In the latest Weekly Wright Report:
- Justin Bieber’s Nuptials – read now
- When Should You Tell an Employee to “Suck it up”? – read now
- When A Well Written Harassment Policy Is Not Enough – read now
Justin Bieber’s Nuptials
Social media has been buzzing with word that Justin Bieber has married his long-time girlfriend, Hailey Baldwin. I am certain that this is a match made in heaven and we wish them many long years together. The marriage raises some very serious issues for the couple because of the wealth which the Biebs brings to the marriage which was obviously created before marriage. Although an extreme example, this couple is the classic scenario where a prenuptial agreement is probably a good idea.
A prenuptial agreement allows the engaged couple to decide different outcomes for the distribution of marital property upon divorce. With limited exceptions, “marital property” is property acquired during marriage regardless of how it is titled. This includes homes, cars, jewelry and even the growth of a business started pre-marriage. Couples with prenuptial agreements are able to determine the division of their property by including such things as a waiver of interests in future business growth, a division of property by title regardless of whether it is marital property and even a waiver of alimony. If parties divorce without a prenuptial agreement, the court will divide all marital property between the parties in an equitable manner and may even insist on monetary payments to ensure equitable adjustments.
Even more importantly, a prenuptial agreement allows parties to decide different outcomes for the distribution of property upon death. In most states, a surviving spouse has a right to an automatic share of the property owned by the deceased spouse at death, known as the spousal elective share. In situations where there is a prenuptial agreement, parties may waive any right to the spousal elective share permitting each party the right to leave his or her entire estate as he or she sees fit. This is an important planning device for blended families.
To be binding, a prenuptial agreement must fulfill the requirements for any valid contract– both parties must have legal capacity to contract, there must be consideration (which may include the marriage itself), the contract must be executed voluntarily, without fraud or duress, and the agreement must be signed by the parties. Most importantly, to protect against the blindness which comes from being in love, the courts recognize that parties to a prenuptial agreement are in a fiduciary relationship. This means that to be valid, the agreement must be fair to the weaker party at the time of execution or be executed voluntarily and with fair financial disclosure.
Whether it is because individuals are waiting to marry and bring more wealth to the marriage or because more couples are giving marriage a second or third try, prenuptial agreements are becoming more popular and more necessary. Although you may not have amassed the adoration and success of Justin Bieber, the practical benefits of a prenuptial agreement far outweighs the pain of a difficult and complicated breakup and divorce.
If you wish to discuss your options in these scenarios, please reach out to the Family Law Group.
When Should You Tell an Employee to “Suck it up”?
Answer: Probably never. Particularly not in response to an employee’s request for time off due to mental health issues. Unfortunately, one Wegmans supervisor didn’t have the luxury of such great advice.
In July 2018, Wegmans was served with a lawsuit filed in Massachusetts federal court by ex-employee Jordan Bartman. Ms. Bartman claimed that she asked her manager for time off under the Family Medical Leave Act (“FMLA”) to get help for her chronic depression and anxiety. In response, her manager told her to “suck it up,” denied the leave and chastised her for being a burden on the kitchen staff. Following the denial, the employee claimed her condition worsened, resulting in a greater need for leave and more harassment by her supervisor. Wegmans eventually terminated Ms. Bartman for “chronic absences, tardiness, and failure to follow [call-in] procedures.”
Lawsuits typically tell only one side of the story. The likelihood that the situation escalated may have been due to the manager’s lack of training on common personnel policies.
Generally speaking, the FMLA applies to companies with 50 or more employees. When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not specifically assert his or her rights under FMLA, or even mention FMLA. Rather, the employee is only obligated to provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave.
In all cases, an employer should seek information as necessary to ascertain eligibility and determine whether FMLA leave will be granted, including supporting documentation from a medical provider.
To reduce liability, train front-line managers on the employee benefits provided by your business, and teach them how to speak to staff civilly, particularly about sensitive personal matters. As a default, the manager should have consulted either Human Resources or the business owner for better guidance to address the employee’s request for a leave of absence.
And, of course, if you need help in navigating this path, it is never too soon to get your attorney involved to help guide you.
When A Well Written Harassment Policy Is Not Enough
In a recent decision, the Third Circuit Court of Appeal permitted an employee’s claims to proceed against her employer despite the fact that the employer had policies requiring the reporting of harassment which the employee did not follow and there was no evidence that the employer had direct knowledge of the alleged harassment.
This is a significant deviation from established precedent, known as the Faragher-Ellerth defense, where employers were protected from employee’s claims of sexual harassment if the employer had exercised care to avoid and eliminate harassment but the employee had failed to act with reasonable care to take advantage of the employer’s protections. If an employee failed to follow an employer’s policy and report harassment and the employer did not otherwise have knowledge of the harassment, the employer would not be held liable for harassment. In Minarksy v. Susquehanna County, the Third Circuit substantially changed and added a new element to the legal analysis – if the employee did not report, Courts may now ask whether the employee’s silence was objectively reasonable.
In its opinion, the Third Circuit set forth an extended footnote placing this significant change in context. The Court noted that in many of the allegations in the #MeToo movement, victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. The Court stated that the theory underlying the defense, namely that reporting harassment will stop it, may not be accurate. Instead, victims routinely anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.
Employers need to take note because simply claiming the circumstances were unreported may no longer be enough to avoid liability. Employers need to look for “frequent fliers” who are alleged to have harassed someone and need to ensure past incidents or allegations of harassment were handled appropriately. Employers also need to be proactive in training employees on recognizing harassment, on promoting anti-harassment policies, and ensuring employees that anti-retaliation rules are actually communicated and are actually being followed. Even after an investigation is completed, employers should with employees who have reported harassment to ensure that no retaliation has occurred.
If you have questions about how to effectively implement anti-harassment policies, communicate them to employees and ensure that they are being followed, or you wish to have an investigation of a workplace claims, please contact our Labor and Employment Group.
Want more? Visit the Weekly Wright Report page to browse past issues.