Thursday, February 28, 2013

Exotic Dancer's Are Employees, Not Independent Contractors

After a seven year legal battle, the Supreme Court of Kansas ruled that exotic dancers were employees rather than independent contractors. The court's reasoning in the case, Milano’s v. Kansas Department of Labor Contributions Unit, was based on the amount of control the establishments exercised over their dancers. The club, in this case, forced the exotic dancers pay rental fees for the stage and other services, mandated how much the dancers could charge for services, governed how they could conduct themselves during work hours, and they had to click in and out of their shifts. If the exotic dancers violated any of the rules or conditions they could be subject to fines or termination. The court stated in their opinion that, "ample substantial competent evidence in the record before us demonstrates that Milano’s possessed such a right of control over the dancers at Club Orleans,” to consider them employees rather than independent contractors. Following the court's decision, dancers may now receive unemployment benefits if they are fired, and the clubs must contribute towards the state funds that pay those benefits.
You can find guidance to help you determine if a worker is an employee or a contractor on the IRS website by clicking here.

Tuesday, February 26, 2013

Disability Does Not Mean Job Security

In 2010, the Americans with Disabilities Act (ADA) amended their definition of "disability." May 24, 2011 those amendments went in to effect. The Equal Employment Opportunity Commission has a fact sheet on the final regulations which can be access by clicking here.  According to the Fact Sheet, Congress has "made it easier for [individuals] seeking protection under the ADA to establish that he or she has a disability." An individual can qualify as "disabled" by meeting one of three prongs: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record (or past history) of such an impairment; or (3) being regarded as having a disability.
Despite this expansion of the definition, employees may still be fired for not being able to perform their job functions if accommodations are unavailable. The ADA Amendments Act (ADAAA) clearly states that an employer need not provide an accommodation if only the "regarded as" prong is met. An employee can be entitled to accommodations if they fall under both the first prong and the second prong, or "regarded as" coupled with one or both of the other two prongs. Being "regarded as" disabled alone will not entitle you for a reasonable accommodation by your employer.
The ADA is not a safeguard from termination for disabled employees when they cannot perform their tasks. That is the stance of the appeals court in Lawler v. Montblanc North America, L.L.C.  [which can be accessed by clicking here.] In that case decided last month, the employee (Lawler) took an extended leave of absence after being diagnosed with arthritis and sustaining injuries stemming from her condition. Her employer, Montblanc, contacted her doctor and asked if there were any accommodations they could provide so that she could return to performing her duties. Her doctor provided no accommodations for the employer. Since Lawler could not perform the necessary tasks while disabled, and her doctor offered no reasonable accommodations for her to return, her employment was terminated. The employer prevailed in this case because Lawler failed to prove that she could competently perform the duties necessary to hold her position, with or without any reasonable accommodation. Had Lawler been able to work, perhaps with some type of accommodation recommended by her doctor, then it may have been a discriminatory termination based on her disability.
Be aware of your protection under the ADAAA and the EEOC Regulations by clicking here.

Sunday, February 17, 2013

Facebook With Care

Hopefully most of us realize that we need to be careful with what we post on Facebook.  That is especially true if you "friend" your co-workers or boss. If you do mix work with Facebook that carelessly posted status or photo could come back to haunt you. It could even cost you your job and defeat your wrongful firing lawsuit.
In a recent case, Lineberry v. Richards, a nurse (Lineberry) requested time off from the hospital she worked at due to severe lower back pain. Her FMLA leave was granted. Shortly into her leave, she took a pre-planned vacation to Mexico and posted photos of her stay on her FaceBook page. These photos showcased her in positions that would be painful for someone experiencing severe lower back pain. When her co-workers saw the photos, they complained to their supervisor (Richards). The hospital then began an investigation, in the course of which they discovered that Lineberry had lied to them about the circumstances of the FMLA leave. The investigation concluded with Lineberry being terminated after her leave. Lineberry then sued Richards and other defendants alleging an FMLA violation. The defendant's for summary judgment, which was granted and the lawsuit was dismissed. 
The FMLA provides covered employees with up to 12 weeks of leave (more for those caring for service members) for certain family and medical reasons. If you take FMLA leave, it is not to be treated as a 'free pass' or a vacation and it should not be abused.  Misuse of you FMLA leave could lead to termination of your employment.
  1. Do not lie to your employer when you request leave under the FMLA.
  2. Do not post incriminating photographs on your FaceBook page.
To take a closer look at the Lineberry v. Richards case, click here.

Thursday, February 14, 2013

Happy 20th Anniversary FMLA

The United States is looking out for its service men and women once again. Military families now have even more protection afforded to them under the Family Medical Leave Act (FMLA). Although the Act has twice been expanded to accommodate military personnel and their loved ones, it has once again been amended for them. Family members of service men and women will now receive an additional 14 weeks of job-protected time off to care for injured service members and deal with other deployment related issues that may arise. Furthermore, airline flight crew employees, due to their work schedules, will receive greater access to the FMLA benefits. Military families can have some stress eased knowing that the original 12 guaranteed work weeks have now been increased to 26 weeks. This will allow family members to more adequately care for their beloved service members without having the added worries of maintaining employment.

To read more about this FMLA Final Rule, click here