May 2009 Archives

May 26, 2009

Congress Considers Changing the FMLA -- Again

Two bills were recently introduced in Congress that would amend the Family and Medical Leave Act (FMLA). You can read them both (they're short) by searching for the bill numbers below at http://thomas.loc.gov.

The Family and Medical Leave Inclusion Act, H.R. 2132, would expand the FMLA to protect time off to care for a sibling, grandparent, adult child, parent in-law, domestic partner, or same sex spouse with a serious health condition.

The Family and Medical Leave Restoration Act, H.R. 2161, would require the Department of Labor to make a number of changes to the FMLA regulations. The DOL would have to:

  • Repeal a number of the recently issued regulations and replace them with the regulations that were previously in place. The new regulations to be repealed include those dealing with notice requirements, clarifying and authenticating medical certifications, and attendance bonuses, among other things.
  • Revise the new regulation on recertification to provide that recertification may be requested only when the duration of the medical condition indicated on the original certification has expired, or every year. (The new regulation allows recertification every six months.)
  • Change the new definition for a "serious health condition" to remove the requirement that the employee visit a health care provider a certain number of times. The new regulation requires either two visits within 30 days or one visit within seven days of the conditions's onset, with continuing treatment; at least two visits per year are required for chronic conditions. This bill would require only such treatment as the health care provider deems necessary.
May 20, 2009

Healthy Families Act Would Require Paid Sick Leave

It's a good thing my employer offers paid sick leave. That meant I could stay home a few days ago with my summer cold. I was able to catch up on my sleep, and my office mate was able to not catch my cold. Many employees aren't so lucky: According to the Bureau of Labor Statistics, 39% of those who work for private employers don't get paid sick leave.

But that could be changing soon. Earlier this week, Rep. Rosa De Lauro (of Connecticut) reintroduced the Healthy Families Act, HR 2460. The bill would require some employers to offer paid sick leave. Sen. Ted Kennedy is expected to introduce a similar bill in the Senate this week, depending on the state of his own illness and how it affects his return to work. (To read the bill, search for "HR 2460" on the Library of Congress's THOMAS website.)

The bill would require employers with at least 15 employees to provide one hour of paid sick leave for every 30 hours an employee works, up to 56 hours per year. Employees could use the sick leave for their own illness, for preventive care, to care for a family member (defined broadly to include anyone related to the employee "by blood or affinity whose close association with the employee is the equivalent of a family relationship"), or to seek medical or legal assistance relating to domestic violence, sexual assault, or stalking.

This bill includes rights that already exist in a number of states and localities, although the federal bill knits together several types of state and local laws: paid sick leave laws, as are in effect in San Francisco and Washington, DC; so-called "small necessities" laws, which allow parents to take time off for their children's school-related activitites and often to take children to preventive care medical and dental visits; and domestic violence leave laws.

May 19, 2009

Supreme Court Finds No Pregnancy Discrimination in AT&T Pension Plan

Last year, the EEOC accepted more than 6,000 charges from employees alleging pregnancy discrimination. It's hard to believe, but there was a time -- just 30 years ago -- when it was considered perfectly fine for employers to treat pregnant women differently (read: worse) than everyone else. Despite the passage of Title VII in 1964, many employers continued policies that, for example, required women to stop working at a particular point in their pregnancy or provided paid time off for every conceivable reason except pregnancy and childbirth.

In a notorious 1976 case called General Electric Co. v. Gilbert, the Supreme Court upheld practices like these, finding that pregnancy discrimination was not gender discrimination because, even though only women can get pregnant, not all women do. In the Court's language, distinctions based on pregnancy don't divide the world into women and men, but into pregnant women and "nonpregnant persons." Because women are on both sides of the dividing line, the result can't be discriminatory.

Long hailed as an example of overly legalistic reasoning that misses the point -- and a reason why the Court needed at least one female member -- the Gilbert decision was quickly overturned by Congress in the Pregnancy Discrimination Act (PDA), which stated that pregnancy discrimination is a form of gender discrimination. This was too late to help many of the women who had been penalized at work in various ways for getting pregnant.  

At AT&T, for example, time women took off for pregnancy and childbirth was not fully counted as hours of service, used as the basis for calculating pensions and other benefits. While employees who took disability leave for other reasons received full credit for the entire period of their leave, employees who took pregnancy leave received a maximum credit of 30 days, later raised to six weeks. AT&T changed its policy once the PDA passed, but the women who had already been subjected to these policies continued to have their pensions calculated based on service to the company, which excluded some of their pregnancy leave.

The Supreme Court recently decided the pregnancy discrimination claims of a group of these women, in AT&T v. Hulteen. The Court found that it was legal for AT&T to continue calculating pensions on the basis of these pre-PDA policies. Even though these women continue to receive pension payments based on a discriminatory practice, the Court found in favor of AT&T, primarily because the practice was legal -- as evidenced by the Gilbert decision -- when it was in place, and the PDA was not retroactive. Justice Ginsberg dissented, arguing that AT&T's system continues the discriminatory effects of its former policy. Because the women are suffering discrimination today, in their pension checks, there is no issue of retroactivity.   

Interestingly, the AT&T decision was written by Justice Souter, whose impending retirement has led to much speculation over who -- and more generally, a person of which gender -- will be nominated to replace him. Put dissenting Justice Ginsberg in the camp of those who are hoping for another female Justice: In a recent interview with USA Today, Justice Ginsberg said that in the oral arguments in the AT&T case, some of her male colleagues revealed "a certain lack of understanding" about gender bias in the workplace. In the same interview, she called for some female company on the Court, saying "Women belong in all places where decisions are being made."    

To learn more about avoiding pregnancy discrimination, see Nolo's article Providing Pregnancy and Parental Leave.

May 13, 2009

Women Who Bully Women

A very interesting article in the New York Times this weekend addressed the common -- but not often discussed -- problem of women, particularly those in management positions, bullying other women. (It's called "Backlash: Women Bullying Women at Work," by Mickey Meece.) A survey cited in the article says that 40% of workplace bullies are women. And women are much more likely to bully other women; men who misbehave apparently tend to be equal opportunity bullies.

I'm sad to say that these facts don't surprise me. I've been lucky enough to have some wonderful managers of both genders in my career, but I've also seen -- and heard about -- really atrocious behavior by women, particularly towards female subordinates, and particularly towards the lowest on the office totem pole: secretaries, receptionists, and so on. In the schoolyard, bullying connotes someone who has more power picking on someone who has less -- often, the bigger kids picking on the smaller, or the popular kids picking on those who are less so. The female workplace bullying I've witnessed has taken a similar form: Someone with much more power, a much higher salary, and more privilege picking on someone with no power, living paycheck to paycheck, and stuck in that job.

The article points out a few possible reasons for female bullying. Some women have had to work very hard to climb the corporate ladder, and may have come to rely on more aggressive, competitive behavior. Perhaps women are being held to gender-based stereotypes (that they should be nurturing and sensitive rather than assertive). I would add a couple of others I've heard: Women who've had to be tough to get ahead want other women to toughen up, too, and to realize that they have to do their best in order to succeed. Some women also see bullying as a gender equality issue, raising arguments like, "No one would ever question a man who treated his secretary the way I treat mine."

Arguments like these ring fairly hollow to me. Gender discrimination and gender stereotyping certainly exist, and male and female managers are often held to different standards. But that's no reason to mistreat subordinates. The real gender equality issue here has to do with the victims of workplace bullying, not the perpetrators. Companies in which managers -- of either gender -- disproportionately focus their abuse on female employees are vulnerable to charges of sex-based harassment or sex discrimination. It doesn't matter if the manager is trying to toughen up female subordinates, defying gender-based stereotypes, or just being a jerk.

May 7, 2009

Immigration Enforcement Shifts to Employers

Last week, the Department of Homeland Security announced that it had issued new guidance to Immigration and Customs Enforcement ("ICE"). The new marching orders: Focus on employers, not employees. The press release on the new rules says that, effective immediately, worksite enforcement resources will be focused on the criminal prosecution of employers who knowingly hire unauthorized workers, "to target the root cause of illegal immigration."

The press release points out that previous efforts resulted in many more arrests of workers than employers. Of the more than 6,000 arrests ICE made in 2008 as part of its worksite enforcement program, 135 were employers, managers, and human resources personnel. The rest were the workers themselves.

Just as ICE is refocusing its efforts on employers, the Supreme Court took away one of its tools for prosecuting workers. The workers arrested by ICE often face criminal charges relating to their use of false identity information. Prosecutors could also tack on the charge of aggravated identity theft, which carries a two-year sentence extension, if the worker knowingly used someone's else's identification. According to the New York Times, prosecutors used the threat of that additional punishment to convince workers to plead guilty to lesser charges, such as document fraud.

Earlier this week, the Supreme Court held that the crime of aggravated identity theft requires the alleged thief to know that the identification information he or she is using actually belongs to someone else. In other words, a worker can no longer be charged with aggravated identity theft simply for making up a Social Security number; the worker must know that the number belongs to another person.

See The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo), for detailed information about what's required of employers in verifying that employees are legally authorized to work in the United States.