Hospitality Labor and Employment Law Blog

Hospitality Labor and Employment Law Blog

D.C. Circuit Reinstates FMLA Claim Even Though Plaintiff’s Leave Request Was Granted

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Client service is paramount in the hospitality industry, and frequent or extended leaves of absences by employees may make providing the same level of consistent service difficult.  But employers should take heed of the recent decision by the District of Columbia Circuit Court of Appeals when considering employee requests for leave under the Family and Medical Leave Act.  In Gordon v United States Capitol Police, No. 13-5072 (D.C. Cir. Feb. 20, 2015), the D.C. Circuit held that an employer who discourages an employee from taking FMLA leave may be liable for an interference claim, even if that discouragement was “ineffective.”  In other words, don’t bully, discourage, or make employees jump through unnecessary hoops if they ask for FMLA leave, because those employees may still have a viable lawsuit for FMLA interference despite having received the requested leave.

Judy Gordon, an officer with the Capitol Police, was granted FMLA leave to address intermittent periods of severe and incapacitating depression.  Before her leave commenced, Gordon’s superiors ordered her to submit to a “fitness for duty examination” because of her FMLA request.  While waiting for the examination, Gordon was reassigned to administrative duties, resulting in a loss of $900 (the equivalent of three days’ pay).  Gordon passed the examination, was reinstated to her prior post, and took the requested FMLA leave and returned without incident.  Nonetheless, Gordon sued, asserting claims of interference and retaliation under the FMLA, and alleging that the presence of the “fitness for duty examination” on her permanent record would be detrimental to her prospects for pay increases, promotions, and transfers.

Addressing an issue of first impression for the D.C. Circuit, the court considered whether Gordon could proceed with her FMLA interference claim even though she was granted and ultimately took the requested leave.  Drawing an analogy between the interference provisions of the FMLA and the NLRA – which courts have interpreted to permit NLRA Section 8 claims based on actions that have a “reasonable tendency” to interfere with employees’ rights, regardless of whether they actual did – the court held that “an employer action with a reasonable tendency” to interfere with an FMLA right may support a valid interference claim “even where the action fails to actually prevent such exercise or attempt.”

Here, the D.C. Circuit reinstated the inference claim because it found that subjecting Gordon to a fitness for duty examination, which resulted in her loss of $900 and potentially impacted her future career prospects, would have a “reasonable tendency” to interfere with an employee’s exercise of FMLA rights.  The court also appeared to be influenced by allegations in the complaint that upper-managers frowned upon FMLA leave generally and were looking for ways to prevent Gordon from taking leave.

In its decision, the court set a low threshold for what constitutes an adverse action sufficient to support an FMLA retaliation claim.  One of the elements of a prima facie case of FMLA retaliation is a showing that the plaintiff was adversely affected by an employment decision.  The court refused to decide whether that element requires a showing of “material adversity” – as articulated for Title VII claims in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68-70 (2006) – or something less, such as any monetary loss, no matter how small – as suggested in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).  Rather, the court concluded that the loss of $900, the equivalent of three days’ pay, was more than de minimis and met the higher “material adversity” threshold, allowing the FMLA retaliation claim to proceed.

This decision is a reminder to employers, particularly those with operations in Washington, DC, to tread carefully when processing requests for leave under the FMLA.  Although leaves of absence can be disruptive to the workforce, and employers are within their rights to make certain inquiries into the need for leave, the mere fact that FMLA leave is ultimately granted will not insulate an employer from potential liability for conduct that has the potential to dissuade an employee from requesting leave.  To avoid unnecessary litigation, employers should instruct their leave administrators and supervisors to refrain from openly questioning or criticizing an employee’s request for leave and from requiring additional certifications beyond those contemplated by the law.

Five Health Care Developments Important to Employers

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Our colleagues Adam C. Solander, August Emil Huelle, Stuart M. Gerson, René Y. Quashie, Amy F. Lerman, Frank C. Morris, Jr., Kevin J. Ryan, and Griffin W. Mulcahey contributed to Epstein Becker Green’s recent issue of Take 5 newsletter.   In this special edition, we address important health care issues confronting hospitality employers:

  1. Potential ACA Changes Impacting Health Care Employers Under the New Congress
  2. Pending Supreme Court Cases Involving the Affordable Care ActTake 5 banner
  3. Telemedicine and Employers: The New Frontier
  4. Wellness Programs Under EEOC Attack—What to Do Now
  5. Employer-Sponsored, On-Site Health Care

Read the full newsletter here.

DHS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants

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Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to hospitality employers.

On February 24, 2015, the Department of Homeland Security (DHS) issued a final rule that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. H-4 spouses who fit the eligibility criteria will be able to apply for employment authorization starting on May 26, 2015.

Read the full Client Alert here.

Key Issues Facing Places of Public Accommodation at the 25th Anniversary of the ADA

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Our colleague Joshua A. Stein authored Epstein Becker Green’s recent issue of its Take 5 newsletter.   This Take 5 highlights five recent developments and future trends under Title III that places of public accommodation should keep their eyes on in 2015.

  1. Website Accessibility
  2. Accessible Point-of-Sale Devices and Other Touchscreen Technology
  3. Movie Theater Captioning & Audio (Narrative) Description
  4. The Availability of Sign Language Interpreters at Health Care Facilities
  5. “Drive By” Design/Construction Lawsuits

 Read the full newsletter here.

 

January 2015 Immigration Alert

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Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

Legislation Introduced to Change Full-Time Employee Definition under the Affordable Care Act

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Our colleague August Emil Huelle at Epstein Becker Green has an Employee Benefits Insight Blog post that will be of interest to many of our readers: “Legislation Introduced to Change Full-Time Employee Definition under the Affordable Care Act.”

Following is an excerpt:

On January 7, 2015, U.S. Senators Susan Collins (R-ME) and Joe Donnelly (D–IN) along with Lisa Murkowski (R-AK) and Joe Manchin (D-WV) introduced the Forty Hours is Full Time Act, legislation that would amend the definition of a “full-time employee” under the Affordable Care Act to an employee who works an average of 40 hours per week.  In the coming days, the House is expected to vote on its own version of this legislation, the Save American Workers Act.

The teeth of the Affordable Care Act have the ability to sink excise taxes on employers who do not offer affordable healthcare coverage to full-time employees, which the Affordable Care Act defines as employees who work an average of 30 hours per week.  In announcing the introduction of the legislation, Senator Collins argued that the current definition “creates a perverse incentive for businesses to cut their employees’ hours so they are no longer considered full time.”  The implication being that the Forty Hours is Full Time Act will increase employee wages because the employers who reportedly reduced employee hours below 30 per week in an effort to avoid costs associated with providing healthcare coverage to employees (or the tax for not providing coverage to employees) are the same employers who will raise employee hours above 30 per week if they are not faced with such costs.  

Read the full blog post here.

NLRB’s New Election Rules Challenged As Unconstitutional

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On January 5, 2015, less than one month after the National Labor Relations Board (NLRB) voted to adopt a Final Rule to amend its rules and procedures for representation elections, a lawsuit has been filed in the US District Court for the District of Columbia, asserting that the Board exceeded its authority under the National Labor Relations Act (Act) when it amended its rules for votes on union representation and that the new rule in unconstitutional and violates the First and Fifth Amendments of the US Constitution.

The suit was filed by the Chamber of Commerce of the United States, Coalition for a Democratic Workplace, National Association of Manufacturers, the National Retail Federation and the Society for Human Resources Management.  It seeks an order vacating the Final Rule, declaring the Final Rule to be contrary to the Act and in excess of the Board’s statutory jurisdiction and authority and to violate the First and Fifth Amendments.

The claims raised in the suit are essentially the same as those which were raised by in an action filed in the same court in 2012, in response to the NLRB’s December 2011 adoption of a very similar set of changes to its representation election procedures.  That action also challenged the Board’s action based on what it found to be the Board’s lack of a quorum at the time it adopted those rule changes in 2011. Because the Court found that the Board lacked a quorum at that time, it found it unnecessary to address the substantive arguments about the changes in the election rules that are the essence of the new lawsuit.

While the Complaint does not indicate that the plaintiffs are seeking an order enjoining the Board from implementing the new election procedures under the Final Rule while the case is litigated, the plaintiffs are likely to request such an order as the Final Rule’s effective date of April 15th nears.  In the earlier challenge to the Board’s 2011 rulemaking, the Court granted an injunction in April 2012 enjoining the Board from putting the new rules and procedures into effect, while it considered the merits of the challenge.

While Republican members of Congress have with increasing frequency have indicated their desire to reign in the Board in a variety of areas where they have seen it as exceeding its mandate or moving in directions that they do not agree with, it is almost certain that President Obama would veto such legislation and it is not likely that the sufficient support would be present to override a veto. Thus as the New York Times observed  earlier this week, those who oppose administrative actions such as this are turning increasingly to the courts in hopes of relief.

We will continue to monitor and report on developments in this closely watched case.

2015 Has an Extra Pay Period: Dilemma for Those Paying Exempt Employees Bi-Weekly

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Our colleagues Michael Kun and Jeffrey Ruzal at Epstein Becker Green have a Wage & Hour Defense Blog post that will be of interest to many of our readers: “Unusual Wage Payment Issue in 2015 for Many Employers: 27 Bi-Weekly Pay Periods, Not 26.”

Following is an excerpt:

There is an unusual wage issue for 2015 that will affect many employers that pay exempt employees on a bi-weekly basis (rather than weekly, semi-monthly or monthly).

It is an issue that may have both financial and legal repercussions.

And it is an issue we suspect many employers had not noticed or considered.

With 52 weeks in a year, there normally are 26 bi-weekly pay periods in a calendar year.  In 2015, however, there will be 27 for many employers.

This oddity occurs every 11 years.  In short, it happens because 26 bi-weekly paychecks only cover 364 days in a year, not 365 (or 366 in Leap Years).  Those extra one or two “unaccounted for” days add up to create an additional pay period every 11 years.

The extra pay period is more than just an oddity.  It raises a dilemma for those employers that pay exempt employees on a bi-weekly basis – either pay employees more than intended, or face a possible wage payment claim.

Read the full post here.

Tip-Related Wage and Hour Issues for the Hospitality Industry in 2015

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Our colleague Jeffrey Ruzal at Epstein Becker Green recently wrote a Take 5 newsletter focused on the hospitality industry: “Tip-Related Claims Will Continue to Be Served Up as the Lawsuit du Jour Against the Hospitality Industry in 2015.”

Following is an excerpt:

The hospitality industry is particularly fertile ground for a wide variety of wage and hour issues, which continue to plague management through steadily increasing federal and state department of labor investigations and enforcement actions and the seemingly endless onslaught of private wage and hour lawsuits filed by an overzealous plaintiffs’ bar. Tip credit claims are government regulators’ and plaintiffs’ favorite, and there are no signs that such claims will abate in the coming year.

Employers may take a credit against the prevailing minimum hourly wage earned by employees performing tip-earning duties, such as servers, bartenders, bussers, hosts, housekeeping personnel, and bell staff. Before taking a tip credit, however, employers must comply with very specific federal and state tip credit laws, rules, and regulations, which form the basis of the various tip credit lawsuits commonly filed against employers in the hospitality industry.

Because of the prevalence of tip credit lawsuits in the hospitality industry, this edition of Take 5 will address five of the most common tip-related wage and hour issues that are often the focus of litigation. They are as follows:

  1. Properly Providing Tip Credit Notice
  2. Correctly Applying the Tip Credit Allowance
  3. Properly Computing Tipped Employees’ Overtime Pay
  4. Ensuring That Tipped Employees Actually Perform Tipped Work
  5. Complying with Tip Pooling or Sharing Requirements

Read the full Take 5 here.

NLRB Rules That Employees Can Use Company Email for Union Organizing – Affects All Employers

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Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: “NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing – Union and Non-Union Employers Are All Affected.” Following is an excerpt:

In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work.  While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer.  This decision applies to all employers, not only those that have union-represented employees or that are in the midst of union organizing campaigns.

Under this decision, which applies to both unionized and non-union workplaces alike, if an employer allows employees to use its email system at work, use of the email system “for statutorily protected communications on nonworking time must presumptively be permitted . . . .” In other words, if an employee has access to email at work and is ever allowed to use it to send or receive nonwork emails, the employee is permitted to use his or her work email to communicate with coworkers about union-related issues.

Read the full advisory here.

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