March Madness is one of my favorite times of the year, despite my less than stellar record of filling out my bracket. And it has become even better over the past few years with The March Madness streaming website, which allows you to watch games from ...


Keep March Madness from Going Out of Bounds in Your Workplace by Implementing These Policies and more...

Keep March Madness from Going Out of Bounds in Your Workplace by Implementing These Policies

March Madness is one of my favorite times of the year, despite my less than stellar record of filling out my bracket. And it has become even better over the past few years with The March Madness streaming website, which allows you to watch games from pretty much everywhere at any time. One feature on this website that I find pretty amusing is the “boss button.” Employees can click this button when they are watching games and a PowerPoint presentation will pop onto the screen to make it look like they are working hard in case any of their supervisors happen to be walking by...

Or so I have been told...not that I would ever do such a thing.

The problem with March Madness, as things like the boss button show, is that it can sap employee productivity. Time that should be spent working is instead diverted to watching games or filling out brackets. Therefore, employers may want to consider having policies to deal with March Madness in the workplace. Employers should be proactive in implementing these policies before the March Madness hoopla becomes a serious impediment to productivity.

Employers may be tempted to ban anything related to March Madness in the workplace, preventing employees from filling out brackets and watching games at work. This, however, might actually prove counterproductive. There are so many ways that employees can watch games and fill out brackets that policing such a policy would be almost impossible. Employees may just spend more time trying to get around these rules. Plus, such a policy would likely harm morale. Rather, employers should consider putting limits on the amount of time that employees can spend watching games and checking their bracket at work.

Policies that prohibit employers from streaming games on company computers are reasonable, as doing this may slow internet connectivity and will likely prevent employees from focusing on their work. If an employer adopts this policy, it should consider putting the games on in break rooms. It should also consider allowing employees to check how their brackets are doing periodically, as this is not an overly time-consuming activity and will not tie up significant amounts of company bandwidth.

Also, employers may not want to organize pools where each employee fills out a bracket, contributes money into a pool, and then the gives the money to the person with the best bracket. This is technically considered an illegal bookmaking operation in Illinois and most other states. Instead, employers can still encourage their employees to fill out brackets, but instead of having each employee bet money on the outcome of the tournament, the employer can offer prizes to the person with the best bracket.

While I probably cannot give you much advice on how to fill out your bracket, I can give you advice about how to implement effective March Madness policies in your workplace. Feel free to contact me to do this.

Employer Can’t Be Penalized for “Bending Over Backwards” to Accommodate Disability

Let’s say you have a long time employee who becomes disabled. While the employee can’t perform all of the essential functions of their assignment, you want to allow the employee to keep working in hopes that they will recover well enough to resume their regular duties, so you assign the employee to a different job, the duties for which they have no restrictions. Despite being allowed to work in that modified position for over a year, it becomes apparent that the employee is still not able to perform all of the essential duties of his original job. Is there no turning back at that point?

Earlier this year, a federal court examined that very question. In Moore v. Wal-Mart Stores East, LP, the plaintiff had worked for Wal-Mart for several years when he suffered a stroke. After returning from medical leave, he could not perform his job of _______ so the company accommodated his current disability by placing him in another position, the duties of which he had no restrictions, with the understanding that the job was not permanent and but was a light duty assignment while he continued his recovery. He worked in that job, apparently without incident, for 15 months when he was called to a meeting with HR to discuss his continued inability to return to his job prior to his stroke.

Pursuant to the interactive process, the plaintiff was ultimately offered a different permanent position with the company. The problem was that he didn’t adapt well to that new job and the company ultimately discharged him for performance deficiencies.

The plaintiff sued his former employer, alleging a violation of the Americans with Disabilities Act. He argued, among other things, that the fact that the company allowed him to work an alternative assignment for 15 months, evidenced that it could have continued to allow him to work in that assignment longer, maybe indefinitely.

The court disagreed. Quoting a federal case from Illinois, it found that an employer that “bends over backwards” to accommodate a disabled worker “must not be punished for its generosity” by being found to have agreed to the reasonableness of the accommodation by virtue of the length of time that it allowed the accommodation to continue.

This is good news for employers because it confirms once again that employers are not obligated under the ADA to create or maintain permanent light duty positions. Employers who have light duty programs are not at risk of somehow creating a situation where an employee can persuasively argue that because a light duty assignment exists, they are entitled to remain in it indefinitely.

New Jersey Becomes the Latest State to Enact a Breastfeeding Protection Law

New Jersey joined the growing list of states protecting breastfeeding in the workplace earlier this year when it amended its Law against Discrimination to prohibit discrimination against women who breastfeed or express milk during breaks. The law prohibits an employer from refusing to let a nursing mother breastfeed or express milk during work, and requires employers to set aside a place for the mother to do so in privacy. This place cannot be a bathroom stall, and must be located close to the workplace.

Employers also have to provide nursing mothers with breaks throughout the day to breastfeed or express milk, although employers do not have to pay the mothers during these breaks unless the mothers are already eligible to receive paid breaks. Also, if providing the breaks or a location to breastfeed would impose an “undue hardship on business operations,” then the employer can be exempted from doing so.

The Affordable Care Act (aka Obamacare) amended the Fair Labor Standards Act so that it prohibited discrimination against breastfeeding mothers in the workplace. However, those amendments only applied to employers with more than 50 employees, and also did not require employers to set aside a place for mothers to breastfeed and breaks for them to do so. A few courts have also held that breastfeeding is protected under Title VII of the Civil Rights Act of 1964.

New Jersey becomes the 18th state to enact protections for breastfeeding mothers, joining New York, Colorado, Oregon, and Minnesota, among others. California is considering a law which would provide even more protections than New Jersey’s, requiring employers to provide employees with lactation rooms that meet certain criteria like providing a surface to place a breast pump and other personal belongings, a place to sit, and access to electricity, a sink with running water, and refrigerator. Wisconsin, Texas, Pennsylvania, and Maryland are also considering breastfeeding protection laws.

Illinois is among the states that has passed a breastfeeding protection law. The Nursing Mothers in the Workplace Act (820 ILCS 260/1, et seq) is similar to New Jersey’s law, requiring employers with more than five employees to provide mothers with unpaid break time to breastfeed or express milk. It requires employers to make reasonable efforts to provide a room or other location in the workplace where a mother can breastfeed or express milk in private, and this place cannot be a toilet stall. The law does not require employers to provide dedicated lactation rooms, but an area for breastfeeding must be shielded from view and free from intrusions.

Employers should draft a breastfeeding policy and make it known to their employees. It may be worth discussing such a policy with a lawyer. Feel free to contact me to do this.

Supreme Court Reaffirms that Union Contract Does Not Create Lifetime Health Insurance Benefits

In late February the U.S. Supreme Court again issued an opinion that absent language to the contrary, a collective bargaining agreement that provides retiree health insurance benefits does not create a vested right to those benefits. It also reiterated that the general durational provision of the agreement applies to the employer’s obligation to provide retiree health insurance.

In the case of CNH  International N.V. v. Reese, out of Michigan, the employer had agreed to a collective-bargaining agreement in 1998 that provided health care benefits under a group benefit plan to certain “[e]mployees who retire under the ... Pension Plan”  and  “[A]ll other coverages,” such as life insurance, ceased upon retirement. The agreement contained a general durational clause stating that it would terminate in May 2004 but was silent as to whether retiree health insurance benefits vested for life. When the 1998 agreement expired in 2004, a class of CNH retirees and surviving spouses filed this lawsuit, seeking a declaration that their health care benefits vested for life and an injunction preventing CNH from changing them. While their lawsuit was pending, the Court decided M&G Polymers v.Tackett holding that for purposes of determining whether a cba grants rights to lifetime health insurance, the general principles of contract interpretation apply. Nevertheless, the 6th circuit court of appeals ruled in favor of the retirees in the CNH case finding ambiguity in the 1998 agreement by declining to apply the general durational clause to the health care benefits, and then inferring vesting from the presence of specific termination provisions for other benefits and the tying of health care benefits to pensioner status. After more than a decade of appeals, remands, reversals and reconsiderations, the case made it to the U.S. Supreme Court.

The Supreme Court found that the agreement contained a general durational clause that applied to all benefits, unless the agreement specified otherwise. No provision specified that the health care benefits were subject to a different durational clause. The Court specifically noted that  “[I]f the parties meant to vest health care benefits for life, they easily could have said so in the text. But they did not.” It concluded that the only reasonable interpretation of the 1998 agreement is that the health care benefits expired when the collective-bargaining agreement expired in May 2004. “When the intent of the parties is unambiguously expressed in the contract, that expression controls, and the court's inquiry should proceed no further.”

Before making changes to retiree health insurance benefits, employers should carefully review their policies and contract provisions that describe that benefit to analyze the best way to approach changes. Pay close attention for any language that appears to grant the benefit for the life of the retiree. Similarly, careful attention should be paid when drafting contract provisions on the subject. The only thing potentially more expensive than paying for expensive retiree health insurance is years and years of litigation over the employer’s obligation to pay it.

Is Cosmetic Surgery Covered Under FMLA?

So your employee notifies you that he is having cosmetic surgery and will need to be off of work for a few weeks. He wants to use his vacation time to cover his absence. You can’t help but be a little irritated because he knows you’re a little short staffed right now and his absence will really put stress on operations. You ask him if he can postpone the surgery for a little while until new employees are hired and trained and he says no. Can you deny him the time off based on your policy that vacation requests may be denied due to operational needs?

As a good lawyer, the answer really is that it depends. He may qualify for FMLA leave.

Run of the mill cosmetic day surgery, without complications, is likely not covered by the FMLA definition of a “serious health condition”. So an employee’s absence for liposuction, or dental implants, for instance, generally does not fall under FMLA protection. A big caveat exists though. The Department of Labor’s Guidance suggests that cosmetic surgery that is restorative from an injury or illness, such as reconstructive surgery is always defined as a serious health condition of the employee and an absence for such would be protected. Additionally, any procedure that may require recovery for more than three days-and we’re not talking about staying home until the bruising goes away, but actual physical recovery-is likewise going to be considered a serious health condition under the FMLA. Finally, any absence resulting from complications of cosmetic surgery that otherwise would not result in FMLA coverage, would become covered as a result of the complication causing the absence.

Employers should avoid giving knee jerk denials to leave request for elective surgery as some may actually qualify for FMLA leave. Always ask your employee to have his or her doctor complete the medical certification before evaluating whether the employee is eligible for FMLA.