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FMLA
Father has no right to FMLA leave to prepare for child's birth

In Tanner v. Stryker Corporation of Michigan, the 11th U.S. Circuit Court of Appeals, which has jurisdiction over Alabama, Florida, and Georgia, ruled that an expectant father did not have the right to take FMLA leave to travel out of state and prepare for the birth of his child. The employee traveled to Connecticut to be with his pregnant ex-girlfriend for the birth of their baby. He exhausted his PTO and sick time before the baby was born but remained in Connecticut. His employer had an attendance policy that noncustomer-facing employees who were absent without leave accrued two "occurrence points" and five points generally led to termination.

When he was terminated, he sued Stryker for interference with FMLA rights and retaliation. A district court granted summary judgment to the employer and the Appeals Court agreed. The court noted that FMLA regulations allow exceptions for pre-birth leave in certain circumstances:

However, the exceptions do not include leave for an expectant parent who is neither pregnant nor married to a pregnant spouse to await the child's birth. FMLA leave for childbirth and care of a newly born child begins with the child's birth.



ADA
Judge dismisses disability bias suit against X for ban on remote work

A federal judge in California dismissed a lawsuit accusing social media platform X of forcing out workers with disabilities after Elon Musk took over the company and barred employees from working remotely. The judge stated that the plaintiff, Dmitry Borodaenko, failed to demonstrate how Musk's return-to-office mandate specifically affected employees with disabilities. However, the judge gave him four weeks to file an amended lawsuit including more detailed claims.



Workers Compensation
SIBTF, not injured employee, must prove entitlement to SSDI offset - California

The Subsequent Injuries Benefits Trust Fund (SIBTF) pays additional compensation to workers who suffer an industrial injury that, when combined with pre-existing disabilities, causes permanent disability equal to 70 percent or more. In SIBTF v. Workers' Compensation Appeals Board (Vargas), the 2nd District Court of Appeals rejected the argument that public policy or the desire to conserve governmental resources supported shifting the burden to require injured workers to prove that the SIBTF is not entitled to an offset. Further, the injured worker argued the Fund bore the burden to prove what amount or percentage of the SSDI award was attributable to her pre-existing disabilities and the court agreed.



Appeals court addresses if temp agency must pay comp when insurer becomes insolvent - Georgia

The Insurer's Insolvency Pool (GIIP), a safety net for employees with workers compensation claims in instances when the carrier becomes insolvent, appealed two cases to the Court of Appeals. One case was remanded to consider further if the worker was considered a borrowed servant. In the other case, Georgia Insurers Insolvency Pool v. Zep, Inc., a forklift operator who was placed by a staffing agency at a warehouse of Zep Inc. was injured. The staffing agency's insurer began paying the claim but then became insolvent, and the state insolvency pool continued paying medical and wage-loss benefits.

The pool then sought reimbursement from Zep's insurer. This was denied when Appellate judges found that the insolvency pool did not establish the third prong in the borrowed-servant test - that the borrowing employer must have the exclusive right to terminate the worker. Unlike professional employer organizations or employee leasing companies, which under state law are considered co-employers, temporary staffing firms "are in the business of employing individuals and, for compensation from a third party, providing those individuals to perform work for the third party..." the court explained. The pool plans to petition the Supreme Court to review.



Taxes can be withheld from Public Employee Disability benefits - Illinois

The Public Employee Disability Act provides for the continuation of full pay for law enforcement officers, corrections officers, firefighters, and state employees who suffer disabling injuries in the line of duty. In Bitner v. City of Pekin, an injured city employee argued that employment taxes should not be withheld from the disability benefits. A trial judge agreed, finding that disability law benefits are not income subject to withholding.

The Appellate Court disagreed and noted there was no mention of tax withholdings in the act, which states that the injured worker should be paid on "the same basis as he was paid before the injury..." Therefore, taxes should be withheld.



Civil suit against crane contractor revived - Indiana

In Beckner v. Maxim Crane Works LP, the 7th Circuit Court of Appeals vacated a district court decision that the suit was barred by the provisions of exclusive remedy. Commercial Air rented a crane and an operator to lift trusses onto the roof of a home that was being constructed. During the project, a Commercial Air worker was injured and sued the crane company for negligence. Although the agreement with the crane company stated that Commercial Air would be considered the operator's employer for all purposes other than the payment of wages and workers compensation, the Appeals Court noted there is a seven-factor test to determine the existence of an employer-employee relationship and a 10-factor test that distinguishes between an employee and an independent contractor.

The seven-factor test evolves around the question of control and the court found conflicting evidence in this case. The crane company's manual gives the operator the sole power to stop and refuse to operate and there was some question as to whether the crane operator was acting on his own or under the direction of Commercial Air. The ruling was vacated and remanded.



Court denies new trial for $15.5M award to injured worker - Pennsylvania

In Feldman v. CP Acquisitions 25, L.P., et al., a tree worker suffered serious electrical burns over 62 percent of his body and was awarded $15.5 million in damages following a jury trial. The contractor, Vito Braccia Construction (VBC), LLC, argued it was a statutory employer and protected by exclusive remedy and requested a new trial, but the Superior Court denied the appeal.

The Court noted that while a section of the statute states a person who contracts with another to have work performed related to "the cutting or removal of timber from lands" shall be deemed a contractor, the Court distinguished the cutting of timber from otherwise felling trees and found that the trees at issue were not intended to be harvested for commercial use, therefore don't meet the definition of timber.

Another section addresses the far more common use of the Statutory Employer Doctrine and the long adhered to test is referred to as the McDonald test. The Court determined that VBC failed to meet the McDonald test because it did not have a contract with the owner of the property nor a contract with the tree removal company.



Uber can classify luxury 'Black' drivers as independent contractors - Pennsylvania

Razak v. Uber Technologies, Inc., focused on whether Uber BLACK drivers (luxury car drivers) should be classified as employees or independent contractors. After more than eight years of litigation, two hung juries, and multiple court opinions, a federal judge said enough and dismissed the case with prejudice. He cited the court's inherent power to manage its docket and the futility of continued litigation. Further, the judge granted Uber's motion for judgment as a matter of law. This decision was based on Uber's successful demonstration of how local Philadelphia regulations, rather than company policy, dictated many aspects of driver control.