July 31, 2013

Things are not always as they seem

Posted in Americans with Disabilities Act, Disability, Discrimination, Fair Labor Standards Act, Minimum Wage, Overtime, Reasonable Accommodation tagged , , , , , , , , , , , , , at 4:50 pm by Tom Jacobson

IMG_5116 Edited“Why is Sam sticking his fingers in Spencer’s mouth?” That’s what ran through my head a couple of years ago when I snapped this picture of one of my sons and a teammate working at a swim meet. When you look closely, you’ll see that things are not always as they seem.

Things are not always as they may seem in the legal world, either. A while back I wrote about an employee who was found eligible for unemployment benefits despite her failure to report to work for two months. For more on that story, click here.

There’s also the more recent case of Lucas v. Jerusalem Cafe, LLC. where a number of workers who were unauthorized aliens sued their employer for overtime and minimum wage violations under the Fair Labor Standards Act. Because they were unauthorized aliens, our first reaction might be to question why they would have a right to sue for a FLSA violation or even collect wages in the first place. That’s what the employer argued, but the court disagreed, noting that “The FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized aliens in violation of federal law.” Interestingly, the court also noted how the employer’s argument rested “on a legal theory as flawed today as it was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit income.”

But what if an employee sleeps on the job?  Shouldn’t he be fired? Not if waking him would be a reasonable accommodation for a disability under the Americans with Disabilities Act, according to the federal judge in Virginia who is presiding over the case of Riddle v. Hubbell Lighting, Inc.

Unemployment statutes, the ADA and the FLSA are just a few of the many employment laws where outcomes are not always what you might expect them to be. For a better idea of what those outcomes might be, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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August 31, 2011

Better late than never? Employee wins unemployment claim after two month absence

Posted in Absenteeism, Absenteeism, Attendance, Leaves of Absence, Misconduct, Unemployment Benefits, Unexcused Absence tagged , , , at 9:29 am by Tom Jacobson

In a case that proves that things are not always as they seem, a Minnesota employee has been awarded unemployment benefits despite her failure to report to work for two months.

The case, Genemo v. Donatelle Plastics, Inc., involves Hawi Genemo who was employed by Donatelle Plastics, Inc.  After learning that her mother was seriously ill in a remote area of Africa, Genemo requested and was granted a leave of absence to visit and care for her mother.  The leave was to run from April 21 to May 19, 2010, and she was also told she could request additional time off if needed.

Unfortunately, while in Africa Genemo encountered civil unrest and a lack of mail, electricity, phone service and Internet. Thus, she was unable to contact Donatelle about her situation.  Because of the lack of contact, Donatelle discharged her effective May 27, 2010.  Genemo returned in July, 2010.

Genemo was initially disqualified from unemployment benefits on the basis that her failure to keep in contact with her employer was employment misconduct. The Minnesota Court of Appeals disagreed.  Relying on Minn. Stat. § 268.095, Subd. 6(b)(8), the court noted that it is not employment misconduct when an employee is absent “with proper notice to the employer, in order to provide necessary care because of the illness, injury, or disability of an immediate family member of the applicant.”  Because the initial notice was proper and because further notice was deemed “impractical if not impossible,” the court ruled that even though Donatelle’s decision was reasonable, Genemo’s absence and failure to contact Donatelle was not employment misconduct, so she was deemed eligible for unemployment benefits.

The case reminds us that things are not always as they seem.  Here, the employee’s unique circumstances fit within a narrow exception in Minnesota’s unemployment statute.  The lesson is that jumping to conclusions about an employee’s situation can lead to costly litigation.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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