Jason Tremblay

On Wednesday, April 17, Arnstein & Lehr Chicago Partner Jason Tremblay presented a seminar to an audience of more than 60 accountants affiliated with the Illinois CPA Society – O’Hare Chapter entitled “Common Employment Law Mistakes for Illinois Employers and How to Avoid Them.” Mr. Tremblay spoke at length about wage and hour, independent contractor and trade secrets issues relevant to Illinois employers, as well as strategies to help Illinois employers protect their assets and avoid employment related liability.

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Lori Adelson

Arnstein & Lehr Fort Lauderdale Partner Lori Adelson was interviewed for an article that appeared in a March 25, 2013 post on Fox Business. The article titled, “Don’t Get Sued Over March Madness,” addresses the many concerns employers face when the NCAA tournament is in play, from gambling issues, to possible harassment or discrimination suits.

To read the complete article, please click here.

Lori Adelson

Arnstein & Lehr LLP Fort Lauderdale Partner Lori Adelson was interviewed for a segment on the Defense of Marriage Act that ran March 27, 2013 on WIOD news radio 610, which offers news, traffic and weather for Miami and Fort Lauderdale. In it, Ms. Adelson confides that employers are not all enamored with DOMA for the financial pitfalls it places on them.

Charles Pautsch

Arnstein & Lehr LLP Chicago Partner Charles W. Pautsch presented to the Milwaukee Bar Association’s Labor & Employment Section CLE luncheon on February 20, 2013 regarding the topic of “Hot Topics in Executive Compensation: Doff-Frank, Say-on-Pay and More.” He was also a presenter for a nationwide webinar for HR Pro on March 12, 2013 about the topic of “Domestic Violence in the Workplace: Preventative Strategies for Coping.” Audio-tapes of Mr. Pautsch’s presentation are available through HR Pro.

Mark Spognardi

Arnstein & Lehr LLP Chicago Partner Mark A. Spognardi was interviewed for a Law360 article, “CVS Worker Weigh-Ins Should Survive Lawsuits,” published March 30. The article focuses on the possible legal challenges CVS might face due to its new health insurance wellness policy. The insurance will cost employees more money if they don’t commit to participating in the company’s wellness program requesting that each employee submit to a health screening. The decision may open the door for employee litigation against the company. Whether an employee could win the suit might all depend on the details of CVS’ requirements. Mr. Spognardi told Law360, “There’s a lot here for creative plaintiff attorneys to work with.”

To read the article in full, please click here.

To read Mr. Spognardi’s comments and the complete article, please click here.

First, a reminder. The Family and Medical Leave Act allows for an employee to take up to 12 weeks of unpaid leave from work for certain circumstances. Those include the employee’s own or a close family member’s serious health condition. An employee bears the burden of notifying its employer of the need for leave. Where the need for leave is unforeseeable, the employee must do so “as soon as practicable.”

Under a prior version of the relevant FMLA regulation, this notice requirement was explained as “within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible.” The Seventh Circuit took this language and ran with it to create the constructive notice doctrine in Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003). The Seventh Circuit has jurisdiction over federal courts in Illinois, Indiana, and Wisconsin.

The case had some unique facts. A model employee in Byrne suddenly began exhibiting very unusual behavior. The employee, after years of “highly regarded service,” repeatedly slept or read during his shift. Eventually the employee was diagnosed with depression and received treatment over a two-month period. Based on these facts, the Seventh Circuit determined that an employee’s sudden drastic change in behavior might be enough to put the employer on notice of the need for FMLA leave. The court also observed that the employee’s mental condition may have prevented him from giving proper notice. That is, it was not feasible to give notice. In circumstances such as this, the Seventh Circuit concluded an employee may meet the notice requirements and be entitled to protected FMLA leave.

However, the language in the regulation changed in 2008. The language now explains, “It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” Faced with an argument to apply constructive notice in 2009, the Eighth Circuit noted the change in regulation language and rejected the doctrine in Scobey v. Nucor Steel-Arkansas, 580 F.3d 781 (8th Cir. 2009). The Eighth Circuit has jurisdiction over federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Just last month the Eighth Circuit reiterated in Bosley v. Cargill Meat Solutions Corp., 12-1290 (8th Cir. Feb. 5, 2013) that it does not believe constructive notice can apply any longer. Similar to Byrne, the employee at issue in Bosley suffered from depression. She did not follow the employer’s call-in policy prior to missing work for one month. Following Scobey, the Eighth Circuit rejected the possible application of constructive notice to Bosley. The court explained that the regulation deleted the language and no longer considers “extraordinary circumstances where such notice is not feasible.” Therefore, there was not a basis for the constructive notice rule to apply as there was before.

The verdict: it’s a split! The Seventh Circuit has not revisited its constructive notice holding in Byrne since the change in regulation noted by the Eighth Circuit. Courts in the Seventh Circuit continue to cite and apply Byrne as the law. However, the Eighth Circuit presents some concerns over whether there is still a basis for constructive notice to apply. The Seventh Circuit may continue to make room for constructive notice in extraordinary circumstances by the use of “generally” in the regulation. That word choice may leave room for situations such as those presented in Byrne. For the time being, employers in Illinois, Indiana, and Wisconsin need to note changes in employee behavior for the possible application of constructive notice and hope that the Seventh Circuit eventually finds the Eighth Circuit persuasive.

Special note to Wisconsin employers – this analysis can be even more difficult in our great state where you may be required to change some of the employee’s job duties to meet the requirements of the Wisconsin Fair Employment Act. Ironically, this unique Wisconsin consideration is associated with a cheese factory. But I digress. . .

In the latter half of 2012, federal courts in Ohio and Michigan made waves by suggesting that telecommuting might be a reasonable accommodation an employer has to provide in response to an employee’s notice of disability. This month, a federal court in Texas joined the telecommuting-as-a-reasonable-accommodation club. In Edwards v. Chevron U.S.A., Inc., the court addressed a couple of issues on the employer’s motion for summary judgment. Important for this discussion is the second issue, whether the employer violated the ADA when it denied the employee’s request for a reasonable accommodation. Here, the employee claimed that she made a request to telecommute as a reasonable accommodation. On this issue, the court denied the employer’s motion and found in favor of the employee. Although the court’s expressed concern was whether the employee actually made the request, it seems to have accepted that telecommuting could be a reasonable accommodation.

Determining what is a reasonable accommodation is a complicated task that must be determined on a case-by-case basis. Several factors will guide whether an accommodation is a reasonable one for an employee or whether it imposes an undue hardship on the employer. Employers confronted with difficult situations should consult counsel well-versed in the ADA to confirm their obligations under the law. As workplaces become more and more mobile, employers also need to consider telecommuting as a reasonable accommodation. Though no court has taken a firm stance to support it, a trend is developing with courts willing to accept telecommuting as a reasonable accommodation. To be clear, not every job or position is appropriate to consider a telecommuting alternative. Many just require an employee’s presence at the workplace. However, employers should be especially cautious denying a telecommuting request when an employee has a disability and another similarly situated employee is allowed to telecommute.