Federal Courts Issue Guidance for Jury Trials During COVID-19: What Litigators Need to Know

The U.S. Courts’ COVID-19 Judicial Task Force has released guidance on conducting jury trials and convening grand juries during the pandemic.

The task force’s guidance, released on June 4, 2020, makes clear that each tribunal will ultimately set its own rules for jury trials after considering things like location, budget, and physical facilities.

Highlights from the guidance include:

  1. Communication. Courts are advised to ensure that jurors receive reasonable assurances about their safety prior to participating in jury service. Courts should consider jurors’ home situations, transportation issues, safety while in the courthouse, and concerns regarding being away from home. If jurors do not feel safe and are focused on COVID-19, they may not be able to properly focus on the evidence. Litigants should keep juror safety in mind too; jurors that feel a litigant is behaving unsafely might view the merits of their case less favorably.
  2. Personal protective equipment (PPE). Courts will be determining what level of PPE to require. Courts should consider what PPE all individuals (including jurors, attorneys, parties, the press, or other court personnel) are to wear. Courts also need to determine whether they will provide PPE or allow jurors to bring their own. Allowing jurors to bring their own PPE presents risks, including having contaminated PPE enter the building. Courts also need to determine whether and when individuals in the court must wear face coverings. This can present problems in communication with witnesses, attorneys, court reporters, and the judge. The courts will be balancing these considerations.
  3. Changes for jury selection and trial. The Task Force made several recommendations to limit or restrict person-to-person contact before and during trial. For instance, the Task Force recommends considering virtual voir dire where prospective jurors could participate from home. It also recommends working to limit contact between parties while in the courtroom by using other types of video or audio options (such as allowing sidebars to occur by an app or other type of electronic device), rather than require the litigants to approach the bench and be in close quarters with one another and the court.
  4. Courtroom preparations. Courtrooms may be modified. Counsel tables may be moved to locations different from normal. Courts may restrict movement of both attorneys and litigants. The Task Force recommends that counsel be directed to address the court, jury, and witnesses from the counsel tables.

With the rapidly changing circumstances, litigants must be prepared for anything and be able to adapt to what is likely to be a very wide range of approaches from various federal courts during jury trials. If you have questions about how the federal courts intend to handle jury trials in your area, contact the Jackson Lewis attorney with whom you work.

Zooming In on Remote Depositions during COVID-19 Pandemic

As a result of the COVID-19 pandemic, fully remote depositions have become necessary and employment lawyers are quickly adjusting. Below are some areas to consider when taking a remote deposition.

Technology

Court reporting services use various audio-video technologies, including Zoom, Cisco Webex, and other platforms, to connect participants in a remote deposition. Being comfortable on a platform may depend on prior experience. Verify the security to ensure there are no surprise “crashers” in a deposition. Whatever the format, a web-camera and possibly a microphone may be needed. Many computers have built-in webcams and microphones. Some court reporters advise connecting to the audio feed by telephone, rather than computer audio, to avoid disturbances by internet bandwidth issues.

Deposition Notice, Stipulations

Consider including language in the notice of deposition stating the deposition will be conducted remotely with the deponent, parties, attorneys, and court reporter participating from different locations. The notice should advise that the court reporter will administer the witness’s oath remotely. Email in advance to all participants the link to connect and any other information they needed to join the deposition. Provide to all parties the contact information of the court reporting service and advise them to test their connection in advance, and suggest that they may contact the reporter to do a test session. Some court reporting services can provide a template remote deposition notice. Also, consider formal written stipulations of the ground rules for handling exhibits and related concerns that can arise on or off the screen.

Exhibits

Showing exhibits to the deponent is the most unique element of a remote deposition, and needs extensive planning. There are many ways to handle exhibits and the method you choose will depend on whether the element of surprise regarding which exhibits you will show the witness is important, how many exhibits you intend to use, and how proficient you are with technology.

If appropriate, one can share exhibits in advance with the deponent and opposing counsel. Exhibits can be marked and shared in advance with the deponent, counsel, and court reporter. You simply can instruct the deponent, on the record, to refer to hard copy exhibits already in their possession and proceed to question the witness.

If you do not want to share exhibits in advance, there are two methods to show exhibits using technology. One is to mark exhibits in advance, scan and save them on your computer, and share your screen through the video platform employed by the court reporter. When you want to show an exhibit to the deponent, you share your screen with the participants and display the document on your screen. All participants will see on their screens exactly what is displayed on your screen. Alternatively, counsel can use an exhibit-sharing platform that many court reporting agencies are using. Many exhibit-sharing programs automatically affix exhibits with electronic exhibit stickers and allow a witness and counsel to electronically “mark up” an exhibit, as may be done during an in-person deposition with a physical pen or marker. In addition, each participant can independently scroll through the document at their pace; the deposing attorney does not need to scroll down to show the deponent subsequent pages of an exhibit, as is necessary when employing the share-your-screen method.

Finally, if you are not comfortable sharing your screen or using an exhibit-sharing technology, but you do not want to tip your hand on which documents you will utilize, you can provide hard copy exhibits to the deponent, court reporter, and opposing counsel in advance in a sealed package, with explicit instructions that: (1) the package may not be opened prior to the deposition; and (2) the parties will be instructed to break the seal and open the package for the first time on camera and on record during the deposition.

While a fully remote deposition likely will be a new experience for most attorneys, if you are prepared, the deposition should run smoothly.

Using Data from Wearable Devices in Litigation

Millions of people across the globe use some type of wearable device that constantly captures data including health information, fitness levels, location, and much more. These devices, such as Fitbit and the Apple Watch, are often referred to as “wearables.” Experts estimate that over 300 million wearables are in circulation and that the number of wearables could increase 55 percent each year.

Because the use of wearables is so prolific in our society, the data they capture can be a valuable tool to use during litigation. One does not have to look far to find examples of situations where such data could be useful to attorneys litigating a case. For instance, location data from a wearable could be used to prove when employees arrive at or leave work. Health and exercise data from a wearable could be used to show that a personal injury plaintiff is not as severely injured as the plaintiff suggests. Wearable device data could also be used to demonstrate that a party has altered data in another device such as a smartphone (i.e. data such as text messages remain on the wearable device even though deleted from the smartphone).

Like all electronically stored information (“ESI”), the collection and use of data from wearable devices presents challenges. Few court decisions provide guidance on how courts might address issues with wearable device data. Until courts provide more guidance on the use of wearable device data, litigants are best served to treat wearable device data like other ESI such as emails, social media data, and smartphone data. Accordingly, several considerations apply:

  1. Discoverability and Relevance. Wearable device data presents an obvious target for litigants during discovery. Parties opposing the production of wearable device data are likely to argue that such data is not discoverable because it does not reasonably relate to the claims and defenses in a case. Parties should be prepared to argue why such data is relevant. In a recent New York trial court decision, the court blocked the discovery of Fitbit records during a personal injury case. Spoljaric v. Savarese, 2020 N.Y. Misc. LEXIS 470 (Suffolk Cty. 2020). In that case, the plaintiff had lost 50 pounds during the litigation, and the defendant wanted to obtain Fitbit records to argue that the plaintiff’s activity level during the period he said that he was injured proved that his injuries were not severe. The court found that many factors can contribute to weight loss, and that the request for the Fitbit records was based upon mere speculation, so it denied the request. There is little indication as to how other courts may analyze such requests, but the lesson is that litigants need to be prepared to show why obtaining such data is necessary.
  2. Authenticity. Parties using wearable device data will be required to demonstrate such data is authentic before the data can be used in court. This could be done through the device user’s testimony or potentially through an expert.
  3. Reliability. Parties attempting to use wearable device data in court will also be required to demonstrate that such data is reliable. There is a wide range of wearable devices on the market. Some are more reliable than others. Moreover, some allow users to manually manipulate the data. The accuracy of medical data obtained by wearable devices has not been fully tested. Experts may be necessary to demonstrate that the wearable device data is reliable.

Parties litigating cases where wearable device data could be used should consider obtaining and using such data. If you have any questions about the use of wearable device data in court, please contact the Jackson Lewis attorney with whom you work.

Whistleblower Rights in Today’s Evolving Federal Statutory Landscape

All viable whistleblower cases arise from allegations of wrongdoing serious enough to run afoul of some statute or rule. Common issues in every whistleblowing case include:

  • Who is subject to protection against retaliation as a whistleblower?
  • What types of conduct or speech are entitled to protection as whistleblowing?
  • What must a whistleblower do by way of exhaustion of administrative remedies or other effort to remediate wrongdoing in order to have a justiciable claim?
  • What remedies does the law afford to a whistleblower who successfully demonstrates at trial all elements of a viable claim?

The answers to these questions vary by state and are evolving at the federal level, even under federal statutory and regulatory frameworks applicable in closely related or virtually identical scenarios. For instance, the Sarbanes-Oxley Act of 2002 (SOX) prohibits retaliation against an employee for providing information regarding conduct the employee reasonably believes constitutes a violation of federal law relating to fraud against shareholders. 18 U.S.C. section 1514A. Similarly, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) prohibits retaliation against any individual, including employees, who provides information relating to a suspected violation of securities law to the Securities and Exchange Commission (SEC). 15 U.S.C. section 78u-6(a)(6). Both statutes provide for reinstatement of wrongfully terminated employees and reimbursement of litigation costs and fees. Dodd-Frank, however, provides an extra financial incentive (double back pay) to prevailing whistleblowers, plus a cash award of up to 30 percent of monetary sanctions the SEC collects in an enforcement action. Moreover, Dodd-Frank claimants enjoy a six-year limitations period, compared to SOX’s 180-day limitation, on the filing of an administrative complaint prior to filing suit in federal court.

The U.S. Supreme Court weighed in on these distinctions, reversing an expansive interpretation of Dodd-Frank and an interpretive Rule that incorporated relatively lenient SOX reporting standards. Digital Realty Trust, Inc. v. Somers, 138 S.Ct. 767 (2018). There, the plaintiff was fired shortly after reporting to senior management suspected securities law violations of the company for which he worked. He could not proceed under SOX’s anti-retaliation provisions because he had not exhausted administrative remedies by filing an administrative complaint within the required 180 days. The longer limitations period in Dodd-Frank allowed him to file suit, although he had not satisfied its requirement that the alleged securities law violation be reported directly to the SEC. A unanimous Court held that the plaintiff simply was not a “whistleblower” pursuant to Dodd-Frank and, therefore, was not protected from retaliation based on an internal allegation of securities fraud.

To reverse this outcome, on July 9, 2019, the House of Representatives passed a bill that would re-define Dodd-Frank’s definition of a “whistleblower” to include an employee who reports a securities law violation to “a person with supervisory authority over the whistleblower at the whistleblower’s employer,” in addition to a person who makes such a report to the SEC. H.R. 2515, amending 15 U.S.C. 78u-6. Similarly, Senate Bill 2529, dated September 23, 2019, would expand protection to employees reporting a securities law violation to “a person with supervisory authority over the whistleblower ….” S. 2529, amending 15 U.S.C. 78u-6.

Elected representatives are expected to take up these bills shortly and to join the SEC in expanding Dodd-Frank whistleblower protections to accord with the SOX’s threshold standards. This evolving landscape warrants attention from both employers and employees.

Documentation: The Star Role in Defending Against Retaliation Claims

Despite the heightened attention to avoiding and addressing sexual harassment claims in the wake of the #MeToo movement, retaliation remains the most-frequently filed employment law claim according to the Equal Employment Opportunity Commission’s FY 2019 Enforcement and Litigation Data. The agency received 39,110 retaliation charges in FY 2019 or 53.8% of all charges filed.

The “ABC’s” of documentation can help employers lower the risk of retaliation claims.

To establish a prima facie case of retaliation, plaintiffs must show: (1) they engaged in statutorily protected activity; (2) they suffered an adverse employment action; and (3) there was a causal connection between their protected activity and the adverse employment action. If a plaintiff shows a prima facie case, the employer has the opportunity to proffer a legitimate, non-retaliatory reason for the alleged adverse employment actions.

Thus, the best defense to a retaliation claim is an employer’s legitimate business reason for an adverse decision. The star role in this defense is documentation. It is not the mere existence of documentation that helps defeat the claim. Rather, it is the existence of specific, objective, and contemporaneous documentation.

Let the “ABC’s” of Documentation be your guide:

1. Always Be Consistent

Before making a decision that affects an employee, employers should review relevant policies and guide their decision accordingly. Employers also should research past practice and determine how they had addressed similar situations. For example, if an employee exhausts their Paid Time Off but requests additional unpaid time off, the employer should consider any relevant policies and whether it granted unpaid time off to employees for similar reasons.

2. Document Basis of Employer’s Action

Any documentation should reflect the basis for an employer’s action. Employee documents, such as written discipline, should explain why the employee is receiving the warning. Employer documents, such as termination summaries, should detail the specific reason for the termination. Contemporaneous documentation outlining the basis for an employer’s decision will help demonstrate the decision was legitimate and not pretext for retaliation.

3. Equal Treatment of Similarly Situated Employees

Making decisions consistently and maintaining documentation showing that fact can help employers prove they treat similarly situated employees equally. By establishing equal treatment, employers can defend against allegations that a decision was retaliatory. For example, an employer that terminates every employee who receives “Rarely Meets” on their performance review can better defend against an accusation that a termination was retaliation for some protected activity.

4. Fairness for Employee

Employees who lack context for an adverse decision are likely to view that decision as arbitrary and unfair. They also are more apt to fill in their own context – retaliation. For example, an employee who never received any prior performance-based documentation may react poorly to a Final Written Warning for poor performance and come up with some other reason for the Warning. However, if the employee receives periodic and progressive documentation about performance, a Final Written Warning will be expected.

5. Good timing

Sometimes the timing of the decision to discipline an employee can be as important as the documentation and its contents. Consider whether there are factors that militate in favor of delaying disciplinary action until more information is available. If an employee has just complained of discrimination or harassment, documented discipline or a termination in close proximity to that complaint is more likely to be viewed as retaliatory.

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Of course, this is not an exhaustive guide to decisions on how to document disciplinary action. Each case is fact sensitive. Jackson Lewis attorneys can train Human Resources and managerial personnel on the importance of documentation and assist in litigating against retaliation claims.

 

Establishing Judicial Estoppel Defense Against Bankruptcy Plaintiff Just Became Harder

Establishing the judicial estoppel defense against a bankrupt plaintiff will be harder in the Eleventh Circuit following Smith v. Haynes & Haynes P.C., 940 F.3d 635 (11th Cir. 2019).

Judicial estoppel is a legal defense used for early dismissal of cases against bankrupt plaintiffs. In a bankruptcy, judicial estoppel applies if a debtor plaintiff omits any claim that the plaintiff knew of at the time of filing for bankruptcy or learned of while the bankruptcy case was pending. If a defendant succeeds in establishing judicial estoppel, the plaintiff is barred from pursuing a case regardless of the claim’s merits.

The plaintiff, Jenny Smith, sued her former employer, Haynes & Haynes, a law firm, alleging claims for unpaid overtime and retaliation under the Fair Labor Standards Act. Smith began working for Haynes & Haynes after filing for bankruptcy. On her bankruptcy filings she stated she had no claims that might prompt a lawsuit. While this disclosure was true when she filed for bankruptcy, she failed to amend her bankruptcy filing when she realized she had a claim against Haynes & Haynes.

The district court granted summary judgment for the employer on Smith’s overtime claim, relying on the judicial estoppel defense. On appeal, the Eleventh Circuit reversed summary judgment on judicial estoppel grounds, holding the district court did not have the benefit of Slater v. U.S. Steel Corp., 871 F. 3d 1174 (11th Cir. 2017) (Slater II), at the time of its ruling.

Before Slater II, the bar to prove judicial estoppel was “exceeding low.” A defendant simply relied on the plaintiff’s bankruptcy filing to show the plaintiff had a potential claim and failed to disclose it, and courts would infer that a plaintiff always had motive to deceive the bankruptcy court, thus, establishing judicial estoppel.

The Eleventh Circuit stated that this presumption of deceit produced perverse results and defendants, such as employers, were the only party that benefited because judicial estoppel barred the omitted lawsuit without showing the plaintiff intended to deceive. Courts must apply Slater II’s “all the facts and circumstances” standard to determine the plaintiff’s intent when she omitted her claims in her bankruptcy petition.

The Eleventh Circuit said it was “far from clear” that Smith acted in bad faith because she denied motive to deceive the court and may not have known she had to update her bankruptcy filing when she learned of her claims. It also stated that the district court erred applying judicial estoppel based on the inconsistencies between Smith’s initial and amended complaint, stating that her inconsistent statements about when she learned of her claims against the employer did not show intent to deceive.

In this case Plaintiff filed a Chapter 13 bankruptcy petition, which allows a portion of a debtor’s future earnings to be collected by a trustee and paid to creditors. The Court recognized that a Chapter 13 debtor does not receive a discharge of her debts; rather, the debtor is allowed to extend or reduce the balance of her debts through a plan of rehabilitation. By contrast, in a Chapter 7 proceeding, the trustee is the party conferred with standing to enforce or abandon the rights of the debtor followed by issuance of a discharge. If Plaintiff’s petition was filed under Chapter 7, undisclosed contingent claims could still result in the successful assertion of a lack of standing defense. Accordingly, the discovery of a claimant’s bankruptcy proceeding remains an important area of inquiry in employment litigation.

No Magic Words Needed in Employee Requests for Leave That Might Be Protected By FMLA

A terminated employee may proceed with his Family Medical Leave Act (FMLA) retaliation claim even though he never specifically requested leave under that statute, a Maine federal court has ruled. Waterman v. Paul G. White Interior Solutions, No. 2:19-cv-00032-JDL (D. Me. Nov. 5, 2019).

The employee worked as a floor finisher and installer for a flooring company. His father had been diagnosed with several serious health conditions. On April 8, 2018, the employee’s stepmother told him that his father’s doctor advised that his father would “mostly likely die” if he did not immediately return to the doctor for tests and treatment. The employee had shared his father’s worsening condition with his supervisor and two coworkers. However, he did not know that his father was near to death until the conversation with his stepmother.

The employee missed work to care for his ill father from April 9 to April 16. He left a voicemail with his supervisor on April 9. On April 10, he left a voicemail with a co-owner of the company explaining his father’s situation. Neither the supervisor nor the owner responded to the employee’s voicemails. When the employee did not appear for his shift on April 16, the owner sent him a Facebook message asking where he was. On April 17, the employee responded that his father was “still pretty bad off.” Thereafter, the company terminated his employment.

The employee sued the company for retaliation in violation of the FMLA.

The company filed a motion to dismiss, arguing that the employee’s absence was not protected under the FMLA because he had not provided prior notice of his intent to take leave under the statute.

The court denied the motion and allowed the claim to proceed, finding the complaint raised a plausible inference that the employee provided adequate notice of his intent to take FMLA leave. The court also found the complaint plausibly alleged that the employee’s attempt to take FMLA leave and his termination were causally connected.

Employers should not split hairs when an employee takes time off from work for reasons that could come within the purview of the FMLA. The best course is to look at the situation as a whole and, if the FMLA is implicated, take actions to allow the statutorily protected rights.

Please contact a Jackson Lewis attorney with any questions.

Four Ways of Avoiding Liability on Common Wage and Hour Compliance Issues

Wage and hour lawsuits are big news these days. Jury verdicts and settlements capture headlines warning of damages and fees totaling seven or more figures, and class certifications in pending cases exponentially expand the risk posed by a single miscalculation or mistaken designation. How can employers best reduce the risk of becoming the next cautionary tale in wage and hour compliance?

Generally, the Fair Labor Standards Act (“FLSA”) requires employers to classify employees as either exempt or non-exempt for purposes of minimum wage, overtime and recordkeeping requirements. See 29 U.S.C. sections 201-219.   Employers must pay non-exempt workers at least a minimum hourly rate for each hour worked, must pay overtime in an amount of one-and-a-half times the regular hourly rate for all hours worked over 40 per week, and must maintain an accurate account of all hours worked for at least two to three years. State and local laws on these topics vary, and employers must abide by whichever requirements are the most restrictive. By contrast, exempt employees do not receive overtime pay and their employers need not keep track of actual hours worked.

Below are four common mistakes with potentially serious consequences illustrated by today’s headlines:

  1. Identify Employees Based on Economic Reality, Not Titles or Labels

As a threshold matter, FLSA applies to “employees” but not to independent contractors or volunteers. In today’s gig economy, this distinction is crucial. The economic reality behind a working relationship governs whether workers are correctly identified as “employees” in the first instance, including:

  • Whether the services rendered are an integral part of the principal’s business;
  • Whether the worker exercises independent initiative and judgment in a freestanding enterprise operating in an open and competitive market;
  • Whether the worker has invested in facilities and equipment;
  • Whether the worker is subject to another’s direction and control;
  • Whether the worker incurs profit or loss on work performed.

No one of these factors is dispositive. However, courts and the Department of Labor alike examine the economic reality behind the four corners of documents that purport to establish an independent contractor relationship. It is not enough that workers have the appearance of independence through contracts, LLC incorporations, and taxation on a 1099 basis.

  1. Classify All Employees, Both Exempt and Non-Exempt

Those properly identified as “employees” must next be correctly designated as either exempt or non-exempt for FLSA purposes. To classify an employee as exempt, an employer must be able to demonstrate that the job satisfies a minimum salary threshold and that its primary responsibilities are one or more of the following:

  • The professional exemption, involving work “requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of intellectual instruction”;
  • The administrative exemption, involving office or non-manual work directly related to management or operations requiring discretion and independent judgment on significant matters;
  • The executive exemption, involving management of an enterprise, including discretion and authority in hiring, firing, promoting, and directing the work of others;
  • Miscellaneous exempt positions, such as computer system analysts, outside sales representatives, and certain highly compensated white collar employees.

Each of these standards must be met by reference to the actual responsibilities of the employee, and not to the job title, job description or qualifications of the employee.

  1. Keep Accurate Attendance Data for All Non-Exempt Employees

Prevailing plaintiffs on FLSA claims may recover unpaid overtime and liquidated damages for at least the two years prior to the date of the claim, plus attorney fees and costs. However, this timeframe extends to three years if the evidence establishes that the employer’s conduct in the misclassification was “willful” or reflected “reckless disregard.” Adding to that risk is (1) that of an adverse inference in the number of overtime hours actually worked, if the employer did not record and retain hourly records for mis-classified employees, and (2) that an exponential multiplication of damages may result if relatively small claims aggregate in a class action.

Unpaid overtime may accrue in unexpected ways that may appear to be miniscule but that when aggregated over an entire workforce may result in significant liability. Examples include reviewing and acting upon off-hours email transmissions, responding to assignments during breaks, or performing work-related tasks either prior to clocking in or subsequent to clocking out.

4. Train All Employees to Observe FLSA Requirements

Both exempt and non-exempt employees should receive training in the basic requirements of the FLSA. For exempt employees, particularly those with responsibility for directly managing the work of others, this means respecting time before, during, or after working hours for which the employee is not paid. Non-exempt employees with remote access to employer computer systems or e-mail via work or personal communication device may perform compensable work not captured by the company’s timekeeping systems. Additionally, management-level employees must enforce the company’s timekeeping policies and practices vigilantly, e.g., punching in and out for lunch, ensuring no compensable work is performed off the clock, and so forth. Minutes per day of uncompensated time will add up to hours over two or three years, and may quickly escalate if uncompensated time multiplies across an entire workforce. Similarly, non-exempt employees should receive training in policies with multiple avenues of internal redress so that misunderstandings do not go unremediated until yet another wage and hour lawsuit hits the headlines.

 

In short, the best way to avoid small mistakes from escalating into significant FLSA liability is to take the foregoing proactive compliance steps. Counsel with experience in state law can provide essential guidance in compliance with local restrictions that differ from federal law.

Employers Must Ensure Their Leave Administrators Understand Who Is Entitled to FMLA Leave

Employers must ensure they understand who is entitled to leave under the Family and Medical Leave Act (FMLA). In a recent decision, a federal court has ordered a plaintiff’s claims to proceed to a jury trial to determine whether the plaintiff’s former employer interfered with her rights under FMLA.

In Gibson v. New York State of Mental Health, et al., No. 6:17-cv-0608 (N.D.N.Y Nov. 25, 2019), the plaintiff requested a leave of absence to care for her 31-year-old daughter and minor grandchildren. The employer denied her leave request because her daughter was over 18 years old and the plaintiff sued the employer.

Under the FMLA, an eligible employee is entitled to leave to care for a son or daughter with a serious health condition. The definition of a “son or daughter” includes individuals who are over 18 years old and incapable of self-care because of a mental or physical disability. A willful violation has a three-year statute of limitations.

The employer’s Associate Personnel Administrator reviewed the plaintiff’s leave request and discussed the request with an attorney. Ultimately, the plaintiff’s request was denied.

The court denied the employer’s motion for summary judgment. The court focused on contemporaneous documentation prepared by the employer in denying plaintiff’s leave request in which there is no indication her daughter’s capability for self-care was considered. This included the denial letter to the plaintiff and notes from the Associate Personnel Administrator’s conversation with the attorney.

The court held that a factfinder could conclude the employer did not rely on a finding as to whether the plaintiff’s daughter was incapable of self-care in denying her leave request and allowed the case to proceed to trial.

Employers must ensure that personnel responsible for making leave determinations fully understand who is entitled to leave under the FMLA and applicable state and local laws. When denying a leave request, prepare contemporaneous documentation of all reasons for the denial as it could become key evidence in a future FMLA case.

Can Cross-Generational Viral Internet Phrases in the Workplace Create Unlawful Age Discrimination?

“OK Boomer” is having a moment on the internet, appearing often in viral jokes and memes. It is widely considered an all-purpose retort by the younger generations of Millennials and Gen Z’ers to dismiss thoughts and ideas they view as too old-fashioned. Some even use “OK Boomer” to discount opinions stereotypically attributed to the Baby Boomer generation.

For their part, Millennials suffered being labeled “The ME ME ME Generation,” which has turned into other dysphemisms such as “snowflake,” used to describe self-perceived specialness.

When do viral jokes and memes in the workplace become evidence of unlawful age discrimination?

“OK Boomer” began simply enough as an irreverent joke pointing out generational differences in opinions. But, at its core, it could be interpreted to convey the message: “You are old and therefore your opinion is antiquated.” In the workplace, such phrases can create an inference of age discrimination under federal anti-discrimination laws, such as the Age Discrimination in Employment Act (ADEA) and corresponding state anti-discrimination laws. These laws protect all workers who are at least 40 years of age from discriminatory practices in employment. They also protect workers from age-based discrimination and harassment.

Use of the phrase “OK Boomer” once likely will not rise to the level necessary to demonstrate actual discrimination or harassment based on age. However, repeated comments that reference age and use of such phrases as “OK Boomer” or “snowflake” may be used as evidence of age-based discriminatory practices. Additionally, these types of remarks may be used in litigation to support the argument that employers who do not take steps to stop the behavior foster a workplace culture that tolerates age-based discrimination.

Some state laws also protect younger workers from discrimination or harassment based on age. For example, the New York City Human Rights Law and the New Jersey Law Against Discrimination protect employees of all ages from age-based discrimination and harassment. Therefore, repeatedly referring to a younger worker as a “snowflake” or otherwise treating that employee less favorably because of his or her younger age may be seen as age-based discrimination or harassment.

Employers must impart to their employees a shared responsibility to prevent and avoid comments that may be construed as ageist. Employers should consider including in their regular training sessions lessons on the prohibition of age-based comments and remarks in the workplace. Even when intended to be funny, such comments and remarks can be seen as evidence of age-based animus and may lead to claims of age discrimination or harassment. Similarly, employers should consider adopting policies that clearly prohibit comments and remarks that are directly tied to age or demonstrate generational animus.

For additional guidance on these issues, please contact a Jackson Lewis attorney.

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