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.Source: L.A. Times
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.
Thursday, December 30, 2010
Tuesday, December 28, 2010
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
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
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
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
Enochs Law Firm
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.
• 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.
Tuesday, December 14, 2010
DOJ Files Title VII Suit Against Chicago School District for Refusing to Accommodate Teacher’s 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 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
Sunday, December 12, 2010
Enochs Law Firm
Enochs Law Firm
Saturday, December 11, 2010
Employer's Remarks About Employee's Miscarriage and Pregnancy Allow Discrimination Claim to Move Forward
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
--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
Friday, December 3, 2010
Enochs Law Firm
UPDATE: The show will air Sunday, December 19, 2010 from 9:30-10am.
Wednesday, December 1, 2010
Tuesday, November 30, 2010
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.
•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.
Enochs Law Firm
Monday, November 29, 2010
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
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
“If every crazy charge is out there, are we somehow being unfair to people?” Barrett said. “Does this adversely impact individuals?”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.
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.
Enochs Law Firm
Thursday, November 25, 2010
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
The case is Phillips vs. U.S. Bank, N.A.,2009AP246 (Feb. 2, 2010).
Enochs Law Firm
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
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
--For every dollar spent on UI, economic activity increases by two dollars.For more, here is the press release on the study.
--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.
Enochs Law Firm
NLRB Invites Briefs in Case Against Roundy's Not Allowing Nonemployee Union Access in Milwaukee-Area Stores
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.
Wednesday, November 17, 2010
Monday, November 15, 2010
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).
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.Therefore, it goes to a jury to decide!
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.”).
--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
"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.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:
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.
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
I'll be a frequent author for Milwaukeejobs.com so look for updates!
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
--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.
Monday, November 8, 2010
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.
Thursday, November 4, 2010
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).
From the NLRB press release on the complaint:
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.
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.
Wednesday, November 3, 2010
Disability and Bad Behavior in the Workplace: Where is the Line Between Disability Protection and Employer Protection?
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.
[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
Monday, November 1, 2010
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)
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
"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
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.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.
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.
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
I was Terminated, the Handbook had a Progressive Discipline Policy that Was Not Followed. What Can I Do?
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."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.
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).
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
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.
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.