Hello,

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

 

Pregnant Employee Terminated Prior to FMLA Eligibility Can Sue Under FMLA

The Eleventh Circuit Court of Appeals recently held that the Family and Medical Leave Act (FMLA) “protects a pre-eligibility request for post-eligibility leave.” That is, FMLA protects an employee who gives notice, before she is eligible for leave, of intent to take FMLA leave for a qualifying reason once she becomes eligible.

 

Background:
The employee advised her employer that she was pregnant and would request FMLA leave after the birth of her child on or about November 30. In September, approximately 11 months after her hire (just prior to FMLA eligibility), she was terminated. She sued her employer, claiming that the decision to terminate her employment following her request for FMLA leave constituted both interference and retaliation under FMLA.

In order to be protected by the FMLA, an employee must be eligible and must experience a “triggering event,” such as the birth of a child. In this case, the parties agreed that at the time the employee requested leave, she was not eligible for FMLA protection. The parties also agreed that she would have been eligible by the time she gave birth and began her requested leave. Consequently, the Eleventh Circuit concluded that not allowing FMLA protections in this case would create a loophole whereby an employer has total freedom to terminate an employee before she can ever become eligible and that such a situation is contrary to the basic concept of the FMLA.

The court stated that its holding does not expand FMLA coverage to a new class of employees; rather, it means that an employee who is not yet eligible for FMLA leave may bring a lawsuit if an employer terminates the employee “in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.”

 

Practical Impact:
Employers should be aware that an employee who announces a future need for FMLA leave prior to becoming eligible for such leave may be protected by FMLA if it appears likely the employee would be eligible by the time the leave were to commence.

 

EEOC Wins Jury Award from Subway Franchisee for Pregnancy Discrimination

In a legal victory for the EEOC, a federal jury returned a verdict for punitive damages against a corporation that owns five Subway fast-food restaurant franchises. The Federal District Court had previously ruled that the Subway franchisee violated federal law when it refused to hire a job applicant solely because she was pregnant. The jury returned a unanimous verdict awarding the job applicant $7,280 in punitive damages. The court will now decide back pay damages and injunctive relief.

 

According to the EEOC’s lawsuit, the general manager told the applicant, “We can’t hire you because you’re pregnant.” The manager admitted in sworn testimony that he had made that statement because he had been told by the president of operations that he could not hire pregnant women.

 

More Meetings Are Stand-Up

Atomic Object, a software-development firm, holds company meetings first thing in the morning.

Employees follow strict rules: Attendance is mandatory, non-work chitchat is kept to a minimum and, above all, everyone has to stand up.

 

Stand-up meetings are part of a fast-moving tech culture in which sitting has become synonymous with sloth. The object is to eliminate long-winded confabs where participants pontificate or tune out. Stand-up meetings are part of a fast-moving tech culture in which sitting has become synonymous with sloth. The object is to eliminate long-winded confabs where participants pontificate, play on their cell phones or tune out.

 

Atomic Object even frowns upon tables during meetings. "They make it too easy to lean or rest laptops," At the end of the meetings, which rarely last more than five minutes, employees typically do a quick stretch and then "go on with their day," he says.

A study done in 1998 that found that standing meetings were about a third shorter than sitting meetings and the quality of decision-making was about the same.

 

The current wave of stand-up meeting is being fueled by the growing use of "Agile," an approach to software development. The method calls for compressing development projects into short pieces. It also involves daily stand-up meetings where participants are supposed to quickly update their peers with three things: What they have done since yesterday's meeting; what they are doing today; and any obstacles that stand in the way of getting work done.

 

If employees are late to this meeting they sometimes must sing a song like "I'm a Little Teapot," do a lap around the office building or pay a small fine. If someone is rambling on for too long, an employee may hold up a rubber rat indicating it is time to move on.

 

Office outfitters are responding to this trend by designing work spaces with standing sessions in mind. Steelcase Inc.'s, for example, recently introduced the "Big Table," a large standing-height table designed for quick meetings.

 

Holding meetings before lunch also speeds things up. The proximity to lunch serves as motivation to keep updates short.

 

Factoids

• A 65-year-old couple retiring in 2012 is estimated to need $240,000 to cover medical expenses throughout retirement, according to the latest retiree health care costs estimate calculated by Fidelity Investments. This represents a 4% increase from last year, when the estimate was $230,000. 
• The average cost of healthcare for a family of four this year has increased nearly 7% to $20,728 annually, according to a new study by benefits consultant Milliman, or similar to the cost of a mid-size sedan 
• More than 325,000 Americans who receive food stamps or other public aid hold Masters or Ph.D. degrees, according to the Chronicle of Higher Education – up more than 300% since 2007.