F&P Virginia Win: Recorded Statement a Valuable Tool

/in /by F&P Virginia Win: Recorded Statement a Valuable Tool

In a recent victory for Franklin and Prokopik’s Herndon office and counsel Jennifer R. Helsel, the Full Commission upheld the Deputy Commissioner’s Opinion that an injury from a knee bend did not arise out of the claimant’s employment.  The claimant worked as an aircraft maintenance mechanic and alleged a work-related injury to his right knee after bending down to inspect the engine of an airplane bound for an overseas flight.  Following the injury, the claimant required surgery and sought lifetime medical benefits as well as a period of wage loss.

The claims adjuster took the claimant’s recorded statement approximately one week after the injury.  At that time, the claimant stated, “I bent down. That’s all it was. It was just – it was something simple as bending down and getting up. That was it. Bending over, bending down.”  Initial medical records from Concentra stated that the claimant kneeled down and, upon standing up, he awkwardly twisted his knee.  At the evidentiary hearing, the claimant testified that it was a “funny” bend and not normal.  He stated that he felt a pop in his knee as he “started to go down.”  Additionally, the claimant could not explain how or why his knee popped when it did.

The Deputy Commissioner determined that the claimant’s testimony at the hearing was contradictory to the evidence offered that was contemporaneous to the accident.  More specifically, the Deputy Commissioner found that the recorded statement was more reliable than the testimony offered as to the mechanism of injury for the claim.  The claimant subsequently appealed the decision to the Full Commission.

All three Commissioners affirmed the Deputy Commissioner’s Opinion finding that the claimant’s injury did not arise out of his employment.  Although the claimant argued that the claimant’s testimony at the evidentiary hearing, coupled with the medical records, should be weighed more heavily, the Full Commission determined that the hearing testimony was inconsistent with the information provided in his recorded statement and what he reported while seeking medical attention.  As such, the decision regarding denial of the claim was affirmed.

This decision highlights the importance of a recorded statement during an initial investigation.  Because recorded statements are taken closer in time to the incident (and, oftentimes, before the claimant has retained counsel), this evidence is significant in evaluating the claim for compensability and potential defenses.  In this example, the Deputy Commissioner and Full Commission favored the description of the mechanism of injury in the recorded statement over the testimony provided under oath at the evidentiary hearing.

Applying the Appropriate Standard for Recreational Activities in Delaware

/in /by Applying the Appropriate Standard for Recreational Activities in Delaware

One of the more challenging issues that employers and insurers face is determining the compensability of a claimant’s injury.  More complex yet is the scenario in which a claimant is injured outside his or her normal work hours but during a quasi work-related recreational activity, such as a company softball league.

In a recent unreported decision, Morris James LLP v. Weller,2 the Superior Court of Delaware considered the compensability of an injury sustained by a law firm employee during his participation in the Wilmington Lawyers’ Softball League.  The claimant ruptured his Achilles tendon while running bases during a softball game.  The Industrial Accident Board (“Board”) found the claimant’s injury occurred during the course and scope of his employment.  On appeal, however, the Court reversed the Board’s decision and remanded the case to the Board for the application of the proper legal standard.  Although the Board’s new decision is yet to be determined, the Court’s analysis illustrates the proper application of the state’s laws regarding this type of recreational injury.

In Delaware, the threshold question for determining the compensability of a claim is whether or not the subject injury occurred during the course and scope of the claimant’s employment.  The state’s courts have evaluated “arising out of ” and “in the  course of ” employment as two separate elements.  “Arising out of ” pertains to the origin and cause of the injury while “in the course of ” relates to the time, place, and circumstance of the accident.

As the Court in Weller explained, Delaware has adopted a four-factor test set forth in Larson’s Workers’ Compensation Law for determining whether an employer-sponsored recreational event falls within the course and scope of an injured worker’s employment.  Those factors are: (1) the time and place; (2) the degree of employer initiative; (3) the financial support and equipment furnished by the employer; and (4) the employer benefit from the company team.3

If the recreational event is not employer-sponsored, a different test applies.  That test is: (1) whether the event occurs on the premises during a lunch or recreation period as a regular incident of employment; (2) whether the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of the employee, brings the activity within the orbit of the employment; or (3) whether the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.4

An important distinction between these standards is that the employer-sponsored test requires all four factors to be met, while the non-sponsored test needs only one of the three factors to be present.  It is also important to note the third prong, or “substantial benefit” factor, of the non-sponsored test specifically excludes intangible benefits from consideration.

In Weller, the claimant’s employer paid for the team’s jerseys, bats, and meals; signed a hold-harmless agreement with the practice field; and allowed employees to work on softball-related matters during working hours as well as permitted liberal leave to prepare for games.  Witnesses testified that softball was a team building activity and boosted morale.  There was conflicting testimony as to whether or not it enhanced productivity.  The employer contended it did not solicit business or realize a direct benefit from putting its firm name on jerseys.

The Board determined the sponsor of the subject softball game was the Wilmington Lawyers’ Softball League, not the employer.  Despite this, the Board incorrectly applied the employer-sponsored test.  In reaching its decision, the Board found the employer “probably” obtained a benefit of increased productivity of its employees by their participation in the softball league.  The Board also looked to the hold-harmless agreement executed by the employer and the employer’s liberal leave policy with respect to softball-related activities to determine that the softball game was within the course and scope of the claimant’s employment.

On appeal by the employer, the claimant conceded the Board had erred in applying the employer-sponsored standard.  Nevertheless, the claimant argued the error was harmless as the employer had derived a direct benefit from the recreational activity–a factor included under both tests.  Because only one factor is required to meet the non-sponsored test, the claimant suggested the Board would have reached the same decision regardless of which standard it applied.

The Court asserted it was unclear whether the Board would have found the probable increased productivity of employees playing softball amounted to the substantial benefit required under the non-sponsored test.  The Court, citing again to Larson’s, further noted the test requires the employer benefit be direct and beyond the intangible value of increased employee efficiency and morale common to all social and recreational events.  In the context of a recreational event such as a softball game, direct benefits have included employer advertising, publicity, and other such financial gain.

Ultimately, the Court found the Board’s application of the employer-sponsored test constituted legal error and remanded the case to the Board to apply the non-sponsored test.  The Board’s decision is now pending.

As Weller demonstrates, when investigating the compensability of a claim occurring outside of work, it is necessary to first determine who sponsored the event in order to apply the appropriate legal standard.  Other factors to take into consideration include the location of the event, its organizers, any financial support provided by the employer, the level of control and encouragement to participate exercised by the employer, and any monetary benefit to the employer.

2. This case is unpublished and only the Westlaw citation is currently available: 2017 WL 1040713.

3. 2 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law, § 22.04[4][b]–[e] (LEXIS Publishing 2001).

4. See State v. Dalton, 878 A.2d 451, 455 (Del. 2005) (citing to 2 Larson’s Workers’ Compensation Law at § 22.01).

 

As Maryland Courts Roll Out E-Filing, Commission Likewise Presents New Electronic Form

/in /by As Maryland Courts Roll Out E-Filing, Commission Likewise Presents New Electronic Form

Electronic filing, or “E-filing,” of legal pleadings is a growing trend in jurisdictions across the state and country.  There have been recent developments in both Maryland courts and at the Maryland Workers’ Compensation Commission with respect to E-filing.

The Maryland Workers’ Compensation Commission recently introduced a new option to electronically file an Employee Claim Form.  Claimants and their attorneys will not be required to use the online form and still have the option to mail the form to the Commission if so desired. However, the Commission does require the updated formatted version to be used if mailing.

The E-filing option will largely affect claimant’s attorneys, as the process allows counsel to obtain an electronic signature and submit the form without the tedious logistics of mailing the Claim Form to a claimant and possible delayed filing.  E-filing does, however, provide benefits for defense counsel and their clients as well.  For example, although a medical authorization has always been part of the Claim Form, some claimants do not sign the authorization with their submission.  Now, if a claimant files the form online, he cannot submit it until the Medical Authorization is likewise signed and submitted.  This helps to expedite the employer and insurer’s ability to seek medical records directly from providers and can potentially alleviate the need for hearing continuances.

Of note, the Claim Form cannot be filed with the Commission online if all fields are not completed.  This should help to reduce the amount of mistaken omissions.  Moreover, the electronic data entry will help to avoid any question over a claimant’s handwriting or otherwise unclear entries. In this way, the more streamlined approach afforded by E-filing is arguably more efficient and reliable.

For all four Maryland court levels (District, Circuit, Court of Special Appeals and Court of Appeals), E-filing is mandatory for all matters (except landlord/tenant) if you are filing in a county that has been converted to the new Maryland Electronic Courts (MDEC) system.  Currently, the counties that have converted to E-filing include: Anne Arundel, Caroline, Calvert, Cecil, Charles, Dorchester, Kent, Queen Anne’s, Somerset, St. Mary’s, Talbot, Wicomico and Worcester.

For more information about this article, please contact John Archibald at 410.230.3064 or jarchibald@ fandpnet.com.

F&P Prevails on Statute of Limitations Defense Before the Court of Special Appeals of Maryland

/in /by F&P Prevails on Statute of Limitations Defense Before the Court of Special Appeals of Maryland

Franklin & Prokopik principal David Skomba recently prevailed on a statute of limitations defense argued before the Court of Special Appeals of Maryland.  In an unreported opinion, the Court held the Maryland Workers’ Compensation Commission (“Commission”) was legally correct in finding that the five-year statute of limitations barred a claimant’s request for additional indemnity benefits.

The claimant, a forklift operator, sustained a compensable injury to her right knee as the result of a work-related accident on April 24, 2001.  A year later, in 2002, the Commission found the claimant had sustained 12% permanent partial disability to her right leg in connection with the work accident.  The claimant was awarded additional benefits in 2006 when the Commission determined her permanent disability had increased by 10%.  The employer and insurer paid the final installment of the claimant’s permanency benefits in accordance with the 2006 Award on January 16, 2007.

In June 2009, the claimant was involved in a motor vehicle accident unrelated to her employment and sustained a fractured right foot.  While the matter was on appeal and in extended litigation regarding the claimant’s entitlement to additional medical treatment in light of the intervening accident, the claimant filed a request for modification of her permanency award due to an alleged worsening of condition to her right knee.  The employer and insurer objected, arguing the Commission did not have jurisdiction to consider the claimant’s request for modification while the matter was pending on appeal.  The claimant’s attorney filed a request for a continuance of the hearing.  In justification for the continuance, the claimant’s attorney indicated that both parties agreed the hearing to address the claimant’s worsening would be reset on request only after the claimant’s appeal was decided.  The Commission granted the claimant’s request and continued the matter with a notation it would be reset on request only.

The claimant’s appeal regarding her medical treatment was resolved in favor of the employer and insurer in May 2014 and the matter was remanded to the Commission for further proceedings.  The claimant again, on July 10, 2014, filed Issues with the Commission seeking a modification of her prior permanency award.  In response to these Issues, the employer and insurer raised statute of limitations, among other defenses.

Pursuant to Maryland Law, Labor and Employment (“L.E.”) § 9-736, a request to modify a previous award must be made within five years of the date of the accident (or the date of disablement for occupational disease claims) or the date of the last compensation payment to a claimant, whichever is later.  Maryland courts have interpreted the date of last compensation payment to mean the date the last payment check is received by the claimant.  Compensation does not include medical benefits nor does it include the payment of attorney’s fees awarded as a sanction.  If a claimant files and subsequently withdraws issues alleging a change in condition (i.e., a request for modification), the statute of limitations period is not tolled.1

In the instant case, the employer and insurer argued the last indemnity payment to the claimant was received on January 16, 2007, and the claimant was therefore barred by the five-year statute of limitations when she filed Issues for increased permanency benefits on July 10, 2014.  Following a hearing in October 2014, the Commission determined the claimant had sustained no increase in permanent partial disability to her right leg and, more importantly, the claim was barred by the statute of limitations.  The Commission denied the claimant’s request for a rehearing of its decision.  The claimant petitioned the Circuit Court for Howard County for judicial review of both decisions.  The lower court ultimately granted the employer and insurer’s preliminary motion to dismiss the claimant’s appeal, agreeing that the five-year statute of limitations precluded the claimant from seeking any further indemnity benefits.  The claimant then filed an appeal of the Circuit Court’s decision with the Court of Special Appeals.

After considering briefs and oral arguments by the parties, the Court issued its unreported decision on February 9, 2017.  The Court held the Commission had not erred in finding the five-year statute of limitations barred the claimant from seeking a modification of the Commission’s permanency Award when she applied for such a modification over seven years after the last disbursement of compensation benefits.

In reaching its decision, the Court rejected the claimant’s argument that the parties had agreed to a continuance of the claimant’s request for modification until after the conclusion of pending appellate activity and thus, the statute of limitations had been tolled.  Critical to the Court’s analysis was the finding that a reset on request, or “ROR” notation, does not preserve the tolling effect of a modification application.  In fact, the Court previously found in Giant Food v. Eddy, 179 Md. App. 633, 643-45 (2008), that a continuance reset on request is tantamount to a withdrawal of issues.  Relying upon prior authority of Vest v. Giant Food Stores, Inc. 329 Md. 461, 475-76 (1993), the Court explained that the five-year limitations period set forth in L.E. § 9-736 is to be strictly construed and neither the parties nor the Commission can bypass this statutory restriction.  Thus, the claimant’s argument that the parties unilaterally agreed to extend the statute of limitations failed.

As this case makes clear, employers and insurers should clearly document and retain records evidencing all compensation payments issued to a claimant or his attorney.  No party, even by private agreement, can agree to extend the five-year statute of limitations and the Commission should strictly apply the requirements of L.E. § 9-736.  If there is any issue as to the timeliness of a claimant’s request for modification of a prior award, it is good practice for employers and insurers to raise a statute of limitations defense pending further investigation.

For more information about this article, please contact Melissa McGaunn at 410.230.3062 or mmcgaunn@ fandpnet.com.

1. See McLaughlin v. Gill Simpson Elec., 206 Md. App. 242, 258 (2012).

MFEPA the Wrong Way: Townes v Md. Dept. of Juvenile Services

/in /by MFEPA the Wrong Way: Townes v Md. Dept. of Juvenile Services

The Family and Medical Leave Act (“FMLA”) protects an employee’s right to return to the same position or an equivalent position. In addition to the FMLA, the Maryland Fair Employment Practices Act (“MFEPA”) provides substantial protections for employees, including the right to a reasonable accommodation for a disability. In a recent decision, a federal court in Maryland found that the MFEPA requires employers to engage in an interactive process to determine whether a disabled employee is able to perform the essential functions of any available job, not just the prior position which he or she held. When an employee takes leave due to disability and later requests an accommodation, employers must carefully consider these overlapping protections upon the employee’s attempt to return.

In this particular case, the plaintiff began working for the Maryland Department of Juvenile Services in 1995 as a case management specialist, and was promoted twice by mid-1999 to a “CMS III.” The plaintiff, who lived in Baltimore City, was transferred from Baltimore City to a region based in Anne Arundel County.

The plaintiff began receiving treatment from a psychiatrist in 2008, however, she received satisfactory job performance evaluations or better through 2011.  In late 2011 she was diagnosed with severe anemia, vitamin D deficiency, and uterine fibroids, causing medical leave beginning in December 2011. The plaintiff provided the employer with notice of her condition and supplied medical documentation, but the employer did not inform her of her FMLA rights. Upon her return in February 2012, she was assigned to a case with a minor and later learned that the minor had stopped attending high school; as per the employer’s protocol, she alerted her supervisor.

The plaintiff then took a second period of medical leave from May 2012 until June 2012 for a surgical procedure.  When she returned to work, the employer accused her of maintaining insufficient contacts with the minor that had left school, conducted a “mitigating conference,” moved the plaintiff ’s office to Annapolis, issued her first unsatisfactory performance evaluation along with a later reprimand, and forbid her from accessing leave from her leave bank or applying to other positions.

In July 2012, the employer reassigned the plaintiff to a new position requiring her to visit youths statewide. During this time, the employer issued her additional negative performance evaluations and her caseload increased substantially, causing her to suffer a panic attack. She then took a third leave of absence beginning in March 2013. In April 2013, the plaintiff ’s psychiatrist contacted the employer and informed them that she was medically disabled from work due to an adjustment disorder which had exacerbated her underlying bipolar disorder.

The psychiatrist later advised that the plaintiff could return to work if the employer made accommodations for her condition, including moving her to a new assignment, limiting her to the day shift, placing her in a position near her home in Baltimore City, and reducing her commute. Internal communications showed that the employer’s Human Resources department and management were unsure of how to accommodate the plaintiff and did not believe that any positions were available that would meet the requested accommodations. A member of management also apparently did not consider the psychiatrist’s contact to resemble a request for reasonable accommodation from the plaintiff.

The employer then sent the plaintiff to the State Medical Director (“SMD”), who referred her for an evaluation with a psychologist. The psychologist also concluded that the plaintiff would probably not be able to return to work without the requested reasonable accommodations. Despite this opinion, the SMD concluded that she could not perform her essential duties, regardless of accommodations. The employer then placed the plaintiff on leave without pay and later removed her from the payroll, and the plaintiff took disability retirement.

The plaintiff then brought suit against the employer, alleging interference and retaliation under the FMLA and failure to make a reasonable accommodation under the MFEPA. The employer responded with a motion to dismiss and a later motion for summary judgment.

The plaintiff first alleged interference for the employer’s failure to notify her of her rights under the FMLA. In order to make a case for interference, an eligible employee protected by the FLMA must show that she was entitled to leave, gave the employer adequate notice, that the employer denied her benefits to which she was entitled, and that this interference with her rights caused her prejudice. The court dismissed this claim, as the plaintiff received much more than the 12 weeks of FMLA leave that she was entitled to, and suffered no prejudice from the employer’s failure to inform her of her rights.

The plaintiff ’s second claim was for retaliation. To raise a claim for retaliation, the employee must show that she engaged in protected activity, the employer took adverse action against her, and that the adverse action was causally connected to her protected activity. The plaintiff alleged that the employer issued her a reprimand due to taking leave, which prevented her from drawing leave from the Leave Bank. However, as the plaintiff was a state employee, she was required to exhaust all other forms of leave prior to drawing on the Leave Bank, and the plaintiff acknowledged that she did not do so. Accordingly, the court found the claim for retaliation meritless.

The third count alleged failure to make a reasonable accommodation for the known disability of an otherwise qualified employee under the MFEPA. Under the Maryland statute, employers are required to “make a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability” unless the accommodation would impose an “undue hardship.” Employers are also required to make an interactive, individualized assessment to identify a reasonable accommodation for qualified employees.
In order to prevail on a claim for failure to accommodation, the employee must show that she provided the employer notice of her disability, that she could perform the essential functions of the position with a reasonable accommodation, and that the employer failed to make such accommodations. The employer argued that the plaintiff did not provide notice of her disability, and that a reasonable accommodation did not exist for the plaintiff ’s disability.

Upon consideration, the court noted that the plaintiff ’s psychiatrist had reached out to the employer with her request for accommodation. Under Maryland Reasonable Accommodations Policy and Procedure, an employee may make a request for reasonable accommodation to “a supervisor, manager, ADA Coordinator, or Human Resources manager,” the request may be made verbally or in writing, and the request need not use the phrase “reasonable accommodation.”

The plaintiff ’s psychiatrist stated that he believed she could return to work once the requested accommodations were made. At the time, internal discussions were made regarding a position near Baltimore City and the employer concluded that no position was available for the plaintiff, however, during the case the employer later conceded that some case managers were hired to locations in Baltimore City and Baltimore County. The plaintiff ’s psychiatrist also later reviewed a list of job vacancies from 2013 and concluded that several of these could have met the requested accommodations. However, the psychiatrist was never contacted by anyone from the employer in order to clarify the requested accommodations and work together to determine a position for the plaintiff.

Based on the foregoing, the court found there was a genuine dispute of material fact as to whether the employer engaged in an “interactive” process to conduct an individualized assessment of the plaintiff ’s ability to perform the duties required of “a” job that met her request for accommodations, not just her prior position.

Under the MFEPA, when an employee requests a reasonable accommodation, an employer should take care to engage in an interactive process to determine whether the employee can return to any open position. Employers who receive any sort of request for accommodation should be aware that there are no “magic words” necessary to invoke an accommodation under the MFEPA and related federal statutes. Upon receiving an apparent request for accommodation, an employer should “interact” with the employee and start a good faith conversation while conducting an “individualized” assessment of whether the request can be met. Furthermore, employers must know that accommodating an employee does not only include searching for that same position, but all jobs within the company to ensure compliance.

For more information about this article, please contact James K. Hetzel at 410.230.2675 or jhetzel@fandpnet. com.

FMLA the Right Way: Waag v. Sotera

/in /by FMLA the Right Way: Waag v. Sotera

Under the Family and Medical Leave Act (FMLA), eligible employees may take leave and return to working in the same job or an equivalent position. However, employees who take FMLA leave are not protected from actions that would have otherwise affected them if they were not on leave, such as necessary layoffs in times of economic difficulty. Distinguishing between a lawful discharge and an unlawful interference with an employee’s protected FMLA rights isn’t always an easy task. In an aid to employers, a recent case from the Fourth Circuit offers a textbook example of a proper reinstatement and later layoff where the employer prevailed.

Gary Waag was working for Sotera Defense Solutions, Inc. as a Director of Operations in Sotera’s Data Fusion Analytics Division. In September 2012, the United States Army selected Sotera as a nonexclusive prime contractor for the army’s NexGen program, giving Sotera the right to bid on contracts. In early October 2012, Waag was asked to become the Program Manager for Sotera’s NexGen work, which was primarily a business development position that involved non-billable work until a contract was obtained, making Waag’s salary overhead.

Shortly afterward, Waag severely injured his hand after falling off the roof of his house. He informed Sotera on the date of the injury and his physician wrote him off work until December 31, 2012. Due to his injury, Waag was unable to perform in his position as the Program Manager, and Sotera placed another employee, Devin Edwards, in Waag’s former position for NexGen work. Shortly afterward, federal budget sequestration went into effect and the army delayed its NexGen program due to a lack of funding. Due to this, Edwards’ position as replacement Program Manager for the NexGen program became a minor role in comparison to Edwards’ other duties for Sotera.

Upon his return, Waag was reassigned to a new position working on a separate bid for a different army contract. Waag’s new position included an identical salary and identical benefits, but was also a non-billable overhead cost to Sotera until they obtained a contract. In late 2012, Waag’s division saw a drastic decrease in work due to sequestration, and overhead costs needed to be cut by laying off employees doing non-billable work, including Waag. Edwards, who was Waag’s replacement in his former position, was not laid off as the company considered Edwards to be important to a number of other revenue-generating programs.

Waag then brought suit against Sotera, alleging that Sotera violated the Family and Medical Leave Act by not restoring Waag to his prior position after his return from over two months of medical leave; by placing him in a new job that was not equivalent to his prior position, and by terminating him from his new job in retaliation for taking medical leave. The district court granted summary judgment in favor of Sotera, and Waag appealed to the Fourth Circuit.

Employees who take leave under the FMLA are entitled, upon their return, either “to be restored by the employer to the position of employment held by the employee when leave commenced” or “to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” In addition, employees returning from FMLA leave shall not lose “any right, benefit or position of employment” they would be entitled to, had the employee not taken leave.

Waag first argued that the employer had interfered with his FMLA rights by failing to restore him to his former position with the company, which had been reassigned to another employee. In response, the court noted that the plain text of the law “does not indicate a preference for restoring covered employees to their pre-leave positions over ‘equivalent’ positions, and it does not require an employer to hold open an employee’s original position while that employee is on leave.”

Waag then argued that Sotera interfered with his FMLA rights by failing to restore him to an equivalent position. The court, however, noted that Waag’s salary and benefits were identical for both positions, that both positions offered him eligibility for bonuses, that his title of Senior Director remained the same, that he worked in the same location, and that his duties and responsibilities were substantially similar to his prior position. As these terms and conditions of employment were nearly identical, the court found Waag’s other complaints about the differences between the positions, which included his claims of a loss of prestige, to be “de minimis.”

Waag’s final argument was that Sotera placed him in a “sham position,” which Sotera had created to make it appear that Waag had been restored to an equivalent position, with the later intention of terminating him from employment. He argued that a reasonably jury could conclude that Sotera had done so based on temporal proximity, i.e., that Waag was placed in a new job that was eliminated six weeks later. The court, however, rejected this argument, noting that there was no other evidence in the record that would permit a jury to conclude, without speculating, that the job was a sham.

The court admitted that a close temporal proximity between protected FMLA activity and an adverse employment action could establish a prima facie case of retaliation, however, Waag was also required to show that Sotera’s proffered explanation was, in fact, a pretext for retaliation. As Sotera offered substantial evidence showing that the government sequestration had a disastrous effect on its business, and Waag could not point to any evidence in the record that would allow a reasonable jury to conclude he was let go due to retaliation, the Fifth Circuit upheld finding of summary judgment for Sotera.

The law often places employers in the position of ensuring that employees’ FMLA rights are protected while also making difficult but important business decisions. The takeaway from this case is to make a complete record of the employee’s proper reinstatement and the business decisions that lead to any later layoff. Although employers are not required to reinstate employees to their former position, employers should ensure that returning employees are placed in an equivalent position with equivalent pay, benefits, and terms and conditions of employment. When put in the position to make the necessary layoff of an employee returning from FMLA leave, employers must take care to thoroughly document the reasons for doing so, and to ensure that no part of the layoff is due to retaliation or interference with an employee’s FMLA rights.

Labor and Employment Law Trend: Equal Pay Laws Ban Employers from Requesting Prior Salary Information

/in /by Labor and Employment Law Trend: Equal Pay Laws Ban Employers from Requesting Prior Salary Information

Last April, New York City passed legislation banning employers from asking applicants what they currently earn or what they made in their prior job. The legislation also prohibits employers from conducting public records searches regarding pay history for applicants. Massachusetts became the first state in the nation to ban such inquiries in August of 2016, and Puerto Rico and Philadelphia passed similar legislation earlier this year. Additionally, more than 20 other city and state legislatures have proposed legislation to this effect, reflecting a growing national trend.

The legislation aims to decrease payment inequality issues. The concern is that if an applicant is underpaid at one job, it could lower their earning potential throughout their career. The legislation is specifically intended to improve gender wage inequality issues.

Maryland proposed similar legislation in 2017. The legislation overwhelmingly passed in the House of Representatives, but ultimately received an unfavorable committee report in the Senate. However, in light of this national trend, it is very possible that legislation to this effect may be proposed in the near future. Maryland’s “Equal Pay for Equal Work Act,” which went into effect on October 1, 2016, already prohibits employers from discriminating between employees by paying or promoting employees differently based on sex or gender identity.

The passage of this legislation also may impact regional and national employers if they have employees in New York City, Philadelphia, or Massachusetts. It is possible that many companies who hire in areas that have passed equal pay laws may cut out prior earnings questions from their application process entirely.

Critics of this legislation argue that it impedes business growth and violates a company’s First Amendment rights. Proponents of the legislation argue that it does not ban all discussions of compensation. Therefore, employers could still ask applicants about their compensation expectations for the role they are applying for.

Interestingly, amidst this national trend, the Ninth U.S. Circuit Court of Appeals just ruled that employers can legally pay women less than men if the basis for the salary is the woman’s prior wage history. The underlying case that was presented before the Ninth Circuit was not related to specific legislation attempting to prevent such hiring practices. Therefore, the ruling does not necessarily serve to overturn legislation that has passed since the case arose.

 

Maryland Sick Leave Bill Vetoed

/in /by Maryland Sick Leave Bill Vetoed

On April 5, 2017, the Healthy Working Families Act (HB1) was approved by the Maryland House of Delegates. The bill previously passed the Maryland Senate on March 16, 2017. On May 25, 2017, Governor Hogan vetoed the bill, although the bill passed with the necessary support to override a veto.

The bill requires Maryland employers with 15 or more employees to provide five paid sick leave days per year for their employees and requires employers with less than 15 employees to provide up to five unpaid sick leave days per year. The bill excludes employees who regularly work less than 12 hours per week, employees in the construction industry, employees covered by a collective bargaining agreement that expressly waives the requirements of the bill and certain “as-needed” employees in the health and human services industry.

Proponents of the bill describe it as an important protection for employees who cannot afford to miss work when they are sick. However, critics of the bill have expressed concern that the measure will hurt small businesses and ultimately lead to employee cut-backs. Governor Hogan stated through his spokesperson when the bill passed the Senate that he supports “common-sense paid sick leave,” but the proposed legislation is “not common sense and will directly threaten Maryland small businesses and jobs.”

Governor Hogan supports an alternative that would require paid sick leave for businesses with at least 50 employees and provide tax incentives to smaller businesses that offered paid sick leave. However, this proposed alternative bill never moved out of committee. Upon his veto of HB1, Governor Hogan issued three related executive orders, which provided paid benefits to contractual employees in the executive branch, allowed state procurement authorities to give preference to contractors who offer paid sick leave to their employees, and created a task force to conduct a comprehensive study on the issue of paid sick leave for Maryland workers and businesses.

The legislature will not have the opportunity to override the veto until next year’s legislative session, which begins on January 10, 2018. If the Health Working Families Act is eventually enacted into law, Maryland would join approximately 40 states, cities and counties across the nation, including Montgomery County, which have already implemented mandatory paid sick leave laws. Michigan, Nevada, and New Jersey are also currently considering proposed paid sick leave legislation.

For more information about this article, please contact Sarah S. Lemmert at 410.230.3075 or slemmert@fandpnet.com.

 

The Debate Over Drug Testing Commercial Truckers Using Hair Samples

/in /by The Debate Over Drug Testing Commercial Truckers Using Hair Samples

After the 2016 elections, 28 states and the District of Columbia have legalized the medicinal use of marijuana.  At least seven states have legalized the recreational use of marijuana.  The national trend of legalizing marijuana use, at least for medicinal purposes, is raising a number of issues in the trucking industry, which explicitly bans the use of marijuana for commercial drivers, regardless of whether a physician has prescribed its use.

The Federal Motor Carrier Safety Regulations (FMCSR) mandate that “no driver shall be on duty and possess, be under the influence of, or use, any substance set forth in Schedule I of the regulations….”  Marijuana qualifies as a Schedule I drug under the Controlled Substances Act, 21 U.S.C. § 801.  In November 2015, the Department of Transportation reiterated its zero tolerance policy when it comes to marijuana by issuing a “Medical” Marijuana Notice in which the Department stated that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana.’ … It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

Commercial drivers are required to submit to drug and alcohol testing.  Currently, the Department of Transportation provides specific procedures for urine drug testing and breath alcohol testing.  Some large commercial carriers go above and beyond the minimal testing requirements set forth by the Department of Transportation and test prospective drivers using hair samples, which can detect the presence of marijuana up to 90 days after use.  The urine analysis presently approved by the Department of Transportation can detect marijuana approximately two to three weeks after use.  The Department of Health and Human Services has been studying hair testing since 2004 and has been tasked with adopting a hair-testing standard for federal employees, which many hope will lead to the Department of Transportation adopting a hair-testing requirement for commercial truckers.

Many people in the trucking industry are eager for the Department of Health and Human Services to pass a hair-testing standard that can be utilized for all commercial drivers because it would help to identify more marijuana users and ideally prevent accidents that can be linked to intoxication.  Critics of this method of drug testing argue that hair testing will not yield the type of results necessary in the transportation industry; that is, whether the driver was under the influence of marijuana while operating a vehicle.  Rather, the results show a broad picture revealing whether a driver was under the influence at any point in the three months preceding the test.  Hair testing also draws criticisms because results can come back positive even if the hair was simply environmentally exposed to marijuana, as opposed to the individual actually ingesting the drug.

Although it remains to be seen whether the Department of Transportation will adopt a hair-testing methodology for drug testing drivers, it seems likely that there could be a dwindling pool of eligible commercial drivers if tests get more stringent while states get more lenient regarding the use of marijuana.

FMCSA Goes “Hog-Wild” Withdrawing Proposed Rulemakings, This Time as to Increasing Financial Responsibility Levels

/in /by FMCSA Goes “Hog-Wild” Withdrawing Proposed Rulemakings, This Time as to Increasing Financial Responsibility Levels

In November 2014, the FMCSA issued an Advanced Notice of Proposed Rule Making (ANPRM) concerning financial responsibility for motor carriers, freight forwarders, and brokers. Minimum third-party liability insurance limits for common carriers, passenger carriers and hazmat carriers have been unchanged since 1985.

The ANPRM did not actually propose any new limits and primarily sought information and comments and posed a series of questions, addressing: premium rates, current minimum levels, possible increased levels, and consequences of any increase etc. FMCSA received almost 2,200 public comments in response to the ANPRM. However, despite this level of response, few provided substantive and relevant information as to “cost or benefit data and the Agency was unable to otherwise obtain sufficient data on industry practice with respect to the level of liability limits in excess of the Agency’s minimum financial responsibility requirements, the cost of such premiums and the frequency of, and the amount by which bodily injury and property damage claims exceed policy liability limits.” Perhaps not surprisingly, there was competing anecdotal and hypothetical data provided by responders. Trucking sources suggested the average financial damages in a truck accident is less than $12,000.00, where safety advocates (and those pesky plaintiffs’ attorneys again) provided examples of catastrophic losses where the current $750,000.00 minimum was nowhere close to fully compensating the victims (and suggesting a greater than ten-fold increase to $10,000,000.00 for common carriers of property was warranted).

The FMCSA found all representations to be insufficient to allow a necessary systematic cost-benefit analysis to make a final decision on increasing limits (e.g. as to (1) potential increases in insurance premiums associated with increased financial responsibility limits; (2) the impact of an increase in minimum financial responsibility requirements on insurance company capital requirements set by insurance regulators to ensure there are sufficient reserves to minimize the risk of insolvency and protect consumers; and/or (3) to calculate economic benefits from having more financial resources available to assist crash victims associated with increased minimum financial responsibility limits.) As such, the FMCSA did not have sufficient data or information to support further rulemaking and the ANPRM was accordingly withdrawn.

Given limits have not increased in 32 years, even to account for inflation, there seems little doubt that an increase is going to happen at some point in the future. When that might be is anyone’s guess, watch this space . . . .