In an April 24, 2017 decision, the U.S. District Court for the District of Columbia denied a motion to dismiss filed by Bravo! Facility Services, Inc. (“Bravo!”) against a former employee who brought claims under the ADA, District of Columbia Human Rights Act, and the FMLA.  Bravo! asserted that the plaintiff should be barred under the doctrine of judicial estoppel from asserting her claims because she initially failed to disclose her employment discrimination claims in her chapter 7 bankruptcy case filed after her employment terminated.  The plaintiff had moved to reopen her bankruptcy case and amended her asset schedules to disclose the claims before filing suit against Bravo!  In denying Bravo!’s motion, the court distinguished these facts from other situations where a plaintiff fails to disclose a claim prior to filing suit or only after challenged by an adversary.

Continue Reading D.C. Court Rejects Judicial Estoppel Defense for Alleged Failure of Plaintiff to Schedule Employment Discrimination Claims in Bankruptcy Case

With more and more employees working off-site or from home, employers must be aware of the impact on courts’ interpretation of the FMLA’s eligibility requirements.

In June, the U.S. District Court for the Eastern District of Louisiana held in Donahoe-Bohne that the FMLA’s 50-employee threshold was met since the office to which a remote or telecommuting employee reported had at least 50 employees, even though the employee worked from home several states away.

Continue Reading Telecommuting Employees Entitled To FMLA If Office To Which They Report Meets 50-Or-More Employee Threshold

On March 17, 2016, the U.S. Court of Appeals for the Second Circuit decided Graziadio v. Culinary Institute of America, holding that sufficient evidence existed to find that the Culinary Institute of America’s (“CIA”) human resources director was an “employer” under the Family and Medical Leave Act (“FMLA”) and could therefore be held individually liable for violations of the FMLA. In reaching this decision, the court found that the economic-realities test used to analyze whether an individual is an “employer” under the Fair Labor Standards Act (“FLSA”) should also be used to determine whether an individual is an “employer” under the FMLA. The Second Circuit vacated and remanded the Southern District of New York’s summary judgment decision on the question of individual liability for further consideration under the economic-realities standard. The application of this test likely means an increased risk of individual liability for human resources directors, supervisors, and other members of management charged with violating an employee’s rights under the FMLA.

Continue Reading Second Circuit Outlines Test for Individual Liability of Human Resources Directors under the FMLA

This week, the EEOC announced that an Illinois-based packing company, Pactiv LLC, agreed to pay $1.7 million to resolve a charge alleging that the company discriminated against employees who needed time off from work for medical reasons.

According to the EEOC, the company maintained a nationwide policy that assessed “attendance points” to employees who needed time off for medical reasons. The company also allegedly failed to provide employees with intermittent and extended leave as a “reasonable accommodation” under the Americans with Disabilities Act.

Continue Reading 1.7 Million Reasons to Review Your Company’s Attendance and Leave Policies

As the national debate regarding rights for same sex couples continues, more and more states are granting marital rights to members of the same sex.  Although we are only in the second quarter of 2015, five states have either passed legislation or have high court rulings that expand the rights of same sex couples.  And, in the coming weeks, the U.S. Supreme Court will rule upon issues of marriage equality in Obergefell v. Hodges, eventually rendering a decision that may have significant impact on both federal and individual state laws.

Continue Reading The Changing Landscape of Same Sex Marriage Law

On August 9, Secretary of Labor Thomas Perez issued an internal memo calling for the implementation of the Supreme Court’s landmark decision in United States v. Windsor.  In that case, the Court held that section three of the Defense of Marriage Act (“DOMA”), which limited the definition of marriage to “a legal union between one man and one woman,” violated due process and equal protection principles embodied in the Fifth Amendment.  The internal memo stated that the Department of Labor (“DOL”) will be removing references to DOMA from its correspondence, and will be working to ensure the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (“FMLA”).

Continue Reading Department of Labor Begins Implementing Windsor

A surgeon recently brought suit against his employer, in Staveley-O’Carroll v. Penn State Milton S. Hershey Medical Center, alleging that he was fired in violation of the Family and Medical Leave Act (“FMLA”).  No. 1:13-cv-01555-YK (M.D. Pa. filed June 18, 2013). Interestingly, the surgeon is not claiming that he was entitled to, requested, or took FMLA leave.  Rather, he claims that he was retaliated against for defending his secretary’s FMLA rights.

Continue Reading Does The FMLA Protect a Supervisor’s Right To Defend a Subordinate’s Leave Of Absence?

In a landmark ruling, United States v. Windsor, the Supreme Court struck down a major provision of the Defense of Marriage Act (“DOMA”).  Since its enactment in 1996, DOMA defined “marriage” to mean “only a union between one man and one woman as a husband and wife” and “spouse” to refer “only to a person of the opposite sex who is a husband or a wife,” which, by their terms, excluded marriages of same-sex couples.  These definitions were applicable to all federal statutes, regulations, rulings and orders, including the Internal Revenue Code (the “Code”) and the Employee Retirement Income Security Act (“ERISA”). 

Continue Reading Impact On Employee Benefit Plans Of The Supreme Court’s Defense of Marriage Act Ruling

For 60 years psychiatrists and other mental health professionals have been using the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders” (DSM) as the “bible” for diagnosing mental diseases and disorders.  Health and disability insurance providers  use the DSM in deciding what conditions and treatments to cover, as do government agencies in determining eligibility for benefits and services.  These and other factors make the DSM an unusually powerful document.

The latest DSM revision (the DSM-5) is set for release later this month.   It creates several new mental disorders and broadens the definition of a number of existing ones.  These changes will affect employers in a variety of ways, from expanded protection under the ADA and FMLA to increased benefit costs.  

Continue Reading Employers Beware: Psychiatry’s Latest Diagnostic Manual (DSM-5) Creates New Mental Disorders, Expands Others

On January 14, 2013, the Department of Labor (“DOL”) issued guidance further defining the meaning of “son or daughter” within the Family and Medical Leave Act (“FMLA”).  The FMLA provides qualified employees up to 12 weeks of leave within a 12 month period to care for a son or daughter with a serious health condition.  Under certain circumstances, a son or daughter may include an individual over the age of 18, if that individual has a disability.  The DOL now clarifies, that a child over the age of 18 with a disability may qualify as a son or daughter within the FMLA, regardless of the individual’s age when the disability occurred.

Continue Reading DOL Further Expands The Definition Of Son And Daughter Within The FMLA