| MONTH | MONTH | MONTH | MONTH |
|---|---|---|---|
| JANUARY 2008 | FEBRUARY 2008 | MARCH 2008 | AUGUST 2007 |
| SEPTEMBER 2007 | OCTOBER 2007 | NOVEMBER 2007 | DECEMBER 2007 |
LEGAL AND LEGISLATIVE UPDATE
ON EMPLOYMENT LAW
January 2008
by
Bob Gregg
rgregg@boardmanlawfirm.com
Boardman Law Firm
www.boardmanlawfirm.com
LEGISLATIVE ACTION
Congress passes 26 weeks of FMLA for service members, but President puts it on hold.Congress has passed the Family Leave in connection with injured members of the Armed Forces. Employers must grant 26 weeks of FMLA leave per year to care for an injured service member who is in their immediate family. The date the law becomes effective has not yet been established because of President Bush’s concern with other parts of the National Defense Authorized Act. Congress and the President will have to resolve those before the FMLA provision can take effect.
LITIGATION
Theme of the Month: Harassment Policy and Procedure
Three recent cases illustrate the importance of effective anti-harassment policies, training, complaint mechanisms and prompt action. In the 1998 cases of Faragher v. Boca Raton and Burlington Industries v. Ellerth, the U.S. Supreme Court established the Faragher/Ellerth defense to harassment cases. If an employer has an active anti-harassment process, informs employees of the ability to make complaints and promptly acts to remedy harassment, there is immunity from liability under the federal discrimination laws. An employee who unreasonably does not use the complaint process cannot sue for a “hostile environment” harassment case. (This defense does not apply to quid pro quo cases where harassment has resulted in tangible job decisions.) The following cases illustrate issues of whether or not an employer has met the Faragher/Ellerth standards, and especially of how a greater Duty of Care is imposed on those who manage teenage employees.
Restaurant wins case due to policy and prompt effective response. In Brenneman v. Famous Dave’s of America, Inc. (8th Cir., 2007), an assistant manager was subject to unwelcome sexual attention from her manager. She had received the company’s policy and training on harassment, and there was a posted corporate level “hotline” number to call to report harassment. Yet, she let the situation continue without reporting. When she did finally complain, the company responded quickly, stopping the behaviors and rearranging the work so she no longer had to interact with that manager. The court found that Famous Dave’s had met its obligations under the Faragher/Ellerth defense and dismissed the assistant manger’s suit.
Inadequate response to harassment complaint. The Faragher/Ellerth defense only works if the employer makes a prompt and adequate response to complaints of harassment. In Engel v. Rapid City School District (8th Cir., 2007), the court found the response to be “negligent and ineffective,” so the plaintiff could pursue a suit for damages. In this case, the school promptly investigated complaints that an employee was sexually harassing (comments, touching and overtly leering) female staff. He was disciplined several times but never removed. He continued to engage in the same behavior toward the same women, generating more complaints. The court found that the successive disciplines were “decreasing rather than increasing” and more likely to have “emboldened” rather than deterred the harassor.
Harassment policy must be understandable and useable by teen employees, and don’t mess with mom! A sixteen-year-old, fast-food restaurant worker allegedly resisted romantic advances by her adult store manager, who was also having sexual relations with several other employees. She was then fired after her mother complained to the assistant manager. The company defended the resulting harassment and retaliation suit by claiming that (1) the teenager never used the company’s anti-harassment policy to complain, and (2) a complaint by the mother was not protected activity since Title VII’s retaliation provisions only apply to an employee’s objections to discriminatory treatment, not a third party’s complaint. The court disagreed on both counts. The company’s anti-harassment policy was defective; it was confusing and not likely to be understood by the average teenager. (Even the assistant manager did not fully understand the policy.) So, the company could not use this defense. As for retaliation, a parent is, by law, an “agent” of the underage employee, and any complaint by mom is on behalf of the employee. Thus, both the harassment and retaliation cases are viable. EEOC v. V&J Foods, Inc. (7th Cir., 2007).
What did the court find wrong? Besides evidence that an adult manager was using his position to initiate multiple sexual relations, the court found the policy (1) required employees to go through the store manager first in order to complain to higher-ups, (2) did not identify exactly who or where the higher-ups might be, and (3) provided no phone or other contact information for those wishing to send a complaint beyond the local restaurant. The court strongly suggested that a toll-free number should be posted for those who wished to raise issues to a corporate level. These are not new ideas; similar issues were addressed in Faragher and Ellerth (also involving young workers). [The food service industry is a primary employer of teen workers. For more in-depth information on this topic, consider attending Duty of Care for the Respectful Workplace presented by Bob Gregg at the National Association of Catering Executives Capitol Area Conference in Madison, Wisconsin on February 25, 2008. For registration information, contact Wendy Brown-Haddock at 608-261-4025 or wbrownhaddock@mononacatering.com.]
Employment Contracts
Non-competition contracts cannot prohibit all work for a competitor. Non-competition agreements are legal under state law, but Wisconsin courts are harsh on “restrictive covenants” and seem to seek every reason to void them. In Benchmark Medical Holdings, Inc. v. Alger (Wis. Ct. App., Dist. III, 2007), an orthodontist’s non-competition agreement was reasonable in terms of length (12 months) and geography (25 miles). However, it prohibited him from working in any position for a competitor within that time and geography. The court found this blanket prohibition was broader than necessary and ruled the agreement was unenforceable. The employer should have prohibited work only in a medical position, and then used a confidentiality agreement to prohibit the doctor’s sharing harmful competitive information should he take a non-medical job with a competitor.
Non-compete agreement unenforceable due to failure to clearly define prohibited products. In another tight interpretation, a Wisconsin court has invalidated a restrictive covenant. In Star Direct, Inc. v. Dal Pra (Wis. Ct. of App., District IV, 2007), the non-compete agreement covered a salesman who sold food, toys, cigarette lighters and cameras to convenience stores and service stations. The agreement provided that after leaving employment, he could not distribute “consumer products” to service stations and convenience stores in the sales territory for two years or engage in any “substantially similar” business in competition. After leaving, he started selling the same sorts of products to the same stores, and Star Direct sued to enforce the non-compete agreement. The court found the agreement was too “overbroad” to enforce. The words “consumer products” were not limited; they would prohibit the sale of any and all products by Mr. Del Pra, not just those in competition with Star Direct. The term “substantially similar” did not save the agreement because it does not give a listing of the products or types of products or product categories (even though a salesperson would clearly know exactly what products he had been selling). This judicial interpretation of Wisconsin’s “policy against trade restaurants” seems to be a literal interpretation of the wording in the most restrictive manner, regardless of any evidence of real facts and the parties’ understanding.
Contracted Workers
Joint employer status for harassment claims. The State of New Jersey contracted out social work in state prisons. A social worker supplied by the contractor was sexually harassed by a male prison supervisor. The state court allowed her employment discrimination suit against the state because the prison exercised sufficient control over the environment to be held responsible for that aspect of her employment (but not for her pay, benefits, etc.). The court also allowed her cause of action for negligent retention, due to the prison’s inadequate response to the harassor’s present and past incidents. Houg v. Brown (N.J. Superior Ct., 2007).
DISCRIMINATION
Disability
Attorney who requested the accommodation of MORE work was fired for his failure to do LESS. An attorney experienced a dramatic and disruptive psychotic episode at work. He returned from the resulting leave of absence with specific restrictions by his medical doctor and psychiatrist to work only a certain number of hours and avoid certain types of high stress legal situations. The law firm accommodated these restrictions. However, the attorney requested to work longer hours and have more duties. When this was denied, he went ahead and worked the extra time anyway. Several times, he tried to cover up the fact that he was disobeying the medical restrictions and his employer’s orders. He was fired for disobeying the restrictions and for untruthfulness. He sued for being “regarded as disabled” and for the employer’s refusal to grant his accommodation request for more work. The court found valid reason for the discharge and dismissed the case. Iwanejko v. Cohen & Grigsby, S.C. (3rd Cir., 2007).
It may seem unusual that an employer would request the “accommodation” of more work. However, it is not at all unusual for employees to exceed their return-to-work medical restrictions. People routinely ignore the doctor’s advice and just go ahead and do what they think is needed to get the job done. This often causes slower recovery or re-injury. Employers have the right to insist that medical restrictions be followed. Refusal to do so should result in discipline and discharge, and employers generally win cases for discharging people who violate their work restrictions.
Pre-employment medical test must show a “probability” of future injury. The ADA allows a pre-employment medical exam after a conditional offer of employment has been made. In this case, the job offer was withdrawn when the medical examiner determined the candidate had “a propensity to develop carpal tunnel.” However, this is not sufficient; under the ADA, one must show a “direct threat” of future injury to self or others, a “highly likely” probability. Many people with “propensities” never develop actual conditions. Breehneu v. Black & Decker, Inc. (W.D. Tenn., 2007). [This is similar to the laws banning use of genetic testing. You should not be denied a job or insurance just because your mother’s family has a “propensity” for heart conditions, diabetes, etc.]
Pretext destroys employer’s defense. An auditor recovering from cancer was denied a promotion, then sued under the Rehabilitation Act. The employer defended by claiming he lacked the Appraiser Certification required for the position. However, discovery revealed that the position description did not mention this requirement, and most significant, the person who did receive the promotion also lacked the certification. This eliminated the employer’s defense to the case. Washburn v. Dept. of the Army (5th Cir., 2007).
Religion
Northern Wisconsin not hostile to Christianity. A public school guidance counselor’s religious discrimination case was dismissed by the court. She claimed to have had her contract non-renewed because the school board was hostile to her Christian faith. The evidence showed that as a public school counselor, she threw away school materials that did not match her religious views and replaced them with her own pamphlets, more in accord with her religion. She also insisted that students who sought counseling pray with her. The court found it unlikely that there was any hostility toward the counselor’s Christian faith. The court noted that area of northern Wisconsin had an incredibly high concentration of Christian churches, and all the school board members were Christian, including members of her denomination. It was her actions, rather than her faith, that were valid reasons to non-renew the contract. A school board has the right to determine curriculum and materials, and staff have no right to disregard or destroy those materials. School employees have an obligation to not promote their religion as part of their official duties, and by doing so the counselor violated the First Amendment. Grossman v. South Shore Public School District (7th Cir., 2007).
Worker’s Compensation
Security camera overcomes worker’s compensation claim. A hotel maintenance employee was fired for falsely claiming an injury was work-related. In the resulting suit, the court found for the employer based on the hotel’s security camera video. The video showed that the employee was never in the area of the alleged injury during the day he claimed it occurred. Further, he never reported the injury or told anyone else on that day. Napreljac v. John Q. Hammons Hotels, Inc. (8th Cir., 2007).
Labor Relations
Union has right to settle grievance, whether or not employee agrees. A worker filed a grievance due to non-promotion. A union representative settled the grievance, but not to the satisfaction of the worker. The union representative signed the settlement; the worker did not. Then the worker challenged the settlement, trying to reopen the case. An arbitrator, then the court, ruled that the union is in control of the grievance process and has the right to settle grievances. Case dismissed. (The employee’s remedy would be an Unfair Representation complaint against the union under the NLRA.) Walter v. U.S. Postal Service (Fed. Cir., 2007).
Workers can’t protest firing of popular manager. Popular managers may get sympathy, but under the National Labor Relations Act, they are not entitled to support from their subordinates. Smithfield Packing v. NLRB (4th Cir., 2007) involved a spontaneous strike. A large number of workers abruptly walked off the job when they heard their supervisor had been fired. They, too, were fired for walking off. The NLRB ruled in favor of the employees, but the federal court reversed, finding the walk-off was not protected activity. Except in unusual circumstances, employees’ reactions to a company’s employment decision about management personnel are not within the scope of the NLRA. Popularity of a supervisor did not create any such “unusual circumstance.”
A0623882.doc
