Missouri Municipal Attorneys' Association Employment Law Update 2011 - PowerPoint PPT Presentation

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Missouri Municipal Attorneys' AssociationEmployment Law Update 2011

Ivan L. Schraeder

The Lowenbaum Partnership, LLC

222 South Central Avenue, Suite 901

St. Louis, Missouri 63105

314.746.4823 (telephone)

314.746.4848 (facsimile)

ischraederoc@lowenbaumlaw.com

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Missouri Collective Bargaining Cases

Part I

Does collective bargaining authorized as a constitutional right under the Missouri Constitution encompass federal labor law concepts of “good faith” bargaining?

IAFF Local 77 v. City of St. Joseph, MO, Buchanan County Case No. 09BU-CV01900

Not appealed

American Federation of Teachers v. Ledbetter, St. Louis City Circuit Case No. 0922-CC01773

Pending Missouri Supreme Court argument and decision as American Federation of Teachers, Local 420, et al. v. Richard Ledbetter, et al. Case No. SC91766
Briefs filed

Collective bargaining rights under Missouri Constitution do not require exclusive recognition because such would disenfranchise employees who do not want to engage in collective bargaining.

Springfield NEA v. Springfield School District, Greene County Case No. 31GR-85429

Settled on appeal without decision

Do the collective bargaining rights under Missouri Constitution require a public employer to have a selection process for determining organization with bargaining rights or not?

Eastern Missouri Coalition of Police, FOP Lodge 15 v. City of Chesterfield, Missouri, ED Case No. ED95366

Decided May 3, 2011
Transferred to Missouri Supreme Court as Case No. SC91736
Briefs filed

Eastern Missouri Coalition of Police, FOP Lodge 15 v. City of University City, Missouri, ED Case No. 95364

Decided May 3, 2011
Transferred to Missouri Supreme Court as Case No. SC91737
Briefs filed

Cases withdrawn related to bargaining unit elections:

Grandview NEA v. Grandview School District

Election held

LIUNA Local 1031 v. City of Wentzville, Missouri

Decertification election held

Other St. Louis County Circuit collective bargaining cases filed in Berkeley, Bel-Ridge, Ferguson, Hazelwood and Jennings

Jennings: election and unit ordered

What contract enforcement action is available under a collective bargaining agreement adopted by the school board granting grievance hearings to a dismissed employee?

Ciafullo v. Hazelwood School District, Case No. 11SL-CC02477

Filed June 17, 2011

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Federal Enactments

Part II

Patient Protection & Affordable Care Act (PL111-148)

Requires employers to provide reasonable break time for employee to express milk for one year after birth
Provide room secluded from view other than a bathroom.

ADA

Regs: 29 CFR 1630 (Effective 03.25.11)
Issues:

Protected persons
Disability discrimination amended on to EEO
Drugs and alcohol issues
Qualified individual with or without accommodation
Essential functions of the job critical

ADA

Purposes of 2009 Amendments:

Reinstate Rehabilitation Act of 1973 Section 504 definition interpretation
Overturn two Supreme Court cases:

Sutton v. United Airlines (1999)
Toyota Motor Mfg. v. Williams (2002)

Require EEOC to revise its rules to comply with amendments
Redefine “substantially limits”

ADA

Effect of Amendments:

“Disability” is expanded
Person does not have to be disabled to be disabled
“Major life activities” are expanded
Expands “what regarded as” means – employer just has to think
Narrows available defenses for employers
Litigation will be more complicated

ADA

Practical Implications:

Rethink old approach
Look at singular action rather than multiples
Review essential functions lists
Seek professional assistance quicker
Retrain supervisors & managers on new provisions and purposes
Prepare for worse litigation positions

FMLA: Military Personnel Related Amendment

26 weeks of leave (SERVICE MEMBER FAMILY LEAVE)

amends the FMLA by permitting a spouse, son, daughter, parent, or next of kin (next of kin is the individual’s closest blood relative) to take up to 26 weeks of leave to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy.

fmla military personnel related amendment15

If medically necessary, the NDAA leave may be taken intermittently or on a reduced schedule. Like traditional FMLA leave, none of the leave time must be paid. Like traditional FMLA leave, the employer may require that the employee exhaust any available vacation time available before continuing the NDAA leave on an unpaid basis.

fmla military personnel related amendment16

The certification to be provided by the health care provider in the case of service members is the same as that required for “traditional” FMLA leaves. The law provides that an employer may require that a request for leave due to a “qualifying exigency” be supported by a certification.

FMLA Regulations

Changes to FMLA

Prior service that counts towards 12 months employment required for FMLA eligibility if break in service is less than 7 years, unless break in service was the result of;

Military service; or
A written agreement, such as a collective bargaining agreement, spells out an employer’s intention to rehire the employee after the break in service, e.g., to continue education or for childrearing

FMLA Regulations

Employee Eligibility

Use FLSA principles to determine if employee meets 1250 hour requirement;
Employees returning from National Guard or reserve duties shall be credited for hours of work that would have been performed but for the military service

FMLA Regulations

Clarifies that if an employer allows an employee to take leave before s/he is eligible for leave, the employee is entitled to a full twelve (12) weeks of leave upon reaching eligibility.

FMLA Regulations

Serious Health Condition

Clarifies that some common ailments – such as the common cold, flu, earaches, upset stomach and headaches usually are not – but may be “serious health conditions” if they otherwise meet the definition.
“Treatment” includes examination for diagnostic purposes and evaluations of the condition;
Cosmetic treatments (acne, plastic surgery) are not serious health conditions unless in-patient care is required or complications develop;

FMLA Regulations

Serious Health Condition

Absence resulting from substance abuse does not qualify
Treatment “two or more times” must be within 30 days of the first day of incapacity;
Treatment means an in-person visit to a health care provider;

The first in-person visit must occur within 7 days of the first day of incapacity
Exception: extenuating circumstances

FMLA Regulations

Male employees are entitled to FMLA leave to accompany their pregnant spouses to pre-natal appointments or for their spouses who have severe morning sickness or need physical or psychological care;
Employees must be actively employed to be eligible for FMLA leave – i.e., employees on layoff status are not eligible for leave.

FMLA Regulations

Clarifications to substitution of paid leave

Paid time off runs concurrently with FMLA leave;
Employers must notify employees of any additional requirements for using paid leave, and advise employees they are entitled to unpaid FMLA leave if they choose not to meet requirements of paid leave policies;

FMLA Regulations

Employers and employees may agree to supplement disability or workers compensation benefits with paid leave;
Employers may require FMLA certifications even if employee uses paid leave;
Employees may still decline light duty and remain on FMLA leave.

FMLA Regulations

Public-but not private- employers may require employees to use accrued compensatory time concurrently with FMLA leave.

FMLA Regulations

Employers may disqualify employees from a bonus or award when employees fail to qualify because of an FMLA absence.

EXAMPLES: Perfect attendance bonus, hours worked bonuses, sales goals

NOTE: Employers must treat employees on FMLA leave the same as those on non-FMLA leave.

FMLA Regulations

Employers may voluntarily settle past FMLA claims without approval of the Department of Labor or a court written notice stating:

Reason(s) for the requested leave;
Anticipated duration of the leave;
Anticipated start date of the leave.

FMLA Regulations

Fitness For Duty Certification

Employers may authenticate and clarify fitness for duty certifications.
Employer may request that health care provider assess employee’s ability to return to work by using the essential functions of the job as a guide.

Essential functions list must be included with eligibility notice

FMLA Regulations

Fitness For Duty Certification

May seek fitness for duty for employees on intermittent leave every 30 days if:

Employee has used leave in last 30 days.
There are reasonable safety concerns.

FMLA Regulations

Other Clarifications

Holidays
Scheduled Overtime
“Reasonable” attempt not to disrupt Employer operations
Light duty does not count towards FMLA entitlement
Fixed Ragsdale retroactive designation issue.

FMLA - Military Leave Regulations

Spouse/Parent/Child: Same definitions
“Next of kin” – nearest blood relative in order of priority

Blood relatives granted legal custody of service member
UNLESS: Service member designated someone in writing.

“Next of Kin” – If no one is designated, all family members in the same level of relationship to the service member may take FMLA leave either consecutively or simultaneously

“Needed to Care For” – same as general FMLA regulations

Physical and psychological care
Basic needs
Transportation
Reassurance

Qualifying Exigency – limited to spouse, child or parent on active duty or call to active duty.

Short notice deployment – 7 calendar days or less

Leave limited to 7 calendar days

Military events and related activities:

To attend official ceremony, program or event sponsored by military related to active duty or call to active duty status
To attend family support or assistance programs and informational briefing sponsored or promoted by the military, military service organizations, or the Red Cross related to active duty or call to active duty status.

Childcare and School Activities:

To arrange for alternatives when active duty or call to active duty necessitates a change
To provide childcare on an urgent, immediate need basis (but not routinely)
To enroll in or transfer to a new school or daycare facility
To attend meetings with staff at school or daycare facility

Financial and Legal Arrangements:

To make or update financial or legal arrangements, such as power of attorney, bank signature authority, enrolling in DEERS, obtaining military I.D. cards, or preparing a will or living trust
To act as military member’s representative before governmental agencies regarding military service benefits during active duty, call to active duty and/or for 90 days after active duty ends.

Counseling

To attend counseling from someone other than a health care provider for self, military member or child of military member if need is related to active duty or call to active duty

Rest and Recuperation

To spend time with military member on short-term, temporary rest and/or recuperation leave during period of deployment
Eligible employees make take up to 5 days leave.

Post-Deployment Activities:

To attend annual ceremonies, reintegration events and any other official ceremony or program within 90 days following end of active duty
To address issues associated with death of military member on active duty, such as meeting and recovery of body and funeral arrangements

Additional Activities:

Any other activities agreed upon by employer and employee

Genetic Information Non-Discrimination Act

Prohibits employers and health insurance carriers from using genetic information in employment and imposes strict confidentiality requirements
EEOC Regulations were issued and are now effective – 29 CFR 1635 (01.10.11)

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State Enactments

Part III

Prohibits employers from placing microchips in employees

Section 285.035 RSMo

Civil aviation services employment release time

Section 41.1000 RSMo

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Miscellaneous Cases

Part IV

Chamber of Commerce of US v. Whitney, 131 S. Ct. 954 (2011)

Upholds Arizona Immigration Law
U.S. statute does not pre-exempt a state’s right to regulate business relationships with state regulated entities
Supports recent MO immigration reform efforts (2009-2010)

Borough of Duryea, PA v. Guarnieri, 131 S. Ct. 1553 (2011)

Same standard of review applied to public employee 1st Amendment right to “petition government as 1st Amendment free speech standards”.

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 951 (2011)

No class action available in Title VII actions where size of group, number of supervisors with discretion or decision making and location separated significant facts to be appealed.