Tuesday, September 28, 2010

Woodman's Hit with Two EEOC Complaints in a Week

Woodman's Food Market has been hit with two EEOC complaints in a week from former employees at its Madison location. One complaint alleges disability discrimination after a former employee was told that they could no longer accommodate her long standing restriction and that they had no other positions for her. Last week another former Woodman's employee had a complaint filed on her behalf based upon pregnancy discrimination after an assistant store manager asked her if she was pregnant and then told her he would have to fire her, or she could quit and reapply after giving birth.

Monday, September 27, 2010

Employment Case Law Update

--Hertz v Luzenac Am, Inc., DColo, September 21, 2010: In a complex pattern of litigation, a former employee successfully sued former employer for Title VII religious bias and retaliation. Former employee then went to work for a competitor. Court ruled former employee was unable to pursue his subsequent Title VII allegation asserting that the former employer violated Title VII by unlawfully retaliating against him when it filed a lawsuit against the competing business.
From CCH Work Week on this decision: The court rejected the employer’s assertion that the employee’s claim should be dismissed for failure to exhaust administrative remedies, as well as its contention that the retaliation claim was precluded by a prior Tenth Circuit ruling that the former employer’s efforts to protect its trade secrets was not an improper use of the legal process. However, the court ultimately ruled the employee could not proceed with his retaliation claim because the alleged adverse employment action complained of – the employer’s act of filing a lawsuit against the competitor – would not have dissuaded a reasonable worker from supporting a charge of discrimination under the circumstances. Further, the employee’s claim of retaliation was not based on his position as an employee, “but rather is grounded in his posture as an improper competitor.”

As a side note, this opinion has a good discussion on exhausting administrative remedy before filing a Title VII claim in federal court.

--Stickhost v 3-D Leasing, Inc., CDIll, September 21, 2010: Motion to dismiss denied. And a good section on pleading with specificty in response to a motion to dismiss for failure to state a claim.
Specifically, the defendants argued that the plaintiff failed to assert a "serious health condition" for purposes of the FMLA. The court rules that gallstones could be a health condition eligible for medical leave under the meaning of the FMLA.

--Barnhart v Town of Parma, WDNY, September 22, 2010: Two male mechanical equipment operators who were employed by a town’s highway department failed to make out Title VII and New York state law claims that they were unlawfully retaliated against for complaining that their male supervisor harassed and discriminated against them on the basis of their gender. Simply, the plaintiffs failed to show up retaliatory conduct given the nature of their jobs and the way the employer administered vacation.

--Gossett v Tractor Supply Co, Inc., TennSCt, September 20, 2010: The McDonnell Douglas approach to allocating burden of proof in a Title VII discrimination case does not apply at the summary judgment stage of discrimination and retaliation claims brought under Tennessee law, the Tennessee Supreme Court held, 3-2. Moreover, Tennessee law does not require that an individual report allegedly illegal activity in order to maintain a claim for wrongful discharge in violation of public policy. Thus, the appeals court properly reversed summary judgment in favor of an employer on an inventory control manager’s claim that he was fired in retaliation for refusing to change his inventory reserve analysis, which would be used in the company’s quarterly earning report to the Securities and Exchange Commission.

Wednesday, September 22, 2010

Terminated or Demoted While on FMLA Leave

The Family & Medical Leave Act provides protection for covered employees to take up to 12 weeks of leave under three specific conditions:
-for the birth and care of the newborn child of the employee;
-for placement
with the employee of a son or daughter for adoption or foster care;
-to care
for an immediate family member (spouse, child, or parent) with a serious -health
condition; or
-to take medical leave when the employee is unable to work
because of a serious health condition.
However, does this always mean an employer must return an employee and return them to the same or equivalent position? The answer is no, but only in very limited exceptions. Also, there are lots of arguments over what is an "equivalent position." However, the guidelines for "equivalent position" are very specific and somewhat obvious.

Exceptions for Employers NOT to Reinstate Employee on FMLA Leave

As stated before, taking FMLA leave does not always require an employer to reinstate an employee upon attempted return but only in limited circumstances. Those circumstances/exceptions are:

1) When employee is laid off due to economic reasons or the employee's shift is eliminated.
2) Employee was hired for specific project and that project is complete.
3) When employee can no longer perform "essential functions" of job. May be obligations under Americans with Disabilities Act, however.
4) A "key employee" need not be reinstated. Key employees are amongst the highest paid with the employer. The employer has to show that it would suffer a substantial economic loss to operations. This exception is very complicated and beyond the scope of this overview article.

NLRB Weekly Summary of Cases

For the week of September 13-17, 2010.

Thursday, September 16, 2010

Arrest and Conviction Record Discrimination in Employment Law

Federal anti-discrimination law does not cover every form of discrimination. However, states are able, under the Constitution, to enact laws that provide for more protections for its residents. One such protection Wisconsin affords its residents that legislation at the federal level does not is protection against discrimination in employment based upon arrest and conviction record.

Section 111.335 of the Wisconsin Statutes states:

Arrest or conviction record; exceptions and special cases. (1) (a) Employment discrimination because of arrest record includes, but is not limited to, requesting an applicant, employee, member, licensee or any other individual, on an application form or otherwise, to supply information regarding any arrest record of the individual except a record of a pending charge, except that it is not employment discrimination to request such information when employment depends on the bondability of the individual under a standard fidelity bond or when an equivalent bond is required by state or federal law, administrative regulation or established business practice of the employer and the individual may not be bondable due to an arrest record.
However, as can be reasonably expected, there are defenses for certain denials of employment and adverse employment actions under this statute. Section 11.335 also states:

(b) Notwithstanding s. 111.322, it is not employment discrimination
because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity.
(c) Notwithstanding s. 111.322, it is not employment discrimination
because of conviction record to refuse to employ or license,
or to bar or terminate from employment or licensing, any individual
who:
1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity; or
2. Is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation or established business practice of the employer.
(cg) 1. Notwithstanding s. 111.322, it is not employment discrimination
because of conviction record to deny or refuse to renew a license or permit under s. 440.26 to a person who has been convicted of a felony and has not been pardoned for that felony.
2. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke a license or permit under s. 440.26 (6) (b) if the person holding the license or permit has been convicted of a felony and has not been pardoned for that felony.
3. Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ a person in a business licensed under s. 440.26or as an employee specified in s. 440.26 (5) (b) if the person has been convicted of a felony and has not been pardoned for that felony.
(cm) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ as an installer of burglar alarms a person who has been convicted of a felony and has not been pardoned.
(cs) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to revoke, suspend or refuse to renew a license or permit under ch. 125 if the person holding or applying for the license or permit has been convicted of one or more of the following:
1. Manufacturing, distributing or delivering a controlled substance or controlled substance analog under s. 961.41 (1).
2. Possessing, with intent to manufacture, distribute or deliver, a controlled substance or controlled substance analog under s. 961.41 (1m).
3. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under a federal law that is substantially similar to s. 961.41 (1) or (1m).
4. Possessing, with intent to manufacture, distribute or deliver, or manufacturing, distributing or delivering a controlled substance or controlled substance analog under the law of another state that is substantially similar to s. 961.41 (1) or (1m).
5. Possessing any of the materials listed in s. 961.65 with intent to manufacture methamphetamine under that section or under a federal law or a law of another state that is substantially similar to s. 961.65.
(cv) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ in a position in the classified service or in a position described in s. 230.08
(2) (k) a person who has been convicted under 50 USC, Appendix, section 462 for refusing to register with the selective service system and who has not been pardoned.
(cx) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensure, any individual who has been convicted of any offense under s. 38.50 (13) (c).
That is quite the list of exceptions to the general rule against discrimination based upon arrest and conviction record but it basically states that an employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is "substantially related" to the circumstances of a particular job. Whether an arrest or conviction is "substantially related" is often the focus of litigation and defined by judges. A more obvious case of an offense being substantially related is, for example, a position in a child care center and an applicant who has a prior offense involving a minor.

Proving Arrest and Conviction Record Discrimination

I often receive phone calls from people who do not have direct evidence that they have been discriminated against because of their prior conviction record, which does show up on the Wisconsin Consolidated Court Automation Programs (CCAP), but they simply believe that there is no other explanation for their constant rejections in employment or other adverse employment actions, such as receiving a termination out of the blue with no explanation given by the employer. It is often very difficult to prove an employer's intent in most discrimination actions in employment law, especially in arrest and conviction record discrimination cases. However, this does not mean it is impossible to prove such and courts recognize the highly circumstantial nature of employment law matters. And, even if it can be proven that an employer discriminated against someone because of their arrest and/or conviction record, there are still defenses and exceptions available to employers.

If you believe that you have been discriminated against because of your arrest and/or conviction record, feel free to contact me.

Marquette Law Review Symposium - Promoting Employee Voice in the New American Economy

From Professor Paul Secunda who, along with Marquette's Labor and Employment Law Program, is hosting this event:

The event will be on Friday, October 1, 2010 from 8:15 a.m. to 4:30 p.m. at the
beautiful, new Eckstein Hall Law School building at 1215 Michigan Ave,
Milwaukee, WI.

The name of the program is: Promoting Employee Voice in
the New American Economy and features, among other prominent speakers, Professor
Kenneth Dau-Schmidt, the Willard and Margaret Carl Professor of Labor and
Employment Law at Indiana University – Bloomington, Maurer School of Law.

All are welcome. There is no fee for this conference, but registration
is required. Please reserve your spot by September 23, 2010 by filling out and
sending in this this form.

Here is the schedule with speakers:

8:15 -Registration and Continental Breakfast

9:00-9:30 - Welcome

9:30-10:30
Principal Paper: Promoting Employee Voice in the A
merican Economy: A Call for Comprehensive Reform

Kenneth G. Dau-Schmidt,
Willard and Margaret Carl Professor of Labor and Employment Law
Indiana
University – Bloomington, Maurer School of Law

10:45-Noon
Responses
and Critiques: Lessons From History

Moderator: Paul M. Secunda,
Associate Professor of Law
Marquette University Law School

Laura J.
Cooper, J. Stewart and Mario Thomas McClendon Professor in Law and Alternative
Dispute Resolution, University of Minnesota Law School

Aditi Bagchi,
Assistant Professor of Law
University of Pennsylvania Law School

1:00-2:15
Responses and Critiques: Lessons from the Public Sector

Moderator: Phoebe W. Williams, Associate Professor of Law
Marquette
University Law School

Ann C. Hodges, Professor of Law
University of
Richmond School of Law

Joseph E. Slater, Eugene N. Balk Professor of Law
and Values
University of Toledo College of Law

2:30-3:45
Responses and Critiques: Ideological Insights

Moderator: Jay E.
Grenig, Professor of Law
Marquette University Law School

Richard
Michael Fischl, Professor of Law
University of Connecticut School of Law

Scott A. Moss, Associate Professor of Law
University of Colorado
School of Law

3:45-4:30
Rebuttal and Closing Remarks

Questions? Write me at paul.secunda@marquette.edu or call me at
414.288.6497.

Monday, September 13, 2010

Light Blogging Week

I am overwhelmed with deadlines and work this week so check for updates toward the end of the week.

Tuesday, September 7, 2010

Employment Case Law Update

Weber v Universities Research Assoc, Inc., 7thCir, No. 08-1957: The 7th Circuit offers up another lesson in having ideal comparators and affirmed summary judgement in favor of employer because none of the male comparators identified by a female engineer violated the employer’s policies against unauthorized outside employment and computer use to support it to the extent the employee did, the engineer failed to make a prima facie case of Title VII sex discrimination.

Runyon v Applied Extrusion Techs, Inc., 7thCir, No. 09-3015: 7th Circuit upholds summary judgement for employer on an age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers because the plaintiff failed to produce evidence that the employer’s action was motivated by age. Interestingly enough, and as seen in other age discrimination cases where a difference between the older and younger employee is remorse, the Court relied, in part, upon letters written by the plaintiff and a younger employee involved to uphold summary judgement. Also harmful to the plaintiff was his history of bad behavior and run-ins with another coworker and he was replaced with a 44-year-old man, hired by the same person who fired him.

Prach v Hollywood Supermarket, Inc., EDMich, No. 09-13756: A Seventh Day Adventist who requested Saturdays off to observe the Sabbath stated a prima facie case of religious discrimination under Title VII, but the employer was entitled to summary judgment because it demonstrated that it could not reasonably accommodate the employee without undue hardship. The employer established that it could not reasonably accommodate the employee without incurring undue hardship, in that the employer would be forced to hire an additional worker, understaff the produce department, or require other employees to work Saturdays without regard to their preferences and in possible violation of a collective bargaining agreement with the employees’ union, resulting in more than a de minimus cost or discrimination against other employees on the basis of the employee’s religion.

Prise v Alderwoods Group, Inc., WDPa, No. 09-13756: An employee, who won at trial on her Title VII and state law claims that her former employer unlawfully suspended her in retaliation for having filed an EEOC charge, was not entitled to an injunction requiring the employer to cease and desist from future retaliation against other employees who engage in Title VII protected activity. The court first noted that there was an “overarching question” about whether the requested “do not violate the law” generic type of injunction could be issued. Because the employee no longer worked for the employer, such an injunction would be difficult to enforce since the employee lacked standing to enforce the rights of a third party. A request for sanctions or enforcement would need to be brought in the future by some unknown employee who would have standing.

Thursday, September 2, 2010

NLRB Rules "Bannering" Does Not Violate Labor Laws

The National Labor Relations Board has announced, in a press release, that a union practice of displaying large stationary banners at a secondary employer’s business is not coercive, and so does not violate U.S. labor law.

The press release and opinion is based upon three cases out of Arizona where union carpenters held 16-foot-long banners near establishments -- two medical centers and a restaurant -- to protest work being performed for the owners of the establishments by construction contractors that the union claimed paid substandard wages and benefits. Two banners declared “SHAME” while a third urged customers not to eat at the restaurant. The NLRB ruled this conduct to be protected speech and not violative of the National Labor Relations Act ("NLRA").

Wednesday, September 1, 2010

6th Circuit Declines to Follow DOL's Opinion Letter Regarding 203(o), Delivers Death Nail to Employees

A recent opinion out of the Court of Appeals for the Sixth Circuit concerns donning and doffing and compensable time under the Fair Labor Standards Act and starts like out most donning and doffing cases (i.e., employees required to wear certain protective garments, argue they should be compensated for such time spent), but the opinion itself takes a unique twist regarding the Department of Labor's opinion letters and who bears the burden of proof in showing that donning and doffing is excluded under § 203(o).

DEATH NAIL #1: BURDEN OF PROOF
The 6th Circuit ultimately concludes that § 203 is not an exemption and therefore not an affirmative defense, which places the burden on the plaintiff to establish entitlement to wages under the FLSA,including to prove that there is no custom or practice under a bona fide CBA related to “changing clothes.”

DEATH NAIL #2: DOL OPINION LETTERS
The 6th Circuit decided, in part because the DOL's opinion letters regarding "clothes" under § 203 keeps changing and evolving and because of the Supreme Court's decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944), that the DOL's most recent opinion letter regarding "clothes" under § 203 will not be followed. Thus, the Court held that "clothes" refers to any “covering for the human body or garments in general,” particularly those worn for work. And, enough to make any plaintiff's lawyer fall out of their chair, the Court ruled that there is "...no reason to distinguish between protective and non-protective clothes." Therefore, ear plugs are clothes!

In making their ruling, the 6th Circuit notes that their decision is in concurrence with some circuits and at odds with other, which makes this issue plenty ripe for grant of cert by the Supreme Court!

The case is Franklin v. Kellogg Company, No. 09-5880.

Article on Wisconsin's Efforts to Tighten Up on Worker Classification

Attorney Troy D. Thompson of Axley Brynelson, LLP, Madison has an article on the State Bar of Wisconsin's website addressing the recently-enacted Wisconsin statute (2009 Senate Bill 672) that "gives the Wisconsin Department of Workforce Development substantial teeth to investigate and address worker misclassification issues (i.e., employee vs. independent contractor) involving employers engaged in construction-related services." The new law, which takes effect on January 1, 2011, involves employers engaged in the construction of roads, bridges, highways, sewers, water mains, utilities, public buildings, factories, housing, or similar construction projects.

The article does an excellent job of outlining the major effects of this new law, especially what new authority and power is given to the DWD in enforcing the statute.