Thursday, December 30, 2010

Law Firm Slapped with Sexual Harassment and Wrongful Termination Lawsuit

A Los Angeles-based law firm, Glancy Binkow & Goldberg, is facing a sexual harassment and wrongful termination lawsuit after it fired a female investigator, Ashlee Ilewicz, 14 months into the job after she complained about the performance of an attorney with the firm and about the hostile work environment she felt she was subjected to. And, as most sexual harassment and hostile work environment claims involve, this case contains some peculiar facts:
At the conclusion of the law firm’s 2009 holiday party, founding partner Lionel Z. Glancy took employees to a Los Angeles bikini bar named Fantasy Island, paid for their admissions and bought a lap dance for at least one employee, according to the lawsuit.

The lawsuit alleges that female employees at the firm were subjected to a hostile work environment that included “partners’ obsession with discussing sex in the workplace and derogatory comments about women.” One lawyer posted photographs of naked women on the wall of his office, and partners once gave a male employee binoculars to “leer at the hot women through the office windows,” the lawsuit says.
Source: L.A. Times

Tuesday, December 28, 2010

Wisconsin Law Journal on EEOC Investigations

In case anyone doesn't subscribe to the Wisconsin Law Journal and did not see the article on the web, I wanted to direct attention to Attorney Warren E. Buliox's article on EEOC investigations titled, "EEOC investigations can have broad scope." It's a great, short read.

EEOC Obtains $20,000 in Consent Decree Against Wisconsin Staffing Company in Title VII Suit

The Equal Employment Opportunity Commission (EEOC) obtained $20,000 under a consent decree entered yesterday, which ends a race discrimination and constructive discharge lawsuit against Rhinelander, Wis.-based staffing firm, Wisconsin Staffing Services, Inc., doing business as Nicolet Staffing. From the EEOC press release on the decree:

According to the EEOC’s suit, the president of the company allegedly engaged in repeated, acts of racial harassment toward a Native American employee, Carolyn Red Bear, allegedly including derogatory comments about Red Bear’s “ethnic” appearance, suggestions that she seek alternative employment in personal home care as more consistent with the skills of Native American people, and statements that she did not “fit in” with the white community in Ladysmith, Wis. Despite complaints, the EEOC contended, the company allowed a non-Native American co-worker to refer to herself at work using the fictitious name “Pink Feather,” allegedly to mock Red Bear.

Ultimately, according to the EEOC, Wisconsin Staffing Services forced Red Bear out of her job when she refused to comply with a directive from the company president to cut her hair, change her last name, and to stop “rubbing in” her heritage.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which makes it unlawful to harass employees based on race, including racial harassment. The EEOC filed suit (EEOC v. Wisconsin Staffing Services, Inc.. d/b/a Nicolet Staffing, Inc., Case No. 3:10-cv-543) in U.S. District Court for the Western District of Wisconsin after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to the $20,000 in monetary relief to Red Bear, the two-year consent decree resolving the lawsuit enjoins Wisconsin Staffing Services from engaging in discrimination or harassment based on race or retaliation in violation of Title VII. The consent decree also mandates that Wisconsin Staffing will implement and distribute policies prohibiting discrimination and retaliation and set up procedures for receiving and investigating complaints. The company must also provide two hours of training on race discrimination laws to managers and employees and an additional hour of training to any manager designated to investigate discrimination complaints. The company is also required to report to the EEOC about the company’s response to any complaints of alleged discrimination and post a remedial notice.

Tuesday, December 21, 2010

NLRB Proposes Rule to Require Posting of NLRA Rights

The National Labor Relations Board (NLRB) has submitted to the Federal Register a Notice of Proposed Rulemaking that would require employers to notify employees of their rights under the National Labor Relations Act (NLRA), similar to postings covering safety, wage and anti-discrimination laws. From the press release on the proposed rule:
As the Notice states, the Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Sunday, December 19, 2010

Massachusetts’ New Law Bans the Use of Questions About Criminal History on an “Initial Written Application” for Employment

Effective November 4, 2010, Massachusetts joined the fight against discrimination of applicants based upon their criminal information. The criminal offender record information ("CORI") law provides that it is unlawful for an employer to request criminal history information on an “initial written” employment application. The Massachusetts Commission Against Discrimination (MCAD) is the state agency that enforces this new law and has held in its Fact Sheet that any written form or application requesting an applicant’s criminal history prior to an interview falls under this prohibition. The Fact Sheet and clarification was needed because as you could expect, employers previously interpreted the CORI law to permit them to ask applicants about criminal history on documents other than the initial written application.

This law is quite different from Wisconsin's prohibition against arrest and conviction discrimination in employment. In Wisconsin it is lawful to inquire about an applicant's arrest and conviction record during the application and interview phase because it allows an employer to decide if any offense falls under the "substantially related" defense to discrimination based upon arrest and conviction record.

Minnesota Court Finds Misrepresentation During Hiring Process Amounts to Misconduct, Denies Unemployment Benefits

An unemployment benefits case out of Minnesota highlights some of the importance of how lying about or omitting information during the hiring process can cost an employee dearly, even in the absence of a disclosure policy. A grants manager, Krista Santillana, for an agency that dealt with the elderly was terminated after a year on the job after the employer discovered that she did not reveal during her job interview that she was the subject of an ongoing criminal investigation for theft at her previous employer. Apparently the employer read a newspaper account of Santillana’s conviction for felony exploitation of a vulnerable adult (writing personal checks to herself from a nursing home resident’s checkbook for amounts totaling $6,342), and then promptly terminated her employment.

Why didn't the employer know about this before they hired her? Well, during the interview process, Santillana was asked why she left her former employer and responded that she left because she was interested in part-time work. The employer never asked her about her criminal background, she did not tell her employer during the interview about the ongoing criminal investigation, and the background check that the employer performed before hiring her came back clear. After Santillana was hired, she was then charged with felony exploitation of a vulnerable adult. The employer didn't have a policy regarding the disclosure of pending criminal charges, etc and Santillana never offered the information up as a courtesy to the employer.

Upon termination Santillana applied for unemployment benefits with the State of Minnesota but was denied after the unemployment-law judge determined that Santillana was discharged for employment misconduct, which was subsequently upheld by the Minnesota Court of Appeals which clarified that “employment misconduct” includes a misrepresentation made during hiring and affirmed the denial of unemployment benefits.

It is somewhat understandable and obvious why Santillana did not inform the employer that she really separated from her last employer because of her alleged stealing and criminal activity. The employer never asked specifically about any pending criminal charges and Santillana did not want to voluntarily bring it up. Santillana did not technically violate any of the employer's policies during the hiring process however she was not 100% honest about why she left her former employer. It is clear she separated from her previous employer because of the criminal activity and the Minnesota Court of Appeals held the employer should have been informed of this despite not having a policy regarding that information.

The case is Santillana v. Central Minnesota Council on Aging and Minnesota Dep’t of Employment and Econ. Dev., No. 23466835-3 (Minn. Ct. App. Nov. 30, 2010).

Saturday, December 18, 2010

Unemployment Benefits to Resume for 12,000 Wisconsin Residents

Now that Obama extended the Bush tax cuts that provided for an extension of unemployment benefits for thousands of unemployed Americans, Wisconsin residents who qualify for the extension will see their benefits resume as of Friday night when the Department of Workforce Development began processing extension payments. From the Journal Sentinel article on the extension:

The agency pointed out that the legislation does not provide additional weeks of benefits to those who have exhausted all entitlements under previous law.

In Wisconsin, claimants are currently eligible for up to 86 weeks of benefits. In other states with higher unemployment, claimants are eligible for up to 99 weeks.

The U.S. Department of Labor says 94,291 people in Wisconsin are currently receiving extended unemployment benefits beyond the 26 weeks states always provide.

***

Key details
• Retroactive payments will be mailed Monday.

• Claimants should expect to receive payment within one to three business days after the agency processes their checks.

• Claimants can confirm that their payments have been made by using the claims inquiry system at the website www.ucclaim-wi.org or (800) 494-4944.

• Claimants can see which program (or "tier") they are in by reviewing their most recent benefits statement.

Enochs Law Firm

Tuesday, December 14, 2010

DOJ Files Title VII Suit Against Chicago School District for Refusing to Accommodate Teacher’s Pilgrimage to Mecca

In the first suit brought under a new cooperative program between the Department of Justice (DOJ) and the U.S. Equal Employment Opportunity Commission (EEOC), the DOJ alleges that the Berkeley School District in suburban Chicago violated the Civil Rights Act of 1964 by failing to reasonably accommodate Safoorah Khan's religious beliefs when she opted to quit her job after being denied three weeks of unpaid leave that would allow her to take a pilgrimage to Mecca.

The pilgrimage, known as Hajj, is required by Khan's religion. According to the complaint, Berkeley School District denied Ms. Khan’s request because the purpose of her leave was not related to her professional duties nor was it leave for any of the specific purposes set forth in the Professional Negotiations Agreement between the district and the teachers’ union.

The matter was initially charged with the EEOC who found reasonable cause to believe discrimination occurred and then it was referred the charge to the Department of Justice after conciliation failed. Here is the DOJ Press Release on the suit.

Enochs Law Firm

7th Circuit Overturns Eastern District of Wisconsin Injunction Against Republic Airways in Union Dispute

The Court of Appeals for the Seventh Circuit issued an opinion, authored by Judge Richard Posner, yesterday addressing what it labeled, "...a novel question under the Railway Labor Act, 45 U.S.C. §§ 151 et seq., which despite its name also governs labor relations in the airline industry."

The problem originated when Republic Airways acquired Frontier Airlines in October of last year. As with every acquisition, a number of changes were made and Republic Airways announced that it was shifting maintenance work on Frontier’s aircraft to Milwaukee—where maintenance is performed by nonunion workers—from Denver, where Frontier’s maintenance workers are represented by the Teamsters Union. Teamsters argued that its collective bargaining agreement with Frontier determines the rights of Frontier mechanics affected by the shift.

Republic Airways disputes Teamsters' position and asserts that the airlines that it owns, although separately incorporated, constitute a “single transportation system” or “single carrier,” within the meaning of the Railway Labor Act. This is significant because if it is held that Republic Airways and all that it owns is a "single carrier," then the Teamsters Union would not represent a majority of its members, and would not be authorized to represent Frontier’s workers.

Prior to reaching the 7th Circuit, the U.S. District Court for the Eastern District of Wisconsin issued a preliminary injunction forbidding Republic from altering pay, work rules, or working conditions until the National Mediation Board rules on the issue of whether Frontier is a single transportation system. The 7th Circuit found a problem with this injunction:
The injunction issued in this case does have a problem, but not a problem having to do with the district court’s authority—rather a problem with how that court has exercised its equitable discretion. The injunction maintains, for the indefinite future (it has no expiration date, and is “preliminary” in name only), what may well be an illegal status quo—a union supported by only a fourth of the bargaining unit yet acting as the bargaining representative of that minority. We are given no reason to think that a majority of Republic’s mechanics want to be represented by the Teamsters Union, and if not they may be placed at a disadvantage if Republic is required to extend special privileges to Frontier’s mechanics.
That is, the District court has placed a union in a workplace outside of federal law governing unionization of an airline. The 7th Circuit held that this "perverse result" can be fixed through "the application of age-old equitable principles" and ruled that the injunction must be modified to condition continuance on the Teamster Union’s prompt application to the National Mediation Board for a ruling on its representation status.

The case is Int’l Brotherhood of Teamsters Airline Division v. Frontier Airlines, Inc., No. 10-2291 (De. 13, 2010).

Enochs Law Firm

NLRB Weekly Summary of Cases

For the week of December 6-10.





Enochs Law Firm

Sunday, December 12, 2010

Milwaukee Journal Sentinel Article on the Wisconsin Education Association Council

The Milwaukee Journal Sentinel has an article about WEAC and their known resistance to change and reform. Very interesting read.


Enochs Law Firm

Winter Weather Stalls Union Contract Vote at Kohler

Today the United Auto Workers (UAW) Local 833 was scheduled to vote on a new labor contract but that has been cancelled due to the snow that has finally arrived in the Milwaukee area. A new date and time has not been set for the vote.




Enochs Law Firm

Saturday, December 11, 2010

Employer's Remarks About Employee's Miscarriage and Pregnancy Allow Discrimination Claim to Move Forward

A former employee, Pauline Rumbley, who first miscarried then became pregnant again within one year was terminated after allegedly failing to improve her job performance after being placed on a performance improvement plan (PIP). Prior to her termination, the employee complained to several human resource members about experiencing harassment related to her pregnancy and requested to be transferred to other positions including one beneath her skills and experience and that paid less but was denied. Part of the reason the former employee felt she was being harassed because of her pregnancy was because:

1) During the first pregnancy,Rumbley told May (her supervisor) that she was expecting. When she miscarried, Rumbley missed work. Upon her return to work following the miscarriage, Rumbley asked May if she could fill out a slip for sick leave and asked May to sign her sick leave slip. At that point, May told Rumbley “that he didn’t want [her] to start abusing [her] sick leave. And he asked if [she and her partner] were going to try again.”

2) Rumbley informed May on April 10, 2008, that she was expecting again. May responded by saying: “Look around, how many pregnant women do you see?”. Rumbley replied “None.” And then, according to Rumbley, May “said something about keeping it that way . . . [, w]e plan on keeping it that way[, or] we should keep it that way.”

3) On May 19, Rumbley and May met again. May remarked during the meeting that “even if they had to pay for maternity leave[,] then [Rumbley] sure as hell wouldn’t have a job when [she] came back.”

4) May confirmed to Rumbley, via a head nod, that another supervisor was trying to get rid of her beause of her pregnancy.

These comments loaned themselves to the Plaintiff to pursue a sex discrimination claim under Title VII as direct evidence and to avoid summary judgment on her disparate treatment claim, ruled the federal district court in Alabama.

The case is Rumbley vs. Austal USA , Civil Action No. 1:09-499-KD-B

Enochs Law Firm

Wednesday, December 8, 2010

Employment Case Law Update

--Hertz v Luzenac America, Inc., DColo, November 29, 2010: Employer's motion for summary judgment of former employee's Title VII retaliation claim DENIED. This case is very complicated and has involved a whole lot of litigation and a whole lot of motions. This motion involves the employer's attempt to get the former employee's claim that he was retaliated against by the Defendant when it “falsely accused him of stealing its trade secrets” and by filing “baseless counterclaims against him” dismissed. The court denied this motion because it held the alleged false accusations made by the Defendant in an email to constitute a "materially adverse action" under the prima facie case in their burden under the McDonnell Douglas burden-shifting framework. However, the court did not find the employer's counterclaims to be a "materially adverse action."

--Woolsey v Klingspor Abrasives, Inc., NDTex, December 1, 2010: Court DENIES in part and GRANTS in part Defendant's motion for summary judgment. Plaintiff filed age and sex discrimination claims under the ADA and Title VII and Texas state statutes and retaliation claims under those statutes as well. Plaintiff produced evidence of a remark (employer stated two older employees were no "spring chickens") that related to his age and showed that Defendant's reason for terminating him differed in several areas and at several times which allowed him to survive summary judgment on his age claim.

With respect to Plaintiff's sex discrimination claim, he failed to respond to Defendant's response and was deemed to have abandoned the claim. Likewise, Plaintiff's retaliation claim failed even though a clever attempt to use the expanded definition of "adverse employment action" under Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) was implemented to suggest Defendant's filing of a declaratory judgment could be viewed as dissuading him from "asking his lawyer to write a letter to the former employer, raising allegations of age discrimination and retaliation, where the employer responds with an out-of-state lawsuit against that now unemployed worker." The court was unconvinced by this argument because Plaintiff filed an EEOC complaint a mere 12 days after the filing of the declaratory judgment.


Enochs Law Firm

NLRB Weekly Summary of Cases

For the week of November 29, 2010-December 3, 2010.








Enochs Law Firm

Friday, December 3, 2010

Skip the Holiday Party, Say Employees

It's that time of year where the office holiday party is typically held and while employers are continuously learning how not to host a party because of legal liabilities like sexual harassment and drunk driving, employees appear to be in agreement that more money in their pocket is desired over the annual office holiday party.


Enochs Law Firm

Enochs Law Firm on WISN 1130am Talk Radio's "Valor Latino" This Weekend

This Sunday from 9:30-10am I will be interviewed on Milwaukee's News/Talk 1130am WISN Sunday radio show, "Valor Latino," hosted by Perfect Rivera. Tune in!

UPDATE: The show will air Sunday, December 19, 2010 from 9:30-10am.

Wednesday, December 1, 2010

Enochs Law Firm in Wisconsin Law Journal

I recently provided commentary for an article in the Wisconsin Law Journal titled, "Antisocial networking can backfire," about the recent NLRB complaint filing in Connecticut regarding an employee's Facebook posting about her place of employment. Have a look!

Tuesday, November 30, 2010

EEOC Announces Record Numbers in Annual Report

The Equal Employment Opportunity Commission in its fiscal year 2010 FY 2010 Performance and Accountability Report revealed that though it is making progress in rebuilding its capacity to enforce the civil rights laws protecting the nation’s workers, their backlog is up only one percent. However, optimism made its way into the report when it was also revealed that the EEOC received a record 99,922 charges and secured more than $319 million in monetary benefits for individuals—the highest level of relief obtained through administrative enforcement in the Commission’s history. Other significant accomplishments this year included:

•The mediation program ended the year with a record 9,370 resolutions, 10
percent more than FY 2009 levels, and more than $142 million in monetary benefits;
•The EEOC also expanded its reach to underserved communities by providing educational training, and public outreach events to approximately 250,000 persons;
•The agency continued its concerted effort to build a strong national systemic enforcement program. At the end of the fiscal year, 465 systemic investigations, involving more than 2,000 charges, were being undertaken;
•The EEOC resolved a total of 7,213 requests for hearings in the Federal Sector, securing more than $63 million in relief for parties who requested hearings. The agency also timely resolved more than 66 percent of Federal Sector appeals.

It's good to see that the EEOC is getting more accomplished considering most people have a distaste for seeking redress through them because of the snail pace at which investigations move at and the overwhelmingly low odds of them accepting a case for representation. New legislation has given them more teeth to file claims and with the change of administration when Obama came into office, more money was allocated to the EEOC to expand their services which has included expanding walk-in hours, and issuing a plain language brochure to assist potential charging parties in understanding their rights and the EEOC charge process. Also, individuals can now contact the agency by phone, by mail, by e-mail, by going to the EEOC website, or by visiting EEOC field offices.


Enochs Law Firm

NLRB Weekly Summary of Cases

For the week of November 22-26, 2010.

Monday, November 29, 2010

9th Circuit Holds Repayment of Training Costs Not Violative of FLSA

The Court of Appeals for the Ninth Circuit affirmed a lower court's decision to deny Plaintiff's Motion for Leave to File her Proposed First Amended Complaint because it found training costs due if employee quit before 5 years of service did not cause her to receive less than the federal minimum wage during her final workweek because the training costs were not "kick-backs" as defined under 29 C.F.R. § 535.31.

This is a very interesting case because the Plaintiff could have plead that she was paid below the minimum wage if repayment of the training costs was a "kick-back." Plaintiff did claim that whether the employer deducts the amount or demands it after issuing a paycheck is parallel but the court did not buy that argument and held, instead, that because they paid the employee above the minimum wage rate in the final workweek that it did not violate the FLSA--though some deductions were made from the final paycheck.

In coming to its conclusion, the 9th Circuit relied upon 7th Circuit precedent from Heder v. City of Two Rivers, Wisconsin, 295 F.3d 777 (7th Cir. 2002). Heder was decided in the context of a similar reimbursement scheme for city firefighters.
The Seventh Circuit upheld the reimbursement agreement, comparing it to a loan; the cost of the training was a loan the city made to its firefighters, repayment of which was forgiven after three years. Id. at 781-82. If, however, a firefighter left before three years of service, the loan became due. Id. As long as the city paid departing firefighters at least the statutory minimum wage, it could collect the training costs as an ordinary creditor. See id. at 779.
Applying this persuasive precedent, the Court held that the training costs were a voluntarily accepted loan, not a kick-back because the City could have hired already-licensed and trained individuals.

The case is Gordon v. Oakland, No. 09-16167 (9th Cir. Nov. 19, 2010)).

Enochs Law Firm

Employment Case Law Update

--Naik v Boehringer Ingelheim Pharm, Inc., 7thCir, November 22, 2010, No. 09-2960: Summary judgment upheld for employer after 53-year-old former pharmaceutical sales rep failed to show that termination based on falsification of call records, was pretext for age and national origin (Indian) discrimination in violation of the Age Discrimination in Employment Act (ADEA) and Title VII.

The employer's legitimate non-discriminatory reason (LNDR) was pretty damning against the plaintiff and it was also revealed that at least two other employees were terminated and two others resigned for the same offense in previous years. The 7th Circuit also held that Plaintiff failed to establish his prima facie case under McDonnell Douglas in two different areas, one being that not one single employee who committed this offense remained on the job.

Plaintiff also sought to convince the Court to adopt the more relaxed standard articulated in Pantoja v. American NTN Bearing Manufacturing Corp., 495 F.3d 840 (7th Cir. 2007), to his claims. In Pantoja, the 7th Circuit held that the plaintiff only had to show that his “employer sought someone to perform the same work after he left.” Id. at 846 (internal citations omitted). This argument failed because Plaintiff failed to show in his prima facie case that he was meeting "the employer's legitimate expectations."

--Malarkey v The Reading Hosp. and Med Ctr., EDPenn, November 18, 2010, NO. 09-3278: An employee’s age discrimination lawsuit could not move forward due to failure to make a prima facie case; evidence showed that the employee did not suffer an adverse employment action, but only that her personal preference for a job was not fulfilled, which is not actionable under the ADEA or Pennsylvania state law.

--McEnroe v MicroSoft, EDWash, November 18, 2010, NO. CV-09-5053-LRS: Summary judgment granted for employer after Plaintiff, a telecommuting HR employee who claimed that her disability precluded her from being able to come into the office, failed to make out claims under federal and state law that her nonpromotion to various higher level positions constituted an unlawful failure to accommodate, disability bias, or retaliation.

Plaintiff asserted that she was unable to work at or travel to the worksite due to several disabling conditions, including panic disorder, agoraphobia, major depression, post-traumatic stress disorder, and irritable bowel syndrome. The court rejected the employee's failure to accommodate claims as to the nonpromotions because she was unable to show that an exclusive telecommuting arrangement would have been a reasonable accommodation for the positions sought. The record demonstrated that in-person attendance was an essential function of each of the positions.

Enochs Law Firm

Friday, November 26, 2010

Committee Decides Dismissed Charges Will Stay on CCAP

The committee that manages the Consolidated Court Automation Programs (CCAP) has decided that Wisconsin court clerks must post all dismissed charges on CCAP. CCAP has been the center of much attention and potential legislation as many Wisconsin residents with CCAP entries feel they have been harmed by having an entry even though their criminal charge(s) or civil suit was dimissed, which employers, landlords and all others can readily see. Milwaukee County Clerk of Court John Barrett voiced huge concern with this decision:
“If every crazy charge is out there, are we somehow being unfair to people?” Barrett said. “Does this adversely impact individuals?”

Barrett finally agreed that more information is better, but said he wanted to include disclaimers on the case sites explaining why charges were amended. Bousquet asked him if he would help draft such language.

He agreed and in the end the committee voted unanimously to list all the charges.
It's great that Wisconsin is one of a few states that provide for arrest and conviction record discrimination protection but it's somewhat ironic that CCAP exist to make it somewhat easier for employers to discriminate against potential employees by readily accessing an applicant's court history. People get brought up on bogus charges all the time and usually the matters get dismissed by CCAP leaves that person with a long-lasting scar and tarnished reputation online.

Enochs Law Firm

Thursday, November 25, 2010

Jackson Woman Files Suit Against Michels Corporation Alleging Disability Discrimination

Lynne Kossow of Jackson, WI told her bosses at major construction firm, Michels Corporation, in May 2009 that she had relapsed into alcoholism after 14 years of sobriety and would immediately seek treatment. Michels then wanted access to her medical records and at the advice of hospital staff and her treating physician, Kossow said, she signed releases giving Michels Corporation's employee assistance program broad access to her medical records. She was then fired in June 2009 which prompted her to file a complaint with the Equal Employment Opportunity Commission (EEOC) which found reasonable cause that Michels had violated the ADA by seeking an overly broad medical records release, and retaliated against Kossow for initially opposing the request of therapy notes.

Kossow has filed a claim in federal court with the Eastern District of Wisconsin in Milwaukee seeking compensatory and punitive damages from Michels, based in Brownsville. For more, here is the Milwaukee Journal Sentinel article on the suit.

Enochs Law Firm

Monday, November 22, 2010

Divided Wisconsin Supreme Court Affirms Court of Appeal's Holding At-Will Employment Does Not Preclude Payment of Benefits

Without Justice Annette K. Ziegler participating, the Wisconsin Supreme Court split evenly on an appeal from the Court of Appeals on the issue of whether an at-will employee may be deprived of benefits that accrued before he or she was let go if the firing was to prevent payment of those benefits. The Court of Appeals held that at-will employment does not preclude payment of accrued benefits if the employee was terminated in bad faith to avoid paying out of accrued benefits, reversing the circuit court judge.

The case is Phillips vs. U.S. Bank, N.A.,2009AP246 (Feb. 2, 2010).

Enochs Law Firm

Employment Case Law Update

--Alvarez v Des Moines Bolt Supply, Inc., 8thCir, No. 09-1465: 8th Circuit affirms summary judgment for employer after Plaintiff failed to support a reasonable inference that she was suspended in retaliation for making a complaint of sexual harassment. Summary judgment was also affirmed on Plaintiff's constructive discharge claim.
There was evidence that Plaintiff engaged in activity in violation of employer policy, which is what led to a 5-day suspension, and thus the issue was ultimately whether Plaintiff was suspended for filing a charge of harassment or in retaliation. The Court found the employer's reason to be the real reason and also noted that had the supervisor accused of sexual harassment been the only one suspended, rise to a charge of sex discrimination could have occurred.

--Gallo v W.B. Mason Co., Inc, DMass: Plaintiff's gender-based associational discrimination claim fails because his complaint alleged that he was fired because he protested discrimination against female employees, not because he was a male associating with females. Thus, the court held, "[t]here is no allegation that he was discriminated against on the basis of his gender."

--Alastra v National City Corp., EDMich: Plaintiff, who suffers from epilepsy with grand-mal seizures, allowed to proceed forward on her disability discrimination claim. The court rejected the bank's assertion that the employee was not qualified due to her absences, finding that the requirement of not incurring 10 absences in one year was not an essential function of the part-time teller position. The court also rejected the employer's contention that providing coverage for full-time employees, regardless of the time of their shifts, was an essential function of her job. Even if the ability to incur less than 10 absences in one year were an essential function, the court found that the employee could have met the requirement had she been provided with a later start time. The employee presented sufficient evidence to support a finding that the bank failed to reasonably accommodate her disability by not scheduling her for shifts that began at 10:00 a.m. or later. She sufficiently disputed the bank's assertion that the requested accommodation was unreasonable because it would impose an undue hardship.

Enochs Law Firm

Thursday, November 18, 2010

Enochs Law Firm in 4PMmag.com on Facebook and Litigation

I recently authored an article for a local magazine, 4PM Magazine, about Facebook and litigation and the rising issues surrounding the new challenge to the law.

Another Facebook/Social Media Policy Attacked Over Speech Restrictions

In the wake of NLRB complaint out of Connecticut regarding an employee's Facebook posting that has caused quite the stir comes a complaint by the Teachers’ Union in Manatee County, Florida. The Union has filed a similar complaint alleging that a proposed social-media policy is overly broad so as to violate their right to free speech pursuant to the 1st Amendment. The Delaware Employment Law Blog picked up the story and has an excellent analysis of the case:

The basic free-speech analysis asks three questions. First, is the speech on a matter of public concern? If not, constitutional protections do not attach. For example, if the policy prohibits employees from discussing standard workplace grievances, such as work schedules or budget issues, the speech is not of a public concern and not protected.

Second, is the employee speaking as a citizen or as an employee? This step of the analysis is relatively new and derives from the Supreme Court’s Garcetti decision. The newness of the question means that the courts are still navigating the exact contours and the decisions vary greatly. Generally speaking, though, if an employee speaks only to his or her supervisor or coworkers, as opposed to, for example, writing a letter to the editor of a local newspaper, the speech is said to have been made as an employee and is not therefore protected.

Third, if the speech is on a matter of public concern and is made by an employee speaking as a citizen, the courts conduct a balancing test to determine whether the government’s interest in maintaining an effective, non-disruptive workplace outweighs the employee’s right to speak freely.

If the Florida case proceeds, the court will have to determine whether the proposed policy has the effect of prohibiting what would otherwise be protected speech. One problem for the Union, though, is whether the case will proceed at all. It is only a proposed policy, so there may be an issue of justiciability—whether the court has jurisdiction to hear the case when there has not yet been any harm to the plaintiff. Some may argue that, by merely filing suit instead of trying to negotiate the terms of the policy, the Union has acted in an unreasonable manner designed more for media attention than to effectuate meaningful change. We’ll have to wait to see what the court decides.

I expect to see a lot of these social media policies challenged because it was previously advised to many employers by counsel to implement them but as any clever attorney will do, theories of how they violate labor and employment laws have begun to circulate. Stay tuned!

Enochs Law Firm

Department of Labor Study Shows Unemployment Insurance Has Positive Impact on Country

The Department of Labor ("DOL") released a study today that revealed some positive findings regarding unemployment insurance and the impact it has on the country. Some of the key findings were:
--For every dollar spent on UI, economic activity increases by two dollars.
--During each quarter of the recent recession, UI benefits kept an average of 1.6 million Americans on the job.
--At the height of the recession, UI benefits averted 1.8 million job losses and kept the unemployment rate approximately 1.2 percentage points lower.
--UI benefits reduced the fall in GDP by 18 percent. Nominal GDP was $175 billion higher in 2009 than it would have been without UI benefits. In total, unemployment insurance kept GDP $315 billion higher from the start of the recession through the second quarter of 2010.
For more, here is the press release on the study.

Enochs Law Firm

NLRB Invites Briefs in Case Against Roundy's Not Allowing Nonemployee Union Access in Milwaukee-Area Stores

Earlier in the NLRB weekly summary of cases I directed your attention to a case out of Milwaukee involving grocery store chain Roundy's not allowing nonemployee union access 26 of its store locations. The issue began when the Milwaukee Building and Construction Trades Council begain distributing handbills in the common areas(sidewalks and parking lots) in front of 26 Roundy’s stores asking consumers not to patronize the shops, alleging that Roundy’s employed nonunion contractors that did not pay prevailing wages and benefits to build and renovate its stores. The picketing was peaceful and did not interfere with access to or egress from the stores. Roundy’s contacted the police in an effort to have the handbillers expelled.

An administrative law judge determined that at 23 of its store locations, Roundy’s possessed only a nonexclusive easement in the areas from which it attempted to expel the handbillers. The Board agreed with the ALJ and found that Roundy’s unlawfully prohibited handbilling in front of those stores. Now the Board is inviting all interested parties to file briefs regarding the question of what legal standard the Board should apply in determining whether an employer has violated the NLRA by denying nonemployee union agents access to its premises while permitting other individuals, groups, and organizations to use its premises for various activities.

For more and to view the invitation to submit a brief, click here for the official press release.

Wednesday, November 17, 2010

NLRB Weekly Summary of Cases

For the week of November 8-12. One includes a case out of Milwaukee involving Roundy's unlawful prohibition of handbilling by nonemployee union agents in front of 23 store locations where it had no property interest that authorized it to exclude the handbillers.

Monday, November 15, 2010

Employee's Clever Attempt to Use Employer's Own Handbook Against Them Fails

Many of you employees have probably seen and many of you employers and human resource department personnel have probably authored language into employee handbooks that read, "...policies set forth in this handbook are not intended to create a contract, nor are they to be construed to constitute contractual obligations of any kind or a contract of employment between employer and any of its employees." This language is inserted for the obvious reason of ensuring that the default at-will terms of employment are not changed to for cause. However, that language gave birth to a rather clever and seemingly novel motion for summary judgment for a plaintiff who was sued by his former employer after the employer sought money back it gave the former employee-defendant for educational and training courses. The defendant asserted that the language quoted above meant what it says regarding no contract being created and that therefore he does not owe the money back. The New York appellate court disagreed.

The court started out by noting that the issue of whether a contract is ambiguous is an issue of law to be decided by a court and that language in a contract is not ambiguous just because parties interpret them differently. The court then explains that the above-quoted handbook language is merely to prevent the policies from being construed as an implied employment contract, and that it was the defendant's execution of a separate contract in which he expressly agreed to the handbook's terms (presumably an acknowledgement form) that kept him on the hook for paying the employer back.

Furthermore, the court states, "[i]n interpreting such an agreement, as with any contract, the goal should be a practical construction of the lanuage used so that the reasonable expectations of the parties are realized." That is, the handbook does not alter the at-will arrangement but the employee IS expected to uphold their end of the terms held within the handbook. The court also notes that to uphold the defendant's argument would lead to an "absurd and self-contradictory result."

Defendant's motion for summary judgment was DENIED and Plaintiff's cross motion for a judgment as a matter of law was GRANTED.

The case is Currier, McCabe & Associates v. Maher, 906 N.Y.S.2d 129 (3d Dept. 2010).

Employment Case Law Update

--Bloom v JP Morgan Chase & Co., NDCal, No. C 09-03418 WHA: Employer's motion for summary judgment DENIED in claim against age discrimination in violation of the ADEA. The employer had a reduction in workforce where all employees let go were over 50 and all those retained were under 50 and one comment regarding an employee who was let go went so far as to say, "he was too old." The plaintiff suffered a $25,000 reduction in pay and was passed over for a position for a younger, less experienced employee and then was later terminated but not before preparations began to hire a younger employee to replace him. Interestingly enough, the new hire was labeled, "a smart, personable, and hard-working young banker” and the internal records concerning the plaintiff's termination changed and were "corrected."
The district court found that the plaintiff made out a prima facie case of age discrimination, that the defendant offered a legitimate nondiscriminatory reason ("LNDR") for the termination and that the LNDR was pretext:

Bloom makes a sufficient showing of pretext. A jury could reasonably believe that Melio contacted Reilly in the summer of 2008 with an intention of replacing Bloom, and that Maloney contacted Reilly prior to Bloom’s termination in order to be ready to start the interview process for Reilly as soon as Bloom was gone. A jury could disbelieve defendants’ characterization of Bloom’s “promotion” to deputy head of the health-care group and find it to really be an effort to marginalize his position within the group. These issues involve credibility determinations that are for the jury to make. Furthermore, a jury could find it persuasive that the health-care group maintained no bankers over 50 (besides Bloom) after the restructuring in 2008, and that Bloom was not given a chance to defend himself with regard to the recordings because Melio was already prepared to push him out to make way for Reilly.
There is evidence that Melio was given final authority to fire Bloom, and that he had made up his mind to do so even before the meeting on September 8 (see Melio Dep. 185:8–12). Plaintiff presents facts to support his version of what happened. He has carried his burden to show that defendants’ explanation could be found by a jury to be pretext. This is sufficient to survive summary judgment. See Pottenger, 329 F.3d at 746 (“At the summary judgment stage, [plaintiff’s] burden is not high.”).
Therefore, it goes to a jury to decide!

--Garcia v Whirlpool Corp., NDOhio, Case No. 3:08-CV-02944: Motion for summary judgment granted for employer after court holds plaintiff was able to demonstrate that shoulder injuries impairing her ability to hold and lift items rendered her with a qualified disability under the ADA, however, plaintiff failed to demonstrate that she was qualified for the reassignment positions she sought.

--Mutua v Texas Roadhouse Mgmt Corp., DSD, CIV. 09-4080-KES: An African-American server for a national restaurant chain, who alleged that management at the restaurant where she worked repeatedly granted a customer's request not to be served by an African-American and fired her two months after she filed an EEOC charge, could proceed with her claims that she was subjected to a racially hostile work environment and was unlawfully retaliated against. Court granted defendant's motion for summary in part regarding the disparate treatment and breach of contract claims and denied in part regarding plaintiff's hostile work environment and retaliation claims.

--Knox v SunTrust Banks, Inc, EDTenn, Case No. 1:09-cv-115: Employer's motion for summary judgment against plaintiff's Title VII claims DENIED. Plaintiff is a married assistant bank manager, and an active member of the Baptist church. He claimed that during the one year that he worked under the branch manager’s supervision, who is gay, he was subjected to a pattern of continuous sexual and religious harassment that started off relatively mildly, but escalated in frequency and intensity, especially in the last few months leading up to his discharge. Plaintiff further alleged that his supervisor became increasingly angry and belligerent when his sexual advances were rebuffed, which led to more religious harassment. The court found that there were sufficient factual issues to warrant a jury trial on the hostile work environment claims. A reasonable jury could find that the employee’s workplace was permeated with discriminatory harassment, insult, and ridicule that were sufficiently severe or pervasive to alter the conditions of his employment and create a hostile or abusive work environment.

Saturday, November 13, 2010

Wisconsin Law Journal on "Cat's Paw" Case

Kimberly Atkins has an article on the Wisconsin Law Journal's website regarding the case before the Supreme Court of the United States regarding "the so-called “cat’s paw” theory. The cat's paw theory in a job bias suit is where the decision maker was allegedly persuaded by the animus of a subordinate supervisor to fire an employee. The case is Staub v. Proctor Hospital, No. 09-400 and oral arguments were heard November 2, 2010.

Menard's, Department of Veterans Affairs Hit with Discrimination Claims

Two major employers in Wisconsin have found themselves slapped with discrimination suits. A former Wisconsin Department of Veterans Affairs administrator, Gary Wistrom, was transferred from Union Grove to Madison after producing an affidavit in support of another coworker's ERD complaint and has filed a complaint with the Equal Rights Division claiming retaliation. Wistrom's complaint is just another is another addition to an already troubled agency. From the Milwaukee Journal Sentinel article on the complaint:
"The 'reassignment' was unreasonable, improper and not a legitimate WDVA personnel action, but was instead a ruse employed by Secretary Black  . . .  in retaliation for my having opposed the discrimination on the basis of age, race and sex that was evident in the statement of Secretary Black," Wistrom said in his complaint.

Agency spokeswoman Sara Stinski said the agency was aware of the complaint but declined to comment further.

Wistrom's complaint is the agency's latest in a series of personnel problems.

Along with Nitschke's complaint, a former Wisconsin National Guard spokesman has filed a complaint with the state alleging he was unfairly passed over for Stinski's job and accusing Black of pushing older white men out of the agency.

Former agency Secretary John Scocos has filed a lawsuit against the DVA, claiming the agency's board violated a federal law that protects military service members' jobs when it fired him last year, weeks after he returned from serving in Iraq.

Wistrom wrote in his complaint that he is a 61-year-old, white, retired U.S. Air Force colonel who suffers from multiple medical ailments that arose from his military service and make extended travel impossible for him.
Also in hot water is Menard's after longtime vice president of real estate, Marvin Prochaska, 62, sued the home-improvement retailer this week, alleging age discrimination. Prochaska has filed suit in federal court. Also from the Milwaukee Journal Sentinel that has picked this story up:
In his complaint, Prochaska said he received a $100,000 raise in 2007 and that in October 2008 Menard's chief operating officer acknowledged he "had chosen 200 excellent store sites in his career, and that if he was a baseball player, his batting average would have placed him in the Hall of Fame."

"It's the longstanding policy and practice of Menards not to discriminate," company spokesman Jeff Abbott said in an e-mail. "We cannot comment on pending litigation but appreciate the opportunity to clear the air and feel that we will be vindicated."

Prochaska's complaint follows a successful gender-discrimination lawsuit against Menard by the firm's former chief legal counsel, Dawn M. Sands.

Sands, who was fired in March 2006, won a $1.6 million judgment in her case - including $900,000 in punitive damages - as well as an order that she be reinstated.

Thursday, November 11, 2010

Employment and Severance Agreements: Time Running Out to Revise to Avoid New Tax Rules

NixonPeabody has an excellent and informative article reminding employers and other attorneys who draft employment and severance contracts to ensure that such agreements are in compliance with the Internal Revenue Service's guidance on deferred compensation arrangements. The tax law of particular importance are Section 409A and the guidance issued by the IRS is Notice 2010-6.

Enochs Law Firm in MilwaukeeJobs.com

Just want to direct your attention to an article I recently authored for Milwaukeejobs.com regarding the job interview/application process and arrest and conviction record discrimination.

I'll be a frequent author for Milwaukeejobs.com so look for updates!

Cool Videos Demonstrating Protected Activity

Attorney David Foley, a labor and employment attorney from New Orleans, has some great videos and a new blog (LaborRelated) demonstrating the facts of two NLRB cases concerning protected activity.

The first video demonstrates Plaza Auto 355 NLRB No. 85:



The second video demonstrates Kiewit Power 355 NLRB No. 155 (2010):

Tuesday, November 9, 2010

Employment Case Law Update

--Stiefel v Bechtel Corp., 9thCir, November 1, 2010: Court of Appeals for the Ninth Circuit reverses the lower court and holds that because there was a work-sharing agreement between the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC), a charge filed with the former was deemed filed with the latter on the same day. Moreover, the employee, having received a right-to-sue letter from the DFEH, was entitled to receive an EEOC right-to-sue letter. Following receipt of the state agency’s letter, the employee had filed his lawsuit within the 90-day statutory window, which had been tolled pending his first suit, and the appeals court reversed dismissal of his accommodation and termination claims.

--Male v Tops Markets, LLC, WDNY, October 29, 2010: at issue is whether a bad reference amounts to post-termination retaliation for filing a Title VII claim. While the court recognized 2nd Circuit precedent stating that a false statement made by a former employer to a prospective employer could be considered an adverse action under Title VII, the plaintiff ultimately lost for failing to allege facts sufficiently plausible to show that she was engaged in a protected activity.
This case is more about good pleading skills and less about substance. So, what did the pleading read that led to the demise of this claim?:
(1) Plaintiff filed a complaint in the United States District Court for the Western District of New York on November, 19 2007; (2) Plaintiff applied for more than 100 jobs, but was not hired; (3) Plaintiff “interviewed well” and was told she would be “called back,” but was not called back; and (4) “Upon information and belief, Plaintiff has been unable to gain employment because defendant has given her bad recommendations, in retaliation for having engaged in protected activity....”

The court had several problems with this part of the pleading. First, they said Plaintiff has not alleged discrimination on the basis of race, color, religion, sex, or national origin. Second, Plaintiff has not supplied any facts that would sufficiently support the remaining elements of a post-termination retaliation claim under Title VII or the ADA, other than her own conclusory statements. Mere conjecture will not cut it:

While there is no “bright-line” rule to determine whether negative reference would amount to an adverse action, the Plaintiff must supply enough facts for the Defendant to be on notice of the circumstances of the adverse action that underlies her claim. On the facts presented, the Defendant cannot be said to be on notice, as is required under Rule 8 of the Federal Rules of Civil Procedure, of the factual circumstances that underlie the Plaintiff’s claim.


Convenient enough, Plaintiff has FRCP Rule 15(c) to save the day and the court allowed Plaintiff the opportunity to leave to amend her pleading with respect to her claim for post-termination retaliation.

--Mervis v Triad Packing, Inc., EDTenn, November 2, 2010: Summary judgment granted in favor of defendant after Plaintiff failed to establish that the employer’s legitimate, nondiscriminatory reason for terminating him was pretextual in age discrimination claim. The employer claimed that as part of its reduction in force (RIF), it terminated the employee because other sales representatives outperformed him and brought in more new clients. However, the court found that the employee did not address the issue of whether this legitimate, nondiscriminatory reason (LNDR) for his discharge was pretext for discrimination or offer any evidence that the employer’s reason was not true. In fact, the employer’s evidence showed that the employee’s contribution number was lower than those of other sales representatives.
The fact that the plaintiff was terminated in an RIF is significant because, "[w]hen a workforce reduction is a factor in the decision to terminate, a plaintiff “does not make out a prima facie case absent additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)." Plaintiff attempted to assert that this wasn't a true RIF because he was replaced, but to no avail.

NLRB Weekly Summary of Cases

For the week of November 1-5.

Monday, November 8, 2010

Predominately Spanish-Speaking Workers at Michigan Turkey Processor Reject Unionization

A National Labor Relations Board (NLRB) union election in Michigan revealed that production and maintenance employees at Michigan Turkey Producers, LLC, voted against being represented by the United Food and Commercial Workers, Local 951. From the NLRB press release on the election:
Balloting was conducted on Friday, November 5, at plants in Grand Rapids and Wyoming, Michigan, with four translators from the Chicago region on hand to assist, as most voters were Spanish-speaking. About 400 employees were eligible to vote. The results were 316 against the union and 82 in favor of it.
That's rejection by a landslide.

"Mastering Employment Discrimination Law"

In the mail today: "Mastering Employment Discrimination Law," authored by professors Paul M. Secunda (Marquette Law School) and Jeffrey M. Hirsch (University of Tennessee College of Law). Can't wait to begin reading! (Shipping was super fast too).

Thursday, November 4, 2010

6th Circuit Holds an Individual Must be Disabled to Contest Employer's Drug Testing Policy

A section of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(b)(6), reads:

As used in subsection (a) of this section, the term “discriminate against a
qualified individual on the basis of disability” includes—

using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity;

Seven former employees at Dura Automotive Systems in Lawrenceburg, Tennessee who tested positive for one of twelve prohibited substances who had a legal prescription for a drug containing that substance, sued claiming that Dura’s drug testing violates the Americans with Disabilities Act. The district court held that individuals do not need to be disabled to assert claims under section 12112(b)(6). An interlocutory appeal was initiated on the issue of whether an individual must be disabled to pursue a claim under section 12112(b)(6) of the Act.

In finding that an individual must be disabled to pursue a claim under section 12112(b)(6) of the ADA, the court stated:

Although non-disabled individuals may bring claims under some provisions of the
Act, the plain text of subsection (b)(6) only covers individuals with disabilities. The text of subsection (a) and (b)(6) specifically refers to “qualified individual[s] with disabilit[ies],” and not, as discussed below, a broader class of individuals such as “employees.” See id. § 12112(a), (b)(6).

While recognizing that other parts of the ADA apply to non-disabled individuals, the Court hammered on the plain meaning and literal wording of the statute and notes that the primary purpose of the Act is to protect disabled individuals.

Attorney Jon Hyman on the Ohio Employer's Law Blog has interesting commentary on this case:

This case may end up being much ado about nothing. Because terminations occurred
before Jan. 1, 2009, the 6th Circuit decided this case under the pre-amendment ADA, which had a might tighter definition of “disability.” As I have previously discussed, the ADA Amendments Act expands the definition of “disability” so broadly that virtually every employee with a medical condition could be considered “disabled.” Therefore, future drug testing cases likely will not be decided on the issue of whether the tested employees were “disabled.” Instead, courts will decide future cases on whether the drug testing was job related and consistent with business necessity—an affirmative defense under the ADA. For this reason, it is important for businesses to contemporaneously document the job nexus and business need for all employee drug testing.



The case is Bates v. Dura Automotive Systems, Inc., No. 09-6351 (6th Cir. 11/3/10).

NLRB Files Complaint Against CT Employer for Firing Employee Over Facebook Postings

In a rather groundbreaking move, the National Labor Relations Board ("NLRB") has announced that it has issued a complaint against an ambulance service after it terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint also alleges that the company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy.

From the NLRB press release on the complaint:

When asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation from her union, Teamsters Local 443. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings and because such postings violated the company’s internet policies.

An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.

This is a case I will be following closely as the advent of Facebook and social networking sites has presented a whole new realm of employment and labor law problems. The ABA has more on the story here.

Enochs Law Firm in Milwaukee Magazine's Inside Milwaukee Feature

Here is a link to a Q&A feature I did for Milwaukee Magazine's online blog, "Inside Milwaukee."

Wednesday, November 3, 2010

California Workplace Law Blog

Jackson Lewis has a new blog that looks to be interesting and intriguing!

Disability and Bad Behavior in the Workplace: Where is the Line Between Disability Protection and Employer Protection?

The Americans with Disabilities Act ("ADA") is supposed to protected individuals with both real and perceived disabilities. There are many, many disabilities that qualify under the ADA and some of these disabilities have certain behavioral side effects that can prove to be troublesome in the workplace which places employers in a tough situation. For example, if an employee has been diagnosed with a mental disability such as bipolar disorder or with severe depression and anxiety and has been the subject of several co-worker complaints or had an outburst of sorts, an employer's inclination is to take an adverse employment action of suspension or even termination. However, the employee's belonging to a protected class presents a problem for human resources.

Because the employee is in a protected class, employers need to be extra cautious before acting. Careful examination of policies and how other comparable situations were dealt with need to be analyzed to avoid disparate treatment claims. Another analysis is whether there is an issue of reasonable accommodation. If the employee has made you aware of the behavioral side effects and indicated the need for some sort of accommodation to avoid these types of conflict, then a claim may arise based upon the failure to accommodate.

A reading of court cases on this issues shows that employers will not be found in violation of disability discrimination if the adverse employment action is based upon the behavior and not the disability. It may logically follow that behavior stems from qualified disability, therefore, adverse employment action is because of qualified disability, but so long as employers only based their decision upon the behavior and not the disability, they have a defense and legitimate non-discriminatory reason.

Now That the Election is Done and Republicans Own the House, What Does that Mean for Labor?

Definitely kiss the Employee Free Choice Act ("EFCA") goodbye and say hello to legislation that would bar unions from spending members’ dues on politics unless members first “opted in.” The New York Times had an article on what it meant for labor if Republicans took control:
[Representative John Kline, a Minnesota Republican] is chief sponsor of the Secret Ballot Protection Act, a bill with 115 House co-sponsors that would bar employers from agreeing to unionization through card check. He has also criticized two policies that are favorites of construction unions: the Davis-Bacon Act, which requires that contractors on federal public works projects pay workers the prevailing wage, usually near the union wage, even if they are not unionized; and project labor agreements, which tend to tilt the awarding of federally financed construction projects toward unionized contractors.

Professor McCartin said, “I suspect the Republicans will target these policies by trying to make the case that they waste taxpayer money by promoting higher wages on projects that taxpayers pay for.”

Ronald E. Meisburg, a Republican and former general counsel for the National Labor Relations Board, predicted that if a Republican-controlled House cripples labor-backed legislative efforts to make it easier for workers to unionize, the Democratic-controlled labor board might take administrative steps. Mr. Meisburg noted that one Democratic labor-board member recently proposed making a change in the timing of workplace elections after employees file a petition to hold a unionization vote, reducing the delay to just five or 10 days.

Unions want an accelerated schedule because they say employers have too much time to ply workers with antiunion propaganda, but employers complain that such quick elections deny them an adequate opportunity to campaign against unionizing.

“We’re concerned that the N.L.R.B. will do exactly that,” said Randel Johnson, senior vice president for labor matters at the U.S. Chamber of Commerce. “It would be unfair to hold elections before employers have a chance to state their case.”

Mr. Samuel predicted that labor could stop any Republican legislative offensive. “When Republicans won control of the House in 1994, they tried to roll back 60 years of labor protections for workers, but we fought them to a stalemate,” he said. “If the Republicans attempt that again, I think this story will repeat itself.”

Tuesday, November 2, 2010

Enochs Law Firm Website

Just wanted to point out that my firm's website has finally gone live. Here is a link!

Monday, November 1, 2010

Voting Rights on Election Day

Tomorrow is the big election day and many people wonder what their rights are to be able to vote because most people are scheduled to work on Tuesdays. Here is a summary of your rights as an employee on election day in Wisconsin:

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 successive hours to vote." Wis. Stat. sec. 6.76(1);
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)

Family Responsibilities Discrimination

The Work Life Law Center at the University of California-Hastings College of Law has an excellent feature on their website dedicated to Family Responsibilities Discrimination ("FRD"). For those of you who are unaware, Family Responsibilities Discrimination is employment discrimination against workers based on their family caregiving responsibilities.

In Wisconsin, there isn't an exact claim known as an "FRD claim, but, rather, FRD claims arise under Title VII as amended by the Pregnancy Discrimination Act ("PDA") or under the Wisconsin Fair Employment Act ("WFEA"), which protect employees from disparate treatment because of "sex" or "pregnancy," for example.

One FRD case out of Wisconsin involved a sales manager whose supervisor admitted that, although she was qualified for promotion, he did not promote her because the sales manager had children and the supervisor assumed she would not want to relocate her family. The plaintiff in that case won a $1 million-plus Title VII jury verdict in the Western District of Wisconsin. (Lust v. Sealy Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003), affirmed as modified by 383 F.3d 580 (7th Cir. 2004). The Seventh Circuit reduced the amount of damages.)

If you think your family/caregiver responsibilties have subjected you to discrimination in the workplace, feel free to contact me.

Friday, October 29, 2010

McDonald's Employees Told if Republicans Don't Win, They Will Not Receive Benefits or Raises

A McDonald's franchise owner in Canton, Ohio somehow thought it would be an ok idea to place a note in his employees' paychecks recently that strongly hinted at how they ought to vote in the upcoming election:
"As the election season is here we wanted you to know which candidates will help our business grow in the future," reads the letter. "As you know, the better our business does it enables us to invest in our people and our restaurants. If the right people are elected we will be able to continue with raises and benefits at or above our present levels. If others are elected, we will not. As always, who you vote for is completely your personal decision and many factors go into your decision."
As you may have guessed, such a tactic is a blatant violation of both federal and state election laws and an attorney in Ohio, Attorney Allen Schulman of Canton law firm Schulman Zimmerman & Associates, after one of the employees contacted him, decided to turn the documents to local prosecutors, asking them to "investigate this matter for a criminal violation."

On Friday, franchise owner Paul Siegfried apologized in a written statement, saying the communication was "an error of judgment on my part." "Please know it was never my intention to offend anyone," he added. "For those that I have offended, I sincerely apologize."

Hat tip: The Huffington Post

Failure to Fill a Position Does Not Give Rise to an Inference of Discrimination

Earlier this week in my weekly Employment Case Law Update, I made mentioned of a case out of Connecticut where a district court judge held that being placed on paid administrative leave does not amount to an adverse employment action. The same district court judge this time has held that a company's failure to fill a posted position with any employee does not give rise to a discrimination claim.

From the Connecticut Employment Blog which has the story on the case:

The case, Roncallo v. Sikorsky Aircraft Corp. (download here) is not your typical Title VII case. Indeed, the plaintiff is a white male who claims, in part, that the company chose not to fill a posted position (which would have given him a promotion) because there were not enough diverse candidates that either applied or were qualified.

Ultimately, the court concluded that:

Although the fact that the company decided to close the position following [a manager's] recommendation of four white male candidates may be sufficient to give rise to "speculation and conjecture," it is not sufficient to defeat Sikorsky's lawful explanation for its action or to support an ultimate inference of unlawful discrimination.

Indeed, while the court's final decision rested on this ground, it pointed out other issues with the Plaintiff's case too. For example, of the twenty similar-level positions posted in the plaintiff's division in 2008, seven were also left unfilled and twelve were filled with white males. Those statistics, obviously, hardly show a bias against white males.
The plaintiff in this case is a white male which means he was essentially alleging what has been termed "reverse discrimination." You may recall that the Supreme Court dealt with this issue in Ricci v. DeStefano where it was held that an employer can invoke fear of "disparate impact" litigation by minority applicants as a defense to a charge that discarding the results was itself an act of unlawful discrimination. The lead opinion written by Justice Kennedy announced that the defense is only available where the employer has a "strong basis in evidence" for fearing disparate impact liability. However, this was not at issue in Roncallo because the employer in this case closed the position and did not hire anyone. This, Roncallo alleged, was done in discrimination against white male applicants.

Courts in this jurisdiction have considered whether closing a position may serve as an adverse employment action and have held that it may constitute an adverse employment action for the purposes of Title VII. However, the district court judge here found Roncallo distinguishable.

Thursday, October 28, 2010

Follow Enochs Law Firm on Twitter!

I decided to enter the world of Twitter. Here is my profile link. Feel free to leave your address so I can follow as well.

I was Terminated, the Handbook had a Progressive Discipline Policy that Was Not Followed. What Can I Do?

I was recently reviewing a case out of Minnesota involving this situation (Stagg v. Vintage Place Inc. A09-949 (Minn. Ct. App. 2010)), and was somewhat shocked to learn that in Minnesota, courts have decided that when an employee handbook includes specific disciplinary steps to be taken prior to termination (e.g., a progressive disciplinary policy), an employee’s “at-will” status is modified and some job security is presumed. This is great for employees in Minnesota because a lot of employers, especially bigger companies, at least in Wisconsin, have such progressive disciplinary policies and they are often center stage in unemployment compensation hearings.

Well, what does Wisconsin say about this topic? In Young v. Nakoma Golf Club, 418 F. Supp. 2d 1052 (D. Wis. 2006), a case not exactly on point but with discussion on the topic, the court stated:
Therefore, the only question is whether defendant Nakoma was bound to use the progressive disciplinary policy in its employee handbook. Plaintiff cites no authority to support its argument that the rules in the employee handbook constituted terms of a contractual relationship between plaintiff and defendant Nakoma. Defendants cite Mursch v. Van Dorn Co., 851 F.2d 990, 994 (7th Cir. 1988), a diversity action in which the court of appeals, applying Wisconsin law, stated that an employee handbook does not convert an at-will employment relationship into a contractual relationship governed by the handbook's terms unless the handbook "contains express provisions from which the trier of fact may reasonably infer that the parties intended to bind each other in a different relationship."

Despite its age, Mursch continues to be an accurate statement of Wisconsin law. Wisconsin adheres to the at-will employment doctrine, under which an employer may terminate an employee at any time with or without good cause. Wolf v. F & M Banks, 193 Wis. 2d 439, 449, 534 N.W.2d 877, 881 (Ct. App. 1995). In Ferraro v. Koelsch, 124 Wis. 2d 154, 368 N.W.2d 666 (1985), the Wisconsin Supreme Court held that an employee handbook may change an at-will employment relationship into one that is governed by the terms set out in the handbook. The court found that the Hyatt Corporation's employee handbook was "an express contract replete with stated consideration -the promise of employment on stated terms and conditions by Hyatt and the promise by Ferraro to continue employment under those conditions." Id. at 164, 368 N.W.2d at 671-72. Hyatt agreed that it would discharge non-probationary employees only for just cause; in return, Ferraro agreed to accept Hyatt's policies and rules as a condition of his continued employment and to give two weeks' notice before leaving employment.

In cases decided after Ferraro and Mursch, Wisconsin courts have held that a personnel manual will convert an at-will employment relationship into a contractual one only if it "contains express provisions from which it reasonably could be inferred that the parties intended to bind each other to a different relationship [from one that is at-will]." Olson v. 3M Co., 188 Wis. 2d 25, 54, 523 N.W.2d 578 (Ct. App. 1994) (citing Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 979, 473 N.W.2d 506, 508 (Ct. App. 1991)); see also Helland v. Froedtert Memorial Lutheran Hosp., 229 Wis. 2d 751, 756, 601 N.W.2d 318 (1999)(employee handbook did not create contract of employment; employer reserved right to take any disciplinary action against employees it deemed appropriate regardless of procedures in handbook and to modify handbook unilaterally and provided explicitly in handbook that it did not create any contractual rights).
Thus, Wisconsin holds that at-will employment, despite the presence of progressive discipline, is still the presumption and rule UNLESS the handbook contains "express provisions from which it reasonably could be inferred that the parties intended to bind each other to a different relationship [from one that is at-will]." Usually, that is not the case.

I find this to be a pretty unfair concept though I can understand the policy behind Wisconsin's stance on the at-will doctrine. Employees are heavily governed and bound by handbooks and they are conveniently used to terminate employment with the vaguest of language sometimes. It seems to be a one-way street because employers don't necessarily have to follow it at the risk employees do. Perhaps continuing to put up this argument and fight may convince Wisconsin courts to re-consider because all of the cases cited above have been distinguished or criticized at some point.

Wednesday, October 27, 2010

ALM Webinar: Web 2.0: Hiring and Firing Decisions Based on Social Media Postings

This looks like a pretty interesting webinar considering all the litigation lately surrounding social networking websites. Here is a description of the webinar:
Are employers free to use information placed on social networking sites as a basis for hiring and firing decisions? Is an employer's failure to use online information grounds for a claim of negligent hiring or retention?

In this lively, interactive presentation, a leading expert discusses how far employers can go in using personal details gleaned from the Internet in employment decisions' and the potential pitfalls. Topics include:

-What are the rules regarding employers' use of personal data posted online?
How reliable are the data? What if the information is inaccurate? Is any of this information privileged?
-Can employers search employees' usage of social networking sites?
What happens when an employee's first amendment rights conflict with an employer's interests?
-Must applicants be told that the employer will Google all applicants?

This Webinar addresses these and other vital legal and practical questions. It's a must for employment lawyers, executives, and human resources professionals who need to stay on top of the latest developments.

Most Bizarre Excuse to Call in Sick?

CareerBuilder.com is noting that more and more workers are calling in sick with bizarre excuses, likely the result of worker burnout. In conducting a survey to reveal a result that 29 percent of workers played hooky his year, calling in sick even when they were well, CareerBuilder also asked employers what some of the more unusual excuses they received were:
1.Employee said a chicken attacked his mom.
2.Employee's finger was stuck in a bowling ball.
3.Employee had a hair transplant gone bad.
4.Employee fell asleep at his desk while working and hit his head, causing a neck injury.
5.Employee said a cow broke into her house and she had to wait for the insurance man.
6.Employee's girlfriend threw a Sit 'n Spin through his living room window.
7.Employee's foot was caught in the garbage disposal.
8.Employee called in sick from a bar at 5 p.m. the night before.
9.Employee said he wasn't feeling too clever that day.
10.Employee had to mow the lawn to avoid a lawsuit from the home owner's association
11.Employee called in the day after Thanksgiving because she burned her mouth on a pumpkin pie.
12.Employee was in a boat on Lake Erie, ran out of gas and the coast guard towed him to the Canadian side.