Good News for Pregnant Women in the Workplace

The Equal Employment Opportunity (EEOC) issued a new enforcement guidance for the Pregnancy Discrimination Act (PDA) this year.  The new guidance incorporates the protections of the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA), broadens the definition of protected pregnancy-related conditions, and adds light duty obligations within the PDA.  This is a victory for all working women across the United States!

In 1978 Title VII of the Civil Rights Act was amended “to prohibit sex discrimination on the basis of pregnancy.”  This amendment is known as the Pregnancy Discrimination Act.  It defines discrimination against pregnant women as illegal sex discrimination.

Since the PDA’s inclusion in Title VII of the Civil Rights Act, the EEOC has seen a substantial rise in pregnancy discrimination claims.  According to the EEOC’s website, in 1997 there were 3,900 pregnancy discrimination charges; by 2013 that number had grown to 5,342.

The increase in pregnancy discrimination charges led the EEOC to issue a new enforcement guidance this year, which updates the interpretation of the PDA laws.  The last enforcement guidance was issued almost thirty years ago.

Under the new enforcement guidance, the EEOC states the fundamental PDA requirements as follows:

  1. An employer may not discriminate against an employeeon the basis of pregnancy, childbirth, or related medical conditions;
  2. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The overall definition of pregnancy and pregnancy-related conditions has broadened since the last enforcement guidance for the PDA set forth in 1983. Topics included in this definition are conception, pregnancy, termination, childbirth, and post-birth.  The EEOC has tried to encompass all of the circumstances that relate to pregnancy.

This new enforcement guidance also incorporates the Americans with Disabilities Act (ADA).  The old enforcement guidance predated enactment of the ADA by 7 years.  The incorporation of the ADA in the new enforcement guidance provides that conditions caused by pregnancy are to be considered temporary disabilities, and therefore covered under the ADA.  This ensures that pregnant employees are recognized and protected by this law.

Light Duty requirements have also been added to the new enforcement guidance.  Prior to this year, the EEOC had not clarified whether employers were required to give light duty tasks, typically issued to injured workers, to their pregnant employees under work restrictions.  The new guidance spells out that if light duty is made available to a worker injured on the job, then the same light duty work needs to be available to women under work restrictions due from their pregnancy.  Employers may not make biased decisions on whether pregnant women deserve treatment equal to their injured peers.

The EEOC incorporates the Affordable Care Act (ACA) within the new enforcement guidance.  Under the ACA, employers are generally required to supply coverage for FDA-approved contraceptive devices, so long as they do not qualify for an exemption available to a few employers based on their religious convictions.  Under the new enforcement guidance, if an employer fails to cover these contraceptive devices, they are not only violating the ACA but they are also violating the PDA as well.  Therefore, employers are potentially answerable to both the U.S. Department of Health and Human Services and the EEOC if they violate this portion of the law.

This is very good news for working women across the country.  It is another step towards ensuring gender equality in the workplace.  It is one small step for equality, and one giant leap for all womankind!  To read the entire enforcement guidance click here.

Honored by Best Lawyers Again!

The prestigious Best Lawyers organization has once again honored the partners of Messing, Rudavsky & Weliky, P.C.  The Best Lawyers in America, 21st ed., has just been released on August 18, 2014. Partner James Weliky has been listed under the “Employment Law – Individuals” category for his continued efforts fighting for the rights of employees across Massachusetts.  Attorney Weliky has not only been included in this edition, but in every edition of this publication since 2012!

MRW Partner Attorney Ellen Messing has also been listed in the 21st edition of The Best Lawyers in America. You can find her under “Litigation – Labor and Employment” for her decades of experience litigating on the side of employees against the corporations and institutions that undervalue employee civil rights.  Attorney Messing has carried this accolade in every edition of this publication since 2012!

Finally, firm partner Dahlia Rudavsky has been listed in three sections of this publication: “Employment Law – Individuals,” “Labor Law – Unions,” and “Litigation – Labor and Employment.”  Her vast experience in representing workers of all types, and her years of making her clients’ cases successful have contributed her name to these notable selections.  Attorney Rudavsky has also been listed in this publication since 2012.

 

Victory for Market Basket Workers and Customers!

Our heartfelt congratulations to the employees of Market Basket!  After several weeks of collective action, these employees, with customer support, have successfully pushed the company board to sell the supermarket chain back to ousted CEO Arthur T. Demoulas.  We applaud their efforts and success.

This is a great example of how workers who stand together can achieve their goals.  Workers at all levels risked being fired to support the boss who had respected them and who had treated them with dignity and respect.  It is especially noteworthy and unusual that Market Basket managers stood in solidarity with the other protesting employees, refusing orders to return to work, even though managers have fewer labor law protections than rank-and-file employees.

For further background about this dispute and the labor laws involved, see articles quoting Messing, Rudavsky & Weliky senior partner Ellen J. Messing:

Some Market Basket workers told to report to work or be fired (Boston Globe 8/12/14)

Ousted Market Basket CEO Demoulas: Re-hire fired workers  (Boston Herald 7/22/14)

Market Basket Deadline Day: What Are The Legal Options? (WGBH & New Hampshire Public Radio 8/4/14)

Can Market Basket fire its employees? (Nashua Telegraph 8/5/14)

Market Basket Employee Files Complaint With National Labor Relations Board (WGBH 8/26/14)

Federal Court Allows Employees to Proceed on Discrimination Claim Against Former Employer

A recent Federal district court decision, Porter v. Five Star Quality Care-MI, LLC , was a big victory for employees.

The Court enabled a group of former nursing home employees to move forward in their Family and Medical Leave Act (“FMLA”) retaliation claim against the current and former owners of the nursing home from which the employees were terminated. This is significant because not only did the court allow the case to proceed beyond summary judgment, but allowed the employees to maintain their suit against their former employer, even though the new employer actually fired them.

The seven plaintiffs were employed by a nursing home in Farmington, MI, owned by Five Star Quality Care-MI, LLC (“Five Star”). Only a day or two after the home was sold to White Pine Rehabilitation & Healthcare of Farmington (“White Pine”), White Pine, the new owner, terminated six of the plaintiffs. Plaintiffs argued that White Pine acted in concert with Five Star in terminating them in retaliation for taking medical leave in the past. Such retaliation is unlawful under the FMLA.

The key issue in this case was whether the plaintiffs would be allowed to proceed in their claim against Five Star, because Five Star was no longer their employer at the time of their termination. The Court said yes and explained that the plaintiffs had two possible theories under which their FMLA retaliation claim against their former employer could be viable.

The first is a “joint employment” theory. The Court found it is possible that even though Five Star had sold the nursing home and no longer employed the plaintiffs, “Five Star continued to exercise some degree of control over these employees by participating in or somehow influencing White Pine’s decisions as to which of these employees to rehire and how long to retain those who were rehired.” If this were true, plaintiffs could succeed in a claim against Five Star (in addition to White Pine).

The second potentially viable theory is based on how the term “employee” is defined in the FMLA. Because courts have found that individuals may bring FMLA claims against their former employers, the plaintiffs in this case could be successful in their claim against Five Star if “they allege and produce evidence that Five Star retaliated against Plaintiffs’ exercise of rights protected under the FMLA by somehow discouraging White Pine from rehiring and retaining Plaintiffs as employees[.]”

This was an excellent outcome for the employees because it allows them to proceed to further discovery. Because the case was in its early stages when defendants sought to have it dismissed, plaintiffs had not yet had the opportunity to take depositions and get access to documents that could provide them with valuable evidence regarding how the employment decisions at issue were made. This case gives them the opportunity to do so.

National Employment Lawyers Association 2014 Convention: A Resounding Success

On June 25-28, 2014, over 600 members of the National Employment Lawyers Association (“NELA”) gathered in Boston from all over the country for the organization’s 2014 Annual Convention. The days were full, the programs fascinating and informative, and the company smart and fun. Special guests included Sheila White Parrish (plaintiff in the landmark retaliation case Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)) and Percy Green, II (plaintiff in foundational Title VII case McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Mr. Green and Ms. White spoke on a panel early in the program, and remained for the rest of the week, attending sessions and participating in events. It was an inspiration to hear their stories and share this event with them.

 

For a budding plaintiffs’ employment lawyer, the Convention was inspiring and energizing. It was exciting to be surrounded by hundreds of other lawyers fighting the same fights and working for the same causes across the country. It showed that our work is part of a broad movement for workers’ rights that includes lawyers representing individual and class action clients, as well as legal workers and community organizers.  After the Convention, I feel a renewed energy to continue fighting on behalf of my clients who have been discriminated against or otherwise mistreated by their employers.

 

Onward!

SUPREME COURT EXPANDS GOVERNMENT EMPLOYEES’ RIGHTS!

This is a post we didn’t expect to write about this particular Supreme Court, but we are pleased to see that the United States Supreme Court has issued an important decision expanding the free speech rights of government employees. The decision,  Lane v. Franks, No. 13-483 (U.S. June 19, 2014), held that government employees who testify under oath are protected by the First Amendment, meaning that their government employers may not retaliate against them for what they say when testifying. Lane, slip op, at 8, 13. This principle was in some doubt after an earlier decision by the Supreme Court called Garcetti v. Ceballos, 547 U.S. 410 (2006), which held that statements made by a government employee as part of their official duties do not have First Amendment protection. Garcetti, at 421. Therefore, under Garcetti, government employees could be fired in retaliation for speaking about things they observed in their workplace. The Lane decision limits the situations where government employees can punish those employees for speaking out. It says that statements made by government employees in court proceedings are protected under the First Amendment, at least where testifying in court is not part of their ordinary job duties, because they are acting in their role as citizens, and are therefore entitled to the same First Amendment protection against retaliation by the government for what they say as any other citizen would be. Lane, slip op, at 9.

In its decision, the Supreme Court helpfully stated or restated a number of important principles that apply to any analysis of whether a government employee’s speech is protected by the Constitution. These include: that public employees do not give up their rights as citizens just because they have entered government service; that government employers must not require its employees to give up their Constitutional rights as a condition of employment; that speech by government employees about matters of public concern should be encouraged, not discouraged; and that this is, in part, because government employees are in the best position to speak about problems within their agency, which is itself in the public interest. Lane, slip op, at 9-11.

We welcome this important expansion of public employees’ protection from retaliation. For an interesting and comprehensive discussion of this case, check out this post

MRW Honored by Chambers USA Guide 2014

On May 23, 2014, highly recognized Chambers & Partners ranking service released their USA 2014 Guide to “top tier’ law firms across the country.  Chambers cites Messing, Rudavsky, & Weliky P.C. as one of only three, among hundreds, of firms representing employees in Massachusetts, and describes MRW as the “premier boutique offering the full spectrum of labor and employment services, renowned for its expertise in discrimination work,” which “stands out for its experience at both the state and federal level.”  Chambers lauds MRW’s attorneys as the “deans of the labor law practice,” noting that the “tenacious” Ellen Messing is seen as a “strong advocate” for her clients who “kicks the tires to make sure she gets the best deal she can,” and that Dahlia Rudavsky is “highly regarded for her expertise pertaining to discrimination matters, acting for individual employees and unions,” who is noted by peers “for her calm demeanor and effective litigation style.” The firm is honored to receive such recognition.   To learn more about this ranking visit the Chambers & Partners website.

Victory for Civil Rights Plaintiffs: Supreme Court Reinforces Summary Judgment Standard

Summary judgment is a legal procedural tool that is often used by judges to dispose of cases before they reach a jury.  In the context of employment discrimination, many cases that reach the summary judgment stage are dismissed at that point, and those plaintiffs do not have the opportunity to try their cases to a jury.

During pretrial proceedings, a judge is not considered the “fact-finder.”  When there are disputes about the facts of a case (that is, when the parties disagree about what actually happened), the judge is required by legal precedent to assume that the facts as stated by the plaintiff are true.  In the recent Supreme Court case Tolan v. Cotton, 572 U.S. ___ (May 5, 2014), the Supreme Court reinforced this summary judgment standard and overturned a decision of the Fifth Circuit Court of Appeals, which had mistakenly dismissed the plaintiff’s case. 

In Tolan, police sergeant Jeffrey Cotton shot and injured Robert Tolan, whom police mistakenly thought had stolen a car.  Tolan was unarmed on his parents’ front porch, and his mother came outside and told the police the car was not stolen.  The police ordered Tolan’s mother to stand against the family’s garage door and roughed her up when she expressed incredulity.  When Tolan protested this treatment of his mother, Cotton shot him.

The parties disagree about the events surrounding the shooting.  According to Tolan, two floodlights illuminated the area; Tolan’s mother protested what the police were doing in a nonthreatening manner; Tolan spoke to Cotton in a normal manner; and Tolan was on his knees when Cotton shot him.  The Court of Appeals determined instead that the porch was “fairly dark” at the time of the shooting; that Tolan’s mother was “very agitated” when addressing the police officers; that Tolan was “shouting” and “verbally threatening” Cotton; and that Tolan was on his feet and “moving to intervene” in Cotton’s interaction with Tolan’s mother.  Based on these factual conclusions, the Court of Appeals ruled that the police had acted reasonably and did not violate clearly established law in shooting Tolan, thus concluding there was no need for a trial.

The Supreme Court found that the Court of Appeals was wrong to draw factual conclusions.  It explained that, in doing so, the lower court was choosing to credit the police officers’ perspective on the facts rather than believing Toland, thus denying Tolan the right to have his claim for injuries decided by a jury.

In overturning the Court of Appeals, the Supreme Court explained that the Court of Appeals had “fail[ed] to credit evidence that contradicted some of its key factual conclusions, … improperly ‘weigh[ed] the evidence’ and resolved disputed issues in favor of” the defendant.  Tolan, Slip Op., at 8 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).  The court reinforced the principle that a judge’s role, at this stage, is “not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’” Tolan, Slip Op., at 7 (quoting Anderson, 477 U.S., at 249). 

This is a very important decision for all plaintiffs in all civil cases.  It reminds courts that when a defendant files a summary judgment motion, the court must believe the facts as stated by the plaintiff.  This gives the plaintiff the opportunity to present her evidence and allows the jury to determine whose version should be believed.

Federal Advisory Committee Adopts Recommendations from Ellen Messing and NELA

As previously detailed in this space, Ellen Messing was invited to participate at “A Forum for Understanding and Comment on the Proposed Federal Rules Amendments” as a representative of the National Employment Lawyers Association (NELA).  The amendments under consideration by the Advisory Committee on Civil Rules, if adopted, would have had a deleterious effect on the ability of employees to enforce their rights in court.  Since the forum, the Advisory Committee has rejected most of these potentially harmful amendments and adopted most of the recommendations advanced by Messing and NELA.  This represents a significant victory for employees, their counsel and their allies.

Congratulations to NELA and the advocates who spent countless hours on this important endeavor to protect the interest of workers!

James Weliky Featured at MCLE Programs for Employment Lawyers

James Weliky has again been selected to serve as an expert faculty member on two popular programs presented by Massachusetts Continuing Legal Eduction (MCLE).  First, Mr. Weliky served as faculty at MCLE’s “Employment Law for Business Lawyers and In-House Counsel.”  This year’s edition of the program, held January 30, represented Mr. Weliky’s tenth year on the program’s faculty!

In May, Mr, Weliky will serve on the faculty of MCLE’s “Advising Employers & Employees on Off-Duty Conduct & Privacy in the Workplace.”  The program will examine some of the most topical, but widely-misunderstood, subjects affecting the modern workplace, including: employee use of social media in and out of the workplace, electronic monitoring of employees, and the affect of medical marijuana law on the workplace.  This year’s edition of the program with be Mr. Weliky’s second as faculty.

To learn more about these programs and MCLE, click here to visit their website.