NYT on NLRB Card Check Lawsuits

Steven Greenhouse of the New York Times has an article on the National Labor Relations Board's (NLRB) lawsuits against Arizona and South Dakota which seeks to invalidate those states' constitutional amendments that prohibit private sector employees from choosing to unionize through a procedure known as card check.

Proposed Legislation Would Expand FMLA Rights

Earlier this month Rep. Carolyn Maloney [D-NY14] recently introduced H.R. 1440: Family and Medical Leave Enhancement Act of 2011 (FMLEA) in the House of Representatives. Under this proposed legislation the FMLEA would amend the Family and Medical Leave Act of 1993 (FMLA) to allow employees to take off from work to participate in or attend their children's and grandchildren's educational and extracurricular activities. The bill also would allow employees to take leave for routine family medical needs and to assist elderly relatives, and for other purposes.

Specifically, the FMLEA would allow an eligible employee to:

1. participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee; or
   
   
2. meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes.

The FMLEA would also amend the FMLA to increase the number of covered employers by decreasing the total number of employees needed to qualify as a covered employer. That threshold would drop from 50 employees to 25.

I don't have the highest of hopes for this bill, but I have been wrong before.

Employment Case Law Update

--Chikuri v St. Vincent New Hope, Inc, SDInd: Defendant's motion to dismiss on plaintiff's Title VII religious discrimination claim GRANTED for failure to state a claim under Rule 12(b)(6). Interesting in this case is the fact the defendant pointed out the plaintiff's inconsistencies in her affidavit and complaint. Specifically, plaintiff's complaint states that she was “exploring becoming a Muslim.” However, plaintiff's affidavit states that her “[t]ransition to Muslim was quick” and that it was her “new found religion.” The Affidavit also provides, in the following paragraph, that she “started learning Muslin [sic] but that [her] excitement was cut short” because neither her friends or family would accept her new found religion.

Ultimately the court concluded that plaintiff failed to meet her burden under the prima facie case in a religious discrimination claim because her merely "exploring" a religion is not a bona fide religious practice. "Moreover, Plaintiff fails to allege a specific religious practice or belief held by her that was used as a basis for her termination. Instead, Plaintiff alleges that the patient’s religious practices of attending the Church of the Nazarene made Plaintiff uncomfortable. Title VII provides a cause of action where a plaintiff’s own religious beliefs lead to an adverse employment action, but not where another individual’s religious practices and beliefs merely make a plaintiff uncomfortable. See Kreilkamp v. Roundy’s, Inc., 428 F.Supp.2d 903, 908 (W.D. Wis. 2006) (“[A]n employee cannot redefine . . . [an] aversion as a religious belief” (citing Reed v. Great Lakes Cos., Inc., 330 F.3d 931 (7th Cir. 2003))."

--Renstrom v Nash Finch Co, DMinn: Defendant's motion for summary judgment on plaintiff's Title VII sex discrimination and Equal Pay Act Claims (EPA) GRANTED. To make out a prima facie case under the EPA, the plaintiff must show that her employer paid her less than a male employee for equal work in jobs that required equal skill, effort, and responsibility and that were performed under similar working conditions. Ultimately the Court held that the comparators used by the plaintiff failed because they did not work at the same location and did not perform equal work.

The Court engages in a lengthy discussion of whether the separate locations may be considered a single enterprise but ultimately concludes that under precedent and EEOC interpretation that this business setup does not allow for such a single enterprise label. And since plaintiff failed to meet her burden under the EPA, the Court also held that her Title VII and state claim must fail also.

10th Circuit Rules on Issue of "Currently Engaging in Drug Use" Under ADA

The Court of Appeals for the Tenth Circuit has a very interesting opinion touching on the complicated and relatively undecided issue of how to decided when an individual is "currently engaging in the illegal use of drugs," 42 U.S.C. § 12114(a) -- who are not protected from discrimination under the Americans with Disabilities Act -- and those recovered or otherwise not "engaging" in such drug use under 42 U.S.C. § 12114(b), who are protected under the ADA. The Court ultimately declines to adopt a bright line test and concludes that such a determination is a case-by-case analysis and finds that under the facts of the case at hand (out of drug treatment program after 30 days) that the plaintiff failed to meet their burden thus affirming the district court's grant of summary judgment.

The case is Mauerhan v. Wagner Corp., No. 09-4179 (10th Cir. Apr. 19, 2011).

Employment Case Law Update

--Hardy v PSI Family Servs, Inc, MDFla: female African-American employee who alleged that she suffered harassment and was wrongfully terminated by her employer was compelled to arbitrate her claims under the provisions of an employment agreement, despite the fact that she had received a right-to-sue letter from the EEOC. While the employment agreement provision’s language states that an aggrieved employee may seek “relief” from the EEOC, it also requires that all claims “under federal, state, or local civil rights law” be arbitrated. As a consequence, the court granted the employer’s motion that this action be stayed until completion of arbitration under the agreement.

--Hughes v The Home Depot, Inc, DNJ: After being subjected to threats of violence and verbal abuse, a Home Depot employee who described herself as “intersexed” or a “partial hermaphrodite” proffered sufficient evidence to defeat the home improvement store’s summary judgment motion on her hostile work environment sexual harassment claim. She was hired by Home Depot and soon began hearing “whispers and rumors” around the store that she was a man and that male customers were making threats toward her. The employee complained to a human resources manager, who investigated and prepared a report indicating that the store manager was not cooperative, that despite her direction, he was not taking the HR manager’s advice seriously—a particular concern because other employees would emulate the store manager’s actions. After several additional incidents, the HR manager recommended that the perpetrators be disciplined and the employee transferred, but her recommendations were not adopted. When the store manager departed, the employee told her new manager about the harassment. After another incident at the store, the employee again complained to human resources, but an HR manager suggested that the employee may have brought the problems on herself by telling people her “business.” When the employee was terminated, allegedly for violating Home Depot’s attendance policies, she brought suit under New Jersey’s Law Against Discrimination, alleging harassment and retaliation.

--EEOC v Genesco, Inc, DNM: A shoe retailer that was a defendant in an EEOC sexual harassment suit successfully defended itself against an employee-intervenor’s tort claims arising out of allegations that she was assaulted by her supervisor. Concluding that the supervisor’s alleged tortious conduct was not carried out as part of the employer’s business, a federal district court in New Mexico granted partial summary judgment to the employer, rejecting the employee’s contention that the employer was liable based on a respondeat superior theory. The court also granted summary judgment to the employer on the employee-intervenor’s claim for negligent infliction of emotional distress.

---Krause v Merrill Lynch, Pierce, Fenner, & Smith, Inc, SDNY: Merrill Lynch could not be held liable under Title VII after an employee was allegedly sexually assaulted by a coworker off premises at a nonwork-related off-duty event that she attended. Although the employee alleged additional hostile work environment incidents, those incidents were isolated, and none were sufficiently severe as to warrant liability against Merrill Lynch, the court ruled in granting summary judgment to the employer.

NLRB Revises List of Mandatory Submissions to Division of Advice

The National Labor Relations Board's (NLRB) Acting General Counsel, Lafe Solomon, has issued a memorandum updating the list of matters that require mandatory submission to the Division of Advice "[i]n view of new Board and circuit court decisions issued since GC 07-11, and the emergence of new policy issues in the past several years..." The list is divided into four groups and is available here.

Milwaukee's Paid Sick Leave Ordinance Still Battling

Professor Paul Secunda (Marquette Law School) is featured in this local news story:

EEOC Files Sexual Harassment Lawsuit Against Reedsburg, Wis. McDonald's

The Equal Employment Opportunity Commission (EEOC) has filed suit in federal court for the Western District of Wisconsin on behalf of a class of women who claim they were subjected to sexual comments, sexual propositions or physical touching by co-workers. The suit also alleges that some of the women were fired in retaliation for complaining about the situation, and that the harassment was so bad that one woman was forced to quit her job to avoid it. The Milwaukee Journal Sentinel has a very brief article about the suit.

Employment Case Law Update

It's been a while since I have done an employment case law update, so here's one!:

--Thomas v Penn United Tech, WDPa: Defendant's motion for summary judgment against plaintiff's ADA and state law claims of disability bias, failure to accommodate, hostile work environment and retaliation DENIED. The plaintiff was a Manager before getting injured in a non-work related accident that rendered him a quadriplegic. After the accident he was moved to a different position as a Team Leader and told, inter alia, he could not be a good manager because his legs did not work. Plaintiff then had difficulty traveling between buildings on the work site and injured himself once again while on the job. Defendant attempted to argue that the position switch did not amount to an "adverse employment action," thus plaintiff failed to make out a prima facie case. The district Court held that while “direct economic harm is an important indicator of a tangible adverse employment action, it is not the sine qua non. If an employer's act substantially decreases an employee's earning potential and causes significant disruption in his or her working conditions, a tangible adverse employment action may be found.” Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999).

Both parties then disputed the failure to accommodate issue but the Court ultimately held that the plaintiff's numerous requests to make his job easier through a series of accommodations left triable facts.

--Rodriguez v Alcoa Inc, SDTex: Defendant's motion for summary judgment against plaintiff's disability discrimination and failure to accommodate claims GRANTED. Plaintiff was completely deaf in his left ear since birth and has significant hearing loss in his right ear and claimed that he lives a normal life. Oddly, on the Medical and Occupational Health History form, plaintiff failed to acknowledge his hearing impairments. It was not until the physical hearing test that plaintiff revealed his hearing impairments to the employer. The employer instructed plaintiff to come back with hearing aids to take the test again but plaintiff failed to do so and the employer rescinded their job offer. Ultimately the plaintiff's own admissions about how he leads a normal life with almost no difficulty showed he does not have a qualifying disability under the ADA because he is not substantially limited in a major life activity.

Plaintiff also failed in the "regarded as" portion of his disability claim because merely showing the defendant was aware of his hearing impairments was not enough to meet his burden, the Court said. Furthermore, plaintiff's failure to accommodate charge was also dismissed because he failed to include it in his original charge with the EEOC. The Court noted that even if he had included it, it would still fail because the plaintiff does not have a qualified disability.

NLRB Weekly Summary of Cases

For the week of April 4-8, 2011.

New Jersey Court Asked to Decide What Constitutes a "Man" in Transgender Discrimination Suit

In a case of the perfect storm facts giving rise to one interesting employment discrimination claim, a transgender male in New Jersey, El’Jai Devoureau, who was employed as a part-time urine monitor with Urban Treatment Associates in Camden, New Jersey has filed a discrimination complaint after being fired the second day on the job once his boss learned he was a transgender. Urban Treatment claims the termination "was legitimate, 'since the sex of the employee engaged in that particular job position is a bona fide occupational qualification' — implying that Mr. Devoureau was not really a man." Now, in theory, a New Jersey court has to decide what makes one a "man." Devoureau says he has identified himself as a male all his life.

This may be a first case of its kind and may settle before a court can delve into this complex and interesting question but it's definitely a case to monitor. Only 12 states have legislation that specifically protects transgender status and Wisconsin is not one of those states at the moment. Wisconsin protects sexual orientation which, under the right facts, could also be protective of a transgender individual.

NLRB Files First Complaint Involving Twitter

The New York Times has reported on "plans" the National Labor Relations Board (NLRB) has to file a complaint against Thomson Reuters over their reprimanding an employee for a Tweet the employee posted criticizing management. From the NYT article:

The board asserts that the company’s Reuters news division violated the reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a message on the Twitter service that said, “One way to make this the best place to work is to deal honestly with Guild members.”

The author of the post, Deborah Zabarenko, the agency’s environmental reporter in Washington and the head of the Newspaper Guild at Reuters, sent that to a company Twitter address after a supervisor had invited employees to send postings about how to make Reuters the best place to work.

“The next day the bureau chief called me at home,” Ms. Zabarenko said in an interview. “He told me that Reuters had a policy that we were not supposed to say something that would damage the reputation of Reuters News or Thomson Reuters. I felt kind of threatened. I thought it was some kind of intimidation.”

A National Labor Relations Board official confirmed late Wednesday that the board’s Manhattan office had informed Thomson Reuters and the union of the planned complaint. The official, who insisted on anonymity because the complaint had not yet been filed, confirmed that it involved an accusation that the company had violated a worker’s federally protected right to engage in concerted, protected activity with co-workers to improve working conditions.

Typically, the agency warns parties before a formal complaint is filed to encourage settlement of the dispute. If no settlement occurs, an administrative law judge will hear the complaint.

Department of Labor Issues Final Rule on Fair Labor Standards Act

The Department of Labor (DOL) recently issued a final rule to revise regulations issued pursuant to the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947 (Portal Act) that have become out of date because of subsequent legislation and can be found here.

Pennsylvania Federal Court Holds There are No Mixed-Motive Retaliation Claims Under Title VII

A magistrate judge for the United States District Court for the Eastern District of Pennsylvania recently ruled on the proof required to prove a retaliation claim under Title VII and held that only the “but-for” standard applied to the plaintiff's retaliation claims and that, as a matter of law, the lesser mixed-motive "motivating factor" standard would never apply to a Title VII retaliation claims in light of the language of the statute and the Supreme Court Justices' reasoning in Gross v. FBL Fin. Servs. Inc. .

A mixed-motive case is where there is evidence that both a legitimate and a discriminatory motive was behind the employment decision. Where there is such evidence, in order to prove discrimination, the plaintiff need only prove that the discriminatory reason was a "motivating factor" in the employment decision, not the sole or "but for" cause of the employment decision. Thus, the plaintiff's burden of proof is lowered.

The case is Zhang v. Children's Hosp. of Philadelphia, Case No. 08-5540 and expect an appeal to the Third Circuit!

EEOC Toughens Stance Against Random Alcohol Testing Policies

The Equal Employment Opportunity Commission (EEOC) has filed suit against U.S. Steel Corporation alleging the Company's random alcohol testing policy—authorized by a collective bargaining agreement—violates the Americans with Disabilities Act (ADA). Under the ADA, alcohol testing is considered a medical exam and medical exams are permitted only when "job-related" and "consistent with business necessity." Therefore, a random alcohol test is only permitted when employers have a reasonable belief that a particular employee will be unable to perform the job or will pose a direct threat due to a medical condition.

In the U.S. Steel case complaint, the EEOC alleges the ADA was violated when they required probationary employee Abigail DeSimone to submit to a random breathalyzer tests administered by a company nurse. When DeSimone tested positive for alcohol, she advised the nurse that she had not ingested any alcohol in the past month, and that her medical condition might have contributed to the positive test result. That same day, DeSimone's personal physician performed a blood alcohol test and obtained a negative result. Although the results were made available to U.S. Steel, the company refused to accept them. DeSimone was ultimately terminated for violating the company's alcohol policy.

This will be a highly interesting case to follow as many employers use random alcohol and drug testing and often times for reasons not related to the job or for business necessity.