Nevada Passes Legislation Banning Discrimination in Employment Based Upon Gender Identity or Expression

Though there remains no specific protection at the federal level against employment discrimination against lesbian, gay, bisexual or transgendered employees, Nevada has chosen to provide such protection for their employees by amending their employment discrimination law.

Under the right set of circumstances and facts, however, a claim could be brought under Title VII against discrimination involving lesbian, gay, bisexual or transgendered employees IF the employer’s adverse action was based not upon sexual orientation or transgendered status, but upon a failure by the employee to conform to gender stereotypes.

Congrats, Nevada!

Proposed Federal Legislation Would Establish Minimum Nurse/Patient Ratios, Provide Whistleblower Protections

Senator Barbara Boxer (D-CA) recently reintroduced legislation that would establish minimum nurse-to-patient ratios, require hospitals to implement nurse-to-patient staffing plans, and provide whistleblower protection for patients and hospital employees. The National Nursing Shortage Reform and Patient Advocacy Act (S. 992) is the latest in a number of bills introduced in recent years that are designed to provide nurses – and their unions – with greater influence on nurse staffing levels. The proposed ratio calls for:

‘(1) IN GENERAL- Except as otherwise provided in this section, a hospital’s staffing plan shall provide that, at all times during each shift within a unit of the hospital, a direct care registered nurse shall be assigned to not more than the following number of patients in that unit, subject to paragraph (4):

‘(A) One patient in trauma emergency units.

‘(B) One patient in operating room units, provided that a minimum of 1 additional person serves as a scrub assistant in such unit.

‘(C) Two patients in critical care units, including neonatal intensive care units, emergency critical care and intensive care units, labor and delivery units, coronary care units, acute respiratory care units, postanesthesia units, and burn units.

‘(D) Three patients in emergency room units, stepdown units, pediatrics units, telemetry units, antepartum units, and combined labor, delivery, and postpartum units.

‘(E) Four patients in medical-surgical units, intermediate care nursery units, psychiatric units, and other specialty care units.

‘(F) Five patients in rehabilitation units, and skilled nursing units.

‘(G) Six patients in well-baby nursery units and postpartum (3 couplets) units.

Think Twice Before Traveling While on Medical Leave!

In a case somewhat oddly involving a union, the Communications Workers of America (CWA), an employee, Denise Pellegrino, filed suit alleging Family and Medical Leave Act (FMLA) interference after she was fired for traveling to Cancun, Mexico while on medical leave. There are a few facts unique to this case that may render different results under a different scenario but the Pennsylvania federal district court ultimately upheld the termination on the grounds that companies have the right to create and enforce leave policies, to the extent that they do not abridge an employee's rights under the FMLA and that Pellegrino would have been terminated anyway, even without a written paid sick leave policy.

CWA had a written paid sick leave policy that required employees to get examined by a doctor of CWA's choosing and to remain in the immediate vicinity of their homes while on sick leave. Pellegrino pursued the paid leave and then left to Mexico without informing CWA. The court held:

No reasonably jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country.

While it may seem perfectly ok to travel while on sick leave because a vacation is the complete opposite of work, employees ought to review their handbook and policies and even consult with human resources before jumping on a plane and assuming traveling is allowed.

I Received a "Right-to-Sue" Letter from the EEOC. Now What?

Among the numerous confusing and misunderstood things in employment law concerns the Equal Employment Opportunity Commission's "right-to-sue" notice. Many potential clients and callers think this means the EEOC is informing them that they have a good case and should file a lawsuit in federal court. However, a right-to-sue notice letter does not mean the EEOC is communicating to you that you ought to file a lawsuit, rather, this notice is the EEOC's issuing you the requisite letter that allows you to file a federal lawsuit independently as they have concluded they cannot represent you in your case.

Federal law requires this notice of right-to-sue before an individual may file a suit in federal court though there are exceptions (i.e., If you plan to file an age discrimination lawsuit, you won’t need a Notice of Right-to-Sue to file in court. You can file anytime after 60 days have passed from the day you filed your charge (but no later than 90 days after you receive notice that our investigation is concluded). If you plan to file a lawsuit under the Equal Pay Act, you don’t have to file a charge or obtain a Notice of Right-to-Sue before filing. Rather, you can go directly to court, provided you file your suit within two years from the day the discrimination took place (3 years if the discrimination was willful). The right-to-sue letter is issued after the EEOC has concluded its investigation and then the charging party only has 90 days to file suit in federal court or loses their right to file.

A charging party does not have to wait for the EEOC to conclude their investigation to request a right-to-sue letter but does have to wait at least 180 days after the date they filed their charge.

If you have received a right-to-sue letter and are considering filing suit in federal court, it is best to seek a private employment attorney as soon as possible so that an assessment of your case can be made and the suit can be drafted and filed timely and properly.

Arbitration Fairness Act of 2011 Reintroduced

The Arbitration Fairness Act of 2011 (H.R. 1873, S. 987) has been reintroduced into Congress by Rep. Henry “Hank” Johnson (D-GA) and Sen. Al Franken (D-MN) and seeks to amend the Federal Arbitration Act (FAA) to invalidate all predispute arbitration agreements that require the arbitration of any employment or consumer dispute, or conflict arising under any statute intended to protect civil rights. It would not, however, apply to arbitration provisions contained in collective bargaining agreements. The Act essentially also seeks to overturn a series of recent U.S. Supreme Court decisions upholding arbitration as a legitimate means of dispute resolution. In the most recent decision issued in April of this year (ATT&T v. Concepcion), the Court held that the FAA preempted a California state supreme court decision that conditioned the enforceability of a consumer arbitration agreement on the availability of class-wide arbitration.

This legislation broadly defines “employment dispute” as “a dispute between an employer and employee arising out of the relationship of employer and employee as defined by the Fair Labor Standards Act.” The definition of “consumer dispute” is similarly broad enough to encompass a wide range of legal conflicts. If enacted, this bill would essentially eliminate arbitration as a litigation alternative for employee claims – as well as those brought by clients/customers – unless the parties agree to the arbitral forum post-dispute. The provisions of this bill would take effect on the date of enactment, and would apply to any dispute or claim arising on or after that date.

NLRB Files Another Facebook Firing Complaint

The National Labor Relations Board (NLRB) announced a complaint it has filed alleging that Hispanics United of Buffalo, a nonprofit in New York that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The complaint was issued May 9 by Rhonda Ley, NLRB Regional Director in Buffalo, New York. From the official release on the complaint:

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. Unless the case is settled, the complaint will be the subject of a hearing before an administrative law judge on June 22, 2011, in the Buffalo office of the NLRB.

EEOC Files Suit Against Starbucks Alleging Disability Discrimination Related to Dwarfism

The Equal Employment Opportunity Commission (EEOC) has announced a lawsuit against a Starbucks in El Paso, Texas after a former employer with dwarfism was terminated shortly after requesting an accommodation to be able to help fix drinks and serve customers with a stool or stepladder and after only 3 days on the job. According to the EEOC's complaint, Starbucks stated that the former employee could "pose a danger to customers and employees."

Just Because You Sign a Severance Agreement Does NOT Mean You Can't Sue...Sometimes

A recent case out of New York, Johnson vs. Lebanese American University, et al., 2011 NY Slip Op 03658, highlights the fact that not all severance agreements and releases necessarily bar future discrimination claims by the employee who signs the release. In the above-referenced case the plaintiff signed a three-paragraph release that read:

"I, the undersigned Robert Johnson do hereby declare that I have received from the Lebanese American University the sum of $4,651.94 as an ex-gratia payment in full settlement of any and all claims and entitlements related to my services of whatsoever nature with the above mentioned University up to June 10, 2008.

"I therefore hereby remise, release and completely discharge the Lebanese American University and all its responsible officers of and from all actions or rights that I may ever have against the University in respect of my above mentioned service.

"In witness whereof I have signed this full, final and irrevocable Release and Discharge this day of 6/30/08."

Sometime after signing this release the plaintiff then filed a discrimination complaint under New York law and the employer sought to have them dismissed per the terms of the release, which the lower court did. However, the New York appellate court found that the release did not bar the plaintiff's claims due to the language in the very short release and the facts surrounding its signing. The plaintiff provided an affidavit claiming he thought that by signing the release he was waiving any claims regarding wages and not discrimination. Ultimately, applying general contract principles, the court viewed the language in favor of the plaintiff and held that the lower court erred in dismissing his discrimination claim.

The EEOC has a wonderful guide on severance agreements and waiving discrimination claims.

NLRB Holds Report's Termination of Tweets Lawful

The National Labor Relations Board (NLRB), in a recent advice memorandum issued by the general counsel's office, has held that the termination of an Arizona Daily Star public safety reporter over his tweets on Twitter did not run afoul of Section 8(a)(1) of the National Labor Relations Act.

What largely did this reporter in was the fact he had been warned several times before about his inappropriate and unprofessional tweets. From the ABA Journal article on the advice memo:

In 2010, the reporter criticized one of the paper’s headlines via Twitter. Human resources encouraged him to discuss his concerns with colleagues rather than his Twitter audience, and later the reporter’s managing editor stated that he should not make comments on social media that could damage the paper’s reputation.

The reporter refrained from tweeting about his newspaper, which encouraged its reporters to use Twitter but had no written policy about it. And the employee went on to tweet a variety of comments about Tuscon’s homicide rates. He also retweeted a local television news station Twitter post, noting a misspelled word in it.

The station complained to the newspaper, and the managing editor told the reporter to refrain from tweeting until she met with senior management. She noted that the reporter’s Twitter screen name and biography referenced his employment at the Daily Star, and linked to the newspaper’s website

In response, the reporter changed his screen name, deleted some of his supervisors from his list of followers and protected his tweets so only people with his approval could view them. Nevertheless, the reporter was fired later that month.

In ultimately upholding the termination as lawful, the NLRB concluded: “The charging party’s conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”

The lesson for employees: You do not have an absolute right to say whatever you'd like in any forum because the law is only so protective as it also has to take into account the employer's best interest. The NLRB is responsible for the neutral administration of federal labor laws and if it determines an employee infringed too heavily upon an employer's interest, it will say so. There are productive and protected items of speech and then there are blatant abuses of such speech. This reporter's speech was the latter and not the former. And, even if you take steps to hide your speech from employer's, it can still lead to your termination as you never know who will turn you in for your speech.

7th Circuit Issues ADA Decision Under "Regarded as Disabled" Provision

District court's grant of summary judgment in favor of defendant against plaintiff's Americans with Disabilities Act (ADA) REVERSED and remanded. In a case issued today out of the Court of Appeals for the Seventh Circuit, a plaintiff, Darrell Miller, filed a claim under the ADA's "regarded as disabled" provision against his former employer, Illinois Department of Transportation, stemming from his fear of heights though he had not been formally diagnosed with acrophobia.

Miller was involved in a work task that caused him to have a panic attack which then prompted the employer to order sick leave and a fitness-for-duty examination where Miller was formally diagnosed with acrophobia and provided with certain work restrictions. However, the employer treated Miller as if he had more restrictive work requirements and Miller then filed a grievance protesting the restrictions and obtained two independent evaluations which concluded Miller could perform his previous job with the same accommodations he had in the past. Miller's accommodations were denied, he returned to work, made some less-than-wise comments about a female coworker and was fired shortly thereafter for the comments.

On review, the 7th Circuit overturned the lower court on all counts and remanded the matter back for further proceedings. The case is Miller v. IDOT, No. 09-3143, May 10, 2011.

Department of Labor Offers App to Keep Track of Employees' Hours

In what may be a great tool to prove potential wage and hour violations, the U.S. Department of Labor has released an application for use on Apple's iPhone that employees can use to ecord the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek. For more on the app and how to download, click here to be taken to Apple's website.

Viewing Your Employee File

Probably one of things employees often do not know about, at least in Wisconsin, regards their right to view their employee/personnel file. A lot of employees wonder what happens with those yearly reviews, disciplinary write-ups and handbooks and often never see these materials unless they are terminated. In Wisconsin employees are allowed, under law (Wis. Stat. sec. 103.13), to view their personnel file twice per year within seven (7) working days of a request. There are some exceptions to this rule, like if a collective bargaining agreement provides for more views, etc., but typically an employee may view their file and it probably doesn't hurt to do so just to make sure everything is going smoothly or just to browse the employee handbook for good measure!

Be aware, however, that you are not entitled to a copy of your file but merely to inspect the file, which may include simply viewing the file in the HR office. Also be aware that if you are disciplined or terminated for making this request an employer may be in violation of Wisconsin discrimination laws. See. Wis. Stat. sec. 111.322.

NLRB Acting General Counsel Releases Statement on Boeing Complaint

National Labor Relations Board Acting General Counsel, Lafe Solomon, has finally released an official statement on the controversial complaint issued April 20 against the Boeing Company:

“Contrary to certain public statements made in recent weeks, there is nothing remarkable or unprecedented about the complaint issued against the Boeing Company on April 20. The complaint involves matters of fact and law that are not unique to this case, and it was issued only after a thorough investigation in the field, a further careful review by our attorneys in Washington, and an invitation by me to the parties to present their case and discuss the possibility of a settlement. Only then did I authorize the complaint alleging that certain statements and decisions by Boeing officials were discriminatory under our statute.
It is important to note that the issuance of a complaint is just the beginning of a legal process, which now moves to a hearing before an administrative law judge. That hearing, scheduled for June 14 in Seattle, is the appropriate time and place to argue the merits of the complaint. The judge’s decision can further be appealed to the Board, and ultimately to the federal courts. At any point in this process, the parties could reach a settlement agreement and we remain willing to participate in any such discussions at the request of either or both parties. We hope all interested parties respect the legal process, rather than trying to litigate this case in the media and public arena.”



The NLRB's official press release can be viewed here.

10 LEAST Stressful Jobs in America

As decided by The Huffington Post:

10: Chiropractor

9: Occupational Therapist

8: Mathematician

7: Philosopher

6: Speech Pathologist

5: Dental Hygienist

4: Computer Programmer

3: Software Engineer

2: Dietitian

1: Audiologist

EEOC Settles Hmong Race Discrimination Claim for $110,000

The Equal Employment Opportunity Commission (EEOC) recently announced that it has settled a race discrimination claim it filed in federal court on behalf of Kong Chee Vang, a Hmong woman who allegedly was denied promotion at the Milwaukee office of a major insurance firm, Chubb & Son. Part of the consent decree is $110,000 in back pay awarded to Vang. From the Milwaukee Journal Sentinel article on the settlement:

In a federal lawsuit on Vang's behalf, the EEOC also claimed that Chubb retaliated against her for filing her initial discrimination claim with the EEOC by rejecting her for another promotion later.

“When race gets into employment decision making, the process itself is fatally defective, and the EEOC will not hesitate to challenge it, said John Hendrickson, regional attorney for the EEOC. "The same is true when retaliation infects the situation. Managers who may think they are ‘just standing up’ for their companies when they retaliate against complainants are, in fact, just doing more damage.”

The payments are the result of a consent decree reached by the EEOC and Chubb, which was approved Tuesday by U.S. District Judge Lynn Adelman.

Seventh Circuit Enforces EEOC's Subpoena Powers

The Court of Appeals for the Seventh Circuit recently upheld the Equal Employment Opportunity Commission's (EEOC) expansive subpoena powers in EEOC v. Konica Minolta Business Solutions U.S.A. Inc., No. 10-1239 (7th Cir. Apr. 29, 2011). In Konica the EEOC, during the course of its investigation, through information produced by Konica that relatively few African Americans were employed at the facility where the charging party worked or at other locations in the Chicago area. In addition, the information provided by Konica suggested to the EEOC that the majority of the African American sales persons at the charging party's facility were on the same sales team. As a result, the EEOC requested and ultimately subpoenaed Konica records relating to its hiring practices for sales personnel at all of Konica's Chicago-area facilities. Konica asked the EEOC to revoke the subpoena and, when the EEOC refused, notified the EEOC that it was refusing to comply. Konica argued that the hiring data was irrelevant to the charge, which was directed at terms and conditions of employment and termination. The EEOC then filed an application with the federal court for an order enforcing the subpoena which was upheld and the 7th Circuit affirmed.

Employment Case Law Update

--Wilkie v Dept of Health & Human Servs, 8thCir.: Court of Appeals for the Eighth Circuit upholds lower court's decision granting defendant's motion for summary judgment on plaintiff's Title VII sexual harassment and gender discrimination claims, hostile work environment based upon sex, along with her other claims. This case again presents up with egregious acts on the part of the harasser and highlights the importance of claiming to the employer and allowing the employer an opportunity to remedy the situation. However, the employee in this case didn't complain about the harassing behavior until after she resigned. The Court also held that the rumor-spreading in this case wasn't sufficient enough to support her claims.

--Madry v Gibraltor Nat’l Corp, EDMich: An employment application that shortened the limitations period for employment claims to 180 days, and required an employee to pay the employer’s attorneys’ fees if she brought an unsuccessful claim, was unenforceable against an FMLA suit. The employer was correct in its assertion that, as a general principle, and under certain conditions, a statute of limitations may be contractually shortened, observed the court. However, while no courts of appeal have directly ruled on this issue, a number of district courts have held that public policy, as expressed in DOL regulations, preclude the waiver of the statute of limitations in an FMLA case. Regardless of whether the statute of limitations is regarded as substantive or procedural, limiting it in a remedial statute such as the FMLA or the FLSA interferes with an employee’s ability to bring a claim, noted the court.

--Hutchinson v Cuyahoga County Bd of County Comm’n, NDOhio: Defendant's motion for summary judgment on plaintiff's sexual orientation discrimination claim under Section 1983 is GRANTED in part and DENIED in part. While acknowledging that Title VII does not provide a cause of action for sexual orientation, and Sec. 1983 draws upon the burden-shifting approach from Title VII in determining liability, the court ruled that wholesale reliance on Title VII standards was misplaced and, instead, the employee’s equal protection claim was subject to a rational basis review. However, a separate claim that she was denied benefits on the basis of her sexual orientation was dismissed.