Tuesday, November 30, 2010

EEOC Announces Record Numbers in Annual Report

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

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

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


Enochs Law Firm

NLRB Weekly Summary of Cases

For the week of November 22-26, 2010.

Monday, November 29, 2010

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

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

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

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

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

Enochs Law Firm

Employment Case Law Update

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

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

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

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

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

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

Enochs Law Firm

Friday, November 26, 2010

Committee Decides Dismissed Charges Will Stay on CCAP

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

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

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

Enochs Law Firm

Thursday, November 25, 2010

Jackson Woman Files Suit Against Michels Corporation Alleging Disability Discrimination

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

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

Enochs Law Firm

Monday, November 22, 2010

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

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

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

Enochs Law Firm

Employment Case Law Update

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

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

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

Enochs Law Firm

Thursday, November 18, 2010

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

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

Another Facebook/Social Media Policy Attacked Over Speech Restrictions

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

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

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

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

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

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

Enochs Law Firm

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

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

Enochs Law Firm

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

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

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

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

Wednesday, November 17, 2010

NLRB Weekly Summary of Cases

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

Monday, November 15, 2010

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

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

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

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

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

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

Employment Case Law Update

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

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

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

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

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

Saturday, November 13, 2010

Wisconsin Law Journal on "Cat's Paw" Case

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 11, 2010

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

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

Enochs Law Firm in MilwaukeeJobs.com

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

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

Cool Videos Demonstrating Protected Activity

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

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



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

Tuesday, November 9, 2010

Employment Case Law Update

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

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

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

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


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

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

NLRB Weekly Summary of Cases

For the week of November 1-5.

Monday, November 8, 2010

Predominately Spanish-Speaking Workers at Michigan Turkey Processor Reject Unionization

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

"Mastering Employment Discrimination Law"

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

Thursday, November 4, 2010

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

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

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

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

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

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

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

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

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

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



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

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

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

From the NLRB press release on the complaint:

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

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

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

Enochs Law Firm in Milwaukee Magazine's Inside Milwaukee Feature

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

Wednesday, November 3, 2010

California Workplace Law Blog

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 2, 2010

Enochs Law Firm Website

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

Monday, November 1, 2010

Voting Rights on Election Day

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

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

Family Responsibilities Discrimination

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

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

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

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