The COVID-19 pandemic has been a fertile source of new litigation: challenges to mask mandates, challenges to vaccine mandates, construction of child custody visitation agreements in light of COVID-19, assertion of the defense of impossibility in response to attempted enforcement of a contract, etc. Recently, a federal district court in Virginia addressed whether an individual stated a cause of action against his employer for firing him after the employer denied the individual’s request to quarantine at home in order to avoid exposing his adult paraplegic brother to the coronavirus. The court in Crawford v. Creative Cost Control Corp., Case No. 7:21-CV-00419, 2021 WL 5049768, 2021 Wage & Hour Cas.2d (BNA) (W.D. Va. Nov. 1, 2021), held that plaintiff Christian Crawford (“Christian”) stated claims for (1) interfering with rights provided under the Family and Medical Leave Act (“FMLA”), and (2) retaliation or discrimination in violation of the FMLA. However, he did not state a claim under the Families First Coronavirus Response Act (“FFCRA”).Read More
EMPLOYMENT LAW LEGAL RESEARCH BLOG
Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12117, makes it unlawful for an employer to "require a medical examination" or to "make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." Id. § 12112(d)(4)(A). According to the Equal Employment Opportunity Commission ("EEOC"), this means that an employer should not make disability-related inquiries or require a medical examination of an employee unless the employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."Read More
The Equal Pay Act ("EPA") provides as follows:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to . . . (iv) a differential based on any other factor other than sex[ .]
29 U.S.C. § 206(d)(1) (emphasis added).
The Ninth Circuit Court of Appeals has stated that "[t]he [EPA] stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex."Read More
For almost 80 years, the National Labor Relations Board ("NLRB" or "Board") has awarded "search-for-work" and "interim employment" expenses as part of its broad discretionary authority under section 10(c) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(c), to provide a make-whole remedy for those injured by unfair labor practices in violation of section 8 of the NLRA, 29 U.S.C. § 158. See Crossett Lumber Co., 8 N.L.R.B. 440, 497-98, enforced, 102 F.2d 1003 (8th Cir. 1938). Such expenses include, for example, increased transportation costs necessitated by seeking or commuting to interim employment, room and board while seeking employment and/or working away from home, and the cost of moving if necessary to assume interim employment. During those almost-80 years, the NLRB has awarded these expenses to those individuals who have suffered discrimination under section 8 of the NLRA in the form of an offset to interim earnings, rather than as a separate element of a back-pay award. The result of treating the award as an offset to interim earnings was that (1) individuals who were unable to find interim employment did not receive any compensation for their search-for-work expenses, and (2) individuals who found jobs that paid wages lower than the amount of their expenses did not receive full compensation for the search-for-work and interim employment expensesRead More
The Lawletter Vol 41 No 5
A recent case from the Second Circuit Court of Appeals sets forth new Second Circuit standards for addressing certain issues under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601–2654, and the employment discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and provides a set of facts on how not to respond to an employee's request for FMLA leave. Graziadio v. Culinary Inst. of Am., No. 15-888-CV, 2016 WL 1055742 (2d Cir. Mar. 17, 2016).
The plaintiff, Cathleen Graziadio, had been employed at the Culinary Institute of America ("CIA") as a Payroll Administrator for five years on June 6, 2012, when she notified her direct supervisor that she needed to take FMLA leave to care for her 17-year-old son, who had been hospitalized as a result of previously undiagnosed Type I diabetes. At Graziadio's request, the necessary FMLA paperwork was forwarded to her by the appropriate employee. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, she submitted a medical certification supporting her need for leave to care for the 17-year-old son. That same day, June 27, Graziadio's 12-year-old son underwent surgery after having fractured his leg playing basketball, and Graziadio promptly notified her supervisor that she would need immediate leave to care for her son and that she expected to return the week of July 9 at least part-time. On July 9, Graziadio responded to her supervisor's request for an update, stating that she would need to work a reduced, three-day-week schedule until mid-to-late August and could return on Thursday, July 12, if that schedule were approved. She also asked, as she had in prior emails, if there was "any further documentation that [the CIA] may need from me." Id. at *1. At this point, the supervisor reached out to the CIA's Director of Human Resources, and matters got complicated.Read More