PK Law Employment Law Alert

October 2011

DEAR FRIENDS:

The purpose of this alert is to highlight some recent significant employment legislative developments and decisions of the Supreme Court of the United States as well as Maryland state and federal courts, several in which PK Law has successfully defended its employer clients.   

MARYLAND’S WHISTLEBLOWER ACT – A BLOW TO EMPLOYERS

Lawson v. Bowie State University, No. 119, September Term, 2010.  Maryland’s highest court, in Lawson v. Bowie State University, recently issued a decision clarifying the standard which is applied to state employees in determining whether to afford them protection against reprisal or other adverse employment action under Maryland’s Whistleblower Act.  In Lawson, the Court of Appeals specifically considered the question of whether whistleblower protections extend to an employee whose decision to disclose possible violations by fellow employees was personally motivated by his desire to make changes in the department in which he worked.  The Court answered that question in the affirmative, holding that an objective test is to be applied such that the employee need only have a reasonable belief that he is reporting a violation.

Lawson, a police officer in the Bowie State University police department, wrote a letter to Dr. Artie Travis, the University’s Vice President of Student and Academic Affairs, expressing his concerns regarding the legality of an arrest his fellow officers had made on campus which Police Chief Ernest Waiters had praised.  Dr. Travis in turn forwarded Lawson’s letter to Waiters.  Lawson was subsequently suspended and ultimately terminated for violating the Department’s chain of command policy.

Lawson sought administrative relief, but his termination was upheld.  Ultimately, an Administrative Law Judge (“ALJ”) from the Office of Administrative Hearings affirmed Lawson’s termination, ruling that his letter to Dr. Travis was not a protected disclosure because Lawson did not reasonably believe that the disclosed information contained evidence of a violation of law.  The ALJ based its decision on a finding that Lawson was not credible in that his letter was motivated by a “crusade” to make changes to the Department.

On appeal, the Court of Appeals initially noted that Maryland’s Whistleblower Act is patterned after the Federal Whistleblower Protection Act and is therefore broadly construed in favor of protecting whistleblowers.  The Court further explained that an objective test is to be applied which only requires that the employee prove that a reasonable person in his position would believe the disclosure evidenced a violation, not that he possessed a purely altruistic motive for the disclosure.  Applying that standard, the Court held that instead of adhering to the objective test as required, the ALJ erroneously attacked Lawson’s motive for making the disclosure.  Moreover, the Court noted that communications containing a protected disclosure will not always lose their protected status simply because they also include some unprotected material. 

PK LAW SUCCESSFULLY DEFENDS BOARD MEMBERS AND PRINCIPALS IN BULLYING CASE

Bulgarino v. The Howard County Board of Education, et al, Case No. MJG-10-2608 (D. Md. 2011).  In Bulgarino, a family sought $10 million in compensatory and punitive damages against PK Law clients, the Board of Education of Howard County, all of the individual Board members, a middle school principal and an assistant principal (an unidentified substitute teacher was also sued, but not represented by PK Law), for allegedly failing to protect their sixth grade son from alleged bullying by his sixth grade classmates.  The parents ended up pulling their child out of the public schools and enrolling him in a parochial school.

In a ruling on a Motion to Dismiss, the United States District Court for the District of Maryland, found that the Plaintiffs failed to state any federal claims.  In essence the court found that the Plaintiffs failed to state cognizable constitutional claims under the 14th amendment due process and equal protection clauses because there is no “special relationship” between a school and a student sufficient to trigger a duty to protect from the alleged violent acts of other students and that there was no state created danger.

This was a good decision for school systems that, truth be told, do a tremendous amount of pro-active and re-active work in trying to create safe environments for students.  Had the matter proceeded to trial, the evidence would have demonstrated that the matter was handled appropriately.   

U.S. SUPREME COURT TO HEAR MAJOR LABOR CASES THIS TERM

The United States Supreme Court will be deciding a number of significant employment cases this term affecting religious institutions and schools, government employees, and private attorneys assigned to investigate discrimination claims by government entities. 

  • Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), cert. granted, 131 S. Ct. 3059 (2011).  In Coleman, a case arising from Maryland, the Court will decide whether the Eleventh Amendment offers state agencies, including Maryland’s public school boards, immunity from liability under those provisions of the Family and Medical Leave Act (FMLA) which address the right to take time off due to an employee’s own illness.  In its 2003 decision, Nevada Department of Human Resources v. Hibbs, 131 S. Ct. 3059 (2003), the Supreme Court concluded that those provisions governing pregnancy leave and the leave to care for other family members, which were attempts to remedy systemic gender discrimination, were not subject to 11th Amendment immunity; however, the Fourth Circuit decided in Colemanthat the so-called “self-care” provision of the FMLA was not contemplated by the Equal Protection provision of the Fourteenth Amendment, and thus states were entitled to assert Eleventh Amendment immunity from liability for damages under this provision of the law.
  • Filarsky v. Delia, 621 F.3d 1069 (9th Cir. 2010), cert. granted, 180 L.Ed. 2d 939 (U.S. 2011).  In Filarksy, the Supreme Court will decide whether the qualified immunity that is available to government officials accused of constitutional violations extends to private attorneys who are hired to conduct independent investigations at the government’s request.  The U.S. Court of Appeals in San Francisco found that such immunity did not extend beyond government officials and employees.  The Supreme Court’s decision in the case will have significant impact upon attorneys or other non-government individuals who are engaged to conduct investigations (such as in sexual harassment situations in which the sensitive nature of the individuals involved requires an outsider to investigate) at the government’s behest.  In Knox v. SEIU, 628 F.3d 1115 (9th Cir. 2010), cert. granted, 131 S. Ct. 3061 (2011), the Court will address the right of public employees to demand advance notice and the right to opt out of paying a special assessment to their union that was triggered by a number of anti-union ballot initiatives in California which the unions used in order to fund state-wide political opposition. 
  • Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 597 F.3d 769 (6th Cir. 2010), cert. granted, 131 S. Ct. 1783 (2011).  In Hosanna, the Supreme Court just heard oral argument as to the extent to which the religious exemption contained in Title VII of the Civil Rights Act of 1964 can be asserted by a church-run school that was accused of discriminating on the basis of disability against a teacher with a chronic sleep disorder.  The majority of Justices who heard the case appear to be fully in support of the continued religious exemption, particularly as it applies to teachers who teach both secular and religious materials to students.  Questions at oral argument focused on Congress’ intent of the exemption.    

FMLA AMENDED TO EXPAND AVAILABLE TIME FOR LEAVE RELATED TO FAMILY MEMBERS IN THE ARMED FORCES

On October 28, 2009, President Obama signed the National Defense Authorization Act (“NDAA”), which expands the scope of the leave entitlements under the Family and Medical Leave Act (“FMLA”) by altering the scope of both “qualifying exigency” leave and military caregiver leave.

Prior to these amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to “qualifying exigency” leave. The amendment broadens the scope of qualifying exigency leave to include eligible employees whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. The amendment, in addition to extending qualifying exigency leave to eligible family members, eliminates the requirement that a service member’s active duty be in support of a contingency operation.

The amendment did not change the length of the leave entitlement under the FMLA. However, the amendment expands military caregiver leave in two ways. (1) The amendment extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving the medical treatment that triggers the need for military caregiver leave. Therefore, employees who are family members of a current or former service member undergoing medical treatment, recuperation, or therapy for an injury or illness incurred as a result of their service, may take up to six months of caregiver leave, so long as the service member was a member of an armed service within five years of the date of treatment. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave; instead the 12 month period begins when the employee begins using caregiver leave.

The amendment also expands the scope of “serious injury or illness” under the FMLA for purposes of determining eligibility for military caregiver leave. Specifically, it has been expanded to include the aggravation of existing or pre-existing injuries to an active duty service member. For former service members, the broader definition allows the leave whether the injury or illness manifested itself before or after the service member became a veteran.

FLSA AMENDMENT – REQUIREMENTS OF A MANDATORY BREAST FEEDING POLICY

Effective March 23, 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (“FLSA”) to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk.

Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. § 207(r)) was amended by adding the following:

(r) Reasonable break time for nursing mothers
     (1)  An employer shall provide –
                      (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk; and
                       (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
     (2)  An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
     (3)  An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
      (4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

Inquiries should be directed to PK Law’s Labor/Employment and Education Law Group.