Archives for March 2013

FMLA Leave Expanded For Military Family Members and Airline Flight Crew Employees

The U.S. Department of Labor has amended the Family Medical Leave Act (“FMLA”) to expand leave available to military family members and airline flight crew employees. The expansion is expected to affect more than 91 million workers working for 1.2 million employers.

Military Family Members

Qualifying Exigency Leave

Employees eligible for FMLA are entitled to take up to 12 weeks of leave for a qualifying exigency, which includes the following categories: (1) short notice deployment, (2) military events and related activities, (3) childcare and school activities, (4) financial and legal arrangements, (5) counseling, (6) rest and recuperation (“R&R”), (7) post-deployment activities, and (8) additional activities agreed to by the employer and employee. Under the 2013 amendments, R&R leave is expanded to 15 days from five days, and the list of required information for certification of such leave is expanded to include documentation issued by the military setting forth the dates of the military member’s R&R leave.

The 2013 expansion also adds a new category of exigency leave: parental care leave. Eligible employees may now take leave to care for a military member’s parent when the care is necessitated by the military member’s deployment to a foreign country, and when the parent is incapable of self-care. Types of parental care include arranging for alternative care, providing care on an immediate need basis, admitting or transferring the parent to a care facility, or attending meetings with staff at a care facility.

Military Caregiver Leave

Under FMLA’s military caregiver leave, eligible employees (i.e., employees who are the spouse, child, parent, or next of kind of a servicemember) may take up to 26 weeks of leave to care for a covered servicemember undergoing medical treatment, recuperation, or therapy for a serious injury or illness. The Department of Labor has expanded the list of healthcare providers who are authorized to complete a certification for military caregiver leave to include healthcare providers who are not affiliated with the Department of Defense, the Department of Veterans Affairs, or TRICARE.

Under the 2013 amendments, FMLA’s definition of “covered servicemember” is expanded from current member of the Armed Forces, including National Guard and Reserve members, to include covered veterans, i.e., those released or honorably discharged at any time during the five-year period prior to the employee’s taking FMLA leave to care for the veteran. Additionally, “serious injury or illness” is expanded to include not only those injuries or illnesses incurred in the line of duty by a member on active duty that may render the servicemember medically unfit to perform his or her duties, but also injuries or illnesses which existed before the beginning of the servicemember’s active duty, and were aggravated by service in the line of duty.

For veterans, the definition of “serious illness or injury” also includes those physical or mental conditions for which the veteran has received a Veterans Affairs Service Related Disability Rating of 50% or greater, or a physical or mental condition that substantially impairs the veteran’s ability to secure or maintain gainful occupation, or an injury, including a psychological injury, on the basis of which the veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Airline Flight Crew Employees

The FMLA has special provisions for airline flight crew employees (i.e., flight crew members and flight attendants). The 2013 amendments to FMLA set forth these provisions in Subpart H: Special Rules Applicable to Airline Flight Crew Employees.

An airline flight crew employee meets FMLA’s hours of service requirement, and is eligible for FMLA, if, during the previous 12-month period, the airline flight crew employee has worked or been paid for not less than 60% of the applicable monthly guarantee and has worked or been paid for not less than 504 hours, excluding commute time, vacation, or sick or medical leave.

An eligible airline flight crew employee is entitled to 72 days of leave during a single 12-month period for all FMLA-qualifying reasons other than military caregiver leave, and 156 days for military caregiver leave.

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Foreign National Employees Settle Wage and Hour and Breach of Contract Claims For $30 Million

A recent $30 million settlement is likely to encourage future class action lawsuits by foreign national workers. In Vedachalam v. Tata America International Corp., et al., a class of foreign national workers sued their employer, Tata Consultancy Services, Ltd., a Mumbai-based staffing company, for breach of contract and wage and hour violations. The plaintiffs alleged that Tata illegally retained the proceeds from their U.S. income tax returns, paid less than the salaries promised in their employment contracts, and required them to forfeit unused vacation days.

In April 2012, six years after the case was initially filed, the District Court for the Northern District of California certified a nationwide a class action of about 12,000 workers to pursue breach of contract claims, and a sub-class of about 6,000 California workers to pursue state wage and hour violations.

In October, after nearly seven years of litigation, the parties engaged in two days of mediation and continued to negotiate the terms of the settlement for two months. In the end, the parties agreed to settle for $30 million. If the settlement is approved by the Court, class members will net an average of $1,600 each.

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California Supreme Court Depublishes Three Decisions Interpreting Brinker

Last April, the California Supreme Court resolved long-standing confusion regarding the definition of the word “provide” in Labor Code §512, which requires employers to provide meal breaks to employees who work for more than five hours. In the landmark Brinker decision, the Court clarified that an employer must relieve its employees of all duties during a meal period. The decision was haled as a victory for employers because the Court did not require employers to police meal breaks, but was also looked at as a boon to employees, because employers must go beyond merely maintaining a policy permitting meal breaks.

Since Brinker, several California appellate court cases have interpreted the decision. Recently, however, the Supreme Court depublished three of these decisions. The Court’s depublication of the decisions indicates that the Court wants lower courts to use Brinker as precedent, rather than these appellate court decisions. The Court’s depublication strongly signals that these decisions improperly used an outdated definition of the word “provide,” which fails to take into account that employers must now take affirmative steps to relieve employees of all duties during breaks.

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New Amendments To FEHA Clarify Religious Accommodation Requirements

Recent amendments to California’s Fair Employment and Housing Act (“FEHA”) provide clarity regarding an employer’s duty to provide religious accommodations to its employees. FEHA protects employees from discrimination and harassment based on religion and requires employers to reasonably accommodate employees’ requests for religious accommodation unless such accommodation would cause “undue hardship” to the employer.

Under the 2013 amendments, to prove undue hardship, an employer must demonstrate “significant difficulty or expense” associated with the religious accommodation. This definition requires an employer to make every practical effort to provide religious accommodations to its employees, including considering alternative accommodations rather than simply denying an employee’s request for accommodation.

FEHA also protects employees’ “religious observances.” The new amendments clarify that religious clothing, dress, and grooming practices fall under the category of religious observances. Therefore, if a dress or grooming practice is an essential component to an employee’s religious practice, then an employer must accommodate the practice unless doing so would cause an undue hardship. Practically speaking, this means that employees may be entitled to religious accommodations from their employers’ official dress code policies.

Finally, the new amendments prohibit California employers from segregating employees from customers to accommodate employees’ religious beliefs. Thus, employers will now have to suggest alternative reasonable accommodations that do not include relocating employees to a back office or away from public view.

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Los Angeles Jury Awards Record $21.7 Million in Employment Discrimination Case

In one of the first tests of Harris v. The City of Santa Monica, a Los Angeles jury awarded the plaintiff in an employment discrimination case a record $21.7 million.

In Rodriguez v. Valley Vista Services Inc., BC 473793 (Los Angeles Super. Ct.), the jury found that the defendant, Valley Vista Services, discriminated against the plaintiff, April Rodriguez. Ms. Rodriguez suffered from panic attacks and maintained that the defendant failed to accommodate her mental disability. Valley Vista argued that it fired Ms. Rodriguez for performance-based reasons because she failed to call for three days.

Under the California Supreme Court’s decision in Harris, the jury was instructed that, in order to support a verdict for Ms. Rodriguez, it would have to find discrimination was a “substantial” factor in Valley Vista’s decision to fire Ms. Rodriguez. Finding that Valley Vista’s assertions of lawful motives for Ms. Rodriguez’s termination not credible, the jury awarded Ms. Rodriguez $5.2 million in compensatory damages. The jury also determined that the employer had acted with malice and awarded Ms. Rodriguez $16.5 million in punitive damages as well.

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