| MONTH | MONTH | MONTH | MONTH |
|---|---|---|---|
| JANUARY 2008 | FEBRUARY 2008 | MARCH 2008 | APRIL 2008 |
| MAY 2008 | JUNE 2008 | JULY 2008 | DECEMBER 2007 |
LEGAL AND LEGISLATIVE UPDATE
ON EMPLOYMENT LAW
July 2008
by
Bob Gregg
rgregg@boardmanlawfirm.com
Boardman Law Firm
www.boardmanlawfirm.com
LEGISLATIVE AND ADMINISTRATIVE ACTION
Limitation on Last Minute Regulations
President Bush has directed all federal agencies to refrain from introducing new regulations during the remainder of this administration. He wishes to avoid the chaos and the perception of unfair process that result when new rules are implemented quickly during the last months. Emergency situations and proposed rules already in the works (such as the FMLA revisions) are not subject to this directive.
LITIGATION
The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a decision in another part of the country, and especially in a different state, may not quite be “the law” in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).
Wasted Effort of the Month
Employer litigates entire case over 3.8 hour wage claim―and loses. A Workers Compensation carrier scheduled an injured employee for a medical appointment. She left work for the appointment. The employer told her that Workers Compensation should pay for the time and that she was not entitled to wages for the 3.8 hours because it did not schedule or direct her to go to the doctor. She filed a claim with the Department of Labor for the lost time. The company decided to take a hard line and took the case clear through both the trial court and appellate court. The courts decided that any time for work-related medical attention is paid time, of at least minimum wage, if the employee was at work that day and had to leave for the appointment. The Workers Compensation carrier was acting as the company’s agent when it scheduled the appointment. (Appointments during days not worked due to WC medical leave would not be paid time.) The court ordered 3.8 hours of pay. The company spent tens of thousands of dollars in litigation, and may also be responsible for the other side’s attorney fees as well. Copeland (Dept. of Labor) v. A.B.B. (8th Cir., 2008).
Constitution - First Amendment
HR employee validly fired for emails―free speech does not allow misrepresentation of position. A university HR employee was also a member of the NAACP. The NAACP opposed a proposed salary restructuring for state employees. The employee emailed other university employees information reflecting the NAACP position, but did not identify the source and identified the information as coming from her as a Human Resource staffer. Recipients believed it was the university HR department’s position. This caused confusion and discord (some of the information was also found to be inaccurate). The employee was fired, then filed a suit for violation of her First Amendment expression rights. She lost. Though public employees have the right to express matters of public concern, they must do so as individuals. One cannot create the perception that the message is an official expression of the organization. The manner of expression removed her from First Amendment protection. Bowers v. Scurry (4th Cir., 2008).
Discrimination
Race
Last month’s Legal Update reported the courts’ allowance of the “associational discrimination” case of a White coach allegedly fired due to marrying an African American woman. This month’s case has a different outcome. (Also see the Disability section for another “associational discrimination” case.)
Manager’s “discharge for interracial marriage” claim fails. UPS has a non-fraternization policy prohibiting romance between managers and any non-management employees. A male African American manager dated and then married a White woman who was an hourly worker. Other managers, all of whom were African American, found out and reacted negatively, not to the policy violation but to the interracial factor. These managers, including the district HR manager, made open comments such as “he’s crazy to date that White girl,” “there are plenty of good sisters out there” and “he’s a sell-out.” The manager received negative attention from the other African American managers but was not fired until top regional management (also African American) found out about the policy violation (and after refusing an opportunity for himself or his spouse to resign). The fired manager sued, claiming discrimination because a number of other managers married to same-race hourly employees had not been fired. The court used the “not similarly situated/different actors” analysis to grant summary judgment against the plaintiff. None of the other couples he identified worked under the manager who fired him. Also, most of the other couples had kept secret and were not known to management. When they were discovered, it appears that UPS gave them the opportunity for one to resign, or fired the manager part of the couple. Ellis v. UPS of American (S.C. Ind., 2008). [This case is also interesting in that the court engaged in discussion and cited articles on whether “African American” or “Black” is the appropriate racial reference term. The plaintiff and defendant managers, all of the same race, used differing terms. The court decided to officially use the plaintiff’s preferred term, African American.]
Age
Picky irregularities do not show pretext. An older worker was laid off. He sued, alleging that the company departed from its stated policies and procedures for layoff; therefore, its defense of his age discrimination case should be disregarded and his layoff was invalid due to the procedural defects. The court found only minor errors such as are likely to occur in any administrative process and which were insufficient to create any triable issue. “The mere failure of a company to follow all procedures, without more, does nothing to support discrimination.” Not every irregularity during a layoff is sufficient to show pretext. Hinds v. Sprint/United Mgt. (10th Cir., 2008).
Age―Sex
Prior experience does not mean person is most qualified. An older male employee applied three times for a promotion to a management position, but younger women were selected each time. He had previously spent four years performing that very job in an “acting” capacity and alleged that he was thus the most experienced candidate, and the three rejections were age and sex discrimination. The court ruled otherwise, finding that experience alone does not mean one is the best candidate. One must show that he performed the job well, not just held it. Further, the evidence showed “fierce competition” for all promotions, and all applicants had many years of experience. Finally, it was not suspect that three women were selected; 80% of the workforce and applicants were female, so there was nothing statistically wrong with the results. Maxwell v. Springer (3rd Cir., 2008).
Sex
“Sex sells” has its downside; male bartenders get $1 million. A restaurant chain will pay $1 million to a class of men who were denied hire or promotion to bartender jobs. The evidence was that the company only wanted “girls” behind the bar because “sex sells drinks.” The few men employed in non-management positions were servers and could not get promoted to bartender. Managers were urged to hire under the “sex sells drinks” concept. Along with the monetary damages, the restaurant chain has agreed to create a Human Resource Department to develop policies and assure compliance with the anti-discrimination and other employment laws. EEOC v. Razzoo’s (N.D. Tex., 2008).
Offensiveness does not have to be directed at a particular person to constitute harassment. A female employee may sue over a generally hostile environment in which there were frequent sexually derogatory comments and jokes, and a daily, loudly-played “sexually charged” radio program broadcast over the company’s speaker system in an otherwise all-male workplace. No corrective action was taken when she complained. Even though none of the behavior was directed at her personally, it created an overall severe and pervasively hostile environment which she had to endure, in violation of the Title VII sexual harassment standards. Reeves v. C.H. Robinson Worldwide, Inc. (11th Cir., 2008).
Religion
“Family Values”―son sues father and brother under Title VII. An employee filed a Title VII suit against a family-owned company in which the President was his father, and his brother was the Chief Operating Officer. The employee had dropped out of the Fundamentalist Church of Latter Day Saints (FLDS), leading to family discord and harassment at work by other employees. He alleged that he was expelled from the company and not allowed to come back to work. He secretly tape recorded conversations with the company President which showed that the company refused to employ anyone who was not a member of the church and that he was told he could resume work only if he rejoined the church. In ruling against the company’s motion for summary judgment, the court rejected any argument that the tape recordings were private family discussions, and admitted them as direct evidence admissions of religious bias in employment. Fischer v. Forestwood Co. (10th Cir., 2008).
Disability
Sinking loader in mud hole was not valid reason to fire mentally disabled construction worker. A company fired a construction worker. He claimed it was because he requested an accommodation of his bipolar condition. The company claimed he was fired because he drove a loader into a mud hole, where it sank and was a total loss. Unfortunately for the company, the trial evidence showed that the supervisor had bias against the worker due to the disability and the sunken loader issue was not discovered until after the termination decision. The jury found pretext on the part of the company and awarded $350,000. Head v. Glacier Northwest, Inc. (9th Cir., 2008).
“Associated with” discrimination―parents fired after employer learns of son’s disability. A husband and wife working for the same company were discharged. The company claimed they both falsified time sheets. However, the court found the timing suspicious―soon after the employer learned of their son’s cancer relapse and the probable medical insurance costs. The evidence showed the employer had expressed concerns about the increased costs caused by the son’s condition, and evidence also showed several other employees who falsified time sheets and received much lesser discipline. Trujillo v. Pacific Corp. (10th Cir., 2008).
Good policies are not enough―Wal-Mart pays for hiring discrimination. In EEOC v, Wal-Mart Stores, Inc. (8th Cir., 2008), the company has agreed to pay $300,000 to a rejected disabled job applicant. He applied for “any position” at a newly opened store. The managers rejected him because his wheelchair and crutches might pose a safety risk to customers. The managers did not do an actual assessment of the jobs available, and the evidence showed that the applicant was qualified and able to work at the check-out position without wheelchair or crutches interfering with anything. The EEOC acknowledged that Wal-Mart has excellent policies regarding hiring, disability and accommodation. However, it did not adequately train managers and did not encourage them to consult those policies before acting. Paper policies are not a defense if they are not given practical effect. [For more information on liability for not training managers, request the article, “Prevent Punitive Damages―Provide Management Training” by Bob Gregg, Boardman Law Firm, by emailing rgregg@boardmanlawfirm.com.]
Disability does not excuse bad behavior. The ADA’s “interactive process” requires all parties to communicate, and to do so in good faith and appropriately. An employee may be upset with not getting requested accommodation, but this does not warrant overtly angry reactions. Two cases this month illustrate that employees cannot use physical disabilities to excuse their emotional bad behavior. There was no evidence that physical conditions (i.e., diabetes, carpel tunnel, asthma or impaired vision) created any inability to control emotions or behavior. In Wilson v. Children’s Museum of Pittsburg (3rd Cir., 2008), the employee was fired after publicly angrily yelling at her supervisor when he did not respond to her accommodation request as she wished. In Kolinek v. Ill. Dept. of Human Services (N.D. Ill., 2008), a rehabilitation counselor was disciplined for a loud, angry, profane confrontation with another employee after not receiving the accommodation of having a meeting rescheduled. The courts dismissed both cases. Employees who believe their rights are violated should appropriately use the available internal or legal complaint processes instead of venting anger at those around them.
Retaliation
Proximity looks suspicious―but good documentation saves the day. An employee filed a discrimination complaint. The company agreed to resolve the complaint and reached a settlement agreement. Two months later, the employee was fired. He filed a retaliation complaint. The court found a strong prima facie (threshold) case for retaliation based on the close proximity between the complaint and the discharge. However, it then dismissed the case based on the employer’s well-documented and valid reasons for discharge. After the settlement, the employee seemed to think he was untouchable and engaged in insubordination, unexcused absences, tardiness, rudeness, use of obscenities toward others, threatening behavior and refusal to discuss his behaviors with management, routinely diverting them to his attorneys instead. These documented behaviors overcame any inference of retaliation. Holloway v. Thompson Island Outward Bound Education Center (1st Cir., 2008).
NATIONAL LABOR RELATIONS ACT
Personal Liability
Company president personally liable for unfair labor practices violation. A Missouri corporation lost a National Labor Relations Act case and was ordered to reinstate five discharged workers, with back pay. The company then refused to honor the order and closed its operations. It moved its equipment to Mexico and reopened under another name. The court then found the company president personally liable for intentional avoidance of a court order and allowed collection from his personal assets. NLRB v. Bolivan-Tees, Inc. (8th Cir., 2008).
Arbitration
Employee’s explanation does not hold up, and two years of work does not waive right to discharge. A former employee applied and was hired at a different company location. She used a different name and different Social Security Number on her application than during the previous employment. After two years, the company discovered that she was the same person and fired her for falsifying the employment application (at least one of the SSNs on her two applications was false). The employee’s explanation was that marriage had both changed her last name and resulted in a new Social Security Number. The Union argued that her two years of successful employment should waive any defects on her application and it was too late for the company to discharge her for that. The arbitrator found no merit in the “marriage changed my Social Security Number” explanation, and also ruled that an employer is not barred from firing someone for dishonesty simply because it took several years to discovery the issue. In re ATC/Van Com (2008).
FAMILY AND MEDICAL LEAVE ACT
Read the rules and follow them!FMLA certification is different from medical verification for Workers Compensation, ADA or other “fitness for duty” instances. In McDougal v. Alter Industries (W.D. Ky., 2008), an employee’s FMLA medical certification did not list a specific diagnosis. The company told her to get another certification. When she did not do so on time, it denied FMLA and fired her. The company lost the resulting case. The FMLA does not require a “diagnosis.” All that is required is a certification that the employee is “incapacitated by a serious health condition.” An as yet undiagnosed and unnamed condition fits the bill. Further, under the FMLA, any question about the medical certification may not be referred back to the employee. Instead, the employer now has the obligation to have its own medical professional contact the employee’s doctor to clarify any issues.
Return at end of leave must be full time. A plaintiff lost her FMLA suit because she was unable to return full time at the expiration of leave. During FMLA an employer may have to provide part-time, reduced schedule leave, but once FMLA is exhausted, there is no requirement to either keep holding the job open or convert a full time job to part-time for reinstatement purposes. The employer can replace the employee with someone who can meet the full time requirements. Baker v. Hunter Douglas, Inc. (3rd Cir., 2008).
