LEGAL AND LEGISLATIVE UPDATE
ON EMPLOYMENT LAW
November 2007
by
Bob Gregg
rgregg@boardmanlawfirm.com
Boardman Law Firm
www.boardmanlawfirm.com
WorkSource Wisconsin Seminar
December 12, 2007, 7:00 a.m. - 12:00 p.m.
Italian Conference Center, Milwaukee, Wisconsin
Nationally noted speaker, Neil Romano, plus experts on employment law accommodations and new developments. Part of a statewide seminar series ― free! Qualifies for SHRM recertification credits! Register with Jennifer Gundlach Klatt at gundlach@uwstout.edu or call 715-232-5008. WorkSource Wisconsin, The Employer’s Guide to Disability and Employment, is a joint state-business endeavor to provide information to employers. WorkSource provides information on how to effectively use disability resources and the rights of employers in this often confusing legal area. It helps you do the right thing and avoid liability. Know your rights as an employer! Visit the WorkSource Wisconsin website at worksourcewi.com or call 866-160-9602. [Boardman Law Firm is a sponsor of WorkSource Wisconsin. Bob Gregg is a member of WorkSource Wisconsin Steering Committee and will be a presenter on December 12.]
LITIGATION
TOPIC OF THE MONTH:
FAMILY AND MEDICAL LEAVE ACT
There were an unusually large number of FMLA decisions this month, including significant decisions on what can be counted when measuring FMLA leave and an employer’s duty to inform workers of their rights.
Holidays count for federal FMLA. In Mellen v. Trustees of Boston College (1st Cir., 2007), an employee was fired for returning to work from FMLA one day late. She challenged, claiming that holidays during FMLA should not be counted as leave, since they would not have been work days and were not “leave from work.” The court disagreed, holding that any holiday within a full week of FMLA counts as a day of FMLA use. A holiday falling in any part-week FMLA use, however, could not be counted against FMLA, under the “intermittent leave” rules.
Reinstatement eligibility is determined at start of leave even if one would have become eligible during the leave period. An employee took medical leave after ten months of employment. He was denied his request to return to work 12 weeks later. He sued, claiming that he had reached the one-year FMLA eligibility mark during the leave, and since he had not been officially terminated prior to that date, he had gained FMLA protection to return. The court disagreed, holding that for an uninterrupted leave, the employee’s eligibility is set at the start and does not change. If, however, the employee had returned to work and then left again after the one-year mark, the second leave period would have been protected. Adly v. Supervalue, Inc. (D. Minn., 2007).
Duty to explain FMLA availability, not to just wait for an employee to figure it out and ask. An employee took intermittent time off to care for her daughter’s serious health condition. Management told her she could use “personal time off” but failed to inform her that intermittent FMLA leave was available. Later, the time was counted against the employee’s attendance record. (FMLA-protected leave may not be held against an employee or negatively reflect on the record, performance evaluation, etc.) The court, ruling on the issue, found the employer “interfered with FMLA rights” by failing to give information on the availability of FMLA in a clearly applicable situation. Reed v. Mercy Health Systems (W.D. Ark., 2007).
Court finds pretext in after-the-fact evidence. A salon chain claimed that it terminated a store manager after receiving a medical report that she would not be able to return to work at the end of FMLA leave. Inability to return allows the employer to replace the employee. However, the evidence showed that the medical report was date-stamped as received by the company five days after the termination decision was actually made. There was also evidence that the Area Manager was angry about the original request for FMLA and the extra burden of having the store manager gone. The court found sufficient evidence for FMLA retaliation. Bryson v. Regis Corp. (6th Cir., 2007).
DISCRIMINATION
Sex
Union pays $2.2 million for retaliating against female member. A police officer’s union was found liable for violating the Title VII retaliation provisions. After a female officer complained about sexual harassment by male “union brothers” at a union event, the union instigated retaliation. There were public comments by the union president that “she’s in trouble” with the union for having complained, and she was shunned by fellow officers and “shut out” of further union involvement. Dixon v. Int. Brotherhood of Police Officers (1st Cir., 2007).
Race
It’s a one-way street in customer service: profane, angry response to racially-abusive customer warrants discharge. An arbitrator found that two wrongs do not make civil rights. A clearly intoxicated White customer got angry over a food order and began arguing with the African American server at a ball park concession stand. The customer used the N-word, among other hostile remarks. The worker responded with a profane, angry tirade in return. A manager intervened, stopped the argument, and had security deal with the customer. The worker was then fired for violating the company’s clear policies for dealing with difficult or abusive customers and “conduct unbecoming of an employee in public.” The company won the discharge case because (1) it had clear, written policies regarding abusive customers, (2) it trained public contact employees about those policies, and (3) it provided prompt management attention whenever an employee properly followed the policies and reported an incident. In re Schnucks Markets (2007). This case provides good advice to those who have public contact employees. Have policies and procedures that anticipate difficulties and provide training. Your anti-harassment policy and training is a good place to start.
New Orleans DA’s office illegally fired White staff. The federal circuit court upheld a jury verdict finding racial discrimination in the firing of White staff members. The new district attorney had campaigned on a promise to hire staff to reflect the predominantly African American racial composition of New Orleans. Then, instead of recruiting and hiring to achieve the racial balance, within his first 72 days in office, 53 Whites and one Hispanic were terminated. This changed the composition from majority White to just 27 Whites and 130 African Americans. Only two African American employees were fired. The jury found the DA’s stated reasons for the discharges to be pretexual, especially since the evidence showed the DA disregarded advice of his agency’s Personnel Committee. DeCorte v. Jordan (5th Cir., 2007).
Age
Double damages for intentional discrimination. The Age Discrimination in Employment Act has a different damages provision than other discrimination laws. Instead of extra compensatory/punitive damages, the ADEA simply doubles the economic damages for intentional discrimination. In Palasota v. Haggar Clothing Co. (5th Cir., 2007), an ex-salesman was awarded double the $842,218 in back pay damages. A jury found intentionality in the evidence that Haggar placed Palasota (age 51) into a different territory where he made less than half of his previous income and then forced him and 12 other older salespeople to resign, replacing them with 13 new employees, only one of whom was over age 40.
National Origin
Discussion of war is not national origin discrimination. A supervisor of Iraqi origin was fired and filed a discrimination complaint. Among his allegations was the fact that other employees openly discussed opposition to the Iraq war while he was present in the lunch room. He cited this as evidence of national origin bias. The court disagreed. It found ample evidence of poor performance to justify the discharge. It found that “the ongoing war is a common topic of discussion among citizens” and there was no evidence of any disparaging comments toward him or toward Iraqi origin during these conversations. Abdulnour v. Campbell Soup Co. (6th Cir., 2007).
Disability
Postal service was right to terminate violent employee, but should have offered disability retirement option. A postal worker with Post-Traumatic Stress Disorder struck other workers on two occasions. The Postal Service investigated and obtained a medical evaluation showing that the worker had uncontrolled reactions and worsening PTSD, posing a direct threat to others, with little chance of improvement. Therefore, the worker was discharged. The resulting suit challenged the discharge and the denial of an option to apply for disability retirement. The court found the USPS validly discharged the employee, meeting the ADA’s direct threat standard. However, there was not proof of any reason why the USPS could not have allowed the application for disability retirement and caused less harm to a disabled employee in the termination process. Therefore, it found discrimination on that point. Jarvis v. Potter (10th Cir., 2007). [For more information on the direct threat standards, request the article or the seminar “Fear Firing” by contacting Bob Gregg at rgregg@boardmanlawfirm.com.]
Expression of concern―or expression of discrimination? Superintendent’s comments result in “perceived as disabled” case. The ADA prohibits discrimination against people who are disabled or are “perceived as disabled” even if they do not actually fit the ADA disability criteria. After appointment as a school principal, the employee informed the superintendent that she was taking medication for anxiety. The superintendent then removed her from the principal job, directed her not to enter any school building, not to contact any district staff, not to attend any school district activities and to work on special assignments from her home for the rest of the year. The superintendent also told other staff that he removed the principal for her health, that she was too fragile for the job, that she was “on the verge of a nervous breakdown” and that he had asked her to resign or take medical leave. He said if she applied with another school district, he would inform them of her health issues. In defending the resulting ADA case, the school district claimed that the superintendent’s statements were expressions of sympathy, “genuine humanitarian statements of concern” about a colleague’s health. However, the court felt otherwise, holding that the statements were far beyond “concern” and were evidence of misconceptions, stereotypes and discrimination based on a perceived mental condition. Wilson v. Alamosa School District (D. Colorado, 2007).
Sleep is a major life activity, but sleep apnea is not automatically a disability. Nadler v. Dept. of the Army (11th Cir., 2007) was a Rehabilitation Act case. The court ruled that to qualify as “disabled,” a plaintiff with sleep apnea must show a “sufficient level” of sleep deprivation to constitute substantial impairment of the major life activity of sleeping. The plaintiff in this case managed to get five hours of sleep on most nights. While “not optimal,” this was still enough sleep to fall short of a “substantial” impairment. Thus, he could not maintain his case for excuse from the employer’s attendance and timeliness requirements. [In Burks v. Wis. Dept. of Transportation (7th Cir., 2006), the court found that an average of three hours a night was too much sleep to qualify as a disability.]
Disability and Religion
The ADA does not apply to clergy or other ecclesiastic employees. An ordained associate regional director sued her church, alleging that she was terminated in retaliation for requesting accommodation of her vision and leg disabilities. The court dismissed the case, based upon the Constitutional separation of Church and State. The ADA and most other employment laws do not apply to a religious organization’s decisions about its “ministerial or ecclesiastic” positions. The courts simply will not get involved in internal religious decisions. Cronin v. South Indiana Conference United Methodist Church (S.D. Indiana, 2007). [The employment laws do apply to many actions regarding non-ecclesiastic employees of religious organizations.]
