Understanding Workplace Pregnancy Leave for Moms and Dads

Yahoo has recently announced a new parental leave policy, in which both moms and dads will receive the same eight weeks of paid leave following the birth of a child, including through adoption.  But moms who give birth are given an additional eight weeks of paid leave following childbirth, while men and moms who adopt are not granted this additional eight weeks paid leave.

Some observers have questioned the propriety of Yahoo’s policy giving men the same eight weeks of paid leave that all women get, and also whether it is appropriate that women who give birth get twice as much leave as women who adopt.  But Yahoo’s new parental leave policy is lawful.

Despite the myriad of views on social norms, federal law requires that men and women receive the same amount of time off from work to bond with a new child.  The only instance in which the law allows a deviation between leave granted to a woman versus leave granted to a man for a new child is when the additional leave is directly linked to a woman’s recuperation from the physical effects of childbirth.  That is why it is permissible under federal law to give women who adopt less paid leave than women who give birth.
Therefore, companies should avoid using terms such as maternity and paternity leave, and instead should spell out new child leave policies using terms such as “parental leave” and “childbirth leave” to account for the distinction that federal law permits between the two.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Are Employee’s Social Media Discussions Protected?

As we’ve reported, the National Labor Relations Board (“NLRB”) continues to take an aggressive stance on regulating employment decisions based on employee social media postings. Contrary to the recent trend of broadly construing employee social media postings as covered under protected activity, the NLRB reversed course and recently ruled in favor of an employer after terminating an employee based upon what it believed was an improper Facebook group message post.

In the case, an employee worked at a small medical office performing various office duties for her employer. The employee at issue in the case, along with nine other individuals who were comprised of both former and current employees, took to a private group chat on Facebook to organize a social outing. After briefly planning the social event, the subject quickly changed after the employee mentioned that another former employee may be returning to the company as a supervisor. This led to the employee beginning an attack on her current supervisor claiming that her supervisor "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." The employee’s rant did not stop there as she began using profanity and stated “FIRE ME …Make my day.” Other than one other current employee stating that the employee’s comments made her laugh, no other current employees took part in this part of the discussion.

To no surprise, one of the current employees on the group chat showed this discussion to their employer. The employer called the disgruntled employee’s bluff and ended up firing her as it was clear to the employer that she was no longer interested in working for the company.  The terminated employee responded by filing an NLRA charge against the company claiming that her Facebook comments constituted protected concerted activity.

The NLRB found that the employee’s conduct on the Facebook group message did not constitute protected activity as the postings did not involve shared employee concerns over terms and conditions ofemployment. The NLRB largely focused on the test for “concert” and whether the employee is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Ultimately, the NLRB concluded that the terminated employee’s “comments merely expressed an individual gripe rather than any shared concerns about working conditions,” and therefore, the terminated employee’s charge should be dropped.

This is a big victory for employers as up until this opinion, the NLRB has continuously taken a very aggressive stance against employers on social media policies and terminations based on violations thereof. When making these termination decisions related to online postings, employers will want to consider what was said, by whom, and who responded in order to determine whether such conduct would be considered “protected concerted activity.” Though this opinion does give employers comfort if and when it decides to make a termination decision based on improper Facebook postings, it is always critical for you first to discuss these decisions with an experienced employment attorney.

The author, Nick Johnson, is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Nick can be reached at NJohnson@BerenzweigLaw.com.

National Origin Employment Discrimination Covers Europeans

Recently, a federal judge in Virginia was presented with the novel legal issue of whether someone of European descent is covered under the national origin protections of Title VII of the federal Civil Rights Act.

A Caucasian professor with a Ph.D. from Harvard applied for several different teaching positions at Northern Virginia Community College.  Each time a minority candidate was selected over him: first, a native of India; second, a native of Korea; third, a native of Senegal; and fourth, another native of India.  The community college said he was not selected for the positions because he did not provide enough evidence of outstanding teaching skills.  The professor countered by citing his prior teaching positions at Harvard, Georgetown, Johns Hopkins, and The Naval Academy.

The professor sued the community college for discrimination based on national origin, claiming that his European ancestry was viewed as a negative at Northern Virginia Community College where minorities make up the majority of the student body.  The community college countered that European does not constitute a protected national origin under federal discrimination law because there is such a variation of cultures among the countries of Europe.

A federal judge in Alexandria agreed with the professor that European is a protected class.  The court reasoned that despite differences from one country to the next, Europe has enough commonality in terms of people, culture and linguistics to make it an identifiable place of national origin.

This turned out to be a pyrrhic victory for the professor, however, because the court ultimately found against him on his substantive discrimination claim against Northern Virginia Community College.  The court concluded that despite his Ivy League credentials, the professor failed to provide enough peer references and prior teaching accolades compared with the candidates who were ultimately chosen over him.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

House Bill if Passed Would Affirmatively Require Employers to Pay Employees for Jury Duty

On December 6, 2012, the Virginia House of Representatives introduced HB1368, which if passed will significantly change Virginia employment law. Currently, Virginia law does not require employers to pay employees for days missed due to jury duty, although employers are prohibited from requiring employees to use vacation or sick leave for jury duty, cannot take adverse employment action against employees for jury duty absences, and cannot require shift workers to start work within certain time periods following jury duty. Additionally, the Fair Labor Standards Act currently restricts employers’ ability to reduce certain salaried employees’ pay when they are serving on a jury.

The bill would require employers to pay employees their regular compensation and excuse employees from work for days that employees serve over 3 hours of jury duty. Also, employees must give notice to their immediate supervisor and provide a copy of the jury duty summons within one working day after receiving the summons. The bill prohibits employers from discharging or discriminating against employees for jury duty if the required notice was provided. Most importantly, employees who are discharged, demoted, or suspended in violation of the law may seek reinstatement and reimbursement for lost wages, benefits, attorneys’ fees and court costs.

Under current Virginia law and the proposed legislation, employers may deduct any compensation the employee receives for jury duty. The bill is currently before the House’s Commerce and Labor Committee.


Katie Lipp is an associate attorney for the Washington, DC regional business law firm Berenzweig Leonard, LLP. She can be reached at KLipp@BerenzweigLaw.com.

Can Employers Refuse to Hire Someone Because They Are Unemployed?

In this challenging economy, unemployed individuals are looking for any way to find suitable employment. However, in a recent article posted on AOL Jobs, employers across the country explained that they tend to stray away from hiring the unemployed citing reasons such as not knowing why an unemployed worker lost his or her job.  Even though employers may have a preference to avoid hiring the unemployed, the question arises, is it legal to discriminate against someone because they are unemployed?

There is no federal law prohibiting hiring decisions based on unemployed status. That being said, several states have recently taken it upon themselves to implement laws prohibiting this type of hiring discrimination, notably, the District of Columbia. In 2012, the District of Columbia passed a law which prohibits DC employers from failing or refusing to consider for employment, or failing or refusing to hire, an individual as an employee because of his or her unemployed status. DC employers should pay careful attention to this law as it essentially adds unemployed status as a protected category of discrimination. Presently, Virginia and Maryland do not have unemployed status as a protected category.

Though the federal discrimination laws have never applied to unemployed status, there is a movement through a new federal law that has been proposed to prohibit discrimination based on unemployment status nationwide. The proposed American Jobs Act would in essence provide the equally broad coverage of Title VII of the Civil Rights Act of 1964 to the unemployed. Essentially, if enacted, the American Jobs Act would prohibit unemployment discrimination in all facets of employment, notably hiring, to employers with 15 or more employees.

Congress has not yet approved this law; however, employers nationwide should pay careful attention to the proposed Act as it could significantly alter the hiring process.  Even if not passed, employers should be aware of the growing trend from state legislatures to pass state specific laws prohibiting this type of discrimination. It is glowingly apparent that the hiring process has received much greater legislative attention, likely due to the increased unemployment and fewer hiring opportunities. Employers should regularly consult with their attorney to ensure whether or not their state prohibits this type of discrimination and update their employee handbook and hiring practices to be compliant with state and federal law.

The author, Nick Johnson, is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP.  Nick can be reached at NJohnson@BerenzweigLaw.com.

Government Continues to Scrutinize Workplace Social Media Policies

Concerned about its image and the protection of its employees, retail giant Costco enacted a policy restricting employees from making statements on social media sites such as Facebook or Twitter that:

“. . . damage the company, defame any individuals or damage any person’s reputation.”  

The Federal Government caught wind of Costco’s social media policy, and brought an action to stop it on the ground that the policy interfered with the right of Costco employees to band together to improve workplace conditions.  Costco defended the policy by saying it was merely trying to protect the company and its employees from online harassment and disparagement.

The National Labor Relations Board (NLRB) recently ruled that Costco’s policy violated the right of all employees (even non-union employees) to improve workplace conditions.  This is a tough decision for many companies to swallow, since on the surface it appears that Costco’s social media policy was aimed at the type of conduct that would be labeled defamation or disparagement.  But it is actually consistent with many other recent decisions from the NLRB clamping down on any company provisions that it feels could have a chilling effect on the ability of employees to protest against work conditions.

Traditionally, the NLRB has been associated with union workplaces.  But with the decline of union membership nationwide, the NLRB has become more and more active in enforcement actions related to non-union employers.  Social media policies such as the Costco policy at issue in this case have become a prime target of the NLRB’s enforcement arm.  Companies that have not had their employee handbook reviewed in a few years would be wise to undergo a qualified legal review.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Are Child Care Duties Protected Under Federal Workplace Laws?

A recent case from the Alexandria, Virginia Federal Court addressed the issue of whether an employee’s child care responsibilities were protected under federal discrimination laws.  A male pharmaceutical sales rep was supposed to start work each day at 8:00 a.m.  Under an arrangement he had with his working wife, however, he needed to drop his child off at school at 8:30 a.m. four days a week, and therefore he could not start work on those days until roughly 9:00 a.m.  His supervisor told him that this later start time was not acceptable, and asked why his wife could not drop their child off at school instead.  The male rep was not the only employee who had kids, but he was the only male rep whose wife also worked outside the home.

The rep complained to Human Resources that he was being singled out because of his family responsibilities, and that the supervisor’s comments were based on a stereotype that “it’s the wife’s job” to do things such as taking the kids to school.  He eventually sued the company for gender discrimination.

A federal judge in Alexandria recently dismissed the employee’s case prior to trial, after concluding that the company’s 8:00 a.m. start time policy was applied uniformly to all employees, regardless of gender and regardless of whether an employee had children or not.  The court pointed out that federal discrimination laws do not protect against discrimination  that is based on caregiver responsibilities.  The court added that it would be a violation of federal discrimination laws if the company had treated mothers differently than fathers in terms of scheduling.

Had the company been in the District of Columbia however, the result may have been different as D.C. is one of two states (Alaska being the other) that explicitly outlaws discrimination in the workplace based on family responsibilities.  

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.