Legal Updates

HOTTEST LEGISLATIVE, REGULATORY AND
LEGAL ISSUES FOR MARCH 2008

LEGISLATIVE AND REGULARY DEVELOPMENTS

  

 

• Some FMLA Amendments Implemented, Others Coming

 

Amendments to the Family and Medical Leave Act granting rights to family members of military personnel injured or becoming ill while in military service became effective January 28.  By these amendments, an employee with a parent, child or sibling with an injured or ill member of the military is entitled to up to 26 weeks of FMLA leave.  This is not in addition to the 12 weeks of FMLA leave that has existed since the FMLA was originally enacted.  Added to the coverage of this provision are employees who are “next of kin” to the injured service member. Personnel policies need to be amended to reflect these new rights.

Another provision of the FMLA amendments will become effective when the Department of Labor issues Regulations defining the term “qualifying exigency.”  Under this amendment, an employee with an immediate family member in the military may use up to 12 weeks of FMLA leave to deal with the “qualifying exigencies” created for the employee because of the family member’s absence.  A proposed Regulation has been drafted on this issue, but has not yet become final.

Finally, the DOL has published a broad range of proposed changes to the FMLA Regulations, based on comments received by it last year from employers, employees and organized labor.  The public comment period on all of these proposed Regulations ends on April 11, 2008.

 

• ADA Changes Being Considered by Congress

The ADA Restoration Act (H.R.3195 and S.1881) has been introduced in both houses of Congress, with the intent of expanding individuals’ rights under the ADA.  It would change the definition of a “disability” such that an employee would no longer have to prove that his/her medical or mental condition “substantially limits one or more major life activities.”  It would also bar courts from considering the effects of mitigating measures (such as eyeglasses, hearing aids or medication) in determining if an individual is disabled.  Hearings on these bills are expected to occur in the spring.

 

• Mental Health Parity Bill Passed by House

H.R. 1424, the “Paul Wellstone Mental Health and Addiction Equity Act of 2007,” has been approved by the U.S. House by a vote of 268-148.  This bill would expand the Mental Health Parity Act of 1996 by establishing parity between coverage for mental illnesses and substance abuse and coverage for medical and surgical benefits.  It would also impose coverage mandates by requiring coverage for all conditions contained in the Diagnostic and Statistical Manual of Mental Disorders.  The provisions of the Genetic Information Non-Discrimination Act have also been incorporated into this bill.  A less expansive version of this bill has been introduced in the Senate (S. 558).

 

 

RECENT CASES OF INTEREST

 

• Supreme Court Rules on “Me Too” Evidence

In a case under the Age Discrimination in Employment Act (“ADEA”), the U.S. Supreme Court dealt with a case involving a RIF, in which the plaintiff claimed she was laid off because of her age.  She sought to introduce the testimony of other over-40 employees who were also laid off, but who had different supervisors, to show that the alleged age discrimination was widespread.  Such “me too” evidence, according to the Court, is neither per se admissible nor per se inadmissible.  Its admissibility depends on a variety of factors that a court must consider.   The issue comes down to whether the other employees are “similarly situated” to the plaintiff so that their testimony is relevant to the plaintiff’s case.  The case is Sprint/United Management Company v Mendelsohn.

 

• ERISA Fiduciary Duties Relative to Defined Contribution Plans Decided

The U.S. Supreme Court also issued a decision imposing fiduciary liability on employers for failing to follow investment directions given by plan participants, resulting in financial losses for the individual.  In LaRue v DeWolff, Boberg & Associates, Inc., 128 S Ct 1020 (2008), an employee twice told his employer, which was acting as the plan administrator to change his investment allocation.  It failed to do so, the result of which was a $150,000 loss for the employee, who sued the employer under ERISA for breach of its fiduciary duties.  The Court held that a plan participant can sue for such a breach, and that damage to the entire plan need not be shown; damage to an individual account is sufficient.

  

•  Definition of ADEA Charge Resolved by Supreme Court

In Federal Express Corp. v Holowecki, the U.S. Supreme Court held that a document filed with the EEOC constitutes a Charge under the ADEA if it (1) contains an allegation of discrimination; (2) names the employer; and (3) can reasonably be construed to request the EEOC to take remedial action.  At issue was an intake questionnaire filled out and submitted to the EEOC.  Whether a document other than a formal Charge of Discrimination is a “charge” under the Act is important in determining if the claimant filed a charge in a timely manner and may affect when she could file a lawsuit.  Here, the intake questionnaire was deemed to be a Charge.

 

• The Role of Past Acts of Harassment toward Third Parties Decided by Sixth Circuit

  

A court or jury in a hostile work environment sex harassment case may consider evidence of other acts of harassment of which the plaintiff became aware during the period of her employment, even if the harassing acts were directed at others or occurred outside of the plaintiff's presence.  Such evidence is relevant to show the existence of a pervasive environment of sex harassment.  In evaluating these facts, the court or jury may consider factors such as the severity and prevalence of similar acts of harassment, whether similar acts have been clearly established or are mere conjecture, and the proximity in time of the alleged similar acts of harassment.

A retaliation claim was allowed to go to trial where management knew or should reasonably have known that the co-worker against whom a plaintiff had made a sex harassment complaint set fire to her car in the employer’s parking lot.  Despite management’s knowledge, it failed to take any remedial action, subjecting itself to liability for the co-worker’s act of retaliation.  Hawkins v Anheuser-Busch.

court or jury in a hostile work environment sex harassment case may consider evidence of other acts of harassment of which the plaintiff became aware during the period of her employment, even if the harassing acts were directed at others or occurred outside of the plaintiff's presence.  Such evidence is relevant to show the existence of a pervasive environment of sex harassment.  In evaluating these facts, the court or jury

For additional information on these developments, please contact Kevin McCarthy at mccarthy@mccarthysmithlaw.com or Barry Smith at smith@mccarthysmithlaw.com. They may also be reached by phone at (269) 488-6330.