Tag: labor

Supreme Court To Consider Employers’ Arguments Regarding Contraceptive Mandate

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The United States Supreme Court will revisit the Affordable Care Act (“ACA”)requirement that most employers provide contraceptive coverage in employee health insurance plans. On November 26, 2013, the Court accepted two cases which center on the issue, each of which resulted in a different outcome. The ACA currently provides an exemption to certain non-profit religious organizations, but there is no such exemption for private employers.

The Supreme Court will now consider whether private companies should be able to refuse to provide employees with contraception coverage under their health plans on the basis of religion. Further, the Supreme Court may consider whether for-profit corporations may validly claim protection under freedom of religion.

In Sebelius v. Hobby Lobby Stores, Inc.[1], the U.S. Court of Appeals for the 10th Circuit ruled that a requirement which forced Hobby Lobby to comply with the contraception coverage mandate violated the Religious Freedom Restoration Act, which protects religious freedom. Hobby Lobby is owned by David and Barbara Green, who have stated that they strive to run their company in accordance with their Christian beliefs. The Greens have no objection to preventive contraception, but only medication which may prevent human embryos from being implanted in the womb (i.e., “the morning-after pill”).

The 10th Circuit Appeals Court ruled in favor of Hobby Lobby based upon its  decision in a previous case, Citizens United v. Federal Election Commission[2], which held that corporations hold political speech rights akin to individuals. Taking this reasoning further, if a corporation can have political speech rights, then it should also have protection for its religious expression, according to the Court.

In Conestoga Wood Specialties v. Sebelius[3], the U.S. Court of Appeals for the 3rd Circuit viewed the issue differently. The Court upheld the contraception coverage mandate based upon what it perceived as a “total absence of case law” to support any argument that corporations are guaranteed religious protection.

According to the ACA, contraceptive coverage provided by employers’ group health insurance plans is “lawful and essential” to women’s health; however, certain businesses assert that their religious liberty is more important. Ultimately, the United States Supreme Court will cast the deciding vote.

[1] Sebelius v. Hobby Lobby Stores, Inc., 723 F.3d 1114 (10th Cir. 2013).

[2] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[3] Conestoga Woods Specialties v. Sebelius, 724 F.3d 377 (3d Cir. 2013).

 

Article by:

Brittany Blackburn Koch

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC

 

Holiday Warning Update: Cut Sexual Harassment From Your Holiday Party Invitation List (seriously)

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OK, we admit it is somewhat cliché for employment lawyers to circulate client alerts every December warning about the dangers lurking at company holiday parties. But when real-life examples show just how expensive claims arising from these events can be, we would be remiss not to issue yet another such alert.

Last December, we issued an alert concerning a federal district court’s refusal to dismiss a holiday party related sexual harassment lawsuit filed against an employer,Shiner v. State University of New York at Buffalo (Case No. 11-CV-01024).

The case finally settled in August 2013, with the employer paying the plaintiff a whopping $255,000.

The plaintiff, Leslie Shiner, was a clerk at the University at Buffalo Dental School. She alleged that she had not wanted to attend the school’s annual holiday party because the conduct at previous events made her uncomfortable. However, a supervisor encouraged her to attend the party, which was held at a local bar. During the party, an associate dean, with supervisory authority over the plaintiff, allegedly made sexual advances toward her that included fondling her, putting his tongue in her ear and pulling her onto his lap. Another department official with supervisory authority allegedly cheered him on.

In early 2012, the plaintiff filed claims of sexual harassment under state and federal anti-discrimination laws, as well common law claims of assault and battery. In November 2012, as we wrote last year, the judge denied the defendant-employer’s motion to dismiss and allowed the case to proceed. After months of discovery and over a year and a half after the plaintiff filed her lawsuit, her employer ultimately agreed to pay her $255,000 to settle her claims. That amount obviously does not include the attorneys’ fees expended by the employer during a protracted time period of motion practice and discovery. Not including the inconveniences to the employer, the total out-of-pocket cost of the case to the employer likely exceeded $350,000 or $400,000.

The lesson for all employers is that the lighthearted, and sometimes drunken, atmosphere at office holiday parties does not equate to a free pass for unwanted touching, lewd comments and other types of inappropriate behavior that otherwise would not be tolerated. As the University of Buffalo Dental School eventually had to recognize when it agreed to settlement, employers who fail to protect themselves can be held liable for workers’ conduct that might easily get out of hand at festive events particularly when there is drinking.

The following are examples of ways employers can reduce the threat of dangerous misbehavior:

  • Remind employees prior to the event that the company’s code of conduct remains in effect during the event
  • Establish procedures in advance to handle any inappropriate behavior that might occur
  • Limit the amount of drinking and provide taxis or other safe transportation home to employees who may be intoxicated

If an employee does come to you with a sexual harassment complaint, please consider it seriously and take prompt action as necessary to investigate and stop the harassment.

 

Article by:

Michael B. Kass

Of:

Armstrong Teasdale

Supreme Court Declines Review of Intern Compensability Issue

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While the compensability of time spent in internship programs continues to be an hotly contested litigation issue, the United States Supreme Court has declined an opportunity to provide clarity in this area, denying certiorari to a Florida medical billing intern whose claim was rejected last year by the Eleventh Circuit.  Kaplan v. Code Blue Billing & Coding, Inc., 2013 U.S. LEXIS 8046 (U.S. 2013).

Perhaps multiple requests for high court review of an appellate decision will be necessary before the Supreme Court addresses the status of interns under the FLSA, as was required before the Court accepted review of the exempt status of pharmaceutical sales representatives.

Article by:

Noel P. Tripp

Of:

Jackson Lewis P.C.

The Christmas Conundrum, continued

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Last week we discussed the basic framework for providing employees with days off during recognized religious holidays.  A related issue commonly presented during the holiday season is whether employees must be paid for their time off.

While an employer may have to give an employee time off in order to observe a religious holiday in accordance with Title VII of the Civil Rights Act, the “reasonable accommodation” does not have to be accompanied by pay.  Although it may not be a popular decision, denying paid time off is perfectly acceptable when it comes to non-exempt (hourly) employees. Generally speaking, an employer is only required to pay hourly employees for time actually worked. For exempt employees (generally, salaried) who are given time off, the full weekly salary must be paid if they worked hours during the week in which the holiday falls. As always, a contract or collective bargaining agreement can create an affirmative obligation to provide paid time off.

Notwithstanding the foregoing, private employers or employees engaging in work with the federal government should be conscious of two possible exceptions to their paid time off rules.  The federal government provides its employees with paid time off on several recognized holidays and, in addition, often provides overtime pay to those employees who must work during the holidays. Although this is not legally mandated for private employers, persons who work under a government service contract subject to the McNamara O’Hara Service Contract Act and persons who work under a government labor contract subject to the Davis-Bacon and Related Acts must receive holiday and vacation benefits. The exact terms of these benefits depend on worker classification and contract.

Always remember, offering paid time off around the holidays is a gesture of good will. Regardless of an employer’s legal obligations, offering paid time off can go a long way in making the holidays a happier time for employees.

Article by:

W. Chapman Hopkins

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC

The Christmas Conundrum Re: Employee Time Off

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The holidays are a joyous time of year, but many employers face the season with a certain sense of trepidation as their employees inevitably request time off work.  As the holiday season kicks into full gear, now is a good time for employers to refresh themselves on basic guidelines for granting and denying employees’ vacation requests.

As a starting point, the availability of time off is typically dependent on a number of factors, including the employer’s formal policies, employment contracts, or a collective bargaining agreement. While there are no express state or federal laws requiring private employers to provide time off to celebrate holidays like Christmas, Hanukkah or Kwanzaa, Title VII of the Civil Rights Act of 1964 does require employers to ”reasonably accommodate” an employee’s religious practices, so long as it does not impose an “undue hardship” on the employer. Allowing an employee time off to observe a recognized religious holiday is normally a reasonable accommodation that should be made, if requested, without an undue burden.

Although some employers voluntarily reward employees with at least some time off during the holidays, employers must be careful to recognize that some employees may observe holidays that are not reflected in the employer’s office calendar. For example, if employees are given time off for Christmas day but not for Ramadan, employees observing the Muslim holiday may claim discrimination. Such situations can typically be avoided by utilizing “floating holidays” which allow time off for religious days that do not appear on a company’s official schedule. In addition, employers can include in the company policy that any holiday not appearing on the calendar can be requested and granted subject to review.

Article by:

W. Chapman Hopkins

Of:

McBrayer, McGinnis, Leslie and Kirkland, PLLC