Complete Story
05/07/2015
April 2015 General Counsel’s Report
April 2015 General Counsel’s Report
Tilley v. Kalamazoo County Road Commission, No. 14-1679 (6th Cir., Jan.. 26, 2015) – Counsel reported that the 6th Circuit Court of Appeals addressed an FMLA jurisdictional issue in this decision. The case arose when an employee failed to make a report deadline because he went to the hospital believing he was having a heart attack. His wife reported his illness to the employer. An “employee representative” of the employer sent FMLA paperwork to the employee, including a statement of rights and responsibilities. The employer’s employment manual contained an unqualified statement that employees “are covered under FMLA if they are fulltime employees who have accumulated 1,250 work hours.” Three days after this mailing the employee was terminated for failing to timely complete his assignment. The employee filed suit and the employer filed a Motion for Summary Judgment on the grounds that the employee was not eligible for MFMLA leave as the employer did not employ 50 or more employees within a 75 mile radius.
The Court of Appeals overturned the summary judgment and held that there was a genuine issue of material fact as to whether the employer was equitably estopped from denying eligibility in light of its communications. It held that to maintain this argument the employee must prove a definite misrepresentation to a material fact; a reasonable reliance on the misrepresentation; and a resulting detriment to the party making the reliance. The court held that the employee had presented sufficient evidence to meet this test and to get the matter before a jury.
Definition of “spouse” under the FMLA – Counsel reported that on February 25, 2015 the Department of Labor issued a final rule revising the regulatory language and extending FMLA coverage to workers in legal same-sex marriages. Previously the definition did not include same-sex spouses if the employee resided in a state that did not recognize same sex marriages. Now the definition includes marriages that are lawful in the state in which they were performed.
Alternative Energy Applications, Inc., 61 N.L.R.B. Slip Op. 139 (DEC. 16, 2014) – Counsel reported on a case involving an employee who was given a $1.00 an hour raise by the employer just two weeks after the hire date. The employee was told that he was prohibited from discussing his raise with anyone else. He was also told that the employer had terminated employees in the past for violating this rule. He violated this rule. Later in the month he violated a work rule and caused damage to a customer’s home; he then called OSHA and mad a safety complaint. Before he could be terminated he damaged another customer’s home. After his termination he filed an 11(c) discrimination complaint under the OSH Act. The employer’s attorney sent a letter to OSHA denying that he was terminated for foiling a safety complaint and pointing out that the terminated, in part, for disclosing his pay rate to other employees. The NLRB relied heavily on this admission against interest his is NLRA claim. The NLRB held that the employer had violated 8(a)(1) of the NLRA by instructing employees not to discuss wages and threatening discharge for violating this rule. Comments about pay are ”inherently concerted” activity and thus protected.
OSHA-New Injury Reporting Requirements and Interim Enforcement Procedures – Counsel reported on the new procedures recently implemented by OSHA to handle the significant increase in catastrophic injury reports since the rule change on January 1, 2015. To sort through the increased number of injury reports OSHA has established three categories of reports for follow up action.
Category 1 reports are those involving a fatality; the inpatient hospitalization of two or more employees; any injury involving a worker under age 18; an employer with a history of the same or similar events in the previous 12 months; repeat offenders (those prior willful, failure to abate or repeat violations); and reports of imminent danger. These will result in an immediate inspection. The remaining reports will fall in either Category 2 or 3.
To determine into which other category an event falls the Area Director will consider several matters. These include:
(1) Are employees still being exposed to the hazards that caused the injury or illness?
(2) Was the employee exposed to a serious hazard?
(3) Were temporary workers or other vulnerable populations injured or made ill?
(4) Does the employer have a prior OSHA inspection history?
(5) Is there a whistleblower inspection pending?
(6) Is the employer a Cooperative Program Participant (VPP, etc.)?
(7) Did the incident involve health issues such as a chemical exposure or heat stress?
If answers to these questions indicate that an inspection is warranted one will be initiated as soon as resources permit, but usually within five days.
If no inspection is deemed necessary a Rapid Response Investigation (RRI) will be opened. An RRI will result in a letter being sent to the employer requesting information regarding the incident which resulted in the report. The information requested will include:
- A confirmation that any hazard has been abated and what abatement steps were taken.
- Results of the employer’s accident investigation.
- Confirmation that a copy of RRI letter was posted.
This information will have to be provided to OSHA within five (5) days of the receipt of the RRI letter.
Ruffin v. MotorCity Casino, No. 14-1444 (6th Cir., January 7, 2015) – Counsel reported that this matter addressed a question of overtime for casino security guards who worked an eight-hour shift with on paid 30-minute lunch break. During their meal period they wer free to eat, drink, socialize, use the internet, watch TV, play cards, but they were required to remain on casino property and monitor their radios. If their meal period was interrupted they were permitted to make up the lost break time. They were also required to attend a 15-minute unpaid roll call meeting prior to each shift. The guards argued that their lunch periods should be counted as work time for FLSA overtime provisions. If this were the case they would actually have worked 41.25hours a week with the 15-minute roll call meetings included. The 6th Circuit disagreed with them The court did not agree that the requirement that the guards monitored their radios was a substantial duty to transform their paid non-working meal break into work time. The meal periods were not spent primarily for the employer’s benefit.
