At Work: Solutions for Employers & Employees

The Economic Stimulus Package signed into law with fanfare on February 17, 2009 provides help for employees who have lost their jobs or will lose their jobs between September 2008 and December 2009. Under the new law, many employees who are eligible for COBRA will be allowed to continue their benefits by paying only 35 % of COBRA premiums. The other 65% must be paid by the former employers, who will then be entitled to a tax credit for those payments.

For employees: Am I eligible?
You are an “eligible individual” under the American Recovery and Reinvestment Act (“ARRA” or “Stimulus Package”) if:
• Your employment was involuntarily terminated between September 1, 2008 and December 2009
• You are otherwise eligible under COBRA
• You are not eligible for another group health coverage (such as Medicare or your spouse’s plan)
• Your adjusted gross income is less than $125,000. (If your income is between $125,000 and $145,000 you will be eligible for a partial subsidy.)

For employees: If I am eligible, what does this mean?

• you will only need to pay 35% of your COBRA premium to purchase continued health care coverage
• The subsidy only applies to payments for coverage after February 17, 2009.
• The subsidy expires on December 31, 2009, unless it is renewed by Congress
• If you did not elect COBRA when it was first offered or if you lost your COBRA coverage because you failed to pay the premium, you have another opportunity to elect coverage. The new election period began on February 17, and continues for 60 days after the plan provides you notice about the premium reduction.
• The subsidy does not extend COBRA coverage if it is going to otherwise expire.
• If you later become eligible for another group plan you must let your old employer know. Otherwise, you will be liable for 110% of any subsidy that was incorrectly paid on your account.

For employers: What are We Required to Do?
• The first step for employers is to identify all employees who were involuntarily terminated since September 1, 2008.
• Employees who were involuntarily terminated and elected COBRA coverage must be informed of the availability of the subsidy.
• Employees who were involuntarily terminated and did not elect COBRA coverage, must also be informed of their right to elect coverage, and provided the necessary forms.
• The ARRA provides that the Department of Labor is to issue model notices for employers within 30 days. We’ve searched the DOL website, and it does not appear that the model notices have been issued yet.

For employers: How will We Be Reimbursed?According to the Department of Labor website, employers will receive a credit against payroll tax deposits, federal income tax withholding, or be eligible for a refund.

For updates and ongoing information, check out the DOL website at:

http://www.dol.gov/ebsa/cobra.html

Posted by Tiffanie Benfer at 05:47 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

In 2007, the Equal Employment Opportunity Commission (“EEOC”) filed a record number of lawsuits over caregiver bias in the work place. See http://www.eeoc.gov/stats/pregnanc.html The EEOC also obtained 30 million dollars in monetary benefits, which is a significant increase from the prior year’s monetary recovery of 10.4 million dollars. (This monetary recovery also includes pregnancy discrimination claims.) (Note the 2008 EEOC statistics are not yet available.)

Caregiver discrimination claims have been successfully litigated in the recent years under the “sex-plus” theory. This theory prohibits employers from treating employees differently than other workers on the basis of their sex “plus” a facially neutral characteristic such as having young children.

One way employees have successfully challenged “sex-plus” discrimination is through the disparate impact theory. For example: A female asserted that her employer’s sick leave policy, which provided that sick leave could only be used when the employee was sick had a disparate impact on female employees because female employees were more likely to stay home with a sick child. Consequently, the policy forced women to resign more frequently than their male counterparts because of their caregiver role.

In another instance, a company’s vice-president repeatedly asked the plaintiff how her husband was managing because she was not home to cook for him and whether she could effectively do her job after she gave birth to her second child. The vice-president had the plaintiff review a company employment profile excluding married women and women with children, and then proceeded to tell her the “profile was nothing against [her], but that he preferred unmarried, childless women because they could give 150% of the job.” The court held these inquires were evidence of hostility towards working mothers.

Many employers have set forth workplace objectives based on men and their traditional immunity from family caregiving. This results in discrimination against women. In order to establish gender equality in the work place, employers need to establish workplace objectives that take into account family caregiving.

Employers should examine their company policies and consider whether they appear to be gender neutral or whether the policies actually have a disparate impact on employees with childbearing responsibilities.

This is a challenging task for employers as they are responsible for making sure the work gets done. It will require an employer at times to think outside the box in order to accomplish both objectives.

http://www.nytimes.com/2007/07/29/magazine/29discrimination-t.html?_r=1&pagewanted=2

Posted by Tiffanie Benfer at 10:52 AM | Permalink | Comments (0) | TrackBacks (0)

I’m seeing a trend. We seem to be getting more and more calls from employees who have lost their jobs while in the midst of treating for cancer, and from employers who are trying to figure out what to do about an employee with a serious illness.

Needless to say, employees whose employment is terminated during treatment have a particularly difficult time, especially if they are dependent on employer-provided health insurance. The question is difficult too for employers who want to stay within the bounds of the law, but cannot afford to keep on an employee whose performance is lacking.

The trend we’ve seen appears to be worldwide. The New York Times today discussed an analysis in the Journal of the American Medical Association, concluding that cancer survivors in the U.S. and Europe are 37 % more likely to be unemployed than their healthy peers.

http://www.nytimes.com/2009/02/18/health/18cancer.html

What are the rights of an employee with cancer? Under the Americans with Disabilities Amendments Act, it is clear that cancer is a covered “disability.” An employee cannot be fired simply because he or she has cancer. Likewise, an employee cannot be fired simply because he or she took leave under the FMLA.

An employee is NOT protected if he or she is fired for some other reason, such as poor performance. The difficulty for both employees and employers in this situation is proof of the actual motive.

An employee who is battling fatigue or other side effects of treatment may be entitled to a reasonable accommodation under the Americans with Disabilities Act (“ADA”) (for example, being permitted to work from home on occasion). There are hundreds of cases discussing what accommodations are “reasonable,” and the answer will depend in large part on cost or other burdens to the employer. The employee’s rights to an accommodation under the ADA are triggered when the employee lets the employer know that he or she requires an accommodation, and the employer has an obligation to work with the employee to craft a reasonable accommodation.

Both employers and employees may benefit from allowing an employee to take intermittent leave under the Family and Medical Leave Act (“FMLA”) during the time of treatments.

If the treatments or illness are so incapacitating that the employee is unable to adequately do the job, even with a reasonable accommodation, the parties should first allow the employee to take FMLA leave, assuming the employer is covered by the FMLA. When the 12 weeks of FMLA leave are over, the employer no longer has the obligation to continue the employee’s employment.

Posted by Tiffanie Benfer at 11:06 AM | Permalink | Comments (0) | TrackBacks (0)

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in….”Abraham Lincoln, Second Inaugural address.

Sometimes litigation feels like war. The other party is your “adversary.” There are battles, there is strategy, questions of when and where to spend your resources. You hope for the quick win, but everyone knows that there is the possibility of a drawn-out internecine conflict.

For lawyers and litigants who really care about being principled, kind, and good people, conduct of litigation can bring a dilemma. How to engage in battle without losing what is most important in yourself?

Abraham Lincoln’s words are helpful. Even in the midst of a war that caused untold death and destruction, Lincoln counseled moving forward “with malice toward none; with charity for all.” But, he wasn’t taking a wimpy position by any means. In the same sentence, he urged his listeners not to give up the fight -- “with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in.”

And, so we litigate. Without malice, and without losing our sense of decency, we can still strive to prove our cases, to finish our work, and to work for the result we think is right. I’m going to try to litigate like Lincoln.

Happy President’s Day.

Posted by Tiffanie Benfer at 07:29 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

Two weeks ago the Third Circuit Court of Appeals in Eshelman v. Agere Systems ruled that prevailing Plaintiffs in employment discrimination cases are entitled to be made whole for injuries caused by employer discrimination.

Eshelman argued that the taxes she would have to pay on the lump sum award of back pay would be higher than what she would have had to pay in the normal course of her employment had she not been discriminated against. In some cases, a lump sum payment award places the employee in a higher tax bracket for that year. A straight award of back pay would therefore, not make the employee “whole” for the damages incurred as a result of the employer’s discrimination.

Eshelman asserted that an additional monetary award was warranted to offset the negative tax consequences of the back pay award she received in her favorable finding. Eshelman’s argument is completely logical. To make her pay higher taxes on income she would have earned but for her employer’s discrimination would just add insult to injury.

The three judge panel agreed with Eshelman, and noted that the “chief remedial purpose of employment discrimination statutes such as the ADA is ‘to make persons whole for injuries suffered on account of unlawful employment discrimination.’” Thus, the court concluded that if the employee’s back pay judgment would cause the employee to incur additional taxes, then the employee would be entitled to additional compensation.

The courts are not in agreement that additional compensation is necessary in some instances to make the employee that endured discrimination whole again. For example: the D.C. Circuit Court in Dashnaw v. Pena rejected the idea that prevailing employee is warranted additional compensation to off set the tax implications created by an award of back pay. Employment Law attorneys routinely struggle with this issue, and would welcome a resolution by the Court. Given the split in the Appellate Courts, this issue appears to be ripe for consideration by the Supreme Court.

Posted by Tiffanie Benfer at 11:14 AM | Permalink | Comments (0) | TrackBacks (0)

Sometimes it can be penny wise and pound foolish to take action against an employee without a clear understanding of the law.

In Brown v. Nutrition Management Services Co., a decision of the Eastern District of Pennsylvania released on January 30, the court found that the company’s failure to have an attorney research the requirements of the Family and Medical Leave Act (“FMLA”) meant that the company had not acted in “good faith.” This finding cost Nutrition Management Services over $80,000 in additional liquidated damages.

The FMLA provides that an employee whose employment is terminated in violation of the FMLA is entitled to lost wages, interest, and – if the employer has not acted in good faith – liquidated damages equal to the amount of lost wages. In other words, if the employer cannot show that it acted in good faith, the employee will receive double the lost wages.

In Brown v. Nutrition Management Services Co, Melissa Brown was the food service director for a nursing home. When the nursing home contracted with Nutrition Management Services to manage food services, she continued on in her job with Nutrition Management Services as her new employer. She was fired after announcing her pregnancy, and brought suit alleging that her employer had interfered with her right to take leave under the FMLA. (This raises an obvious question of why she did not sue for Pregnancy Discrimination under the Pregnancy Discrimination Act. My guess is that she missed the PDA's very short statute of limitations, but that she was able to bring an FMLA claim under its longer 2 year statute of limitations.)

Nutrition Management Services’ director of HR was also an attorney. He came to the conclusion that Ms. Brown hadn’t worked for the company long enough to qualify for FMLA leave. However, he did not specifically research the issue of whether her previous employment should count toward the time requirements of the FMLA, nor did the company hire outside counsel to look at this issue.

This failure to do basic legal research led the court to conclude that the termination of Ms. Brown’s employment was not in good faith and to impose liquidated damages in excess of 80 grand. Ouch.

Posted by Tiffanie Benfer at 12:05 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

In 2008, the Third Circuit Court of Appeals, in a case of first impression, considered whether the Pregnancy Discrimination Act (PDA) recognizes a claim for discrimination based on having an abortion. The Court concluded in Doe v. CARS Protection Plus Inc. that the PDA prohibits employers from discriminating against women who have had an abortion. http://law.lexisnexis.com/practiceareas/Featured-Content/Labor--Employment/Free-Download-Mealeys-Litigation-Report-Employment-Law

The court noted that the PDA requires that women affected by pregnancy, childbirth, or “related medical conditions” be afforded the same treatment as other employees in the workplace. The Court concluded that an abortion falls within “related medical conditions” and therefore, affords a female employee who has had an abortion the same protection as a pregnant female employee.

In order to establish a prima facie case of discrimination under PDA, the female employee in Doe v CARS, had to establish: (1) she was pregnant (2) her employer knew she was pregnant (3) she was qualified for the job (4) and suffered an adverse employment action. Additionally, the female employee had to show that there was “some nexus between her pregnancy and the adverse employment action.” Some of the evidence presented by the female employee included: the company’s less than compassionate leave policy, separate set of vacation and sick leave rules for each employee, and the vice president’s comment having an abortion meant “she didn’t want to take responsibility.” The court concluded that the evidence presented created a factual dispute sufficient to defeat summary judgment.

On January 22, 1973, the Supreme Court, in the landmark case Roe v. Wade, affirmed a woman’s right to choose to terminate her pregnancy. The Third Circuit Court of Appeals, which has jurisdiction over appeals from the federal court of Pennsylvania and New Jersey, female employees in PA and NJ, has made clear that women cannot be discriminated against in the work place because they have had an abortion.

Posted by Tiffanie Benfer at 09:41 AM | Permalink | Comments (0) | TrackBacks (0)

It isn’t a newsflash to those of us who regularly deal with the EEOC: the federal agency charged with protecting Americans from discrimination is overworked, with a tremendous backlog of cases. The Washington Post reported Monday that because of increased claims and decrease in staff, the case backlog is now at 73,951 – up 35 % from a backlog of 54,970 a year ago.

http://www.washingtonpost.com/wp-dyn/content/article/2009/02/02/AR2009020202452.html

This means that more and more cases are languishing in the EEOC. That’s a problem when it comes to getting to the truth behind a claim, because witnesses move away or forget what happened. In this climate, it is essential for both employees and employers to obtain independent legal counsel to move a case along, to secure witness statements, to conduct investigations, and -- most importantly -- to frame the issues for an overworked investigator.

The Washington Post also reported that the EEOC is lowering its own goals for timeliness. Fewer than half of cases are resolved within 180 days and the EEOC's new target compliance rate for completion within that time has been reduced from 72 % to 48 %. As the old saying goes, “Justice delayed is justice denied.”

Many people file claims with the EEOC without an attorney. Those unrepresented claimants are competing with dozens of other claimants for the attention of the investigator assigned to their case. The overload at the EEOC means that without the squeaky wheel of a lawyer to move an investigation along, those unrepresented claimants are less likely to see a meaningful inquiry into their cases. It seems that more cases are being released by the EEOC with no investigation at all. This isn't the fault of the investigators-- it is just the reality of an overburdened system.

Employers also benefit from representation by counsel when dealing with harried EEOC investigators. In a time when investigators are too busy to do extensive independent investigation, a well written response by an employer is all the more likely to quell an investigator’s enthusiasm for pursuing a claim.

The EEOC overload means that it is more important than ever for both employers and employees to work with attorneys who know their way around the EEOC.

Posted by Tiffanie Benfer at 03:34 PM | Permalink | Comments (0) | TrackBacks (0)

What kind of legal advice did the Philadelphia Fire Department rely on when it instituted a policy of not hiring fire fighters over the age of 40? Seven applicants proved that they were highly qualified and could pass the physical test, but they were still turned down solely because of age. I’m gratified, but not surprised, that the Pennsylvania Human Rights Commission (PHRC) found last week that the policy violates the state prohibition of age discrimination.

Here's a link to the story in the Philadelphia Inquirer.

http://www.philly.com/philly/news/local/38741837.html

Certainly, the Fire Department may institute job qualifications that are reasonably tied to the job requirements. And it may be that some or even many 40-something applicants will not be able to pass the physical exam. But, the PHRC found that age cannot be used as a proxy for those requirements.

The case involved seven job applicants over the age of 40 who were not permitted by the Fire Department to take the physical test because of their age. All seven took the test on their own and passed it. One of the seven just returned from a tour of duty in Iraq, where he was required to carry 140 pounds of equipment in 120-degree heat.

The Philadelphia Fire Department is, it seems, unrepentant. Fire Commissioner Lloyd Ayers said that the city was considering an appeal. He was quoted in the Philadelphia Inquirer as saying that “One of the things that we’re sure of is that this is a job for young folks. It’s not a job for the aged.” (side commentary: “aged”?? you’re talking about 40 year olds! I'm feeling personally insulted by THAT characterization!)

It seems the Fire Department still hasn’t learned the basic lesson of employment discrimination law: it is always a mistake -- not to mention an invitation to liability -- to use the stereotyped qualities of a class of people as proxy for the real qualities you are looking for in an employee. That thinking went out with Archie Bunker. (Remember? He wanted a Jewish accountant because they’re good with money…)

So, Philadelphia. We certainly want firefighters who have the physical ability to do the job. But, if you’ve ever seen a crowd of teenaged couch potatoes playing video games, you’ll know that not all young people will qualify. Equally clear, there are plenty of people over 40 who have what it takes. Don’t appeal this. Give them a chance.

Posted by Tiffanie Benfer at 10:40 AM | Permalink | Comments (0) | TrackBacks (0)