Before Democrats had the chance to formally introduce the EFCA during this Congressional term, the Secret Ballot Protection Act (SBPA) was introduced in both the Senate and the House of Representatives.

If passed, the SBPA will guarantee employers the right to ask for a secret ballot election when workers are deciding whether to unionize.

Currently, elections are held if 30% of employees sign cards saying they want to unionize. The EFCA would let unions take power as long as a majority of employees sign those cards.

Who’s more likely to win the fight? Experts say the EFCA has a better shot of passing, given the Democrats’ majority in Congress and the fact that President Obama has made the bill one of his priorities.

However, the presence of the SBPA could convince the EFCA’s supporters to compromise.

We’ll keep you posted.

Here’s what happened in this recent case:

A 60-year-old employee was told her job was being eliminated after 25 years of working for the employer. She started crying and got permission from her boss to take the rest of the day off.

At home, about an hour after getting the news, the woman suffered a permanently disabling heart attack. Her doctor said she’d been healthy and that the incident was caused by the stress of hearing she was losing her job.

She was awarded accidental disability benefits. The company appealed, arguing she wasn’t eligible because the injury didn’t occur as a result of her job duties.

But the court sided with the employee’s doctor.

It was undisputed that the heart attack was caused by the woman’s conversation with her boss. And since that conversation occurred “during the scope of her employment,” the heart attack was directly related to her job and the woman was eligible for disability benefits.

Cite: Retirement Board of Salem v. Contributory Retirement Appeal Board.

In 2004, Oklahoma passed a law forbidding employers from disciplining employees who keep firearms locked in cars parked on company property.

A group of businesses sued, claiming the law threatened workplace safety. A court agreed and overturned the law, ruling it violated the Occupational Safety and Health (OSH) Act, which gives employers a “general duty” to keep workplaces safe.

But that decision was overturned on appeal. The appeals court ruled that the Occupational Safety and Health Administration (OSHA) has never claimed that allowing firearms on company property would violate the OSH Act. Therefore, there is no conflict between the state and federal law.

So-called “guns at work” laws are one of the latest trends in state employment legislation. Florida and Georgia have already passed similar legislation, and bills are being considered in Tennessee, Arizona and Texas. We’ll keep you posted.

Cite: Ramsey Winch, Inc. v. Henry

The answer depends on why they don’t return.

Under the FMLA, employers can’t recover premiums paid for health coverage if an employee fails to return to work because of their own or a family member’s serious health condition, or due to “other circumstances beyond the employee’s control.”

Those circumstances include:

• the employee’s spouse has been transferred to a job more 75 miles from your company’s location
• the employee is laid off while on leave, and
• a “key employee” is denied reinstatement by the company.

In other cases, employers can recoup the costs if employees fail to return to work. Under the law, “returning to work” means working for at least 30 days after taking leave.

So if an employee resigns or retires within 30 days of his or her return from leave, the company may be entitled to recover its share of the health benefit premiums.

If passed, the EFCA will increase the power of unions in the workplace. Here’s a rundown of its main provisions:

1. Card check authorization – Under the EFCA, unions can be approved as long as more than 50% of employees sign authorization cards. In other words, no more secret ballots — some say that might allow employees to be bullied by union representatives.
2. Mandatory arbitration – If a union is certified through a card check, employers will have 10 days to start bargaining with the union. If an agreement isn’t reached in 120 days, the negotiation will be referred to a federal arbitrator who’ll decide any contract issues that still aren’t agreed on — such as pay, benefits, hours, etc. Negotiations often take more than 120 days — therefore, arbitrators will likely have greater influence under the EFCA than they currently do.
3. Increased penalties – Currently, employers are only held liable for back pay if they’re found to have unlawfully fired pro-union employees. The EFCA would add liquidated damages up to two times an employee’s back pay, as well as a $20,000 penalty if a court finds a violation was willful or repetitive.

Supporters of the EFCA are confident the bill will be successful.

Last year, the EFCA passed the House, but failed to gather 60 supporters to block the filibuster in the Senate. Some experts say the increased Democrat majority and President Obama’s influence make the bill likely to pass.

We’ll keep you posted.

An employee complained to an upper-level manager that her supervisor had sexually harassed her. The response she got: The manager asked for witnesses who could corroborate or other evidence of wrongdoing.

She had nothing to offer, so the company decided it couldn’t do anything.

Eventually, however, another employee complained about the same supervisor. This time, the company got enough proof to investigate and then fire him.

But it didn’t end there: The original complainant sued, claiming she was subjected to more harassment after the company failed to investigate her complaint.

So was the manager’s response to the complaint appropriate? Yes, according to the judge. Companies can’t be expected to automatically believe every complaint they receive — that’s how innocent supervisors get mistakenly fired.

Without anything more to go on, there wasn’t much the manager could do.

Cite: Adams v. O’Reilly Automotive, Inc.

That’s what two employees claimed in one recent court case.

The employer gave all full-time employees 120 hours of sick time a year. Employees who exceeded that allotment were disciplined.

Two employees had each taken close to 120 hours of sick leave — plus, they had both taken time off for FMLA. So by the end of the year, they’d used more sick time than they were allowed and were suspended without pay.

They sued, claiming they were disciplined because they took FMLA.

The company’s response: Employees had the choice of whether they wanted to use paid sick leave while they were on FMLA. In this case, the employees chose to take the paid time.

Then, when they tried to take more sick days after that, they were punished.

Who won the case?

Answer: The company.

The employees chose to use sick leave when they took FMLA and continued to use sick time when they knew they’d run out. “In other words,” the judge said, “they want more paid sick time than other [employees] got.”

The court didn’t buy their argument and the case was thrown out.

Cite: Tucker v. County of Monmouth

An employee was diagnosed with type 2 diabetes. He was required to take several insulin shots daily, use other medication and strictly regulate his diet.

He could still perform most of his duties. However, his job required him to be called on as a “borrowed hand” when field crews needed extra assistance. That involved working long shifts outside and traveling to other locations, often overnight.

The employee’s doctor told him he could no longer perform field work, because it would make it difficult to treat his condition.

In 23 years of employment before his diagnosis, the employee had been used as a borrowed hand about a dozen times. He told his boss about the new restriction and asked to be exempt from those duties.

The company’s response: He could either apply for a new job within the company or take early retirement.

He did neither — instead, he sued, claiming he was disabled and the company should have changed his job duties to accommodate him.

The company’s defense was twofold: First, the employee’s diabetes wasn’t a serious-enough condition to be considered a disability. And second, field work was an essential function of his job that couldn’t be eliminated.

Could the employer get the case thrown out?

No. The court disagreed with the company on both counts. The judge ruled that his strict diet and medical regimen were significant enough to “substantially limit” several major life activities, as defined by the Americans with Disabilities Act.

Also, the court decided field work was not an essential function of the employee’s job. He’d only been called on to perform those duties an average of once every two years. And the work was not highly specialized — it would have been reasonable for the company to find someone else who could do it when the need arose.

Cite: Rohr v. Salt River Project

In one recent case, an employee missed 10 days of work because of a medical problem. When she told her boss she was going to be absent again, the boss said she may be able to take FMLA leave.

She declined, apparently because she may have needed surgery in the near future and was waiting to see how much time off she’d require at that point.

So she took the days off without completing FMLA certification. The problem: She was out of her allotted sick leave and had already been warned by her manager about excessive absenteeism. After she missed several days, she was fired.

She sued, claiming the company violated the FMLA. Her argument: The supervisor should have warned her that her job would be in jeopardy if her leave was unprotected.

But the judge didn’t buy it. The manager did the right thing: He offered FMLA when he learned she had a medical issue. The law didn’t require him to do anything more.

The employee should have understood the difference between FMLA and unprotected leave — and she’d already been warned about missing too much time.

Cite: Knox v. City of Monroe

An employee sued over the state of her company’s bathrooms.

The employer provided single-occupancy unisex facilities. The woman complained that the bathroom she had access to was frequently dirty and “sometimes occupied when she wanted to use it.”

She repeatedly made complaints and asked the company to install gender-segregated restrooms, but nothing was done by the company.

The employee filed a claim for gender bias, saying the lavatory’s condition created an uncomfortable situation for female employees.

The company argued that her complaint wasn’t severe enough to create an adverse employment action or a hostile work environment. Moreover, men were just as affected as women by the bathroom situation.

Who won?

The court agreed with the employer and flushed the case.

Cite: Dauer v. Verizon Communications, Inc.