Category Archives: Uncategorized

Telling An Employee They Are Eligible For FMLA Leave May Mean They Are Eligible… Even If They Aren’t

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leaves to employees who meet a set of eligibility standards.  These standards can be somewhat complex and, even though the FMLA has been around for over 20 years, employers still get make mistakes when determining eligibility.  The question then arises, what if your employer tells you that you are covered but then fires you when they later determine you are not actually eligible?  This exactly the scenario that arose in a recent federal appeals court decision.  See Tilley v. Kalamazoo County Road Commission, 777 F.3d 303 (6th Cir. 2015) (hat tip to the Employer Law Report for bringing this case to my attention).  Hit the jump for all the details… Continue reading

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Filed under Family Medical Leave Act, Rights, Uncategorized

Legal Black Hole: Overpaid Employees

It seems at least once every year I have to help advise an individual who has been mistakenly overpaid.  In most circumstance, the individual comes to me because they have been notified that their employer is going to unilaterally begin garnishing their paycheck to make up for the overpayment.  For some individuals, the amount removed from the check is small enough not to have much impact but for many public school employees the loss (which sometimes represents years of overpayment by the employer) can place the individual into a very precarious financial position.  This is particularly true in Missouri which has the 9th lowest average teacher salary in the nation. Continue reading

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Costco Sex Harassment Lawsuit May Have Lessons for Missouri Teachers

Almost exclusively, claims of sexual harassment are brought against coworkers or supervisors.  So what is an individual to do when the harasser falls outside of one of these two groups?  The Equal Employment Opportunity Commission (EEOC) recently brought suit against Costco in just such a situation and the case may also provide guidance for teachers as well.  Hit the jump for all the details… Continue reading

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Filed under Discrimination, Uncategorized

Medical Information: What do I have to share with my employer?

When medical issues affect your work life it is natural to want to keep your health information as private as possible.  Often, employers will request that the individual sign an incredibly broad release that would grant them access to basically all of an individual’s health information which is far beyond what the law requires.  However, when deciding what information to share with your employer, bear in mind that there are some minimum standards of disclosure that must be met in order to claim protection under federal law.  This post will examine two cases, one under the Family Medical Leave Act and one under the Americans with Disabilities Act, where an individual shared information but the courts decided it wasn’t enough.  Fortunately, in most situations there is a balance that can be achieved between protecting your information and protecting your job. Continue reading

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Filed under Americans with Disabilities Act, Discrimination, Family Medical Leave Act, Uncategorized

Union Advocacy and Free Speech

I have written about the free speech rights of public employees a few times now but a recent case from a federal court in New York creates an important precedent for union members advocating on their coworkers’ behalf.  See Pekowsky v. Yonkers Bd. of Educ., No. 12 Civ. 4090 (S.D.N.Y. May 29, 2014).  Before getting into the details of Pekowsky, it’s important to understand the general landscape of public employee First Amendment rights.  The courts have taken several opportunities to limit general free speech rights in the somewhat unique scenario where the government is also an individual’s employer.  In order for a public employee’s speech to be protected under the First Amendment (and therefore protect them from any discipline for that speech), the speech must meet four tests:

  1. The employee must be speaking as a citizen and not pursuant to their official duties;
  2. The speech must be on a topic of public concern;
  3. The employee’s free speech interests must outweigh the employer’s interests; and
  4. The speech must be the motivating factor of an adverse employment action.

At issue in Pekowsky, was how these tests would apply to a union representative disciplined after advocating for his coworkers.  Hit the jump for more… Continue reading

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Charter Schools and Discriminatory Admissions

New (or renewed) guidance from the U.S. Department of Education, combined with a new coalition of civil rights groups filing lawsuits against charters in several states, have placed new scrutiny on the admissions practices of charter schools.  As Missouri, and other states, continue to expand their reliance on charter schools for providing public education now is a good time to review some of the legal dangers unique to charter education.  Hit the jump for a quick and dirty overview of a few of these developments…  Continue reading

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Filed under Discrimination, Education, Uncategorized

Court Upholds $450,000 Age-Discrimination Claim Against Kansas City School District

In a decision that could have repercussions for districts across Missouri, a Missouri appellate court has upheld a jury decision against the Kansas City School District with damages totaling almost $450,000.  See Hurst v. Kansas City Mo. Sch. Dist., No. WD76534 (Mo. App. W.D. April 29, 2014).  The decision highlights methods that many districts are using to “creatively” cut workforce and circumstances where such methods break the law.  Hit the jump for all the details… Continue reading

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Filed under Discrimination, Missouri, Uncategorized

Disability Accommodations – When is Attendance “Essential”??

When an individual is suffering from a disability, as defined in the American’s with Disabilities Act, their employer is required to work with them to find a reasonable accommodation that would allow them to complete all of the “essential duties” of their job.  If the individual cannot complete all of the essential duties then they could be terminated even though they have a disability.  Therefore, determining what qualifies as “essential” is a crucial step in the accommodation process.

While courts will generally look to a number of sources to determine what duties are essential to any given job (job descriptions, time sheets, etc.), there are some aspects of work that are nearly always considered to be essential.  Attendance at work is one of these aspects that courts will almost always accept as being “essential” without much further analysis.  However,  a recent decision from a federal court in Indiana shows that courts may be willing to analyze how essential attendance is on a case-by-case basis.  See E.E.O.C. v. AT&T Co., Case No. 1:12-cv-00402-TWP-DKL (S.D. Ind., Nov. 20, 2013).  This case could be useful for anyone whose disability affects their ability to routinely attend work. Continue reading

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Filed under Americans with Disabilities Act, Uncategorized

I’m on Medical Leave, Can I be Fired? Do I Have To Do Work?

The Family Medical Leave Act (FMLA) is one of the most important protections for workers dealing with their own medical issues or the health issues of a family member.  It provides time off for medical care or recuperation and guarantees that you cannot be disciplined or terminated for taking the leave (if you need to get acquainted with the basic protections of the FMLA, here is a video presentation I made with all the info).  Unfortunately, while the FMLA does protect you from termination for taking medical leave, there still may be other grounds that an individual can be terminated even while on leave.  Additionally, many employers now require some amount of call-in or work done while on leave, but the contours of what exactly can be required are fuzzy.  Hit the link for a few cases that illustrate these aspects of the FMLA… Continue reading

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Decision May Broaden Speech Protection for “Teaching and Writing on Academic Matters”

When I talk with educators they are routinely surprised by how limited their free speech rights are (for previous coverage of First Amendment issues, click here).  The courts have repeatedly narrowed the broad protection provided by the First Amendment so that now public employee speech must pass a number of tests before determining whether it is protected.  However, a recent decision out of the federal 9th Circuit Court of Appeals may be changing that trend.  See Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013).  Hit the jump for a discussion of the first few glimmers of change, along with a heavy helping of cautions… Continue reading

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