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  • Employment Litigation in Review #3

    Since January flew by, we decided that its time to draft another Employment Litigation in Review in order to keep everyone up-to-date on a few changes in the industry.

    Federal Cell Phone Rules Compliance Guide Come into Effect

    On January 3, 2012, the new rule regarding limits on the use of cell phones by the Federal Motor Carrier Safety Administration (“FMCSA”) and the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) went into effect.  According to the rule’s summary, the purpose of the rule is to “restrict the use of hand-held mobile telephones, including hand-held cell phones, by drivers of commercial motor vehicles (CMVs) while operating in interstate commerce.”

    Drivers covered by the new rule include, “drivers of CMVs in interstate commerce, and also any drivers who operate a vehicle transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.” So, what does the new rule mean for you? If you have drivers covered under the rule, you should update your company’s policies and handbooks to reflect the new rule, as failure to adopt and enforce cell phone policies may lead to a law suit or penalties against your company.

    The New NLRB Members are Sworn In

    In New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), the Supreme Court ruled that the five-member NLRB must have at least a three-member quorum to issue regulations or decide cases in union-employer disputes. Therefore, when Craig Becker’s term expired at the end of 2011 and the Board’s membership was reduced to two people, the Board was rendered powerless to decide most issues.

    In response, on January 11, 2012, through recess appointments, President Obama chose three new NLRB members. The three new members include Sharon Block, Terence F. Flynn, and Richard F. Griffin, which brings the Board to five members for the first time since August 2010.  Stay tuned to the blog as we wait and see what cases the now full-Board will start to tackle and how it decides the issues.

    Department of Labor Proposes Rule That Extends Overtime Protection to In-Home Health Care Workers

    On December 27, 2011, the DOL proposed to revise the current Fair Labor Standards Act (“FLSA”) regulations pertaining to the exemption for companionship services and live-in domestic services by amending the regulations to modify the definitions of “domestic service employment” and “companionship services” under Section 13 of the FLSA. According to the rule’s summary, these changes are “[d]ue to significant changes in the home health care industry over the last 35 years” and because of the significant increase in the number of workers providing these services, many of which are excluded from the minimum wage and overtime protections of the FLSA under the companionship services exemption.  The comments for the Department of Labor’s (“DOL”) notice of its proposed rulemaking are due on February 27, 2012.

    Why Inform Your Employees of How Your Company is Calculating FMLA Leave? 

    Thom v. Am. Standard, Inc., No. 09-3507/350, ___ F.3d ___ (6th Cir. 2012)

    Simple: If you don’t, you may face some serious civil liability under the Family and Medical Leave Act (“FMLA”). On January 20, 2012, in Thom v. Am. Standard, Inc., the 6th Circuit reminded employers of the importance of informing their employees of how their company is calculating FMLA leave.

    Failing to inform an employee of how its medical leave is calculated was an expensive lesson for the employer, American Standard, Inc., after it terminated an employee who was employed for nearly 36 years. In this case, the employee, Thom, was injured in a non-work related matter that required surgery, and subsequently went on medical leave while he healed.  After remaining out of work for an additional month and a half beyond the date he was supposed to return, the employer terminated his employment.

    The Court held that, generally under the FMLA, “‘an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period . . . because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.’  29 U.S.C. § 2612(a)(D).  Employers, for their part, are ‘permitted to choose any one of . . . [four] methods for determining the ‘12-month period’ in which the 12 weeks of leave entitlement . . . occurs.’ 29 C.F.R. § 825.200(b).”  To establish “good faith” under the FMLA, a defendant must show that “it honestly intended to ascertain the dictates of the FMLA and to act in conformance with it.”

    When analyzing the case at hand, the 6th Circuit ruled that “employers should inform their employees in writing of which method they will use to calculate the FMLA leave year.  This standard is consistent with the principles of fairness and general clarity, and applying it, American Standard’s notice to Thom fell decidedly short.”  Thus, the court awarded $312,402.60 in damages to employee.