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July 10, 2014

Employment-Seventh Circuit Rules That Employee Does Not Forfeit FMLA Rights By Failing To Tell Employer How Much Leave She Will Take

Gienapp v. Harbor Crest, No. 14-1053 (7th Cir. 2014) involved the following situation. Suzan Gienapp worked at Harbor Crest, a residential nursing care facility in Fulton, Illinois. In January 2011 she told Myra Chattic, its top manager, that she needed time off to care for her daughter, who was undergoing treatment for thyroid cancer. Chattic granted leave under the Family and Medical Leave Act (the "FMLA"). Employees are entitled to as much as 12 weeks' unpaid leave annually to care for children with serious health conditions. 29 U.S.C. section 2612(a)(1). Harbor Crest acknowledges that Gienapp's daughter had a serious health condition, a term defined in §2611(11). While on leave, Gienapp mailed in an FMLA form, leaving blank a question about the leave's expected duration.

Harbor Crest did not ask her to fill in the blank on the form, nor did it pose written questions as the 12-week period progressed. A physician's statement on the form said that the daughter's recovery was uncertain, and that if she did recover she would require assistance at least through July 2011. Chattic inferred from this that Gienapp would not return by April 1, her leave's outer limit, and in mid February Chattic hired someone else in her stead. When Gienapp reported for work on March 29, Chattic told her that she no longer had a job. After the exhaustion of administrative remedies, this litigation followed, with Gienapp alleging a violation of her rights under the FMLA. The district court granted defendants' motion for summary judgment, ruling that Gienapp had forfeited her rights under the FMLA by not telling Harbor Crest exactly how much leave she would take. Gienapp appeals.

In analyzing the case, the Seventh Circuit Court of Appeals (the "Court") said that the statute requires notice to the employer of the need for leave. Gienapp gave notice; Chattic granted leave; Harbor Crest knew that it was governed by the FMLA. What Gienapp did not do was provide a date when she expected to return to work, though the form called for that information
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The Court said further that Gienapp's application is covered by the FMLA regulation at §825.303, which deals with unforeseeable leave, the type of leave at issue here. And §825.303 does not require employees to tell employers how much leave they need, if they do not know yet themselves. Instead of requiring notice at the outset, §825.303(c) tells workers to comply with employers' policies. Harbor Crest told Gienapp to call in monthly, and it is conceded that she did so. If Harbor Crest asked for any extra information during those calls, the record does not reflect undisputed details; we assume therefore that Gienapp complied with Harbor Crest's policies. The Court concluded that Harbor Crest is not entitled to summary judgment on a theory that Gienapp failed to provide essential information. Rather, the Court ruled that Gienapp is entitled to summary judgment in her favor. It reversed the judgment of the district court, and remanded the case with instructions for the district court to craft an appropriate remedy.

July 7, 2014

Employment-Tenth Circuit Holds That Sick Leave Exceeding Six Months Is Not A Reasonable Accommodation

In Hwang v. Kansas State University, No. 13-307 (10th Cir 2014), the Court faced the issue of whether an employer could face liability under the Rehabilitation Act (the Public School equivalent of the Americans With Disabilities Act (or, the "ADA")) for denying an employee sick leave exceeding 6 months.

In this case, Grace Hwang, an assistant professor at Kansas State University, signed a written one-year contract to teach classes over three academic terms (fall, spring, and summer). But before the fall term began, Ms. Hwang received news that she had cancer and needed treatment. She sought and the University gave her a six-month (paid) leave of absence. As that period drew to a close and the spring term approached Ms. Hwang's doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer term. But according to Ms. Hwang's complaint, the University refused, explaining that it had an inflexible policy allowing no more than six months' sick leave. The University did arrange for long-term disability benefits, but Ms. Hwang alleges it effectively terminated her employment. In response, she filed this lawsuit contending that by denying her more than six months' sick leave the University violated the Rehabilitation Act. Failing to see how this much followed, the district court dismissed her complaint. Ms. Hwang appeals the dismissal.

In analyzing the case, the Tenth Circuit Court of Appeals (the "Court") noted that the Rehabilitation Act prohibits recipients of federal funding, like Kansas State, from discriminating on the basis of disability. One way a disabled plaintiff can establish a claim for discrimination in the workplace is by showing that she is qualified for her job; that she can perform the job's essential functions with a reasonable accommodation for her disability; and that her employer failed to provide a reasonable accommodation despite her request for one. Once a plaintiff can show all these things, an employer generally may avoid liability only if it can prove the accommodation in question imposes an undue hardship on its business. In this case, Ms. Hwang was not able to perform the essential functions of her job, even with a reasonable accommodation. By her own admission, she couldn't work at any point or in any manner for a period spanning more than six months. The Court said that an employee who is not capable of working for so long is not an employee capable of performing a job's essential functions -- and that requiring an employer to keep a job open for so long does not qualify as a reasonable accommodation. A six month leave is too long to be considered a reasonable accommodation. Accordingly, the Court concluded that Ms. Hwang did not state a claim of discrimination, and it affirmed the district court's decision.

June 24, 2014

Employment-DOL Will Revise Definition Of Spouse Under FMLA To Comply With Windsor

An email from the U.S. Department of Labor (the "DOL") tells me that the DOl's Wage and Hour Division has announced a Notice of Proposed Rulemaking (an "NPRM") to revise the definition of spouse under the Family and Medical Leave Act of 1993 (the "FMLA") in light of the United States Supreme Court's decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act ("DOMA") to be unconstitutional.

According to the email, the NPRM proposes to amend the definition of spouse so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. More information is available at the Wage and Hour Division's FMLA NPRM Website.

May 8, 2014

Employment-Eighth Circuit Holds That, Of The Three Plaintiffs, Two Fail To Meet the Executive Emption From FLSA Overtime Requirements, While One Meets This Exemption And Need Not Be Paid Overtime Under The FLSA

In Madden v. Lumber One Home Center, Inc., No. 13-2214 (8th Cir. 2014), three former employees of Lumber One Home Center, Inc. ("Lumber One"), a lumberyard in Mayflower, Arkansas, filed suit against the company. The employees claimed Lumber One incorrectly classified them as executive employees who were exempt from overtime pay regulations under the Fair Labor Standards Act (the "FLSA"). In the district court, the jury found that all three plaintiff-employees worked in an executive capacity and were therefore not entitled to recover overtime wages. Following trial, the plaintiffs moved for judgment as a matter of law, which the district court granted. After overturning the jury verdict, the district court awarded the plaintiffs overtime pay and attorneys' fees. Lumber One appeals.

In analyzing the case, the Eighth Circuit Court of Appeals (the "Court") said that the employer has the burden to prove that its employee is an executive and therefore exempt from the FLSA's overtime pay requirements. The Court determines whether an employee meets the executive exemption by applying Department of Labor ("DOL") regulations, which state in pertinent part:

(a) The term `employee employed in a bona fide executive capacity' in section 13(a)(1) of the [FLSA] shall mean any employee:
(1) Compensated on a salary basis at a rate of not less than $455 per week... exclusive of board, lodging or other facilities;
(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or more other employees; and
(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.
29 C.F.R. § 541.100.

The Court then said that issue in this case is whether the plaintiffs meet element (4). The district court had found that Lumber One presented no evidence that the plaintiffs had the authority to make personnel decisions or that the company gave their hiring recommendations particular weight. Examining the evidence, the Court concluded that Lumber One failed to present any evidence which shows that two of the plaintiffs-Madden and O'Bar- met the element (4). However, the Court concluded that Lumber One did prove that the third plaintiff-Wortman- met element (4) and thus was eligible for the executive exemption. Lumber One did present sufficient evidence to allow a jury to conclude that Wortman provided a recommendation for at least one employee and that Lumber One relied on that recommendation when deciding to hire the applicant. Thus the Court upheld the district court's judgment as to Madden and O'Bar, while it reversed the judgment as to Wortmen.

May 6, 2014

Employment-Sixth Circuit Rules That Telecommuting May Be A Reasonable Accommodation Under The ADA

In Equal Employment Opportunity Commission v. Ford Motor Company, No. 12-2484 (6th Cir. 2014), the issue was whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability. Charging party Jane Harris ("Harris") was terminated from her position as a resale steel buyer at Ford Motor Co. ("Ford"), after she asked to telecommute several days per week in an attempt to control the symptoms of irritable bowel syndrome ("IBS"). The Equal Employment Opportunity Commission ("EEOC") argues that Ford discriminated against Harris on the basis of her disability and retaliated against her for filing a charge with the EEOC. The district court granted summary judgment in favor of Ford, and Harris appeals.

In analyzing the case, the Sixth Circuit Court of Appeals (the "Court") said that, under the Americans With Disabilities Act (the "ADA"), an employer discriminates against an employee if it does not make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business. "42 U.S.C. § 12112(b)(5). Harris is indisputably disabled under the ADA, and has provided evidence to establish that she is "otherwise qualified" for her position at Ford. Further the EEOC can demonstrate that Harris was qualified for the resale buyer position with a reasonable accommodation for her disability, namely a telecommuting arrangement. But is telecommuting a "reasonable accommodation"?

The Court continued by saying that it has previously concluded that telecommuting is not a reasonable accommodation for most jobs. However, there may be unusual cases when telecommuting is reasonable because the employee can effectively perform all work-related duties at home. In this case, the EEOC has presented sufficient evidence to create a genuine factual dispute as to whether Harris is one of those employees who can effectively work from home, and Ford has not shown that such arrangement would create undue hardship for Ford.

Further, as to the claim of retaliation, the EEOC evidence creates a genuine dispute as to whether Ford was truly motivated by retaliatory intent or by a reasoned business decision to terminate an underperforming employee. This is

April 24, 2014

Employment-Fourth Circuit Rules That County Retirement Plan Violates ADEA, As It Determines Employee Contribution Rates Based On Age

In Equal Employment Opportunity Commission v. Baltimore County, No. 13-1106 (4th Cir. 2014), the Court was asked to consider whether an employee retirement benefit plan (the "Plan") maintained by Baltimore County, Maryland (the "County") unlawfully discriminated against older County employees based on their age, in violation of the Age Discrimination in Employment Act (the "ADEA). The challenged plan provision involved the different rates of employee contribution to the plan, which required that older employees pay a greater percentage of their salaries based on their ages at the time they enrolled in the Plan. The district court concluded that the plan violated the ADEA, and granted summary judgment against the County on the issue of liability. The County appeals.

In analyzing the case, the Fourth Circuit Court of Appeals (the "Court") determined that the district court correctly determined that the County's plan violated the ADEA, because the plan's employee contribution rates were determined by age, rather than by any permissible factor. The Court further concluded that the ADEA's "safe harbor provision" applicable to early retirement benefit plans does not shield the County from liability for the alleged discrimination. Accordingly, the Court affirmed the district court's award of summary judgment on the issue of liability, and remanded the case for consideration of damages.

In analyzing the case, the Court noted that the ADEA prohibits discrimination with respect to "compensation, terms, conditions, or privileges of employment," which includes "all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan." 29 U.S.C. §§ 623(a)(1), 630(l). Accordingly, it generally is unlawful for an employer to maintain a retirement benefit plan that treats older employees in the protected age group differently from younger employees, unless the differentiation "is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1).

In the present case, the EEOC alleged that the Plan was facially discriminatory. A policy that explicitly discriminates based on age violates the ADEA. The Plan mandated different contribution rates that escalated explicitly in accordance with employees' ages at the time of their enrollment in the Plan. The Court found no merit in the County's argument that the employee contribution rates lawfully were based on a reasonable factor other than age, such as the "time value of money." The Court said that it's conclusion is not altered by the County's reliance on the ADEA's "safe harbor provision" in 29 U.S.C. § 623 (l)(1)(A)(ii)(I). As relevant to this appeal, that provision states that "it shall not be a violation" of the ADEA "solely because" a retirement benefit plan "provides for . . . payments [by the employer] that constitute the subsidized portion of an early retirement benefit. . . ." Id. The Court said that the safe harbor provision is not a defense to the challenged disparate treatment. The safe harbor provision permits an employer to subsidize early retirement benefits without violating the ADEA. However, the provision does not address employee contribution rates nor does it permit employers to impose contribution rates that increase with the employee's age at the time of plan enrollment. Thus, the Court concluded that the safe harbor provision is inapplicable here.

April 22, 2014

Employment-D.C. Circuit Rules That Unprofessional And Uncivil Behavoir Does Not Establish A Case Of Racial Or Sexual Discrimination In Violation Of Title VII

In Brooks v. Grundmann, No. 12-5171 (D.C. Cir. 2014), the plaintiff, Patricia Brooks ("Brooks"), was appealing the district court's summary judgment in favor of her employer. The D.C. Circuit Court of Appeals (the "Court") reviewed the record. It noted that Brooks claims her supervisors at work engendered a hostile work environment, discriminating against her on the basis of her race and sex. The Court concluded, however, that, while the supervisors' actions may have been unprofessional, uncivil, and somewhat boorish, they did not constitute an adequate factual basis for the Title VII claims presented. Accordingly, the Court affirmed the district court's grant of summary judgment.

April 18, 2014

Employment-Eleventh Circuit Rules That An Employee Must Be Eligible To Take FMLA Leave To Be Able To Bring A Claim Of FMLA Violation

In Hurley v. Kent of Naples, Inc., No. 13-10298 (11th Cir. 2014), the plaintiff, Patrick Hurley ("Hurley"), sued the defendants for violating the Family Medical Leave Act (the "FMLA").

In this case, Hurley, who suffers from depression, contends that the defendants wrongfully denied his request for eleven weeks of vacation time and terminated his employment. Following a jury trial, the district court entered, in favor of Hurley, a judgment for $200,000 in actual damages for backpay, $200,000 in liquidated damages, and $353,901.85 in damages for front pay. The defendants contend on appeal that Hurley's request did not qualify for FMLA protection, so that no damages should be awarded. The Eleventh Circuit Court of Appeals (the "Court") agreed with the defendants that Hurley did not qualify for the leave, and overturned the judgments entered by the district court.

In analyzing the case, the Court ruled that an employee must actually qualify for FMLA to state a claim of FMLA violation including a claim or interference with or retaliation for asserting FMLA rights. Here, Hurley did not so qualify, despite a chronic health condition, because he did not experience any period of incapacity or treatment for such incapacity due to a chronic serious health condition. The Court implicity accepted that neither he nor anyone else, such as a family member, met any other health condition that would qualify him for FMLA leave.

April 17, 2014

Employment -Ninth Circuit Rules That Plaintiff's Claim Of Interference With FMLA Rights Fails, Since She Declined FMLA Leave

In Escriba v. Foster Poultry Farms, Inc., Nos. 11-17608, 12-15320 (9th Cir. 2014), the plaintiff, Maria Escriba ("Escriba"), had worked in the Foster Poultry Farms, Inc. ("Foster Farms") processing plant in Turlock, California for 18 years. She was terminated in 2007 for failing to comply with the company's "three day no-show, no-call rule" after the end of a previously approved period of leave, which she took to care for her ailing father in Guatemala. Escriba subsequently filed suit under the Family and Medical Leave Act (the "FMLA") and its California equivalent. She claimed that her termination was an unlawful interference with her FMLA right. The district court denied Escriba's motion for summary judgment on the interference claim.The jury at the district court found in favor of Foster Farms on this claim, and Escriba appeals.

In analyzing the case, the Ninth Circuit Court of Appeal (the "Court") indicated that an employee can affirmatively decline to use FMLA leave, even if the underlying reasons for seeking the leave would have invoked FMLA protection, and such decline would cause a claim of interference with FMLA rights to fail. The Court said, as to the district court's denial of the summary judgment request, that whether the district court erred in entertaining Foster Farms's contention that Escriba did not intend to take FMLA leave is the dispositive issue in this case. The Court found that the district court did not err in denying Escriba's motion for summary judgment on the basis that Foster Farms's cited evidence demonstrates that Escriba was given the option and prompted to exercise her right to take FMLA leave, but that she unequivocally refused to exercise that right, the refusal voiding the interference claim.

The Court further found that substantial evidence supports the jury's verdict, so the verdict-based on a finding that Escriba declined FMLA leave- must be upheld. As such, since Escriba declined FMLA leave, the Court affirmed the holdings from the district court that Escriba's interference claim fails.

April 14, 2014

Employment-Eleventh Circuit Rules That Plaintiff Waived Her Rights Under The FMLA By Signing A Severance Agreement, Despite DOL Proscription Against Prospective FMLA Waivers

In Paylor v. Hartford Fire Insurance Company, No. 13-12696 (11th Cir. 2014), the plaintiff, Blanche Paylor ("Paylor"), appeals the district court's grant of summary judgment for her former employer, Hartford Fire Insurance Company ("Hartford"), on her claims of interference and retaliation under the Family Medical Leave Act of 1993 (the "FMLA"). In this case, although Paylor signed a Severance Agreement with Hartford ostensibly waiving her FMLA claims, she argues that those claims were "prospective" and therefore not waivable under Department of Labor ("DOL") regulations. See 29 C.F.R. § 825.220(d) (2009). In the alternative, Paylor argues that her signing of the Severance Agreement was not knowing and voluntary, and that the Severance Agreement is void as contrary to public policy.

In analyzing the case, the Eleventh Circuit Court of Appeals (the "Court") said that the only issue is the validity of the Severance Agreement that Paylor signed, since if the agreement is valid, then Paylor waived her FMLA rights. Paylor's principal argument for invalidity is that the district court erred in concluding that she waived her FMLA claims when she signed the Severance Agreement. Paylor says this waiver cannot be enforceable against her because the FMLA does not permit employees to waive "prospective rights" without Department of Labor ("DOL") or court approval, and her rights in this case were "prospective" in the sense that she had--at the time she signed the agreement--an outstanding request for FMLA leave.

The Court noted a DOL regulation, which says "Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA." 29 C.F.R. § 825.220(d) (2009). According to the Court, it is well-settled that an employee may not waive "prospective" rights under the FMLA, but an employee can release FMLA claims that concern past employer behavior. But what are "prospective rights"? The Court said that such rights, under the FMLA, are those allowing an employee to invoke FMLA protections at some unspecified time in the future, so that an employee may not waive FMLA rights, in advance, for violations of the statute that have yet to occur. The Severance Agreement Paylor signed did not ask her to assent to a general exception to the FMLA, but rather to a release of the specific claims she might have based on past interference or retaliation. Hence, Paylor did not waive prospective rights.

The Court disposed of Paylor's remaining arguments based on a review of the record, finding she voluntarily signed the Severance Agreement based on a totality of the circumstances, and that the public policy argument was not presented to the district court and therefore cannot be addressed on appeal. As such, the Court concluded that the Severance Agreement-and the waiver of the FMLA rights- is valid, and the Court affirmed the district court's summary judgment in favor of Hartford.

February 10, 2014

Employment-Seventh Circuit Rules That An Employee Is Entitled to FMLA Leave To Care For A Parent, Even When The Parent Traveled To Las Vegas

In Ballard v. Chicago Park District, No. 13‐1445 (7th Cir. 2014), the Court faced the question of what the term "caring for" a family member means for purposes of the Family and Medical Leave Act (the "FMLA"). The FMLA gives eligible employees a right to twelve workweeks of leave for, among other things, to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

In this case, a question arose as to whether FMLA leave is available to allow an employee to provide physical and psychological care to a terminally ill parent while that parent is traveling away from home. Here, the plaintiff, Beverly Ballard ("Ballard"), is a former Chicago Park District employee. In April 2006, Ballard's mother, Sarah, was diagnosed with end‐stage congestive heart failure. Ballard lived with Sarah and acted as her primary caregiver. In 2007, Sarah and a social worker met to discuss Sarah's end‐of‐life goals. Sarah said that she had always wanted to take a family trip to Las Vegas, and the trip and funding therefore were arranged.

Ballard requested unpaid leave under the FMLA from the defendant, the Chicago Park District, so that she could accompany her mother to Las Vegas. The Park District ultimately denied the request, although Ballard and her mother went anyway. Ballard continued to serve as her mother's caretaker during the trip. Several months later, the Chicago Park District terminated Ballard for unauthorized absences. Ballard then filed suit under the FMLA. The issue for the Seventh Circuit Court of Appeals (the "Court") was whether Ballard was entitled to FMLA leave, in order to care for her mother, even though the care was rendered during a trip to Las Vegas.

In analyzing the case, the Court said that the words "to care" for, as used in the FMLA regulations, include "physical and psychological care" without any geographic limitation. It agreed with the district court, which had stated that where the care takes place has no bearing on FMLA protections. The Court therefore ruled that entitlement to FMLA leave was not lost because of the Las Vegas trip.

February 6, 2014

Employment-Supreme Court Rules That Time Spent Changing To And From Protective Gear Is Not Compensable Under The FLSA

In Sandifer v. United States Steel Corporation, No. 12-417 (S.Ct. 2014), the Supreme Court faced the question of the meaning of the phrase "changing clothes" as it appears in the Fair Labor Standards Act (the "FLSA"). The plaintiffs were seeking backpay for time spent donning and doffing various pieces of protective gear, which the employer required them to wear because of hazards regularly encountered in their work at a steel plant. The district court granted summary judgment to the defendant, United States Steel Corporation. The Court of Appeals for the Seventh Circuit upheld this judgment, and the plaintiffs appeal.

In analyzing the case, the Supreme Court said that, in 1949, Congress amended the FLSA to provide that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining (a "CBA"). Here, under the applicable CBA, changing clothes is not compensable time. But does the donning and doffing of protective gear qualify as "changing clothes"? The Supreme Court answered this by saying that "clothes" encompasses the entire outfit that one puts on to be ready for work-including the protective gear. As to "changing", the Supreme Court said that any alteration of dress will constitute a change. As such, the Court held that the plaintiff's donning and doffing of the protective gear at issue qualifies as "changing clothes", which is not compensable under the applicable CBA. Therefore, the Court affirmed the lower courts' rulings.

January 8, 2014

Employment-New York Court Of Appeals Holds That Plaintiff 's Claim Of Disability Discrimination Under New York City Human Rights Law Survives Motion To Dismiss

In Romanello v. Intesa Sanpaolo, S.p.A. (2013 NY Slip Op 06600), the plaintiff, Giuseppe Romanello ("Romanello"), had been an executive of the financial services firm, defendant Intesa Sanpaola, S.p.A. ("Intesa"). Romanello had worked for Intesa and its predecessor for approximately 25 years when he became ill and unable to work. He was diagnosed with a series of disorders including major depression. After a period of absence, Intesa terminated Romanello's employment. Romanello then brought this suit, claiming that, by terminating him, Intesa discriminated against him on the basis of his disability in violation of the New York State Human Rights Law (the "State HRL") and the New York City Human Rights Law (the "City HRL").

In analyzing the case, the New York Court of Appeals (the "Court") ruled that Romanello did not state a claim under the State HRL, since indefinite leave is not an accommodation under State HRL, and here Romanello never indicated when he might return to work from his absence. However, the Court said that the City HRL affords broader protections than the State HRL . The City HRL declares that it shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws have been so construed. As such, the Court said that it has held that the provisions of the City HRL should be construed broadly in favor of discrimination of plaintiffs, to the extent that such a construction is reasonably possible.

Continuing, the Court said that the City HRL requires that an employer make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job, provided that the disability is known or should have been known by the employer. Contrary to the State HRL, it is the employer's burden to prove undue hardship to avoid the need to provide reasonable accommodation. Also, the City HRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, satisfy the essential requisites of the job. Thus, the employer, not the employee, has the pleading obligation to prove that the employee could not, with reasonable accommodation, satisfy the essential requisites of the job.

In this case, Romanello, by letter from his counsel, made his disability known to Intesa. Intesa did not meet its obligation under the City HRL to plead and prove that plaintiff could not perform his essential job functions with an accommodation. The Court ruled that, because Intesa made no such allegation or showing the City HRL claim must survive Intesa's motion to dismiss.

January 7, 2014

Employment-NYC Makes Available Notice To Be Provided To Employees About Their Rights To Reasonable Accommodation For Pregnancy, Childbirth Or Related Medical Conditions

Yesterday's blog discussed the new law requiring NYC employers to provide reasonable accommodation to employees for pregnancy, childbirth or related medical conditions. The new law requires that notice be provided to employees about their rights under the new law. This notice must be provided to new employees beginning on January 30, 2014, and to existing employees by May 30, 2014. NYC has now issued the notice to be used. The notice is here. The notice may, but need not, be posted.

January 6, 2014

Employment-NYC Passes Law Requiring Reasonable Accommodation Of An Employee's Pregnancy, Childbirth Or Related Medical Condition

The New York City Council has passed a new law which requires NYC employers to provide reasonable accommodation for an employee's pregnancy, childbirth or related medical condition. The new law applies to an employer with at least 4 employees (including independent contractors). It becomes effective on January 30, 2014. Here is what the new law provides:

Unlawful Discriminatory Practice. It is an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation (see definition below) to the needs of an employee for her pregnancy, childbirth, or related medical condition, that will allow the employee to perform the essential duties of the job.

A Reasonable Accommodation. For these purposes, a "reasonable accommodation" is an accommodation that can be made, and does not cause an undue hardship to the employer. The employer has the burden of proving undue hardship. Factors which may be considered to determine whether an undue hardship will exist include, but are not limited to: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the employer; the overall size of the business of the employer with respect to the number of its employees, and the number, type, and location of its facilities; and (4) the type of operation or operations of the employer, including the composition, structure, and functions of the workforce of the employer; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.

Condition of Application. The unlawful discriminatory practice will not arise, unless the employee's pregnancy, childbirth, or related medical condition is known or should have been known by the employer. In any case in which the need for reasonable accommodation is placed in issue, it will be an affirmative defense of the employer that the employee could not, with reasonable accommodation, perform the essential duties of the job.

Notice of rights. The employer must provide written notice, in a form and manner to be determined by the NYC Commission on Human Rights, of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions to: (1) new employees at the commencement of employment and (2) existing employees by May 30, 2014 . This notice may also be conspicuously posted at an employer's place of business in an area accessible to employees.