Wednesday, December 14, 2011

EEOC Issues Informal Discussion Letter on the ADA and High School Diploma Requirements

Last month the Equal Employment Opportunity Commission (EEOC) posted an informal discussion letter on its website addressing the requirement of a high school diploma as it relates to jobs and job postings.  Some of you may be wondering how requiring a high school diploma may violate a disability anti-discrimination statute such as the Americans with Disabilities Act (ADA), but think about it: if an individual has a learning disability/impairment and is therefore restricted from a large pool of jobs that he or she could probably perform without a high school diploma, that would run afoul of the scope and spirit of the ADA.


From the informal discussion letter:

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c). 
Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

However, there will obviously be a large pool of jobs that meet the "consistent with business necessity" requirement such as jobs as doctors, pharmacists, nurses, etc.  

Fitness Instructor Fired for Tweet About Big Mac

In yet another case of an employer over-reacting to a harmless social media posting, a fitness instructor's termination over a Twitter post is making news.  Grant Hill (not the NBA star), a cycling instructor at Life Time Fitness in Rockville, Maryland, like a lot of Americans, has a Twitter account and likes to tweet about life's musings.  One day Hill saw a coworker eating a Big Mac from McDonald's and decided to tweet:
“A McDonalds bag sits on an employees desk @lifetimefitness aka “the healthy way of life company.” Ah the irony.”
He was later terminated.  


Apparently, Life Time Fitness did not find the post humorous, and, according to the "Capital Business" article on the Twitter firing, "triggered weeks of back-and-forth with managers demanding that the tweet be deleted. Hill said he refused unless Life Time allowed him to write an article about the health risks of fast food for its widely distributed magazine."  Life Time Fitness is claiming the termination was not for the tweet but, instead, "for his work outside the company, which Life Time deemed to be a competing 
personal fitness business."


So, then, the inevitable question that ensues for such a termination: "Is this legal?"  Well, Hill wouldn't have a 1st Amendment claim because Life Time Fitness is a private employer and not public.  Hill "probably" doesn't have a discrimination claim unless other similarly-situated employees did the same, were in a different protected class and were treated more favorably.  That then leaves labor laws and the National Labor Relations Act (NLRA) which the National Labor Relations Board (NLRB) governs.  The most used section of the NLRA in social media terminations is Section 7 governing "concerted protected activity."  In this case, while it's not entirely obvious how Hill's tweet is protected, Hill did claim the tweet related to Life Time Fitness' "mission," and an argument could be made!

Wednesday, December 7, 2011

Can My Employer Force Me to Get a Flu Shot?

A popular question and issue that arises every year around this time is whether an employer can force it's employee to receive flu shots/vaccinations.  The answer is that employers may generally require employees to receive a flu shot but there are potential law violations associated with such a practice (and with requiring employees to do anything in general).  Specifically, there may be issues with some employees' religion or medical conditions that may prevent them from receiving a shot and employers run the risk of violating Title VI and the Americans with Disabilities Act Amendments Act (ADAAA) and state-equivalent employment laws.


If an employee just doesn't want to be told what to do, they may face discipline and even termination and it may not run afoul of any employment law.  If an employer has a reasonable purpose for requiring the shots (e.g., a health-care provider), then take that into consideration before declining the vaccination.  However, if you believe you genuinely and truly cannot have a shot, contact an employment attorney to discuss the matter.

Monday, November 28, 2011

I Was Granted Unemployment Compensation: Does That Mean I Have a Case?

A lot of calls I receive from potential clients stems from the State of Wisconsin granting their claim for unemployment benefits.  A lot of recently-unemployed people jump to the conclusion or infer that this means the State has found some wrong-doing or unlawfulness regarding their termination, which is not the case and I then spend a considerable amount of time explaining to people why a grant of unemployment insurance does not mean their termination was necessarily unlawful.


The Standard for Receiving Unemployment Insurance is Different from a Determination of Discrimination, etc.


A determination for granting and issuing unemployment insurance is completely and utterly different from a finding of discrimination or a wrongful termination.  Wisconsin first finds out whether the person was terminated or quit and then the standard is either "misconduct connected to their employment," or "good cause attributable to the employer."  A finding for discrimination or wrongful termination has a completely different standard and burden of proof by a plaintiff and there's actually case law that forbids the use of unemployment compensation decisions in discrimination claims.


Employment claims, for the most part, use what we call "burden-shifting schemes," which is a framework used to determine whether a plaintiff/complainant was discriminated against.  A burden-shifting scheme is simply how a case is proven in a hearing or court by the parties to show that discrimination did or did not occur.  Cases are also proven either directly or indirectly (circumstantially) whereas unemployment cases do not have burden-shifting schemes and decisions by Administrative Law Judges (ALJ) are made through evidence presented by the employer (direct evidence) and the credibility of the witnesses.  An employment discrimination case can take one to several days to litigate whereas an unemployment case takes minutes to a few hours to litigate because they're not as complex.


Obtaining Unemployment Benefits is Just a Start


Just because receiving unemployment benefits provides almost no insight into the viability of a discrimination or wrongful termination claim does not mean you should not contact a local employment attorney to discuss your situation.  Often times it is helpful for an attorney to represent a claimant at an unemployment hearing because it gives us an opportunity to ask certain questions of the former employer and to get testimony under oath and on the record regarding a termination or quit.  Obtaining unemployment benefits also means that a claimant was either fired and did not engage in misconduct or quit for good cause attributable to the employer which may help in a subsequent discrimination claim.

Massachusetts Becomes 16th State to Provide Protection Against Discrimination on Basis of Gender Identity



Massachusetts recently became the 16th state to provide protection against discrimination in employment, housing, education, and credit (but not in public accommodation) on the basis of "gender identity."  As defined by the new state law, gender identity means, “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” For evidentiary purposes, “gender-related identity” may be shown by providing “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity.”


In a nutshell, this protects homosexuals (or those that appear to be homosexual), transgenders, etc from discrimination in several areas.  Wisconsin provides protection on the basis of "sexual orientation," but not specifically for "gender identity."  There have been several attempts to pass such legislation at the national level, the Employment Non-Discrimination Act ("ENDA") but has yet to pass in Congress.


Bravo, Massachusetts.   

Tuesday, November 22, 2011

EEOC Closer to Amending Regulations on Age Discrimination Law

Back in February 2010 the Equal Employment Opportunity Commission (EEOC) proposed amendments to the Age Discrimination in Employment Act (ADEA) called, “Final Regulation on Disparate Impact and Reasonable Factors Other than Age."  Prompting the changes were recent court rulings that, according to EEOC Chair Jacqueline A. Berrien, restricted the rights of age discrimination plaintiffs.  The proposed amendments have now been forwarded to to the Office of Management and Budget (“OMB”) for review and interagency coordination.  OMB will have at least 90 days to review the EEOC’s proposed regulations.  After OMB approval, the RFOA Regulations will be published in the Federal Register.  

The proposed “reasonable factors other than age” (RFOA) Regulations create a six-pronged test (not all of which necessarily need be satisfied) to determine whether an age neutral practice or factor is reasonable:
  1. Whether the employment practice and the manner of its implementation are common business practices.
  2. The extent to which the factor is related to the employer’s stated business goal.
  3. The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers).
  4. The extent to which the employer took steps to assess the adverse impact of its employment practices on older workers.
  5. The severity of the harm to the individuals within the protected age group, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm.
  6. Whether other options were available and the reasons the employer selected the option it did.
The proposed regulations also set forth a three-pronged test (not all of which necessarily need be satisfied) to evaluate whether an employment practice or factor is age neutral:
  1. The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively.
  2. The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes.
  3. The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.
Glad to see we continue to look out for older employees who still need to work to support themselves and their families.  

Not-So-Good Interview Questions To Beware Of

Here's a quick video on some perhaps not-so-good interview questions that you maybe shouldn't answer but probably have to to avoid not getting a job.  However, these types of questions, if you don't land the job, may be evidence of potential discrimination and are good to take note of if asked in a job interview.




EEOC Reports Record Year

The Equal Employment Opportunity Commission (EEOC) recently released statistics and figures for the 2011 fiscal and revealed a record-level of complaints file and money obtained for charging parties.  From The Huffington Post article on the numbers:


The Equal Employment Opportunity Commission received just shy of 100,000 charges from citizens during the 2011 fiscal year, the most logged in a single year in the agency's 46-year history, according to a new report. The agency also managed to obtain a historic amount of monetary relief for alleged victims of job discrimination -- $365 million, the most on record.


So what explains the record level of complaints?  The article attributes a large part to the "sputtering economy" but it could also have something to do with a more aggressive EEOC since there's a Democratic regime in charge.  


The EEOC's numbers reflect the "severity of the economic downturn," says Christine Owens, executive director of the National Employment Law Project, an advocacy group for workers.
"At times like this, when job loss makes workers especially vulnerable, employers bent on breaking the law are even more likely to do so," Owens told HuffPost in a statement. "The strong report the EEOC has released today underscores how critical it is for America's workers that we maintain robust laws and regulations to ensure protection of basic labor standards."
Employment discrimination complaints filed with the EEOC have generally been rising over the previous decade, with a pronounced spike during the weak economy of the last four years.  


It would be interesting if the Equal Rights Division released figures to see if Wisconsin had a parallel record-breaking year.

Wednesday, November 16, 2011

Pregnancy Discrimination Case Against Chicago Law Firm Allowed to Proceed to a Jury

A three-judge panel for the Court of Appeals for the Seventh Circuit has overturned a district court's grant of summary judgment in a case filed by a former marketing director for Chicago-based law firm SmithAmundsen, LLC.  The plaintiff, Lisa Makowski, was fired by SmithAmundsen while she was out on FMLA leave during her pregnancy and the law firm cited "firm organizational restructuring."  However, Makowski was then told by the firm’s human resources director informed her she was actually terminated because she was pregnant and took medical leave, and suggested speaking with a lawyer. The human resources director, who monitor’s the firm’s compliance with anti-discrimination laws and consulted outside counsel before Makowski’s firing, denied saying that.


The firm's HR director's comments caused Makowski to filed suit under Title VII and FMLA but the district court granted SmithAmunden's motion for summary judgment on the grounds the comments were inadmissible hearsay.  The 7th Circuit saw it quite differently and reversed that granted motion.  From the Wisconsin Bar's article on the decision:

The district court ruled that O’Gara’s alleged statements to Makowski were not admissions by a party opponent because her job responsibility did not relate to the termination decision. Without O’Gara’s statements, the district court ruled, summary judgment was warranted. 
But the appeals panel disagreed, explaining that O’Gara’s statements were admissions by a party opponent because she was involved in the process leading up to Makowski’s termination even though O’Gara did not make the decision to terminate. 
“O’Gara’s duties as Human Resources Director at the Firm included regular consultations regarding decisions to eliminate positions and terminate employees in order to ensure compliance with federal anti-discrimination laws, making her a part of the firing process,” wrote District Judge Richard Young, sitting by designation. 
The panel ruled that a jury must decide whether O’Gara made those statements, but assuming she did for purposes of summary judgment, granting summary judgment was not warranted. 
“O’Gara’s alleged statements to Makowski, which are now admitted under Rule 801(d)(2)(D), provide direct evidence that pregnancy was a motivating factor in Makowski’s discharge,” Judge Young wrote. “Although O’Gara denies having made the alleged statements, whether or not she made such admissions is a question for the jury."

Monday, November 14, 2011

Employment Case Law Update


--Overly v KeyBank Nat’l Ass’n, 7thCir, November 10, 2011, Case No. 10-2705: Employer-defendant's motion for summary judgment, granted by lower court, on plaintiff's gender discrimination, retaliation, and hostile work environment because of gender AFFIRMED.  The facts in this case are not incredibly outrageous and it's fairly obvious to see why the 7th Circuit affirmed summary judgment for the employer but it also is easy to see why the plaintiff filed the claims she did.  Often times there is unprofessional and inexcusable conduct engaged in by the employer against an employee based on the EE's sex but court's simply consider some statements "stray remarks" or not "passing muster."  

--Bayer v Neiman Marcus Holdings, Inc, NDCal, November 8, 2011, Case No. CV 11-3705 MEJ:  Employer sought to have plaintiff's disability discrimination claim dismissed and arbitration compelled DENIED.  Although the terms of an arbitration agreement stated that continued employment constituted consent, an employee’s express rejection of the agreement, which required written acknowledgment, was sufficient to document his refusal to consent to the agreement, so an employer could not compel the employee to arbitrate a disability claim.  Instead of signing the agreement, the employee forwarded his refusal and rejection of the agreement on several occasions. Employers, therefore, should be wary of a conflict between provisions in agreements that can undermine a showing of consent.

--McIntire v Keystone RV Co, NDInd, November 9, 2011, Case No. 3:10-CV-508:  Defendant's motion to dismiss DENIED.  Plaintiff filed a claim of race and religious discrimination when employer began hiring amish employees over non-amish and fired him and hired an amish employee.  The defendant motioned to dismissed claiming that being “non-Amish” is not a category protected by Title VII.  Because this is a religious discrimination claim based on the employee NOT holding the same belief as the employer, the court properly noted that a more relaxed standard is applied in denying the employer's motion to dismiss.

--Howard v Penn Dept of Pub Welfare, EDPa, November 3, 2011, Case No. 11-1938:  Defendant's motion for summary judgment GRANTED in part, DENIED in part.  An employee’s FMLA claims survived an employer’s motion to dismiss where the employer demanded that she return to work or face discipline, refused to let her return, and then issued a second demand that she return.

Wednesday, November 9, 2011

Women Who Work in Positions with Greater Likelihood of Sexual Harassment Paid More

In a unique and interesting study by Law Professor Joni Hersch, it was discovered that women in jobs with an average probability of sexual harassment are paid 25 cents an hour more than those in jobs with no risk of sex harassment. For men, the wage differential is 50 cents an hour.  From the ABA article on the study:

Hersch adopted the same kind of methodology used to estimate boosts in pay associated with jobs where the risk is greater for death or injury. She found that women are more at risk of sex harassment in male-dominated industries such as mining. She estimates the pay differential for women miners at $2 an hour, the Post says.Hersch explained the likely reason for her findings in an interview with the Post. Unhappy workers quit jobs, she says, and the only way to keep them is to pay more. “Sexual harassment is the kind of working condition that is so universally despised that people require some compensating differential,” she says.Women in high sex-bias risk jobs would likely earn even more if there were no right to sue and other workplace protections, Hersch tells the Post.

Monday, October 31, 2011

EEOC Issues Advisory Opinion on Use of Arrest & Convictions Records in Hiring Process



As most Wisconsinites are aware, the Wisconsin Fair Employment Act (WFEA) specifically prohibits discrimination in employment based upon arrest and conviction record.  However, most states do not provide this protection and there is no federal law to protect the entire country which has cased the Equal Employment Opportunity Commission (EEOC) to get creative and innovative to find a cause of action where protection is needed and a trend in employment discrimination is occurring.  As can be reasonably understood. minorities tend to be the impacted most by arrest & conviction discrimination so the EEOC has announced that it will consider disparate impact suits under Title VII of the Civil Rights Act of 1964 where they see fit.  Specifically, in an unbinding advisory opinion letter, the EEOC stated that it:
(1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.
This position by the EEOC impacts Wisconsin residents little except for maybe where a class-action type of action could be considered.  Though Wisconsin offers arrest & conviction record discrimination, it does remain an unclear area that has little court and administrative law precedent and appears to be applied inconsistently by the Equal Rights Division.  I enjoy and get excited about interesting and blatant violations under the WFEA but it can be discouraging given the law's inconsistent application of the "substantially-related" defense and sometimes bizarre application but I always encourage complainants to pursue their rights under the WFEA.

Compensable Time Expanding: Starting Up the Computer and Checking E-Mails May be Compensable!

Recently the Department of Labor (DOL) announced a major settlement with Hilton Reservations Worldwide, LLC in the amount of $715,507 for minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania.  In arriving at this settlement, the DOL's audit revealed that Hilton Reservations failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails.


The DOL has been focusing on call centers heavily lately but the issue of pre- and post-shift activities is not unique to call centers.  Having a slow, old computer may pay off after all!

Sunday, October 30, 2011

Wisconsin's Department of Workforce Development Loses Second Secretary in Under a Year



Manny Perez resigned five months after Gov. Scott Walker named him the Secretary of the Department of Workforce Development, the agency that handles the State's unemployment and discrimination matters, among other things, and now Scott Baumbach has resigned after just four months on the job.  Walker has since announced that Reggie Newson, who had been serving as executive assistant at the Department of Transportation, was taking over as secretary effective Monday.


Strange happenings at the DWD!

Tuesday, October 25, 2011

FMLA Leave for Victims of Domestic Violence

Legislation has been reintroduced into Congress by Rep. Lynn Woolsey (D-CA) that would allow employees to take leave under the Family and Medical Leave Act (FMLA) to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partner and same-sex spouse), parent or child.  The bill, the Domestic Violence Leave Act (H.R. 3151), could be used to seek medical attention for injuries; obtain legal assistance or remedies; participate in a legal proceeding; attend support groups or therapy; and participate in safety planning, among other related activities held during work hours. An employee would be able to substitute paid leave for the leave provided under this bill. An employer would be entitled to seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the measure, but would be required to keep such information confidential. In lieu of such written documentation as police reports or witness statements, an employee would be able to satisfy the certification requirement by providing a written statement describing the reason for taking leave.

Monday, October 24, 2011

Employment Case Law Update

--Bonefont-Igaravidez v Int’l Shipping Corp, 1stCir, October 14, 2011, No. 10-1953:   Court of Appeals for the First Circuit AFFIRMS lower court's grant of summary judgment on plaintiff's Age Discrimination in Employment Act (ADEA) claim.  Plaintiff worked for Defendant-Employer for 57 years and prior to his termination had taken medical leaves and returned to be the butt of jokes about his age and medical conditions, often in the presence of supervisors.  This in turn led to an incident whereby the plaintiff attacked one of his superiors (who was also over the age 60) for teasing him which then led to his termination.  Plaintiff then sued under the ADEA.


Because the plaintiff lacked direct evidence of age discrimination, the McDonnell-Douglas burden-shifting scheme was evoked and the employer conceded that the plaintiff made out a prima facie case of age discrimination but asserted it possessed a legitimate non-discriminatory reason (LNDR) for terminating the plaintiff when he attached his supervisor, which the court held was legitimate and that plaintiff failed to show that this was pretextual despite the fact the plaintiff presented evidence that younger employees engaged in similar behavior but were not terminated (apparently the fights were somehow substantially different though the court does not describe how).   


--Dorvil v Burlington Coat Factory Warehouse Corp, DNJ, October 14, 2011, Case No. 09-5778:  Defendant-Employer's motion for summary judgment DENIED.  Plaintiff is a Haitian immigrant with a thick accent and managed to climb his way all the way up to a management position that oversaw some 170 employees.  Upon receiving a new supervisor, the plaintiff, on a weekly basis, began experiencing teasing and mockery due to his hard-to-understand accent which ultimately made the plaintiff feel as though his ability to supervise was undermined due to the involvement of his subordinates in the teasing.  Over time the plaintiff's relationship with his new supervisor deteriorated and the racially-motivated teasing escalated to name-calling and "hostile gestures."  Plaintiff also offered up other incidents that did not have racial-components but proved to be racially-motivated.  


To his surprise, the plaintiff, despite years of above-average performance and positive annual reviews, found himself placed on an performance improvement plan (PIP) which gave him a month to improve work performance or be terminated.  Plaintiff was terminated.  Using the plaintiff's previous decade of satisfactory work, the racially-motivated teasing and comments and the fact plaintiff was replaced with a white woman, the court found that plaintiff made out a prima facie case for race discrimination.  Defendant-employer showed a LNDR through plaintiff's flunking his PIP, which plaintiff was able to show was pretext because it was reasonable to believe plaintiff was placed on the PIP because of his race due to a lack of performance issues in the decade prior to his termination.  This all created issues of triable fact for the plaintiff.  


--Been v New Mexico Dept of Info Tech, DNM, September 30, 2011, Case No. 6:09-cv-00726 MV/WDS:  In a case of super-specific facts, Plaintiff, after being terminated while tending to pregnancy-related problems, filled several claims against her former employer, including, inter alia,  FMLA interference, pregnancy and sex discrimination which then led to a plethora of dispositive motions by both parties.  


Regarding plaintiff's pregnancy/sex discrimination claim, the court held that plaintiff made out a prima facie case for pregnancy discrimination and that the employer's LNDR was pretextual given the employee's clear attempts to keep the employer abreast of her work absences attributed to her pregnancy's complications which created triable issues of fact for a jury.  Regarding plaintiff's FMLA interference and retaliation claims, the court held  that plaintiff's FMLA interference claim could proceed because a jury could reasonably conclude that plaintiff's FMLA rights were interfered with as she was fired while on leave and it is disputed whether plaintiff did follow the employer's leave policies.  Likewise, the court found that a jury could reasonably conclude that plaintiff's was retaliated against for asserting FMLA rights as the defendant took too narrow a view of when an employer is placed on notice of an employee's request for FMLA and re-highlighted the fact that an employer’s duties under the FMLA are triggered so long as “the employer is on notice that the employee might qualify for FMLA benefits.”  Once again, because it was clear prior to her termination that she was off for pregnancy-related issues and because plaintiff was terminated while on leave, defendant's motion for summary judgment on the retaliation claim was denied also.


--Beem v Providence Health & Srvs, EDWa, October 13, 2011, Case No. CV-10-0037-JLQ:  Defendant-employer's motion for summary judgment on plaintiff's disability discrimination claim DENIED but on plaintiff's FMLA claim GRANTED.  A habitually tardy employee’s claim that the employer violated the ADA when it refused accommodations for her tardiness survived summary judgment, ruled a district court in Washington, where fact issues remained on whether the employer met its continuing obligation to engage in the interactive process with the employee.  The employee’s FMLA claim was dismissed, however, because not only was there no legal basis for using intermittent leave to cover tardiness, but the employee failed to submit an application for FMLA leave with respect to her tardiness.

Monday, October 17, 2011

Target Worker Fired for Working Through Lunch Break

In case being labeled "ironic" by the plaintiff, an 8-year veteran of Target stores, Jason Kellner, has filed suit in federal court after being terminated for working while on his lunch break.  The suit, however, is a retaliation charge as Kellner, along with several other Target employees, had been an outspoken opponent of the store's break policy (employees are not allowed to work while off the clock for overtime pay purposes).  Kellner claims that though policy does not allow employees to work while off the clock, he was routinely not given uninterrupted breaks because he was often needed for to address problems that occurred during his break.  Coincidentally, Kellner had met with an "investigative manager" about the issue just two weeks before his termination.  Target did not respond to the suit when contacted by the Huffington Post who had the story.

Sunday, October 16, 2011

Federal Court in CT Rules Pregnancy Discrimination Act Protects More Than the Pregnant

In another admirable court decision that recognizes the flexibility and intent of discrimination law, a federal court in Connecticut recently held in Canales v. Schick Manufacturing, Inc., 2011 WL 4345006 (D. Conn. Sept. 15, 2011) that a woman does not have to be pregnant at the time of discrimination under the Pregnancy Discrimination Act in denying the employer-defendant's motion for summary judgment.  In Canales the employee was terminated while out on maternity leave and the court, citing the language of the Act, held that the Act does not just cover pregnancy but "childbirth," as well.  (The Pregnancy Discrimination Act, which protects "women affected by pregnancy, childbirth, or related medical conditions.").

Milwaukee Ranked 6th Best City for Working Mothers

According to Forbes, if you're a working mother, Milwaukee is a pretty good place to be, ranking in at #6!

Monday, October 10, 2011

Hertz Fires 34 Drivers at Seattle Airport for Praying on Company Time

Not only is it beyond crazy to fire 34 people all of the same national origin and religion for engaging in a religious activity, but it was done only two years after the EEOC helped unionize the same workplace where an agreement was reached that allowed workers to clock out to pray during their two 10-minute breaks.  On top of that, the clock out policy was never enforced.  However, in arbitrary fashion, that policy suddenly became enforceable and was used to terminate 34 workers--all Somali Muslims--for not clocking out before praying, reports the Seattle Times.


Hertz is claiming that the workers were warned repeatedly prior to their suspensions about clocking out and that those who did clock out before praying were not fired.  However, as is typical in employment law disputes, the employees cite different facts:
Zainab Aweis told the newspaper she was unaware of any rule change and was simply warned, along with other Hertz drivers, by a manager on Friday that they could not pray, not that they were required to clock out first.
"He said, 'If you guys pray, you go home,' " she recounted. "I said, 'Is that a new rule?' And he said, 'yes.' "
When they went ahead and prayed anyway, as religious Muslims do up to five times daily, they were taunted, she says.

Tuesday, October 4, 2011

Employment Case Law Update

Not a good week for plaintiffs:


--Michaels v Continental Reality Corp, DMd, Civil Action No. RDB-10-1998:  Defendant's motion to dismiss plaintiff's ADA claim GRANTED.  Plaintiff's disability discrimination claim was based on the fact he was obese, weighing in over 400lbs.  However, plaintiff unerwent a surgical procedure that lowered his weight by 100lbs which then allegedly resulted in mental and physical problems which required accommodations from the employer though it was never quite made clear by the plaintiff to the employer that his requests were related to any qualifying disability.  Plaintiff was later presented with resignation paperwork that he did not sign, was deemed a resignation and then filed a charge with the EEOC alleging disability discrimination.
In dismissing the plaintiff's claim, the court noted that "...simply being overweight or obese has generally not been viewed as constituting a disability."  They do note, however, that according to the EEOC, in rare circumstances it "may" rise to the level of "disability impairment."  Despite the fact the plaintiff alleged that it was "plainly visible" and "transparent" that he was obese still did not put the employer on notice that he had a qualifying disability under the ADA as the court noted the plaintiff was able to perform his job duties and responsibilities.
This case also emphasizes the need to plead employment discrimination cases with particularity in light of the Supreme Court's decision in Twombly as many of the plaintiff's claims were dismissed for failure to plead a prima facie case of discrimination, retaliation, etc.


--Warren v The Shaw Group, Inc, DNev, Case No.: 2:10-cv-01116-GMN-GWF: Defendants' (the employer and union involved) motions for summary judgment GRANTED on plaintiff's religious discrimination claim.  Plaintiff filed a religious discrimination claim under Title VII after refusing to provide his social security number to drug-testing personnel.  So what was the plaintiff's bona fide religious belief?  Plaintiff claimed to hold a religious belief that social security numbers are the “sign of the beast” as described in the last book of the Bible, Revelation.  However, plaintiff would give his SSN out for employment and tax purposes, which is what allowed the defendant to argue that the plaintiff had an inconsistent use of his SSN, therefore, he did not have a bona fide religious belief.  The court agreed.  However, even if he did have a bona fide religious belief regarding the use of his SSN, plaintiff also failed under the second prong of his burden because he also could not show that he informed anyone of this belief.  Thus, it was only through plaintiff's lawsuit that the defendants learned of this "religious belief."


--Veliz v Collins Bldg Svs, Inc, SDNY, Case No. 10 Civ. 06615 (RJH):  Defendant's motion to dismiss plaintiff's Title VII and ADEA claims of national origin and age bias and reprisal because his claims were subject to mandatory arbitration under the applicable collective bargaining agreement.  The court also dismissed the employee’s Title VII and ADEA claims against several individual defendants because individuals cannot be held liable under either statute.

Wednesday, September 28, 2011

Q: What Employment Laws Require Accommodation from an Employer?

A: Federally, only the Americans with Disabilities Act and Title VII with respect to religion.  State laws vary, however.

Federal Court Holds Not Returning Employee's Calls While on FMLA Leave May Amount to Retaliation

A case catching a lot of attention right now involves a decision out of a federal court in Pennsylvania where it was found that an employer's failure to return an employee's telephone calls while she was on FMLA leave is indirect evidence of retaliation. 


The plaintiff in the case took FMLA leave that was expected to last approximately two months.  The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates.  However, her supervisor often failed to return the calls.  In early November, she provided a return to work certification clearing her return for November 13.  She also contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return the call.  Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.  


Obviously behavior like that from an employer prompts an employee to seek legal counsel because they understandably feel that their termination was unlawful.  The employee then filed an FMLA retaliation, interference, disability discrimination and state law claim.  The trial court held that the supervisor's failure to return phone calls was evidence of "an antagonistic attitude toward the employee, particularly where - as here - such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee."  As such, it could be used as evidence of retaliation.  


The plaintiff's interference claims ultimately failed because the plaintiff could not show that she could return to work at the end of the 12-week period.  


The case is Kathleen Hofferica v. St. Mary Medical Center, Case No. 10-6026

Tuesday, September 20, 2011

7th Circuit Holds a Supervisor Can Be a "Comparator" Under Title VII

The Court of Appeals for the Seventh Circuit recently held in Rodgers v. White, No. 10-3916 (7th Cir. Sept. 2, 2011) that a district court erred in holding a supervisor cannot be comparable to a line employee for purposes of applying the McDonnell Douglas method of proof, vacating summary judgment and remanding the claim for trial.  In making their decision, the 7th Circuit stated: "We have observed in many decisions that employees of differing ranks usually make poor comparators, but the rationale behind that general rule does not apply in this case."  The Court further stated:
"Many times we have acknowledged that supervisors usually make poor comparators for plaintiffs claiming employment discrimination. But usually does not mean always, and we have not held that a supervisor is never an apt comparator. Supervisors typically make unrealistic comparators because, as relevant to the issues in a particular case, employees of higher rank commonly have different job duties or performance standards. And especially in situations where the plaintiff alleges discriminatory promotional practices, it is difficult for the plaintiff to show that he deserved to be promoted over an employee of a higher rank, who usually possesses more experience. Yet when uneven discipline is the basis for a claim of discrimination, the most-relevant similarities are those between the employees' alleged misconduct, performance standards, and disciplining supervisor. Formal job titles and rank are not dispositive; an employer cannot 'insulate itself from claims of racial discrimination' by making formalistic distinctions between employees. Thus, when a plaintiff and his supervisor were accused of making similar mistakes, were equally responsible for avoiding those mistakes, and were disciplined by the same superior, the plaintiff can make a realistic comparison with his supervisor for purposes of establishing a prima facie case of discrimination."
This decision makes sense because it recognizes the reality and practical work place in the real world.  It is encouraging to see the 7th Circuit applying Title VII and the McDonnell Douglas burden-shifting scheme in a flexible manner that allows for common-sensical results.

IRS Updates Guide on Use of Employer-Provided Cell Phones

The Internal Revenue Service (IRS) recently issued updated guidance (pdf) on the tax treatment of employer-provided cell phones, effectively treating both business and personal use of such phones as exempt from an employee’s wages.  The reasoning behind this update is that the IRS has noted that employers provide cellphones for numerous noncompensatory purposes.  Accepting what is a common business reality today, the IRS announced that if an employer provides an employee with a cell phone “primarily for noncompensatory business purposes,” the cell phone will be treated as a working condition fringe benefit and the value of the cell phone usage will be excluded from the employee’s wages.  However, not all employer-provided cell phone use is noncompensatory.  The IRS also noted that providing cell phones to “promote the morale or good will of an employee, to attract a prospective employee or as a means of furnishing additional compensation to an employee” do not qualify as being “primarily for noncompensatory business purposes.”

Thursday, September 15, 2011

NLRB's Mandatory Union Poster is Available!

The poster most employers are required to post under the National Labor Relations Act (NLRA) as of November 14, 2011 is now available for download but employers may pick the posters up at the local National Labor Relations Board (NLRB) regional office.  The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.


As I posted previously regarding the poster, failure to post this poster has two major consequences.  Specifically, failure to postcould result in an extension of the normal six-month statute of limitations for filing an unfair labor practice charge under the NLRA. Second, if an employer fails to post the notice, the NLRB has indicated it might take that into consideration as evidence of an employer's motive against unionization. That could be a relevant fact in an unfair labor practice charge, such as if an employee were claiming that he or she had been fired because of union activity.

Tuesday, September 13, 2011

2nd Circuit Holds Employer May Have Duty to Accommodate Employee's Commute To and From Work

In a potentially landmark case, the Court of Appeals for the Second Circuit had held that, under certain circumstances, an employer may have a duty to accommodate an employee in their commute to and from work.  The Court reversed the lower court's decision that held an employer has no legal duty to accommodate a worker's commute, as the commute is "outside the scope" of the employee's job.  The plaintiff has a hearing impairment, cancer, heart problems and asthma - was transferred from Queens to Manhattan for 13 months, during which she complained about problems associated with her commute.  The 2nd Circuit held that possible accommodations for her may have been "transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit."  The Court's reference to the accommodation of working from home deviated from traditional disability accommodation law.


The Court did say, as has always been the case with disability discrimination claims as it relates to the employer's duty to accommodate, that accommodating the commute turns on a case-by-case basis.  Upon remanding the case back to the lower court, the 2nd Circuit stated:
"On remand, the district court shall consider factors such as the number of employees employed by DOHMH, the number and location of its offices, whether other available positions existed for which Tinkelman showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening DOHMH's operations, and the reasonableness of allowing her to work without on-site supervision."
Interestingly enough, the Court rejected the plaintiff's suggestion for an accommodation of a special telephone or device for the hearing impaired while she worked in the Manhattan office.

The case is Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene,No. 10-3317-cv (2d Cir. Aug. 10, 2011)

Walgreens Fires Employee for Opening $1.39 Bag of Chips to Stabilize Low Blood Sugar

The Equal Employment Opportunity Commission (EEOC) has filed a suit under the Americans with Disabilities Act (ADA) in the Northern District of California against Walgreens for firing a veteran 18-year diabetic employee with diabetes who suffered a hypoglycemia even during work, and took a bag of potato chips worth $1.39 she was able to pay for them, in order to quickly stabilize her diabetes-related low blood sugar.


The full complaint can be found here.

Sunday, September 11, 2011

Trouble Wage & Hour Statistics from the Dept. of Labor

The Department of Labor ("DOL") has been busy recently revamping its website and recently offered a phone application to help hourly employees keep track of their time in an effort to ensure employers are complying with wage & hour laws.  Now the DOL has released recent statistics of 68,644 enforcement actions that revealed violations in 50,364 cases, and no violation in just 18,280. In other words, the DOL found violations in roughly 73% of all of its compliance actions. These findings resulted in findings of back wages due totaling $681,151,513, or about $13,524.57 per case in which a violation was found.  This is pretty disturbing data but hopefully with proper education and enforcement the stats will look better next time around.

Sunday, August 28, 2011

Employers Covered by the NLRA, Post This!

The National Labor Relations Board (NLRB) has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011. From the NLRB press release on the new posting requirement:
Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website.
Failure to post this notice has a couple big consequences. Specifically, failure to post could result in an extension of the normal six-month statute of limitations for filing an unfair labor practice charge under the NLRA. Second, if an employer fails to post the notice, the NLRB has indicated it might take that into consideration as evidence of an employer's motive against unionization. That could be a relevant fact in an unfair labor practice charge, such as if an employee were claiming that he or she had been fired because of union activity.

Tuesday, August 23, 2011

Nominated for LexisNexis' Labor and Employment Law Top Blogs

I have received the distinguished honor of being nominated by LexisNexis' staff as one of the top 25 labor and employment blogs in their annual "top blogs." Members of the LexisNexis Community (to become a member is simple and free) can "talk up" this and other blogs in an effort to help narrow down to the top 25 blogs in every legal category. No pressure to help me, but strongly encouraged!

Monday, August 22, 2011

Employment Case Law Update

--McKenna v City of Philadelphia, 3rdCir, No. 09-3567: The Third Circuit applied the "cat's paw theory" of discrimination in addressing whether a supervisor's alleged discriminatory animus served as a causal connection between the plaintiff's termination and an independent tribunal's decision to terminate. The defendant argued that the plaintiff's supervisor's discriminatory animus played no role in the independent review tribunal's decision while the plaintiff maintained it was the supervisor's discriminatory intent that led to the need for review in the first place, therefore, serving as a causal connection. The 3rd Circuit concluded, "In the words of Staub, a reasonable jury could conclude that Colarulo‟s animus bore a direct and substantial relation to Carnation‟s termination and that the PBI‟s recommendation was not independent and was foreseeable. See Staub, 131 S. Ct. at 1192-93. See also Sosa, 542 U.S. at 703."
The 3rd Circuit also found that even though Staub was decided after the jury returned a verdict in favor of the plaintiff that they were properly instructed per Staub on proximate cause, thus finding no need to remand the case back to district court and AFFIRMED the district court's decision.

--EEOC v Dresser-Rand Co, WDNY, 04-CV-6300 CJS: Defendant's motion for partial-summary judgment DENIED, plaintiff's cross-motion to preclude testimony of defendant's expert witness GRANTED. The Court held that employees have no obligation to go to school after they are unlawfully discharged in order to mitigate their damages. The court ruled that, although employees who are fired for discriminatory reasons must seek other employment, they are under no obligation to go to school for retraining. In fact, a terminated employee who pursues an education rather than seeking a job fails to mitigate his damages, the court noted.

In this case, the plaintiff sought and found other employment after he was discharged by the defendant, thus, he fulfilled his duty to mitigate; the fact that he did not go to school was irrelevant, which in turn allowed the exclusion of defendant's expert which found had the plaintiff sought specific educational training he would have more successfully mitigated his damages.

--Miller v Whirlpool Corp, NDOhio, Case No. 3:10CV00473: Both plaintiff and defendant's motions for partial summary judgment DENIED. This case highlights why medical questionnaires may be a bad idea in certain employment situations. Defendant terminated plaintiff after repeated refusals by the plaintiff to fill out a medical questionnaire. Under the Americans with Disabilities Act (ADA) a medical examination shall not be required and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. Furthermore, for purposes of contesting an improper medical inquiry, a claimant need not prove they have a disability, which is what allowed this plaintiff to file suit. Neither party here contested that the questionnaire in this case constituted a test that would reveal a disability constituting a protected disability-related inquiry leaving a remaining question of whether it falls within the ADA's exception of being “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).

The burden of showing job-related and consistent with business necessity is placed on the employer and carries a high bar. Because facts were presented to bring into question whether the defendant can meet their burden and whether it violates the ADA's disclosure provision, the Court held summary judgment inappropriate and also did not buy the defendant's proffered defenses for the questionnaire. Specifically, the employer presented two defenses: 1) that the questionnaire was given uniformly to both disabled and nondisabled employees; and 2) hat its disability-related inquiry was lawful because it was required under OSHA’s general duty clause.