Monthly Archives: February 2012

Agencies Issue Guidance on Group Health Summary Disclosures

The DOL, HHS, and Treasury have issued new final guidance and template documents regarding group health plans’ and health plan issuers’ obligations to provide participants a summary of benefits and coverage, a new requirement under the PPACA.

The DOL has provided template disclosure documents, available on its website.

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Being Rude to Everyone Is Not Discrimination

A Richmond federal judge has granted an employer summary judgment in a sexual harassment case involving a public school principal in Colonial Heights.

The general basis of the claim was that the new principal–who was hired to impose greater discipline and structure–was demanding, intimidating, and difficult to work with. There were two allegations of the principal touching female teachers, but in a nonsexual way. The vast majority of the school’s employees were female, and therefore bore the brunt of his intimidating behavior.

In dismissing the case, the judge noted that simply because female employees faced harsh working conditions does not automatically mean the actions were “because of” their sex. A superior may be equally rude to everyone, and the simple fact that the plaintiffs were female in this case did not mean the principal’s difficult attitude was in any way motivated by their sex. They therefore failed to prove an essential element of a sexual harassment case.

 

$1.1 Million in Attorneys’ Fee for Former Employees

In a move that hopefully will inspire employers to be careful when lodging complaints against former employees, the Fourth Circuit upheld a $1.1 million award of attorneys’ fees and costs to four former employees.

Wachovia Securities (now part of Wells Fargo Advisors) filed arbitration proceedings against four former brokers who left for a competing firm, accusing them of stealing documents and sensitive information. Wachovia apparently fell far short of proving any misappropriation, and the arbitrators awarded the four employees over one million dollars in attorneys’ fees and costs they incurred as a result of the arbitration.

The Fourth Circuit upheld the award of fees and costs on appeal. Given arbitrators’ wide latitude and the increasing use of mandatory arbitration provisions for employment disputes, this should serve as a warning to employers that arbitration is not the solution for an otherwise bad case.

4th Circuit on Inability to Work Overtime Under ADA

The 4th Circuit, in a published opinion last week, held that a former employee’s inability to work overtime did not “substantially limit” a major life activity as to give him protection under the ADA.

The court held that the employee, who was released to work forty hours per week, but who could not work overtime, was not substantially limited in the major life activity of working. As a result, the employee was not deemed “disabled” under the ADA and therefore received no protection.

The 4th Circuit noted that the majority of other courts in the county follow a similar rule.

Constitution Doesn’t Protect Town Employee’s Internal Complaints

Following a broad ruling by the U.S. Supreme Court in 2006, a federal judge held last week that a Virginia town employee’s internal complaints to his supervisors were not constitutionally protected.

The employee was the head of the town’s water and waste utilities department until he was fired. Over the course of several years, he wrote detailed complaints to his supervisor, the town manager, regarding concerns over the sewer systems and related issues. All the concerns he raised were within his job responsibilities, and he did not relay his concerns to the town council or the press until after he was terminated.

The employee sued, claiming he was retaliated against for exercising his rights under the First Amendment. The trial court disagreed, ruling that government employees speaking as part of their jobs have no First Amendment protection. Of course, they are free to speak as private citizens regarding issues of public interest, but speech in the course of the employee’s job is not protected at all.

FMLA Doesn’t Apply to Overseas Worksites

In a ruling of first impression, a federal trial judge in Alexandria this week held that the Family and Medical Leave Act does not apply to a U.S. citizen employed by a U.S. company performing services at the U.S. embassy in Baghdad, Iraq.

The plaintiff, an employee of a State Department contractor, worked inside the U.S. embassy in Baghdad. She became sick and had to travel to Egypt for medical treatment. When she tried to return, her employer told her they did not have a position for her, and that she should return to the United States. She requested reemployment several times; the company failed to respond.

The employee sued in Alexandria, claiming her employer violated the FMLA by failing to return her to her position after recovering.

The court granted the employer’s motion to dismiss, ruling the FMLA does not apply to overseas work locations, regardless of the fact that the employer was a U.S. company and the employee was a U.S. citizen. It held the location¬†of the worksite was the controlling factor, and that any worksite not in the United States or its possessions is beyond the reach of the FMLA.