WAR Looms- Employers Prepare Reservist’s Rights under the Uniformed Services Employment and Reemployment Rights Act

The Ready Reserve is a manpower pool consisting of 1.2 million individuals. Nearly seventy thousand Reservists are now on active duty. If President Bush orders an attack against Iraq, the Pentagon plans to activate as many as two hundred sixty-five thousand Reservists. The present geopolitical uncertainties force employers to face the possibility of losing some employees to military service for months or years at a time.

When employees depart for active military duty, employers are burdened with keeping the vacant position available for the employee for up to five years. This can be quite costly, but employers now have the unique opportunity to plan and make changes.

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Prompt Remedial Action Shields Companies From Liability From Sexual Harassment Allegations Lodged Against Co-Workers

This article addresses the legal standards of evaluating non-supervisory co-worker sexual harassment in the workplace. A “to do” list is provided below of the actions a Company should take to shield itself from liability.

To establish a case of sexual harassment by non-supervisory co-workers based on a hostile work environment, a plaintiff “must establish all of the following; 1) membership in a protected group, 2) the occurrence of unwelcome harassment, 3) a causal nexus between the harassment and her membership in the protected group, 4) the harassment affected a term condition, or privilege of employment, and 5) the employer knew or should have known of the harassment and failed to take prompt remedial actions.” Jacob-Mua v. Veneman, 289 F.3d 517, 520 (8th Cir. 2002).

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Proposed FLSA Exemptions—The Department of Labor Strikes a Balance

On March 31, 2003, the Department of Labor (“DOL”), issued Proposals to update and revise the Fair Labor Standards Act (“FLSA”) Regulations for executive, administrative, professional, outside sales and computer employees exemptions (“Exemptions”). The comment period for such Proposals ends on June 30, 2003. The Proposals are predicted to become final this year.

The FLSA Exemption Regulations are long due for an overhaul. Currently, the applicability of an Exemption depends on the specific duties and responsibilities of each employee’s job (“Duty(ies) Test”), how much salary the employee is paid (“Salary Test”) and whether the salary is guaranteed without regard to the quality or quantity of work defined (“Docking Test”). The Exemption Duty Test has not been modified since 1949. The Duty Test not only engenders considerable confusion, but it is also outdated for the modern workplace. Incorrect application of the Duty Test also creates potential liability for violations where errors in classification have occurred. Similarly, the Salary Test had not been changed since 1975 and both time and inflation have eroded the value of the Salary Test so it is virtually meaningless.

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Beware—Proceed Cautiously—What the Missouri Employer Should Know About the Service Letter Statute and Defamation

Purpose of Statute

Missouri law protects the right of a discharged employee to request and receive an accurate service letter from his or her former employer. Section 290.140 of the Revised Statutes of Missouri was enacted to deter employers from damaging the employability of former employees by furnishing false or misleading information as to their service or false reasons for their discharge. Ryburn v. General Heating & Cooling, Co., 887 S.W.2d 604 (Mo. App. 1994).

Eligibility of Employee for Service Letter

If an individual is employed for at least ninety days by an employer with at least seven employees, he has the right, within one year from the date of discharge, to request a service letter from the former employer. R.S. Mo. § 290.140.1. The request must be made in writing and sent to the superintendent, manager, or registered agent (the “Agent”) of the former employer via certified mail, and must specifically reference Section 290.140 R.S. Mo.

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Two Bites at the Apple for Employees: Mandatory Arbitration Agreements

On January 15, 2002, the Supreme Court struck a blow to the strong federal policy favoring arbitration. It held that mandatory arbitration agreements do not foreclose or trump the Equal Employment Opportunity Commission‘s absolute right to seek victim specific relief (back pay, reinstatement, and punitive damages) on behalf of an employee in federal court.

Approximately ten percent of all employees sign mandatory arbitration agreements, which require them to bring all on-the-job disputes to binding arbitration and give up their right to sue in court. These types of agreements are increasingly more popular, and every day it seems a major employer announces that it is requiring employees to sign such agreements. Mandatory arbitration gives many benefits to employers including a reduction of overall litigation costs and settlement amounts. Employers also increasingly look to arbitration as a way of ensuring finality. However, the Supreme Court firmly rejected the notion that arbitration will solve all employment ills.

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“Quit” Entitlement to Unemployment Compensation Benefits in Missouri

Summary: The Missouri Unemployment Compensation statute provides no unemployment compensation benefits to a former employee (“Claimant”) who voluntarily leaves his/he employment without good cause attributable to his/her work or to his employer. RSMo Section 288.050.1. The statute excepts out instances where (1) the employee quits such work for accepting a more remunerative job which he did accept and earn wages; (2) the employee quits temporary work to return to his regular employer; (3) the employee is pregnant as explained below; (4) the employee quits work within 28 calendar days of the first day worked; and (5) the employee retires due to established policies of employer. In these limited circumstances an employee may voluntarily quit a position without good cause and still receive unemployment benefits.

A. Burden

The burden is on the unemployment compensation Claimant to prove that separation is not voluntary. Bussmann Mfg. Co. v. Industrial Comm., Div. of Employment Sec., 335 S.W.2d 456 (Mo. App. 1960). In Bussmann the Court held that the clause “voluntarily without good cause attributable to work or to his employer” comprises a single factual standard that a Claimant must prove existed in order to avoid disqualification. The placement of the burden is crucial. The party bearing the burden of proof has the burden of persuasion. Meeting the burden requires more than proof; it requires orderly and reasoned presentation in the context of the case and relevant issues. Whether the evidence establishes good cause is a question of law. Given that the purpose of the unemployment statute is to provide benefits to unemployed persons, limitations on benefits are strictly construed.

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“Discharge or Fire” Entitlement to Unemployment Compensation Benefits in Missouri

Summary: Unemployment compensation benefits under Missouri law are denied to individuals who have been discharged for “misconduct connected with their work”. RSMo Section 288.050(2). Misconduct, however, that may justify firing does not, of necessity, justify denial of unemployment benefits. The Deputy, or decision maker, depending upon the seriousness of the misconduct and the circumstances of each case, may disqualify an individual from four to sixteen weeks of benefits. In the more aggravated cases of misconduct, the Deputy may also cancel all or any part of the individual’s benefits established through his employment by the employer who discharged him.

A. Burden

The employer has the burden to prove the claim of misconduct connected with work. Miller v. Kansas City Station Corp., 996 S.W.2d 120 (W.D. Mo.App. 1999). The placement of the burden is crucial. The party bearing the burden of proof has the burden of persuasion. Meeting the burden requires more than proof; it requires orderly and reasoned presentation in the context of the case and relevant issues. Whether the evidence establishes good cause is a question of law. Given that the purpose of the unemployment statute is to provide benefits to unemployed persons, limitations on benefits are strictly construed.

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Employees Who Quit Can Be Entitled to Unemployment Benefits

Companies are often angered and puzzled when they learn that employees who voluntarily quit their employment may be eligible for unemployment benefits. The eligibility determinations of both the Labor and Industrial Relations Commission and the Courts on their face seem to have no rhyme or reason. This article addresses cases in which the Courts have analyzed an employee quit as it relates to eligibility for unemployment benefits, and summarizes each decision’s legal rationale. The four cases collected below have been decided by Missouri Courts in the last year and concern situations where significant legal violations are being alleged by a former employee, or where an employee is using an illness as a basis for a quit.

Under RSMO Section 288.050.1(1), a terminated employee (“Claimant”) may only receive unemployment benefits when he or she quits if the reason is based on “good cause attributable to the employee’s work or the employer.” The test is akin to the constructive discharge test under discrimination law. When determining good cause, courts use a reasonable person standard. This has been interpreted as meaning “cause that would motivate the average able bodied and qualified worker in a similar situation to terminate his or her employment”. Hessler v. Labor and Industrial Relations Commission, 851 S.W.2d 516, 518 (Mo. Banc 1993). The circumstances that motivate an employee to quit voluntarily “must be real, not imaginary, substantial, not trifling and reasonable, not whimsical and good faith is an essential element”. Id at 518.

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FMLA Bullets

I. Summary Plan Descriptions may give Employees FMLA Protection as a Matter of Contract Law

II. Conditions such as the Common Cold or Flu may be FMLA Qualifying

III. Department of Labor’s Current Employer Penalty for Failure of the Employer to give FMLA Notice is Not Enforceable.

As the United States Supreme Court continually narrows the reach of the Americans with Disabilities Act, employees who have been discharged due to issues related to illness, look for a legal hook under the Family Medical and Leave Act (“FMLA”). Below is a short summary of three interesting FMLA cases for your consideration and use. Be forewarned, the FMLA can be very tricky.

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