Beware of Lawyers' Blogs

Looking for insight into the latest news in employment law? If so, you might want to avoid reading a blog post.

Many legal bloggers do an amazing job, processing cases within minutes (or days) of their release. And then they do another, and another, and another.

So, they're in a hurry. And because they're writing primarily for a non-lawyer audience, they'll probably need to simplify the story (or law) to explain the case. Plus, craving attention, they're looking for a headline, which is best if it's entertaining, shocking, or provacative. Finally, some may have an ax to grind and be willing to color facts to tell their story, while others can be sloppy with their legal analysis.

As a result, you can't always trust as "legal advice" what lawyers write on their blogs (and they'll be the first to tell you this).

If no one asks, they can't be denied: One of the labor law issues that the NLRB was expected to change under President Obama's administration has to do with so-called "Weingarten" rights — whether a non-union employee has the right to request that a co-worker attend disciplinary meetings. Recently, we saw a lawyer's blog post about a February 2012 case Praxair Distribution (NLRB), that claimed the case "clearly and unequivocally" resolved the Weingarten issue.

However, by reading the case in detail — including footnote 2 — one may discover that two-of-the-three NLRB Commissioners indicated that it was "unnecessary" to decide the Weingarten issue. In fact, the Weingarten issue wasn't even properly raised by the case; as the NLRB noted, "there has been no showing that [the employee] requested, or that the [employer] prohibited, the presence of a coworker at the investigatory interview."

Despite the blog post describing this as a case in which the NLRB denied non-union workers their Weingarten rights, we'll have to wait until an employee actually asks for a co-worker/representative before getting the NLRB's current view on the question. This case, unfortunately, does not answer the question.

We do it differently now: A recent case involving the Americans with Disabilities Act (ADA) provides a second example of a lawyer's misleading blog post. The case, Boitnott v. Corning (4th Cir. 2012), concerned an employee who couldn't work overtime in 2005 after a heart attack and leukemia.

Because the events occurred before 2009, the old (pre-amended) ADA applied. So, the recent Court opinion, which concluded that the employee didn't have a "disability" (since he could work up to 40 hours per week), is no longer relevant, since the employee's medical condition itself (leukemia) now qualifies as a "disability" under the current (amended) ADA.

The fact that the employee didn't have a disability under the pre-amended ADA, but would now, was largely ignored by lawyers who burden themselves with quickly pumping out blog posts. Even though this employee would now have a disability (and thus be entitled to a "reasonable accommodation"), one lawyer posted an article stating that this case "absolves" employers from having to accommodate disabled workers who can't work overtime.

However, this case in no way limits the need to accommodate individuals who do have an ADA disability. If someone has a disability (e.g., leukemia) and cannot work overtime, the ADA (both before the amendments and after) requires the employer to consider accommodations such as a reduced work schedule, or simply excusing them from overtime assignments.

So, check the lawyers' blogs for references and citations to the latest cases. But, don't believe what they say about those cases, until you (or someone else) takes the time to check out the source material with the deliberate attention necessary for an accurate analysis.

Intermittent FMLA & Omitted Spouses

Q: May employees take FMLA intermittent leave to care for a sick spouse?
A: Since 2009 the regulations haven't authorized it, but they may soon.

The US Department of Labor (DOL) proposed new rules for the Family and Medical Leave Act (FMLA) on January 30, 2012. Besides expanding family leave benefits for veterans, they also correct a previously existing anomaly that was likely a mistake.

In 2008, the DOL last revised its FMLA regulations after Congress amended the law to provide coverage for military families. Although the FMLA law permits intermittent leave for employees to care for their sick spouses, the DOL's 2008 FMLA regulations erred by leaving "spouses" off the list of relatives for whom employees may take take intermittent leave.

Specifically, 29 CFR §825.202(b) provides the list of relatives employees may take intermittent leave to care for when they're sick. And while it lists "parent, son, or daughter," it doesn't mention spouses. Similarly, §825.202(b)(1) says:

"Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee's own serious health condition, or a serious injury or illness of a covered servicemember...."

(There's some evidence that leaving spouses out of §825.202 was a mistake rather than intentional. For example, §825.204(a) specifically mentions transfers as being permissible to accommodate intermittent leave taken for a spouse.)

The DOL's 2012 proposed regulations corrects this error by adding "spouse" to the list. According to the DOL's "Section-by-Section Analysis":

"The Department also proposes to correct inadvertent drafting errors that were made in the 2008 final rule, including correcting the cross-references in current §825.200(g) and (f), and inserting the word 'spouse' in the first lines of §825.202(b) and (b)(1)."

Labor Code §2810.5 Notice (AB 469)

Under recently enacted Labor Code section 2810.5 (AB 469), California employers must give a "Notice to Employee" to new hires. The Labor Commissioner posted a sample Notice to Employee template (in several languages) and FAQs.

However, many questions still remain. For example, here are a few sent in by our members to LawRoom's "Ask the Editor" that we've answered:

• On AB469, where we have to indicate rate of pay and how overtime (OT) is calculated. Do we need to specify the OT hourly rate, or can we just specify OT is paid at 1-1/2. Do we need to go further and tell when double time is paid?
• We are a California employer and we are finalizing our template for the Employee Notice required under Labor Code 2810.5 (eff. 1/1/12). We are trying to decide if we have to include the PEO/leasing/agency section. We use agency temps, but they are not our employees. Do we still have to list those agencies?
• There is a new labor code section 2810.5 that came out that requires us to provide specific information (i.e., pay rate, workers comp carrier etc) to all new hires on form DLSE-NTE and also requires us to notify employees when there is a change to any of that information. We do notify our existing employees when they have a pay rate change via their check stub but we also provide them with a signed payroll change tag that includes the new pay rate, date of change and reason for change. Is that sufficient notification for the payroll change or are we still required to complete the DLSE-NTE for all employees?

AB 887 Transgender & Transvestite Protection

A new California law for 2012, AB 887, expands the definition of "sex" in the legal codes for various purposes, including the employment discrimination law.

Previously, "sex" referred to a person's gender, which included their "gender identity." AB 887 amends the definition so that it now will include a person's "gender expression." For example, although employers ordinarily may control how employees appear at work, they will have to let employees dress consistently with their "gender identity" and "gender expression" [Gov Code §12949].

Although the new law says it is "declaratory of existing law," the addition of "gender expression" to Gov Code §12949 does expand employees' rights. Specifically, besides having the right to dress in conformity with how they "identify" their gender (as a man or a woman), employees will also have the right to dress as they wish to "express" their gender.

In other words, previously employees had the right to dress as a "woman" only if it was consistent with their gender identity. That is, they "identified" themselves as a woman, regardless of their biological sex. Thus, for example, transgender people who were born male who realized they were women had the right to dress as women, since that was their "gender identity."

Under AB 887's amended definition, the right to dress as a woman expands to anyone who wants to "express" that gender. In other words, an individual need not "identify" as a woman to dress as a woman, but merely wish to express the feminine. Thus, a transvestite man who identifies as a man will nonetheless have the right to dress in a dress to express his gender non-conforming behavior.

Curiously, employees only have the right to dress consistent with their gender (identity or expression). As a result, there may not be a right for an employee to object to gender-specific dress code or grooming requirements, unless they identify with or wanted to express the opposite gender.

Consider, for example, the Jespersen v. Harrah's case, which involved a female bartender fired for refusing to wear makeup (which Harrah's required of all female but not male employees). Under AB 887, employers have the right to enforce appearance rules, although Jespersen would have the right to dress in conformity with her gender expression. So, AB 887 would entitle Jespersen to refuse to wear makeup, but only if her gender identity or expression was not "female." Unless Jespersen was a transgender person (who believed she was a man) or wanted to behave or otherwise express a "male" appearance, she might not have the right to appear other than in conformity with her employer's "female" dress code rules.

It's possible, of course, that AB 887 may be interpreted to permit all types of gender expression, including "non conforming" behavior that isn't restricted to the male-or-female dichotomy. However, if a masculine male chooses to wear a pink bow in his hair, not because he believes himself to be a woman nor because he wishes to express a female appearance but simply as a personal preference, we may have a situation where even AB 887's expanded definition may permit an employer to discriminate and say, "You're a man and you can't dress like that."

NLRB Poster Postponement Problem

The National Labor Relations Board (NLRB) stirred up a controversy in 2011 by adopting a regulation requiring most US employers to put up a poster about employees' federal labor rights under the National Labor Relations Act (NLRA).

According to the official publication of the NLRB's "final rule" in the Federal Register, the NLRA poster requirement was to take effect on November 14, 2011.

Due to the adverse reaction, however, the federal agency decided to "postpone" the deadline for putting up the NLRA poster. According to the October 5, 2011, NLRB announcement, "The new effective date of the rule is Jan. 31, 2012."

It's curious that, following the official enactment and publication of the final rule, which occurred only after a period of time to allow for public comments to be submitted and considered, that the agency thinks it can change the effective date of its regulation by merely issuing a press release.

To a lawyer, once a regulation is adopted through the official administrative procedures, it basically has the force of law and isn't subject to ad hoc tweaking by the agency. In other words, if the regulation said November 2011 was the date it took effect, that's when it took effect. Not some later date.

Plus, the new regulation itself says there isn't any reason to delay. According to Footnote 213, "The Board finds unpersuasive the suggestions in several comments that the effective date of the rule be postponed to as late as April 15, 2012. The Board finds nothing in the requirements of the rule or in the comments received that would warrant postponing the effective date."

Accordingly, the NLRB poster rule probably did legally go into effect in November 2011 — as specified by the official regulation — even if the NLRB issued a press release (after adopting the rule) saying: "Not until January 2012 it doesn't."

CA Supreme Court Considers Meal Breaks

The California Labor Code requires employers to "provide" meal breaks when employees work over five hours. A dispute over the meaning of "provide" is currently being considered by the California Supreme Court.

Must an employer ensure employees take their breaks (force them to stop working) or must it simply authorize and permit employees to take the time off?

This litigation — the Brinker case — has been in the appellate courts since 2007 (see CA's 5-Hour Meal Rule Explained and our 2008 story CA Break Rules Explained Redux).

Three years later (November 2011), the state Supreme Court heard oral argument. A decision is expected by February 2012.



For more coverage, see the LA Times story.

Presenting the ACHRO/EEO Winner

LawRoom's Ken Moses poses with Andrea Bozant holding her prize.

LawRoom participated in the recent ACHRO/EEO conference in Palm Springs. This is the Association of Chief Human Resource Officers (ACHRO), which is a non-profit organization assisting the Chief Human Resource Officers and staff in the California Community College system.

Andrea Bozant from Monterey Peninsula College won LawRoom's "guess the cash in the jar" contest. She correctly guessed — and won — $118.00.

Congratulations Andrea!