Monday, July 25, 2011

Employment Case Law Update

--Benuzzi v Board of Educ of the City of Chicago, 7thCir, July 21, 2011: Plaintiff's retaliation claim allowed to advance by the Court of Appeals for the Seventh Circuit because it was a jury question whether the disciplinary notice and hours restriction memorandum she received the day after she gave her deposition in her underlying sex discrimination case were materially adverse, and the short time span between the events could reasonably infer they were linked. Plaintiff's sex discrimination claims dismissal affirmed.

--Dorward v Macy’s Inc, MDFla, July 20, 2011: An employer’s alleged breach of an employment contract containing an arbitration agreement did not foreclose enforcing arbitration against an employee, ruled a federal district court in Florida, in spite of her laundry list of reasons for why she should not be compelled to arbitrate her Title VII claims. The employee assented to arbitration by declining to send in an opt-out form that was provided with other new-hire materials. Also, the agreement did not violate public policy, and it was not unconscionable because it was voluntary, afforded all rights available in court, and imposed no substantial costs on the employee.

--Basden v Professional Transp, Inc, SDInd, July 19, 2011: Defendant's motion for summary judgment against plaintiff's ADA and FMLA claims GRANTED. This case presents a quintessential example of the difficult balance between an employee with a disability who requires absence from work frequently and the employer's interest in having employees who can reliably be present to complete work. A dispatcher who was terminated after being diagnosed with multiple sclerosis failed in asserting claims under the ADA that her employer did not reasonably accommodate her disability and that it terminated her employment because of her disability or in retaliation for seeking accommodation. There was no evidence from which a reasonable jury could conclude that she was a qualified individual with a disability at the time of her termination, the court found, adding that because only qualified individuals with disabilities are entitled to the protections offered by the ADA, the employer was entitled to summary judgment on her claims.
Dismissing the plaintiff's FMLA claim was easier to rule on because the employee had not been employed for 12 months at the time of her termination, she could not satisfy the first element; she was not eligible for FMLA protection and, therefore, she had no rights under the FMLA.

--Louis v Sun Edison, LLC, DMd, July 15, 2011: Defendant's motion for summary judgement on plaintiff's sex discrimination GRANTED. Plaintiff's retaliation and sexual harassment claims allowed to proceed. District court held the employer’s alleged “honest belief” that she was lying and filing false charges could be considered by a jury to be a pretextual considering the one-sided nature of the investigation into her complaint.

Sunday, July 24, 2011

The ADA vs. HIPAA: Medical Information Confidentiality

As most people are aware, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted by President Clinton to accomplish and protect employees in several ways including:

  • Limits the ability of a new employer plan to exclude coverage for preexisting conditions;

  • Provides additional opportunities to enroll in a group health plan if you lose other coverage or experience certain life events;

  • Prohibits discrimination against employees and their dependent family members based on any health factors they may have, including prior medical conditions, previous claims experience, and genetic information; and

  • Guarantees that certain individuals will have access to, and can renew, individual health insurance policies

Most people know of HIPAA for its privacy rule. However, what most people (and perhaps most attorneys) do not know is that the Americans with Disabilities Act (ADA) also possesses a privacy rule that protects employee medical information. Specifically, the ADA states:

(3) Employment entrance examination

A covered entity may require a medical ex- amination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examina- tion, if—

(A) all entering employees are subjected to such an examination regardless of disability; (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, ex- cept that—

(i) supervisors and managers may be in- formed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, if the disabil- ity might require emergency treatment; and

(iii) government officials investigating compliance with this chapter shall be pro- vided relevant information on request; and

(C) the results of such examination are used only in accordance with this sub- chapter.


A recent case highlights on sometimes HIPAA's privacy rule won't cover an employee like the ADA's rule does. In Blanco v. Bath Iron Works Co. and General Dynamics Corp., (U.S. Dist. Ct. of Maine), No. 2:10-cv-00429-JAW, the plaintiff was terminated for failing to disclose his Attention Deficit Hyperactivity Disorder (ADHD) when he responded to the company’s post-offer, pre-hire Medical Surveillance History Questionnaire. According to the lawsuit, the in-house physician with whom Blanco discussed his post-employment request for a reasonable accommodation accused Blanco of failing to disclose his ADHD on the medical questionnaire. Blanco further alleged that the in-house physician discussed Blanco’s allegedly false responses to the questionnaire with management in General Dynamics’ Labor Relations Department. Blanco claimed that General Dynamics terminated his employment as a result of the disclosure. The case did not allege a HIPAA violation, but, instead, alleged an ADA violation.


The Court, in denying the employer's motion to dismiss the ADA violation count, held that the ADA’s confidentiality requirement to apply not only to disclosures to third parties outside the company (except in the limited circumstances described above), but also to inner-corporate disclosures. More to the point, if the complaint’s allegations turned out to be true, the in-house physician would have violated the ADA because her disclosure of Blanco’s medical information was not necessary for managers in General Dynamics’ Labor Relations Department to accommodate Blanco or to address a work restriction, and the other two exceptions obviously did not apply. The General Dynamics decision is particularly remarkable because the court held that the ADA protects even false medical information provided by an applicant or employee to an employer.

Wednesday, July 20, 2011

What Wisconsin's Concealed Weapon Law Means for the Workplace and Employment Law

Recently Wisconsin Governor Scott Walker signed the concealed weapon bill which allows residents 21 years and older to carry a concealed weapon – a handgun, electric weapon such as a taser, knife (other than a switchblade knife), and billy club – almost anywhere in the state, including most places of employment. Wisconsin will issue licenses to carry concealed weapons, subject to background check and training requirements. Since concealed weapons will be allowed in the workplace, what does that mean for employers and employees?

The new law contains provisions that address the workplace. Specifically, employers may still prohibit employees from carrying weapons during the course of their employment (at both work sites and off-site locations where employees are working). Significantly, however, employers cannot prohibit an employee from carrying or storing a weapon in his or her own vehicle even if that vehicle is used in the course of employment or where the motor vehicle is driven or parked on property used by the employer. In addition, an employer is not permitted to bar an individual from employment because he or she is licensed to carry a weapon.

Also expect to see somewhat comical signs posted in certain places. Businesses prohibiting persons (e.g., employees, visitors, customers, etc.) from carrying a weapon on their premises must post signs (no less than 5" x 7") prominently near entrances and other locations where persons entering the property or building can be expected to see the signs.

The law also protections employers from certain liability if they do not prohibit their employees from concealing. However, given the newness of the law and the many situations that can arise, it is not known how far the no-liability provision will extend. The provision would also not save employers from liability under federal law.

Like any new law implicating the workplace, this statute promises to create lots of new work for us employment attorneys. Employers will need to begin drafting policies to address the law and employees who want to conceal on the job or in the workplace will present issues for employers and counsel. Interesting times ahead!

Tuesday, July 19, 2011

Wisconsin Supreme Court Rules Worker's Comp Statute Does Not Require Employer to Accommodate

In a case overturning a worker's compensation administrative law judge, the Wisconsin Labor and Industry Review Commission (LIRC) AND circuit court, the Wisconsin Supreme Court upheld the Court of Appeals finding that LIRC applied an unreasonable interpretation of Wis. Stat. § 102.35(3), the statute for an unreasonable refusal to rehire. If you recall from my previous post, 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. At issue in this case was whether the employer failed to show reasonable cause for its refusal to rehire Swenson and if LIRC applied an unreasonable interpretation of § 102.35(3),, or based its conclusion on findings of fact that were not supported by credible and substantial evidence in the record.

The summary of this case's evolution is long and somewhat complex but the Supreme Court ultimately took issue with LIRC's finding that the employer violated the unreasonable refusal to rehire statute when it refused to change one of its policies for the employee-respondent. Specifically, the employee worked the graveyard shift because of his ailing father's needs and when the employer required an overnight check-ride, the employee-respondent requested an accommodation to complete the check-ride, which the employer refused to do. LIRC found the employer's unwillingness to accommodate the employee-respondent troubling and therefore found it reasonable to infer that Swenson's injury played a role in deBoer's refusal to rehire Swenson.

In reaching it's decision, the Supreme Court noted that there is no accommodation requirement present in the worker's compensation statute like there is in the Wisconsin Fair Employment Act (WFEA) (§ 111.34(1)(b)). Under § 111.34(1)(b), employers are required to make reasonable accommodations for employees with disabilities. See, e.g., Crystal Lake, 264 Wis. 2d 200.

The case also highlights the numerous unsettled issues surrounding the unreasonable refusal to rehire statute which are worth a read. The case is DeBoer Transportation v. Swenson, Docket: 2009AP000564 07-12-11.

Monday, July 18, 2011

Taking FMLA Leave to Care for a Parent or Parental Figure

Under the federal Family and Medical Leave Act (FMLA), an eligible employee may take leave to care for a covered family member, including a parent. A "parent" under the FMLA includes a biological, adoptive step or foster mother or father, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (e.g., under 18 years of age, or over 18 years of age an incapable of self-care due to a disability). 29 CFR 825. 122(b). In loco parentis means that the individual had day-to-day responsibility to care for or financially suport the employee when the employee was a son or daughter. 29 CFR 825.122(c)(3). Therefore, the parental relationship need not be legal nor biological.

To invoke the protections of the FMLA, the employee must notify his or her employer of the need for FMLA-qualifying leave. A lot of litigation surrounds this issue of notice and whether a sufficient amount was given to the employer by the employee in order to evoke the protections of the Act. The FMLA's notice requirements are not onerous. Basically, the employee must provide adequate information to the employer that the leave may be in need of FMLA leave. An employee doesn't even have to use the term or words "FMLA" to evoke protections. If the employer needs more information to determine whether the leave is covered by the FMLA, they are required to inquire further.

It is utterly important that an employee seeking FMLA leave pursuant to In loco parentis provide enough information to their employer to show the type of relationship required to take the leave--especially if there isn't a legal or biological relationship. Absent a legal or biological relationship it isn't always obvious that a person serves as a parental figure to qualify the employee for FMLA leave and that could get the employer off the hook in a subsequent suit.

Sunday, July 17, 2011

EEOC Settles Sexual Harassment Suit Against Wisconsin Company

The Equal Employment Opportunity Commission (EEOC) announced that it has settled a sexual harassment suit it had filed against Richardson Industries, doing business as Richco Structures. Richardson has agreed to pay more than $22,000 to settle the suit brought by a former employee who says she was sexually harassed at the company’s Christmas party. From the Wisconsin Journal article on the settlement:

The U.S. Equal Employment Opportunity Commission accused Richardson Industries, doing business as Richco Structures, of violating federal law when it fired Morgan Rae Brocker after supervisors allegedly reported to management that a supervisor had sexually harassed her at the party in December 2005.

District Judge Charles Clevert entered the consent decree Thursday that pays Brocker $22,500 and provides training for managers and supervisors.

Richco Structures has offices in Sheboygan Falls, Haven and De Pere and is part of Richardson Building Products division.

Monday, July 11, 2011

Wisconsin Court of Appeals Finds Employer Unreasonably Refused to Rehire Despite Attempt to Commit Fraud by Employee

The Wisconsin Court of Appeals released an opinion today (not to be published) upholding the Labor and Industry Review Commission (LIRC) and circuit court's decision finding that an employer, Advanced Transmission Service, LLC, (ATS), unreasonably refused to rehire an employee, Bradley Woodford, contrary to Wis. Stat. § 102.35(3) despite the fact evidence was presented showing Woodford asked ATS's owner to participate in a fraudulent scheme, and ATS did not want to employ someone who would "propose and perpetuate a fraud."

As I have discussed in a previous post, to recover under § 102.35(3), an employee must show that he or she sustained an injury in the course of employment and was subsequently terminated or denied rehire. In finding that Woodford met his burden and rebutted ATS' reasonable cause for the refusal to rehire, the Court stated:

Here, the Commission made the following factual findings in support of its conclusion that ATS lacked reasonable cause for refusing to rehire Woodford: (1) Woodford's elbow was still sore in July 2008; (2) Woodford convinced his physician to release him to return to work, even though his elbow was still sore; (3) Woodford would not have asked to be released had he known ATS did not have enough work for him; (4) during the July 24 conversation, Woodford told Effertz that his elbow was not fully healed and he wanted to go back to work for a week in order to reinstitute his existing worker's compensation claim; (5) by making this proposal, Woodford did not intend to do anything fraudulent; (6) Woodford did not realize that he did not need to return to work in order to reinstitute his worker's compensation claim; and (7) Effertz knew on July 24 that Woodford's elbow was not fully healed and that Woodford had "forced" his doctor to release him to return to work.

The Court and ALJ who decided the case at the administrative level also gave huge points to Woodford for his "extreme" honest and truthfulness relating to the fraud issue:

At the hearing [Woodford] was extremely honest and truthful. He did not deny that in July 2008, he told [Effertz] about going back to work so that he can go back to his doctor and then continue his eligibility to receive temporary disability benefits. He did not need to go back to work to receive temporary disability benefits and what he actually needed was for his doctor to state that he did not reach maximum medical improvement. On the other hand, Effertz was calculating and unconvincing. He was programmed to answer his questions in a manner to always include such terms as "fraudulent" and dishonesty. He calculated every step to see that he would have what he perceived to be legitimate reason so that he would not hire [Woodford] again. Simply, Effertz['s] testimony that he did not call [Woodford] to work for him in November 2008, because he was not willing to participate in a potential fraudulent scheme, is not convincing. [Woodford] wanted to go back to work so that he would receive wages which are higher than the temporary total disability benefits he was receiving.

(Emphasis added.) In its memorandum opinion, the Commission stated that it had "discussed the witnesses' credibility" with the ALJ, and the ALJ "did not credit Mr. Effertz['s] testimony that the only reason he refused to rehire [Woodford] in November 2008 was because of the proposal [Woodford] made in July 2008." Additionally, the ALJ "indicated that he found [Woodford] to be very credible and straightforward in his testimony that he did not intend anything dishonest or fraud[ulent.]" Based on its independent review of the record, the Commission "found nothing to warrant overturning the [ALJ's] credibility determination[s]."

The full opinion can be read here.

Thursday, July 7, 2011

Pursuing an ERD Complaint without a Lawyer

One of the odd aspects of being a labor & employment attorney is the fact I represent people who are more often than not unemployed and on a very tight budget yet, for the same reason we all work, I too have to be paid for my time and work. Defense counsel knows this fact and work that to their advantage when they are up against a complainant who is without an attorney (known as a pro se litigant) or dealing with a litigant who has private counsel because they know the complainant probably cannot afford to litigate their case to the fullest extent like the EEOC can with their tremendous resources.

I am often left conflicted and sometimes upset that I cannot help everyone with an employment issue because the potential client either cannot afford representation or the case isn't strong enough at the outset to risk a contingency fee arrangement. However, this does not mean that someone with an Equal Rights Division (ERD) complaint cannot win without an attorney in their complaint--it simply makes it more difficult.

A common area where pro se litigants get stumped and feel over-burdened is when the defense counsel sends out that first round of discovery requests in the form of interrogatories, requests for admissions and/or requests for production. Most calls I get from pro se litigants is around this time and at that point it may make an employment attorney's job more difficult depending on when the hearing is scheduled for. As most people have learned through the Casey Anthony case, evidence, direct or circumstantial, is everything and it's not what you know or believe, it's what you can prove. Discovery is the time to gather up that information and evidence to prevail in an employment discrimination claim.

While I remain highly sympathetic and mindful of the economic reality of people with employment complaints, I still encourage people to do their best to obtain counsel as soon as possible and assist in proving up their case.

Tuesday, July 5, 2011

DOJ Issues Suit Against Farmland Foods Alleging Immigration-Related Employment Discrimination

Late last month the Department of Justice announced a complaint it filed against Farmland Foods, Inc. in Missouri that alleged the major producer of pork products engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on non-U.S. citizens when establishing their authority to work in the United States. From the press release on the suit:

The department’s investigation revealed that Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth plant in Illinois to present specific and, in some cases, extra work authorization documents beyond those required by federal law. The Immigration and Nationality Act (INA) requires employers to treat all authorized workers in the same manner during the hiring process, regardless of their citizenship status. Farmland imposed different and greater requirements on non-U.S. citizens and foreign-born U.S. citizens as compared to applicants who were native-born U.S. citizens.

“Employers may not treat authorized workers differently during the hiring process based on their citizenship status,” said Thomas E. Perez, the Assistant Attorney General in charge of the Civil Rights Division. “Federal law prohibits discrimination in the employment eligibility verification process, and the Justice Department is committed to enforcing the law.”

The lawsuit charging Farmland with discriminatory practices has been filed before the Office of the Chief Administrative Hearing Officer (OCAHO) within the Executive Office for Immigration Review, another component of the Department of Justice.

The Office of Special Counsel (OSC) for Immigration Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the INA, which protects work authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification (Form I-9) process.

Bill Gives Businesses Tax Credit for Hiring Unemployed

Sen. Sheldon Whitehouse (D-RI) has introduced a measure, the Job Creation Tax Credit Act of 2011 (S. 1271), which proposes to provide businesses with tax incentives for hiring individuals in 2011 and 2012 who have been unemployed. The bill would expand on certain provisions in the HIRE Act of 2010 by giving employers refundable tax credits of 15% of wages paid in 2011 and 10% of wages paid in 2012 for qualified new hires.

A "qualified" individual under the bill would be those who (a) begin employment with the employer after the date of the bill’s enactment but before January 1, 2013; (b) have not been employed for more than 40 hours during the 60-day period before the date of hire; and (c) are not being hired to replace another employee unless that employee left work voluntarily or for cause.

For more, here is the press release on the bill from Senator Whitehouse's website.