Briefing September 20, New Orleans

Briefing October 11, Baton Rouge

In Donnelly v. Greenburgh Central School District No. 7, a New York high school teacher claimed that after taking a seven day FMLA leave for surgery, he was denied tenure. The teacher had received strong performance reviews which he claimed changed after his FMLA leave. The teacher alleged that  negative reviews were used against him in his tenure review.  The school district claimed he didn't qualify for FMLA. Under the teacher union's collective bargaining agreement (CBA), both sides agreed the Plaintiff worked seven (7) hours and fifteen (15) minutes per day for 172 days during the twelve-month period prior to his leave. This 1247 hours fell short three hours of the required 1250 hours to qualify for FMLA.  

 

In opposition to the Defendant's motion for summary judgment, the Plaintiff argued that he and "most teachers regularly work in excess of a total of one hour before and after class," and that he "typically worked a total of 1.5 hours before and after class every day." Moreover, his contention was further supported by a June 2006 performance evaluation that stated he "arrive[d] to work in a professional manner; early, on time and often. He often stay[ed] late into the afternoon working with his kids to ensure their success."    

 

The 2nd Circuit Court of Appeals decision reversed a district court's judgment advancing the case to a jury trial, finding that "This is not a case in which an employee with a 9-to-5 job with defined office tasks claims to engage in mysterious unspecified additional activities off-site. The CBA acknowledges that job-required tasks that are part of a teacher's primary work responsibility are regularly performed by teachers outside the hours in which the students are in the classroom."

 

This case is a strong reminder that employers should keep accurate records of the hours worked by employees and advance approval of all additional hours worked. The full decision can be found here.

Effective August 1, 2012, the Louisiana's Workers' Compensation Medical Treatment Guidelines require new forms along with Utilization Rules and Policies which are now in effect. 

 

The full article reviewing these changes, by BSW partner Trent Oubre, can be found here.

Representative Hansen Clarke introduced H.R. 6220 to the House of Representatives on July 26, 2012. The bill, titled "Ban the Box Act", would prohibit an employer from inquiring whether an applicant for employment has been convicted of a criminal offense, except in certain circumstances. These circumstances are "after a conditional offer of employment has been extended to the applicant" or "where the granting of employment may involve an unreasonable risk to the safety of specific individuals or to the general public".

 

If passed, employers would need to take steps to change their employee application and selection process. The full proposed bill can be found here.