December 2016 Volume X No. 5 Taking Care of Business
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Pregnancy Claims in the Workplace


Jim Jorgensen

Women are working longer into their pregnancies and returning sooner to work after the baby is born. In the meantime, the Equal Employment Opportunity Commission (“EEOC”) has identified pregnancy discrimination as a matter of great concern.

The key Federal statute is the Pregnancy Discrimination Act (“PDA”). The PDA prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions. It requires employers to treat pregnancy the same as any other temporary disability. Employers must provide access to medical benefits and sick leave on the same basis as such benefits are provided to other employees or for other conditions.

    Under the PDA, it is unlawful to:
  • Refuse to hire a woman simply because she is pregnant.
  • Fire a woman simply because she is pregnant.
  • Force a pregnant employee to leave work if she is ready, willing, and able to perform her job.
  • Dtop the accrued seniority of an employee who has taken a leave to give birth or have an abortion (unless seniority does not accrue to other temporary disabled workers under similar circumstances).
For larger (over 50) employees, pregnancy is covered by the Family Medical Leave Act (“FMLA”). Under the FMLA, eligible employees are entitled to FMLA leave for pregnancy or birth of a child. Both the mother and father are entitled to FMLA leave for the birth of their child. Additionally, both the mother and father are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee’s entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of birth.

Pregnancy can create medical issues for the mother. A mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. Circumstances may require that FMLA leave begin before the actual date of birth of a child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work.

An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees.

The FMLA comes into play in another way. An employee is entitled to FMLA leave to care for a child (which includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis), who is age 18 or older who is “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. However, leave to care for an adult daughter, with a normal pregnancy is not covered.

Perhaps at a later date, we can discuss other pregnancy-related issues. For now, employers must treat the rights of pregnant employees as a high priority.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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Who Controls Your Electronic Media After You Die?


Keith Wolak

The size (and relative importance) of our electronic foot print is growing every day. Whether it is our pictures or files we download to the Cloud, our images or comments on Social Media, or our networking tools we join to boost our careers. With relative ease, we download an app or join a service, click a few boxes, and we have instant access to a new tool in the virtual world. Generally, one of those “clicks” was at the bottom of long worded “user agreement” that although we said we read, we probably did not. But what harm could result as “everyone is doing it”?

Increasingly we are becoming aware of potential harms such as privacy, security, surrender of ownership of content, and for purposes of this article, agreed access restrictions. Most, if not every agreement, says “this agreement is with you, and no one else, and we will not willingly let anyone else access your account.” This sounds pretty good until we become incapacitated or die. Imagine the family being deprived the family photos, or the parents of a murder victim not being able to remove the former boyfriend’s (now murderer’s) image from their late daughter’s Facebook page. These realities have called into question the “fairness” of “user agreements”, but courts have consistently found the law to be on the side of service providers.

Of course if you had the passwords, and you could access an account before the password expires or before the account is otherwise flagged, you could probably sneak in and take or delete what you wanted. Of course you would be doing so contrary to the “user agreement” and the Federal and State laws.

Fortunately, legislatures, including the Indiana General Assembly, are catching up to the technological changes. Effective July 1, 2016, Indiana adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). This Act allows Indiana residents to “opt in” to allow a fiduciary to access their digital assets during incapacity or death. What is more important, the Industry (including major players Facebook and Google) have agreed that, in exchange for their “user agreements” not being regarded as contracts of adhesion, they will honor the fiduciary appointments of their users to access their digital assets.

While there is little doubt that some legal wrangling will continue as the multiple states, growing list of service providers, and the Federal Government all continue to weigh in, for the first time it appears there are some logical steps to control your digital footprint. First, inventory your digital assets to memorialize important assets, their locations, and maintain your digital access information in a secure state. Second, utilize any “on-line tools” created by your service providers to designate your preferences for access to your accounts after your death or during incapacity. Third, update your Durable Power of Attorney and Will and/or Trust to specifically grant your fiduciaries the authority to access your digital assets.

If you have questions regarding Property Taxes, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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DISCLAIMER: This publication is not intended to be legal advice but is presented for informational and educational purposes only. The facts and circumstances of a specific legal issue are unique and you should seek legal advice for your specific questions or concerns. No attorney-client relationship is created.