In Milman v. Fieger & Fieger, LLC, the Sixth Circuit held that a equest for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave. There the plaintiff claimed she’d been retaliated against for requesting FMLA leave, and her employer responded that she had not been entitled to FMLA leave and had not actually taken FMLA leave. The Sixth Circuit rejected the company’s arguments, holding that her mere request was itself protected against retaliation.
Thus, the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer. That request, moreover, need not lead to entitlement in order to be protected.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2023-02-28 13:17:592023-02-28 13:17:59Sixth Circuit holds that request for FMLA leave is protected even if the employee is not entitled to FMLA leave much less takes FMLA leave
A 3-judge panel of the Sixth Circuit has lifted the freeze on OSHA’s large company vaccine mandate (50 employees or more). The 3-judge panel decision was fully fractured, in that one judge wrote an opinion, in which a second concurred, making it technically the majority opinion; the third judge in the panel then wrote a scorching dissent that argued for the freeze’s immediate reinstatement. The dissent concluded with a call for individuals to act — by becoming vaccinated — not OSHA.
(OSHA) cannot even regulate for the sake of the vaccinated; they are not in “grave danger.” Instead, the mandate is aimed directly at protecting the unvaccinated from their own choices. Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time. And because the Secretary likely lacks congressional authority to force them to protect themselves, the remaining stay factors cannot tip the balance.
The decision is now likely to face both a request for reconsideration by the entire bench of judges who constitute Sixth Circuit — of whom a majority are Republican appointees — and then a request for immediate review by the Supreme Court — where again it will face a majority of Republican appointees. Indeed challengers in the litigation have already filed motions with the Supreme Court requesting the immediate reinstatement of the freeze.
Recognizing that there isn’t now sufficient time for large companies to implement the mandate by the original deadlines and possibly even recognizing that its own rule is not likely to withstand the next two tiers of review, or is at least likely to face another freeze sooner than later, OSHA has announced it will delay enforcement of its own rules by approximately one month.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
Employers should certainly continue to consider how they can implement the mandate if required but remember that at least some states have already passed laws that make voluntary implementation challenging if not violations of those states’ laws. Given the nature of both the full bench of the Sixth Circuit and the Supreme Court justices, it is not at all unlikely this — unfortunately — now extremely political issue will trigger another freeze of OSHA’s rule in the coming weeks.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-12-18 13:33:432021-12-18 13:33:433-judge panel of Sixth Circuit lifts freeze on OSHA vaccine mandate for large companies
The Supreme Court held earlier this year in Encino Motorcars, LLC v. Navarro that the Fair Labor Standards Act (FLSA) should no longer be construed narrowly in favor of employees but should, instead, be given a “fair” reading based on its own language. The Supreme Court’s ruling has just seen its first application in a Circuit Court case, entitled Mosquera v. MTI Retreading Co., decided by the Sixth Circuit.
In Mosquera, the employee held an engineering degree but argued he spent less than 50% of his time doing work that required an engineering degree and should, therefore, not have been classified as a professional employee exempt from overtime. The Sixth Circuit disagreed. The Sixth Circuit noted the evidence that had been submitted in support of the employer’s summary judgment motion and dismissed the plaintiff’s own affidavit to the contrary, saying it was “unsubstantiated” and “self-serving.” The Sixth Circuit noted that, prior to Encino Motorcars, it would have looked on the plaintiff’s claim more favorably, interpreting the professional exemption “narrowly,” but under the Supreme Court’s new ruling, it was required to give the law a broader “fair” reading instead. Under the new approach to FLSA, the Sixth Circuit held the employer’s motion for summary judgment was “compelling” and as such, it held, the employee was properly characterized as a professional who was exempt from overtime.
Mosquera is no doubt the first in a long line of cases to come that will take a less “narrow” approach to interpreting FLSA.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-08-14 15:55:002018-08-14 15:56:15Supreme Court’s new expansive reading of FLSA is applied for first time by a Circuit Court
Two recent decisions by the U.S. Circuit Court of Appeals address the applicability of federal labor laws to church volunteers. The Fair Labor Standards Act (FLSA) is the nation’s leading wage-hour law. FLSA requires a minimum wage, overtime pay and prohibits child labor. FLSA applies only to “employees.” Volunteers are generally not considered to be “employees;” therefore, FLSA generally does not apply to volunteers. These two recent cases addressed these concepts in the context of church volunteers.
One case was decided by the Sixth Circuit, Acosta v. Cathedral Buffet, Inc. It involved a restaurant, operated by a church, on the church’s campus, that was open to the public and staffed in part by church volunteers.
The other case was decided by the Tenth Circuit, Acosta v. Paragon Contractors Corp. It involved a pecan ranch, at which church members, including children, harvested pecans.
In both cases, the Courts held the businesses were commercial enterprises subject to FLSA, and that the church members were doing work. Thus both courts were called to decide if the church members were truly volunteering their time, such that FLSA did not apply to their work. Both courts looked to a 1985 Supreme Court decision, Alamo Foundation, where the Supreme Court held that a volunteer is, among other things, someone who works “without promise or expectation of compensation” and “for his own personal purpose or pleasure.” And, there, the Courts split. The Sixth Circuit held that the church members were volunteers, and the Tenth Circuit held they were not.
Why did the Courts split? The Sixth Circuit decided its case after the Tenth Circuit, and it held that the difference was because (a) the Tenth Circuit case involved children and (b) the Tenth Circuit case involved more than “spiritual coercion.”
Under Alamo Foundation, a worker cannot be held a “volunteer” if his work is coerced. A person who is coerced into working is not working purely “for his own personal purpose or pleasure.” The Sixth Circuit held that, in the Cathedral Buffet case, the workers, who were adults, were working because they felt it was expected of them to be “faithful stewards of God’s grace in its various forms.” The Sixth Circuit held that, even if such religious dogma was considered to be coercive, it is “spiritual coercion,” and as such insufficient to transform a volunteer into an “employee” under FLSA. However, the Court held that in the Tenth Circuit’s case, the workers were children and, further, in its own case, the Tenth Circuit highlighted facts suggesting more than mere spiritual coercion. For example, the Tenth Circuit pointed to evidence, including “one child (who) stated that if she had not worked, she would have lost her family and been kicked out of the community.”
Non-profits that benefit from the work of volunteers, especially church-related non-profits, should carefully review these two new cases.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-05-17 13:40:202018-05-14 09:12:31“Spiritual coercion,” “volunteers” and children under federal wage laws
Following a recent Second Circuit decision holding that sexual preference (LGB) is already protected by Title VII within the meaning of “sex,” the Sixth Circuit has held that being transgendered is also so protected.
While both cases may be heading for Supreme Court review, they suggest that LGBT may well be determined by other federal Circuit Courts to have been protected by Title VII since its inception in 1964. Employers are reminded that many states and local governments already have express protections for LGBT workers.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-03-28 09:28:052018-03-08 10:29:04Sixth Circuit holds transgendered workers are already protected by Title VII
Unionized employers may not implement unilateral changes to wages, hours and working conditions without first providing the union notice and an opportunity to bargain. A union is not required to bargain at that point. Unions often do not; many unilateral changes are everyday and, for unions, often involve no issue warranting negotiation.
In this case, the union, through its president, expressed discontent with a change, condescendingly threatening the company’s labor relations director with “a board charge honey.” He said he would “have to come to (company headquarters) for this one.” While he followed through with his threat to file a board charge, he did not actually request to negotiate, schedule a time to come to, much less go to corporate headquarters.
While a divided NLRB held that his expressions of discontent were sufficient to trigger negotiations, the Sixth Circuit disagreed. “These comments expressed disapproval, to be sure; but that establishes only protest,” the Court held.
The pertinent question is whether, in light of the record as a whole, they clearly signaled a request to bargain. On that point, they were at best ambiguous rather than clear.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-07-07 12:14:192017-06-05 12:14:39Union gripes held not a request to bargain