Friday, July 30, 2010

Case on Acceptable Workplace Behavior Settles Before Court Can Rule

A case out of the Court of Appeals for the Eleventh Circuit involving same sex sexual harassment involving two former Home Depot managers and a Home Depot human resources manager was settled before a rare en banc session could decide on the matter. The case was unique in the aftermath of the 11th Circuit's earlier decision in another sexual harassment case where it held that while not all profane or sexual language could support a sexual harassment suit, certain gender-specific words, such as "bitch" or "whore," could be actionable even when they weren't used explicitly in reference to the plaintiff.
That ruling said courts must examine complained-of remarks and actions cumulatively and in the context of all the circumstances, not in isolation. Circuit Judge Stanley Marcus, who wrote the January full-court decision in that case, said during June's argument in the Home Depot case that the company could win its argument only if the court were to "pry apart" the manager's arguably non-offensive compliments of the plaintiffs' appearance from the dozens of offensive comments and actions described in the plaintiffs' suit.
In the instant case, both plaintiffs, David W. Corbitt and Alexander J. Raya Jr., claimed that human resources manager Leonard Cavaluzzi regularly made both inappropriate remarks and gestures of a strong sexual nature on numerous occasions. However, when they both complained to management a little higher up, Corbitt and Raya were fired from their jobs at Home Depot. The company said the harassment stopped as soon as the plaintiffs formally complained but that the two were terminated for violating company policy related to discounting.

The district court granted summary judgment for Home Depot on the plaintiffs' claims of sexual harassment, retaliation and certain state law tort claims but denied it on the retaliation claim. The 11th Circuit then agreed with the decision to deny summary judgment on the retaliation claim but divided over the sexual harassment claims and some of the state law claims, with the majority affirming the grant of summary judgment on the sexual harassment claims.

After nearly five months went by with no party filing a motion for rehearing by the panel or full court, the panel issued a new majority opinion in December. The outcome was the same, but Judge Charles R. Wilson, joined by Senior Judge Emmett Ripley Cox, revised some aspects of the portion of the majority opinion dealing with the sexual harassment claims.

In the July opinion, Wilson had emphasized that many of the instances of which the plaintiffs complained were not sexual in nature. In the December opinion, in contrast, he said the majority was assuming for purposes of argument that much of the conduct was sexual, but he wrote that a number of the complained-of incidents involved what many would consider innocent behavior that was not offensive to a reasonable person.

"Flirtation is part of ordinary socializing in the workplace" and doesn't constitute discrimination, wrote Wilson.

In a partial dissent, Senior Judge Patricia C. Fawsett, visiting from the federal district court in Orlando, said the majority opinion failed to allow claims over the type of conduct that reasonable people had come to expect they will be protected from in the workplace.

The case was Corbitt v. Home Depot U.S.A., No. 08-12199.

Thursday, July 29, 2010

Van Hollen Says Supreme Court's Recent Ruling Restricting Public Access to Government Workers' Personal E-mails Should be Applied Narrowly

In the aftermath of the Wisconsin Supreme Court's 5-2 ruling that, just because a public employee uses a work computer to send an e-mail, it doesn't automatically make that message subject to the state open records law, Wisconsin Attorney General J.B. Van Hollen says this ruling should be applied narrowly.
...Van Hollen said the public should be able to seek records under the law that would shed light on how well government is working and whether public employees are wasting time during work hours.

"Records custodians should be mindful of the policy behind the public records law," Van Hollen wrote in the two-page memo. "If there is any aspect of the e-mail that may shed light on governmental functions and responsibilities, the relevant content must be released as any other record would be released under the public records law."

Even if the personal e-mails of public workers are private, Van Hollen said, the public can still request statistical records about public workers' e-mail use that would show how many of their e-mails for a given time period dealt with official government business and how many dealt with personal affairs. Van Hollen said that, as in the past, officials can still black out personal information from e-mails also dealing with public business and then release the records.

Unemployment Compensation Claims Decline for Third Time in Four Weeks, But Remain Elevated

The Department of Labor released its recent jobless claims data which revealed new jobless claims fell last week for the third time in four weeks but remain elevated, which is a sign that the economy likely added jobs in July, although not enough to lower the nation's high unemployment rate. From the AP article on the data release:

First-time claims for unemployment insurance dropped by 11,000 to a seasonally adjusted 457,000, the Labor Department said Thursday.

Claims have fluctuated this month because of temporary seasonal factors. General Motors and other manufacturers skipped their traditional summer shutdowns, which led to fewer layoffs and unemployment claims. But the impact of that distortion has largely faded from the data, a Labor Department analyst said.

The four-week average of claims, which smooths fluctuations, dropped to 452,500, the lowest level since May.

That suggests layoffs may be easing. And the four-week average is slightly below its level in June, which indicates that private employers likely added about the same number of jobs in July as they did last month. The Labor Department will issue its July employment report next

Tuesday, July 27, 2010

DOL Releases Fact Sheet on Break Time for Nursing Mothers Under FLSA

The fact sheet provides general information on the break time requirement for nursing mothers in the Patient Protection and Affordable Care Act (“PPACA”). From the fact sheet:

General Requirements
Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

The FLSA requirement of break time for nursing mothers to express breast milk does not preempt State laws that provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond 1 year after the child’s birth).

Time and Location of Breaks
Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.

A bathroom, even if private, is not a permissible location under the Act. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.

Coverage and Compensation
Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to breaks to express milk. While employers are not required under the FLSA to provide breaks to nursing mothers who are exempt from the overtime pay requirements of Section 7, they may be obligated to provide such breaks under State laws.

Employers with fewer than 50 employees are not subject to the FLSA break time requirement if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, the FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies. See WHD Fact Sheet #22, Hours Worked under the FLSA.

Former TV News Anchors Lose Age Discrimination Claims Due to Insufficient Statistical Evidence

Two former local San Francisco television news anchors had their age discrimination claims dismissed by a California federal district court after their statistical evidence was deemed inadequate to establish that they were either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age bias.

Interesting about this case is the plaintiffs' use of statistical analysis to show the court that is was improbable that age didn't have a factor in the decision to terminate them given the employer's allegedly neutral lay-off plan:
Lepowsky’s report shows that the age of KPIX’s on-air talent correlated closely with defendant’s decisions regarding whom to fire. In fact, for all twelve analyses he conducted, the pvalues were less than 1.58%, indicating a relatively high degree of statistical significance. In the scenario with the least correlation (analyzing the actual ages of the employees, excluding Rodgers and including the five anchors), Lepowsky concluded that “[i]f age were not a factor in the selection of the five (5) individuals to be laid off, then there is only a 1.58% probability (or a 1 in 63 chance) that the mean age of the five (5) laid off individuals would be as great as it was . . . .” Lepowsky Report at 10. Lepowsky found that the situation with the greatest correlation (analyzing age ranks, including Rodgers, but excluding the five anchors) had a p-value of 0.21%, and would occur by chance only once every 476 times. Id. at 17. All the other scenarios fell between these two extremes.
However, the court held that precedent revealed that "the Ninth Circuit’s 'unexplainable on grounds other than age' standard has meant that plaintiffs relying solely or even primarily on statistical evidence have been unable to satisfy the prima facie case," but "[i]n the few cases in which statistical evidence aided a plaintiff in establishing a prima facie case, the plaintiff bolstered his claim of discriminatory intent with other pieces of non-statistical evidence." The district court noted the problem with this precedent:
A consequence of the Ninth Circuit’s development of this area of law is that, for lawsuits in which a plaintiff seeks to use statistical evidence as the primary support for his prima facie case, the three-step McDonnell Douglas analysis collapses into a single step. Specifically, where a plaintiff’s statistical analysis fails to preemptively account for a defendant’s legitimate, non-discriminatory reason for discharge, the statistical results cannot show “a stark pattern of discrimination unexplainable on grounds other than age.” Not only does this state of affairs require that plaintiffs put the proverbial cart (pretext) next to or before the horse (prima facie case), it places reduction-inforce plaintiffs, who frequently must rely on statistical evidence of discriminatory intent, at a distinct litigation disadvantage.
Despite noting this disadvantage to plaintiffs who use statistical evidence, the district court also noted that it is bound by precedent of the 9th circuit and held the statistical evidence in this case "...does not account for defendant’s legitimate non-discriminatory justification, ... [and] falls short of establishing 'a stark pattern of discrimination unexplainable on grounds other than age.'" On the disparate impact claim the court ordered additional briefing by the parties to determine whether summary judgment is also proper. The gender discrimination claim was also dismissed.

The case is Schechner v CBS Broad Inc., NDCal, July 14, 2010.

NLRB Weekly Summary of Cases

For the week of July 19-23.

Sunday, July 25, 2010

Connecticut Employment Law Blog

Just added to the blog roll. Check it out!

Saturday, July 24, 2010

State Rushes to Issue Unemployment Checks

Now that Congress and President Obama have acted and approved of extending employment benefits for unemployed workers across the nation, Wisconsin is working vigorously to issue retroactive benefit checks to the more than 200,000 claimants across the State who are eligible for up to 99 weeks of unemployment insurance benefits.

From the Milwaukee Journal Sentinel:
The state will now pay retroactive benefits to those workers who haven't been receiving checks since June 2, Workforce Development Secretary Roberta Gassman said. She said qualifying workers who have been continuing to file for their benefits each week since June 2 won't need to do anything else to receive the retroactive benefit checks. But they will need to keep filing to receive future benefits.

To catch up on sending out the checks, the state will close its unemployment insurance call centers on Saturday and on July 31 but those seeking benefits can still file for them online. For more information, workers can call (800) 494-4944 or go to

Friday, July 23, 2010

Study Reveals Long-Term Unemployed Lose Friends and Self Respect

A recent Pew Center survey has revealed that 44 percent of people out of work for six months or longer said unemployment had led to "major changes" in their lives, compared with 31 percent of people jobless for less than six months. 43 percent of long-term unemployed said they lost contact with close friends, and 38 percent said they lost some self-respect. Key findings from the study also revealed:

■Family finances: A majority of the long- term unemployed (56%) say their family income has declined during the recession, compared with 42% who were out of work less than three months and 26% of adults who have not been unemployed since the recession began in December 2007. Overall, the long-term unemployed are also more likely to say they are in worse shape financially now than before the recession.

■Impact on relationships: Nearly half (46%) of those unemployed six months or more say joblessness has strained family relations, compared with 39% of those who were out of work for less than three months. At the same time, more than four- in-ten (43%) long-term unemployed say they lost contact with close friends

■Loss of self-respect: Nearly four- in-ten (38%) long-term unemployed report they have lost some self-respect while out of work, compared with 29% who were jobless for shorter periods of time. The long-term unemployed also are significantly more likely to say they sought professional help for depression or other emotional issues while out of work (24% vs. 10% for those unemployed less than three months).

■Impact on career goals: More than four-in-ten (43%) of the long-term unemployed say the recession will have a ?big impact? on their ability to achieve their long-term career goals. Among those unemployed less than three months, 28% said being jobless would have a similarly serious impact.

■Am I in the right job? More than seven-in-ten long-term unemployed say they changed their careers or job fields or seriously thought about doing so. They also were more likely to pursue job retraining programs or other educational opportunities while out of work.

■Settling for less: Among workers who found a job after being unemployed for six months or longer, about three-in-ten (29%) say their new job is worse than the one they lost, compared with only 16% of re-employed workers who had been jobless for less than six months. In separate questions, these workers also report their new job paid less and had worse benefits than their old one.

■Pessimism on the job hunt: Among adults who are currently unemployed, those who have been jobless for six months or longer are significantly more pessimistic than the short-term unemployed about their chances of finding a job as good as the one they lost.

Thursday, July 22, 2010

Attorneys Object to Time Limit on Unemployment Insurance Hearings

An article in the Wisconsin Law Journal describes the objections from both attorneys and administrative law judges on the new 30-60 minute time limits for unemployment insurance hearings that went into effect July 11.

I haven't had a hearing under the new time limits but also tend to agree that it will probably hinder due process in cases where several witnesses and exhibits are needed, though those are in the minority in my experience. I can't offer up any solutions since I do not know the Department of Workforce Development's budget for hiring more ALJs nor do I know what process is involved in creating the dockets for UI hearings but I am always amazed at the low level of activity at hearing offices for a Department with such a large backlog. You would expect a zoo at these hearing sites and, instead, you can almost literally hear the clocks mounted on the walls ticking.

Wisconsin Supreme Court Rules Menards Does Not Have to Reinstate Former General Counsel

The Wisconsin Supreme Court has ruled that an arbitration panel exceeded its authority in ordering that Menards reinstate its former Vice President and Executive General Counsel, Dawn Sands, following her wrongful termination. Menards had refused to reinstate Sands following the arbitration award and the Supreme Court sided with Menards on the grounds that reinstating Sands would be forcing her to violate her ethical obligations as an attorney. The case was remanded to the circuit for the issue of front pay as that would be the more appropriate remedy.

The case is Sands v. Menard, Inc., 2010 WI 96.

Milwaukee Area Lost 5,100 Jobs in June

The four-county area that covers Milwaukee reportedly lost 5,100 jobs in June according to the Department of Workforce Development which is a 4,300 difference from May when only 800 jobs were lost. The DWD tracks 12 metro areas in the state and the Milwaukee area is doing the worst by far:
Of the 12 metro areas tracked by the agency, six showed declines in seasonally adjusted employment in the past month, agency data showed. They are Sheboygan, which lost 500 jobs; Green Bay, 300; Racine and Wausau, both 200; and Janesville, 100.

Over the past 12 months, metro Milwaukee - encompassing, Milwaukee, Waukesha, Washington and Ozaukee counties - lost 15,600 jobs, the most among the 12 metropolitan areas tracked by the agency.

Madison, by contrast, added 200 in the month and lost 3,100 over the past year.

Wednesday, July 21, 2010

FMLA Does Not Cover Cleaning Mom's Flooded Basement

From a decision out of the federal eastern district court in Michigan, an employer was granted summary judgment after it terminated one of its employees after he missed four consecutive days without notifying the employer that he was out taking care of his mother's flooded basement. The former employee, Joe Lane, had previously taken six months FMLA leave to care for his for his mom, who suffered from diabetes, high blood pressure, weight loss and arthritis. Over the four subsequent month's Lane also took FMLA leave from time-to-time to care for his mom by taking her to doctor's appointments and getting her food. Then, Lane's mother's basement flooded and he claimed it also qualified under FMLA leave because his mother had hepatitis and the stagnant water was a "breeding ground" for the disease. The district court disagreed.

The district court found several problems with Lane's FMLA interference claim:

1. Cleaning the flood was not listed among his enumerated duties in the medical certification form;

2. Joe had not established that cleaning mom's basement met the definition of "caring for" a family member with a serious health condition;

3. Joe could not show that his mom's hepatitis was in danger of being aggravated if he did not clean the basement immediately; and

4. In any event, Joe's request for leave to clean his mom's basement failed to put the employer on notice of the need for FMLA leave.

I have a hunch Lane wouldn't have been fired had he notified his employer that he would be off work to attend to his mother instead of no call/no show'ing for four days. Thoughts?

The case is Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010).

7th Circuit Holds Employer Violated Title VII for Accommodating Patients' "White-Only" Request

The Court of Appeals for the Seventh Circuit reversed a district court's grant of summary judgment in a somewhat unbelievable case involving a health care center's accommodation of a patients' request that no black certified nursing assistants (CNAs) treat them. In accommodating this request, the employer, Plainfield Healthcare Center, said they did not want to risk "violating state and federal laws that grant residents the rights to choose providers, to privacy, and to bodily autonomy." The accommodations led to an unfavorable work environment which led to the plaintiff, Brenda Chaney, filing a Title VII suit alleging hostile work environment and race discrimination. Indeed, the facts are disturbing:

For fear of being fired, Chaney went along with the policy. Although Latshaw remained on her assignment sheet, Chaney reluctantly refrained from assisting her, even when she was in the best position to respond. Once, Chaney found Latshaw on the ground, too weak to stand. Despite wanting badly to help, Chaney had to search the building for a white CNA. Plainfield housed at least two other residents with a similar distaste for black CNAs. One refused Chaney’s assistance in the shower, asking for a different nurse aide instead. On a separate occasion, a co-worker warned Chaney that another resident does not care for blacks. Emotionally, these race-based limitations depressed Chaney, who routinely left work “teary eyed.”

Plainfield’s practice of honoring the racial preferences of residents was accompanied by racially-tinged comments and epithets from co-workers. For instance, in the presence of a resident, a white nurse aide named Audria 4 No. 09-3661 called Chaney a “black bitch.” Another time, a white coworker looked directly at Chaney and asked why Plainfield ”. . . keep[s] on hiring all of these black niggers? They’re not gonna stay anyway.” The epithets were reported to the unit supervisor, Loretta Askew, who promised to address them. Although the epithets ceased, co-worker Audria continued to remind Chaney that certain residents were off limits because she was black. Chaney reported these comments to Askew, who renewed her promise to take care of it. Audria eventually left Chaney alone, but Plainfield’s racial preference policy remained in place and continued to surface in conversations with other employees.

In reversing the lower court the 7th Circuit held that race is not a bona fide occupational qualification ("BFOQ") and that the Indiana state law regarding long-term facilities is preempted by federal law, thus finding summary judgment inappropriate for the hostile work environment claim. It also held the same for the discriminatory discharge claim when it found that the plaintiff had presented triable issues of fact surrounding a less-than-sincere investigation into an incident involving a patient who preferred white CNAs and a comparator who was treated more favorably.

What makes this opinion extra interesting is the fact the 7th Circuit offered up several options and alternatives the health care center could have taken to address the racist preferences of its patients instead of the courses it took that led to this lawsuit. Another lesson for employers!

The case is Chaney v. Plainfield Healthcare Center, No. 09-3661 (7th Cir. July 20, 2010).

Tuesday, July 20, 2010

Is a Law Protecting Weight Discrimination Next or Already Actionable?

An article in Corporate Counsel discusses weight bias in employment. Perhaps the Genetic Information Nondiscrimination Act (GINA) already covers weight discrimination? GINA defines “genetic information” to include “the manifestation of a disease or disorder in family members of such individual.” Disease or disorder isn't defined in the statute, but many cases of obesity could certainly be considered a "disorder." It has also been medically established that in many cases, obesity has a genetic component.

The article linked above also discusses the possibility of using obesity as a disability:
Also of note, the new amendments to the ADA, passed as the ADA Amendments Act of 2008 (ADAAA), could cover weight discrimination. The same was technically true under the original ADA, but those who tried to bring such a claim struggled to meet the ADA's definition of disabled, i.e., being a qualified individual with a physical or mental impairment that substantially limits a major life activity.

In passing the ADAAA, however, Congress lowered the height of the wall protecting that definition by at least several feet. Nevertheless, the ADA's new focus on reasonable accommodations still seems an unlikely fit for obesity issues. Further, much like gay and lesbian advocates in 1991, weight discrimination advocates would prefer a law that provides protection against discrimination without having to acknowledge that they are somehow "disabled."

The Americans with Disabilities Act Recently Turned 20, But Still Room to Improve

An article in the Green Bay Press Gazette discusses the Americans with Disabilities Act and how some measures are still needed for further equality amongst the disabled.

Harley Davidson Warns Union Again About Cutting Production Costs

I reported earlier about Harley Davidson warning the Steelworkers Local 2-209 at the Milwaukee powertrain operations about the need for a reduction in production costs lest operations be moved elsewhere and they were warned again as the company begins negotiations with United Steelworkers Local 2-209 for their next contract, which goes into effect April 1, 2012.

From the Milwaukee Journal Sentinel article on the negotiations:

Employees have been told the company wants to slash $53 million a year in costs from operations in Milwaukee and Tomahawk.

Key decisions will be made early this fall, pending the union negotiations, Harley CEO Keith Wandell said Tuesday in an interview.

"If we can't come to an agreement, then we are going to have to move the operations. It is going to take us a little bit of time to build a factory and those kind of things," Wandell said.

Monday, July 19, 2010

Seventh Circuit Rules that in a Case of State Procedural Rule vs. Federal Procedural Rule, the State Rule Prevails Under Erie

In a bit of an oddball case out of the Court of Appeals for the Seventh Circuit, at issue is whether a court's conclusion might be altered by whether the framework for deciding an employer’s motion for summary judgment in a retaliatory discharge case governed by Illinois law is supplied by federal law, which is to say by McDonnell Douglas, or by state law. The 7th Circuit acknowledges in the opinion that it is a question that has arisen numerous times before but never answered for several reasons but that it is time to finally answer the question.

This particular case involved retaliation based upon the employee's filing a worker's compensation claim and the Illinois Supreme Court had rejected the McDonnell Douglas framework for retaliation under worker's compensation claims because "it was unwilling to 'expand the tort of retaliatory discharge by reducing plaintiff’s burden of proving the elements of the tort,” one of which is that the workers’ compensation claim (or potential claim) was the cause of the plaintiff’s being fired. Clemons v. Mechanical Devices Co., 704 N.E.2d 403,08 (Ill. 1998). However, the 7th Circuit held in another case, McEwen v. Delta Airlines, Inc., 919 F.2d 58 (7th Cir.1990), another diversity case, that if the rule in Illinois was, as the plaintiff argued in that case, that a plaintiff in a retaliatory-discharge case could defeat summary judgment however weak his prima facie case, nevertheless the McDonnell Douglas rule would govern.

The 7th Circuit ultimately held that: "...when a retaliatory discharge case governed by Illinois law is litigated in a federal court, the federal court must apply the standard of the state law to a motion for summary judgment, and not the federal standard, because the standards are materially different and the difference is rooted in a substantive policy of the state."

Chicago Employment Attorney Paul Mollica notes that, "...this analysis - correct as far as it goes - leaves out is the fact, known to all litigators locally, that it is far harder to get summary judgment in Illinois state court than federal court. So a plaintiff filing in federal court (or removed there) will be hobbled by pro-defendant summary judgment practices without parallel in state court."

The case is Gacek v. American Airlines, No. 09-3131 (7th Cir. July 15, 2010).

Friday, July 16, 2010

Wisconsin Supreme Court Rules Communications Sent Using State Government Electronics Does Not Automatically Make it Subject to Open Records Law

In a victory for employee privacy rights, the Wisconsin Supreme Court ruled that just because a public employee uses a work computer to send an e-mail, it doesn't automatically make that message subject to the state open records law. The 5-2 decision overturns a lower court's ruling that ordered five Wisconsin Rapids School District teachers to turn over private messages.

From the Milwaukee Journal Sentinel article on the decision:

No state has ruled that private e-mails should be subject to open records disclosure, Chief Justice Shirley Abrahamson said in her majority ruling.

"While government business is to be kept open, the contents of employees' personal e-mails are not a part of government business," she said.

Abrahamson noted that e-mails were not contemplated when the state passed the open records law in the 1970s. Thirty years ago, government workers wrote personal messages and either mailed them or threw them away, but now they are instead put into e-mails, she said.

The dissenting justices cautioned that the ruling will provide a blanket exception for government workers to sidestep the open records law simply by claiming their e-mails are personal.

"This broad exception prevents the public from discovering what public employees are doing during the workday, in the workplace, using equipment purchased with public funds," said Justice Patience Roggensack. "In so doing, the court contravenes Wisconsin's long history of transparency in and public access to actions of government employees."

Roggensack was joined in the dissent by Justice Annette Ziegler.

The case is Karen Schill v. Wisconsin Rapids School District.

Thursday, July 15, 2010

10th Circuit Upholds Diocese's Use of the Ministerial Exception

The Court of Appeals for the Tenth Circuit upheld the district court's grant of summary judgment and found that the Roman Catholic Diocese of Tulsa fit under the ministerial exception to Title VII which protected it against a former employee’s federal employment law claims of sex and age discrimination and hostile work environment. The case is Skrzypczak v. Roman Catholic Diocese of Tulsa, No. 09-5089 (10th Cir. July 13, 2010).

From the opinion:

The ministerial exception preserves a church’s “essential” right to choose the people who will “preach its values, teach its message, and interpret its doctrines[,] both to its own membership and to the world at large,” free from the interference of civil employment laws. Bryce, 289 F.3d at 656 (internal quotation marks omitted). Although the doctrine usually comes into play in employment suits between an ordained minister and her church, it extends to any employee who serves in a position that “is important to the spiritual and pastoral mission of the church.” Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985).

In support of its motion, the Diocese provided the court with a copy of the Appellant’s job description, which included a list of her primary duties, the Appellant’s employment application, a list of religious courses that Appellant taught at the Diocese’s Pastoral Studies Institute, Institute’s mission statement, and an affidavit from Bishop Slattery describing Appellant’s role at the Institute and as the director of the Department of Religious Formation. Upon review of these materials, the Court stated:

...we have no doubt that Appellant’s principal duties included at least some
tasks that were purely administrative in nature. However, the evidence also tends to show her position was not limited to a merely administrative role, but it also involved responsibilities that furthered the core of the spiritual mission of the Diocese.

A National Law Journal article (login required) on this case notes the Wisconsin Supreme Court's ruling last year that held that a fired Catholic school teacher cannot sue for discrimination because many religious school teachers are not protected by state discrimination laws. In the 4-3 decision, the court said religious schools have a constitutional right to hire and fire employees to carry out their missions, and that includes many teachers.

UPDATE: Professor Paul Secunda over at Workplace Prof Blog posted on this and added some input.

Wednesday, July 14, 2010

8 Occupations in Which Women Make More than Men

The June report on women's earnings released by the Bureau of Labor Statistics revealed at least 8 jobs where women earn more than men. The 8 jobs are:

-Science Technicians- Life, Physical and Social Science
-Preschool and Kindergarten Teachers
-Dietitians and nutritionists
-Clerks: Information, record, order, interviewer
-Miscellaneous Personal Appearance Workers
-Dining Room and Cafeteria Attendants, Bartender Helpers
-Teacher Assistants

via The Huffington Post

Disabled Worker Not Entitled to Position Held by Temp Worker Under the ADA's Reasonable Accomodation Section

The Court of Appeals for the Tenth Circuit has ruled that the duty to reasonably accommodate a disabled employee under the Americans with Disabilities Act did not require an employer to reassign the employee to a position filled by a temporary-contract worker because that position was not “vacant,” as the ADA contemplates, the federal appeals court in Denver has held. The Court further held that a “vacant” position under the ADA is one that would be available for a similarly-situated non-disabled employee to apply for and obtain.

In addressing the issue of what the definition of "vacant" is, the Court, just like the Eighth Circuit did in the case I mentioned earlier, rejected use of the EEOC's interpretation in their guide, "Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act." The EEOC's definition in that guide is: “vacant” means “that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.” The Court found this definition tautological and therefore unhelpful in answering the question presented in Duvall, however, because “asking whether a position filled by a temporary employee is ‘available’ is no different . . . from asking whether it is ‘vacant.’”

In defending their interpretation of the term "vacant," the Court stated that to interpret the term in any other way would “run the risk” of transforming the ADA from a non-discrimination statute into a “mandatory preference statute.”

The case is Duvall v. Georgia-Pacific Consumer Products, L.P., No. 08-7096 (10th Cir. June 9, 2010).

Employee Who Did Not Reveal Depression Treatment to Employer Has No Rights Under FMLA or ADA

The Court of Appeals for the Eighth Circuit upheld the district court's grant of summary judgment for the employer of an employee who sued alleging his forced resignation interfered with or denied his rights under the Family and Medical Leave Act and discriminated against him on account of disability in violation of the Americans with Disabilities Act and the Minnesota Human Rights Act.

The former employee, Michael Kobus, was diagnosed with depression and was prescribed the antidepressant Paxil. However, he did not disclose this to his supervisor, saying, instead, he was suffering from stress and anxiety. Because of this the supervisor placed the College’s “Request for Family Medical Leave” form in Kobus’s mailbox at the College and told him he could apply for FMLA leave if he had a serious medical condition. In response, Kobus told the supervisor, “I didn’t need any leave. Not just FMLA; any leave.” The Court noted this outright refusal and found the employer just in terminating the employee for excessive absenteeism.

The same applied to the former employee's ADA and MHRA claim because the employee failed to inform his employer he needed an accommodation. The employee attempted to cite the Equal Employment Opportunity Commission’s Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities in support of his claim because the guide instructs that an employee’s request for time off because he is “depressed or stressed” is “sufficient to put the employer on notice that the employee is requesting reasonable accommodation.” This citation was rejected because the Court held: “None of our prior ADA notice cases cited the Enforcement Guidance as controlling …. Instead, those cases apply the requirement in the regulations that an employee 'inform the employer that an accommodation is needed.’”

The case is Kobus v. The College of St. Scholastica, Inc., No. 09-1583 (8th Cir. June 21, 2010).

Tuesday, July 13, 2010

Federal Judge Grants NLRB's Injunction Request for Reinstatement of 27 Fired Employees

A Federal district court judge in New York has granted an injunction request from the NLRB requesting that 27 employees be reinstated after they were terminated by a New York moving company shortly after a union filed a petition for an election at their workplace. From the NLRB press release on the order:
In issuing the injunction Tuesday against Flat Rate Movers, Ltd, U.S. District Court Judge Denise Cote said that “there is reasonable cause to believe that (the employer) has engaged in serious and pervasive unfair labor practices” and that without immediate interim relief, “enforcement of important provisions of the Act and of the public policy underlying it will be thwarted.”

The injunction, sought by Celeste Mattina, director of the NLRB’s Region 2, was granted under Section 10(j) of the National Labor Relations Act and will remain in effect pending final disposition of the case by the NLRB. The order also prohibits the employer from interrogating employees or threatening them with discharge because they engage in union activities. Employees have 30 days to decide whether or not to accept the offers.

The case dates back to the summer of 2009, when the employer allegedly threatened and interrogated employees regarding their support for Local 116 of the United Food and Commercial Workers union. Soon after the union filed a petition for election, the employer laid off about 20% of its permanent workforce. An election was held, but the result was not determined because of the large number of challenged ballots and objections by the union related to the layoffs.

NLRB Weekly Summary of Cases

For the week of July 6-9.

Sunday, July 11, 2010

Germantown, Former Village President Sued for Sex Discrimination and Retaliation

Last week a federal lawsuit was filed against the Village of Germantown, the Board of Germantown and former Village President, Thomas Kempinski, alleging sex discrimination, retaliation and violation of equal protection rights. Here is the Milwaukee Journal Sentinel article on the suit.

Oregon Passes Legislation Protecting Employees from Credit History Discrimination

Earlier this month Oregon joined Hawaii, Washington and New Jersey in passing legislation prohibiting discrimination on the basis of credit history (with exceptions, of course). Specifically, the legislation prohibits employers from using credit history as a factor in hiring, firing, demoting or suspending employees, unless they can prove that good credit history is important for the job.

Wisconsin currently does not provide for such protection, though that may soon change. However, there may still be issues related to credit history discrimination if disparate impact can be shown since demographic data from various studies show that minorities and women are more likely to have lower household incomes, live in poverty and therefore struggle with credit. Thus, employers are encouraged to take caution when using credit history to bar applicants from employment.

Friday, July 9, 2010

Contract Attorney Sues Law Firm for Overtime Pay

An attorney, Moshe Koplowitz, who performed contract work for a law firm, Labaton Sucharow, has filed a lawsuit against said firm alleging he was denied overtime pay in violation of the FLSA for the hours he worked over 40 while he was a temp employee. The New York Times article that talks about the suit isn't detailed enough about what type of work the attorney performed but it raises quite an interesting legal argument considering the FLSA's professional exemption.

I'm guessing the complaint frames Koplowitz's temp work as less than what a lawyer would do and more like what a paralegal/legal secretary would do so that the court can classify him as nonexempt but for policy reasons I have a feeling that won't happen. Any thoughts out there on this?

Thursday, July 8, 2010

Department of Labor Enters the Blogosphere

The DOL's new blog, "Work in Progress."

Milwaukee Journal Sentinel Editorial Calls for Department of Workforce Development to Hear More Unemployment Compensation Cases

An editorial in yesterday's Milwaukee Journal Sentinel, in response to an article by Don Walker about the State's lag in unemployment appeals hearings, criticizes the Wisconsin Department of Workforce Development's Unemployment Insurance Division's speed at which it hears cases and calls for improvement, claiming that it takes too long to hear appeals in unemployment compensation cases. From the editorial:

As the Journal Sentinel's Don Walker has reported, April data from the U.S. Department of Labor showed that the state completes just 7.7% of what are called "lower authority appeals" within 30 days. That is the first step in the appeals process after a claim is rejected. The federal goal is 60%.

Wisconsin ranks 35th in the country, and some unemployed workers have waited months to have their cases heard. The state simply has to do better than that.

While there is little doubt that economic havoc in industrial belt states has pushed unemployment far higher than in less manufacturing-intensive states, Department of Workforce Development officials should have seen this coming and reacted more quickly. Caseloads ballooned last year and have fallen since. During the week of June 27-July 3, for example, the latest week for which statistics were available, more than 14,000 initial unemployment compensation claims were filed with the state compared with 26,201 for the same week a year earlier.

NLRB Orders Union Election at World's Largest Casino Complex

The National Labor Relations Board has ordered that a union election be held at Foxwoods Resort and Casino, operated by the Mashantucket Pequot Tribe after the United Food and Commercial Workers Union, Local 371, filed a petition for the election covering about 375 bartenders, beverage servers, lounge hosts and bar porters. The Tribe argued that the NLRB did not have jurisdiction on tribal land. Instead, the Tribe said, the election should be conducted through its own labor relations agency, which was created three years ago in response to an earlier union petition.

This isn't the first time the NLRB has run into issues of tribal land jurisdiction and in making its decision, Regional Director Jonathan B. Kreisberg relied on previous decisions by the NLRB that the Board would take jurisdiction on tribal lands except in matters of “self-government in purely intramural matters”, or in cases where it would abrogate treaty rights,or where there is “proof” in statutory language that Congress did not intend for the law to apply to Indian tribes. The Regional Director found that none of those conditions applied.

From the NLRB's press release on the news:

Furthermore, he found that the tribe’s labor relations law is not comparable to the National Labor Relations Act in that it bans strikes, exempts employee safety and other subjects from collective bargaining, and requires tribal licensing of any union business agent. The NLRB has ordered two previous elections at Foxwoods, one of which involved the United Auto Workers and resulted in the Board's certification of the UAW as the representative of poker and table game dealers. After a series of NLRB and federal court appeals by the tribe, the UAW agreed to be certified and governed by tribal law rather than the NLRB, which ultimately resulted in a collective bargaining agreement. Three other union elections were later held at Foxwoods involving different unions and sets of employees, all under the tribal labor relations law.

11th Circuit Gives Important Lesson on Timing of Terminating an Employee

You know an opinion is going to be a good one when it starts out with:
Some people are impossible to please. No one can meet their standards and no matter how hard anyone tries, they find fault, criticize, and are unhappy with the result. They demand continuous perfection, which is more than any human being can deliver. The evidence in this Title VII case indicates that Heidi Verdezoto is one of those people.
The facts of this case are also very interesting and dramatic and somewhat of a lesson for employers who delay terminating employees while they search for a replacement. In a nutshell, a superior, Heidi Verdezoto, with the employer, a family-owned and operated enterprise, was infamous for terminating people in the "controller" position for never meeting her expectations. The plaintiff was no exception except for that fact she found out before she was terminated that her termination was imminent and then things got complicated for the employer because the plaintiff then began making accusations of discrimination based upon her Cuban origins.

The plaintiff filed a complaint with the EEOC but then received her right-to-sue letter and then sued the defendant alleging discrimination and retaliation. The defendant then moved for summary judgment contending that the plaintiff failed to set forth a prima facie case and did not rebut the legitimate non-discriminatory reason for her termination. With respect to retaliation, the defendant said that the plaintiff was going to be terminated anyway and that only the timing was poor, at best. The district court granted summary judgment on both claims.

Ultimately the two sides quibbled over whether the plaintiff actually performed her job duties successfully and satisfactory or whether the reasons proffered by the defendant for her termination were merely pretextual. The 11th Circuit upheld the district court's grant of summary judgment on the discrimination claim and notes that Heidi was simply impossible to please and that is just fine under Title VII so long as she's impossible to please for non-discriminatory reasons:

The record establishes beyond any genuine dispute that Alvarez, like her two non-Cuban predecessors, simply failed to satisfy Heidi Verdezoto. That may not be a good reason for firing Alvarez (or her two predecessors), it may not be a reason that flatters Heidi, and it may not be a reason that Royal Atlantic wants to put in its promotional brochures, but it is a non-discriminatory reason. So far as job discrimination law is concerned, Heidi was within her rights to insist on a controllerwho could whip the company’s books into shape overnight while accommodating her own prickly personality and performing every task perfectly, even if there was little or no chance she would ever find such a miracle worker. She was free to set unreasonable or even impossible standards, as long as she did not apply them in a discriminatory manner.
The 11th Circuit quotes a "Vince Lombardi rule" with respect to this case:

This is a classic example of the Vince Lombardi rule: someone who treats
everyone badly is not guilty of discriminating against anyone. See Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301 n.1 (11th Cir. 2007)

With respect to the retaliation claim, this is where temporal proximity comes into play. The letter the plaintiff sent to the defendant complaining of discrimination after she found out she was in danger of termination qualifies as statutorily protected conduct. The fact that the employer was going to fire the plaintiff anyway did not matter in this case because it was the letter that prompted the employer to terminate her the day after they received it and this was enough to establish the adverse action element of her retaliation claim. The employer presented three reasons why it had to terminate her after receiving the letter with the most convincing reason being that it feared the plaintiff would use her important position to sabotage the company. The 11th Circuit was uncertain whether this reason is believeable and sent it back to district court for a jury to decide.

The case is Alvarez v. Royal Atlantic Developers, No. 08-15358 (11th Cir. July 2, 2010)

Tuesday, July 6, 2010

Happy Anniversary, National Labor Relations Act and NLRB!

Today marked the 75th anniversary of the National Labor Relations Board's enforcement of the National Labor Relations Act, the primary law governing relations between employers and employees in the private sector, which was signed by President Franklin Roosevelt on July 5, 1935. From the NLRB press release on the landmark:
In the midst of the Great Depression, at a time marked by high unemployment and severe economic distress for many workers, President Roosevelt stated that the law sought to achieve "common justice and economic advance." Since then, through the Second World War and the economic growth and challenges that followed, millions of employees have voted in NLRB conducted workplace elections and millions more have bargained collectively with their employers under the NLRB’s protection.

“Both our country and our world have changed a great deal over the last eight decades, but the values reflected in the National Labor Relations Act – democracy in the workplace and fairness in the economy – are still vitally important,” said Chairman Wilma Liebman. In fiscal year 2009 alone, the Agency conducted 1.690 representation elections, received 22,941 charges of unfair labor practices, recovered more than $77 million in back pay and ensured that more than 1,500 wrongfully discharged employees were offered reinstatement to their jobs.

Second Circuit Reverses Lower Court's Dismissal of Sexual Harassment, Hostile Work Environment Claims

The Court of Appeals for the Second Circuit found that a female employee presented enough evidence that her male manager subjected her to a 16-month period of abuse that was sufficiently severe or pervasive to create a sexually hostile work environment, thus reviving her Title VII and Connecticut law claims. The case is Kaytor v Electric Boat Corp.

The Second Circuit found reversible error in much of the district court's analysis of the facts presented in the record. The circuit court also allowed the employee to proceed with her claim that she was subjected to unlawful retaliation when the company transferred her to a less desirable position, but affirmed the district court’s dismissal of her claims for retaliatory discharge and intentional inflection of emotional distress.

Friday, July 2, 2010

Plaintiff Loses ADEA Appeal Accusing Employer of Discrimination in Refusing Reinstatement

An interesting case out of the Tenth Circuit where a 56-year-old former UPS driver did not contest his termination but contested that UPS committed age discrimination when it refused to reinstate him when at least one younger employee committed a similar offense and was reinstated by the same supervisors. The Tenth Circuit ultimately upheld the district court's grant of summary judgment for the employer finding that the difference in outcomes for the plaintiff and the younger employee had nothing to do with age and more to do with remorsefulness in the aftermath of the company policy violations.

As we all remember, the plaintiff's burden in ADEA claims changed after the SCOTUS' decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009) where it was held that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. The Tenth Circuit found that the plaintiff failed to meet this "but-for" standard:

His main point, that failure to admit fault was the only operative basis for his decision not to reinstate Medlock, obviously weighs against age even being a factor. His hypothetical qualification–that had Medlock admitted fault, something else might have led Cortez not to grant reinstatement–does not deny the causal operation of the stated justification on the actual facts, much less substitute age as the but-for cause to satisfy Gross. Cortez merely acknowledged that some other, unspecified consideration(s) could count against reinstating Medlock, so that Medlock’s failure to admit fault, though the operative basis for denying reinstatement here, may not constitute a but-for cause for doing so. But that is immaterial under Gross: it is not UPS’s burden to show that its justification was the but-for cause for its challenged action, i.e., that it would have reinstated Medlock but for his failure to admit fault; rather, Medlock must show that age was the but-for cause, i.e., that UPS would have reinstated him, despite his failure to admit fault, but for his age.
The court found likewise to be true for the other comparators and also found the plaintiff's other evidence of pretext to not present any triable issues and found that the plaintiff also did not present any material direct evidence.

The case is Medlock v. United Parcel Service, Inc. and the full opinion is here.

The Jobs Report Comes Out Today

And it looks bleak. However, the jobs report for June will look bad mostly because of the Census Bureau's elimination of about 235,000 federal temporary jobs which will overshadow any hiring or firing elsewhere in the economy--but that doesn't mean there wasn't a loss in jobs anyway. From the NYT:

And exactly how much private payrolls grew in June could help shape the economic policy debate for months to come. The median forecast is 110,000 new jobs, but predictions range from 22,000 to 200,000.

Private sector payrolls have been recovering so far this year, rising every month since January and peaking with growth of 218,000 in April. But the growth in May was disappointing, just 41,000 new jobs. For comparison’s sake, the economy has shed 7.4 million jobs on net since the recession officially began in December 2007, and in the meantime, the number of people willing to work has been growing.

The June report will help determine whether May’s report was a temporary blip or a red flag that the economy is in real trouble. The latter situation seems to have been supported by some economic news the last few days.

Stay tuned! I'll post the jobs report when it's published later today.

Thursday, July 1, 2010

NLRB Announces Plans for Considering the 2-Member Cases in Aftermath of SCOTUS Decision

The Supreme Court of the United States recently dealt the NLRB a critical blow in New Process Steel v. NLRB when it ruled that the Board was not authorized to decide cases when three of its five seats were vacant. In response to numerous inquiries about how the NLRB will address this decision, today it outlined a plan. From the press release on the plan:

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.

Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.