Monthly Archives: January 2016

January 29, 2016

EEOC Proposes To Collect Pay Data From Employers

Wiletsky_MBy Mark Wiletsky

The U.S. Equal Employment Opportunity Commission (EEOC) plans to collect pay data from employers with more than 100 employees in order to reveal potentially discriminatory pay practices. Through a proposed revision to the Employer Information Report (EEO-1), large employers will report the number of employees by race, gender, and ethnicity that are paid within each of 12 pay bands. The revision is expected to apply to the September 30, 2017 EEO-1 reports.

By gathering this new pay data by race, gender, and ethnicity, the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) intends to identify pay disparities across industries and occupational categories. These federal agencies plan to use the pay data “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” The agencies also believe the data will assist employers in promoting equal pay in their workplaces.

Employers To Be Covered By Revised EEO-1 

Employers with 100 or more employees, including federal contractors, would be required to submit pay data on the revised EEO-1. Federal contractors with 50-99 employees would not be required to report pay data, but still would be required to report sex, race, and ethnicity, as is currently required.

Pay Bands For Proposed EEO-1 Reporting 

Under the EEOC’s proposal, employers would use employees' total W-2 earnings for a 12-month period looking back from a pay period between July 1st and September 30th. For each of the EEO-1 job categories, the proposed EEO-1 would have 12 pay bands. Employers would tabulate and report the number of employees whose W-2 earnings for the prior 12 months fell within each pay band.

The proposed pay bands mirror the 12 pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

(1) $19,239 and under;

(2) $19,240 – $24,439;

(3) $24,440 – $30,679;

(4) $30,680 – $38,999;

(5) $39,000 – $49,919;

(6) $49,920 – $62,919;

(7) $62,920 – $80,079;

(8) $80,080 – $101,919;

(9) $101,920 – $128,959;

(10) $128,960 – $163,799;

(11) $163,800 – $207,999; and

(12) $208,000 and over.

The EEOC published a Question & Answer page on its website to help explain how the pay data would be reported.

Comment Period to Follow 

The EEOC’s announcement of the pay data collection on the revised EEO-1 coincides with a White House commemoration of the seventh anniversary of the Lilly Ledbetter Fair Pay Act. The proposed changes will be officially published in the Federal Register on February 1, 2016. Interested parties and members of the public may submit comments for the 60-day period ending April 1, 2016.

We expect that a significant number of employers, business organizations, and industry associations will submit comments, opposing this additional reporting requirement. Groups also may challenge the changes in court. We will keep you posted as this proposal goes forward.

In the meantime, if your organization has concerns about its pay practices, now is a good time to review those practices and proactively address any troubling issues.

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January 28, 2016

Inclement Weather: Tips for Handling Absences and Pay When Bad Weather Blows In

Vilos_JBy Joanna Vilos 

Blizzards, flooding, tornadoes – parts of the country have been slammed with bad weather recently. What should you do if inclement weather shuts down your business or makes it impossible for employees to get to work? How should you handle absences and tardiness when employees are late or can’t get to work at all due to bad weather? Do you have to pay employees when you send them home early because a blizzard is moving in? Here are some tips, originally posted in November 2013, for addressing inclement weather situations.

Bad Weather Absences and Tardiness

Generally, it’s up to your company to decide how to handle weather-related absences and tardiness. Private employers may determine whether such absences and tardiness will be considered unexcused or excused, what the proper call-in procedures are and if employees may make up the missed time on another day that week. Of course, if you have employees who are covered by a collective bargaining agreement or an individual employment agreement that addresses inclement weather situations, you’ll need to abide by the applicable contractual provisions.  

Pay Concerns for Time Missed Due to Inclement Weather 

Pay issues related to inclement weather days are, in many ways, dependent on your company policies as well. Under the Fair Labor Standards Act (FLSA), you don’t need to pay non-exempt employees for time not worked, meaning you don’t need to pay non-exempt employees for time missed due to weather-related reasons. This applies whether your business completely shuts down for inclement weather, or if it remains open and individual employees can’t report to work.

Of course, your company may choose to pay non-exempt employees under inclement weather conditions, perhaps when your business sends workers home or closes completely. Alternatively, you may choose to allow or require employees to use vacation or other accrued paid time off to receive pay during inclement weather days. Such pay policies go above what is legally mandated for non-exempt employees so your company should decide in advance how it will pay employees when weather interferes with your business operations. 

Exempt employees, on the other hand, can’t have their salaries reduced “for absences occasioned by the employer” so if your company closes due to bad weather for less than a full workweek, you must pay exempt employees their full salary for that week. Even if your business stays open but an exempt employee fails to report to work due to the weather, you need to be cautious about salary deductions. Under the FLSA, if an exempt employee misses an entire day of work due to adverse weather conditions when the employer is open for business, the employer may lawfully deduct one full-day’s absence from his or her salary. Employers may not, however, deduct pay for partial-day absences. In addition, in today’s business environment, many exempt employees may be able work from home on bad weather days thanks to technology such as remote access to computer systems, cell phones and call forwarding, email and other telecommunication devices. If an exempt employee is able to work remotely, you should not deduct pay even if inclement weather keeps the employee out of the office.

Adopt an Inclement Weather Policy

Advance planning will help you avoid the last minute uncertainties of managing absences and pay issues when the weather turns sour. Decide ahead of time how you will address the following:

  • Who will decide if/when your business closes due to inclement weather? Is the decision contingent on any specific factors, such as community declaration of a snow emergency, shut down of the public transportation system or accumulation of “x” inches of snow?
  • How will you communicate a business closure/snow day to employees – will you use a call-in hotline? Text messages? A phone tree? Television business closure list?
  • Are there essential personnel who are expected to report to work even if the rest of your operations are closed?
  • Can employees work remotely and if so, what are your expectations for them to do so when inclement weather prevents employees from working in your facility?
  • What is your call-in procedure if an employee can’t make it to work due to the weather?
  • Will you excuse employees’ absences and/or tardiness that are caused by bad weather?
  • If you shut down or send employees home due to adverse weather, will you pay non-exempt employees for the missed time?
  • May/must non-exempt employees use vacation time or other accrued time off to get paid for time missed due to bad weather?

Establish an inclement weather policy now, before it is needed, and let your employees know how these issues will be handled. A good policy communicated to employees will help reduce everyone’s anxiety when the cold and snow blows in.

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January 26, 2016

Top Tip For The New Year: Train Your Supervisors

Ritchie_JBy Jason Ritchie 

We are just a few weeks into the new year and many New Year’s resolutions have already gone by the wayside. If you make just one work-related resolution this year, pledge to train your supervisors on key workforce management topics. Here are three compliance areas that should top your training list for 2016. 

1. Knowing Company Policy and Legal Obligations 

Because supervisors are the front-line company representatives who have the most day-to-day contact with employees, they need to know and understand your company policies. You need to train your supervisors on recognizing which company policies are applicable in various employment scenarios. Then, you must instruct your supervisors on how to enforce your policies in a consistent, uniform, non-discriminatory manner.

Supervisors also need to know their role in ensuring that your company complies with applicable employment laws. An individual in a supervisory role acts on behalf of the company and their unlawful actions toward employees can result in company (and in some cases, personal) liability.

Key topics for supervisor training on policies and employment laws should include:

  • Equal employment opportunity – how it applies to hiring, training, promotion, etc.
  • Discrimination and harassment – how to prevent it, what to do if observed, etc.
  • Retaliation – what triggers protections against retaliation, how to handle discipline after an employee has engaged in protected conduct, etc.
  • Family and Medical Leave Act (FMLA) and other medical leaves – recognizing requests for FMLA leave, limits on contacting the employee’s health care provider, restrictions on reaching out to the employee while out on leave, etc.
  • Reasonable accommodations – what may be required for disability and religious accommodations, how to handle accommodation requests, etc.
  • Inappropriate behavior by supervisors – provide specific examples of supervisor conduct or decisions that can lead to company liability, such as excluding female employees from certain job opportunities, name-calling/harassment, failing to stop others from harassing employees, etc.
  • Proper timekeeping and pay issues – prohibiting “off-the-clock” work, need for accurate time records, how to handle unapproved overtime, etc.

2. Proper Documentation and Retention of Records

A key duty of supervisors is to properly document workplace issues and the enforcement of company policies. But many supervisors are never trained on how to do that. They are thrown into a supervisory role with access to a myriad of HR forms and left to their own devices to complete them. Or, they are asked to conduct interviews, performance evaluations, and discipline meetings without being trained on what to (and not to) write down.

Make documentation an essential training session for your supervisors. Be sure to include the following documentation skills:

  • Make records at the time of, or shortly following, the event – don’t wait weeks or months to create your documentation
  • Focus on the facts, not generalizations or subjective comments
  • Clearly state performance expectations
  • Avoid potentially discriminatory statements
  • Don’t exaggerate or embellish
  • Cite specific company policies, as applicable
  • Set specific deadlines for follow-up

Documentation may be the most disliked part of a supervisor’s job. Make it more palatable by explaining how important documentation will be when defending an employee lawsuit and why it is essential that it is done correctly. Also include training on where each type of document should be kept (e.g., personnel file, training file, etc.) and for how long. The time spent training supervisors on proper documentation will pay off each time your organization is asked to defend an employment decision.

3. Managing The Injured Employee

When an employee is injured or becomes ill, supervisors face a lot of decisions. How do we cover the employee’s shifts? How do we complete that important project that the employee was spearheading? What do we do with work restrictions? What paperwork must be completed? In addition to handling operational and business concerns, supervisors need to understand the legal rights of employees that may come into play.

Depending on the circumstances, managing an injured or ill employee can involve the intersection of workers’ compensation law, FMLA leave, disability accommodations, and company policies. Even if HR or an outside administrator handles portions of the process, supervisors should be trained on employee and employer rights and responsibilities under these laws. You will help reduce the risk of FMLA, disability, and workers’ comp claims by training supervisors on:

  • Workers’ compensation procedures, including the importance of reporting every workplace injury (no matter how minor), how workers’ comp leave is handled, and what light duty assignments may be available
  • Specifics related to your FMLA policy, including who handles the FMLA paperwork, confidentiality considerations, job-restoration rights and prohibition on retaliation
  • How disability law can factor into decisions, if the employee’s condition is deemed a disability, including issues related to extending the amount of leave, and other accommodations that may be required to allow the employee to perform the essential functions of the job
  • What each supervisor’s role is in regards to these employer duties – which tasks and decisions are made by HR and which are made by the supervisor, when should a supervisor consult with others in the organization before taking action related to an injured (or formerly injured) employee, etc.

Make Training Sessions Practical 

Start 2016 off right by creating a training plan for your supervisors on these essential topics. Then, keep your resolution alive by executing the plan and offering practical, example-driven training to your front-line supervisors. Be sure to allow plenty of time for questions in a non-intimidating learning environment. Training time now will pay enormous dividends down the road in better decision-making by supervisors resulting in fewer employment claims by employees.

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January 20, 2016

Unaccepted Settlement Offer of Complete Relief Does Not Moot Plaintiff’s Case

Wisor_SBy Sarah Wisor

In a 6-to-3 decision, the U.S. Supreme Court decided that a plaintiff who rejects a settlement offer or an offer of judgment of complete relief may continue litigating the case. Relying on principles of contract law, the Court ruled that once a settlement offer is rejected by the plaintiff, it has no continuing effect. Because the plaintiff remains empty-handed, he may continue to pursue all available remedies in court, on both an individual basis and on behalf of a class. Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016).

Resolving Circuit Court Split on Whether Offer Moots Claim

The dilemma is this: if a defendant offers the plaintiff complete monetary and all other relief that he is entitled to recover on his claims, what is left to be decided or awarded? If there is no case or controversy, a federal court must dismiss the case as moot pursuant to Article III of the Constitution.

The Supreme Court agreed to hear this case because the Circuit Courts of Appeals did not agree on this issue. The First, Second, Fifth, Seventh, and Eleventh Circuit Courts of Appeals had previously ruled that an unaccepted offer does not render a plaintiff’s claim moot. However, the Third, Fourth, and Sixth Circuits had ruled oppositely, holding that an unaccepted offer of complete relief can moot a plaintiff’s claim.

Justice Ginsburg, writing for the majority, pointed to Justice Kagan’s words from her dissent in an earlier case: “When a plaintiff rejects such an offer – however good the terms – [the plaintiff’s] interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief.” Therefore, the Court reasoned, a case is not rendered moot by an unaccepted offer to satisfy the plaintiff’s individual claim.

Chief Justice Roberts Dissents

Chief Justice Roberts dissented, joined by Justices Scalia and Alito. (Justice Thomas concurred with the majority in its holding, but not its reasoning, writing a separate concurrence.) The dissenting justices stated that the “federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitlement to relief already there for the taking.” The dissent would have rendered the case moot on the basis that there is no case or controversy after a defendant agrees to fully redress the injury alleged by a plaintiff.

Can Defendants Still “Pick Off” Named Plaintiffs?

Settling a named plaintiff’s individual claim prior to class certification is appealing to defendants who want to avoid the greater liability and cost of a class action.  While this “picking off” strategy may have been undermined, in part, by the Supreme Court’s decision, the Court did not decide whether payment of complete relief would render the case moot.

This case arose when Jose Gomez sued a marketing firm, Campbell-Ewald, for sending him text messages without his permission. Gomez filed a nationwide class action, alleging violations of the Telephone Consumer Protection Act (“TCPA”), which permits consumers to recover treble damages of $1,500 per call/text message, plus litigation costs. Gomez sought the maximum statutory damages, costs, attorney’s fees, and an injunction against Campbell-Ewald barring further unsolicited messaging.

Before Gomez could file a motion for class certification, Campbell-Ewald offered to settle Gomez’s individual claim and filed an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. Campbell-Ewald offered to pay Gomez $1,503 per unsolicited message and his court costs, but not attorney’s fees, which Campbell-Ewald argued were not available under the TCPA. Campbell-Ewald also offered to stipulate to an injunction that would bar it from sending text messages in violation of the TCPA. Gomez rejected the settlement offer and allowed the Rule 68 offer of judgment to lapse. Campbell-Ewald then sought dismissal of Gomez’s case, arguing that its offer of complete relief rendered his claim moot.  The Supreme Court disagreed.

However, the Court did not decide whether the result would be different if a defendant actually deposits the full amount resolving the plaintiff’s individual claim in an account payable to the plaintiff, with the court then entering judgment in that amount. As Chief Justice Roberts stated in his dissent, the good news is that this case is limited to its facts, and that issue has been left for a future case.

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January 19, 2016

An Uncomfortable, But Not Hostile, Work Environment

Cave_BBy Brad Cave

Certain workplace behavior may be unusual, uncomfortable or downright weird, but may not be unlawful. Do you want to take the chance of knowing what crosses that line?

Imagine receiving this complaint from an employee: “My supervisor frequently compliments my appearance, clothing and cologne. He touched my back and buttocks, claiming he was showing me where he was experiencing back pain. He instructed me to participate in two body-fat contests requiring me to wear a speedo where he again complimented my appearance and tried to touch my buttocks. He repeatedly asked me to join him for drinks during a company event.”

Do these allegations suggest a hostile work environment? Would your company be liable for sex discrimination?

Real Case Offers Guidance

These facts arose in an actual lawsuit filed by Bryan McElroy, a former district sales manager for American Family Insurance (AFI). McElroy was fired by his supervisor, Tony Grilz, after failing to meet sales goals and engaging in insubordinate behavior. After his termination, McElroy filed a charge with the Equal Employment Opportunity Commission (EEOC) and later filed suit in federal court, alleging, among other things, that he was subjected to a hostile work environment based on the above-recited behavior by Grilz.

Uncomfortable Work Behavior

The federal court acknowledged that “some of Grilz’s conduct could make many people uncomfortable.” But the district judge ruled that the conduct did not rise to the level of being so objectively offensive that it created a hostile or abusive work environment. The district court rejected McElroy’s hostile work environment claim and granted summary judgment to AFI.

On appeal to the Tenth Circuit Court of Appeals (whose decisions apply to employers in Colorado, Wyoming, Utah, Kansas, and New Mexico), McElroy argued that if the conduct could make many people uncomfortable, a jury could find it sufficiently offensive to support his hostile work environment claim. The Tenth Circuit disagreed. It failed to see how behavior that was capable of causing “mere discomfort” would necessarily alter the conditions of employment so as to create a hostile work environment.

The court stated that to succeed on a hostile work environment claim, an employee must establish that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The court reiterated that “even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard” necessary for an actionable claim under Title VII. The court affirmed the grant of summary judgment in favor of AFI and against McElroy on his hostile work environment claim. McElroy v. Am. Family Ins., No. 14-4134 (10th Cir. Oct. 30, 2015).

Handling Questionable Complaints

What would you do if you received a complaint based on conduct such as what McElroy reported? Act on it? Ignore it? Here are some tips for handling complaints that may, or may not, rise to the level of severe or pervasive conduct.

Tip #1: Treat Each Complaint Seriously

It may be tempting to dismiss complaints of workplace harassment that may seem minor or inoffensive to you. Don’t do it. You never know if the complainant is telling you the full story or if other, more serious allegations are waiting to be told. In addition, failing to look into a report of workplace harassment will negate certain defenses if the complainant decides to file a lawsuit.

Tip #2: Conduct an Investigation

All reports of workplace harassment should be investigated. Hopefully, your investigation will show that no additional inappropriate behavior is occurring and that the reported conduct was an isolated, non-severe incident. You may, however, find that the conduct is more widespread. Perhaps other employees reporting to the same supervisor have experienced similar conduct, or the conduct has been escalating to involve more physical contact. You need to dig deeper to get the full picture of what the employee and his/her co-workers may be experiencing.

Tip #3: Take Action To Stop Inappropriate Behavior

Whether the behavior rises to the level of creating a hostile work environment or not, take action to stop it. Talk to the person acting inappropriately and explain that conduct such as touching and making comments about other employees’ looks leads to an uncomfortable work environment and must cease. Follow up with the complainant to make sure that he or she is not experiencing further inappropriate behavior or retaliation. Nip such conduct in the bud so that mere uncomfortable behavior does not escalate to unlawful harassment.  

Tip #4: Train Supervisors and Employees Annually

Conduct annual training on sexual harassment and other inappropriate workplace behavior in order to educate your workforce on your harassment policies and complaint-reporting mechanisms. Use training sessions to reinforce your commitment to keeping your company free of discrimination and retaliation. Make sure managers and supervisors are trained on recognizing and responding to complaints of workplace harassment.


Unlawful workplace harassment is tricky to define with any certainty. Conduct that one judge or appellate court finds as causing “mere discomfort” may be deemed sufficiently severe or pervasive so as to create a hostile work environment by another judge or court. Your best practice is to keep inappropriate behavior out of your workplace, follow the tips above and stay out of court in the first place.

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January 12, 2016

Anticipating Revisions To The “Persuader Rules” – What You Need To Know

Mumaugh_BBy Brian Mumaugh

As early as March, the U.S. Department of Labor (DOL) plans to issue its final rules that will significantly narrow the type of union-avoidance activities that employers and their labor attorneys and relations consultants may engage in without having to report those activities to the government. The tightening of the so-call “persuader rules” will mean that employers who utilize labor relations consultants, including lawyers, to help with union-avoidance or collective bargaining activities will need to disclose many more of those activities, and the fees paid for them.

Evolution of the “Persuader Rules”

In the late 1950’s, because of perceived questionable conduct by both unions and employers involved in union organizing and collective bargaining campaigns, Congress enacted the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA seeks to make labor-management relations more transparent by imposing reporting and disclosure requirements on labor organizations and their officials, employers, and labor relations consultants.

Under the LMRDA, the reporting requirements for employers and their labor consultants are triggered when they undertake activities intended to directly or indirectly persuade employees to exercise (or not to exercise) the employees’ right to organize and bargain collectively through representatives of their own choosing. Employers must file a Form LM-10 (Employer Report) that discloses all payments made to unions and union officials, persuader payments made to employees and employee committees, persuader agreements/arrangements made with labor relations consultants, including lawyers, which includes the amount and dates of payments made to such consultants, and any expenditures made to interfere with, restrain or coerce employees, or otherwise obtain information concerning employees or a labor organization. Labor relations consultants must file a Form LM-20 specifying, among other things, information about the consultant and the nature of the “persuader activities” to be performed. Under the LMRDA, the DOL must make all such forms available for public inspection.

The “Advice” Exemption

The LMRDA contains an exemption from the reporting requirements for persuader activities for services that give “advice” to the employer. Except for brief periods when the LMRDA was first enacted and again in 2001, the DOL has interpreted this “advice” exemption to apply to activities where a consultant or lawyer prepares a speech or documents for use by the employer, or revises materials initially drafted by the employer. In other words, as long as the consultant or lawyer did not directly deliver or disseminate speeches or materials to employees for the purpose of persuading them with respect to their organizational or bargaining rights, behind-the-scenes activities where the consultant/lawyer drafts materials for use by the employer would not trigger a reporting obligation. Under the proposed rules, that is about to change. 

Expanded Proposed Interpretation of “Advice” Exemption

Believing its long-standing interpretation of the “advice” exemption to be overly broad, the DOL proposed a narrower interpretation that would require reporting in any case in which the agreement or arrangement with a labor consultant/lawyer in any way calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given. The revised interpretation would define reportable “persuader activity” to include activities where a lawyer or consultant provides material or communications to, or engages in other actions, conduct, or communications on behalf of an employer that at least in part, has the objective of persuading employees concerning their rights to organize or bargain collectively. Exempt “advice” would be limited to recommendations, verbal or written, regarding an employer’s decision or course of conduct.

Stated examples of covered persuader activities that would require disclosure include:

  • drafting, revising, or providing written materials for presentation, dissemination, or distribution to employees
  • drafting, revising, or providing a speech, video, or multi-media presentation to be presented, shown or distributed to employees
  • drafting, revising, or providing website content for employees
  • planning or conducting individual or group employee meetings, and training supervisors or employer representatives to do the same
  • coordinating or directing the activities of supervisors or employer representatives
  • establishing or facilitating employee committees
  • developing personnel policies or practices
  • deciding which employees to target for persuader activity or disciplinary action
  • conducting a seminar for supervisors or employer representatives

The DOL justifies this expansion of the reporting circumstances, in part, because the role of outside consultants and law firms in managing employers’ anti-union efforts has grown substantially over the years, citing reports that somewhere between 71% and 87% of employers facing organizing drives hire third-party consultants to assist in their counter-organizing efforts. The DOL also states that underreporting of persuader activities is a problem as “employees are not receiving the information that Congress intended they receive.” Regardless of its reasoning, the DOL’s proposed change of its 50-year old interpretation will result in significant burdens on both employers and their consultants.

March 2016 Is New Target Date for Final Rule

Almost five years has passed since the DOL published its proposed rule changing the “persuader rules.” After numerous delays in publishing its final rules, the DOL’s regulatory agenda indicates that it expects to issue the final “persuader rules” this March. We will let you know when the final rules are published, or if the timeline changes. In the meantime, you might want to take advantage of the next few months before the new rules kick in to obtain union-avoidance materials and training from your consultants now. At a minimum, talk to your labor relations consultant/labor lawyer about the upcoming changes so that you are aware of how they may impact your labor strategies in the future.

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January 7, 2016

Workers’ Comp: Is A Fatal Heart Attack Following Work Exertion Compensable?

Vilos_JBy Joanna Vilos

An employee suffers a heart attack after engaging in physical labor at work. He later dies and his spouse seeks death benefits under the state Workers’ Compensation Act.  We all know that lots of things can contribute to a heart condition.  When does a heart attack justify workers compensation benefits? The Wyoming Supreme Court recently diagnosed the conditions when benefits are available under its state law.

Workers’ Comp Statute Sets Forth Conditions For Benefits

Pursuant to Wyoming’s workers’ compensation law, benefits for employment-related coronary conditions are payable only if three conditions are met:

  1. There is a direct causal connection between the work performed and the cardiac condition;
  2. The exertion that caused the cardiac condition occurred during the actual period of employment stress that was clearly unusual to or abnormal for employees in that particular job, irrespective of whether the employment stress is unusual to or abnormal for the individual employee; and
  3. The acute symptoms of the cardiac condition are clearly manifested within four hours of the exertion that allegedly caused the cardiac problem.

In order to seek such benefits, the claimant must provide competent medical evidence to establish these three conditions.

Case In Point: Maintenance Worker Dies After Work-Related Heart Attack

In a recent case decided by the Wyoming Supreme Court, 68-year-old Robert Scherf died after suffering a heart attack while working at his job servicing a front end loader. Scherf v. State Ex Rel. Dep’t of Workforce Serv., 2015 WY 130. Despite being a long-time smoker, with chronic hypertension, hyperlipidemia and renal insufficiency, Scherf was a physically active man who did not appear to have any physical difficulties performing his work as an oiler for Mountain Construction Company.

While working at an out-of-town jobsite near Greybull, Wyoming, Scherf began feeling very nauseated and light-headed, and thought he may have pulled some rib muscles. He had just exerted a great deal of effort to open and close an access panel on a loader that he was servicing. The following day, he felt poorly so did not go to work. His wife talked to him by phone and he sounded incoherent and hung up on her. Concerned, she contacted a co-worker and the company president to check on him. The president visited him in person and thought Scherf looked tired, sick and wasn’t making much sense, so suspecting a heart attack, called an ambulance. Scherf was diagnosed with acute myocardial infarction with cardiogenic shock and after unsuccessful treatment, died the next evening.

Scherf’s wife sought death benefits under the Wyoming workers’ compensation statute. The Workers’ Safety and Compensation Division denied benefits on the grounds that there was no indication that the work being performed when Scherf suffered the heart attack was unusual or abnormal for his job. After a hearing, the hearing examiner agreed with the Division and upheld the denial of benefits. Mrs. Scherf sought review by the district court which affirmed the decision. Her appeal to the Wyoming Supreme Court, however, yielded different results.

Court Finds Evidence That Exertion Was Unusual or Abnormal For The Job

A cardiologist’s expert opinion established the first and third conditions for benefits, namely that the Scherf’s myocardial infarction began while he was at work, and was caused by the heavy exertion while straining to open and shut an access panel on a loader. The only issue was whether the exertion experienced by Scherf was clearly unusual or abnormal for oilers in the industry.

Reviewing the testimony of numerous Mountain Construction employees, including its president, the Court concluded that the exertion Scherf experienced that day in opening and closing the loader’s access panel was indeed unusual to or abnormal for oilers. Scherf had told his wife on the phone that the panel had been caked with mud and was stuck, making it very difficult to open and close. Yet, the company president, superintendents, and other oilers testified that opening the access panel was not normally difficult and was not a strenuous task.

Because Scherf’s widow testified to his extra exertion on the day he suffered a heart attack, the Court decided that Scherf had experienced employment exertion that was unusual to or abnormal for oilers, thus meeting the second and final condition for workers’ compensation benefits. The Court ordered that death benefits be paid to Scherf’s widow.


Losing an employee is never easy. A prolonged legal battle over workers’ compensation benefits can add stress and pain to an already difficult situation. Knowing how Wyoming courts determine whether cardiac-related conditions are compensable can help you pick and choose your battles wisely. When in doubt, be sure to consult with your employment counsel.

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January 4, 2016

Pregnancy-Related Accommodation Bill To Be Introduced in Colorado Legislature

Dawson_MBy Micah Dawson

Following the national trend, a bill to be introduced during Colorado’s next legislative session intends to expand protection for pregnancy-related leave. Specifically, the draft bill would require employers to provide reasonable accommodations to applicants and employees for conditions related to pregnancy and childbirth. If passed, the bill would mean that employers must engage in an interactive process to assess potential reasonable accommodations, provide notice of employee rights, and refrain from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

With the 2016 Colorado legislative session set to convene on January 13th, here are the highlights of the draft bill.

Reasonable Accommodation Requirement

Under the draft bill, an employer would commit an unfair employment practice if it refuses to make a reasonable accommodation for a job applicant or an employee for conditions related to pregnancy or childbirth, unless doing so would impose an undue hardship on the employer’s business. Employers would need to engage in a good-faith interactive process with the employee to determine possible, effective reasonable accommodations.

Most employers should be familiar with the interactive process as it should be used when assessing accommodations for qualified individuals with a disability. Possible reasonable accommodations listed in the draft bill include more frequent or longer break periods, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, time off to recover from childbirth, acquisition or modification of equipment, seating, assistance with manual labor, modified schedules, and break-time and private non-bathroom space for expressing breast milk. Employers would not be required hire new employees, or discharge, transfer, or promote another employee in order to make a reasonable accommodation.

The bill would further prohibit employers from requiring an applicant or employee to accept a reasonable accommodation that the individual chooses not to accept. The bill also would prevent employers from requiring an employee to take leave if there are other reasonable accommodations that may be made. These provisions seem to suggest that the employee has veto power over offered accommodations. This differs significantly from disability law as under the Americans with Disabilities Act (ADA), an employer meets its reasonable accommodation duty if it provides an accommodation that allows the employee to perform the essential functions of his or her job, even if that accommodation is not the one preferred by the employee.

Undue Hardship Analysis 

An “undue hardship” is defined in the bill as an action requiring significant difficulty or expense proven by the employer. Factoring into that determination would be:

  • the nature and cost of the accommodation
  • the overall financial resources of the employer
  • the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
  • the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

If the employer provides a similar accommodation to other classes of employees, it will be presumed that the accommodation does not impose an undue hardship. Employers would have to rebut that presumption if they fail to offer the same or similar accommodation for pregnancy-related conditions.

Retaliation Prohibited 

Employers would be prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined in the bill as a retaliatory action, such as the failure to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits.

Notice and Posting Requirement

If this bill were to become law, employers would be required to provide employees with written notice of their rights under this provision. New employees would have to be provided the written notice at the start of their employment. Additionally, employers would have ten days to provide the notice to individual employees who inform their employer of their pregnancy. There is also a provision to notify existing employees within a specified time after the effective date of the new law. Finally, employers would be required to post the written notice in a conspicuous place at their business in an area accessible to employees.

Likelihood of Bill Passage

Remember that at present, this bill is only a draft and after it is introduced in the House, it will be assigned to a committee. There are many opportunities for legislators to amend, add, or delete provisions in the bill throughout the legislative process.

That said, some form of the bill stands a reasonable chance of passage within the Democratically controlled Colorado House. It has less chance of success in the Republican-controlled Senate. We will watch to see if other legislators add their names as co-sponsors, or if an alternative (perhaps less onerous) bill is introduced in the Senate. We will track this bill and keep you informed of any important developments.

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