Melanie J. Whittamore-Mantzios

Melanie J. Whittamore-Mantzios

Are you familiar with the National Labor Relations Act (“NLRA”)? Do you think that the NLRA only applies to employers who have unions?  If you do, you need to think again.  Does your employment manual address email usage on company’s computers? Does your employment manual limit what employees can say on social media about your company?  Does your employment manual prohibit employees from discussing their salaries with other employees? If you answered yes to the last three questions, then you may be in violation of Section 7 of the NLRA.  If you discipline your employees for violating these policies, then you would be in violation of section 8(a)(1) of the NLRA which prohibits disciplining employees for engaging in concerted activity regarding their working conditions and wages.

Wednesday, 04 November 2015 10:22

Pregnancy discrimination in employment

    Since August 30, 2015, the definition of qualified individual with a disability in the Nebraska Fair Employment Practice Act (“NFEPA”)includes an employee or job applicant who is pregnant, has given birth and or has experienced related medical conditions and who has a known limitation.  Neb. Rev. Stat. §48-1102(17) and §48-1107(2).  The definition of reasonable accommodation has also been amended to include the following as reasonable accommodations for an employee or job applicant who is pregnant, has given birth or has a related medical condition: “acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breast-feeding or expressing breast milk.” Neb. Rev. Stat. § 48-1102(11).
If a job applicant or employee is pregnant, has given birth, or has a related medical condition, it is considered discrimination for the employer to do any of the following:

Today the Nebraska Supreme Court in Fisher v. Payflex found that employees are entitled to earned and unused Paid Time Off (“PTO”) when they leave employment.  The court found PTO hours were indistinguishable from earned vacation time under Nebraska law.  Present Nebraska law requires that employees be paid for earned (or accrued) but unused vacation leave.  Payflex’s employment policy provided that employees accrued PTO during each pay period of continuous employment and that an employee could carryover no more than 200 hours of PTO. PTO could be used for vacation, sick time, and personal concerns.  The policy provided that Payflex would not pay their employees for unused PTO hours.  The policy set forth the number of hours an employee would earn of PTO per pay period per year.  The court found that because an employee could use all of the PTO time as vacation time PTO was the equivalent of vacation time.

If your employment policy provides that your employees earn or accrue PTO time just by continuing to be employed you will want to make sure you are paying your employees for their earned but unused PTO time upon separation.  Contact us if you have questions or would like to speak to an attorney experienced in employment law.

If you are an employer with more than 50 employees in a 75 mile radius the Family Medical Leave Act (“FMLA”) applies to your business. On March 27, 2013, in Dollar vs. Smithway Motor Xpress the Eighth Circuit Court of Appeals affirmed a finding that Smithwayviolated Ms. Dollar’s FMLA rights by firing her after she asked for leave to deal with depression.   Ms. Dollar had been employed as a Driver Manager for Smithway, an Iowa trucking company, since March 2006. 

The following is a more complete list of points that should be addressed in the written noticean employer gives to an employee after he or she makes a request for FMLA leave:

  1. The leave will be counted against the employee's annual FMLA entitlement;
  2. Whether a medical certification will be required, the necessary time to submit it, and the consequences of failing to do so;
  3. The employee's right to substitute paid leave and whether the employer will require paid leave to be substituted for FMLA leave and the requirements for any such substitution;

Your first question may be, "what is protected activity?" Protected activity can be any opposition done internally or externally to illegal discriminatory action or illegal activity of the employer. The opposition must be clear and specific. It is insufficient for the employee to complain verbally or in writing that he or she has been treated unfairly without identifying the unlawful basis for the unfair treatment.

This article is intended to give you the basics of a retaliation claim. In your practice you may be asked to defend an employer who has been accused of a retaliatoryemployment action or to represent an employee who has been the victim of retaliation. Retaliation claims are usually more dangerous for employers than the unfair or discriminatory treatment claims because the employee does not have to provethe underlying claim to be successful on a claim for retaliation.

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