Constructive Discharge: Supreme Court Sets the Clock in Employees’ Favor

On May 23, 2016, the Supreme Court of the United States ruled that the filing period for constructive discharge claims, which can be filed pursuant to many different employment laws, begins to run upon an employee’s resignation as opposed to the employer’s act that triggered the resignation. In Green v. Brennan, the plaintiff was employed as a postmaster in Colorado. When he was denied a promotion that was given to another employee with less seniority and (allegedly) inferior qualifications, he filed a complaint alleging that racial discrimination motivated the employer’s decision. After filing the complaint, the plaintiff believed he was subjected to increased criticism and accusations in the workplace.

In an attempt to resolve the mounting workplace issues, the plaintiff was given six months of paid leave. In exchange, however, the plaintiff was presented with two choices upon expiration of his leave; accept a demotion to an office hundreds of miles away to a position that paid considerably less or resign from employment. The plaintiff elected a third option. He resigned and filed a constructive discharge complaint, but not until five months after his resignation date.

The employer argued that the suit was untimely, claiming that the last discriminatory act (the deal wherein the plaintiff was given leave in exchange for his resignation) triggered the filing period, which had lapsed before the complaint was filed. The plaintiff argued that his resignation triggered the filing period thereby rendering his complaint timely.

In siding with the plaintiff, the Supreme Court held that the filing period on a constructive discharge claim does not begin to run until the date of the employee’s resignation. Specifically, the court noted that resignation is a necessary element in a constructive discharge case, and therefore, the claim cannot be brought until after an employee resigns. The Court also clarified that the filing period begins to run on the date that the employee tenders their resignation as opposed to the last date of employment.

For Pennsylvania employers, the impact of this case is straightforward. An employee now has 300 days after giving notice of their resignation to bring a discrimination-based constructive discharge claim.

McNees Labor Seminar Preview: Is This Work-Related?

As if it knew we would be discussing this topic at the 26th Annual McNees Labor and Employment Seminar on June 3rd, in Hershey, PA, the Commonwealth Court of Pennsylvania recently issued a decision addressing whether an injury occurring in an employer’s parking lot was sustained in the course and scope of employment for purposes of workers’ compensation coverage.

In Quality Bicycle Products, Inc. v. WCAB, the employer challenged the claim related to an injury sustained by an employee while the employee was running to his car. The claimant was leaving work after receiving a panicked message from his wife that his daughter was missing from school. While running through the parking lot to his car, he heard a pop in his knee, felt excruciating pain and fell to the pavement. The employer denied benefits for the knee injury, arguing that the claimant was not in the course and scope of his employment at the time he was injured.

An injury occurs within the course and scope of employment, and is considered work related, if: “(1) the claimant was furthering the interest of the employer’s business at the time of the injury; or (2) if the injury was caused by a condition of the employer’s premises or the operation of employer’s business thereon.”  The employer argued that claimant could not meet either prong of this test. The Court agreed.

In analyzing the case, the Court first noted that “an injury suffered while traveling to and from work [which claimant was in this case] is not considered to have occurred in the course and scope of employment.” This is because the employee is not furthering the business or affairs of his employer while merely commuting. When an employee is not furthering the business of the employer, the employee must satisfy the three part premises test to demonstrate a work related injury: (1) the injury occurred on the employer’s premises; (2) the employee’s presence thereon was required by the nature of his employment; and (3) the injury was caused by the condition of the premises or by the operation of employer’s business thereon. In Quality Bicycle, the parties agreed that the first two prongs were satisfied, but the employer argued that the third was not. The Court agreed, explaining that the parking lot neither caused nor contributed to claimant’s injury. Rather his injury was caused by his own act of running. The Court distinguished this case from others where the injury was found to be work related – an employee who suffered a seizure in his car and was injured when he wrecked into a concrete abutment on employer’s property; an employee who was thrown off the hood of a moving car when the driver turned suddenly to avoid a closed exit gate. In both those cases, it was the employer’s premises (the concrete abutment, the closed gate) that caused or contributed to the accident. Conversely in Quality Bicycle, claimant’s knee popped as a result of his running, not because of a bump, hole or rock on the pavement.

The lesson from this case is that employers should thoroughly investigate questionable claims and analyze such claims down to the most minor detail. If an injury occurs on the premises, don’t automatically assume that it is work related. In Quality Bicycle, claimant’s admissions that his knee simply popped, he felt pain and then fell to the pavement were key to the employer’s denial and ultimate success. Accordingly, we strongly recommend that an employer’s injury report include space for the employee to state, in his/her own words, what happened and what caused the injury.

To learn more about what injuries are and are not work related, join us on June 3, 2016 for our 26th Annual Labor and Employment Seminar.

DOL Issues Final Rule Amending FLSA Overtime Exemption Tests

McNees recently issued an Employer Alert regarding the U.S. Department of Labor’s new Fair Labor Standards Act regulations, which significantly change the FLSA’s white collar overtime exemptions.  You can review the Employer Alert by clicking here.

Please feel free to reach out to any member of the McNees Labor and Employment Team to discuss the new regulations and strategies for effectively implementing the changes in your organization.

DOL Releases Updated FMLA Materials

The United States Department of Labor (DOL) recently issued a new Family and Medical Leave Act (FMLA) poster. Employers who are covered by the FMLA are required to display a DOL-prepared poster advising employees and applicants of the major provisions of the Act.

According to the DOL, for now an employer has the choice to continue to use the prior version of the poster (dated February 2013) or to use the new poster (dated April 2016). Even so, use of the new poster is recommended because it is better organized and more user-friendly. It is also generally advisable for employers to use the most current version of required postings. The new poster can be found here, free of charge.

In addition to the new poster, the DOL has also issued a new Employer’s Guide to the FMLA. The guide is intended to provide employers with information concerning their obligations and options for administering FMLA leave. The guide is available here for free download.

OSHA Finalizes New Workplace Injury Reporting Rule

On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) finalized a recordkeeping and reporting rule that will require covered employers to take the additional step of electronically submitting to OSHA, injury and illness information that is required to be maintained under existing OSHA regulations.  The rule becomes effective January 1, 2017.

The new electronic submission requirement applies to: (a) employers with 250 or more employers who are currently required to keep OSHA injury and illness records (i.e. OSHA forms 300, 300A and 301) and (b) employers with 20-249 employees in certain industries with historically high rates of occupational industries and illnesses.  The electronic submission requirements do not alter the employer’s obligation to complete and retain injury and illness records, as before.  For illnesses and injuries occurring in 2017, the electronic submission deadline is July 1, 2017.

Believe it or not, OSHA plans to post the injury and illness data it collects on its public website (www.osha.gov).  OSHA has indicated that it will remove any personally identifiable information (“PII”) before making the data available to the public.  States that operate their own job safety and health programs (i.e. OSHA state plans) must adopt requirements that are substantially identical to the new rule within six (6) months.

The new requirements introduce a public watchdog role.  Apparently, this role is being added in response to the near doubling of the number of workplaces in the U.S. from 1981 to the present, and the corresponding decrease in the ratio of OSHA inspectors, to one per 4300 workplaces (according to a study by the Center for Effective Government).

The rule also bars employers from retaliating against workers for reporting workplace injuries and incidents, thereby creating a supplemental avenue for disgruntled workers who are inclined to pursue a wrongful discharge cause of action, in addition to more traditional workers’ compensation claims, for alleged workplace injuries.

The net effect of the rule may be to spur additional employment lawsuits, by making it easier for plaintiff lawyers to mine for accident information.

We will keep you apprised as to further developments, but in the interim, please feel free to contact any member of our Labor and Employment Group, with questions or concerns.

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