RETALIATION – FIRING A “CLOSE RELATIVE” OF A COMPLAINING EMPLOYEE IS UNLAWFUL

Eric Thompson was an engineer for North American Stainless in Carroll County, Kentucky. He met Miriam Regalado at work, and they became engaged. Regalado filed an EEOC charge alleging that her supervisor discriminated against her because of her gender. Three weeks later, Eric Thompson, who had “average” performance evaluations, was fired for poor performance.

Thompson said that his discharge was unlawful retaliation for his fiancée’s EEOC charge. The problem was, the language of the anti-retaliation provision in Title VII says that an employer cannot retaliate “against any of his employees…because he has” filed an EEOC charge or engaged in other statutorily protected activity.

The Federal Appeals Court in Cincinnati agreed that the plain language used by Congress when it passed the anti-retaliation provision limits the law’s protection to the employee who filed the charge or engaged in the protected activity. Nonetheless, the Court held that Thompson’s discharge was unlawful.

According to the Court, the underlying purpose of the anti-retaliation provision – to allow employees to file charges or engage in other protected activity without fearing for their jobs or livelihoods – would be eroded by allowing a company to “get back” against the complaining employee by firing a close relative. In other words, the anti-retaliation law is violated when a company takes action that would tend to “discourage” a reasonable employee from filing charges, and the fear that a “close relative” will be fired might discourage an employee from filing charges.

The Court never really addressed the fact that – from a legal standpoint – Thompson was not a “close relative” – but was just a fiancée. If the reasoning of this case is accepted by other courts – and it probably will be – where do you draw the line? Close friends? Car-poolers?

The lesson, as always, is to proceed carefully when imposing discipline on someone – or those near to them – who has recently engaged in protected activity.

BLACKBERRYS AND OVERTIME – HAVE YOU THOUGHT ABOUT IT?

More companies are providing BlackBerrys, laptops and cell phones to their hourly or salaried nonexempt employees. Cell phones can actually help an employer avoid overtime liability when employees are “on call,” because the cell phone makes the employee readily available and subject to being called in without unduly restricting the employee’s freedom of movement.

But BlackBerrys and laptops present different problems. What about an employee who uses those devices to “catch up” on some work at home? Since employers can monitor these devices, they “know” that employees are doing this – even though no one at the company may actually be paying attention. If a company’s computer records show that a nonexempt employee was online and doing company business outside regular work hours – must the company compensate the employee?

The legal answer is clearly “yes,” unless the amount of time was so small or sporadic as to be “de minimis” under Department of Labor regulations.

Companies can limit potential liability by establishing clear policies regarding when and whether these devices can be used outside of regular working hours, but as all employees become increasingly “wired,” this problem will escalate.

PAID TIME – DOCTOR VISITS

Cynthia Howser was injured on the job, but not so seriously that she could not continue working. Her Company’s Workers Compensation Administrator (Gallagher Bassett) told her to see her doctor on September 3, 2004, for “reevaluation” of her injury. The doctor notified Howser that the appointment was for 2:00 p.m. and that she should arrive 45 minutes early. Her normal work hours were from 7 a.m. to 3:30 p.m.

Howser kept the appointment and sued her employer under the Fair Labor Standards Act when she was not paid for the time spent going to and returning from the doctor visit.

Department of Labor regulations provide:

• “time spent by an employee in waiting for and receiving medical attention on the premises [at work] or at the direction of the employer during the employee’s normal working hours on days he is working constitutes hours worked.”

Howser’s Company tried to avoid paying her by saying that it never directed her to leave work or schedule the appointment during working hours. No dice, said the Court. Gallagher Bassett was the Company’s agent, and Gallagher clearly told Howser to schedule an appointment on a work day. Gallagher did not specify the time of day, so Howser scheduled the appointment at a time when the doctor had an opening. The Court said that Howser had effectively been directed by her employer to keep the appointment and that she must be paid for the time.

TREND LINES – PAID FMLA LEAVE

New Jersey recently joined two other states – Washington and California – in passing legislation that requires employers in those states to provide employees with supplemental pay as well as continued health insurance coverage when they take leave to care for a new baby or a sick family member. The New Jersey law provides for six weeks of leave per year at two-thirds of regular wages or salary up to a maximum of $524 per week. This mandated benefit will be paid for by deducting $33 per year from each New Jersey worker’s pay. Critics say that this will never pay for this benefit and that it is only a matter of time before employers will have to pony up.

California already requires employers to pay for six weeks of annual leave, and Washington has not decided exactly how to pay for this new benefit.

Other states are debating similar laws, with one idea being to provide unemployment compensation benefits for those on FMLA leave.

This subject has not yet been raised in Alabama, so why be concerned? As more states jump on this bandwagon, pressure grows for Congress to step in and pass uniform federal legislation – so that some states do not get a competitive advantage in recruiting new businesses. You can bet that the Congressional delegations from California, New Jersey, and Washington are talking about this even now.