Recently the Supreme Court addressed the ability of a union contract, custom, or practice to dictate when the putting on or taking off of personal protective equipment constitutes “changing clothes” and thus constitutes non-compensable time. In Sandifer, the Court held that when the vast majority of such preliminary or postliminary time is consumed in donning-and-doffing of what clearly are clothes, then the entire period, including the time related to personal protective equipment which is not clothing, falls under the collective bargaining agreement’s exception to compensable work time. The Court acknowledged that some personal protection equipment does not meet the definition of clothes, yet the amount of time spent in donning or doffing these items may be so small and difficult to track that such time need not be counted for purposes of computing compensable work time.
Recently, in the matter of McCray v. Maryland Dept. of Transportation, the Fourth Circuit had the opportunity to consider whether sovereign immunity or legislative immunity applied to a discrimination case filed by an employee of the Maryland Department of Transportation. Plaintiff, Ms. McCray, filed a discrimination suit pursuant to the ADEA, ADA, and Title VII in which she alleged she was fired from her job as a transit worker for discriminatory reasons. Ms. McCray’s position was eliminated by the Legislature with 802 other positions due to necessary budget cuts.
In JWCF, LP v. Farruggia, the West Virginia Supreme Court affirmed the Kanawha County Circuit Court’s refusal to grant a new trial after a jury awarded a former employee more than $250,000 in back pay, front pay, and damages arising out of a Workers’ Compensation discrimination claim.
Good news may be on the horizon for those employees who find they are scrambling to buy an extra pair of glasses or rush to the dentist in order to spend the remaining funds in their Health Flexible Spending Account (HFSA or FSA) before the end of the plan year. On October 31, 2013, the IRS released Notice 2013-71 which modifies the “Use-or-Lose” rule for Health FSAs. Beginning immediately, employers may amend their Section 125 cafeteria plans to permit employees to carryover up to $500 in unused funds into the next plan year.
If you attended any of our Fall Labor Seminars last year, you heard Jamie Leary’s quick summary of issues of immediate concern to employers under the so-called Affordable Care Act (“ACA”).
As Jamie said during her update, and as you know from a glance at any newspaper these days, the ACA is evolving by the moment. If you’d like to catch up on the current state of all things ACA, tune into Jamie’s webcast on February 27. Click here for a quick preview. Although we certainly won’t have all the answers at that point, Jamie will tell you what’s for certain and what’s to come.
We’d love for you to join us!
In Blankenship v. Caterpillar Global Mining, LLC, the Court denied an employer’s motion for summary judgment on the grounds that the Plaintiff, an applicant for employment who the employer had not hired, had presented sufficient evidence to create a jury question about whether the employer’s reason for failing to hire her was a pretext for gender discrimination under the West Virginia Human Rights Act (“WVHRA”). The Court held that, at the summary judgment stage, an applicant plaintiff need only provide circumstantial evidence that could lead a jury to infer a discriminatory motive in the employer’s refusal to hire. With regard to establishing pretext, if the employer has articulated a nondiscriminatory reason for its refusal to hire then the applicant need only provide evidence that would raise a question about whether employer’s offered reason was a pretext for discrimination. Discrimination need not be the sole reason behind the employer’s refusal to hire so long as the applicant can put forth evidence showing that discrimination played a significant part in the employer’s adverse decision.
“It’s not a stretch to say that the National Labor Relations Board (NLRB) probably didn’t receive a whole lot of holiday cards from employers this last Christmas. However, employers aren’t the only ones who have taken some umbrage with the Board. Recently, this discontent has spread to a handful of administrative law judges (ALJs), who have expressed their frustration with the Board’s decision-making and liberties taken by the NLRB’s General Counsel (GC).