted in Discrimination & Harassment, Employee & Management Counseling, Employee Handbooks & Policies

Christmas music was playing in the mall this past weekend…it’s official, the Holidays are here! The Holidays are a great opportunity for your employees to celebrate and unwind after a long year. The season can also bring employment issues including but not limited to claims of religious discrimination, sexual harassment and liability for your company.

Holiday parties seem to be the root of these problems:

(1) Religious Discrimination – Not everyone celebrates Christmas or Hanukkah. In EEOC v. Norwegian-American Hospital, a Muslim employee sued her employer in federal court in Illinois after, among other things, she was disciplined for failing to participate in Christmas activities. The company eventually entered into a consent decree with the Equal Employment Opportunity Commission to settle the case for $40,000.

(2) Sexual Harassment – Unfortunately, alcohol and sexual harassment claims usually come hand-in-hand. For example, in Russ v. Van Scoyoc Associates, Inc., “several people became very intoxicated” at a company holiday party. After the party, some of the employees, including the plaintiff, went to another bar to continue socializing. At the bar, the plaintiff complained about unpleasant working conditions with the vice president of the company. The vice president sympathized with the plaintiff and then made a number of “sexually explicit and offensive remarks…telling [the plaintiff] that he admired her breasts, that he wanted to have sex with her, that he wanted to perform oral sex upon her, and that ‘she could make more money working at Hooters’” than at the company. Needless to say, after the plaintiff was let go, she sued the company for sexual harassment in federal court in D.C. After years of litigation and dispositive motions, the parties settled the lawsuit.

(3) Social Host Liability – If you are serving alcohol at your Holiday party, be aware that you can be liable for employees who consume too much alcohol and then get behind the wheel of a car. In Florida, Fla. Stat. § 768.125, individuals or companies that serve alcohol can be liable for injuries or damages caused by a drunk driver in two situations. One, if the drunk driver is under the age of 21. Or, two, if the drunk driver is known to be “habitually addicted to the use of any or all alcoholic beverages.” Employers can also be liable for the actions of employees who have been drinking in a social context if the actions occur during the course and scope of employment, such as attending trade shows, entertaining clients/customers, etc.

Here are some pointers for a worry-free Holiday party:

(1) Keep the party religion-neutral. Attendance should be voluntary.

(2) Limit the availability and consumption of alcohol. Consider hiring professional bartenders (not supervisors) to serve alcohol and instruct them to report and/or stop serving anyone that they feel has consumed too much and underage employees. Arrange for complimentary taxi service for any employee who feels he or she cannot drive home.

(3) Remind employees that workplace rules still apply and misconduct during the party may result in disciplinary action.

(4) Investigate complaints quickly.

(5) Learn from past mistakes.

Love That Tender: Mooting an FLSA Action

By Glenn Rissman on November 9, 2011 Posted in Employment Litigation, Wage & Hour/Employee Classification

On September 20, we posted, Was Dionne The FLSA Magic Bullet We Thought?, which discussed recent cases under the Fair Labor Standards Act (FLSA) where the employer tried to moot the lawsuit by tendering the back pay and liquidated damages claimed by the former employee. As a refresher, in Dionne v. Floormasters Enterprises, Inc., the Eleventh Circuit refused to award attorneys’ fees and costs to an FLSA plaintiff (Dionne) after the defendant tendered full payment of overtime, liquidated damages, and interest to Dionne. We also discussed Klingler v. Phil Mook Enterprises, Inc., a decision from the federal district court in Tampa, in which the judge refused to dismiss the lawsuit after the defendant paid the plaintiff in full for allegedly unpaid overtime, liquidated damages, and interest because the defendant had not also paid for the plaintiff’s attorneys’ fees. A new order from a different Judge within the same district court in Tampa reached a decidedly different result, one that employers will rejoice.

In Craig v. Digital Intelligence Systems Corp., the plaintiff sued for unpaid overtime under the FLSA. The defendants in the lawsuit, based on information supplied by the plaintiff, calculated that the employee would be owed $6,480 in back pay if his claims were true. The defendants doubled that amount to cover liquidated damages and sent a check to the plaintiff, representing full compensation for back pay and liquidated damages. The defendants then sought to dismiss the case on the grounds that it was now moot, i.e., there was no legal issue remaining because the plaintiff had been made whole.

The plaintiff argued that while the tender amount fully compensated him for his back pay and liquidated damages, he was not fully compensated because he still had to pay his attorneys’ fees and costs. The court rejected this argument, finding that the issue of attorneys’ fees was separate from the merits of the case. The court further said that the tender of the full damages and the deposit of the check in the law firm trust account made the plaintiff’s claims moot. The court then refused to find that the plaintiff was a prevailing party, which would have entitled him to an award of attorneys’ fees and costs, because there was no judgment on the merits of the case, no offer of judgment under the federal rules, or no court-approved settlement. The bottom line – the case was moot and had to be dismissed because the plaintiff received full compensation for damages on his FLSA claim and no actual injury existed any longer that could be redressed by the court.

Will the litigation strategy used in Craig work all the time? It is hard to say because, on very similar facts, the same court (but a different Judge) in Klingler refused to dismiss the case on grounds of mootness because the tender did not pay the plaintiff for attorneys’ fees and costs. At a minimum, the tender strategy can end the fight over back pay and liquidated damages and make the case entirely about attorneys’ fees and costs. By making the tender early in the case, the defendant can better control the costs of the litigation, namely the attorneys’ fees racking up on both sides.