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.

Sunday, August 21, 2011

NLRB Acting General Counsel Issues Report on Social Media Cases

The National Labor Relations Board's (NLRB) Acting General Counsel, Lafe Solomon, issued a report, based upon 14 cases, on the use of social media and employers’ social and general media policies as a guide for practitioners and human resource professionals. The 24-page report can be read here.

Monday, August 15, 2011

7th Circuit Employment Case Law Update

I've been slacking on my case law updates because I've been busy with my own cases. I recently noticed a few decisions out of the 7th Circuit in the employment law arena and wanted to highlight them.

--Diaz v. Kraft Foods Global, Inc., No. 10-3073 (7th Cir. Aug. 8, 2011): District court's grant of summary judgment affirmed in part (disparate pay), reversed in part (race discrimination). This case highlights the Court's stance on Title VII race discrimination claims that an employer cannot defend against a Title VII claim by pointing to the fact it treated at least one minority group member favorably. After all, this is a disparate treatment claim, not disparate impact:

"Title VII would have little force if an employer could defeat a claim of discrim- ination by treating a single member of the protected class in accordance with the law. Suppose the district court’s view carried the day: a female employee suffering from discrimination on the basis of her sex would have to establish that her employer discriminated against all women in the workplace to assert a sex dis- crimination claim. That, sensibly, is not how Title VII operates. Instead, “[t]he principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole.” Connecti- cut v. Teal, 457 U.S. 440, 453-54 (1982); City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 708-09 (1978) (recognizing that fairness to the class of women employees does not excuse discrimination against an individual female employee). Discrimination against one Hispanic employee violates the statute, no matter how well another Hispanic employee is treated. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). We agree with the plaintiffs that there is no token excep- tion to anti-discrimination law. See Teal, 457 U.S. at 455"

--Burnell v. Gates Rubber Co., No. 10-3490 (7th Cir. July 27, 2011): District court's grant of summary judgment affirmed in part (section 1981 and discriminatory discharge), reversed in part (retaliatory discharge). This case focuses on the ever popular "temporal proximity" aspect of discrimination claims. In this case, the plaintiff had a long history of lodging complaints of perceived racial discrimination, mostly from 1993-1996, but had lodged a complaint as early as 2006 (he was terminated in December 2006). Though the plaintiff was terminated for refusing a disciplinary form, because the employer made a statement about the plaintiff "playing the race card" when the plaintiff refused to sign, an inference that the termination was in part based on complaining about racial discrimination was created.

--Benuzzi v. Board of Education of the City of Chicago, No. 10-3021 (7th Cir. July 21, 2011): In a case of, "what the heck was that employer thinking?," exactly one day after sitting for her deposition, the plaintiff was issued a Notice of Disciplinary Action for something that happened 4 months previously by the defendant-employer! Obviously this allowed the Court to find for retaliation for the underlying Title VII gender, race and ADEA and ADA claims.

Sunday, August 14, 2011

University of Wisconsin Law School Symposium, "The Constitutionalization of Labor and Employment Law?"

On October 28 & 29, 2011 my alma mater, the University of Wisconsin Law School, will be holding symposium titled, "The Constitutionalization of Labor and Employment Law?" From UW's website for the event:

The Constitutionalization of Labor and Employment Law? is an innovative and timely symposium at the intersection of constitutional law and labor and employment law. Recent U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano.

Through discussion of five separate areas of constitutional law:

  1. Freedom of Speech,
  2. Freedom of Association,
  3. Equal Protection,
  4. The 13th Amendment, and
  5. Workplace Privacy under the Fourth Amendment,

this symposium explores whether constitutional law concepts are infiltrating public and private labor and employment law, and whether this development is beneficial or detrimental to the rights of workers.

Up to 12.0 CLE credits have been approved for this event for all you Wisconsin lawyers trying to get their credits! Hope to see you all there!

Wisconsin Law Journal on Leave as an Accommodation Under Anti-Disability Discrimination Laws

Recently the Equal Employment Opportunity Commission (EEOC) held a panel to discuss leave as an accommodation under the Americans with Disabilities Act (ADA). Attorney Marcie B. Cornfield has an article on the Wisconsin Law Journal's website about the topic and has a great discussion on Wisconsin's stance on leave as an accommodation From the article:

For Wisconsin employers, this line of cases indicates that the EEOC is taking an approach more akin to Wisconsin’s notion of “clemency and forbearance.” The “clemency and forbearance” requirement was first applied in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998). There, the employee had repeatedly fallen asleep on the job due to her sleep apnea, a disabling condition, and had been disciplined and finally discharged in accordance with the employer’s rule against loafing on the job. She sought treatment for her condition and kept her employer informed of the nature of the treatment she was getting (an inhaler) and the treatment her physician was going to try next (a CPAP machine). She was discharged before going on the CPAP machine, which solved her sleeping problem and which would have permitted her to stay awake while at work. 217 Wis. 2d at 4–8, 576 N.W.2d at 547–49.

The Court of Appeals concluded that LIRC’s decision that the employer should have exercised temporary forbearance in the enforcement of its rule against loafing on the job was reasonable and supported by substantial evidence. Id. at 20, 576 N.W.2d at 553. The court observed:

Like a leave of absence, forbearance from enforcing the loafing rule is a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility. Whether either is a reasonable accommodation in a given case will depend on the facts and circumstances of that case.

Id. at 19–20, 576 N.W.2d at 553.

In short, Wisconsin employers have been advised for some time that they may need to temporarily suspend their attendance and leave policies for employees with known medical conditions. At the same time, the Wisconsin Supreme Court has stated that “‘clemency and forbearance’ is not an open-ended requirement mandating that an employer indefinitely suspend its attendance requirements for the disabled employee.” Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶ 67, 2007 WL 2034022 (2007).

Unfortunately for employers, neither the EEOC nor Wisconsin courts have provided guidance as to how much leave an employer must provide to an employee.

Saturday, August 13, 2011

Woodman's Settles Disability Discrimination Suit for $35,000

The Equal Employment Opportunity Commission (EEOC) announced in a press release that it has settled a disability discrimination claim it filed on behalf of a former employee, Kimberly McMillan-Goodwin, under the Americans with Disabilities Act (ADA) against the Wisconsin grocier for $35,000 plus other injunctive relief. From the press release on the suit and settlement:

The EEOC charged that a Woodman’s store in Beloit, Wis., terminated Kimberly McMillan-Goodwin, a long-term Woodman’s employee who worked as a clerk at its gas station, because she had a back condition that kept her from lifting more than ten pounds. The EEOC contended that McMillan-Goodwin had successfully worked in that position with the lifting restriction for many years. Woodman’s, however, placed McMillan-Goodwin on medical leave and then terminated her. ...

In resolution of the suit, Woodman’s will pay $35,000 to McMillan-Goodwin. The decree also includes substantial other relief, including injunctions against any further discrimination and retaliation. Further, the company will adopt a policy prohibiting discrimination based on disability; update its employee handbooks; conduct training on the ADA; and post a notice to employees about the resolution of the suit in all of its locations. The EEOC will monitor Woodman’s compliance with the decree for two years.

“This case might never have arisen if Woodman’s had had clear policies and training to guide its management and human resources employees on the requirements of the ADA,” said EEOC Regional Attorney John Hendrickson of the agency’s Chicago District, which has jurisdiction over Wisconsin. “Among the most important provisions in the consent decree, therefore, are the requirements that Woodman’s adopt a policy to clarify its obligations and provide training to its management and human resources staff.”

The suit was EEOC v. Woodman’s Food Markets. Inc. (Civ. No. 10-cv-562-wmc), and was filed September 28, 2010, in U.S. District Court in Madison.

Friday, August 12, 2011

ABA Blawg 100 Nomination Time!

It's time again for nominations for the ABA's Blawg 100! To nominate a blog, simply click on this link and fill out the amici! This blog is just over a year old and I was not fortunate enough to be listed last year but hope this year is different!

Tuesday, August 2, 2011

Q: Is an employer required to pay unused vacation time upon resignation or termination?

A fairly common question people have when their employment concludes is what happens with their unused, accrued vacation time. The answer is: it depends.

In Wisconsin, like most every other state, the rule is that unused vacation time is to be paid out upon separation of employment UNLESS the employer's policy says it will not be paid out. For example, an employer may have a policy (usually stated in the employee handbook) that states unused vacation pay will not be paid out if an employee quits without giving proper 2-week notice or they may have a policy that doesn't pay accrued vacation time is the employee is terminated for cause.

If you believe you are owed vacation time at the end of your employment, first consult with the employee handbook, and if you still believe you are owed vacation time pay, you may consult with a local employment attorney who can assess whether a complaint with the Wisconsin Department of Workforce Development is appropriate.

Monday, August 1, 2011

Parental Bereavement Act of 2011 Introduced in Senate

The Parental Bereavement Act of 2011, a bill seeking to amend the Family and Medical Leave Act (FMLA) to give parents grieving from the death of their child to receive up to 12 weeks of job-protected time-off, has been introduced in the U.S. Senate by Senator Jon Tester of Montana. Currently, parents are only covered for extended, unpaid time-off to care for newborn babies, adopted children, and family members with serious health conditions.

Keep an eye on this one! Can never have enough protection for employees.

Filing an Equal Rights Division Discrimination Complaint

I feel compelled and obligated to disclaim at the beginning of this post that this article is not meant to be a thorough, exhaustive discussion or a how-to guide. The purpose of this article is to briefly discuss the Equal Rights Division (ERD) process for filing an employment discrimination complaint to better inform the public. No blog or article can ever replace knowledgeable, effective legal counsel!

The Wisconsin Fair Employment Act (WFEA) is Wisconsin's state law that expressly prohibits discrimination in employment based upon a person's "protected class" and provides more protected classes than federal law.


It is important to first discuss who and what is protected and what are the basis of employment discrimination claims--also known as protected classes. Also, it is important to note that Wisconsin provides more protected classes than the federal government. In Wisconsin, protected classes are:
  • Race (also protected federally under Title VII)
  • Color (also protected federally under Title VII)
  • Creed/Religion (also protected federally under Title VII)
  • Ancestry (also protected federally under Title VII)
  • National Origin (also protected federally under Title VII)
  • Age (also protected federally under the Age Discrimination in Employment Act (ADEA))
  • Sex/Gender (also protected federally under Title VII and the Equal Pay Act (EPA))
  • Disability/Handicap (also protected federally under the American with Disabilities Act (ADA))
  • Arrest & Conviction Record (NOT protected federally)
  • Marital Status (NOT protected federally)
  • Sexual Orientation (NOT protected federally)
  • Military Status (NOT protected federally, but in some cases, USERRA may apply)
  • Use or nonuse of lawful product (i.e., alcohol, cigarettes, tobacco, etc) (NOT protected federally)

Since almost everyone employed fits into a protected class, the next question is what is protected in connection with belonging to a protected class? Federal law and the WFEA prohibit discrimination in employment-related actions such as:
  • Hiring or recruitment
  • Pay
  • Promotion
  • Training
  • Lay-off and firing/termination
  • Demotion
  • Job assignments
  • Leave or benefits
  • Licensing or union membership
  • Retaliation against those who assert their rights under the WFEA, WFMLA, etc
  • Harassment on the job because of a person's sex or protected class (e.g., race, religion)
  • Genetic testing or giving an improper honest test
  • Other related actions
It is extremely important to keep in mind that it's not enough to simply belong to a protected class and suffer an adverse employment action because it's not employment discrimination unless the adverse employment action was taken BECAUSE OF the membership in the protected class, which isn't always so easy to prove.


It is always advisable to first speak with a local employment law attorney before running off and filing a complaint with the ERD or Equal Employment Opportunity Commission (EEOC), as there are still plenty of considerations even if you believe you suffered an adverse employment action because of your protected class. Some considerations are:
  • Is my complaint timely? A complaint under the WFEA is timely if filed within 300 days of the alleged discrimination.
  • How do I file a complaint? The ERD department is very helpful to individuals without a lawyer, but an employment lawyer has the training and expertise to carefully draft a complaint to hit all the important points that need to be made.
  • How long does the process take? After the complaint is filed, it is then processed and sent to the employer (also known as the Respondent). Then the employer has about a month to draft a well-crafted response and then the employee (called the Complainant) has 20 days to respond to the employer's response. After all responses are submitted, the investigator then reviews the file and makes an Initial Determination of either Probable Cause or No Probable Cause.
  • What will I "win" if I prevail? This is probably the biggest consideration in deciding whether to file a claim and whether to settle and for how much. Only a knowledgeable employment attorney can assist here as the ERD avoids providing legal advice. An administrative law judge (ALJ) can only award a "make-whole remedy" which is limited to back pay, reinstatement (if reasonable), lost benefits, interest and attorney's fees and costs. Punitive and Compensatory damages are only possible through circuit court after the ALJ issues their decision.
There is a lot to discuss when deciding whether to file a complaint, at any level. This article simply hopes to bring some major considerations to the fore and better educate employees on what the employment discrimination complaint process involves.