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Inflexible leave policy lawful according to Tenth Circuit Court

In Hwang v. Kansas State University, the U.S. Court of Appeals for the Tenth Circuit, which covers the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, not only rejected the idea that inflexible leave policies are inherently discriminatory, but also recognized that such policies "can serve to protect... the rights of the disabled" by ensuring fair and uniform treatment.

The case involved a Kansas State University assistant professor who, after signing a one-year contract to teach, was diagnosed with cancer and was granted a six-month leave prior to the start of fall classes. When the leave was up, she asked for an extension, but the University had an inflexible leave policy, limiting employees to no more than six months of leave and she was terminated.

In some respects, the court ruling flies in the face of EEOC action that has led to law suits and costly settlements against many employers alleging that their "inflexible leave policies" were unlawful because they did not take into account the possibility of providing additional leave as a reasonable accommodation.

While this is a significant decision, it's important to note that this is the opinion of one appellate court and does not relieve the employer's obligation to the ADA's interactive process. The University was in a strong position because there was no evidence that it treated employees differently when it came to extended leaves of absence.

Terminating pregnant employee days before she qualifies for FMLA not a good idea

This case involved a pregnant property manager who initially had some job restrictions (lifting, mopping floors, etc.), but due to pregnancy complications was required to reduce her work hours from 30 hours to 20 hours a week. The request was made just a few days before her one-year anniversary, which would have qualified her for FMLA leave.

The employer took the position that, although it was "getting by" with her earlier restrictions, the hours restriction was "untenable" and the property manager was fired. This case did not even go to a jury. The court found that the employer violated the FMLA, and it entered a judgment in the property manager's favor on both her FMLA interference and retaliation claims. The court pointed out the employer could (and should) have allowed the manager to use sick leave, personal leave, or vacation leave to cover her reduced work schedule until she became eligible for FMLA leave. As a result, the court determined that the employer's decision to terminate employment instead of allowing her to use her paid leave (to bridge the eligibility gap) interfered with her FMLA rights. Wages vs. Stuart Management Corp.

Worker wins retaliation claim when he unsuccessfully reapplied for former position

A welder with a solid work record exhausted his FMLA, personal and sick leave when he underwent surgery for complications with his gallbladder and pancreas and when he was still unable to return to work, his employer, the city of Hot Springs, Ark, terminated him. His former job was publicly posted when his doctor released him to return to work and he applied. After the interview process, his former supervisor recommended hiring him, but a higher-level supervisor felt it was "a mistake" and found flaws in the interview process and directed it be redone. On the second round, the welder was not interviewed because he had inferior diagnostic and computer skills.

Although the welder's wrongful discharge and disability discrimination claims were dismissed, his FMLA retaliation claim was submitted to a jury. The 8th US Circuit of Appeals upheld the jury award of $56,000 as lost compensation and added $56,000 as liquidated damages for the employer's violation. Key points in this decision were the direct supervisor's recommendation for rehire and the change in the reasons for the hiring decision. Jackson v. City of Hot Spring

Workers' Compensation
Drivers are employees, not independent contractors - California

In Fernando Ruiz vs. Affinity Logistics Corp, the 9th U.S. Circuit Court of Appeals has ruled that a Georgia trucking company should have classified its California drivers as employees rather than independent contractors.

Drivers were encouraged to rent their trucks from Affinity, required to attend a staff meeting each morning, and wear Affinity-specific uniforms. The class action suit argued that Affinity improperly classified drivers as independent contractors, and, therefore, failed to pay them overtime pay, sick leave, vacation time, holiday pay and severance wages, records show. It also argued that Affinity improperly deducted workers' comp premiums from driver paychecks while requiring them to carry such coverage.

In its ruling, the court noted that Affinity controlled the details of drivers' work, including routes, equipment and driver appearance. The court also noted the company's right to terminate drivers at will and that drivers received a regular rate of pay from Affinity.

Going and coming rule bars benefits for university employee - Massachusetts

In an unpublished opinion, the Appeals Court of Massachusetts held that an M.I.T. employee, who sustained injuries in an accident as he drove his motor scooter home from work, did not sustain an injury arising out of and in the course of the employment. The employee argued that although Ames Street where the accident occurred was a public way, M.I.T. exercised control over the street (snow plowing, police patrol and ownership of buildings on either side of the street). Therefore, he argued he had not left MIT's "premises" for purposes of compensation under the Massachusetts statute. The administrative judge, however, rejected the employee's claims and the appellate court agreed. Noting that on some days the employee took public transportation, that on others he drove his scooter, and that he was free to park anywhere in the area-he could, therefore, have avoided Ames Street altogether-the court found the judge's decision was amply supported by the evidence.

Inability to explain how fall occurred leads to denial of benefits - Missouri

A 58-year old train inspector fell more than 20 feet from the top of a rail car resulting in injuries to his back and shoulder. He failed to establish he had an accident because he had no idea how his fall occurred. The inspector established his injuries flowed from his fall but he needed to show something more than his duties required him to work at an elevation. "Employee's inability to tell us why he fell is fatal to this claim. Since we do not know what hazards or risks gave rise to employee's fall, we cannot determine if those hazards or risks are related or unrelated to employment and we cannot determine if workers are equally exposed to those hazards or risks outside of and unrelated to employment in their normal nonemployment lives." Gleason v Ceva Logistics.

Benefits due to flight attendant injured in airport employee shuttle - North Carolina

The Court of Appeals of North Carolina affirmed a decision by the state's Industrial Commission that awarded workers' compensation benefits to an airline flight attendant who was injured in a crowded airport employee shuttle bus while being transported to an employee parking lot located some two miles from the airport. When the driver suddenly applied the bus brakes, the flight attendant fell forward, a piece of luggage struck her and another worker fell on top of her. The airline contended that under the going and coming rule, the accident did not occur within the course and scope of the employment.

The Commission found, and the appellate court agreed, that the attendant could recover under both (a) the "only means of ingress or egress" or "special hazards" exception and (b) the "provision of transportation" exception to the coming and going rule. The court concluded that the bus was the only practical means of transportation for the flight attendant since the airline contracted with the City of Charlotte for use of the parking lot, the attendant was not permitted to park at other closer locations, and the airline knew and approved of its employees using the bus to travel between the lot and the airport terminal.

Store manager's death while attempting to foil robbery is compensable - Pennsylvania

Reversing a decision of the state's Workers' Compensation Appeals Board, an appellate court ruled that a store manager who was struck and run over by an automobile being driven by a would-be robber was acting within the course and scope of his employment. The manager sustained severe traumatic brain injury and remained in a coma for about four months until he died.

The employer argued that the employee had violated work rules by having a gun on premise and embarking on a "vigilante mission" contrary to company instructions. The appeals board agreed, noting that duties of a convenience store manager do not include the pursuit and apprehension of criminal suspects. However, a Commonwealth Court judge overturned the decision, noting that the company had not disciplined the employee for carrying and using a gun in an earlier incident, that the employee was acting in the employer's interest and was not, so far removed from his job duties as employer's store manager as to constitute abandonment of 'the course of his employment'.

Employee injured in parking lot eligible for benefits - Pennsylvania

In Ace Wire Spring and Form Company v. Workers' Compensation Appeal Board, an employee arrived early for work to pick up his clean uniforms and put them in his car and to avoid traffic. While walking back to the building after putting the clean uniforms in his car, the employee slipped on ice and fell, striking his head and subsequently suffered a stroke from bleeding in his brain, and was rendered disabled.

The Workers' Compensation Judge (WCJ) found that the injured worker was in the scope and course of his employment at the time of the injury and The Workers' Compensation Appeal Board and the Commonwealth Court of Pennsylvania also affirmed. The Court noted that the issue of whether an injury is within the scope and course of employment in a parking lot case depends on the facts in each situation. In this case, the employee was 90 minutes early for his shift and the employer argued this was unreasonable. Generally, an employee is expected to be on the employer's premises a "reasonable" time before and after his or her shift. Under the facts as found by the WCJ, the employee was "furthering the interests of his employer" by being present at that time.

Extraterritorial jurisdiction means worker hired in Pennsylvania has to seek benefits in New York - Pennsylvania

In Greenwalt v. Workers' Compensation Appeal Board (Bristol Environmental, Inc.), the injured worker was a union laborer who worked jobs for a limited period of time, and then would be laid off. While working on one of these jobs, a mall project in New York, he was injured. The worker sought benefits under PA workers' comp laws but the Workers' Compensation Judge (WCJ) denied the Claim, finding that Pennsylvania had no jurisdiction over this injury. Upon appeal, the Commonwealth Court affirmed the opinion of the WCJ, pointing out jurisdiction is appropriate in Pennsylvania only when (1) the worker's employment is principally located in Pennsylvania, or, (2) the worker is working under a contract of hire made in Pennsylvania in employment not principally localized in any state, or (3) the injured worker is working under a contract of hire made in Pennsylvania in employment principally localized in another state whose workers' compensation law does not apply to the employer.

Disgruntled claims adjuster loses retaliatory charge - Tennessee

The Sixth Circuit Court of Appeals has affirmed a decision by a federal district court granting summary judgment in favor of the employer, an insurance company, sued for retaliatory discharge by a disgruntled claims adjuster, who contended she was improperly fired after she sought workers' compensation for an alleged injury when an overhead filing cabinet door fell on her hand. Following the incident, the company investigated the claim, found no witnesses and was unable to recreate the accident. In addition, the employer discovered that the adjuster had earlier filed as many as eight workers' compensation claims against her former employers, had greatly exaggerated her prior work experience and had falsified her resume. The 6th Circuit agreed that the adjuster had been fired shortly after the filing of her comp claim, but indicated the employer had come forward with convincing evidence that its reasons for firing the employee were not based upon the filing of the workers' compensation claim.