Ms. DeGerolamo began working for her employer as a Marketing Coordinator in November 2007. Ms. DeGerolamo took a leave of absence in August 2012 for anxiety and insomnia under the Family Medical Leave Act ("FMLA"), alleging that she suffered from "great anxiety and depression" which was especially aggravated by crowded roadways experienced during the heavy traffic of rush hour.
Ms. Flood was a customer service employee at a Bank's 24-hour call center in Maine from July 24, 2006, through October 1, 2010. In March 2009, Ms. Flood met a woman named Keri who cleaned at the call center where Ms. Flood worked. The pair began dating in October 2009 and would frequently spend their break time together. In April 2010, Ms. Flood was at a bank social event and was sitting at the Lesbian, Gay, Bisexual, Transgender ("LGBT") table. Ms. Flood's supervisor, Ms. Castle, approached the table and saw a photo of Ms. Flood embracing her girlfriend at a local bar. Ms. Castle appeared shocked and quickly walked away. After seeing the photo, Ms. Castle contacted the LGBT table's sponsor and complained that the picture was offensive because it depicted alcohol; the sponsor then removed the photo from the premises.
I was recently volunteering and a man came in with a legal question about unemployment benefits. His wife had been denied her benefits after working at the same company for twenty (20) years. The gentleman wanted to know how the company could deny her money since she'd been "paying into unemployment for twenty years." This prospective client's misconception is very common. While some states require an employee to pay for unemployment; in Colorado, it is illegal to require an employee to pay into an unemployment benefits fund.
Nearly two-thirds of smaller companies, with 199 workers or less, and a vast majority with companies of 200 or more workers have employee workplace "wellness programs." As part of that benefit, employees may earn a discount on gym memberships; have access to weight loss or smoking cessation programs or other informational and healthy lifestyle resources. The mission of these programs is certainly worthwhile; but there are some aspects that may be illegal. The U.S. Equal Employment Opportunity Commission ("EEOC") has filed lawsuits against two (2) companies in late 2014, claiming some wellness programs, which included non-voluntary medical exams and non-job-related lifestyle inquiries, may violate the Americans with Disabilities Act ("ADA").
I recently had a consultation with an executive recruiter who stated that he recommended a specific worker to one of his corporate clients. However, after numerous interviews, the company decided not to hire this particular worker, simply because she was unemployed. Discrimination against the unemployed is rampant. Certain employers will not consider applicants who have been unemployed for more than six (6) months; while other jobs ads explicitly require applicants to be "currently employed," at the time of application. As of today, only Washington D.C. has a law making it illegal to discriminate against the unemployed. Oregon and New Jersey currently ban discriminatory language in job listings but not the practice of excluding unemployed applicants. Several other states are considering legislation on similar measures; including allowing unsuccessful applicants to sue under the same discrimination laws that apply to race or gender bias. However, it is unclear whether state laws would have much impact. New Jersey's law has been in place since 2011, and to date only one company has been cited for violations. As part of the ill-fated American Jobs Act in 2011, President Obama proposed banning job ads that discourage the unemployed and giving spurned job-seekers a way to file claims with the Equal Employment Opportunity Commission ("EEOC"). The Bill, however, did not make it through Congress. In Colorado, a House Bill forbidding employers from stating in job postings that unemployed candidates would not be considered was struck down in 2012.
While civil unions and domestic partnerships are not federally recognized, new Colorado legislation expands the available types of leave for those employees in a civil union or unmarried relationship. In March 2013, Colorado passed the Colorado Civil Union Act, which authorizes any two unmarried adults, regardless of gender, to enter into a civil union. A "civil union" means a relationship established by two eligible persons that entitles them to receive the benefits and protections and be subject to the responsibilities of "spouses." As it relates to employment, these "benefits and protections" generally include worker's compensation survivor benefits, protection from discrimination based on marital status and unemployment benefits. The federal laws do not provide protections or benefits to domestic partnerships or civil unions, and couples who have entered into a civil union in Colorado are not eligible for federal spousal benefits like those arising under the Family Medical Leave Act ("FMLA") or Employment Retirement Income Security Act ("ERISA.")
In Colorado, the Workplace Accommodations for Nursing Mothers Act of 2008 ("Colorado Nursing Mothers Act") requires public and private employers who have one or more employees to provide reasonable, unpaid break time or permit an employee to use paid break time, meal time, or both, each day to allow the employee to express breast milk for her nursing child for up to two (2) years after the child's birth. An employer shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet seat, where an employee can express breast milk in privacy. Reasonable efforts mean any effort that would not impose an undue hardship on the operation of the employer's business. Undue hardship means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, the financial resources of the business, or the nature and structure of its operation, including consideration of the special circumstances of public safety. Before an employee may seek litigation for a violation of this section, there shall be nonbinding mediation between the employer and the employee.
While volunteering at an employment law legal clinic recently a prospective client called in about a problem she was facing at work. The woman was approved for leave under the Family Medical Leave Act ("FMLA") as a caregiver for her son but also needed to have surgery. Her employer told her that any time off for the surgery and recovery would also count against her FMLA leave and she wanted to know if that was legal.
In a previous blog we discussed the case, Coats v. Dish Network, LLC, wherein the Colorado Court of Appeals held that Colorado's Lawful Off-Duty Activities Statute does not prohibit an employer from terminating the employment of an employee for off-the-job use of medical marijuana pursuant to a license issued under Colorado's Medical Marijuana Amendment 64. In that case, Mr. Coats was terminated after he tested positive for marijuana in violation of Dish Network's drug policy. Mr. Coats argued that his marijuana use was "lawful activity" because it was legal under state law. The trial dismissed Mr. Coats' claims, holding that medical marijuana was not a "lawful" activity because it was still federally illegal. The Court of Appeals affirmed the decision. The Colorado Supreme Court granted certiorari in January 2014 and the case is currently pending.
Employees of the Federal Government have their own internal system and administrative review that must be completed before proceeding with litigation in the civil courts. This internal system includes stringent deadlines for notifying the EEOC of any discrimination or retaliation. The below case affirms that a federal employee must comply with internal deadlines or be unable to proceed with a claim of discrimination in Federal Court.