ERISA Lawyer Blog

After Congress expanded the American With Disabilities Act (the "ADA") in 2008, it has been thought that almost any medical problem of an employee would be treated as a disability under the ADA. But in Allen v. SouthCrest Hospital, No. 11-5016 (10th Cir. 2011), the Tenth Circuit Court of Appeals (the "Court") ruled that migraine headaches are not an ADA disability. Here is what happened.

In this case, the plaintiff, Alethia Allen ("Allen"), worked as a medical assistant for the defendant, SouthCrest Hospital ("SouthCrest"). Her duties involved working with patients. While employed at SouthCrest, Allen began to experience migraine headaches. The headaches occurred several times per week, but she did not suffer from them on a daily basis. The migraines varied in severity. At times she could keep working. At other times she could not. Allen was eventually fired. She subsequently filed this suit, which included an ADA claim for failure to accommodate and wrongful termination. The district court granted summary judgment against her, and she appealed. The question for the Court: was Allen disabled for ADA purposes?

In analyzing the case, the Court said that a person is "disabled" under the ADA if she suffers from "a physical or mental impairment that substantially limits one or more major life activities." ( citing 42 U.S.C. § 12102(1)(A)). To satisfy this definition, a plaintiff must (1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities. As to condition (2), Allen contended that her migraines substantially limit the major life activities of "working" and "caring for herself." The issue then becomes whether condition (3) is met- specifically, whether Allen's migraine headaches substantially limited her ability to perform the foregoing activities.

As to Allen's ability to care for herself, the Court said that, taken as a whole, the evidence showed that Allen's migraines, when active and treated with medication, did not permit her to perform activities to care for herself in the evenings and compelled her to go to sleep instead. But the Court further said that it was her burden to make more than a conclusory showing that she was substantially limited in the major life activity of caring for herself as compared to the average person in the general population. She failed to do this. Allen presented no evidence concerning such factors as how much earlier she went to bed than usual, which specific activities of caring for herself she was forced to forego as the result of going to bed early, how long she slept after taking her medication, what time she woke up the next day, whether it was possible for her to complete the activities of caring for herself the next morning that she had neglected the previous evening, or how her difficulties in caring for herself on days she had a migraine compared to her usual routine of evening self-care. In sum, Allen's claim of a substantial limitation in the major life activity of caring for herself was not sufficiently developed or supported by the evidence.

As to Allen's ability to work, Allen admitted that her condition affected her work only for one particular doctor at SouthCrest (there were others she could have worked for). Under case law, to be disabled in the major activity of working, an employee must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Work for a single physician does not qualify as a class or broad range of jobs. This obtains even under the amendments made to the ADA in 2008 and the underlying regulations that became effective in 2011. Thus, Allen failed to show that her migraines substantially limited her major life activity of work.

Based on the above, the Court concluded that condition (3) was not met, and therefore Allen was not disabled for ADA purposes. Accordingly, the Court affirmed the district court's summary judgment against Allen. Thought: reading this case, the result might have been different if the complaint was more detailed, or if a different job setting was involved. The case should not lead one to dismiss the breadth and implications of the 2008 amendments to the ADA.

In Pereda v. Brookdale Senior Living Communities, Inc., No. 10-14723 (11th Cir. 2012), the plaintiff, Kathryn Pereda ("Pereda"), was appealing the district court's dismissal of her complaint against defendant, Brookdale Senior Living Communities, Inc. ("Brookdale"), alleging interference and retaliation under the Family and Medical Leave Act of 1993 (the "FMLA"). The district court held that because Pereda was not eligible for leave under the FMLA at the time she was terminated by Brookdale, she could not bring either claim under the FMLA. The question for the Eleventh Circuit Court of Appeals (the "Court"): does the FMLA protect a pre-FMLA eligibility request for post-FMLA eligibility leave?

In this case, Pereda began her employment with Brookdale on October 5, 2008. In June of 2009, Brookdale was advised that Pereda was pregnant and would be requesting FMLA leave after the birth of her child on or about November 30, 2009. Pereda alleges that, after learning about her pregnancy, Brookdale began harassing her, causing stress and other complications in her pregnancy, and that Brookdale's management began denigrating her job performance and placed her on a performance improvement plan with unattainable goals. Brookdale fired Pereda in September of 2009. This suit followed.

In analyzing the case, the Court said that, in order to receive FMLA protections, one must be both: (1) eligible for FMLA leave, meaning having worked the requisite hours and having been employed for the requisite period- that is, he or she has worked at least 1,250 hours in the past 12 months, and has been employed by the employer for a total of at least 12 months, and (2) entitled to FMLA leave, meaning an employee has experienced a triggering event, such as the birth of a child. Conditions (1) and (2) must both be met by the date the FMLA begins. Here, at the time she requested FMLA leave, she had not worked the requisite hours or been employed during the requisite period, and had not yet experienced the triggering event, the birth of her child. However, she would have met conditions (1) and (2) by the time she gave birth and began her requested leave.

As to Pereda's interference claim, the Court said that, because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child; otherwise, there is no protection upon providing the notice. As to Pereda's retaliation claim, the Court said that a pre-FMLA eligible request for post-FMLA eligible leave is protected activity, because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave. As such, the Court ruled that Pereda was entitled to FMLA protection at the time she requested the FMLA leave (in June, 2009), so that she could proceed with her interference and retaliation FMLA claims. Accordingly, the Court reversed the district court's decision.

According to a News Release (dated 1/30/12), the U.S. Department of Labor (the "DOL") has proposed amendments to the regulations under the Family and Medical Leave Act (the "FMLA") which will expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees. The News Release says the following.

The FMLA, enacted in 1993, entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The proposed rules would extend the entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military. At this time, the law only covers family members of "currently serving" service members. Additionally, the proposed rules would expand the military family leave provisions of the FMLA by extending qualifying exigency leave to employees whose family members serve in the regular armed forces. Currently, the law only covers families of National Guard members and reservists.

For airline flight crew employees, the proposed rules make the benefits of the FMLA more accessible. It would add a special hours of service eligibility requirement for them and specific provisions for calculating the amount of FMLA leave used that better take into account the unique -- and often difficult to track -- hours worked by crew members.

Additional information on the FMLA, including information and fact sheets on the proposed rules, is here.

The U.S. Department of Labor (the "DOL") has issued Fact Sheet # 77B, which is intended to provide general information concerning the prohibition of the Family and Medical Leave Act (the "FMLA") on retaliating against an individual for exercising his or her rights or participating in matters protected under the FMLA. The Fact Sheet states the following:

Prohibitions. Section 105 of the FMLA and section 825.220 of the FMLA regulations prohibit the following actions:

• An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.
• An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right.
• An employer is prohibited from discharging or in any other way discriminating against any person, whether or not an employee, for opposing or complaining about any unlawful practice under the FMLA.
• All persons, whether or not employers, are prohibited from discharging or in any other way discriminating against any person, whether or not an employee, because that person has --
--Filed any charge, has instituted, or caused to be instituted, any proceeding under or related to the FMLA;
--Given, or is about to give, any information in connection with an inquiry or proceeding relating to any right under the FMLA; or
--Testified, or is about to testify, in any inquiry or proceeding relating to a right under the FMLA.

Examples of prohibited conduct include:
• Refusing to authorize FMLA leave for an eligible employee,
• Discouraging an employee from using FMLA leave,
• Manipulating an employee's work hours to avoid responsibilities under the FMLA,
• Using an employee's request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or,
• Counting FMLA leave under "no fault" attendance policies.

Any violations of the FMLA or the Department's regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA.

Employer Coverage. FMLA applies to all public agencies, including state, local and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

Enforcement. The DOL's Wage and Hour Division administers and enforces the FMLA for all private, state and local government employees, and some federal employees. The Wage and Hour Division investigates complaints. If violations cannot be satisfactorily resolved, the DOL may bring action in court to compel compliance. An employee may also be able to bring a private civil action against an employer for violations. In general, any allegation must be raised within two years from the date of violation.

New York State's Wage Theft Protection Act (the "Act") requires private employers to provide to each employee, who works in New York State, a notice at time of hire and once each year pertaining to the employee's pay and related matters. The Act applies to employees hired after April 8, 2011. The first annual notice must be provided during the period starting on January 1, 2012, and ending on February 1, 2012.

I have written an article on the annual notice requirement. Let me know if you would like a copy by giving me a call (516-307-1550) or using the CONTACT US feature on the website.

In Tiberio v. Allergy Asthma Immunology of Rochester, P.C., Docket No. 11-2576-cv (2nd Cir. 2011), the Court clarified that the 90-day limitations period for filing a suit for employment discrimination begins to run when a right-to-sue letter is first received either by the plaintiff or by the plaintiff's counsel. In this case the plaintiff, Lorrie A. Tiberio ("Tiberio"), was appealing the judgment of the district court dismissing her disability discrimination claim under the Americans with Disabilities Act (the "ADA") as untimely. Tiberio was fired from her position with the defendant, the Allergy Asthma Immunology of Rochester, P.C. ("AAIR"), on May 12, 2010, following accusations that she had unlawfully gained access to the medical charts of other employees and had "falsely order[ed] prescriptions." Tiberio thereafter filed a disability discrimination charge with the New York State Division of the Human Rights and the EEOC, and the latter issued a right-to-sue letter on November 24, 2010. The right-to-sue letter was mailed to Tiberio, with copies to AAIR and to Tiberio's counsel, Christina Agola. Tiberio commenced this action by filing a complaint in the district court on February 28, 2011, 96 days after the right-to-sue letter was issued.

In analyzing the case, the Court said that, in order to be timely, a claim under the ADA must be filed in federal district court within 90 days of the claimant's receipt of a right-to-sue letter from the EEOC. There is a presumption that a notice provided by a government agency was mailed on the date shown on the notice. There is a further presumption that a mailed document is received three days after its mailing. The initial presumption is not dispositive, however, if the plaintiff presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail. In this case, the plaintiff's complaint states that Tiberio actually received the right-to-sue-letter , but does not specify the date of receipt. In the absence of contrary evidence, the Court presumed that Tiberio received the notice on November 27, 2010, three days after the notice was mailed.

On appeal, Tiberio contended that her counsel received the right-to-sue letter on November 29, 2010, that the date on which her attorney received this letter should control the limitations inquiry, and as such (given that the 90th day from that date fell on the weekend) her February 28, 2011 filing was timely. However, the Court disagreed. It concluded that-based on the applicable statute and prior case law- the 90-day limitations period for bring the suit starts with the earlier of the day Tiberio received the letter or the day her counsel received the letter, here November 27, 2010. As such, her suit-filed 93 days later- was not filed timely, and the Court upheld the district court's conclusion.

In Kellar v. Summit Seating Incorporated, No. 11-1221 (7th Cir. 2011), the plaintiff, Susan Kellar ("Kellar"), alleged that she is entitled to overtime, under the Fair Labor Standards Act (the "FLSA"), for work performed prior to the official start of her work shift. The district court granted summary judgment in favor of her employer, defendant Summit Seating Incorporated ("Summit"), and Kellar appealed.

Kellar claimed that she regularly arrived at Summit's factory (they made seats for buses and other vehicles) between 15 and 45 minutes before the start of her 5:00 a.m. shift. Upon arrival, Kellar-a sewing manager-said that she would spend: (1) about 5 minutes unlocking doors, turning on lights, turning on a compressor, and punching in on the time clock, (2) about 10 minutes preparing coffee for the rest of Summit's employees, drinking coffee herself and smoking a cigarette, (3) 5 to 10 minutes (or longer) reviewing schedules, and gathering and distributing fabric and materials to her subordinates' workstations, and (4) her remaining pre-shift time performing "prototype work" (preparing models for production), cleaning the work area, or checking patterns. According to Kellar, no one told her that she had to come in before her shift. In February 2009, Kellar voluntarily resigned, and brought this suit under the FLSA for overtime for her pre-shift work.

The Court found that Kellar's pre-shift activities were not non-compensable "preliminary" activities under the Portal-to-Portal Act of 1947. Rather, Kellar's activities were "principal" , and compensable and eligible for overtime, since they were integral and indispensable to the work that Kellar performed as a sewing manager, even if they occurred before the beginning of Kellar's work shift. The Court found further that Kellar's pre-shift activities were not "de minimis", and did not fail to be compensable and eligible for overtime on that basis. Kellar's activities involved a substantial amount of time. In contrast, work is de minimis only when it constitutes a few seconds or minutes of work beyond the scheduled working hours that cannot administratively be accounted for without extreme difficulty.

However, the Court found that Summit had no actual or constructive knowledge of Kellar's work. The FLSA does not require an employer to pay for work that it did not know about, and had no reason to know about. Her time cards showed she had punched in early, but that does not prove that she was working prior to the start of her shift. During her 8 years of working for Summit, she never told the owners, or any of the other managers, that she was working overtime. Further, Kellar was aware of Summit's policy prohibiting overtime work absent express permission. Again, no one had given her permission to do the pre-shift work. The Court concluded that, without the employer's knowledge about Kellar's pre-shift activities, those activities were not compensable or eligible for overtime, and the Court affirmed the district court's summary judgment in Summit's favor.

In Johnson v. Board of Trustees of Boundary County School District No. 101, No. 10-35233 (9th Cir. 2011), the question for the Ninth Circuit Court of Appeals (the "Court") was whether a disabled teacher is a "qualified individual with a disability" under the Americans with Disabilities Act (the "ADA").

In this case the plaintiff, Patricia ("Trish") Johnson ("Johnson"), who had a history of depression and bipolar disorder, taught special education in the Boundary County School District No. 101 (the "District") in Idaho for a decade. Under state law, she was required to have a teaching certificate. Her certificate was set to expire prior to the start of the 2007-2008 school year, and at that time she was short three semester hours of college credit that was needed to renew. She was told by the District that, in order to teach during the 2007-2008 school year, she would need to petition the District's Board of Trustees ("Board"), the defendant in the case, to apply for provisional authorization to teach without the certificate. However, the Board denied Johnson's request for the authorization, and subsequently terminated Johnson's employment with the District. Johnson then filed suit against the District alleging, among other things, an ADA violation.

In analyzing the case, the Court said that Title I of the ADA prohibits "discriminat[ion] against a qualified individual with a disability because of the disability of such individual in regard to the hiring, advancement, or discharge of employees." (citing 42 U.S.C. § 12112(a)). Thus, to prevail on her ADA claim, Johnson first must show that she is a "qualified individual with a disability". The Court further said that the ADA defines "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." (citing 42 U.S.C. § 12111(8)). Under EEOC regulations, a "qualified individual with a disability" is one "who satisfies the requisite skills, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." (citing 29 C.F.R. § 1630.2(m)).

The Court then said that the issue is whether Johnson's lack of legal authorization to teach disqualifies her from being a "qualified individual". The Court concluded that it did. In so concluding, the Court noted that the employer does not have to provide any reasonable accommodation -here providing the legal authorization-to help an employee meet job qualifications such as education and experience, as opposed to helping an employee perform essential job functions. Johnson does not challenge the need to obtain the legal authorization as itself being discriminatory against a disabled individual. Thus, the Court ruled that Johnson is not a "qualified individual with a disability", and therefore does not have a claim under the ADA.

In Earl v. Nielson Media Research, Inc., No. 09-17477 (9th Cir. 2011), the plaintiff, Christine Earl ("Earl"), was appealing the district court's grant of summary judgment against her on, among others, her claim of age discrimination under California law against her former employer, Nielson Media Research, Inc. ("Nielson"). Earl had brought the suit after Nielson had fired her. The Ninth Circuit Court of Appeals (the "Court") ruled that reasonable jurors could find that Nielsen's proffered reason for firing Earl was a pretext for age discrimination. It therefore reversed the district court's grant of summary judgment on the age discrimination claim.

While working for Nielson, on several occasions, Earl had violated Nielson policies. As a result, Nielsen placed Earl on a Developmental Improvement Plan ("DIP"). A DIP is an informal, nondisciplinary tool that Nielsen uses to notify an employee that his or her performance fell below company standards. A DIP is distinct from a Performance Improvement Plan ("PIP"), which is part of Nielsen's disciplinary process. Whereas Earl's DIP stated that her failure to meet company expectations in the future may result in the implementation of the disciplinary process, a PIP states that failure to meet expectations may result in further disciplinary action up to and including termination. At no point during her time at Nielsen did Earl receive a PIP. Nevertheless, Nielson later fired Earl. She was 59 years old when terminated. She then filed this suit.

In analyzing this case, the Court said that California law prohibits employers from discharging or dismissing any employee over 40 years old based on the employee's age. Borrowing from the federal three-part McDonnell Douglas test, first, the plaintiff bears the burden of establishing a prima facie case of age discrimination. Second, once the plaintiff has done so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Third, if the employer does so, the plaintiff must raise a triable issue that the employer's proffered reason is a pretext for age discrimination. In this case, the issue is whether the plaintiff, Earl, has met her burden in the third step and may therefore avoid summary judgment. The Court found that, here, Earl raises a triable issue by presenting evidence that :

--Nielsen treated younger, similarly situated employees more favorably- Nielsen did not terminate--and in one instance may not have even disciplined--younger "recruiters" in their 30s and 40s when those recruiters repeatedly violated Nielsen policies similar to those violated by Earl; and

-- in terminating Earl without first issuing her a PIP, Nielsen deviated from its normal disciplinary procedure.

As such, Earl may avoid summary judgment.

In Dediol v. Best Chevrolet, Incorporated, No. 10-30767 (Fifth Cir. 2011), the plaintiff, Milan Dediol ("Dediol"), was appealing the district court's grant of summary judgment for his former employer, defendant Best Chevrolet, Incorporated ("Best Chevrolet").

Dediol was employed at Best Chevrolet from June 1, 2007, until August 30, 2007. During his tenure, he worked directly under Donald Clay ("Clay"), Best Chevrolet's Used Car Sales Manager. Dediol was 65 years old during his employment with Best Chevrolet. Dediol alleges that, on July 3, 2007, friction surfaced between him and Clay when he requested permission to take off from work for the next morning--July 4, 2007--to volunteer at a church event. Dediol received permission from Clay's assistant manager, Tommy Melady ("Melady"), but Clay overruled Melady using derogatory words, laced with explatives. Dediol claims that, after July 4, Clay referred to Dediol using derogatory names (e.g., "Old Man" and "Pops"), made comments related to Dediol's religion and threated, intimidated and provoked fights with Dediol, in the presence of Melady and other employees. Dediol stopped coming to work after August 30, 2007, and was terminated for abandoning his job. He eventually brought this suit.

One claim Dediol made was age discrimination, under the Age Discrimination in Employment Act (the "ADEA"), based on the hostile work environment at Best Chevrolet. The Court adopted the rule, for the Fifth Circuit, that such a claim is viable. It stated that a plaintiff may make out a prima facie claim of age discrimination under the ADEA by establishing that: (1) he was over the age of 40; (2) he was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer. As to prong (3), a plaintiff must demonstrate that the harassment was objectively unreasonable. A workplace environment is hostile when it is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently pervasive to alter the conditions of the victim's employment. This environment must appear hostile or abusive to a reasonable person. The Court ruled that Dediol had established a prima facie case of an ADEA violation under the 4 prong test, and overturned the district court's grant of summary judgment against him on this point.

In IR-2011-95 (9/21/11) (the "Announcement"), the Internal Revenue Service (the "IRS") announced that it has begun a new program, called the Voluntary Classification Settlement Program (the "VCSP"). The VCSP will enable many employers to resolve past worker classification issues-primarily incorrectly classifying workers as independent contractors (or other nonemployees) instead of employees- and become compliant with the law by paying a small amount to cover past payroll tax obligations.

According to the Announcement, to be eligible for the VCSP, an employer must:
• have consistently treated the workers as nonemployees,
• have filed all required Forms 1099 for the workers for the previous three years, and
• not currently be under audit by the IRS, the Department of Labor or a state agency concerning the classification of these workers.

An eligible employer may apply for the VCSP by filing Form 8952 (Application for Voluntary Classification Settlement Program), at least 60 days before it wants to begin treating the workers as employees. Employers accepted into the VCSP will pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years. Participating employers will, for the first three years under the VCSP, be subject to a special six-year statute of limitations for their payroll taxes, rather than the usual three years.

The Announcement says that full details about the VCSP, including FAQs, will be available on the Employment Tax pages of IRS.gov, and in Announcement 2011-64.

According to a News Release (9/1/9/11), the Department of Labor (the "DOL") and the Internal Revenue Service (the "IRS") have signed a memorandum of understanding that will improve joint departmental efforts to end the business practice of misclassifying employees as independent contractors in order to avoid providing employment protections and employee benefits. In addition, seven states signed memorandums of understanding-having the same goal of preventing employee misclassification- with the DOL's Wage and Hour Division and, in some cases, other DOL divisions. The signatory states are Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington. Also, Hawaii, Illinois, Montana and New York are expected to enter into similar memorandums with the DOL. These memorandums will enable the DOL to share information and coordinate law enforcement with the IRS and signing states.

The News Release states that business models that attempt to change, obscure or eliminate the employment relationship are not inherently illegal, unless they are used to evade compliance with federal labor laws -- for example, if an employee is misclassified as an independent contractor and subsequently denied rights and benefits to which he or she is entitled under the law. These memorandums of understanding among the DOL, the IRS and the states arose as part of the DOL's Misclassification Initiative. This initiative was launched under the auspices of Vice President Biden's Middle Class Task Force, with the goal of preventing, detecting and remedying employee misclassification.

This is a reminder about a new reporting requirement, which is part of New York's new hire reporting rules. Effective as of July 15, 2011, an employer with employees working in New York State must report information on any dependent health care coverage that the employer provides to those employees.

The information must include: (i) the employee's name, address and social security number and date of hire, (ii) the employer's name, address and employee identification number, and (iii) the availability of the dependent health care coverage (including the date of availability). The information must be filed within 20 days after the employee's date or hire (or rehire), and quarterly thereafter. The information may initially be filed on-line (at www.nynewhire.com), on Form IT-2104 (Employee's Withholding Allowance Certificate) or IT-2104-E (Certificate of Exemption From Withholding), or in any written form that includes the required information. The information is also reported quarterly on Form NYS-45 (as updated for use in the third quarter of 2011).The penalty for the failure to provide the information is $20 per employee.

In Equal Employment Opportunity Commission v. Minnesota Department of Corrections, No. 10-2699 (8th Cir. 2011), the Minnesota Law Enforcement Association ("MLEA") was appealing the district court's grant of summary judgment to the Equal Employment Opportunity Commission ("EEOC"). The district court had concluded that, as a matter of law, MLEA's retirement plan (the "Plan") arbitrarily discriminates against older employees on the basis of age, in violation of the Age Discrimination in Employment Act (the "ADEA").

At issue was the "Early Retirement Incentive Program" ("ERIP") provision of the Plan. The ERIP provides that a participant who retires during the pay period of his or her 55th birthday, and who is covered by the Plan, is eligible to receive an unreduced continuation of the employer's contribution toward his or her health- and dental-insurance premiums payable under the Plan, until he or she reaches age 65. Meanwhile, any employee between the ages of 50 and 55 who elects to retire--and who has a certain length of tenure with MLEA --receives an ERIP benefit but less. Finally, any employee between the ages of 55 and 60-60 being the age of mandatory retirement--who chooses to retire receives no continuation of employer contributions. Thus, an employee must retire at 55 or lose the early retirement benefit. An employee hired after age 55 never could obtain the early retirement benefit. The question for the Eighth Circuit Court of Appeals the "Court"): does the ERIP violate the ADEA?

In analyzing the case, the Court said that where, as here, it is undisputed that an employee is ineligible for the early retirement benefit under the ERIP if he or she is over a certain age-here age 55-the ERIP is discriminatory on its face. The ADEA has a safe- harbor provision, which if satisfied will shield the employer from an ADEA violation. This safe-harbor provision states that it shall not be unlawful for an employer to "observe the terms of a bonafide employee benefit plan" that is a "voluntary early retirement incentive plan consistent with the relevant purpose of [the ADEA]". An arrangement such as the ERIP, which contain adverse changes in employment benefits based solely upon age, is inconsistent with the purposes of the ADEA. These purposes include the prohibition of arbitrary age discrimination, such as the disappearance of a benefit upon the attainment of a certain age. The ERIP has an age 55-cliff, meaning that the early retirement benefit vanishes when an employee attains age 55. This cliff arbitrarily discriminates on the basis of age, and is inconsistent the purposes of ADEA. Thus, the safe-harbor provision is not applicable to the ERIP. The Court concluded that the ERIP violated the ADEA, and affirmed the district court's judgment.

In Walls v. Central Contra Costa Transit Authority, No. 10-15967 (9th Cir. 2011), the Plaintiff, Kerry Walls ("Walls"), was appealing the district court's grant of summary judgment in favor of the defendant, Central Contra Costa Transit Authority ("CCCTA").

Walls is a former bus driver for CCCTA. He was terminated from employment with CCCTA on January 27, 2006. In anticipation of being rehired, on March 1, 2011, Walls requested a leave under the Family and Medical Leave Act (the "FMLA"). Walls was reinstated to employment with CCCTA on March 2, 2006, pursuant to an agreement executed over the course of a grievance process between Walls, his union representative, and CCCTA (the "Last Chance Agreement" ). On March 3, 2006, Walls incurred an unexcused absence that violated the attendance requirements of the Last Chance Agreement. As a result, CCCTA again terminated Walls on March 6, 2006. After grieving his termination, Walls brought this suit, claiming among other things that his March 6 discharge violated the FMLA. The district court granted summary judgment against Walls on his FMLA claim. The question for the Ninth Circuit Court of Appeals (the "Court"): did Walls have a viable FMLA claim?

In analyzing the case, the Court stated FMLA rights and benefits are contingent upon the existence of an employment relationship. Further, in order to establish an FMLA violation, the employee must demonstrate that the employer received sufficient notice of an employee's intent to take FMLA leave. Walls did request FMLA leave on March 1, 2006. However, Walls was not reinstated to his position as a CCCTA employee until March 2, when he signed and executed the Last Chance Agreement. Therefore, he was not an employee when he requested the leave. The Last Chance Agreement did not retroactively make Walls an employee for FMLA purposes on March 1. Since Walls was not an employee of CCCTA when he made his request for FMLA leave, he cannot invoke FMLA protection on the basis of this request. As such, the Court concluded that Wall's FMLA claim was not viable, and it affirmed the district court's summary judgment against him on the FMLA claim.