FMLA Article by Attorney J. Scott Falls Published in South Carolina Lawyer Magazine

Attorney J. Scott Falls and summer law clerk/law student Emily Nellermoe’s article on the mistakes employers make in assessing FMLA leave has been selected for publication by the South Carolina Lawyer magazine. It was published as the cover story of South Carolina Lawyer in the January 2014 edition. Employees who work for employers with more than 50 employees should read the article to understand their rights under the FMLA. If you have an FMLA question or concern, please contact us. Click on the link above to read the article.

Pregnancy Discrimination in the Workplace

 

Given the frequency of women who chose to start a family while maintaining employment, it can be hard to believe that pregnancy discrimination still exists. Despite the reality of modern workplaces, discrimination against and harassment of expectant mothers actually occurs all the time. Fortunately, there are federal and state laws in place to protect women from such workplace behavior.

FEDERAL LAW

In 1978, Congress amended the definition of gender discrimination in Title VII by adding the Pregnancy Discrimination Act, which prohibits discrimination because of pregnancy, childbirth, or related medical conditions in workplaces that employee 15 or more workers (Pub. L. No. 95-555, 92 Stat. 2076 (1978), amending 42 U.S.C. § 2000e-(k)). The Act states that an employer is prohibited from terminating or refusing to hire/promote a woman on the basis of her pregnancy. Employers cannot discriminatorily assign or re-assign pregnant women to unfavorable positions, take away their benefits, or require mandatory leave periods.

Pregnancy by itself is not a disability because it is not an impairment (unless a related medical condition develops, e.g. gestational diabetes or another ADA-eligible disability). However, a pregnant woman must be treated the same way as other similarly situated sick or temporarily disabled workers; this means that if disabled or sick workers are entitled to receive reasonable accommodations, alternative assignments, or paid/unpaid leave, pregnant women are entitled to as well.

DISCRIMINATION IN HIRING

Employers cannot discriminate against job candidates during an interview or job placement process because they are pregnant. In addition, any gender-specific interview questions, including those related to childbearing or motherhood, are prohibited (EEOC Sex Discrimination Guidelines, 29 C.F.R. § 1604.7 (1983)).   In the case King v. Trans World Airlines, Inc., 738 F.2d 255 (8th Cir. 1984), Ms. King, a mother of four, was being interviewed for an entry-level position with the kitchen department at Trans World Airlines (TWA). During the interview, Ms. King’s interviewer asked her questions about her recent pregnancy, her marital status, the number of children she had, whether these children were “illegitimate,” and her plans for future childbearing. After this process, TWA informed Ms. King that there were no openings in the kitchen department; however, within that same month, TWA proceeded to hire at least ten people for the exact same position. The Court ordered the employer to grant Ms. King injunctive relief (protection against future discrimination and another chance at the interview).

WORKPLACE HARASSMENT

Pregnancy harassment can be physical, verbal, or written and involve offensive or unwelcome comments, jokes, gestures, etc. related to a woman’s pregnancy. Harassment in the workplace becomes unlawful when such acts become so frequent and/or severe that both a reasonable person (objective test) and the employee herself (subjective test) could perceive that a hostile or abusive work environment has been created (see Harris v. Forklift Systems Inc., 114 S.Ct. 367 (1993)). Anyone, including supervisors, coworkers, and customers, can potentially create a hostile work environment.

DISCRIMINATION UPON RETURN FROM MATERNITY LEAVE

Women who qualify for and take FMLA maternity leave must be reinstated to the same position with the same responsibilities that they had prior to taking leave. Employees and employers who aren’t covered under the FMLA must still abide by the PDA’s rule of equivalent disability treatment discussed above. In Garner v. Wal-Mart Stores, 807 F. 2d 1536 (11th Cir. 1987), a Wal-Mart department manager, Ms. Garner, took approved maternity leave. Upon her return, Ms. Garner was given the new job title of “floater,” which had far fewer responsibilities than her previous position. Especially in light of the fact that Wal-Mart had once before held open a male department manager’s position for him while he took sick leave, the 11th Circuit held that Ms. Garner had established Title VII sex discrimination because she hadn’t been given her old position back; the court awarded Ms. Garner nominal damages.

PROVING DISCRIMINATION

In order for a woman to show gender discrimination on the basis of pregnancy, she must demonstrate the traditional elements of prima facie Title VII sex discrimination: (1) that she is a member of a protected class [pregnant women]; (2) that she was performing her job satisfactorily at the time of her discharge or demotion; (3) that she was subjected to adverse employment action; and (4) that she was either replaced or treated differently than persons outside of the protected class. If the employee can show these four elements, then, according to the McDonnell-Douglas burden-shifting analysis, the employer must demonstrate that the reason for the adverse employment action was unrelated to gender/pregnancy. The employee can attempt to rebut this by showing that the reason provided by the employer was pretext (a false excuse or cover-up) for a discriminatory reason.

TAKING ACTION

In 2011 alone, pregnant women who filed charges with the EEOC or a related local employment agency (almost 5,800 claims) received $17.2 million in monetary benefits (this figure does not include damages obtained in litigation!). If you feel you have been discriminated against for the reasons discussed above, make an internal complaint with your employer, file a charge with the EEOC, and contact an attorney.

Supreme Court Revisits Retaliation

Retaliation claims under Title VII are one of the most frequently filed types of claims at the EEOC (31,000 in 2012), second only to claims of racial discrimination. A new ruling by the Supreme Court will likely curb these numbers sharply. The decision in University of Texas Medical Center v. Nassar, one of two employer-friendly opinions issued on the same day, is bad news for employees who feel they have been retaliated against for exercising their Title VII rights.

Title VII provides, “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An unlawful employment practice is “established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

The plaintiff in the Nassar case was Dr. Naiel Nassar, a medical doctor of Middle Eastern descent. He alleged that his superior, Dr. Beth Levine, discriminated against him on the basis of his religion and ethnic heritage. After Nassar reported the behavior, his employer (University of Texas) withdrew a job offer it had made some time earlier. Nassar sued UT for harassment and retaliation, arguing that UT retaliated against his report of workplace discrimination by denying him a job it had previously offered him. Nassar’s case hinged on the reason behind UT’s decision to pull the plug on his job offer; he argued that an employer can be held liable for “retaliation” as long as retaliating was one of several motivating factors (the “motivating factor standard”) for an employer’s adverse employment action (here, the revocation of a job offer). UT argued that the standard for employer liability is higher (the “but-for standard,” meaning the plaintiff must show that the adverse employment action would not have occurred but-for the defendant’s conduct, i.e. the job offer would have never been revoked if Nassar had never reported Dr. Levine to UT for discrimination).

The Supreme Court agreed with UT. In a 5-4 decision written by Justice Kennedy, the Court required the employee-claimant to show that his protected activity (reporting a Title VII discrimination issue; see 42 U.S.C. § 2000e-3(a)) was the “but-for cause” of the adverse employment action (termination, not getting hired, demotion, pay decrease, etc.) taken against him. The Court made this determination after comparing and contrasted the relevant portions of Title VII to similar pieces of legislation, interpreting statute language and construction, inferring Congress’s intent, and stating the need to prevent frivolous and burdensome lawsuits in our legal system.   Prior to this, some lower courts had been on Nassar’s side, holding that an employer who made an adverse employment action could be held liable for retaliation even if there were other “valid” reasons for taking that action; now, the employee bears a bigger burden, and must show that the adverse employment action was taken for the primary purpose of retaliation.

What does Nassar mean for employees?

Unfortunately, this ruling has limited the scope of employees’ Title VII rights and makes it harder for victims of retaliation to sue by providing an easy defense for employers.  An employer can escape liability simply by showing that other reasons existed for the adverse employment action and that such action would have been taken regardless of any Title VII discrimination complaints made by the employee.  In her dissent, Justice Ginsburg laments that the Court’s decision has “undermined” the purpose of Title VII retaliation claims by encouraging employees to remain silent when they are victims of or witnesses to acts of discrimination in the workplace. We will have to wait and see if Congress revises Title VII or chooses to accept the majority’s interpretation.

Supreme Court Weighs in on Who is Considered a Supervisor for Purposes of Vicarious Liability under Title VII

Last week, the Supreme Court delivered an opinion in Vance v. Ball State University, answering the question of who qualifies as a “supervisor” under Title VII; their decision is going to have a big impact on dozens of active employment law cases.

Title VII of the Civil Rights Act provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—(2)(a)(1).

There are different levels of employer liability depending on who the harasser is. If the harasser is a supervisor, the employer is vicariously (i.e., automatically) liable under Title VII. The Equal Opportunity Commission and several lower courts have butted heads over the meaning of “supervisor.” The EEOC has maintained that a supervisor is anyone with “the ability to exercise significant direction over another’s daily work” while the courts have applied a more stringent standard (the ability of the person to undertake “tangible employment actions”, discussed below).

In this case, Maetta Vance, an African-American woman, claimed that Saundra Davis, her white co-worker, was creating a racially hostile work environment in violation of Title VII. Vance (a “catering assistant”) claimed that Davis (a “catering specialist”) was her supervisor, entitling her to Title VII protections; her employer, Ball State University, contended that Davis was not a supervisor because she did not have the power to “hire, fire, demote, promote, transfer, or discipline Vance.”

In a 5-4 decision delivered by Justice Alito, the Court sided with Ball State, stating that a “supervisor” is someone who has the ability to take “tangible employment actions” (i.e., an act which causes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). This ruling rejects Vance’s and the EEOC’s “nebulous” definition of supervisor, saying it creates undue confusion among judges and jurors. Vance lost for two reasons: (1) Davis was not a “supervisor” because she did not have the power to take tangible employment actions against Vance; and (2) Vance was not able to show that Ball State was negligent or unreasonable in how they handled the situation.

What does Ball State mean for employees?

Unfortunately, this decision has limited the scope of employees’ Title VII rights and makes it harder for victims of harassment to sue right away. However, if a non-supervisor coworker is harassing you (see these blog posts for discussions of what “harassment” really is), your employer still has obligations to fulfill. Because harassment from any source can contribute to a volatile work environment, you can still complain to your employer, who then must take action to prevent the harassment from occurring again. If your employer is negligent in taking action and the harassment continues, you may have a valid Title VII claim. As the Court stated, “an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.”

Social Media & Your Job

Have you checked your Facebook, Twitter, Instagram, LinkedIn, YouTube, Pinterest, Reddit, and email accounts today? A lot of employees have; more and more are finding themselves in hot water because of it.

Inappropriate use of social media can prevent you from getting hired or could get you terminated. If you’re thinking, “This wouldn’t happen to me…” take a look at this infographic published by the social media management site, Reppler. Your friends aren’t the only ones looking at your Tweets and Facebook photos! Who can legally view your online activity? What are your rights as an employee?

Using social media at work

An employer has the right to reprimand employees for their online activity during working hours (for example, these eight hospital employees were fired after posting a photo of themselves at work engaging in non work-related activities). Take a look at these statistics from the American Management Association’s 2007 Electronic Monitoring & Surveillance Survey:

  • 66% of all employers electronically monitor their workers’ internet use; 45% track keystrokes and time spent online; 43% store and review computer files
  • 28% of employers have fired employees for email misuse; 30% have terminated employees for internet misuse
  • Violation of company policy, inappropriate content/language use, and excessive personal use are some of the top reasons for internet-based terminations

Most private employees have extremely limited privacy rights in the workplace. All employer-provided communication devices and systems (computers, laptops, work email, cell phones, etc.) are potentially subject to monitoring. If you have access to the internet at work, it is highly likely that your employer is monitoring your online usage. If you signed a consent form when you were hired, you may have also given your employer authorization to monitor personal internet-based accounts you access on the clock. If you don’t want your employer to have free access to your Facebook, Twitter, YouTube, Instagram, and personal email accounts, do not log on at work!

Company Email Accounts

Email conversations are not the same as telephone conversations. Phone conversations are partially protected by privacy laws; email conversations are sent across a public network where you have no right to privacy.

A Pennsylvania District Court set forth the majority rule in 1996 (Smyth v. Pillsbury Company) that employees have no privacy rights when it comes to company emails. The public policy interest a company has in refraining from making inappropriate, unprofessional, and/or offensive comments “outweigh[s] any privacy interest the employee may have in those comments.”

What about the content of my social media pages, regardless of when/where I post?

Job-related content

In 2011, the National Labor Relations Board (the government agency that enforces labor law and investigates labor-related complaints) released these guidelines for protected social media content. To summarize, the National Labor Relations Act (29 U.S.C. §§ 151-69) gives employees (not supervisors) the right to . . .

  • Discuss “the terms and conditions of their employment with others”
  • “Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .”

“Concerted activity” is defined as an activity that has “the object of initiating or inducing or preparing for group action…” and includes bringing “truly group complaints” to the company’s attention.

You may have heard about the case NLRB v. American Medical Response (2011) involving an ambulance company employee (Dawnmarie Souza) who complained about her boss on Facebook. Her status sparked an internet conversation amongst her coworkers; eventually, her supervisor found out and Souza was fired. The NLRB took her case, arguing that the employer’s internet policy was too restrictive and did not allow for protected “concerted activity.” The ambulance company eventually settled, agreeing to revise its “overly-broad social media policy” to allow workers to collectively and publically discuss wages, working hours, and working conditions.

In another case, an employee posted concerns about her employer’s company on a public Facebook page. She discussed wages, company policies, and made other allegations which would have normally qualified her for NLRA protection had she discussed the comment with other employees before or after the posting was made. Because the employee posted without consulting anyone else, her termination was upheld.

Although speaking on behalf of coworkers in order to improve your working conditions (e.g. posting about illegal company practices) is a protected activity, employees should still use extreme caution when doing so. The best way to handle a problem is to report the issue internally where you work; after that, you may want to seek the help of an appropriate government agency (EEOC, SEC, EPA, NLRB, etc.) and contact an attorney.

Don’t I have a First Amendment right to free speech in the workplace?

Nope – not if you’re employed by a private company. Government employees have some limited protections under the First Amendment (e.g. the right to speak on matters of public concern), but not many.

The Supreme Court held in City of San Diego v. Roe (2004) that a police officer’s inappropriate video was not protected speech under the First Amendment. The general public has rights to free speech that public (and private) employees do not.

The only speech that’s protected across the board is “concerted activity” (see discussion above).  Here are some tips about posting online:

Be especially mindful if you’re considering posting any religious, political, or otherwise contentious opinions online. You could get yourself into a sticky situation if you offend someone in the workplace.

Remember that humor is not a defense for a work-related posting! This car salesman was fired for his snarky Facebook posts; this newspaper reporter was, too.

Hashtags (#), a social media tool previously unique to Twitter and Instagram, are now up and running on Facebook. Tagging your posts, e.g., #workstinks or #ihatemyboss, only makes it easier for you to get in trouble. See this article about people getting fired for their Instagram posts and related hashtags.

Other Content

There are dozens of cases where employees have been fired for non work-related internet content because it was inappropriate, offensive, and/or threatened their company’s reputation. This high school teacher and this professional cheerleader were both fired after Facebook photos surfaced showing them partying. This teacher was fired for listing inappropriate and racially charged comments under her “About Me” section. For more examples, check out “The Facebook Fired”, a blog with an extensive archive of social media-related terminations dating back to 2010.

Finally…

Be cautious of your social media activity and email usage at all times, even when you’re not at work! Social media content and internet history are both discoverable (anything you post could potentially be brought in as evidence against you during a trial; see this Pennsylvania case for a discussion of relevant discoverability issues). According to the American Management Association, 24% of employers have had company emails subpoenaed by regulatory agencies and courts; another 15% have been involved in litigation triggered by employee emails. You never know what kind of legal issue you could be stuck in, so email, post, and “like” carefully!

Employers:

You may want to consider utilizing employee consent forms that authorize you as the employer to monitor workplace communications. Lots of companies are starting to implement social media policies, but these could be held invalid if they are too broad. Workplace internet policy is a new and evolving area of the law, so contact an attorney for assistance in drafting these types of documents.

If you discover inappropriate social media content posted by an employee, make sure that content has a link to job performance and/or company reputation before penalizing the worker. If the content in question involved two or more employees (i.e. not a solo act), it may fall under the NLRA’s category of protected speech (which can include “egregious name-calling”). Check with an attorney before taking disciplinary action.

Employers should be careful when reviewing social media content for potential hires; looking at an applicant’s Facebook page exposes you to a lot of liability if you discover an applicant is part of a federally protected class (race, gender, ethnicity, national origin, etc.). Before searching for an applicant online, it would be ideal to obtain consent from him/her.

The Equal Pay Act Turns 50

Monday marked the 50th anniversary of the Equal Pay Act, a landmark piece of legislation designed to eliminate pay discrimination against women that paved the way for many other anti-discrimination laws. President Kennedy originally signed the bill into law on June 10, 1963; according to the U.S. Census Bureau, a gender gap between salaries still exists, with women earning 77 cents for every dollar earned by men. In fact, the EEOC found reasonable cause to believe that discrimination occurred in 829 cases of pay discrimination from 2000 to 2009, recovering $52.7 million for aggrieved parties.

The White House released this report prepared by the National Equal Pay Task Force, which suggests additional legislation (like the Paycheck Fairness Act) could help close the pay gap. If and until then, what are your rights in the workplace? What can you do if you feel you have been paid unfairly because of your gender?

The Equal Pay Act guarantees women and men equal pay for equal work (meaning substantially equal job content, i.e. skill, effort, responsibility, and working conditions) under the same employer. All forms of pay (salary, overtime, vacation pay, severance pay, benefits, etc.) are included. The EPA deals only with the issue of equal pay; it does not cover discrimination in hiring and promotion. Someone who has an EPA claim probably also has claim under Title VII, which covers other types of workplace discrimination.

The following are not valid reasons for your employer to deny you equal pay:

“It costs more to hire women for this position, so I’m going to pay you less.”

“You’re paid differently because you have a different job title.”

“Your male co-workers make more money because men have historically done this job.”

A person with a potential EPA claim need not exhaust administrative remedies at the workplace before filing a complaint in federal court, which can be done within three years of the alleged unequal compensation practice. Under Lilly-Ledbetter, each new practice of unequal compensation restarts the clock. If you feel you are receiving unfair/unequal pay because of your gender, contact an attorney and file a claim with the EEOC.

Just Say “NO”— To Your Employer!

Employees often do not understand when it is okay to say “NO” to an employer and when it is not.  Sometimes, you just have to do things that you do not want to do, and other times you do not.  For example, sometimes you will have to perform job duties that you would rather not do because someone else called in sick or extra help is needed.  I would suggest that you don’t say “no” in those situations because you might get fired for insubordination.  Likewise, if you have to move to a different cubicle or office that you don’t like as much, you should not say “no.”  Other times, you can and should say “No.”   Prospective clients tell me all the time that “my employer made me do it.”  Hogwash!  Did they hold a gun to your head and insist that you do something?  I highly doubt it!  So, lets go through a list of when it is okay to say “no.”

1)  You have just been terminated and HR/your boss is insisting you sign paperwork before you go:  You have just been terminated!  Why would you sign anything the company is asking you to sign?  You no longer have any responsibility to these people.  Often times this “paperwork” will include waivers, releases of claims, acknowledgment that you did something wrong, etc. So what should you say? After you have been terminated, politely ask if you may collect your things and leave and if they give you paperwork, tell them you will take it home with you and have your attorney review it and be back in touch.  If they demand you sign it that very day before leaving, politely say that you will not sign anything without reviewing it with your attorney first and if that is not permissible, then you simply will not be signing the paperwork–period.  You would be shocked at how many times prospective clients call me after having signed all kinds of things waiving their rights, accepting insufficient severance, and sometimes admitting to things that they did not even do!  Don’t let that be you.

2)  You have been offered a severance package but only if you sign TODAY!  This goes along somewhat with Number 1.  If you have been offered a severance package, you should ALWAYS have an attorney review it before you accept it.  Even if they tell you it will be off the table tomorrow–it will still be available if they want rid of you (and your potential claims).  You will do more harm to yourself by signing now.

3)  Your boss is FORCING you to quit.  Again, hogwash!  Did they hold a gun to your head and demand you resign?  No one can make you quit.  Your employer, however, would love it if you did because then you probably cannot collect unemployment against them. Never let someone “force” you to quit—make them fire you!  Continue to go into work as scheduled until you are informed you have been terminated.  If they tell you that you will be terminated if you do not voluntarily resign, then you should tell them that you have no intentions of resigning and they will have to fire you if they no longer want you to work there.  Do not quit!

4)  You are offered a “promotion” but no longer entitled to overtime so your “promotion” is actually a demotion.  Again, this happens all of the time.  You do NOT have to accept a “promotion.”  Sometimes, promotions also demand way more hours for which you are NOT entitled to overtime.  This often happens when folks are promoted to management positions that are exempt from overtime.  Say “no” to the promotion if you do not want the long hours or think you will make less in the long run.

5)  Admission of a performance problem.   Often times, employers will attempt to document alleged performance deficiencies by having you sign a document that is sometimes called a “Personal Action Plan”/”Performance Action Plan”/”Corrective Action Plan.”  These documents are nothing more than an attempt to lay the groundwork for your forthcoming termination.  Employers love these because they come in handy for them in contesting your application for unemployment benefits or if you later file a lawsuit.  Employers love to tout these documents as evidence that you were not doing your job well before they terminated you.  So what should do if you are asked to sign one of these?  In every instance, you should tell them that you are going to have to review it with your attorney before signing.  Do not say “no” automatically, but ask to review it with your attorney first.  Also know, it is time for you to start documenting EVERYTHING that happens at work because more often than not, that termination is right around the corner.

Promotion or Pay Cut- You Decide!

I get calls from potential clients all the time about situations where they THINK they are being offered a promotion but the sneaky employer is actually disguising the promotion when it is in in fact, a pay cut.  Typically, I see this occur when an employee who is paid hourly but is also receiving overtime pay for hours over 40 is offered a “promotion” to another position that is salary BUT is exempt (not qualified for) from overtime.  Employers will often sneak some language into the new paperwork stating that the new position is exempt from overtime and you may miss this until after you have accepted the position.  The end result is that your pay has been cut and you didn’t even know it!  That is where state law comes into play.  The South Carolina Payment of Wages Act (“SCPOWA”) is one of my very favorite laws.  I have written extensively about it in the past. Employers screw up applying this law all the time.  Additionally, employers based out of other states but still doing business in South Carolina (and there are tons) often do not even know about it when they violate state law.  I have argued the SCPOWA in both South Carolina state and federal courts and it often provides you great leverage in your case.

SCPOWA does all kinds of things.  It covers situations where you are not being paid by your employer or where you are not issued your final paycheck after you quit or are terminated.  It also has all kinds of notification rules and record keeping requirements for employers.  The relevant part of the statute in the situation I am discussing today is the requirement that employers give you notification in WRITING at least SEVEN calendar days BEFORE the change in pay becomes effective, if it is going to decrease your salary.  Now, the loophole in the statute is that it also says that “this section does NOT apply to wage increases.”  Employers always argue that because it is a wage INCREASE (at least in your base pay without accounting for overtime) that they did NOT have to give you 7 days written prior notice.  Nice try!  I often create detailed graphs, spreadsheets, and charts showing how the alleged increase was actually a decrease (and therefore, triggering the written notification requirements), especially when you account for the overtime issue.

So what can you do if you are offered a promotion?  Before jumping up and down with excitement, sit down for at least a day and think about it.  Examine whether you were getting overtime before and whether you will still be permitted overtime with the new promotion.  If the answer is “no” then you need to crunch numbers to make sure that with the loss of overtime, you will still be making more money.  You can always turn the “promotion” down!

“What Is My Case Really Worth?” Part Three- ADEA (“Age Discrimination in Employment Act”) Cases

Today is my third and final posting in the three-part series “What Is My Case Really Worth?”  For my final posting in this series, I will be focusing on employment age discrimination cases under the ADEA.

The ADEA protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment.  As we know, you must file a charge of age discrimination with the EEOC prior to bringing a lawsuit.  Also, in order to be covered under the ADEA, your employer/prospective employer must employ 20 or more employees (slightly different from the requirement for 15 employees under Title VII race, gender, national origin, etc. claims.)  Note that it is not illegal for an employer to favor an older worker over a younger worker, even when the younger worker is over 40 years old.  The ADEA does NOT protect workers under the age of 40.  Also, employers can require certain age limits if they have a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business.”  Examples of this exclusion would include hiring a young actor to play a young character in a movie or when public safety is at sake (pilots, bus drivers, etc.)  Assuming that you have a valid ADEA claim, we will discuss the damages you can recover in court.

BACK PAY

Like other types of employment cases, back pay is the most often awarded damage in ADEA cases.  There is no cap on back pay and, in my experience, workers with age cases typically have the largest amount of back pay because they have the hardest time finding a new job .  Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of the age discrimination MINUS any amount you earned in the interim.  It also includes interest, overtime, shift differentials, and raises you would have received had you not been discriminated against.  One thing that is difficult for employees to understand is that your back pay is cut-off and stops if you get a new job making the same amount of money (or more) as your old job.  For example, if you are terminated because of your age on December 1st but get a new job making the same amount or more one week later, you would be entitled to back damages for one week of pay only!  However, if you are unemployed for a year and cannot find a new job, your back pay would be for one year. You have to keep looking for jobs and submitting applications while your case is in court! Your continued search for subsequent comparable employment is a crucial part of mitigating your damages.  Also worth noting, if you accept a new job but it makes less than your old job, you are still entitled to the difference in wages between your old job and new job to the present time. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved.

LIQUIDATED (“DOUBLE”) DAMAGES

Like FMLA cases, ADEA cases permit you to obtain liquidated or “double” damages.  Typically, you take the amount of your back pay and double this amount to arrive at a number for your recoverable amount.  However, liquidated damages are only permitted in cases where the employer’s conduct was WILLFUL.  A willful violation occurs when an employer actually knew that its conduct violated federal law or showed reckless disregard for that fact.

REINSTATEMENT OR FRONT PAY

Although most employees do not want to go back to work or work for the employer that treated them differently due to age, reinstatement to your prior position with your old employer is an option under the ADEA. In my experience, and for perhaps obvious reasons, reinstatement is not a viable or common remedy in employment law cases.

If the Court does not award reinstatement, they might order that an award of “front pay” is appropriate.  Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future.  The court estimates out how long it is likely before the employee could find a new comparable job and awards pay up until that future point in time.  You do not get front pay if you have a new job that is making the same or more than your old job. Unlike back pay, front pay is determined by the judge and not the jury and just because the jury awards you back pay does not mean that the judge will award you front pay.

COMPENSATORY AND PUNITIVE DAMAGES NOT PERMITTED

Also like FMLA cases, compensatory and punitive damages are not recoverable in ADEA cases.  These include pain and suffering, mental distress, physical suffering, mental impairment, etc. Also, punitive damages or “punishment” damages are not recoverable.

ATTORNEY’S FEES AND COSTS

Reasonable attorney’s fees and costs are awarded, if you prevail.

WAIVER AND WAITING PERIOD FOR ADEA CASES ONLY

An interesting thing that makes age cases different from other employment suits is that an individual may waive his/her rights based on the ADEA at the employer’s request.  You should NEVER waive your rights under the ADEA without speaking with an attorney first.  Additionally, a proper waiver must contain a very strict list of items to be legally enforceable.  The waiver and waiting period typically come into play with severance package renegotiations and settlement agreements.  Under the ADEA, you have 7 days to revoke an agreement after it has been made.  Additionally, there is a 21 day waiting period for employees to consider an agreement proposing a waiver of rights prior to signing.

SUMMARY

ADEA cases are somewhat similar to FMLA cases in the types of damages recoverable.  The most likely damage you will be awarded is your back pay.  The ADEA also provides for liquidated damages in an amount equal to your back-pay (“double damages”) IF you can prove a willful violation.  This is not always easy to do.  Reinstatement or front pay is at the court’s discretion but also a possibility.  Compensatory and punitive damages are not permitted in ADEA cases.  Lastly, you can recover attorney’s fees and costs.  ADEA cases are unique in that if you settle a claim with your employer, you will have a 7 day waiting period in which you can revoke the settlement.  Employers must also provide you a 21 day waiting period if they are requesting you to waive your ADEA rights for some form of severance package.

“What Is My Case Really Worth?” Part Two- Family and Medical Leave Act (“FMLA”) Cases

Today I am releasing Part Two of the three part series in “What is My Case Really Worth?”  Part Two focuses on Family and Medical Leave Act (“FMLA“) cases.  As we all know, the FMLA entitles an employee who has been working with a company for a year or more to twelve weeks of unpaid leave for a serious health condition; to care for a parent, spouse, or child with a serious medical condition; or for the birth, adoption, or beginning of foster care for a child.  We also know that an employer must employ 50 or more employees within a 75-mile radius of the employee’s workplace for them to fall under the Act.  An employee using FMLA leave is entitled to have their same position (or a comparable position in terms of pay, advancement opportunities, and duties) restored to them upon returning from FMLA leave.  I have written extensively on ways that an employer can interfere with or retaliate against employees for using FMLA leave.  We also know that you do NOT need to file an EEOC complaint to bring an FMLA claim.  Assuming you have a valid FMLA claim, what damages are you entitled to under the law?

BACK PAY

Back pay is the most often awarded damage in FMLA cases.  There is no cap on back pay.  Back pay includes all of the wages, salary, bonuses, commissions, and benefits (health insurance, 401k, paid time off, life insurance, etc.) lost because of FMLA interference or retaliation MINUS any amount you earned in the interim.  It also includes interest, overtime, shift differentials, and raises you would have received had you not been terminated.  One thing that is difficult for employees to understand is that your back pay is cut-off and stops if you get a new job making the same amount of money (or more) as your old job.  For example, if you are terminated for using FMLA leave on December 1st but get a new job making the same amount or more one week later, you would be entitled to back damages for one week of pay only!  However, if you are unemployed for a year and cannot find a new job, your back pay would be for one year. You have to keep looking for jobs and submitting applications while your case is in court! Your continued search for subsequent comparable employment is a crucial part of mitigating your damages.  And in case you are asking, “how will my old employer even know that I am working now?,” they are going to request copies of your tax returns during the course of discovery and you will be obligated to give these up.  Also worth noting, if you accept a new job but it makes less than your old job, you are still entitled to the difference in wages between your old job and new job to the present time. For example if you were making $50,000 per year as a store manager before being terminated, but then two months later find a new job as an assistant manager at a smaller store making $35,000 per year, you would be entitled to back pay for the full two months while you weren’t working, plus $15,000 annually thereafter (the difference between your old and new job) until the matter is resolved.

LIQUIDATED DAMAGES (“DOUBLE DAMAGES”), PLUS INTEREST

Unlike Title VII and the ADA, the FMLA provides for liquidated damages.  I call liquidated damages “double damages” because they are typically calculated by multiplying your back pay times two.  By statute, liquidated damages are assumed for a violation of the FMLA.  However, an employer can avoid liquidated damages if they can prove that the action or omission was in good faith and that they had an objective reasonable ground to believe that the act or omission did not violate the FMLA.  Courts have found that good faith requires proof that the employer took affirmative steps to comply with the FMLA. Liquidated damages are the rule, not the exception, and the burden is on the employer to establish that their actions were taken in good faith.  That is a bonus for employees!

REINSTATEMENT OR FRONT PAY, AT THE COURT’S DISCRETION

Although most employees do not want to go back to work for the employer that interfered with or retaliated against them for using FMLA leave and that they are now suing, reinstatement to your prior position with your old employer is an option under the FMLA. In my experience, and for perhaps obvious reasons, reinstatement is not a viable or common remedy in employment law cases.

If the Court does not award reinstatement, they might order that an award of “front pay” is appropriate.  Front pay is available at the court’s discretion for employees who are still unemployed and where it appears unlikely that the employee will be able to get a new job for some time into the future.  The court estimates out how long it is likely before the employee could find a new comparable job and awards pay up until that future point in time.  You do not get front pay if you have a new job that is making the same or more than your old job. Unlike back pay, front pay is determined by the judge and not the jury and just because the jury awards you back pay does not mean that the judge will award you front pay.

ATTORNEY’S FEES AND COSTS

Reasonable attorney’s fees and costs are awarded, if you prevail.

COMPENSATORY AND PUNITIVE DAMAGES NOT PERMITTED

The biggest difference between FMLA cases and other types of employment related lawsuits is that the FMLA does NOT provide for punitive or compensatory damages.  Compensatory damages are also called actual damages and include emotional distress, physical distress, pain and suffering (grief, anxiety, depression, embarrassment), medical bills, and mental impairment.  Punitive damages are commonly referred to as “punishment damages” and punish the company for the wrong-doing, hopefully deterring them from committing the same offenses in the future.  These damages are NOT permitted under the FMLA (perhaps the trade-off for allowing liquidated damages, as discussed above).  In South Carolina, we do have a state cause of action called “intentional infliction of emotional distress” and employees can sometimes plead this cause of action if they have suffered severe emotional distress.  This cause of action does not have a cap and permits both compensatory and punitive damages. You must have proof of mental suffering (psychiatric treatment notes, etc.) and this cause of action can sometimes open you up to a mental examination from the other side and require retaining expert witnesses, which can be expensive.  However, it is an option if the facts support that you have sought significant psychiatric treatment from the employer’s actions.  Not all FMLA cases will support a cause of action for intentional infliction of emotional distress.

MEDIATION REQUIRED

Like Title VII and ADA cases, FMLA cases in federal court must be mediated pursuant to District Court of South Carolina rules.  This allows both sides the opportunity to work out a compromise.

SUMMARY

If you have a valid FMLA claim, you are likely to receive your back pay if you prevail.  You might also receive liquidated/double damages if the employer cannot put up a good faith reason for interfering with or retaliating against you for using or seeking FMLA leave.  This burden is on the employer and not you!  You cannot get compensatory or punitive damages but attorney’s fees and costs may be awarded.  It is also worthy of note that FMLA cases generally have high jury appeal.  Someone who has been fired or retaliated against for using FMLA leave due to a serious health condition or a family member’s serious health condition can present a very sympathetic case that jury members can often relate to.  It is also important to remember that the FMLA provides for both employer and INDIVIDUAL liability so both your old employer and all of the individuals personally involved in making or taking action against your FMLA leave can be sued (i.e., your supervisor, HR director, etc.)