metro

New Employer Transit Benefit Ordinance in Effect

Effective January 1, 2016, businesses, including nonprofits, located in the District of Columbia with 20 or more employees must provide pre-taxed transportation benefits. Under the District of Columbia Employer Transit Benefits Ordinance employers must provide at least 1 of the 3 approved program options.

The first option is a benefit program that allows employees to make a monthly pre-tax election to pay for “commuter highway vehicle, transit, or bicycling benefits” at benefit levels at “least equal to the maximum amount that may be deducted for such programs from an employee’s gross income.”

The second option is an “employer-paid benefit program whereby the employer supplies, at the election of the employee, a transit pass for the public transport system requested by each covered employee or reimbursement of van-pooling or bicycling costs to an amount at least equal to the purchase price of a transit pass for an equivalent trip on public transport.”

The final option is an “employer-provided transportation at no cost to the covered employee in a van-pool or a bus operated by or for the employer.”

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070, www.jmlaw.net, or jmccollum@jmlaw.net.

The Numbers

Increase to D.C. Living Wage

On January 1, 2016, the District of Columbia’s living wage increased to $13.85 in accordance with the District of Columbia Living Wage Act of 2006 (“Act”). The Act requires a recipient who receives $100,000 or more in contract or government assistance to pay their affiliated employees no less than the living wage. In addition, subcontractors that receive $15,000 or more from a contract, or receive $50,000 or more from government assistance, “must pay their affiliated employees no less than the living wage; provided, that the funds received by the recipient,” must originate from the District of Columbia government.

An affiliated employee is defined as “any individual employed by a recipient who received compensation directly from government assistance or a contract with the District of Columbia government, including any employee of a contractor or subcontractor of a recipient who performs services pursuant to government assistance or contract.”

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070, www.jmlaw.net, or jmccollum@jmlaw.net.

Pregnant Worker

New Act to Protect Pregnant Employees

The Council of the District of Columbia recently passed The Protecting Pregnant Workers Fairness Act of 2014. This act requires employers to provide reasonable accommodations in the workplace “for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, a related medical condition, or breastfeeding . . . .” “Reasonable accommodations,” generally, are any accommodations that do not cause undue hardship in the operation of the particular business.  “Reasonable accommodations” can include, but are not limited to, providing a private space (non-bathroom) for expressing breast milk, providing more frequent or longer breaks, providing time off to recover from childbirth, and having employees refrain from heavy lifting.

An employer is prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation related to her pregnancy. An employer also is prohibited from refusing to provide reasonable accommodations for an employee.  An employer does, however, have the right to ask an employee to provide documentation from her health care provider certifying that the reasonable accommodations are necessary.

An employee injured under this law may initiate an administrative action or bring a civil action in court.  For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070, www.jmlaw.net, or jmccollum@jmlaw.net.

Disabled Worker

The Interactive Process between and Employer and Employee for Reasonable Accommodation Requests

Is an employer request’s for additional information a failure to engage in the interactive process?

According to the United States Court of Appeals for the District of Columbia, under the Americans with Disabilities Act, an employer cannot be held liable for discrimination or constructive discharge when an employee requests reasonable accommodations and voluntarily terminates the interactive process.

When an employee makes a request for a reasonable accommodation, an employer may request and require additional information and documentation regarding a disability before granting the accommodation. Once the request is made, the parties engage in an interactive process to determine the limitation(s) of the employee as a result of the disability and the accommodation that would be reasonable given the limitation(s). The interactive process is a collaborative one in which parties must not act in bad faith (purposeful delays or failing to communicate).

In Ward v. McDonald, a federal employee requested reasonable accommodations after being diagnosed with a condition that prevented her from performing daily light movements and required a three (3) hour self-administered medical maintenance procedure. As a result, the employee requested accommodations to work full-time from home. The employee submitted two (2) letters from physicians, as requested from her employer, which were followed by an additional request for more detailed information. The employer put each response to the request for accommodation in writing and outlined, with specificity, the additional information that was sought.

In response to the last request, the employee did not submit the requested documentation, but instead resigned from her position. The employee alleged the employer discriminated against her, resulting in a constructive discharge. The Court ruled that the employee ended the interactive process by resigning and “walking away,” and that the employer acted in good faith; therefore, the employer could not be held liable for discrimination or constructive discharge.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

Judge&Gavel

Inappropriate Penalty for Public Employee’s Misconduct

Is it inappropriate to consider a public employee’s denial of misconduct when considering potential for rehabilitation?

In Love v. District of Columbia Office of Employee Appeals, Respondents (both former employees) refused to acknowledge that their actions in failing to classify properly inmates, resulting in the inmates’ escape, were either wrong or mistakes. Both officers admitted that the actions occurred, but stood firm in their belief that those actions were correct in the situation.

OEA found that Respondents’ actions were negligent. Both Respondents were fired from their public employment positions. Throughout the numerous appeals and reviews, Respondents continued to assert that their actions were not negligent and that they had not made mistakes. OEA determined that the Respondents could not be rehabilitated since they would not acknowledge that their actions were wrong.  And since the Respondents could not be rehabilitated, the Respondents were terminated properly, according to OEA.

According to the District of Columbia Court of Appeals, it was inappropriate for the Department of Corrections and OEA to use an employee’s failure to acknowledge his/her action as wrong or as a mistake in determining a public employee’s potential for rehabilitation.  A public employee’s ability to be rehabilitated is one factor considered by an employer when determining an appropriate punishment.

In sum, the District of Columbia Court of Appeals determined that a public employee is not required to agree with the public employer’s view of the misconduct in order to have potential for rehabilitation.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

bantheboxv

D.C. Council Passes Ban-The-Box Bill

On July 14, 2014, the District of Columbia City Council passed the Ban-The-Box Bill, which prohibits employers from asking about criminal history until after an applicant is offered a job.  The bill gives ex-convicts a fair chance when applying for jobs and will help ex-convicts re-integrate into D.C. society after serving time in prison.  Instead of eliminating ex-criminal offenders during the interview process merely based on criminal history, employers are prohibited from asking questions concerning an applicant’s criminal history. Once an applicant is able to prove his or her qualifications, they have the chance to explain any run-ins with the law after employment.  The bill awaits signature by the Mayor.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

Office Conflict

Under Title VII, Is An Employer Liable for the Harassment of A Plaintiff Employee By a Co-Worker?

The Supreme Court has indicated that an employer is liable under Title VII if there is harassment of an employee by a co-worker, but only if  the employer did not control the conditions at work.

This changes if the co-worker is a supervisor, according to a recent Supreme Court decision.

Who is a supervisor?   For purposes of Title VII, it is a person empowered by the employer to take a tangible employment action against the plaintiff employee.

In a case involving a supervisor, in order to hold an employer liable, a plaintiff employee would need to prove that the supervisor’s harassment amounted to a “tangible employment action,” i.e., a significant change such as hiring, firing, failing to promote, etc.  In such a case, the employer would be strictly liable.

In other supervisor cases under Title VII (those in which there was no “tangible employment action”), the employer may be able to establish an affirmative defense to liability if (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

(Image courtesy of Ambro/ FreeDigitalPhotos.net)

Supreme Court Unanimously Holds Appeals Alleging Discrimination Dismissed By MSPB Should Be Judicially Reviewed In District Court And Not Federal Circuit

On December 10, 2012, the United States Supreme Court unanimously held that all federal employees’ appeals to the Merit Systems Protection Board (“MSPB”) of adverse personnel actions involving a claim for discrimination, which are dismissed by the MSPB should be judicially reviewed in the district court.  Previously, only appeals that were decided “on the merits” by the MSPB could be reviewed by the district court.  Those appeals that were dismissed on procedural grounds were required to be reviewed by the United States Court of Appeals for the Federal Circuit.  The case is Kloeckner v. Solis, No. 11-184.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

Seventh Circuit Rejects EEOC’s Argument That All Employee Medical Information Revealed Through “Job-Related” Inquiries Are Protected by the ADA’s Confidentiality Provisions

In EEOC v. Thrivent Financial for Lutherans (2012), a former employee alleged that his former employer revealed his medical information to prospective employers in violation of the medical record confidentiality requirements of the Americans with Disability Act (“ADA”), 42 U.S.C. § 12111 et seq.  The key issue for the Seventh Circuit was whether the medical information alleged to have been revealed by the former employer was obtained from “medical examinations and inquiries” of the former employee as set forth in 42 U.S.C. § 12112(d).  In holding that the information was not obtained from “medical examinations and inquiries,” the Court found that the former employer had no duty to treat its knowledge of such information as a confidential medical record and affirmed the district court’s granting of summary judgment in favor of the former employer.

In reaching its conclusion, the Court found that the word “inquiries” did not refer to generalized inquiries, but instead only to medical inquiries.  The Court also explained that other courts have required – at a minimum, that the employer already know something was wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry.  Because the former employer did not have any such knowledge in this case, its communication with the former employee was not an inquiry for purposes of 42 U.S.C. § 12112(d)(4)(B).

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070,www.jmlaw.net, or jmccollum@jmlaw.net.

EEOC Retaliation Claims and Security Clearances

Plaintiff, the FBI’s Legal Attaché in Saudi Arabia, filed race and national origin-based discrimination charges against his supervisors with the  United States Equal Employment Opportunity Commission(“EEOC”). After the charges were filed, one of Plaintiff’s supervisors referred him for a security investigation, maintaining that his connection with Saudi officials had put Plaintiff “inappropriately under the influence of his Saudi counterparts.”  An investigation concluded that the claims underlying his supervisor’s referral were baseless. Plaintiff filed suit under Title VII, claiming that the security referral was made in retaliation for his EEOC complaint. The government filed a motion to dismiss on the grounds that the retaliation claim was non-justiciable under Department of Navy v. Egan, 484 U.S. 518 (1988), which held that “employment actions based on denial of security clearance are not subject to judicial review, including under Title VII.”

In its initial decision, the United States Court of Appeals for the District of Columbia Circuit held that precedent “shields from review only those security decisions made by the FBI’s Security Division” and “not the actions of thousands of other FBI employees…like [Plaintiff].” The Court of Appeals remanded due to erroneous jury instructions, and particularly permitted the Title VII action against Planitff’s supervisors to go forward to the degree that the referral was premised on factually incorrect or misrepresentative information.

Upon rehearing, the Court of Appeals again held that Egan applies only to employees who routinely handle security clearances. In response to the government’s argument that allowing a Title VII action would end security reports that executive employees are required to make under Executive Order 12,968, the Court of Appeals narrowed its prior decision. The Court of Appeals held that Title VII allegations based on “knowingly false” information could advance consistent with Egan. Since some of the claims underlying the supervisor’s referral were false, the Court of Appeals remanded so that the district court could determine whether adequate evidence of knowingly false information existed to allow Plaintiff’s claims to go before a jury.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.