Court Says Lactation Is Related to Pregnancy, Refrains From Saying, "Duh"

I wrote about a really stupid case out of Texas where a federal court said that "lactation is not pregnancy, childbirth, or a related medical condition," and thus decided that "firing someone because of lactation or breast-pumping is not sex discrimination."  I was irked, to say the least. Lactation not related to pregnancy and childbirth? Really?

Well, the 5th Circuit Court of Appeals which, to its credit, refrained from saying, "Well, duh," has unanimously ruled that lactation is, indeed, related to pregnancy and is therefore covered by Title VII. EEOC reports this about the decision: "The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits."

Personally,  I think the 5th Circuit should be applauded, not only for its common sense, but for the fact that it did not openly mock the lower court's ruling. I wouldn't have had that much self-control.

I should also point out that almost all employers are required to provide nursing mothers with break time to pump breast milk, along with a private space that isn't the restroom to do so. The Fair Labor Standards Act requires this, so employers who fire moms for lactating may also run afoul of this law, even if they aren't large enough to be covered by Title VII.

I rarely get to say this, so: Hooray for common sense in the courts!

How To Tell If Your Employer Is Spying On You

You may know that your employer can legally spy on you at work (and outside of work) in several ways. But how do you actually know if your employer is snooping? Here are some signs that your employer may be spying on you:

Read more at Jobs Week on AOL Jobs.

Guest Post: Will Your Employer Miss The October 1 Deadline For Obamacare Notice?

By Associate Attorney who now chooses to be anonymous, Donna M. Ballman, P.A., Employee Advocacy Attorneys

October 1, 2013 is the first day employees can officially sign up for the Affordable Care Act, a/k/a “Obamacare.” Although you can sign up for Obamacare starting on this date, no one will actually get coverage until January 1, 2014. The gap between enrollment and enactment provides the government and insurance companies time to ease into the new program and make any necessary adjustments for a smoother transition. Open enrollment in the program does not end until late March 2014.

Your employer is supposed provide written notice to all existing employees and any new employees hired, beginning on October 1, 2013. A notice is timely issued if provided within 14 days of an employee’s start date.Your employer is probably going to miss this deadline.

Many small businesses reported that they were unaware of the notice requirements and feared potential risk to penalties. As a result, the Department of Labor (DOL) posted a notice on its website stating that employers cannot be fined for failing to provide the notice. Unfortunately, although the notice is a “requirement,” DOL stated, “If your company is covered by the Fair Labor Standards Act, it should provide a written notice to its employees about the Health Insurance Marketplace by October 1, 2013, but there is no fine or penalty under the law for failing to provide the notice.” [Donna's comment: on the other hand, if employees miss any deadline, just see what happens to them. Fair? Ha!]

The main focus of Obamacare is the establishment of the Health Insurance Martketplace (“Marketplace”), which is set to start on January 1, 2014. The Marketplace provides “one-stop shopping” for consumers to find and compare private health insurance options. Section 1512 of the law requires employers to provide employees notice of the coverage options available to them through the Marketplace. Your employer must provide the notice to each employee regardless of their health plan enrollment status or whether or not the employee works part-time or full-time. However, employers are not required to provide notice to dependents or those who may became eligible for coverage but who are not employees.

The notice to employees must: (1) inform you of the existence of the Marketplace, description of services provided by the Marketplace, and ways to contact the Marketplace for assistance; (2) inform you that if the employer plan’s share of the total allowed costs of benefits provided under the plan is less than 60% of such costs, you may be eligible for a premium assistance tax credit and cost sharing reduction; and (3) if you purchase a qualified health plan through the Marketplace, you may lose any employer contribution to any health benefits plan offered by the employer, and all or a portion of such contribution may be excludable from income for Federal income tax purposes.

DOL provides model notices on their website, which is worth looking at if you are considering exploring the Marketplace options, especially since your employer may not send you the notice. The website provides two model notices, one for employers who do not offer a health plan and another for those who do offer a health plan to some or all employees. Employers are not required to use the model notices, as long as the written notice they do provide meets the requirements discussed above.

It is worth looking into the Marketplace even if you are already covered, because you may find more affordable or more comprehensive coverage there.

Noncompete Answers: Am I Bound If My Employer Violates FMLA?; Wages Cut Right After Signing; Can They Restrict My Livelihood?

Having received more questions on noncompete agreements than any other issue, I can only assume that more and more employers are imposing these contracts on employees all over the country. There are lots of defenses to them, but defending takes money. I continue to hope that some legislators will wise up and help their constituents escape indentured servitude, or that some attorneys general will start fighting illegal noncompetes with antitrust laws. In the meantime, I'll keep trying to answer your questions. I encourage anyone who is being asked to sign one, or whose ex-employer is trying to enforce one, to contact an employment attorney in your state for advice. Here are my general answers (not legal advice) to some more non-competition agreement questions:

If My Employer Violates FMLA, Am I Still Bound By My Noncompete?

Hi . I am a nurse, licensed in Kentucky. I had worked 6 plus years with a contact agency that was contracted to the state. My question is this - when an agency is contracted to such an entity, do they have to follow the state's policies and protocol for discipline? I had been a very well respected and appreciated employee that had been contracted to the same entity for over 12 years. When I was both working full-time and caring for my dying Father at home, I had periods of tardiness, which was never a past problem. I was ultimately released by both the Vendor and my agency. My question is this - was it not my agency's place to request - on my behalf - FMLA? I did win my unemployment case.Would I still be bound to my former agency's full non-compete ? 

Gloria L.

Hi Gloria. I'm sorry to hear about your father and the loss of your job all at once. As to the noncompete agreement, there's a defense to enforcement called "unclean hands." This defense means that if your employer wants to keep you from working for a competitor, they must have acted ethically and in good faith. If they broke the law or did something wrong to you, then a court might be persuaded not to issue an order that you can't work for a competitor.

As to whether they have to follow your state's policies, that will depend on their contract with the state. Does that get you anywhere in defending against a noncompete agreement? I don't know how, but it's possible maybe you'd have a wrongful termination claim in your state if they were bound by certain procedures.

Now, let's talk about that FMLA claim. You have to notify your employer of your need for FMLA in most cases. That means, when you saw that your productivity was slipping and you couldn't get in on time, you should have asked for FMLA, either regular or intermittent, so you could fulfill your duties as caregiver for your father. They'd have had to grant it based on what you describe. However, you didn't ask. Should they have offered it? It sounds like they were on notice that you were a caregiver and that you were in trouble, so maybe they should have. This might be a FMLA violation. You should talk to a Kentucky employment lawyer. 

Does all of this get you out of the noncompete? Maybe. Good luck!

I Signed, Then My Employer Cut My Wages

I was asked to sign a noncompete, & when I did was informed that my wages were being cut. No wages were specified in the contract, but had I known beforehand, I would not have signed. Also, less than a week after I signed it my hours were cut & have since been cut to zero. I have since signing, been in a hostile work environment & made to feel I'm doing everything wrong. I am now at zero hours. & I also believe I have grounds for a discrimination & sexual harrassment case. 

Tessa M.

Hi Tessa. In some states, continued employment is valid consideration for a noncompete agreement. That means employers in those states can shove an agreement in front of you and say, "Sign or be fired." However, if they knew they were about to cut your wages and then cut your hours to zero, they should have disclosed it before you signed. The defense you may have is fraud.

As I discussed above, discrimination and sexual harassment might also support a defense of "unclean hands." I'd suggest talking to an employment lawyer in your state about these two defenses and any other defenses you have to enforcement of this agreement.

Is It Legal To Restrict My Livelihood?

I work in Texas and I am reviewing a Non-Competition agreement with the following stipulations:

1.3 Non-Solicitation-Non-Competition. Without prior written approval of COMPANY X management, Consultant agrees:
 

(a) For a period of twelve (12) months following the termination of this Agreement or the relationship provided hereunder, Consultant will not, either directly or indirectly, call on, solicit, or induce any Consultant or employee of COMPANY X whom Consultant had contact with, knowledge of, or association with in the course of this relationship to terminate his or her employment with Company X.
(b) For a period of twelve (12) months following the termination of this Agreement or relationship provided hereunder, Consultant will not form or hold an interest in any entity that directly competes with COMPANY X.
(c) During the term of this agreement for a period of twelve months following termination of this agreement with COMPANY X, Consultant shall not solicit or induce, any past or current customer of COMPANY X to cease doing business, in whole or in part, with COMPANY X.

Is this legal to create this kind of document--affecting a persons livelihood for an entire year? If that company lays me off can they stop me from pursuing my line of work?

Would you suggest a strategy for filling out this paperwork?

Steve C.

Hi Steve. It really depends on what work you are doing and what kind of business this is. If you are a chemical engineer developing the new formula for Coke, then I can see how they wouldn't want you to go straight to work for Pepsi or form your own soda company. You have a vital trade secret that they need to protect. They might have a legitimate interest to protect. However, if you're contracted to do their landscaping or waste removal, it's hard to imagine any possible interest they would have to protect other than preventing competition.

An agreement that is solely for the purpose of preventing competition violates antitrust laws. 

Since you're a contractor, you can always say no. If they want you, then you have the power to negotiate more reasonable terms. The time to negotiate is before you sign.

If you have a question on noncompete agreements, discrimination, whistleblowing, employment contracts or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

6 Ways To Prove You're A Victim Of Age Discrimination

 This was a question I got from an AOL Jobs reader:

Last year they hired a younger employee and I have been working at this job for over 30 years and have always been in charge of the bookkeeping department. The new girl is head now. I am 53 years old and I feel I have been discriminated against. I got a huge raise because they were paying the new girl a ton more than what I was making. I need help in deciding whether I could win a discrimination suit.

Age discrimination is rampant in this economy. It's not unusual for older employees to be the first selected in layoffs and demotions. If you actually lose your job, getting work when you're over 50 is tough.

If a younger employee is promoted over you, that could be age discrimination. But the question is, how do you prove it? You can read my article about 6 practical ways you can prove that you've been demoted, fired, passed over or penalized at work because of age discrimination here at AOL Jobs.

Answers to Your FMLA Questions: Employer Questioning Medical Information, Second Opinions, Reduced Schedule

In my continuing quest to answer some questions posted in the comments section of some older posts, I'm answering questions today that were posted in Can My Boss Hold My FMLA Against Me?

When Can My Employer Question My Medical Information?

Hello, I found out that I was pregnant on one day, and told my manager on the next day. I found out about the FMLA forms for prenatal care visits and intermittent FMLA that could be taken for complications during pregnancy by a co-worker several days later. I filled out the prenatal care visit form, and was approved for that. I missed a day due to morning sickness that would not allow me to go into work. I called in prior to my shift starting, citing that it was morning sickness, and my midwife filled out the intermittent FMLA form for it. My employer declined it the first time because it was not filled out appropriately. I went in see my midwife a month after that absence and she went over the form with me and filled it out completely, including a referral to a physical therapist for sciatica that has been caused by my pregnancy.

They contacted the day after I turned it in and told me that they couldn't approve it for the following reasons: 1) I had not been seen by a doctor to treat me for severe dehydration due to morning sickness and 2) I had not been prescribed any anti-nausea medication. The physical therapy was also declined because 1) I had not set up any appointments yet (I was waiting until I was approved, so that my job was protected. My company has a very strict attendance policy) and 2) They said that they cannot accept a mere referral from the doctor. My case manager said she would submit it for a peer review. When I hadn't heard anything back from them for a few weeks, I called to see if I could find out the status. I was told that my case manager had made a note in the case (that was not discussed over the phone when we talked a few weeks ago) that the peer review could not take place until I had officially scheduled an appointment for the physical therapy.

I am nervous that if I do schedule the appointment, take the appointment, it may still come back declined, which could potentially leave me with no job. There had been no further contact with me to indicate that they were waiting on action from me. They had also indicated that they could not approve the day I missed for morning sickness because they are unable to approve absence for morning sickness retroactively, and that my doctor would have had to fill out the FMLA form prior to me missing that day and provide a medical statement to prove that the morning sickness was severe enough to warrant FMLA.

I am wondering if this is something employers are able to do? In my reading of the FMLA, incapacity due to severe morning sickness does not have to be confirmed or seen by a doctor. And the fact that my doctor confirmed that I had been having morning sickness for a while before then should have been enough; as well as the fact that the sciatica was placed on the FMLA form as being caused by pregnancy. Are they able to deny my FMLA request due to the reasons that they cited, or am I way off base in my understanding of the FMLA? 

Koifishy 

Hi Koifishy. Incapacity due to morning sickness is definitely a FMLA-protected medical condition. A nurse-midwife is a "health care providers" whose medical certification should be accepted under FMLA. The employer can't demand that it be done by a specific type of provider. Here's what the Department of Labor says about acceptable health care providers:

Health care providers who may provide certification of a serious health condition include:

• doctors of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices;
• podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice under State law;
• nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under State law and performing within the scope of their practice as defined under State law;
• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
• any health care provider recognized by the employer or the employer's group health plan's benefits manager; and,
• a health care provider listed above who practices in a country other than the United States and who is authorized to practice under the laws of that country.

If your employer requests a certification, you are generally supposed to provide it within 15 days of their request. It has to be complete and sufficient and turned in on time. As to the "retroactive" certification, most FMLA certifications have some retroactive aspects. If you're hospitalized for a medical emergency, you obviously can't get a certification in advance of the hospitalization. Same with most illnesses. Normally, the medical practitioner will issue a certification that says the condition started before the certification. Otherwise, how would a certification ever get done? Their claim makes no sense. However, you did wait a month to get the certification. They are supposed to request the certification, so if you didn't get it done within 15 calendar days, that may be what they are talking about.

They're also contradicting themselves. With the referral to a specialist, they're complaining you haven't gone yet. Since you're supposed to give advance notice of the need for FMLA if you can, giving advance notice of a specialist appointment is exactly what you are supposed to do. It sounds like this employer is doing everything they can to interfere with your FMLA rights. FMLA interference is illegal. I suggest talking to an employment lawyer in your state about your rights.

My Company Wants To Send Me To a Doctor For a Second Opinion

My doc just filled out my FMLA paperwork and I received the paperwork back from my company saying I was approved for FMLA and I just received a phone call today saying I have to see a independent evaluation. Can they do that if I have already been approved? Also they said my doc did not give enough information

Peepers 

Hi Peepers. I'm sorry to say that your employer is allowed to ask for a second (and third) opinion. Here's what the Department of Labor says about second opinions:

An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.

Do I Need FMLA To Get a Reduced Schedule?

I have chronic insomnia and am on FMLA. Where I work we are on 10 hr. days (5am-3:30pm) 5 days a week. My doctor wants me on 8 hr.days (6:30am-3pm) for several months to see if this different work schedule works. My question, do I have to have accumulative FMLA time to be approved?

Cathy H.

Hi Cathy. You might be able to use FMLA intermittent leave to get a reduced schedule. The other thing you might want to do is ask for an accommodation for your disability under the Americans With Disabilities Act. A reduced schedule could be something your employer would have to accommodate. In order to deny the accommodation, they'd need to show that accommodating you would be an undue hardship. That would depend on your job, but in a big enough company they'd have a hard time showing such a hardship.


If you have a question on FMLA, discrimination, whistleblowing, employment contracts, non-competition agreements or any other employment law issue, and don't mind having me answer it publicly, feel free to ask it in the comments section. If you ask me here, you're asking for general information and not for legal advice. The question and answer will be public and will not be covered by attorney-client privilege, nor will it establish an attorney-client relationship. If you need legal advice or have an urgent legal issue that needs to be dealt with, contact an employment lawyer in your state.

Can An Employer Force You To Quit? 5 things to think about before signing a forced resignation letter

One question I'm surprised I've never gotten at AOL Jobs is one of the most common questions I get in my law practice. That is, whether your boss can force you to quit. Sometimes, a supervisor will try to make you so miserable you'll quit, but some will come right out and say it's time to turn in your resignation.

What are your rights if your employer shoves a resignation letter in front of you and tells you to sign? Should you resign when asked?

In my latest AOL Jobs article, I talk about the top 5 things to think about before you sign a forced resignation. You can read it here.