Wednesday, March 30, 2011

NLRB Holds Employee's Secret Recording of Meeting is Protected Activity

In an era where nearly every American has a phone, a camera, a music player and a recorder on them at all times, the National Labor Relations Board (NLRB) recently held that an employee's recording of a meeting with management after having first been disallowed bringing a coworker into the meeting as a witness was protected activity under the National Labor Relations Act (NLRA).

Employees should note that this case's ruling is not an absolute and may differ in another scenario. Indeed, the Board did not comment as to whether their analysis might change if a case arises in a state such as Washington, California, Oregon, or Alaska that prohibits the secret audio recording of private conversations without the consent of one or more parties. Also noteworthy is the fact this employer did not have a specific policy against secret recordings though that may not prove to be dispositive in the future as the right to bring a witness to investigatory meetings with management if the employee reasonably believes the meeting could result in discipline is known as Weingarten rights. (NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

Because the employee agreed with a group of his co-workers that the meeting should be recorded to document potential labor violations, the NLRB determined that the employee’s actions were “protected concerted activity” and overturned the employer’s decision to fire the employee for making the secret recording. Also, the Board required the employer to rescind a policy it implemented after this incident prohibiting secret recordings. The Board said the new rule was “overly broad.”

The case is Stephens Media LLC d/b/a Hawaii Tribune-Herald, 356 NLRB No. 63

9th Circuit Holds Employers Must Prove Reasons for Denying Reinstatement after FMLA Leave

In a case of first impression out of the Court of Appeals for the Ninth Circuit, it was held that the district court improperly placed the burden on the employee in her Family and Medical Leave Act (FMLA) interference case to prove that the employer had no reasonable cause for not reinstating her.

The 9th Circuit said that, to prove an FMLA interference claim, the “employee must establish that: (1) [she] was eligible for the FMLA’s protections, (2) [her] employer was covered by the FMLA, (3) [she] was entitled to leave under the FMLA, (4) [she] provided sufficient notice of [her] intent to take leave, and (5) [her] employer denied [her] FMLA benefits to which [she] was entitled.” Further, evidence that an employer failed to reinstate an employee “to her original (or an equivalent) position establishes a prima facie denial of the employee’s rights under the FMLA.”

However, and obviously, the right to reinstatement is not absolute. The regulations ( 29 C.F.R. § 825.214(b)) do not state who bears the burden of showing whether the employer had a reasonable basis to refuse reinstatement. In reaching it decision, the Court looked to other parts of the FMLA regulations and found the burden of proof is on the employer to show it had a legitimate reason to deny reinstatement. Likewise, the majority of other circuits that have addressed this issue ( including the Eighth, Tenth and Eleventh) have held that the regulations “validly shift[] to the employer the burden of proving that an employee . . . would have been dismissed” regardless of the FMLA leave. Thus, the Court held, “[W]hen an employer seeks to establish that he has a legitimate reason to deny an employee reinstatement, the burden of proof on that issue rests with the employer.”

The Court ordered a new trial. The case is Sanders v. City of Newport, No. 08-35996 (9th Cir. Mar. 17, 2011).

Tuesday, March 29, 2011

Wisconsin Court of Appeals Upholds Unreasonable Refusal to Rehire Decision

In a case that screams unreasonable refusal to rehire, the Wisconsin Court of Appeals (District III) upheld the circuit court's decision holding that an employer's terminating only the appellant after he was hurt on the job twice amounted to an unreasonable failure to rehire under WIS. STAT. § 102.35(3).

In Wisconsin an unreasonable refusal to rehire is where an employee sustains an injury in the course of employment and is subsequently terminated or denied rehire. Ray Hutson Chevrolet, Inc. v. Labor & Indus. Review Comm'n, 186 Wis. 2d 118, 122, 519 N.W.2d 713 (Ct. App. 1994). "If the employee makes [this] showing, the burden shifts to the employer to show a reasonable cause for the refusal to rehire." Id. The employer may meet this burden by showing "that it refused to rehire an injured employee because the employee's position [was] eliminated to reduce costs and increase efficiency[.]" Id. at 123.

In Superior Beverages v. LIRC, Docket: 2010AP000608, the appellant, Jerry Axtell, sustained an injury in the course of employment first while hauling two kegs of beer and then upon return when strained his back while bending over to pick up cases of beer from a pallet. Following the second injury and return from work, he was terminated. In justifying the termination (i.e., when the burden shifted), the employer, Superior Beverages, LLC, cited a "lack of work" from a drop in sales. However, Axtell was the only employee terminated and his termination only amounted to a 5% reduction in workforce. The Court of Appeals agreed with the circuit court finding this reason to be merely pretextual in finding for an unreasonable refusal to rehire.

I'm rather surprised Superior Beverages wasn't a case that settled and reached the level of appeal it did. On top of all the evidence showing pretext, the employer even advertised for a new full-time driver after it terminated the appellant and work picked up!

DOJ Finds Non-solicit Agreements Among High-Tech Employers Violate Antitrust Law

The Department of Justice's (DOJ) Antitrust Division recently filed two complaints (United States v. Adobe Systems, Inc. and United States v. Lucasfilm, Ltd.), along with proposed settlement agreements, in D.C. federal court alleging that no-solicit agreements among high-tech employers constituted unlawful restraints on trade in the market for highly-skilled employees in the technology sector. Specifically, the DOJ discovered that several large and famous U.S. companies had agreements in place amongst each other that restricted the other's access to certain employees and even went so far as to agree to notify the other when making offers to employees and to not make counteroffers to their own employees offered a position by the other company. For more, click here.

55% of of Americans say unions protect workers rather than provide them unfair advantages

A recent research poll by Pew Research revealed that most Americans believe unions are good for workers but not necessarily for U.S. competitiveness internationally, with no difference in opinion between public and private sector unions.

NLRB Weekly Summary of Cases

For the week of March 21-25, 2011. One comes out of Milwaukee this week! SRC Painting, LLC, PBN, LLC & Liquid Systems, et al. (30-CA-16577 et al.; JD-17-11) Milwaukee, WI.

Monday, March 28, 2011

Former Jimmy John's Employees in Major Labor Battle

Six former Jimmy John's (JJ's) employees from the Minneapolis area who led union organization efforts have filed labor complaints with the National Labor Relations Board (NLRB) after they were recently terminated. The employees were not happy with JJ's sick leave policy and believed they were violating health codes for having sick employees preparing food for the public. Thus, the employees made posters informing the public of the fact their sandwich may be prepared by someone who was sick (see above). Posters were also made encouraging patrons to flood store lines during lunch hour. In the fall, unionization efforts failed when workers at the Jimmy John's restaurants rejected joining the IWW Jimmy John's Workers Union in an 87-85 vote. In January, the NLRB set that loss aside and cleared the way for a new election if the union chooses to pursue one.

JJ's says these employees were fired "to protect the jobs of the people who work for the company." However, the former employees see it differently and believe they were fired for engaging in protected activity and in retaliation for their unionization efforts.

For more, click here.

Board Finds Las Vegas Casino Violated Labor Law When Off-Duty Employees Prohibited from Handbilling

In a case that balances an accommodation between the contractor employees’ rights under federal labor law and the property owner’s state-law property rights and legitimate managerial interests, the National Labor Relations Board (NLRB), in a 3-1 decision, found that a Las Vegas casino violated federal labor law by prohibiting off-duty employees of restaurants inside the casino from distributing handbills on casino property. In reaching this conclusion, the Board stated:

“[T]he property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline…”
The dissent believed that the Board perhaps went too in allowing handbilling inside of the casino and believed the rights of the off-duty employees in communicating could have been effectively achieved in other ways. Here is the press release on the case from the NLRB.

Sunday, March 27, 2011

Employer Lies About Employee's Termination Who Was "For Cause," Has to Pay $8 Million

A former president of a company in Illinois had an employment contract that only allowed for his termination "for cause." Despite this clause, the employer, Diehl Controls, decided it was going to terminate the president though they lacked cause and then falsified their justification for terminating the president. This led to the president filing a defamation claim which led to a jury verdict of $2 million dollars in compensatory damages and $6 million dollars in punitive damages for defamation per se. The employer appealed the verdict as being excessive, but the Appellate Court for the First District of Illinois recently upheld the jury verdict. The case is Leyshon v. Diehl Controls North America, Inc., 2010 WL 5480668 (Ill. App. 1st Dist. Dec. 27, 2010). Chicago-based plaintiff's-side, Case Law Firm, has more on this decision.

Thursday, March 24, 2011

Credit Check Discrimination Legislation Picking Up Steam

I have been highlighting efforts across the country regarding efforts to curtail the use of credit history in employment and at the beginning of this year there was a federal bill pending in the House (H.R. 321), that would outlaw the use of such credit checks, except for financial institutions and for national security clearance. Currently only four states (Hawaii, Illinois, Oregon and Washington) have legislation, though varying in form, that restrict the use of credit reports by employers.

Word is that the pending federal bill is stalled but now Florida (SB 1562), Michigan (HB 4363) and Montana (HB 601) have recently introduced legislation that would limit employers' ability to use credit reports when making any employment decisions. Amazingly, these three pending bills add to the 15 states where such bills are already pending, including California, Connecticut, Georgia, Indiana, Kentucky, Maryland, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Texas, and Vermont.

Wisconsin has been relatively progressive in employment and labor law legislation so I am somewhat surprised to not see us in the fray of pending legislation. However, that doesn't mean disparate impact claims may not be made with the Equal Employment Opportunity Commission.

Huffington Post Article on Criminal Background Checks and Employment Searches

Janell Ross over at The Huffington Post has an article about how nearly one-in-four Americans have a criminal background that potentially harms them when they attempt to find employment. Currently there is not federal legislation making arrest and conviction record a protected class against discrimination in employment but Wisconsin has such legislation. Even with specific legislation, many hurdles are still present to many job applicants because it is often very difficult to prove arrest and conviction record discrimination.

Wisconsin Court of Appeals Upholds Milwaukee's Paid Sick Leave Ordinance

In a huge victory for employees who work in the City of Milwaukee, the Wisconsin Court of Appeals issued its decition in METROPOLITANMILWAUKEE ASSOCIATION OF COMMERCE, INC., v. CITY OF MILWAUKEE & 9TO5 NATIONAL ASSOCIATION OFWORKINGWOMEN,MILWAUKEE CHAPTER, Appeal No. 2009AP1874-AC.

If you recall, this appeal concerned an ordinance providing paid sick leave for employees within the City of Milwaukee that was enacted pursuant to the direct legislation statute, WIS. STAT. § 9.20 (2009-10). Metropolitan Milwaukee Association of Commerce (MMAC) filed this action challenging the ordinance on statutory and constitutional grounds. The circuit court granted summary judgment and injunctive relief in favor of MMAC, concluding the ballot statement did not comply with § 9.20(6) and that certain provisions in the ordinance were not rationally related to the City’s police powers and were not severable from the rest of the ordinance. The Court of Appeals wholly disagreed with the circuit court and held that the proponents of the ordinance, not MMAC, are entitled to summary judgment and reverse and remand with directions to grant summary judgment in favor of 9to5 and to vacate the permanent injunction.

Wednesday, March 23, 2011

Maryland Federal Court Holds Restaurant Owner Who Also Bartends May Not Share in Employees' Tip Pool

In an issue of first impression, a federal district court in Maryland addressed the issue of whether an “employer” may also be a “tipped employee” and receive a share of the tip pool. The Court held that they may not and also noted that “[e]very court that has considered the issue has unequivocally held that the FLSA expressly prohibits employers from participation in employee tip pools.” (One of those courts is one in the Seventh Circuit). The court did, however, leave open the “theoretical” possibility that, in some close circumstances, an individual can be an “employer” under the FLSA and at the same time share in a tip pool but ultimately held that this case was not one of those possibilities.

So what makes an owner of a restaurant who is performing duties as an employee exempt from the FLSA? The Maryland federal court opined that “it would be an anathema to the purpose behind the FLSA to simultaneously allow [an owner] to take tips from a collective tip pool that was set up to allow him to pay his employees at a rate substantially below the minimum wage” and that a contrary finding “would broaden the FLSA’s tip credit provisions to a point where they would become meaningless.”

The case is Gionfriddo v. Zink, LLC, et al., Case No. Civil Action No.: RDB-09-1733.

NLRB Holds Employee Does Not Have a Right to a Particular Union Rep During Investigation

An employee, Odell Clarke, was asked to participate in an employer's investigation of sexual harassment. Clarke, a union member, refused to provide a statement to the Respondent’s district manager, Melissa Buonadonna, during an interview because the shop steward who normally sits in on these types of investigations requested that Clarke speak with a particular union representative first. The particular union rep was not available for a few days. The employer insisted upon a statement and when Clarke continued to refuse, he was suspended for insubordination and for not providing a statement. Clarke then filed a complaint with the National Labor Relations Board (NLRB) alleging a violation of Section 8(a)(1) of the NLRA.

Section 8(a)(1) of the Act provides a union-represented employee with the right to request the active assistance of a union representative at an investigatory interview—an interview that the employee reasonably believes may result in discipline. See NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The ALJ found and the Board affirmed that "...inasmuch as Dunne was present to represent Clarke, Buonadonna was not required to defer the interview until the next Monday, when Castelli would be available. However, the judge nevertheless found that the Respondent violated Section 8(a)(1) by denying Clarke’s request to telephone Castelli, then insisting on interviewing Clarke and suspending him for his refusal to submit to the interview." The Board found that the ALJ proceeded to find a violation of the Act on an alternate and unlitigated theory, thereby denying the Respondent due process, reversed that finding and dismissed the complaint in its entirety.

The case is Buonadonna Shoprite, LLC and United Food and Commercial Workers Union, Local 1500. Case 29–CA–29720

NELI Hosting FMLA Workshops

The National Employment Law Institute (NELI) is hosting Family and Medical Leave Act (FMLA) workshops across the country this summer. For more, click here. Looks highly informative!

Tuesday, March 22, 2011

Denied Unemployment Compensation Because of "Misconduct"

When a person, known as a "claimant," files for unemployment insurance in Wisconsin, the first question is whether the person quit or was terminated. If the claimant was terminated, then the issue is whether the claimant was terminated for "misconduct" connected with their employment. "Misconduct" is a legal term used to encompass conduct ranging from absenteeism to theft and not necessarily used in the literal sense.

The case that gave birth to the definition of "misconduct" is Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941). In Boynton the Wisconsin Supreme Court stated:

[T]he intended meaning of the term "misconduct" ... is limited to conduct evincing a wilful or wanton disregard of the employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertentcies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.

So what does all of that terse legal language mean? It means that an employee who is deemed to have intentionally disregarded workplace policies, rules and normal and reasonable standards of behavior will be considered to have engaged in "misconduct" and will not be allowed unemployment benefits until seven weeks after the discharge and until the employee earns wages of at least 14 times the employee's weekly UI benefit rate.

The determination of whether the reason for termination amounts to "misconduct" is a case-by-case analysis and the reason why the Department of Workforce Development allows for formal, in-person appeal hearings on the issue of misconduct where an Administrative Law Judge listens to testimony and reviews evidence to determine whether a claimant engaged in "misconduct."

Monday, March 21, 2011

5th Circuit Joins 3rd Circuit in Holding Private Employers May Reject Applicants Based Upon Bankruptcy Filing

At the very end of last year the Court of Appeals for the Third Circuit in Rea v. Federated Investors, No.2 -09-cv-01205 (3d Cir. Dec. 15, 2010) held that Section 525(b) of the Bankruptcy Code cannot be read broadly to prohibit private employers from denying employment based on past or present bankruptcy. Following suit (no pun intended), the Court of Appeals for the Fifth Circuit has now also held that private employers may discriminate against job applicants based on their bankruptcy history. The case is Shani Burnett v. Stewart Title, Inc., No. 10-20250.

While it's not looking good for individuals in the private sector who have filed for bankruptcy--at least in the 3rd and 5th Circuits--it is worthy to note that the Equal Employment Opportunity Commission ("EEOC") maintains that it will prosecute if it finds that such hiring discrimination has a disparate impact on protected classes of people, just like with credit history which is also not specifically protected by statute. Perhaps it is simply time for such specific statutes to protect such statuses.

The 10 Most Unionized U.S. Cities

I don't think there's anything U.S. News and World Report won't rank. Along those lines, they've come up with a list of the top ten most unionized cities (with populations over 300,000). Here's the list:

10. Modesto, CA
9. Riverside-San Bernardino, CA
8. Springfield, MA-CT
7. Lansing-East Lansing, MI
6. Sacramento-Arden-Arcade-Roseville, CA
5. Buffalo-Niagara Falls, NY
4. Vallejo-Fairfield, CA
3. Poughkeepsie-Newburgh-Middletown, PA
2. Stockton, CA
1. Albany-Schenectady-Troy, NY

New York and California dominate this list but I'm glad to see my home state on the chart.

Saturday, March 19, 2011

7th Circuit Provides Further Guidance Regarding an Employee's Obligation to Provide Notice of FMLA Leave

A sales representative, Robert Righi, at a company in Illinois, SMC Corp., was at a mandatory training seminar in Indiana when he suddenly learned that his mother had a medical emergency. In response, as anyone would do when they learn such information, Righi immediately left the seminar to attend to his ailing mother. Because Righi knew he couldn't just leave his job without notice lest he be terminated, he emailed his supervisor the next day and said he needed “the next couple days off” to make arrangements for his mother’s care; he said in his e-mail that he had vacation time available or “could apply for the family care act, which I do not want to do at this time.” However, after that email, Righi’s supervisor then tried for more than a week to reach him by telephone to clarify his request for leave. Righi did not return these calls or otherwise contact his employer. When he finally returned to work nine days after leaving the training session, he was fired for violating SMC’s leave policy. Righi then filed a complaint under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq.

At the district court level, summary judgment was granted for the employer on the grounds that (1) Righi was not entitled to FMLA protection because his e-mail specifically disavowed any intent to use FMLA leave; and (2) even assuming Righi’s e-mail invoked the FMLA, he failed to notify SMC of his anticipated return-to-work date—as required by company policy and applicable FMLA regulations—and he ignored his supervisor’s repeated phone calls seeking more information about his leave request. The Court of Appeals for the Seventh Circuit affirmed as to the second ground only.

The 7th Circuit found that the email, though rather vague and informal, did allow for an inference that he was leaving at least some room to change his mind and use FMLA leave rather than vacation time to cover his absence. But, the court noted, the FMLA regulations place the burden on the employee to notify the employer of an anticipated leave amount in unforeseeable circumstances "as soon as practicable." Thus, what carried the day for the employer is the fact that an employer is entitled to enforce compliance with its “usual and customary notice and procedural requirements” regarding FMLA leave. Id. § 825.302(d) (2007). Because Righi failed to comply with the applicable regulatory and workplace requirements for family leave, his termination did not violate the FMLA, the court ruled.

The lesson to be learned from this case is though the FMLA's notice requirement is somewhat minimal, an employee still must adhere to some formal requirements in order to keep their job. While the law recongizes the reality surrounding emergency leaves requests like Righi's, the law also recognizes an employer's right to be informed of an employee's leave length and status. If you are unsure of your employer's leave policy, always err on the side of keeping in touch with your employer and don't assume you're 100% protected by the Family and Medical Leave Act.

The case is Righi v. SMC Corporation of America, No. 09-1775.

Thursday, March 17, 2011

Tort Firm Misclassifies Lawyers, Owes $158K Tax Bill

The ABA Journal has an article on how NOT to structure a law firm with regards to attempting to skirt around tax law by labeling all of your "incubating attorneys" as "independent contractors." The IRS doesn't take kindly to such tactics and the Court of Appeals for the Fifth Circuit agreed finding that the attorneys to whom Donald Cave provided office space and referred cases that were handled under his law firm name were associates of Donald Cave's law firm rather than independent contractors, and that the firm owed $158K in taxes.

Wednesday, March 16, 2011

Court Holds Doctor's 64 "Sexts" NOT Sexual Harassment

Eric B. Meyer highlights a case that highlights the importance of heading to human resources or a supervisor first and allowing a reasonable amount of time for a remedy before running to the Equal Employment Opportunity Commission ("EEOC") about sexual harassment.

A doctor at a chiropractic practice began sending his receptionist text messages at all hours of the day and night, which included things like:

•"suck me beautiful,"
•"I'm so @#$%^,"
•"U want to fuck on my desk,"
•"I want to fuck u do u want to? Let's make it saucy," and
•"Come and suck it and I will feel better."

After the 64th "sext," the receptionist finally lodged a complaint and forwarded the text messages to the Clinic Administrator. Soon after the receptionist quit and headed over to the EEOC to lodge a sexual harassment complaint. The EEOC found that the evidence suggested that the doctor had sexually harassed her, but opted not to prosecute the case on her behalf and issued a right to sue letter. The receptionist filed suit in federal court but the court granted the defendant's motion for summary judgment! Why?:

The court pointed out that an employee must give the employer sufficient time to remedy the situation following receipt of an employee complaint of unlawful harassment. Here, because the receptionist quit immediately after she complained of sexual harassment, the court found that there was insufficient time for her employer to have corrected the situation. So, even though the court believed that the doctor had created a hostile work environment that was both severe and pervasive, the court was persuaded that the clinic did have a procedure to remedy unlawful harassment in the workplace, but was deprived of the chance to do so. Therefore, the court dismissed the receptionist's claims.

In order to rationalize the court's decision, it's easier to think of it this way: if you are sexually harassed by a coworker or supervisor and never complain, how can you then hold the employer accountable for that worker's behavior if they never knew about it or had a reasonable opportunity to remedy the situation short of legal redress? Understandably it's not always easy for employees to go to HR or a supervisor about these types of incidents but failure to do so will render a subsequent lawsuit meaningless.

The case is Kurtts v. Chiropractic Strategies Group, Inc.

Secret Ballot Protection Act Reintroduced in House

Representative Phil Roe (R-TN) has reintroduced the Secret Ballot Protection Act (SBPA) (H.R. 972) in the House of Representatives. The SBPA would amend the National Labor Relations Act ("NLRA") to guarantee the right to secret ballot union representation elections.
In January, Sen. Jim DeMint (R-SC) introduced a the Senate version.

Both bills are a response to the now-shelved Employee Free Choice Act ("EFCA") would make it an unfair labor practice for an employer to recognize a union that has not been selected via secret ballot and make it unlawful for a union that has not been chosen as the employees’ exclusive representative in a secret ballot election conducted by the NLRB to cause or attempt to cause an employer to recognize or bargain with it.

An Anti-Business Supreme Court?

The ABA Journal has a brief article displaying recent Supreme Court of the United States decisions that show a trend of favoring employees and injured plaintiffs. Among the employment law-pro-plaintiff cases:

The court has twice ruled for fired workers seeking protection under anti-discrimination laws. In one case, Thompson v. North American Stainless, the court ruled that a worker fired after his fiancĂ©e filed a discrimination complaint against their mutual employer may sue for unlawful retaliation under Title VII. In another, Staub v. Proctor Hospital, the court held that an employer can be liable for firing an Army reservist because of unlawful intent by a supervisor who influenced—but did not make—the decision.

Tuesday, March 15, 2011

Wisconsin Woman Given $35,000 in Pregnancy Discrimination Case

The Equal Employment Opportunity Commission ("EEOC") settled a federal pregnancy discrimination case on behalf of a former security guard, Tenisha Yarbrough, against her former employer, Durable Contract Services Inc., a Milwaukee company that provides security for government buildings. The settlement awarded Yarbrough $35,000 and Durable must provide, inter alia, training to its employees regarding pregnancy discrimination. I blogged about this case previously.

Monday, March 14, 2011

Wisconsin Court of Appeals Finds Marijuana Use Amounts to Misconduct, Denies Unemployment Compensation

It's probably curious how the issue of testing positive for marijuana in a random drug test reached the Wisconsin Court of Appeals but the claimant, Albert Galindo, proposed an interesting theory for why his behavior did not amount to misconduct connected to his employment for purposes of being denied unemployment compensation.

Galindo argued that he had a documented drug addiction to marijuana, cocaine and alcohol. Therefore, his ingestion of the marijuana was not intentional. As evidence of his purported marijuana addiction, Galindo pointed to a voluntary outpatient program he completed in 1989, and a drug court program he participated in from December 2005 to October 2007.

The Labor and Industry Review Commission ("LIRC") determined that Galindo was ineligible for unemployment benefits because he was discharged for misconduct. The Commission found that Galindo was aware that he would be subject to discharge if he received a positive drug test at work. The Commission also noted that Galindo claimed to be addicted, but he neither informed his employer that he had a drug problem nor availed himself of its drug treatment program. In addition, the Commission concluded Galindo presented no medical evidence or expert opinion to support his assertion that he was addicted to marijuana and unable to abstain from its use. Galindo sought judicial review, and the circuit court reversed the Commission in its entirety. The Court of Appeals reversed the circuit court and upheld LIRC's finding that Galindo's conduct amounted to misconduct under the facts and noted Galindo failed to support his argument with competent expert medical evidence.

The case is Galindo v. L.I.R.C., Docket: 2010AP000430.

Be Careful with those Briefs, Counsel!

The Wisconsin Court of Appeals issued an opinion in a wage & hour case (Lamb v. New Horizons Center, Docket: 2010AP002030) this week on whether summary judgment and the attorney's fees submitted was appropriate and ended on a scolding note:

We are also disturbed by the tendentious tone of both parties' briefs and remind counsel that respect for the courts and counsel requires civility. See WIS. SCR 62.02; Aspen Services, Inc. v. IT Corp., 220 Wis. 2d 491, 508­509, 583 N.W.2d 849, 856 (Ct. App. 1998).

Yikes.

Sunday, March 13, 2011

NLRB Acting General Counsel Vows More Effective Backpay Remedies for Illegally Discharged Employees

National Labor Relations Board ("NLRB") acting general counsel, Lafe Solomon, announced this past week guidelines to help employees who are illegally discharged receive full compensation in backpay awards (or, as us lawyers call it, a "make-whole remedy"). From the NLRB press release on the announcement:
Mr. Solomon issued a memo outlining new methods for calculating backpay that includes daily compounded interest as recently ordered by the Board, and compensates for such things as expenses to search for employment and tax penalties for lump sum payments.

In a second memo, he urged reconsideration of two 2007 Board decisions that require illegally discharged employees to start looking for a new job within two weeks of being fired, and shifted the burden from the wrongdoer to the General Counsel to prove that they have diligently pursued work throughout the backpay period. Earnings from these other jobs are deducted from backpay awards.

The actions announced today are part of an ongoing initiative to ensure that unfair labor practices are more fairly and effectively remedied.

Mr. Solomon directed officials in the agency’s 31 regional offices to identify cases in the field that could be used as vehicles to ask the Board to reconsider the 2007 decisions - Grosvenor Resort, 350 NLRB 1197 (2007), and St. George Warehouse, 351 NLRB 961 (2007).

Bravo, Solomon!

Tips for Dealing with Workplace Bullying

Dr. Michelle Callahan has an article on The Huffington Post about workplace bullying and how to deal with it in ten tips. Interestingly, women appear to be the biggest perpetrators of workplace bullying and a large percentage of Americans say they have experienced workplace bullying at one time or another.

Here are the ten tips Dr. Callahan gives to deal with workplace bullying:

1.Don't get emotional. Bullies take pleasure in emotionally manipulating people. Stay calm and rational to diffuse the situation.

2.Don't blame yourself. Acknowledge that this is not about you; it's about the bully. Don't lose your confidence, or think you are incapable or incompetent. They are usually beating you at a mind game, not based on your actual work performance.

3.Do your best work. The bully's behavior will seem more justified if you aren't doing your best work, or if you do things like come to work late, take long lunches, turn in work late, etc.

4.Build a support network. Instead of allowing the bully to make you retreat into your office, work on building your relationships with your coworkers so that you have support and the bully doesn't turn them against you as well (although she will try and may even be successful).

5.Document everything. Keep a journal (on your personal computer or in writing, but never leave it in the office) of what happened when (and who witnessed it) so that if you need to escalate this problem to Human Resources, you have the information you need to make your case. Keep emails and notes.

6.Communicate. Pull the bully aside and talk to them someplace quiet where you can privately tell them how their behavior is inappropriate and that you won't tolerate it.

7.Get counseling. It will help you deal with the stress, especially if the bullying is already affecting your physical and mental health. You have to take care of yourself.

8.Stay healthy. Maintain a healthy and balanced lifestyle outside of work to help you cope with the madness at work. Work out, get a good night's sleep and eat a healthy diet.

9.Educate yourself. Learn everything you can about bullying, your company's policies on inappropriate behavior and occupational law regarding this kind of experience. The more you know, the better your chances of successfully dealing with this situation.

10.Don't expect to change the bully. Real behavior change is difficult and it takes time. You have no control over a bully's willingness to accept that they have a problem and to work on it. You can do your best to manage the situation, but it's really the company's responsibility to be observant and responsive to the needs of their workers and the general work environment. In the worst-case scenario you may need to leave your job or be prepared for a long hard fight with your bully and your employer.

I often get a lot of calls where employees are being treated disfavorably by co-workers and they often want to refer to it as a "hostile work environment." It is hard to explain to people that a general hostile work environment not related to their belonging to a protected class is not actionable (though some states are trying to change that) and that they need to pursue alternate routes like speaking with their supervisor or human resources. No one should ever be miserable in their job and in this economy many people cannot just quit and hope to find another job so quickly which is why these tips are great starting points to cope with workplace bullying.

Thursday, March 10, 2011

ADA's New Public Accommodations Take Effect March 15th

On Friday, July 23, 2010, Attorney General Eric Holder signed final regulations revising the Department’s ADA regulations, including its ADA Standards for Accessible Design. Those revisions take effect next week, March 15th. Eric B. Meyer over at The Employer Handbook has slightly more on this.

Tuesday, March 8, 2011

NLRB Weekly Summary of Cases

For the week of February 28-March 4, 2011.

Employer Wellness Programs

The ABA Journal has a podcast on employer wellness programs (i.e., offerings that strongly encourage employees to participate in fitness and track their routines with outside vendors in exchange for health insurance discounts and sometimes even cash bonuses). Does your employer offer a wellness program?

UPDATE: The Delaware Employment Law Blog has a post about how to avoid GINA discrimination with wellness programs.

Saturday, March 5, 2011

A Twitter Firing!

A deputy attorney general in Indiana, Jeffrey Cox, with a Twitter account, like many attorneys do these days (including me), decided to post a Tweet regarding the labor protests in Madison, Wisconsin and offered this advice to the pro-laborers: “Use live ammunition.” It got him fired.

The ABA Journal who ran with the story has more details surrounding the termination and describes Cox's less-than-good discretionary posts on other internet postings:
The Indiana Attorney General’s office explained its decision in a statement. “We respect individuals' First Amendment right to express their personal views on private online forums, but as public servants we are held by the public to a higher standard, and we should strive for civility," the AG's office said.

According to Mother Jones, Cox said the protesters were "political enemies" and "thugs" who were physically threatening lawmakers, and he called the publication’s reporter a “typical leftist.”

"You're damned right I advocate deadly force,” Cox reportedly wrote.

Cox often expressed acerbic opinions on Twitter and his blog Pro Cynic, Mother Jones says. He called President Obama “incompetent and treasonous” and said a black teen was a “thug who was (deservedly) beaten up” by local police as he tried to prevent the arrest of his “equally thuggish” brother. The blog has since been taken down, but Mother Jones has published screen shots, and some stories still appear on cached pages.
There is some commentary from famed First Amendment scholar Jonathan Turley who believes that given the specifics of Cox's online speech, there may be fairly strong First Amendment case to be made and comes down to the question and issue of whether a public employee like Cox has any protection for comments made as a private citizen.

US Dept. of Health and Human Services Issues First HIPAA Penalty of $4.3 Million

The Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) became effective in April 2003 and only now, in 2011, is the HHS issuing its first first civil monetary penalty. HHS issued a Notice of Final Determination finding that Cignet Health of Prince George’s County, Md., (Cignet) violated the Privacy Rule and imposed $4.3 million in penalties for the violations. The penalty amount is based on the increased penalty amounts authorized by Section 13410(d) of the Health Information Technology for Economic and Clinical Health (HITECH) Act.

In a Notice of Proposed Determination issued Oct. 20, 2010, OCR found that Cignet violated 41 patients’ rights by denying them access to their medical records when requested between September 2008 and October 2009. These patients individually filed complaints with OCR, initiating investigations of each complaint. The HIPAA Privacy Rule requires that a covered entity provide a patient with a copy of their medical records within 30 (and no later than 60) days of the patient’s request. The penalty for these violations is $1.3 million.

Another Facebook Firing

Another Facebook termination has occurred and this one comes from Massachusetts. A firefighter, Richard Doherty, was fired after several coworkers reported his Facebook writings to town officials. While the exact content of Doherty's Facebook post(s) are not disclosed in the news article, Doherty apparently "railed against the police officer over some incident, angrily carried on about being forced to work on the Fourth of July holiday and made a homosexual slur."

Doherty was a union member and his union, IAFF Local 1717, is grieving the termination citing First Amendment rights. (Remember, public sector employees may assert the First Amendment whereas private sector employees cannot and usually assert protected activity rights under the National Labor Relations Act).

I have a feeling that after a while these Facebook terminations won't be news worthy, but until then and until we get some case law out of them, us employment law bloggers will continue to highlight them.

Cat's Paw Theory of Employment Discrimination

Definition: where an adverse employment action (e.g., termination/firing) by a "clean," non-discriminating upper-level executive is alleged to have been infected by a lower-level supervisor who had discriminatory animus.

Wednesday, March 2, 2011

NLRB Weekly Summary of Cases

For the week of February 21-25, 2011 ... and on the new, pretty website!

Tuesday, March 1, 2011

Wisconsin State Employees Union Files Complaint Against Governor Walker

The Wisconsin Law Journal has a very brief article on the complaint filed by the Wisconsin State Employees Union (SEU) against the Scott Walker administration asking that the state labor relations board to extend its contract and require Walker’s administration to engage in collective bargaining. From the article:

The complaint comes as Walker is seeking to strip most public employee unions of collective bargaining rights, except for inflationary wage increases. Walker’s plan has passed the Assembly but stalled in the Senate because Democrats fled the state.

State employees have been working under an extension of their contract that ended in mid-2009. But Walker is canceling the contract extensions effective March 13.

Walker spokesman Cullen Werwie declined to comment on the complaint.