On March 20, the U.S. Supreme Court issued an important plurality opinion in a case affecting potentially millions of state employees and their rights under the federal FMLA.
In Coleman v. Court of Appeals of Maryland, an employee of the state court system alleged that he was terminated from his job when he requested a short medical leave for high blood pressure and diabetes. The employee sued the state for money damages.
In summary, the court held that if a state-government employee is wrongly denied leave to care for him- or herself during a serious health problem - or fired for asking or forced to quit - that employee will not be able to sue the state employer for money damages for the harm.
]]> The worker may be able to sue for an injunctive remedy like a court order to reinstate his or her job, for example, if that is appropriate. But presumably the wronged employee would not be allowed to sue for financial harm like lost wages or benefits from related job loss.The law of the land since 1993, the FMLA gives the right to employees to take up to 12 weeks of unpaid work leave to convalesce during a serious medical condition (the "self-care" provision). The same leave is allowed to care for severely ill close family members (the "family-care" provision), but the Supreme Court ruled in 2003 that in that situation, by contrast, state workers may sue for money damages.
The conflict arose because of the constitutional doctrine of state sovereign immunity - that states cannot be sued, or are immune from lawsuits for money damages.
State sovereign immunity can be set aside by Congress in particular situations and the court reasoned in Coleman that congressional findings of employers' sex discrimination in leave policies justified waiving sovereign immunity for family-care leaves, but not for self-care leaves.
Coleman was a close 5-4 decision along philosophical lines, with the four more liberal justices dissenting. They disagreed, feeling that remedying gender discrimination is a sufficient reason in self-care leave situations for overcoming sovereign immunity and allowing money suits against state employers.
Source: Reuters, "Top court rejects state damages in medical leave case," James Vicini, March 20, 2012.
]]>Nicotine use includes cigarettes, of course, but it also encompasses cigars, snuff, smokeless tobacco, nicotine gum and nicotine patches. Applicants who are offered a job will undergo drug screening that includes testing for nicotine.
In Utah and beyond, nicotine use by employees is under scrutiny as business interests are balanced against the privacy concerns of individual employees.
]]> Reasons to Ban Employee Nicotine UseRefusing to hire new employees who use tobacco is controversial. Some advocates say that employers' health care costs will be lower, and employee absenteeism will decrease. Banning use of nicotine by future employees could also encourage current employees to reconsider their own tobacco use.
The other side of the debate argues that denying employment to nicotine users is employment discrimination. Indeed, 29 states have banned employers from refusing to hire applicants based on tobacco use or smoking.
The question of whether refusal to hire nicotine users affects the rate of illness and death from tobacco and secondhand smoke has not been conclusively answered. The issue of whether smoking cessation programs would be as successful in preventing tobacco use in employees is unsettled as well.
Utah does not prevent employers from tying hiring decisions to applicants' nicotine use. It is likely that some Utah employers, especially those in the field of health care, will move toward implementing anti-nicotine hiring policies.
Potential employees who are turned down because of their use of nicotine do not have a law that directly protects them. They might, however, address the issue under laws that protect certain classes of people from employment discrimination, if such a link can be shown.
Source: U.S. News & World Report, "At More U.S. Workplaces, Smokers Need Not Apply," Mary Brophy Marcus, Jan. 13, 2012
]]>One senator voiced concern that the bill's passage would lead to legal battles about whether an employee was homosexual. A University of Utah law professor, however, has pointed out that the law would protect people who are perceived as gay, lesbian or bisexual, in addition to those who are indeed gay, lesbian or bisexual. Anyone who claimed discrimination under the law would need to show that actual or perceived protected status was present.
Numerous business leaders supported the bill, saying that Utah would become more welcoming to business if the bill became law. Utah already has laws in place that ban employment discrimination based on race, disability, religion and other traits.
]]> The bill also would have protected employees from being fired or discriminated against because of their political activity and speech. That provision was also controversial.More than a dozen local Utah governments have ordinances banning discrimination based on sexual orientation. Salt Lake City passed Utah's first local nondiscrimination ordinance in 2009. The measure was endorsed by the Church of Jesus Christ of Latter-day Saints. The church did not take a position on the most recent bill.
While some Utah legislators are strongly opposed to a statewide gay and lesbian antidiscrimination law, others are determined to introduce a bill again. If such a bill becomes law, the people it protects will have the right to demand equal treatment in the workplace, regardless of their sexual orientation.
Source: The Salt Lake Tribune, "Lawmakers scrap effort to ban anti-gay discrimination," Rosemary Winters, Feb. 3, 2012.
]]>Labor unions advocated for the change in the workers' status, arguing the exception unfairly grouped these workers in the same category as babysitters. Home health-care workers unlike babysitters provide in-home services (which include caring for wounds and assisting with physical therapy) for the elderly and disabled.
Experts say that although most home health-care workers are paid at least the minimum wage, most do not receive the time-and-a-half premium other workers receive when they work overtime. As a result, 40 percent rely on additional public assistance like food stamps and Medicaid.
According to the Salt Lake City Tribune, by 2015 a Utahn will turn 65 every 23 minutes based on state aging analysis. The services of home care workers are invaluable to those over age 65 who need daily assistance to stay in their homes. The number of elderly Americans needing home health-care services is expected to double by 2030.
]]> Wage and Hour LawsAdult workers in Utah are guaranteed the federal minimum wage of $7.25 per hour, according to the Utah Labor Commission. Employees under the age of 18 may be paid $4.25 per hour for the first 90 days of employment as a training wage. Employees who receive tips of at least $30 per month may be paid $2.13 per hour, as long as the total of the hourly wage plus tips is at least $7.25 per hour.
The Fair Labor Standards Act governs whether employees who work over 40 hours per week are entitled to overtime pay. As eligibility for overtime is complicated and full of exceptions, employees who have questions should consult a Utah employment law attorney.
Source: Salt Lake Tribune, "Utah home health-care workers may get pay guarantee," Patty Henetz, Jan. 1, 2012
]]>Under federal law, an employer cannot retaliate against an employee who files a discrimination action. The Equal Employment Opportunity Commission's (EEOC) defines workplace retaliation as when an "employer, employment agency or labor commission takes an adverse action against a covered individual because he or she engaged in a protected activity."
]]> When is a Workplace Retaliation Claim AppropriateEmployees who commence a discrimination action against their employer are protected under federal law, even if the complaint is later determined to be unfounded. Employees are also protected after they ask their employer to make reasonable disability or religious accommodations or point out unlawful discriminatory practices. In addition, federal law protects close associates of the employee, such as a spouse.
An employer many not take adverse action against an employee for bringing a discrimination claim. An adverse action, for example, is when an employer discourages an employee from filing a discrimination action through intimidation. Some other adverse actions may also include:
Before bringing concerns to an employer, it would be well advised to contact an attorney. An experienced employment law attorney can evaluate the situation, confirm a claim is valid and advise the best way to proceed.
Source: U.S. Equal Employment Opportunity Commission, "Facts About Retaliation."
]]>So how do you navigate the transition from self-employed to employer? Start by asking yourself the following questions.
]]> Is it the right time to hire?Hiring an employee costs a lot more than using contractors or interns. Not only do you have to pay salary and benefits, but you will also be responsible for taxes, unemployment, workers compensation, holidays, vacation time and other expenses.
On that same note though, you can hurt your business by waiting too long to hire. At a certain point, you will miss out on opportunities to grow if you do not have help. You do not want to be stuck on day-to-day tasks when you should be focused on expanding your business.
Your first employee will play a major role in your business. They need to be motivated, skilled and invested in your vision. They also need to be flexible and self-motivated - there's very little time for hand-holding in a start-up business.
Businesses often have the best luck finding employees if they ask their network for recommendations. Consult your board, former colleagues, mentors or trustworthy friends. Since they already know you and your business, they'll be able to recommend someone who is a good fit. After all, it's not enough for your employee to be smart - you have to actually like each other if you're going to succeed.
You need to make sure your rules and expectations are clearly communicated. Even if you only have one employee, you need to have an employee handbook. Establishing clear expectations can ward off unproductive behavior and provide guidelines if you need to terminate an underperforming employee.
You should also have your employee sign a non-compete, non-solicitation and non-disclosure agreement that will protect your trade secrets in the event your employee leaves the business.
Expanding your business is tricky and mistakes can be costly. Get the advice of an experienced business and employment law attorney who can help guide you through the process.
Source: Bloomberg Businessweek, "Before You Hire Your First Employee," Karen E. Klein, Nov. 18, 2011.
]]>This raises an important, but yet unanswered, question - who owns an employee's business-related social media contacts? If ownership is not spelled out in the employment agreement, the confusion around this issue can lead to expensive litigation.
]]> When Can Disputes Arise?Ownership disputes generally arise when an employee leaves his or her job to start a new business. The former employee may reach out to social media contacts in an attempt to build new customer or client relationships. However, many employers claim that contacts created during the course of employment actually belong to the company and therefore can't be used by a departing employee.
This issue has yet to be conclusively resolved in American courts. However, one British court recently ruled that social-media contacts belong to the employer if those contacts are customers, employees or vendors with whom the former employee did business.
That case involved a former employee of a consulting firm who left to start his own consulting business. In the course of starting his new company, the former employee reached out to LinkedIn contacts from his old job. He has now been ordered by the court to relinquish all of his LinkedIn contacts to his old employer, along with evidence showing that none of them became clients of his new firm.
Experts suggest that employees leaving to start their own companies should be proactive in addressing social media issues with their former employers. If contact usage is not spelled out in a social media policy or non-compete, non-solicitation and non-disclosure agreement, departing employees should discuss the use of social media contacts with their former boss or human resources department.
Although it may be an uncomfortable discussion, addressing social media issues head-on will help former employees avoid costly and potentially damaging litigation.
Source: Forbes, "Who Owns Your LinkedIn Contacts?" David Coursey, Nov. 3, 2011.
]]>Nancy Garon, a therapist and founder of the National Family Resilience Center and colleagues at a recent conference of fellow therapists discussed what can be done to reduce conflict and return the focus to the children during the divorce process. They noted that parents must remain focused on the needs of their children during the conflict.
]]> The Best Interests of the ChildrenThe Utah Courts are required to always keep in mind the best interests of the children when making child custody determinations. The court considers the past conduct and moral standards of each parent, which parent is likely to act in the best interests of the child and allow the child contact with the noncustodial parent and the bond between parent and child.
The Court must consider joint custody in every case. However, if the parents cannot communicate with each other it is unlikely that an equal parenting time schedule will work.
Garon recommends following these tips during a divorce to keep the focus on the needs of the children.
Parents need to maintain the focus on the needs of their children during the divorce process and must shield children from the divorce details and negativity toward the other parent.
]]>Keeping you informed about the legal process will help you make better decisions about your own business, employment law, unfair competition, divorce or family law matter. This Blog page is intended to serve as a forum for discussing case law and relevant court decisions. It will be updated from time to time with new information and topics for discussion, so please come back again to read the newest posts and comments.
Stavros Law understands the importance of personal service and responsiveness to client needs. We are interested in your input, so please send us your comments. Thank you for visiting our website. To make an appointment with one of our attorneys, please call us in Salt Lake City at 801-428-0719.
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