Protecting Employers Since 1985 | |
In this issue:
- Mask Mandate Challenge Dismissed
- Intermittent Leave and PIPs
- Accommodation Requests
- New Salary Requirements Set by USDOL
- Workplace Violence
- NLRB Rules against Walmart
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Questions? Contact John by email or at (563)333-9102 | |
Eighth Circuit Dismisses Challenge to Iowa’s Mask-Mandate Ban in Public Schools
By John D. Simmons, Esq.
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On February 27, 2024, the Eighth Circuit Court of Appeals issued an Order regarding Arc of Iowa, et. al., v. Reynolds, et. al. that reversed course on its prior decision that the plaintiffs were entitled to an injunction prohibiting enforcement of Iowa’s ban on mask-mandates in public schools. This case was originally brought by the parents of immunocompromised children (by The Arc of Iowa, an advocacy group for persons with intellectual and developmental disabilities) against Gov. Kim Reynolds, Director of Education Ann Lebo, and a number of school districts. The plaintiffs alleged the ban on mask-mandates presented them with a choice of exposing their children to extra risk from COVID exposure, or to sacrifice the quality of their children’s education by using educational alternatives.
The lawsuit was initiated in the height of the COVID-19 pandemic. The plaintiffs were initially granted a temporary restraining order (TRO) by the Southern District of Iowa on September 13, 2021, with the Court finding among other things that the plaintiffs had sufficiently demonstrated a threat of irreparable harm and that they were likely to succeed on the merits of their case.
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Recent Appellate Court Decision Provides Important Lessons On The Importance Of Tracking Intermittent FMLA Leave/How NOT To Implement A Performance Improvement Plan
By James B. Sherman, Esq.
| This week the U.S. Court of Appeals for the Seventh Circuit, in Chicago, overturned a healthcare employer’s summary judgement win in an FMLA interference and retaliation case. The case involved a managerial employee who in her employer’s view was terminated for performance – not meeting expectations – after being placed on a performance improvement plan, or “PIP.” The fired manager took a different view however, alleging that she was discharged in violation of the FMLA because her employer failed to adjust and lower its performance expectations to account for time she was away on FMLA leave. The lawsuit argued and the appellate court found, that expecting full time results from the plaintiff when she arguably worked only 80% of full time while on FMLA protected leave approximately 20% of the time, could amount to unlawful “interference” with and/or retaliation for, the plaintiff’s federally protected rights. The court’s reasoning in overturning the trial court’s decision and sending the case on for trial, holds several important lessons for all employers: | |
Questions? Contact Jim by email or at (952)746-1700 | | | |
Questions? Contact Al by email or at (262)560-9696 | |
When Is a Request for Accommodation Not a Request for Accommodation?
By Alan E. Seneczko, Esq.
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If an employee with a history of anxiety presents a list of requested actions for workplace grievances and labels it a “request for accommodation,” is it? How do you distinguish between gripes about the work environment and legitimate requests for accommodations under the ADA? In Kelly v. Town of Abingdon, 90 F.4th 158 (4th Cir. 2024), the Fourth Circuit provided some valuable insight into this issue.
In Kelly, a law firm representing a Town Manager who suffered from anxiety, depression and high blood pressure sent the Town a letter seeking changes to the “daily office environment.” It entitled the letter “Accommodations Requests” and referenced the ADA, but opened by stating that its “overall aim” was “to foster a well-running office, based on the principles of mutual respect, clear communication, and . . . well-defined roles.” The letter then listed twelve requests to further this goal, including compliance with the Code of Ethics; adherence to defined roles; an end to threats of termination; courtesy in communications; equal treatment for employees; improved gender diversity; an acknowledgment that management is a team; and the development of written policies governing workplace conduct. Significantly, the letter did not mention the Town Manager’s anxiety, depression or high blood pressure; did not explain how the proposed changes might alleviate those conditions; and did not state that it was seeking accommodations for them.
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US Department of Labor’s Final Rule on Fair Labor Standards Act on White-Collar Exemptions is Ready to Set New Salary Requirements
By Anthony J. Caruso, Jr., Esq.
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Timeline of final rule: On September 8, 2023, the US Department of Labor released its proposed rules. As such, the federal agency has a target date of April, 2024 for the enactment of the final rule.
The Proposed Rule: The salary threshold would be increased from the current $684 per week ($35,568 per year) to $1,059 per week ($55,068 per year.) depending on the earning data at the time the final rule takes effect.
Effect of an Increase in the Salary Threshold: The numbers of salaried exempt employees would decrease with an increase in the number of employees entitled to overtime.
It is anticipated that the Final Rule will be contested in the courts. Such litigation will be contentious and probably end up in the US Supreme Court.
The best practice for a company having salaried exempt employees is to monitor the US Department of Labor and the Courts for further guidance.
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Questions? Contact Tony by email or at (630)377-1554 | | | |
Questions? Contact Richard by email or at (630)377-1554 | |
Some Thoughts about Workplace Violence
By Richard H. Wessels, Esq.
| A few weeks ago I had a client call with questions about threatened workplace violence. A discharged employee was returning to the company parking lot regularly and looked pretty menacing. I gave him my advice and emailed my commentary on the subject from our newsletter. I think it gave some good advice. Click here to read the article. | |
The NLRB Accuses Walmart Of Unlawfully "Suppressing" Employee Complaints About Its COVID-19 Safety Rules, And Of Maintaining An "Illegal Rule" Barring Employees From Making Recordings In The Workplace
By James B. Sherman, Esq.
Those employers who have previously had the pleasure of “making the acquaintance” of the NLRB, probably already know that today’s NLRB is not your parents’ NLRB. Precedent that has stood for decades is being rewritten by the current Board at a frenetic pace. Case in point – a recent complaint issued by the NLRB’s Regional Office in Atlanta accuses a South Carolina Walmart store of violating federal labor law by sending an employee home for allegedly photographing a manager who was not wearing a COVID-protective safety mask at work. The complaint tells employers all they need to know about how expansively today’s NLRB interprets “protected concerted activities” under the Act. In the Board’s view employees have a federally protected right to make video and audio recordings in the workplace and to criticize their employers and managers regarding workplace issues and policies, and much more that in the past would not have been considered “protected” behavior.
This particular case involved the Walmart store’s mask requirements related to the COVID pandemic, where management is being accused of committing unfair labor practices by instructing employees not to complain in front of customers or to coworkers during work hours. The store’s policy of barring employees from making recordings in the workplace, is also a subject of the complaint. With personal cellular phones becoming more sophisticated, could it be long before employees are capable of producing academy award worthy productions, at work?
Questions? Contact Jim by email or at (952) 746-1600
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