IN THIS ISSUE:
CONGRATULATIONS TO OUR Winners
and
NOMINATED COMPANIES FOR THE ORIGINAL
Best places to work in Southern Nevada (sM)
EXHIBITOR SPACE STILL AVAILABLE!
In The Mix: A mixer/Vendor Fair Event
November 10, 2009
RSVP FOR OUR NOVEMBER SEMINAR:
On Boarding and Orientation:
End the Torture on the First day Of Work
LEGAL BRIEF:
New Case Offers Guidance
on Thorny FMLA and ADA Issues
Member Spotlight: Midge Hall of
Johnson Jacobson Wilcox
PLUS:
This year's Best Places to Work in Southern Nevada (sm) Awards Program
has come to an end.
We were very pleased with the community support we received in light of the downturn in the economy. We would like to congratulate all of our winners and nominated companies.
We would also like to thank all of our sponsors for supporting our 2009 Awards Program: Surviving Tough Economic Times:
and
We would also like to thank our keynote speaker Scott Abbott
from Kamer Zucker Abbott.
Here are our 1st and 2nd place winners in each category:
Small Business Category:
1st Place:
Geotechnical Environment Services, Inc.
2nd Place:
Gatski Commercial Real Estate Services
Medium Business Category:
1st Place:
JBA Consulting Engineers
2nd Place:
The PENTA Building Group
Large Business Category:
1st Place:
Zappos.com
2nd Place:
Palms Casino Resort
Below is a list of all of this years nominated companies.
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Join us for an amazing night with your colleagues and friends, and show your support by visiting with our member exhibitors and sponsors.
Mixer/Vendor Fair Attendees:
$10 Entrance Fee
(includes 2 drinks per person and finger foods!)
Time:
5:30 pm - 8:00 pm
Vendor Set-Up:
3:00 pm - 5:00 pm
Vendor Break Down:
8:00 pm - 9:00 pm
Prizes will be raffled off at 7:15 pm and winners MUST BE PRESENT TO WIN
Attendees and Vendors, click here to Sign up!
The cost of the vendor fair exhibitor registration includes one person only.
If you will have others at the table with you they MUST register and pay online.
The exhibitor space is open to current SNHRA members only. If you are interested in exhibiting and are not a SNHRA member you can e-mail our Administrator Barry Lippold at admin@snhra.org to request space if there are any openings available after members have registered.
We have a limit of 30 vendors due to Exhibit Space, so please register today. Vendors must submit payment in full by October 23. Payments can be made online by credit card during the registration process.
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Sponsored by the Southern Nevada Human Resources Association
Would you like to be our co-event sponsor? Click here to inquire.
Time:
Cost: |
8:00 am - 12:00 pm Morning Session Nevada Public Radio Corporation 1289 South Torrey Pines Drive Las Vegas, NV 89146 $50 for SNHRA members/$75 for non-members |
Submitted to HRCI for 3.75 general recertification hours
RSVP NOW! Each Seminar Session is limited to the first 25 people who RSVP!
Presented by Cynthia Adams, SPHR (bio)
Summary:
On-Boarding and Orientation: End the Torture on the First Day of Work will explore the importance of developing a program that welcomes new employees to an organization, that educates new employees on company and company culture, and with the right program, improve retention of new hires.
Click here to find out more about the seminar.
By: Patrick H. Hicks and Jeanine Navarro. Patrick H. Hicks is the Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices. He can be reached at phicks@littler.com. Jeanine Navarro is an Associate in Littler Mendelson’s Las Vegas office. She can be reached at jnavarro@littler.com.
The United States Court of Appeals for the Third Circuit's recent decision in Erdman v. Nationwide Insurance Co., 2009 WL 3018116 (3d Cir. 2009), provides much-needed guidance to employers on several Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) issues including : (1) how to analyze FMLA hours eligibility when the employee claims off-the-clock work, (2) what is considered a protected activity for purposes of an FMLA retaliation claim, and (3) how the ADA applies to employees who request leave to care for a disabled family member.
Factual Background
Nancy Erdman was a long-term employee of Nationwide Insurance Company. In 1998, she began working part-time in order to care for her disabled daughter. When she worked extra hours outside of the office, her supervisor allowed her to take compensatory time off ("comp time"). During 2002-2003, Erdman alleged that the following events occurred:
- In early 2002, Erdman switched to a four-day schedule, was reclassified as
nonexempt, and her supervisor told her to "put in the hours that . . . you're
supposed to put in and nothing more than that."
- In September 2002, Erdman e-mailed her new supervisor, asking if she could still
work extra hours in exchange for comp time. Her supervisor did not respond.
- In January 2003, Erdman appeared to have exceeded her allotment of vacation
days, but she explained that her days off had been covered by comp time, not
vacation time. Her explanation was accepted.
- In late January 2003, Erdman was told that her overtime was not approved, and
she should stop doing fieldwork.
- In early February 2003, Erdman was told that she could not work extra hours in
exchange for comp time. Shortly thereafter, the company told Erdman that her
part-time position would be eliminated, but she could work full-time.
- On April 14, 2003, Erdman returned to a full-time schedule, and Nationwide
claimed that she was disgruntled and was difficult in the office.
- On April 21, 2003, after being told that she could not take the month of August
off as vacation (she typically took this month off to prepare her daughter for school), Erdman submitted a request for FMLA leave for July and August 2003.
She was told by the Human Resources representative that FMLA probably would
not be a problem.
- On May 9, 2003, Erdman's employment was terminated after she used profanity during a phone conversation that was monitored for quality control purposes. This conversation occurred two months before she was to take FMLA leave.
Erdman's Claims Are Dismissed on Summary Judgment
Erdman sued Nationwide, claiming FMLA retaliation and disability discrimination based on her association with her disabled daughter. The district court dismissed the case on summary judgment. It ruled that her FMLA retaliation claim was defective because she failed to meet the 1,250 hour eligibility requirement. The court noted that in determining eligibility, hours worked beyond an employee's regular schedule or off site are counted towards the requirement if the employer knew or had reason to know about them, citing 29 C.F.R. § 785.11. The court concluded that Nationwide only had constructive knowledge of a portion of Erdman's comp time – from September 2002 (when Erdman emailed her new supervisor asking if she could continue to earn comp time) until January 2003 (when she was told not to work overtime and to stop doing fieldwork). The district court rejected Erdman's argument that Nationwide had constructive knowledge dating back to early 2002, reasoning that Erdman had been told at that time to only put in the hours that she was supposed to put in and nothing more. Including only this portion of her comp time, the court found that Erdman was 28.75 hours short of the 1,250-hour requirement, and her FMLA retaliation claim thus failed. The court also dismissed her ADA claim, holding that she had failed to demonstrate that she had been discriminated against based on her association with a disabled individual. Erdman appealed.
The FMLA Retaliation Claim on Appeal
On appeal, the Third Circuit reversed the dismissal of Erdman's FMLA retaliation claim.
As to FMLA hours eligibility, the court held that the time period during which
Nationwide could have had constructive knowledge of Erdman's comp time was a
disputed issue of material fact that could not be resolved on summary judgment. The court observed that constructive knowledge could date back to early 2002, because telling
Erdman at that time that she was to "put in the hours that . . . you're supposed to put in
and nothing more than that" did not rule out working off the clock and accruing comp
time (rather than being paid overtime). Similarly, the court noted that constructive
knowledge could extend to as late as February 10, 2003, when Nationwide explicitly told
her that no comp time was allowed. The court reasoned that telling Erdman in late
January 2003 that her overtime was not approved did not rule out the possibility that it
was continuing to allow her to work off the clock and to accrue comp time. The court
concluded that were a jury to reach this conclusion, Erdman would then exceed the
1,250-hour requirement by 32.25 hours. The court also rejected Nationwide's effort to
disclaim that it had constructive knowledge based on the change in Erdman's supervisors,
ruling that the former supervisor's knowledge was imputed to the company.
In addition, the court rejected Nationwide's argument that Erdman could not state a claim for FMLA retaliation because she had never taken FMLA leave. The court reasoned that "it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins." The court concluded that the key inquiry is whether the employee had invoked his or her FMLA rights, and that "firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee.
ADA Association Claim on Appeal
The court next addressed Erdman's claim that Nationwide had violated the ADA by "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." The court observed that the ADA requires employers to provide reasonable accommodations to the disabled, not to relatives of the disabled, and that the question is whether Nationwide terminated Erdman's employment because of her daughter's disability – not because of the need to take time off to care for her:
Under the association provision, there is a material distinction between firing an employee because of a relative's disability and firing an
employee because of the need to take time off to care for the
relative....Erdman must show that Nationwide was motivated by [her
daughter's] disability rather than by Erdman's stated intention to miss
work; in other words, that she would not have been fired if she had
requested time off for a different reason.
The court distinguished the line of association cases in which an employee was allegedly fired based on the employer's fears that the employee might miss work to care for a disabled relative even though he or she had not taken or requested time off, reasoning that "a decision motivated by unfounded stereotypes or assumptions about the need to care for a disabled person may be fairly construed as ‘because of the . . . disability itself.'" The court concluded that there was no dispute in the record that Erdman had been employed for years after her daughter was born with a disability. "The most Erdman can hope to show is that she was fired for requesting time off to care for [her daughter] (the basis for her FMLA claim), not because of unfounded stereotypes or assumptions on Nationwide's part about care required by disabled persons." The court thus affirmed the dismissal of her ADA claim.
Lessons Learned
This decision serves as a reminder for employers to:
- Have a clear policy prohibiting off-the-clock work that supervisors are trained to
enforce.
- Respond promptly to employee inquiries regarding what time counts toward hours
worked.
- Remember that requests for FMLA leave can form the basis for an FMLA
retaliation claim, even if leave is not taken.
- Make sure that adverse employment decisions are based on legitimate business reasons that are documented and applied consistently to all employees who are similarly situated, including employees outside of a protected class.
Q.How did you hear about SNHRA?
A. Even though I have lived in NV for the better part of 20 years, I became an HR professional while living in CA for a short time. When I returned to NV, I came to work for Johnson Jacobson Wilcox as their Firm Administrator. The firm was already involved in SNHRA and had already won the “Best Places to Work” award in 2003, 2004 and 2005.
Q. Why did you join SNHRA?
A. At first, I joined to continue the long time relationship our firm had with the SNHRA. I quickly became aware of how helpful the organization and the website was in assisting me with my human resource duties.
Q. Tell us about JJW…
A. It is difficult to sum in a short paragraph all that JJW is and all that we represent. We are a midsized local public accounting firm. We moved into our new building twice the size of the previous, in November of 2008. Our philosophy is that we’re all partners in a shared success. We work to create a dynamic environment that lets every employee know that, as a firm, we have a vested interest in their success-and as a team member, they have a vested interest in the success of the firm. This reciprocity helps us all achieve excellence. As a firm, even in these economic times, our goals are to provide the most generous and comprehensive benefits package, practice work/life balance, and we believe that continuing education is the cornerstone of professional growth. We are partners in our team members’ growth, and they are partners in our continued success as a firm.
Q. Tell us a little about your role with JJW...
A. My title is “Firm Administrator”. My duties are that of an office manager, operations manager, human resource manager, payroll specialist, I support and report directly to the Managing Partner and I supervise an administrative staff of five. Everything I do is for the firm itself, I have no responsibilities in regards to our clients.
Q. What benefits of membership in SNHRA do you enjoy the most?
A. The never ending networking and the information that is available to me at all times.
Q. What challenges are you facing as an administrator in the economic
downturn?
A. With the economy and our new building, my biggest challenge is to keep as many costs down as possible. We have done an excellent job of staying under budget in almost all categories. By doing this, we have been able to avoid making any changes to our employee benefits package.
Q. What are your favorite things to do in Las Vegas?
A. Being cooped up in an office all day, my favorite thing to do is spend time outside….on Lake Mead with my family….go for rides on our motorcycle…and work in my yard.
Q. What was one of the last shows you’ve seen on the strip that you enjoyed?
A. Cirque du Soleil is my favorite!
Q. We see that you proudly display your Best Places to Work wins in your reception area…
What does your firm do to continue to be a
Best Place to Work?
A. At JJW, we believe that providing an exceptional venue to further one’s career isn’t a duty, it’s a privilege. The power of a strong firm is derived from its people.
Salary Negotiations
Reaching the end of a job interview, the Human Resources person asked a young engineer fresh out of MIT, “And what starting salary were you looking for?”
The Engineer said, “In the neighborhood of $125,000 a year, depending on the benefits package.”
The interviewer said, “Well, what would you say to a package of five-weeks vacation, 14 paid holidays, full medical and dental, company matching retirement fund to 50 percent of salary, and a company car leased every two years, say, a red Corvette?”
The Engineer sat up straight and said, “Wow! Are you kidding?”
And the interviewer replied, “Yeah, but you started it.”
Need a day off?
I urgently needed a few days off work, but I knew the
Boss would not allow me to take a leave. I thought that maybe if I acted "CRAZY"
then he would tell me to take a few days off. So, I hung upside down on the
ceiling and made funny noises. My co-worker asked me what I was doing.
I
told her that I was pretending to be a light bulb so that the Boss would think I
was "CRAZY" and give me a few days off.
A few minutes later the Boss came
into the office and asked, "What are you doing?"
I told him I was a light
bulb.
He said, "You are clearly stressed out. Go home and recuperate for
a couple of days."
I jumped down and walked out of the
office.
When my co-worker followed me, the Boss asked her, "And where do
you think you're going?"
She said,
"I'm going home too, I can't work in the dark."
From www.citehr.com
We hope that all of our Members and Friends find the articles contained within R E S O U R C E S useful in your HR environment.
Many thanks to all of you who responded to our requests
for articles and research for this newsletter.
If you have anything you wish to contribute to the next issue, please do not hesitate to email Barry Lippold at blippold@marcison.com.
Contact Barry Lippold at 702-281-6528 for pricing and availability
to sponsor future R E S O U R C E S editions
Newsletter: 2009 Edition 10