HIGHLIGHTS FOR THE MONTH OF APRIL 2009

By: Teresa D. Teare

RECENT DEVELOPMENTS

The General Assembly Gives Clarity To The Maryland Flexible Leave Act

Shawe Rosenthal attorneys Liz Torphy-Donzella and Fiona Ong worked this past session with the Maryland Chamber of Commerce and a coalition of employer and employee interest groups to draft legislation to clarify the Maryland Flexible Leave Act.

Enacted in 2008, the MFLA entitles employees working for companies with 15 or more employees to use any of their available accrued paid leave to care for a family member with an illness. As we explained in our 2008 E-lert on the MFLA, the original language of the statute was vague and left key terms undefined (such as whether an employee’s “child” included adult children). The clarifying legislation confirms the following:

• Employees who work in multiple states for an employer are entitled to MFLA rights only if they are primarily employed in Maryland (i.e., a majority of their work time).
• The federal Family and Medical Leave Act definitions of “child” and “parent” were adopted into the MFLA. Thus, leave may be taken to care for minor children only (unless, as under the FMLA, an adult child is incapable of self care due to physical or mental disability).
• Accrued leave means leave that is available based on hours worked or performance of service. Notably, it does not include leave programs intended to replace an employee’s income during a period of disability, such as short term disability.
• Employees are entitled to use leave to care for ill family members “under the same conditions and policy rules that would apply if the employee took leave for the employee’s own illness.” Thus, notice/call-in requirements and point systems may be applied in this context to the same degree that they apply to an employee’s use of leave for his own illness (something that was unclear before).
• The requirements that leave be both “available” to the employee and used subject to established company rules makes clear that waiting periods (such as those requiring individuals complete their introductory or probationary period before accessing accrued leave) may be applied to MFLA usage.
• While the term “illness” remains undefined by the law, it is generally understood that illness covers a broad range of ailments that would not rise to the severity level of a “serious health condition” under the FMLA.

Senator Rob Garagiola of Montgomery County was instrumental in shepherding the bill through both Chambers of the General Assembly. Passed as emergency legislation, the law will take effect immediately after the Governor signs the bill (on one of the two remaining bill-signing dates, May 7 or May 21, 2009).

The Maryland General Assembly Legislative Wrap Up

In addition to passing legislation to clarify the MFLA, the Maryland General Assembly ended its 426th Session on April 13, 2009, passing several laws affecting employers. The following bills are poised to become law:

• Workplace Fraud Act (Senate Bill 909). Initiated by the Governor, the Workplace Fraud Act imposes liability on employers in the construction and landscaping services industries for misclassifying employees as independent contractors. Shawe Rosenthal attorney Fiona Ong, who co-chairs the Employment Issues Committee for the Maryland Chamber of Commerce, worked with the Maryland Chamber of Commerce to oppose the bill. Although the bill passed, there were a number of significant amendments to the original legislation that addressed concerns expressed by the Chamber to the Maryland Secretary of Labor and Secretary of State. As passed, the legislation, among other things: establishes a presumption of employee status; gives the State Commissioner of Labor the power to investigate potential violations; permits employers to obtain a hearing if the Commissioner determines a violation has occurred; imposes penalties on employers for violations, including restitution and fines; creates a private right of action for employees who have been misclassified as independent contractors; and, requires employers to comply with new recordkeeping and notice requirements for independent contractors. Although this law applies only to the construction and landscape services industries, we anticipate attempts to expand its scope in future years.

• Unemployment Benefits For Part Time Employees (Senate Bill 270 / House Bill 310). This law makes part-time employees eligible for unemployment benefits, if the individual works predominantly throughout the year on a part-time basis for at least 20 hours per week. A part-time worker will meet the requirements of a “part-time worker” if the worker is eligible for benefits based on wages predominantly earned from part-time work; is actively seeking part-time work; is available for part-time work for at least the number of hours worked at the part-time worker’s previous employment; has no other restrictions on the part-time worker’s ability or availability to work; and is in a labor market in which a reasonable demand exists for part-time work.

• Lilly Ledbetter Civil Rights Restoration Act (Senate Bill 368 / House Bill 288). This Act brings Maryland in line with the recently enacted Federal Lilly Ledbetter Fair Pay Act (see our January 2009 E-Update). Specifically, the Bill authorizes back pay recovery for up to two (2) years preceding the filing of a complaint for alleged employment discrimination in compensation that occurred outside the statute of limitations, but was similar or related to an unlawful practice with regard to compensation discrimination occurring within the statute of limitations filing period. The Bill specifies that an unlawful employment practice with respect to discrimination in compensation occurs when: (1) a discriminatory compensation decision or practice is adopted; (2) an individual becomes subject to a discriminatory compensation decision or practice; or (3) an individual is affected by the application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting wholly or partly from the discriminatory decision or practice.

• Disability Expansion Act (Senate Bill 670 / House Bill 393). This law brings Maryland law in parity with the recently enacted ADA Amendments Act of 2008 (“ADAAA,” as described in our September 19, 2008 E-Lert). Like its federal counterpart, the Disability Expansion Act does not focus on whether the employee has a disability, but rather, whether the employer engaged in communication with the employee to see if there was an available reasonable accommodation for the employee.

While many pro-worker bills failed, they serve as a reminder of how some Maryland legislators are trying to enact onerous workplace laws. For example, proposed legislation (SB 660 / HB 16) would have required employers to provide non-working shift breaks to employees who worked at least 4 consecutive hours. Another proposed bill, HB 633, would have required employers to allow employees to use available leave to attend parent-teacher conferences. The Sexual Orientation and Gender Identity Bill (SB 566 / HB 474) sought to amend Maryland’s anti-discrimination laws to include a prohibition against discrimination based on “gender identity.” Finally, the Maryland General Assembly contemplated a Joint Resolution (SJ 5 / HJ 4) to urge the United States Congress to pass the Employee Free Choice Act, which would mandate card-check recognition and would make first contracts subject to binding arbitration on any terms on which the parties could not agree.

President Obama Will Nominate Two Democrats To The NLRB

The President announced his intention to nominate two union-side attorneys as members of the National Labor Relations Board (“NLRB” or “Board”). They are Craig Becker and Mark Pearce. The Board, which consists of five members when fully staffed, serves as a quasi-judicial body in deciding cases under the National Labor Relations Act (“NLRA”). No more than three of the five members can be from the same political party. Currently, the Board consists of Chairperson Wilma Liebman (Democrat) and Member Peter Carey Schaumber (Republican). According to the President’s announcement, Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO. Mark Gaston Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law. If these nominees are confirmed by the Senate, the NLRB will have a solid pro-labor majority for the next four years, which will mean further significant changes in the labor law landscape.

TAKE NOTE

Non-Supervisory Status of Shift Leaders. In Loparex, LLC, the NLRB held that the company’s shift leaders were not statutory supervisors under the NLRA. The employer, a manufacturer of silicon release liners and specialty papers, informed its employees designated as “shift leaders” that they were statutory supervisors and were not allowed to sign union cards or engage in other prounion activities. The shift leaders received a priority sheet at the beginning of each shift that listed the jobs to be run on each machine in order of importance and when those jobs are due. From that priority sheet, shift leaders directed crew members which machine he or she would operate during that shift. In assigning the machines, the leaders did not take into account the relative skills of his crew members. Instead, the determination was random or otherwise based on the need to finish a job. The NLRB held that the company’s shift leaders were not statutory supervisors under the NLRA because they did not possess the authority to transfer, assign, responsibly direct, or to effectively recommend rewards. The authority to effect an assignment must be independent (free of the control of others), it must involve a judgment, (forming an opinion or evaluation by discerning and comparing data), and the judgment must involve a degree of discretion (rise above the routine or clerical). The NLRB held, therefore, that the employer’s instructions forbidding prounion activity violated Section 8(a)(1) of the Act.

NLRB Elections. In DLC Corp., D/B/A Tea Party Concerts, the NLRB confirmed that it is a violation of the NLRA to pay off-duty employees to come to the workplace in order to vote in an NLRB election. The union sought to represent the employer’s stagehands, who worked primarily during the summer months. The union filed an election petition and election dates were designated. A month before the election, the employer sent a letter to all eligible voters, in which it explained some of the procedures for the upcoming election and why the employer was opposed to the union. In addition, the letter encouraged off-duty employees to come to work and vote in the election and promised that the employees would be paid for four (4) hours on that day. Ten of the fifty-six (56) off-duty employees requested and received four (4) hours’ pay for voting in the election. The union lost the election by five (5) votes. The Board held, under controlling labor law precedent, that a party engages in objectionable conduct by paying employees to attend the election unless the payment is reimbursement of actual transportation expenses. In this case, the employer explicitly offered to provide off-duty stagehands with four hours of pay in exchange for coming in to the polling location to vote. The Board held that the offer was substantial and was not linked to reimbursement for travel or other costs. Moreover, the number of employees potentially affected was not de minimis. A new election was ordered.

Religious Accommodation. In Webb v. City of Philadelphia, the Court of Appeals for the Third Circuit held that a Muslim police officer’s request to wear a headscarf while in uniform would create an undue hardship for the employer and therefore, it was not religious discrimination to deny her request. The plaintiff, a female police officer, requested permission from her commanding officer to wear a headscarf (a khimar or hijaab, a traditional head covering worn by Muslim women) while in uniform and on duty. The headscarf did not cover her face or her ears, but would cover her head and the back of her neck. The police department denied her request based on its directive outlining the appropriate uniforms and equipment to be worn by the officers. Based on the denial, the plaintiff filed a charge of religious discrimination with the EEOC and the Pennsylvania Human Relations Commission. While the matter was pending before the EEOC, the plaintiff arrived at work wearing her headscarf. She refused to remove it when requested and was sent home for failing to comply with the police department’s directive. These events were repeated over the next few days. The plaintiff was informed her conduct could lead to disciplinary action. Thereafter, she continued to report to work wearing the headscarf and was suspended for thirteen days. The Third Circuit agreed with the lower court’s holding in favor of the police department. While Title VII of the 1964 Civil Rights Act prohibits employers from discharging or disciplining an employee based on his or her religion, an employer need not accommodate the employee if it would result in an undue hardship. The police department needed to maintain the perception of impartiality of its work force. Further, uniform requirements are crucial to the safety of officers. The Court held that the City would suffer undue hardship if required to grant the plaintiff’s requested religious accommodation.

FMLA Retaliation. In Cole v. Illinois, the Court of Appeals for the Seventh Circuit held that presentation of a performance improvement plan, which included a plan to work on attendance issues, did not constitute retaliation for the exercise of the plaintiff’s FMLA rights. The plaintiff, a receptionist, had numerous complaints about her performance, including her frequent absences and personality conflicts. She was subsequently injured in a car accident and was granted FMLA leave. Prior to her return, the supervisor called the plaintiff and told her that her work was “piling up” and that she needed to return. The plaintiff obtained permission from her doctor to return to work on a part-time basis. Over the next few weeks, the plaintiff’s attendance was sporadic and unpredictable. Based in large part on her attendance issues, her supervisors created an “employee improvement plan” for her identifying three areas for improvement: attendance, attitude, and job performance. Despite being warned that failure to sign would result in termination, the plaintiff refused to sign the improvement plan, was subsequently terminated for that failure, and then brought suit against the employer arguing that she had been retaliated against for exercising her FMLA rights. The Seventh Circuit disagreed with the plaintiff and held that that the termination was not motivated by anything other than the plaintiff’s refusal to accept the improvement plan. The plaintiff also argued that the presentation of the plan, itself, constituted retaliation. The Seventh Circuit disagreed. The Court held that adopting a performance improvement plan did not constitute an adverse action that would cause a reasonable employee to forego exercising her rights under the FMLA. The Court noted that the most onerous aspect of the improvement plan was the requirement that the plaintiff submit daily and weekly schedules to her supervisors. The Court found that this requirement was not so oppressive that a reasonable employee would be discouraged from taking FMLA leave.

TOP TIP

English Only Policies Need To Be Narrowly Tailored

Blanket English-only policies often are found to be discriminatory. Case in point is the recent settlement agreement between the EEOC and an employer that enforced an English-only rule solely against Hispanics. In EEOC v. Royalwood Care Center LLC, a Spanish-speaking janitor brought a charge of discrimination against the nursing home after he had been fired for violating the company’s English-only policy. Under the employer’s policy, employees were prohibited from speaking Spanish with Spanish-speaking residents of the assisted living facilities. Further, employees were disciplined for speaking Spanish in parking lots while on breaks. The company’s policy was not enforced, however, with respect to a good portion of Filipino employees who spoke Tagalog. Instead, the company’s English-only rule was implemented essentially as a “no-Spanish” rule.

The EEOC has provided guidance on those circumstances in which an English-only rule would be justified by business reasons. While there is no precise test for making this evaluation, relevant considerations include safety concerns and communication concerns with English speaking customers. Before adopting an English-only rule, the employer should consider whether there are any alternatives to an English-only rule that would be as effective in promoting safety or efficiency. In addition, the employer should:

• Ensure that the policy on languages spoken in the workplace is applied equally to all persons regardless of national origin or language spoken.
• Revise training and other policies, especially those on discrimination, to include versions in other languages for limited-English employees.
• Provide opportunities for the claimants to obtain English proficiency training.
• Designate an area in each facility where employees may speak in languages other than English.
• Permit employees to speak their primary languages to customers or patients who speak those languages.
  

For greater clarification of any of these issues, you may contact any Shawe Rosenthal attorney.