LEGAL AND LEGISLATIVE UPDATE
ON EMPLOYMENT LAW
May 2008
by
Bob Gregg
rgregg@boardmanlawfirm.com
Boardman Law Firm
www.boardmanlawfirm.com
REMINDERS
Wisconsin SHRM’s 20th Annual Legislative and Legal Conference. The State Legislative and Legal Conference is May 7, 2008. There is still time to register. The program includes current legal developments and presentations by national SHRM’s legislative staff and state legislators who are in key positions regarding employment laws. The conference is at the U.S. Bank Building, One South Pinckney Street, Madison, Wisconsin from 9:00 a.m. to 3:00 p.m. Registration begins at 8:30 a.m. The cost is $50.00 for SHRM members/$70.00 for non-members (includes lunch). You can register at www.regonline.com/wilegislative2008.
Wisconsin Association of Equal Opportunity (WAEO) State Conference. The State Conference is May 21-23, 2008 and being held at the Chula Vista Resort, Wisconsin Dells. This is Wisconsin’s premier conference on EEO/diversity practice, law and developments, featuring great speakers, informative sessions and networking. (Sponsors include Boardman Law Firm and Jefferson County Human Resource Management Association (SHRM).) The cost is $255 for members and $305 for non-members (includes meals and networking reception). To register, contact Sarah Trotter (414-286-2398) or email waeomail@hotmail.com.
LEGISLATION AND ADMINISTRATIVE ACTION
Senate takes away EEOC funds for English-only national origin discrimination enforcement. The U.S. Senate approved a budget resolution to take away funds the EEOC is using to sue employers that have English-only workplace policies. This can be a form of national origin discrimination if the policies are not job-related (i.e., the case in which employees were not allowed to call home during breaks or lunch to speak with their own family members on their own cell phones in any language but English.) The sponsor of the resolution, Sen. Lamar Alexander (R. Tenn), considers such EEOC enforcement actions to be anti-American. Both Republicans and Democrats voted for the resolution, which passed 54-44.
Workplace guidance on disabled veterans issued by EEOC. The EEOC has issued two sets of guides explaining employers’ duties under both the ADA and USERRA. Both laws apply to hiring and reinstatement of veterans with service-connected disabilities. USERRA requires a greater degree of accommodation than the ADA for veterans returning from active duty, including retraining or helping one become qualified for positions. [See www.eeoc.gov]
OFCCP promises revised guidelines. The Office of Federal Contract Compliance Program is revising its guidelines to create more uniform standards for analyzing compensation, discrimination, electronic applications, accessibility for disabled job applicants, and electronic recordkeeping for federal contractors. The OFCCP has found inconsistencies in the audit and enforcement standards used by its different regional offices. The revisions are promised “in the near future.” Any changes will be posted at www.dol.gov/esa/ofccp.
Retaliation charges hit record level. The EEOC reports that in 2007 there was a 9% increase in overall discrimination charges. Retaliation charges reached an all-time record of 26,663 and were the second highest category overall. Race discrimination cases were number one. Sex discrimination was number three, with 16% filed by men. [For more information on retaliation, attend the Retaliation Seminar presented by Bob Gregg at the WAEO Conference, or request the article Retaliation from rgregg@boardmanlawfirm.com.]
TRENDS
The Surveillance Society
Soon, most of what you do in public can be monitored and archived. Supermarkets and discount chains videotape all areas and everyone; on check-out, they record every item by name and credit card of the customer. “Feature recognition” technology uses a facial shot to sort and recreate your entire time in the store from the archived record, so that the activity of suspected shoplifters, “suspicious” people and employees can be retraced to find what they did. In July 2008, New York City implements the Lower Manhattan Security Initiative, with 3,000 cameras to record every person’s face, license plate and various other identity factors in public areas.
Security is becoming total surveillance, in the workplace as well. An American Management Association survey found 36% of companies do keystroke-by-keystroke monitoring; 76% monitor website visits; many use software that gives replay of where one pointed the mouse, what was clicked, and every word typed. Iris scans and palm prints are now routine for time clocking and building entry, and that biometric information is recorded. GPS records where you go on or off the job. “Insider Risk Management” programs videotape every employee in all areas of the facility, and catch not only employee dishonesty but the waste of work time, reading, chatting, or gazing out the window. If you make a call on your personal cell phone, the video can probably show what numbers were dialed. Lip reading can be done from the surveillance video. Technology consolidates and analyzes these various forms of surveillance and can create a multi-media view of employee activity, reviewable by management and available to be subpoenaed in litigation.
Security can prevent theft and violence, show the evidence of harassment and catch fraud and illegal use of the system. It is also creating a volume of personal information about everything we buy, everything we read, where we go, who we associate with, and all that we do. Once there is such a record, expect it to be mined by employers, government agencies, police, marketers, insurance providers and criminals. Expect all of those, even the most well intended, to go over the line of improper use. Expect this to generate a lot of litigation and legislation.
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 be quite “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 7th Circuit (Wisconsin, Illinois and Indiana).
Constitution
Municipality’s blanket pre-employment drug test is invalid. The Fourth Amendment prohibits unreasonable search and seizure. This includes “unreasonable drug testing.” A city required pre-employment drug tests for all positions. When a candidate for library worker refused, the job offer was withdrawn. She sued and won. The 9th Circuit Court of Appeals found the policy overbroad. “The need for suspicionless testing must be far more specific and substantial than the generalized existence of a social problem” of drug use. The library had only one instance of employee drug use in 23 years, so there was no compelling interest to apply the policy to the hiring of library employees. Library workers were not in safety-sensitive work, like equipment operators, vehicle drivers, health workers, etc. So the city could apply the pre-employment testing to only those positions in which it has a sound basis to show the test is necessary. Lanier v. Woodburn, Oregon (9th Cir., 2008). [This case only applies to public sector employers. The private sector is not subject to the same Constitutional scrutiny and does not have to show the same “compelling interest” to justify a pre-employment drug test.]
Salvation Army managers are ministers--not eligible for minimum wage or overtime. The Salvation Army is a religious organization. Its administrators are there in both a management and religious capacity. They are ministers to the clients. The First Amendment’s separation of church and state provision exempts ecclesiastic positions from almost all employment laws. The administrators brought a Fair Labor Standards Act suit for the Salvation Army’s failure to pay them minimum wage and overtime. The court dismissed the case due to their ministerial role. Schleicher v. Salvation Army (7th Cir., 2008).
Torts: Corporate and Personal Liability
Manager’s sexual relations with mentally retarded employee was not harassment but is cause of action in suit for non-consent and battery. A male McDonalds’ restaurant manager had a series of sexual encounters, on and off the job site, with a mentally retarded adult employee. She eventually revealed the relationship to her guardian, resulting in legal action. The situation did not match the definition of quid pro quo nor unwelcome environment sexual harassment under the discrimination laws. The state court, though, found that the employee’s mental level could render the relationship non-consensual and a tort action could be maintained for battery (impermissible physical contact) and non-consensual sex. Both McDonalds and the manager, personally, can be liable for damages. Sancier v. McDonalds Restaurants of Montana (Mont. S.Ct., 2008).
Discrimination
Procedure
90 days starts on receipt of notice. Upon receipt of an EEOC Right-to-Sue Notice, a plaintiff has 90 days to file suit. Failure to file ends the case. Generally, the 90 days starts to run on the date the EEOC sends the Notice. “Unexcusable” neglect, such as not bothering to pick up the mail from the post office for several weeks, does not extend the time frame. However, “excusable” reasons (such as being in the hospital) do. In Hucki-Haas v. Bd. of Trustees of Ill. Community College, Dist. 508 (N.D. Ill., 2008), the court ruled that when a person is traveling and has no reason to expect the EEOC to send the Notice, the 90 days begins to run upon return to home and actual receipt of the mail.
Age
“Bunched evidence” is invalid. A plaintiff’s attempt to show a pattern and practice of age discrimination was rejected by the court and his case was dismissed. The statistical evidence to show a pattern of getting rid of older workers “bunched” together all those who left for any reason: those who were fired and those who left voluntarily to take other jobs. Since many in the statistic left for purely voluntary reasons, the statistic was invalid to show discrimination in a discharge case. Kilpatrick v. Tyson Foods, Inc. (11th Cir., 2008).
Employer’s defense is inconsistent with reality, and “nonsense.” A 51-year-old production worker missed one day of work when he hurt his back. He returned to full duty and successfully performed the same work he had been doing for 20 years. The company sent him to Fitness For Duty Evaluation and provided a position description (PD) which had a 96-pound lifting requirement. The doctor found him unable to meet the PD requirement, so he was transferred to a lesser job and replaced by a person more than 10 years younger. He sued. The employer’s defense that he was not able to meet the job’s lifting requirement was rejected as pretext. The employer also admitted that the worker was successfully performing the job at the time of removal. The court found this contradictory to the defense. The PD had been created for this one fitness evaluation and never applied to any other employee. No one was actually required to lift 96 pounds in the real job; it was not necessary for successful performance. The replacement did not lift 96 pounds. The court found the employer’s defense to be worse than pretext. It ruled it to be dishonest, “objectively unreasonable” and “nonsensical.” Duncan v. Fleetwood Motor Homes of Ind. (7th Cir., 2008).
Disability
Bladder control is major life activity. The ADA defines disability as a long-term condition that significantly impairs a major life activity. A worker was removed from her assembly line job because an impaired bladder required frequent bathroom breaks, which disrupted the production flow. The employee argued that an accommodation could be made. The court ruled her ADA case should proceed to trial, finding that bladder control is a major life activity, and the issue of whether accommodation was practicable was a question for the jury. Wirtz v. Ford Motor Co. (E.D. Mich., 2008).
Conflicting medical opinions should have resulted in a third IME. A state trooper was placed off-duty due to reports of unusual behavior. She was sent for a psychological evaluation to determine if she could return to duty. Her own doctor and the employer’s doctor reached conflicting results: Her doctor concluded “fit for duty.” The employer continued to prevent her return based on its doctor’s “not fit” recommendation. The trooper filed an ADA case. The court ruled that the department should have sought a third-party independent medical evaluation to resolve the conflict rather than continue the trooper on indefinite leave. Broberg v. Ill. State Police (N.D. Ill., 2008).
Race—Improper Hiring Process
Two plaintiffs (one African American, one White) show evidence of race discrimination in the manipulation of hiring processes.
Subjective interview process and manipulated scores show intentional discrimination. A panel of supervisors ignored agency policy which required a defined set of criteria for hiring mechanics. They had loose categories without clear benchmarks. Following the interviews, the panel members also changed the original scores of some White candidates to give more points, elevating them to the hiring list. The end result was a list of White hires, with one African American candidate “to satisfy central management.” A highly qualified African American candidate was rejected, and sued. Among the numerous disparities, the panel could not explain to the court why his perfect safety record was rated only “4” while a White applicant with two safety violations had his safety score boosted after the interviews to a “6” and was hired; why the African American’s near-perfect attendance was rated 3.7 but two White candidates with exactly the same record had scores changed to 4.2 and 5.5; and why the White candidates’ scores were changed for the better after the interview process, but no non-White candidate scores were revised upward. Dunlap v. Tenn. Valley Auth. (6th Cir., 2008).
Evidence indicates discrimination against White candidate. A White applicant’s 42 U.S. Code §1981 case was allowed to proceed to trial based on evidence that he was more qualified than an African American who was hired. The person hired did not have the required five-year minimum experience, had a lower interview score, and was inserted at the last phase instead of undergoing the full process like other candidates. There was also an inference that the organization did not want to see an all-White male hire list, so one minority was inserted for appearances, thus eliminating the more qualified plaintiff. Reilly v. TXU Corp. (5th Cir., 2008)
Both of these cases involve improper hiring processes. One was manipulated to keep out more qualified African Americans except for one “token” hire. The other put in a token hire. Both racially discriminated and kept more qualified workers from benefiting the organization. “Diversity” is not about manipulating the system to get some token hires. Diversity is not achieved by having a token hire here and there. Rather, it requires wide recruiting, training, validation of criteria, identification of barriers and a fair process that hires good performers.
What is Race? 42 U.S. Code §1981.
The April Legal Update listed a case that applied the §1981 race discrimination statute to anti-Semitism. This month, a court allows an “Iranian race” case.
“Foreign race” qualifies for §1981. Section 1981 prohibits race discrimination. The court has allowed a case to proceed to trial based on a claim of the plaintiff’s “foreign race.” The U.S. Supreme Court long ago ruled that “ethnicity,” as opposed to national origin, can equate to “race” for §1981 purposes. Thus, Hispanic, Jewish, Arab, etc., ethnicity cases have been allowed. In Abdullahi v. Prada USA Corp. (7th Cir., 2008), the plaintiff claimed “foreign race-Iranian.” The court noted that Iranians are generally racially categorized as White. However, “at the time §1981 was passed (in the year 1866), it was common to refer to nationalities or ethnic groups as races.” [In the early 1900’s Congress passed immigration laws to bar entry by the “Southern European Races” and cut the influx of Italians, Greeks, Albanians, Serbs and Slavs.] So, the court decided that a jury should determine whether any discrimination was due to the plaintiff’s ethnicity under §1981, or only due to her national origin.
Family and Medical Leave Act
Concurrent count of FMLA and Workers Compensation. In Dotson v. BRP US, Inc. (7th Cir., 2008), the court verified that an employer may count time off under Workers Compensation as FMLA leave as well. Once the FMLA time expires, there is no prohibition against replacing the employee (though most state Workers Compensation rules do require reinstatement once the employee does eventually recuperate). The court held that the key to doing this is a clear statement about concurrent FMLA-WC leave in the employee handbook, and written notice to the individual employee at the time the leave is being taken.
Outside work inconsistent with FMLA leave warrants discharge. An administrator took FMLA leave due to stress. The FMLA request stated that he was “unable to perform work of any kind.” However, while on FMLA he worked another job selling real estate. The employer fired him upon discovery of this work. In the ensuing case, the court found valid reason to justify the discharge for having “misrepresented his leave” to the employer. Lackmar v. Recovery Services of N.J., Inc. (D. NJ, 2008). Be aware that this case was about misrepresenting a leave; it does not mean that all “outside work” can be prohibited during FMLA. If that work is not inconsistent with the purpose of the leave and is not kept secret, so the leave is used to increase that work instead of one’s regular job, then continuing a second job or sideline is not grounds for discharge and an employer may not be able to prohibit such work. [Example: A construction worker with a broken arm could take FMLA from that work yet still continue part-time work of selling real estate and continue other non-arm-related activities without violating terms of FMLA leave.]
Supervisor’s gripes and sudden performance concerns indicate retaliation. A supervisor griped about a long-term employee’s time off for FMLA. Upon her return, the employee was suddenly subject to criticism of her performance, and then fired only four months later. The evidence that she had worked in the same job for 21 years with absolutely no critique until she took FMLA, combined with the supervisor’s negative comments about her being on leave, were sufficient for a conclusion that the discharge was retaliatory. Gross v. Bank One (E.D. Kentucky, 2008).
RESPECTFUL WORKPLACE PROGRAM Thursday, May 15, 2008
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Location: US Bank Building, Lower Level Conference Center
One S. Pinckney Street, Madison, Wisconsin 53703
Hours of Program: 8:15 a.m. - 12:00 noon
Registration/Coffee/Refreshments: 7:45 a.m.
Preventing Liability for Harassment and Violence. Preventing a fire is easier than putting it out! This program focuses on both EEO harassment and safe place issues in the workplace. It covers a manager’s Duty of Care, how to recognize and address harassment, intimidation and threat situations.
(1) Learn the legal definition of respectful workplace under the Equal Opportunity (Harassment) and Safe Place Laws.
(2) Gain an understanding of how the laws apply to practical, everyday situations.
(3) Understand each person’s rights and obligations under the law.
(4) Understand (especially for supervisors) the steps to take upon being informed of the existence of a hostile environment in the workplace.
(5) Understand how to resolve situations before they harm people and generate legal action.
This program brings understanding of employees’ responsibilities toward each other and covers how to effectively address and resolve issues. It is approved for 3.5 hours SHRM recertification credits.
About the Presenter: Bob Gregg, a partner in Boardman Law Firm of Madison, Wisconsin, has been professionally involved in employment relations and civil rights work for over 30 years. Bob has designed anti-harassment policies and procedures for numerous public and private employers and academic institutions, and he litigates employment cases. Bob is a member of the Society for Human Resource Management and the National Speakers Association, and is a national faculty member of the American Association for Affirmative Action.
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Cost: $65.00 per attendee, including materials
To Register: Mail this form, along with your check made payable to Boardman Law Firm, to:
Jan Murray, Boardman Law Firm, P.O. Box 927, Madison, WI 53701-0927
Name/Affiliation: ____________________
Phone/Address: ____________________
If you have any questions, call Jan (608-283-1747) or Bob (608-283-1751).
