GANFER & SHORE, LLP
CLIENT EMPLOYMENT LAW ADVISORY
GANFER & SHORE, LLP TO HOST PANEL AND WINE-TASTING
Ganfer & Shore, LLP is pleased to invite clients and friends of the firm to a wine tasting, seminar, and tour to be held on November 17, 2011 at the New York Design Center. The panel discussion will focus on employment law and electronic discovery and is entitled “Sex, Tattoos, and E-Mail Blunders.” The panel discussion will include Steven J. Shore, Robert I. Gosseen, and Mark A. Berman. This event will include an optional tour of the Design Center located at 200 Lexington Avenue (at 32nd Street) from 4:00 to 5:00 p.m., and the Legal Panel at 5:00 p.m., followed by an expert-led wine-tasting. To sign up, please call Amarilys Garcia at (212) 922-9250, ext. 262, or e-mail her at email@example.com, prior to October 31, 2011.
IRS LAUNCHES NEW “VOLUNTARY WORKER CLASSIFICATION
SETTLEMENT PROGRAM” TO PROVIDE TAX RELIEF
TO EMPLOYERS THAT RECLASSIFY THEIR WORKERS
The IRS’s newly announced Voluntary Classification Settlement Program (“VCSP”) will grant tax relief to businesses and tax-exempt organizations that have been erroneously classifying their workers as non-employees or independent contractors, and now want to correctly treat these workers as employees. Employers will be afforded the opportunity to get into compliance by making a minimal paymentofan amount effectively equaling just over 1% of the wages paid to the reclassified workers duringthe previous year. No interest or penalties will be due, and the employers will not be audited by the IRS on payroll taxes related to these workers for prior years. Interested employers can apply for the program by filing Form 8952, “Application for Voluntary Classification Settlement Program,” at least 60 days before they want to begin treating the workers as employees.
To be eligible, an applicant business or tax-exempt must:
· Consistently have treated the workers in the past as non-employees or independent contractors;
· Have filed all required Forms 1099 for the workers for the previous three years; and
· Not currently be under audit by the IRS, the U.S. Department of Labor (“DOL”), or a state agency concerning the classification of these workers.
Employers should beware, however, that danger may lurk in accepting this deal as there is no bar to the IRS sharing your information with the DOL or state authorities, which would be free to swoop in to press claims for overtime, minimum wage, Workers’ Compensation, and unemployment insurance taxes relating to previously misclassified workers. Employers should, therefore, thoroughly discuss the pros and cons of entering into the VCSP with their legal and tax advisors.
EMPLOYEE MUST MEET EMPLOYER’S LEGITIMATE
JOB EXPECTATIONS TO SUSTAIN AN AMERICANS
WITH DISABILITIES ACT CLAIM
Plaintiff, a part-time custodian, was mildly mentally retarded. His job performance was rated as unsatisfactory based on a number of issues, including the fact that he needed constant supervision or he would wander off jobs. Although plaintiff’s performance improved somewhat over the next year, the employer determined that he had made “insufficient progress” and fired him. Plaintiff sued under the ADA, alleging, among other claims, discrimination based upon his mental disability. A federal trial court granted summary judgment in favor of the employer dismissing plaintiff’s case.
The Seventh Circuit Court of Appeals affirmed the dismissal. It is well-settled that to support an ADA claim, an employee must prove that he or was qualified to perform his job in a satisfactory manner, with or without accommodation. Here, the plaintiff was not qualified to fulfill his job duties in a satisfactory manner, based upon his history of discipline and performance criticism. Plaintiff had received performance warnings as far back as three years earlier for failing to complete work assignments and for leaving the job site without permission, his performance evaluation was unsatisfactory, and his supervisor had frequently reprimanded him for work-related issues. Dickerson v. Board of Trustees, 2011 WL 4349395 (7th Cir. 2011).
FAILING TO RETURN PHONE CALLS FROM AN EMPLOYEE
ON FMLA LEAVE MAY CONSTITUTE RETALIATION
Plaintiff took an FMLA leave to undergo treatment for a serious health condition. During plaintiff’s leave, she regularly called to provide updates to her supervisor, who often failed to return the calls. When plaintiff provided a return to work certification clearing her return she contacted her supervisor to ask for a "modest" one week extension of her FMLA leave through the return date given by her physician. The supervisor did not return plaintiff’s call, and the employer terminated plaintiff for failing to return to work on the date on which her FMLA leave had been exhausted.
Plaintiff sued, claiming that the employer retaliated against her for taking FMLA leave. The court rejected a motion to dismiss the complaint, finding that the supervisor's failure to return plaintiff’s phone calls was evidence of "an antagonistic attitude toward the employee” because “such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee.” Thus, the supervisor’s failure to return calls could be used as evidence of retaliation. Hofferica v. St. Mary Medical Center, 2011 WL 4374555 (E.D. Pa. 2011).
The takeaway here is that your FMLA forms and communications to employees should make it clear that you expect them to stay in touch with you, and that you should do likewise with them.
NLRB POSTPONES DATE OF NEW POSTING REQUIREMENT
In the last issue of this Advisory, we reported that the National Labor Relations Board will require all employers, both union and non-union, to post a notice of employees’ rights under the National Labor Relations Act. The NLRB has subsequently postponed the effective date of this rule to January 31, 2012. Several lawsuits have been filed challenging the NLRB’s authority to implement the new rule, but unless a court rules otherwise, employers should anticipate having to comply by that date. Before then, employers may wish to discuss with supervisors how they should respond to any questions employees may raise after seeing the notice.
The cases presented in this Advisory are drawn from courts located throughout the United States. They may or may not apply to a given employer based upon regional interpretations of federal law as well as any applicable state or local laws. If you have any questions concerning labor or employment law, please contact Robert I. Gosseen, Esq., who heads this practice area at Ganfer & Shore, LLP, at (212) 922-9250, ext. 288, or your contact at the firm.