Tuesday, November 4, 2014

Wisconsin Employee Rights on Election Day

Many people wonder their rights to be able to go vote on Election Day when they have to work during the day during the majority of the time the polls are open.  Here is a quick summary of your rights pursuant to Wisconsin Statute, Section 6.76:

1) "...entitled to vote at an election is entitled to be absent from work while the polls are open for a period not to exceed 3
2) "The elector shall notify the affected employer before election day of
the intended absence." Wis. Stat. sec. 6.76(1)
3) "The employer may designate the time of day for the absence." Wis. Stat. sec. 6.76(1)
4) "No penalty, other than a deduction for time lost, may be imposed upon an elector by his or her employer by reason of the absence authorized by this section." Wis. Stat. sec. 6.76(2)
successive hours to vote." Wis. Stat. sec. 6.76(1);

So, get out there and vote!

Wednesday, October 22, 2014

Does FMLA Leave and Short-Term Disability Leave Run Concurrently?

A common "myth" that floats around is that an employer cannot require an employer who is out on Family and Medical Leave Act leave to also concurrently use their short-term disability benefits if they are employed for an employer who provides for such.  However, this is not true and most employers require that both run concurrently.  This is done because, while an employer is obligated to provide the 2 weeks (under Wisconsin FMLA) or 12 weeks (under federal FMLA) leave, they are not required to provide above and beyond that (barring a potential to provide leave as a reasonable accommodation under the Americans with Disabilities Act (ADA)) and if STD and FMLA is not ran concurrently, an employee could be off work well beyond 12 weeks.

Thursday, October 16, 2014

Halloween Edition of the Employment Law Blog

Mark Toth over at the ManpowerGroup blog hosted this month's edition of the Employment Law Blog Carnival and it's a Halloween edition!  Check it out here.

Tuesday, September 23, 2014

Western District of Wisconsin Denies Employer's Summary Judgment Motion in Age Discrimination Case

Diana Schaefer worked for Bank Mutual for 10 years, including eight years as a bank office manager.  In 2011, Schaefer got a new manager, Tom Kendall, who wanted to terminate Schaefer almost immediately.  When Kendall found out that Schaefer had submitted an inaccurate timesheet, despite that fact she was salaried, he told the director of human resources who then fired Schaefer, who was then 56-years-old, and Bank Mutual then hired a 36-year-old woman who lacked management experience.  Schaefer sued Bank Mutual alleging age discrimination under the Age Discrimination in Employment Act ("ADEA") in the Western District of Wisconsin, and in an Opinion and Order dated August 29, 2014, Judge James D. Peterson denied Bank Mutual's Motion for Summary Judgment holding that Schaefer "adduced sufficient evidence to support a reasonable jury verdict that Bank Mutual's purported reason for firing her was a pretext, and that Schaefer's age was the but-for case of her termination."

In his decision, Judge Peterson noted the relevant policies of Bank Mutual's regarding attendance and time keeping, as well as their disciplinary policy.  Though Schaefer was salaried and her hours were non-consequential to her pay as an exempt employee under state and federal wage and hour laws, Bank Mutual still required her to keep an accurate accounting of the days and hours she worked and had a policy stating falsification could lead to termination, which is how Schaefer came to be fired.  Judge Peterson also noted that Bank Mutual fired three (3) other managers for falsifying their time records since 2007, two of whom were over the age of 40. 

Schaefer proceeded under the indirect method of proving age discrimination, and the parties agreed to two prongs of the prima facie case:  that she is over the age of 40 (thus, in the protected class), and that she suffered an adverse employment action (she was fired).  The parties then disagreed over the two remaining prongs:  whether she was meeting the employer's legitimate interested, and whether younger employees were treated more favorably.  Bank Mutual argued Schaefer was not meeting their legitimate interest because of her falsification of time sheets, and Schaefer naturally argued that this was pretext.

Schaefer argued that the two time sheet errors were merely honest mistakes.  The court noted that Bank Mutual's policies state that they may terminate an employee who makes this mistake, and that her mistakes were not "falsification," and though they violated Bank Mutual's policies, they did not do so in a way that would warrant termination under those policies.  Furthermore, the Court noted that Bank Mutual declined to initially terminate Schaefer when Kendall first made the recommendation which evidenced that she was meeting their legitimate expectations.  Because she was able to show she was meeting Bank Mutual's legitimate interest, she is entitled to the benefit of a more relaxed showing at step four in her prima facie case:  she need only show that she was replaced by a substantially younger employee, which she also did.

Judge Peterson ultimately found Bank Mutual's termination of Schaefer to be "suspicious" given their written policies and the offenses for which Schaefer was terminated given Kendall's attempts to get her fired in the past. The court also noted at least one other employee who committed a similar violation and was not terminated like Schaefer.  Because Kendall influenced the human resource director's decision so heavily, the court applied the Cat's Paw theory of discrimination.

The case is Diana Schaefer v. Bank Mutual, Case No. 13-cv-713-jdp (W.D. Wis.)

Tuesday, September 9, 2014

Massachusetts Enacts Domestic Violence Leave for Employees

In the wake of the Ray and Janay Rice incident sweeping the news across the country, Massachusetts Governor Deval Patrick has enacted emergency legislation entitled “An Act relative to domestic violence.”  The new law is effective immediately and mandates that all employers with 50 or more employees permit an employee to take up to 15 days of leave from work in any 12-month period if the employee, or a family member (defined below) of the employee, is a victim of abusive behavior and the employee is using the leave from work to:
  • Seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; attend child custody proceedings; or address other issues directly related to the abusive behavior against the employee or family member of the employee; and
  • The employee is not the perpetrator of the abusive behavior against such employee’s family member.
The new law has several important definitions:

"Family members" include:
  • Persons who are married to one another;
  • Persons in a substantive dating or engagement relationship and who reside together;
  • Persons having a child in common regardless of whether they have ever married or resided together
  • A parent, step-parent, child, step-child, sibling, grandparent or grandchild; or
  • Persons in a guardianship relationship.
The Act defines “abusive behavior” as:
  • Domestic violence, defined as abuse by a person with whom the individual is in a relationship
  • Stalking
  • Sexual assault
  • Kidnapping
There are several other nuances of the law but because this does not help or affect Wisconsin, I will not delve into those here in this post.  For more information on the new law, click here.

There is currently no such law at the federal level, though Rep. Lynn Woolsey (D-CA) has attempted several times over the years to get such legislation passed in Congress, which I have written about before here.

Wednesday, September 3, 2014

Recent NLRB Decision Holds Weingarten Rights Extend to Workplace Drug and Alcohol Testing

In a rather ground-breaking decision from the National Labor Relations Board ("NLRB"), in Ralph's Grocery Co., 361 NLRB No. 9 (2014), the Board held that an employee's Weingarten Rights extends to employees who request representation after an employer refers them for a workplace drug and alcohol test.  Weingarten Rights come out of a 1975 Supreme Court case whereby it was held that unionized employees have the right to have union representation at any interview or meeting that could lead to disciplinary action against you.  Thus, because the results of a drug and alcohol test could lead Weingarten Rights would extend to these situations and consider them "investigatory interviews."

The employee, Vittorio Razi, was ordered by his employer to take a drug and alcohol test.  Razi refused  and requested union representation, which he was denied.  After Razi refused to submit to the drug and alcohol testing, he was suspended and subsequently terminated.  The Board held that "[t]he drug and alcohol test, ordered as part of the Respondent’s investigation into Razi’s conduct, triggered Razi’s right to a Weingarten representative."  

In agreeing with the administrative law judge, the Board held:
We agree with the judge that the Respondent violated Section 8(a)(1) by requiring Vittorio Razi to submit to a drug and alcohol test notwithstanding his request for representation, and by suspending and discharging Razi for his refusal to take the test without representation.  Because the reason for Razi’s suspension and discharge is inextricably linked to his assertion of Weingarten rights, with which the Respondent unlawfully interfered, we find that the judge’s make-whole remedy is appropriate. 

There was discussion about Board Member Harry Johnson's dissenting opinion who believed the employer "had a legitimate interest in conducting its investigation and taking action without delay, particularly given the time-sensitive nature of sobriety tests."  However, given the facts of this case, the Board held that "although the investigation was triggered by the Respondent’s observations of Razi’s behavior, the Respondent did not take disciplinary action based “on the information it already had,” because the employer made no mention to Razi being under the influence in deciding to suspend and terminate his employment.  Thus, perhaps this case comes out differently if Razi was clearly under the influence and a safety hazard to himself and his coworkers, but even this scenario depends on very specific facts as such an observation can be highly subjective.  However, the only way to be sure of whether someone is under the influence is through a positive test result.

It is important to note that these cases are highly fact-specific and Razi prevailed in this matter specifically because he requested union representation before submitting to the drug and alcohol test.  If an employee refuses a drug and alcohol test and doesn't request union representation, there would not be a finding of violation of Weingarten Rights, unless the collective bargaining agreement ("CBA") requires such.

Wednesday, August 27, 2014

7th Circuit Rules Plaintiff Does Not Need Expert Testimony to Show Incapacitation in FMLA Claim

In a case originating out of Wisconsin, the Court of Appeals for the Seventh Circuit reversed a district court's grant of summary judgment holding that the law does not require a plaintiff to present expert testimony as to show that his serious health condition rendered him unable to work, which is one of the elements of a claim under the Family and Medical Leave Act ("FMLA").

FMLA

The FMLA provides that an eligible employee may take up to 12 weeks of leave during any 12-month period if he is unable to perform the functions of his position because of a serious health condition.  29 U.S.C. sec. 2612(a)(1)(D).

An employee is entitled to leave under the FMLA if (1) she is inflicted with a "serious health condition," and (2) that condition renders her unable to perform the functions of her job.  Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th Cir. 2011) (quoting Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 590 (7th Cir. 2008)).  A "serious health condition" is defined in part as "an illness, ... impairment, or ... mental condition that involves ... continuing treatment by a health care provider," 29 U.S.C. sec. 2611(11)(B), and a "period of incapacity," 29 C.F.R. 825.115 (2009).  "Incapacity" means the "inability to work ... or perform other regular daily activities due to the serious health condition."  29 C.F.R. sec. 825.113(b).  Because "incapacity" means the employee is unable to work "due to the serious health condition," a finding of incapacitation goes toward the second prong of the court's analysis as to when an employee is entitled to leave.  See Ames, 629 F.3d at 669.  Note, "incapacity" and "serious health condition" are interrelated, but are not interchangeable terms.

Facts

The plaintiff in this case, James Hansen, suffered from depression and sought regular medical attention for his condition.  The defendant-employer, Fincantieri Marine Group, LLC ("FMG"), has an attendance policy whereby an employee is terminated if they accumulate 10 or more points in a year for absences.  When Hansen reached 9 points and his job was in jeopardy, he requested FMLA leave for his serious health condition.  Hansen's physician then provided FMG with certification saying that his condition would cause episodic flare-ups that would prevent him from performing his job functions and that the frequency was four (4) episodes every six (6) months with a duration of the related incapacity of two to five days.

Apparently there was some confusion and mix-ups with Hansen's FMLA leave requests and he ended up incurring 13 points, which led to his termination for violation of FMG's attendance policy.  Hansen then sued FMG for FMLA interference and retaliation.  FMG moved for summary judgment, arguing that Hansen was not entitled to FMLA leave for his July 2011 absences because he significantly exceeded the estimated frequency of his physician's medical certification.  The district court denied FMG's motion, noting that it appeared Hansen was taking off more time than was medically necessary, but it was not so clear as to justify summary judgment.  However, shortly before trial, FMG sought reconsideration, arguing Hansen needed expert medical testimony to establish that he was incapacitated due to his serious health condition during the July 2011 absences and that he had none.  The district court agreed, concluding that expert medical testimony was required to prove that Hansen's serious health condition rendered him unable to perform the functions of his position during the absences for which he sought FMLA leave, and, therefore, granted summary judgment in favor of FMG on all claims.

7th Circuit's Discussion

For Hansen to prevail on his FMLA interference claim, the 7th Circuit held that he must show, inter alia, that he was entitled to take leave under the FMLA for his July 2011 absences, which was the focus of the appeal.  Parting of showing that he was entitled to leave meant showing a "serious health condition," which, as part of its definition, means showing incapacitation.

Hanse's physician was not used as an expert witness and was only used as a fact witness.  Hansen had no expert witness for trial.  FMG attempted to use prior 7th Circuit precedent for their position that Hansen needed expert witness testimony to show incapacitation but the 7th Circuit held the cases cited do not support such an argument.  (Those cases were Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 591 (7th Cir. 1999) and Haefling v. United Parcel Serv., Inc., 169 F.3d 494 (7th Cir. 1999)).  The court found that these cases merely stood for the proposition that a plaintiff needs "some medical evidence to establish a serious health condition."  The Court further found that Haefling supports Hansen's argument that he doesn't need expert testimony to establish incapacity and other circuits have held that lay testimony combined with medical testimony raises a genuine issue of material fact as to incapacity while two other circuits have held that lay testimony alone is sufficient to create a genuine issue as to incapacity.

Delving even further, the Court noted that the regulations addressing "continuing treatment" and "intermittent leave or reduced leave schedules" anticipate that the determination whether an employee is unable to work due to a serious health condition would not necessarily be made by a medical professional.  For example, an employee with asthma may be unable to report to work due to the onset of an asthma attack but may not necessarily seek treatment from a health care provider which means a health care provider would not have any personal knowledge about an employee's claimed incapacity for a particular day, as FMG wanted the Court to require Hansen to do for his absences in July 2011.

The Court held that Hansen presented medical documentation--his certification from his doctor--on the question of incapacity. 

The Court also discussion, in detail, the fact medical certifications only ask for "estimates" of an employee's incapacitation.  Hansen was denied FMLA leave when he exceeded the estimated number of frequencies of his incapacitation and the Court held that it is merely an estimate and that there are issues of material fact as to whether his July 2011 absences should have been covered by FMLA leave (though the court stated Hansen does not seem to have "an abundance of evidence" toward this end, but enough to raise a material issue of fact). 

The case is James G. Hansen v. Fincantieri Marine Group, LLC, et al., No. 13-3391 (7th Cir. August 18, 2014) and has been reversed and remanded to the district court.



Thursday, August 21, 2014

August Edition of the Employment Law Blog Carnival is Live!

The August 2014 Edition of Employment Law Blog Carnival is live, as hosted by Attorney Eric B. Meyer of The Employer Handbook.  It's the Instagram Edition.  #ELBC

Monday, August 18, 2014

San Francisco Latest City to Ban Employers from Asking Applicants About Criminal History in Initial Application

Effective August 13, 2014, San Francisco’s “Fair Chance Ordinance” prohibits San Francisco employers from asking applicants about their criminal history on the initial employment application.  Like other areas of the country with similar laws, it is only unlawful to inquire in the initial application.  After a "live interview" has been conducted, an employer may then ask about an applicant's criminal history ("except as to matters that are off limits").  As many people are aware, Wisconsin, under the Wisconsin Fair Employment Act (WFEA), allows employers to ask questions about an applicant's conviction record during the initial application, which does lead to a lot of litigation in and of itself, as issues surrounding the truthfulness of an applicant's information is often litigated.

For those curious about the new San Francisco ordinance, a FAQ can be found here, and the Notice Posting can be found here

Wednesday, August 6, 2014

7th Circuit Affirms Summary Judgment in Disability Discrimination and Failure to Accommodate Claim under the ADA After Employee with Down Syndrome Has Verbal Outburst at Coworker

In a very short opinion affirming a district court's grant of summary judgment in a disability discrimination and failure-to-accommodate case under the Americans with Disabilities Act ("ADA"), the Court of Appeals for the 7th Circuit held that an employee with Down Syndrome, Sean Reeves, could not show that his employer, Jewel, failed to accommodate his down syndrome or discriminated against him on the basis of his disability (Down Syndrome), after he was fired for a verbal outburst whereby he told a coworker, "fuck you, you stupid blonde."

Jewel is a supermarket chain and Reeves worked for Jewel as a bagger from June 1997 until his termination in April 2005.  Reeves has Down Syndrome, which is a genetic disorder which varies in severity, but causes lifelong intellectual disability and developmental delays.  As the 7th Circuit noted, because of his disability, Jewel gave Reeves, "an array of vocational tutoring early in his tenure," and "also instituted supervision policies that applied only to Reeves."  For example, at the end of each day, Reeve's supervisor would complete an evaluation form that either approved or disapproved of Reeve's performance in five job categories.  The form would then be sent to Reeve's parents, per their request.  Reeves was also exempted from collecting shopping carts from the parking lot following an incident where Reeves was found directing customers how to park their cars.

Reeves also, from time-to-time, had trouble complying with Jewel's workplace rules, but was never fired even though on at least one occasion, he engaged in theft of store merchandise, which, under Jewel's policy, is cause for immediate termination.  It was not until Reeves cursed at another coworker on April 11, 2005 that Jewel finally terminated his employment.  Reeves then filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), which found that there was reasonable cause to believe both that Jewel discriminated against Reeves because of his disability and that Jewel engaged in a pattern or practice of denying reasonable accommodations to a class of disabled employees.  A Right to Sue letter was eventually issued and Reeves' parents sued Jewel on his behalf.

The district court dismissed Reeves' failure-to-accommodate claim finding it was waived by not having been properly plead in the Complaint but the 7th Circuit found that Reeves did, in his Complaint, allege a claim for discrimination under the ADA and that ADA discrimination includes a failure to accommodate under 42 U.S.C. sec. 12112(b)(5)(A).  The 7th Circuit also held Reeves, "pled a number of facts relevant to his failure-to-accommodate claim in his complaint.  This was sufficient to preserve the argument."  However, finding that Reeves did not waive this claim, the 7th Circuit still ultimately held that this claim still failed on the merits.

The 7th Circuit held that Reeves' mother, Diana Reeves, did not make "reasonable efforts to help the other party decide what reasonable accommodations are necessary."  The 7th Circuit further held that there was never discussion of accommodations to prevent Reeves from cursing in front of customers.  Thus, summary judgment was affirmed.

The case is Sean Reeves, by his parents and next friends, John and Diana Reeves v. Jewel Food Stores, Inc., No. 13-3782 (7th Circuit, July 17, 2014)