Transcript Document

AVOIDING MISTAKES THAT MAKE AN
EMPLOYEE’S LAWYER SMILE :)
Benjamin H. Yormak, Esq.
Yormak Employment & Disability Law
9990 Coconut Road
Bonita Springs, Florida 34135
[email protected]
Telephone: 239.985.9691
www.yormaklaw.com
April 8, 2015
What will generally make me smile?
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My Family;
The State of Maine;
My New England sports teams;
Adverse employment actions;
Statutorily protected expression;
Close temporal proximity;
Causal connections;
Misclassifications;
Direct evidence (a Plaintiff’s
lawyer has dreams too…)
&
“At Will” Employment
GENERAL RULE: any employee may be discharged by the
employer, or may leave the job, for any reason whatsoever,
or for no reason. In other words, an employer in Florida
may hire and fire any employee at any time for any reason.
It doesn’t matter if there is no reason, a bad reason, a good
reason, or just the result of a whimsical decision. Likewise,
the employee is free to quit a job at any time without any
reason and without any notice.
BUT Don’t Believe Everything
You Hear: “At-Will” Does NOT
Mean Carte Blanche to
Terminate Problem Employees!
Why You Do Not Want Your Employee To Call Someone Like Me:
We Look at the Employee’s Whole Employment!
NEW CLIENT QUESTIONNAIRE
Name:
Address:
Phone Number:
Email:
Age:
DOB:
Employer:
Number of Employees (in entire company):
Position Held:
Rate of Pay:
Hourly: Y / N
Salary: Y / N
Paid OT: Y / N
Employment Start Date:
Any Write-ups or Discipline: Y / N
Raises Rec’d: Y / N
Termination/Resignation Date:
Reason Given for Termination/Resignation:
Real Reason for Termination/Resignation:
Do You Feel Your Separation From Employment Is Based On (select all that apply):
Race:
_____
Gender: _____ Sexual Harassment: _____ Medical Leave: _____
Disability: _____ Age: _____ National Origin: _____ Religion: _____ Retaliation: _____
Pregnancy: _____ Unpaid OT: _____ Whistleblower: _____
Does your Employer receive any Federal or State funds? Y / N
Filed for Unemployment: Y/N
Filed for Bankruptcy: Y/N
Filed for Disability Benefits: Y/N
Sticks and Stones May Break Your Bones… But
Retaliation Will Come Back to Bite You!
So What is Retaliation?
EEOC Definition: “An adverse action is an action
taken to try to keep someone from opposing a
discriminatory practice, or from participating in
an employment discrimination proceeding.”
Examples of adverse actions include:
a) employment actions such as termination, refusal to hire, and denial of promotion,
b) other actions affecting employment such as threats, unjustified negative
evaluations, unjustified negative references, or increased surveillance, and;
c) any other action such as an assault or unfounded civil or criminal charges that are
likely to deter reasonable people from pursuing their rights.
**Even if the prior protected activity alleged wrongdoing by a different employer,
retaliatory adverse actions are unlawful. For example, it is unlawful for a worker's
current employer to retaliate against him for pursuing an EEO charge against a former
employer.**
While YOU may think terminating a complaining
employee is “solving the problem” or “returning
harmony to the workplace”… Do you think that the
employee sees it that way?
FACT: Almost every EEOC
Charge or lawsuit I file
ends up having a
retaliation component!
Another fact: An employee does not have to complain
about behavior that rises to the level of an independent
cause of action and does not even have to be right about
the facts they complain of in order to have engaged in
protected expression!
… and I can argue that just about anything is protected
expression so long as it even remotely concerns a law,
rule or regulation!
The Employment Law Trinity:
The Intersection of the ADA, FMLA and
Worker’s Compensation
3 Statutes for the Savvy Employee’s Lawyer to Choose From!
The ADAAA- Are you Covered?
• ADAAA prohibits all employers with 15 or more employees from
discriminating against qualified disabled individuals with regard to
any term, condition or privilege of employment.
• ADAAA protects any qualified individual with a disability, which
means an individual with a disability who, with or without
reasonable accommodation, can perform the “essential functions”
of the employment held or desired.
• ADAAA also protects against associational discrimination for
individuals known to be associated with disabled people. Stansberry
v. Air Wisconsin Airlines Corp., 651 F.3d 482 (6th Cir. 2011)
NOTE for state employers: ADAAA not applicable to state government.
Board of Trustees of University of Alabama v. Garrett, 531 U.S. 536,
368 (2001)(somehow Congress failed to properly abrogate sovereign
immunity under the ADAAA… “close enough for government work”
rationale has not passed muster in Federal Court!)
ADAAA- Is Your Employee Disabled?
• The Americans with Disabilities Act Amendments Act of
2008 (“ADAAA”) was signed on September 25, 2008, with
the express intent of broadening coverage under the
ADA.
• The term “disability” means, “with respect to an
individual– (A) a physical or mental impairment that
substantially limits one or more major life activities of
such individual; (B) a record of
• such an impairment; or (C) being
regarded as having such an
impairment. An individual only has
to meet one of the three prongs of
the definition of “disability.”
ADAAA- How Can That Darn Employee
Actually Be Disabled?!
• The ADAAA expands the definition of “major life activities” by including
non-exhaustive lists of activities such as walking, as well as activities that
have not necessarily been recognized as major life activities, such as
reading, bending, and communicating; and major bodily functions (e.g.,
“functions of the immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions”).
– So what does this mean in reality? Pretty much anyone that comes into
my office has a disability- that means, I can likely get just about any
employee of yours to be covered by the ADAAA!
• But the employee must still be able to perform the essential functions of
their position with or without a reasonable accommodation.
• That means that defining the “essential functions” of jobs/positions is key.
Be sloppy or general and I can pick it apart.
The ADAAA- Who is a “Qualified
Individual” Anyway?
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That can be about as easy to decipher as who a “reasonable person” is…
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A “qualified individual” with a disability is an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment position that the individual holds
or desires.
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Courts make a two-part inquiry in determining whether a plaintiff is a “qualified individual.”
– First, an individual must satisfy the employer’s legitimate prerequisites for the position, such as
possessing the appropriate educational background, employment experience, skills, and licenses.
Second, the individual must be able to perform the position’s essential functions with or without an
accommodation. Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 863-65 (7th Cir. 2005)
– A job function is essential if (i) the position exists to perform that function; (ii) few employees are
available to perform that function, or (iii) the function is highly specialized and the employee was hired
for his or her expertise to perform that function. Essential job functions may include things such as the
ability to work overtime under certain circumstances. See, e.g., EEOC v. AT&T Mobility Servs. LLC, 2011
WL 6309449 (E.D. Mich. Dec. 15, 2011)
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Side Note: The fact that an individual has asserted in an application for Social Security disability benefits
that she is disabled from engaging in gainful employment is not an automatic bar to an ADA claim, because
the Social Security definition of disability does not take into account the possibility of a reasonable
accommodation which would allow the individual to work. Cleveland v. Policy Management Systems Corp.,
526 U.S. 795, 803 (1999).
The ADAAA & Reasonable AccommodationWe Gotta Do What For this Clown?!
• Reasonable Accommodation defined as:
– “making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities” and;
– “job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications
of examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.”
Yup, You Probably Do Have to Do
These Things for “That Clown”…
- Work schedule adjustments (start times)
- Telecommuting
- Medication breaks
- Reassignment to an open position (applies only to employees, not applicants)
- Unpaid leave
- Unpaid leave may be an appropriate accommodation when an individual expects
to return to work after getting treatment for a disability, recovering from an
illness, or taking some other action in connection with his/her disability. See, e.g.,
Walsh v. United Parcel Serv., 201 F.3d 718 (6th Cir. 2000)
- Leaves of up to twelve weeks are generally considered reasonable. Smith v.
Diffee Ford-Lincoln-Mercury, 298 F.3d 955 (10th Cir. 2002)
- courts generally agree that leaves extending beyond one year are not required,
although they will still make a fact specific inquiry as to reasonableness.
(Markwart v. UPS)
- Indefinite leave is not required. “[A] request for indefinite leave cannot
constitute ‘reasonable’ accommodation” because such a request “does not allow
the employee to perform the essential functions of the job in the near future.”
Cisneros v. Wilson, 226 F.3d 1113 (10th Cir. 2000)
- Light Duty is not required under the ADA.
BUT… what if the disability involves a workplace injury?
Oh C’mon! We Don’t Have
to Do THAT Do we???
• An accommodation is not required where it would
cause “undue hardship” to the employer.
BUT:
1.
Don’t think that an inconvenience is an unreasonable hardship.
If you don't work with my client and behave in an authoritarian
manner, this an almost certain way to become involved in a lawsuit
because…
2. An employee has a duty to request an accommodation, which then triggers
the employer’s obligation to enter into an interactive process to determine a
reasonable accommodation.
3. And beware: **even where the employee has not made a request, the
employer may still have an obligation to engage in an interactive process if the
employer knows of an employee’s disability and/or need for accommodation or
the disability affects the employee’s ability to request an accommodation.** See,
e.g., Stephenson v. United Airlines, 2001 WL 580459 (9th Cir. May 30, 2001)
Worker’s Compensation Interplay
• And if the employee’s injury/disability is work
related…?
– Employer must provide light duty to an employee
with a worker’s compensation claim if such light
duty is available.
– Employer does not need to create light duty if
none is available.
So the Employee Needs FMLA Leave
too?
Your first thoughts might be…
Don’t be Dismissive: The FMLA Can
Apply too!
• Coverage Generally:
– It doesn't matter if it is a disability or a workplace
injury!
– The FMLA likely applies to you as a Covered
Employer if you have 50 or more employees.
– The FMLA applies to a Covered Employee if they
have had 12 months of service, worked 1,250
hours and the Employee works within 75 miles of
where at least 50 employees of employer.
What Can Entitle an Employee to
FMLA Leave
“Serious health condition” of employee
or close family member- this does not have to be a disability
under the ADAAA or a workplace injury in order to be covered.
Examples of Situations That Should
Trigger FMLA Notices:
• An overnight stay in a hospital or other medical care facility;
• Conditions that incapacitate the employee or their close family
member (for example, unable to work or attend school) for more
than three consecutive days and have ongoing medical treatment
(either multiple appointments with a health care provider, or a
single appointment and follow-up care such as prescription
medication);
• Chronic conditions that cause occasional periods when you or your
family member are incapacitated and require treatment by a health
care provider at least twice a year; and
• Pregnancy (including prenatal medical appointments, incapacity
due to morning sickness, and medically required bed rest).
FMLA- They Get HOW
MUCH TIME OFF?!
- Regular employees can take up to 12 weeks of unpaid FMLA;
But if the leave is regarding care for a service member, they can take up to 26 weeks!
Don’t forget: Intermittent leave is available too.
Calculating intermittent leave time:
- a week is measured by the employee’s normal workweek (thus, a full-time
employee who normally works a five- day/week is entitled to 60 days of leave);
- a day is measured by an employee’s normal workday (thus, an employee who
normally works 8-hour days will be charged with one day after an 8-hour leave)
- if the employee’s schedule varies, a “normal workweek” is the average of
hours worked per week over the 12 weeks prior to the start of the FMLA leave.
Walking the Tightrope: Returning the
Employee to Work
• Employer may require certification prior to returning
employee to work.
• Any return-to-work physical must be job related (as
required under the Americans with Disabilities Act)
• Must be returned to same or similar position with same
pay
– Same benefits
– Same seniority
– Same working conditions
• Restoration under the FMLA is
contingent upon employee’s
continued ability to perform all of the
essential functions of the job.
And When You Want to Fire the Employee
Who Then Takes FMLA Leave?
• Terminating an employee who is on FMLA leave
(or who informs HR of the need for leave) is just
begging for a lawsuit;
• Remember “temporal proximity”?
– Even if you think the termination was justified, firing
an employee on leave will present the following
problems:
• A lawsuit that will not be subject to immediate dismissal (ie.
you will pay a ton of money to defend it);
• Prima facie evidence of retaliation due to close temporal
proximity, which establishes a causal connection between
the leave and the termination (ie. summary judgment is
unlikely and the case will go to trial; you will continue
hemorrhaging attorney fees), and;
• Your counsel will have a devil of a time trying to convince a
jury that the employee’s leave had nothing to do with their
termination…
Special Problems: Exhaustion of FMLA and the
Inability to Perform the Essential Functions
• The maximum annual benefit under the FMLA is twelve weeks of
unpaid leave, see 29 U.S.C. § 2612(a)(1), whereas reasonable
accommodations under the ADA can last for years on end.
Navarro v. Pfizer Corp., 261 F.3d 90, 102 (1st Cir. P.R. 2001).
• After the FMLA expires, the employee must return to work BUT
then the ADA kicks in. So while terminating an employee after 12
weeks because they cannot return to work may not violate the
FMLA, it very well could violate the ADAAA.
• Remember that interactive process? Yup, after the 12 weeks, you
will need to engage in that again to determine what reasonable
accommodations may be necessary.
• Keep in mind that additional leave may be a reasonable
accommodation. This is particularly so when the employee is
non-essential (ie. receptionist, call center staff, shift workers etc.)
Some Additional Practical Tips
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If you are not sure of what to do, an ounce of prevention is worth a pound of cure.
Call your counsel- it will be well worth the small fee to do so.
Grant the employee unpaid leave once the FMLA expires: it costs nearly nothing to
do but could cost you dearly if you deny it without being able to prove additional
leave would be an undue hardship under the ADAAA.
Don’t fire someone on FMLA leave or who has just notified you of their need for
leave- again, unpaid leave costs nearly nothing. If this is an employee you would
want to fire regardless of medical leave, don’t play into the employee’s hands by
firing them while on leave.
If you have a question about what kind of leave the employee might need, give
them FMLA forms (preferably by email so you can document that you did so)- oh,
and don’t try to use your own FMLA forms! Use the Dep’t of Labor forms that are
FREE on the DoL’s website- they have everything you need in the form already
done for you.
Document, document, document! Document everything, especially anything to do
with granting reasonable accommodation or FMLA leave.
And the more you document poor performance and/or misconduct, the tougher it
is for an employee to prove pretext (ie. that the reason you fired them was actually
an illegal reason!).
– “What was that? No prior discipline at all? Great performance review? Terminated suddenly?
Helloooooooo lawsuit!”
FLSA Issues: W2 or 1099?
What is an Independent Contractor Anyway?
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Economic Realities Test
The extent to which the worker's services are an integral part of the employer's business
(examples: Does the worker play an integral role in the business by performing the
primary type of work that the employer performs for his customers or clients? Does the
worker perform a discrete job that is one part of the business' overall process of
production? Does the worker supervise any of the company's employees?);
The permanency of the relationship (example: How long has the worker worked for the
same company?);
The amount of the worker's investment in facilities and equipment (examples: Is the
worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use
his or her own tools or equipment?);
The nature and degree of control by the principal (examples: Who decides on what
hours to be worked? Who is responsible for quality control? Does the worker work for
any other company(s)? Who sets the pay rate?);
The worker's opportunities for profit and loss (examples: Did the worker make any
investments such as insurance or bonding? Can the worker earn a profit by performing
the job more efficiently or exercising managerial skill or suffer a loss of capital
investment?); and
The level of skill required in performing the job and the amount of initiative, judgment,
or foresight in open market competition with others required for the success of the
claimed independent enterprise (examples: Does the worker perform routine tasks
requiring little training? Does the worker advertise independently via yellow pages,
business cards, etc.? Does the worker have a separate business site?).
Special FLSA IC Problems
My Favorite!
Requiring independent contractors to sign noncompetes may contribute to a finding that they
were misclassified employees entitled to
overtime!
– Not only that, this misclassification could expose
the Employer to laws like the ADA, FMLA, ADEA,
Title VII, FCRA, NLRA, OSHA, Florida’s
Whistleblower Statutes, False Claims Act, in
addition to IRS problems regarding payroll taxes.
• In Perez v. Super Maid, LLC, No. 11-C-07485 (N.D. Ill.
July 14, 2014), the court granted a motion for summary
judgment by the U.S. Department of Labor alleging
that Super Maid violated the Fair Labor Standards Act
(FLSA) by treating its maids as independent
contractors. The court entered judgment against the
defendants in the amount of $184,505.26 and issued
an injunction prohibiting defendants from violating the
FLSA in the future.
– The Court focused on the Employer’s requirement that
applicants for jobs with Super Maid were required to sign a
three-year non-compete prohibiting them from accepting
direct employment with any of Super Maid’s customers.
– The Court noted that the notion that employers could
designate maids as independent contractors – who would
normally be free to utilize their skills in an open market –
while simultaneously restricting that very ability with a
non-compete, had been rejected.
An Emerging Issue: Avoiding Legal
Penalties with LGBT Issues
Sexuality is NOT a Protected Class…
• State and federal laws – including Title VII of the
Civil Rights Act of 1964 (Title VII) – prohibit
discrimination in employment decisions like
hiring and firing based on race, religion, color,
sex, and national origin.
• While Title VII doesn’t list sexual orientation as a
protected class, an increasing number of local
and state governments are passing laws and
ordinances that protect homosexuals from
workplace discrimination and harassment.
Interesting Statistics
1.
In states that have antidiscrimination policies in place,
LGBT complaints are equivalent
to the number of complaints
filed based on sex and fewer
than the number of complaints
filed based on race.
2.
The Williams Institute estimates
the number of LGBT employees
as follows: 7 million private
sector employees, 1 million
state and local employees, and
200,000 employees of the
federal government.
Sexuality In Hiring
- One source of evidence for hiring discrimination against openly gay men comes
from a field experiment that sent two fictitious but realistic resumes to roughly
1,700 entry-level job openings.
- The two resumes were very similar in terms of the applicant's qualifications, but
one resume for each opening mentioned that the applicant had been part of a
gay organization in college.
- The results showed that applicants without the gay signal had an 11.5 percent
chance of being called for an interview; openly gay applicants had only a 7.2
percent chance. The callback gap varied widely according to the location of the
job. Most of the overall gap detected in the study was driven by the Southern and
Midwestern states in the sample – Texas, Florida, and Ohio.
- The Western and Northeastern states in the sample (California, Nevada,
Pennsylvania, and New York) had only small and statistically insignificant callback
gaps. Tilcsik, A. (2011). Pride and prejudice: Employment discrimination against
openly gay men in the United States. American Journal of Sociology, 117, 586–
626.
Obama’s Executive Order
• On July 21, 2014, President Obama expanded antidiscrimination protections to federal employees and
federal contractors through an executive order that
prohibits discrimination on the basis of sexual orientation
or gender identity.
• The recent executive order directs the Labor Department
to create regulations within 90 days to implement the
expanded prohibitions against gender identity and sexual
orientation discrimination. The EEOC is empowered to
create regulations governing the federal workplace
through Section 4 of Executive Order 11478.
EEOC Making Gender a Point of
Emphasis
• In Macy v. Department of Justice, EEOC Appeal No.
0120120821 (April 20, 2012), the EEOC determined that a
transgender woman who was denied employment because
she was transgender created a cause of action under the
federal workplace anti-discrimination laws. In Macy, the
Commission cited Price Waterhouse v. Hopkins in ruling that
transgender discrimination is in violation of the law because
the employer is “making a gender based evaluation” about
whether the employee’s gender conforms to their biological
sex.
• Macy also approvingly cites several circuit courts which
determined that transgender discrimination is actionable,
including Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir.
2004); Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011);
and Schwenck v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000).
EEOC Expansion Con’t
• The Commission also relied on Hopkins in permitting a
claim of harassment on the basis of sexual orientation to
proceed in Castello v. U.S. Postal Service, EEOC Request
No. 0520110649 (Dec. 20, 2011).
– EEOC determined that the alleged harasser’s comments about
the victim’s sexual orientation could be fairly read as
implicating gender stereotypes about the sexual predispositions of men.
• EEOC’s 2013-2016 Strategic Enforcement Plan expressly
includes a provision calling for the Commission to
address emerging and developing issues, including the
coverage of gay, lesbian, and transgender employees
under Title VII.
How We Craft LGBT Discrimination to Fall Within
Title VII Gender Discrimination
Legal Creativity: Making a Case for
Title VII Protections
• “Failure to conform to gender stereotypes”
• EEOC v. Boh Brothers Construction Co., No. 11-30770 (5th
Cir. Sept. 27, 2013)
– EEOC has historically paid particular interest to cases involving
gender stereotypes, with various degrees of success. As many
courts have observed, harassment based on a perceived failure
to conform with gender stereotypes is not necessarily
harassment “because of sex” under Title VII. But in a significant
win for the EEOC, the Firth Circuit recently held in Boh Brothers
Construction Co., by an en banc majority of ten judges, that
harassment based on gender-stereotypes can be actionable
harassment “because of sex” under Title VII.
The Boh Brothers Case
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An ironworker on a bridge-maintenance crew was subjected to “almost-daily verbal
and physical harassment because [he] did not conform to [the supervisor’s] view of
how a man should act.” Among other things, his supervisor: (1) ridiculed him
because he used baby wipes instead of traditional toilet paper; (2) called him “pu–
y,” “princess,” and “fa–ot”; (3) stood behind him and simulated intercourse; (4)
exposed his penis while waving and smiling; and (5) joked about forcing oral sex
upon him. As the Fifth Circuit observed, the EEOC’s evidence demonstrated the
supervisor thought the victim was not a “manly-enough man” and fell outside the
supervisor’s “manly-man stereotype.”
•
Thus, the EEOC could prove that the same-sex harassment was “because of sex” by
presenting evidence that the harassment was based on a perceived lack of
conformity with gender stereotypes.
– Notably, the EEOC was not required to show that the victim was not, in fact,
“manly.” Rather, it was enough to show that the harasser admitted his epithets
were directed at the victim’s masculinity.
A Step Backwards? The Possible & Real Effects of
Hobby Lobby in Employment Law
The Holding: Burwell v. Hobby Lobby
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The Court held that the purpose of extending rights to corporations is to protect
the rights of shareholders, officers, and employees. It said that "allowing Hobby
Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty
of the Greens and the Hahns.”
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A landmark decision by the United States Supreme Court allowing closely held forprofit corporations to be exempt from a law its owners religiously object to if
there is a less restrictive means of furthering the law's interest.
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It is the first time that the court has recognized a for-profit corporation's claim of
religious belief… but it is limited to closely held corporations.
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For such companies, the Court's conservative majority directly struck down the
contraceptive mandate, a regulation adopted by the US Department of Health and
Human Services (HHS) under the Affordable Care Act (ACA) requiring employers to
cover certain contraceptives for their female employees, by a 5-4 vote.
Special Problems When Sexuality in
Not a Protected Class
• The Family & Medical Leave Act (FMLA)
– Extends only to only a “spouse’s” serious health condition
• Federal & State Benefits/Pensions
• Full Faith & Credit Clause
– Legally married in Vermont under VT law; but not a legally
married couple in Florida?
DOMA: The Defense of Marriage Act
(1996)
DOMA: The Defense of Marriage Act
(1996)
• A federal law that allowed states to refuse to recognize
same-sex marriages granted under the laws of other
states.
• Until Section 3 of the Act was ruled unconstitutional in
2013, DOMA, in conjunction with other statutes, had
barred same-sex married couples from being recognized
as "spouses" for purposes of federal laws, effectively
barring them from receiving federal marriage benefits.
• DOMA's passage did not prevent individual states from
recognizing same-sex marriage, but it imposed
constraints on the benefits received by all legally married
same-sex couples.
Post-DOMA (Con’t)
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The Department proposes to define spouse as follows:
– Spouse, as defined in the statute, means a husband or wife. For purposes of
this definition, husband or wife refers to the other person with whom an
individual entered into marriage as defined or recognized under State law for
purposes of marriage in the State in which the marriage was entered into or, in
the case of a marriage entered into outside of any State, if the marriage is valid
in the place where entered into and could have been entered into in at least
one State.
– This definition includes an individual in a same-sex or common law marriage
that either (1) was entered into in a State that recognizes such marriages or, (2)
if entered into outside of any State, is valid in the place where entered into and
could have been entered into in at least one State.
Names Have Been Changes to Protect
the (Often Less-than) Innocent…
Fact Pattern #1: You have just been hired as the HR Manager of a
medium-sized custodial company. You employ a female, non-union
member of staff, who is an hourly employee. She has been an
exemplary employee without any discipline in her personnel file and has
a recent performance review that was above average. Her position has
a gender neutral job description, but you begin to get complaints from
this employee that her supervisor is assigning her to work the more
physically demanding tasks that he only assigns the male employees.
You see in her personnel file that she has reported this before. She also
reports that when she objected to being the only woman to be assigned
to work with me, her supervisor laughed and only increased her
demanding workload, saying “if you look like a man, I’m gonna work
you like a man.” She also produces two statements from co-workers
that appear to confirm her supervisor made this statement. While the
employee identifies as female, she does not wear make-up, dresses in
masculine attire and does not exude many (if any) feminine traits. What
issues do you see?
• Fact Pattern #2: The above employee states that she is
to her breaking point due to the anxiety and depression
caused by her boss. While she does not show up for her
shift at 7am Monday morning, you do receive a
voicemail when you get in at 9am- the employee states
that she has been in the hospital since Friday evening
and that she would not be getting out until Wednesday
afternoon. She requests that when she returns to work
on Thursday that she be transferred to the C-shift since
that crew is short-staffed at the moment. What issues
do you see?
Fact Pattern #3: You have just been hired as HR for an urgent care
facility that has received a number of complaints from female
members of staff about a physician. The complaints have all been
verbal but have ranged in severity from the male physician being
a “close talker” to him touching female staff under their scrubs.
So far, nothing has been done with these complaints, but they are
growing in number. One female staff member has even
threatened to call famed attorney Jackie Chiles. So you decide
that you need to start looking into these complaints. After looking
into the physician’s background, you make a startling discovery:
he had been transferred from one of your employer’s other
urgent care facilities in Del Boca Vista to your facility in SW Florida
because of complaints about his
inappropriate behavior. What’s more, he
had been arrested in 2007 for allegedly
drugging a nurse at happy hour, though
she later declined to press charges. This
physician, however, is the top biller the
urgent care company has and losing him
would be a big blow to the company’s
bottom line. What do you do?
Fact Pattern #4: For years, you have been HR for a company that owns
car dealerships and employs more than 250 people. One of those
employees, however, you know better than you ever cared to because
he is a “complainer” and over the years has always taken time off due to
some claimed disabilities that don’t seem to be defined. The employee
is a salesman and recently his sales have recently dipped. On Monday
morning, his boss comes into your office and tells you that the
employee collapsed on the sales floor just before closing on Friday
evening and that he was due to be in the hospital for at least a week. His
boss tells you that he will be out of work “for awhile” but that he wants
to fire him because of low sales numbers. You agree but forget to
process the termination paperwork right away.
After a week, the employee emails you to say that he is out of the
hospital but that he would be out of work 4 more weeks in a rehab
facility. Since he’d been fired, you disregard the email. When the
employee tries to return to work, you tell him that he was terminated
weeks ago due to low sales. Angry, the employee calls Pearson, Specter
and Litt, who review his separation from employment. The employee
then files for unemployment compensation and you decide to fight it on
your own- after all, the employee had low sales and pretty much just
stopped coming into work, so it’s a no-lose!
What mistakes have been made here?
QUESTIONS?
Benjamin H. Yormak, Esq.
Yormak Employment & Disability Law
9990 Coconut Road
Bonita Springs, Florida 34135
Telephone: 239.985.9691
[email protected]
www.yormaklaw.com