Monday, October 31, 2011

EEOC Issues Advisory Opinion on Use of Arrest & Convictions Records in Hiring Process



As most Wisconsinites are aware, the Wisconsin Fair Employment Act (WFEA) specifically prohibits discrimination in employment based upon arrest and conviction record.  However, most states do not provide this protection and there is no federal law to protect the entire country which has cased the Equal Employment Opportunity Commission (EEOC) to get creative and innovative to find a cause of action where protection is needed and a trend in employment discrimination is occurring.  As can be reasonably understood. minorities tend to be the impacted most by arrest & conviction discrimination so the EEOC has announced that it will consider disparate impact suits under Title VII of the Civil Rights Act of 1964 where they see fit.  Specifically, in an unbinding advisory opinion letter, the EEOC stated that it:
(1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.
This position by the EEOC impacts Wisconsin residents little except for maybe where a class-action type of action could be considered.  Though Wisconsin offers arrest & conviction record discrimination, it does remain an unclear area that has little court and administrative law precedent and appears to be applied inconsistently by the Equal Rights Division.  I enjoy and get excited about interesting and blatant violations under the WFEA but it can be discouraging given the law's inconsistent application of the "substantially-related" defense and sometimes bizarre application but I always encourage complainants to pursue their rights under the WFEA.

Compensable Time Expanding: Starting Up the Computer and Checking E-Mails May be Compensable!

Recently the Department of Labor (DOL) announced a major settlement with Hilton Reservations Worldwide, LLC in the amount of $715,507 for minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania.  In arriving at this settlement, the DOL's audit revealed that Hilton Reservations failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails.


The DOL has been focusing on call centers heavily lately but the issue of pre- and post-shift activities is not unique to call centers.  Having a slow, old computer may pay off after all!

Sunday, October 30, 2011

Wisconsin's Department of Workforce Development Loses Second Secretary in Under a Year



Manny Perez resigned five months after Gov. Scott Walker named him the Secretary of the Department of Workforce Development, the agency that handles the State's unemployment and discrimination matters, among other things, and now Scott Baumbach has resigned after just four months on the job.  Walker has since announced that Reggie Newson, who had been serving as executive assistant at the Department of Transportation, was taking over as secretary effective Monday.


Strange happenings at the DWD!

Tuesday, October 25, 2011

FMLA Leave for Victims of Domestic Violence

Legislation has been reintroduced into Congress by Rep. Lynn Woolsey (D-CA) that would allow employees to take leave under the Family and Medical Leave Act (FMLA) to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partner and same-sex spouse), parent or child.  The bill, the Domestic Violence Leave Act (H.R. 3151), could be used to seek medical attention for injuries; obtain legal assistance or remedies; participate in a legal proceeding; attend support groups or therapy; and participate in safety planning, among other related activities held during work hours. An employee would be able to substitute paid leave for the leave provided under this bill. An employer would be entitled to seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the measure, but would be required to keep such information confidential. In lieu of such written documentation as police reports or witness statements, an employee would be able to satisfy the certification requirement by providing a written statement describing the reason for taking leave.

Monday, October 24, 2011

Employment Case Law Update

--Bonefont-Igaravidez v Int’l Shipping Corp, 1stCir, October 14, 2011, No. 10-1953:   Court of Appeals for the First Circuit AFFIRMS lower court's grant of summary judgment on plaintiff's Age Discrimination in Employment Act (ADEA) claim.  Plaintiff worked for Defendant-Employer for 57 years and prior to his termination had taken medical leaves and returned to be the butt of jokes about his age and medical conditions, often in the presence of supervisors.  This in turn led to an incident whereby the plaintiff attacked one of his superiors (who was also over the age 60) for teasing him which then led to his termination.  Plaintiff then sued under the ADEA.


Because the plaintiff lacked direct evidence of age discrimination, the McDonnell-Douglas burden-shifting scheme was evoked and the employer conceded that the plaintiff made out a prima facie case of age discrimination but asserted it possessed a legitimate non-discriminatory reason (LNDR) for terminating the plaintiff when he attached his supervisor, which the court held was legitimate and that plaintiff failed to show that this was pretextual despite the fact the plaintiff presented evidence that younger employees engaged in similar behavior but were not terminated (apparently the fights were somehow substantially different though the court does not describe how).   


--Dorvil v Burlington Coat Factory Warehouse Corp, DNJ, October 14, 2011, Case No. 09-5778:  Defendant-Employer's motion for summary judgment DENIED.  Plaintiff is a Haitian immigrant with a thick accent and managed to climb his way all the way up to a management position that oversaw some 170 employees.  Upon receiving a new supervisor, the plaintiff, on a weekly basis, began experiencing teasing and mockery due to his hard-to-understand accent which ultimately made the plaintiff feel as though his ability to supervise was undermined due to the involvement of his subordinates in the teasing.  Over time the plaintiff's relationship with his new supervisor deteriorated and the racially-motivated teasing escalated to name-calling and "hostile gestures."  Plaintiff also offered up other incidents that did not have racial-components but proved to be racially-motivated.  


To his surprise, the plaintiff, despite years of above-average performance and positive annual reviews, found himself placed on an performance improvement plan (PIP) which gave him a month to improve work performance or be terminated.  Plaintiff was terminated.  Using the plaintiff's previous decade of satisfactory work, the racially-motivated teasing and comments and the fact plaintiff was replaced with a white woman, the court found that plaintiff made out a prima facie case for race discrimination.  Defendant-employer showed a LNDR through plaintiff's flunking his PIP, which plaintiff was able to show was pretext because it was reasonable to believe plaintiff was placed on the PIP because of his race due to a lack of performance issues in the decade prior to his termination.  This all created issues of triable fact for the plaintiff.  


--Been v New Mexico Dept of Info Tech, DNM, September 30, 2011, Case No. 6:09-cv-00726 MV/WDS:  In a case of super-specific facts, Plaintiff, after being terminated while tending to pregnancy-related problems, filled several claims against her former employer, including, inter alia,  FMLA interference, pregnancy and sex discrimination which then led to a plethora of dispositive motions by both parties.  


Regarding plaintiff's pregnancy/sex discrimination claim, the court held that plaintiff made out a prima facie case for pregnancy discrimination and that the employer's LNDR was pretextual given the employee's clear attempts to keep the employer abreast of her work absences attributed to her pregnancy's complications which created triable issues of fact for a jury.  Regarding plaintiff's FMLA interference and retaliation claims, the court held  that plaintiff's FMLA interference claim could proceed because a jury could reasonably conclude that plaintiff's FMLA rights were interfered with as she was fired while on leave and it is disputed whether plaintiff did follow the employer's leave policies.  Likewise, the court found that a jury could reasonably conclude that plaintiff's was retaliated against for asserting FMLA rights as the defendant took too narrow a view of when an employer is placed on notice of an employee's request for FMLA and re-highlighted the fact that an employer’s duties under the FMLA are triggered so long as “the employer is on notice that the employee might qualify for FMLA benefits.”  Once again, because it was clear prior to her termination that she was off for pregnancy-related issues and because plaintiff was terminated while on leave, defendant's motion for summary judgment on the retaliation claim was denied also.


--Beem v Providence Health & Srvs, EDWa, October 13, 2011, Case No. CV-10-0037-JLQ:  Defendant-employer's motion for summary judgment on plaintiff's disability discrimination claim DENIED but on plaintiff's FMLA claim GRANTED.  A habitually tardy employee’s claim that the employer violated the ADA when it refused accommodations for her tardiness survived summary judgment, ruled a district court in Washington, where fact issues remained on whether the employer met its continuing obligation to engage in the interactive process with the employee.  The employee’s FMLA claim was dismissed, however, because not only was there no legal basis for using intermittent leave to cover tardiness, but the employee failed to submit an application for FMLA leave with respect to her tardiness.

Monday, October 17, 2011

Target Worker Fired for Working Through Lunch Break

In case being labeled "ironic" by the plaintiff, an 8-year veteran of Target stores, Jason Kellner, has filed suit in federal court after being terminated for working while on his lunch break.  The suit, however, is a retaliation charge as Kellner, along with several other Target employees, had been an outspoken opponent of the store's break policy (employees are not allowed to work while off the clock for overtime pay purposes).  Kellner claims that though policy does not allow employees to work while off the clock, he was routinely not given uninterrupted breaks because he was often needed for to address problems that occurred during his break.  Coincidentally, Kellner had met with an "investigative manager" about the issue just two weeks before his termination.  Target did not respond to the suit when contacted by the Huffington Post who had the story.

Sunday, October 16, 2011

Federal Court in CT Rules Pregnancy Discrimination Act Protects More Than the Pregnant

In another admirable court decision that recognizes the flexibility and intent of discrimination law, a federal court in Connecticut recently held in Canales v. Schick Manufacturing, Inc., 2011 WL 4345006 (D. Conn. Sept. 15, 2011) that a woman does not have to be pregnant at the time of discrimination under the Pregnancy Discrimination Act in denying the employer-defendant's motion for summary judgment.  In Canales the employee was terminated while out on maternity leave and the court, citing the language of the Act, held that the Act does not just cover pregnancy but "childbirth," as well.  (The Pregnancy Discrimination Act, which protects "women affected by pregnancy, childbirth, or related medical conditions.").

Milwaukee Ranked 6th Best City for Working Mothers

According to Forbes, if you're a working mother, Milwaukee is a pretty good place to be, ranking in at #6!

Monday, October 10, 2011

Hertz Fires 34 Drivers at Seattle Airport for Praying on Company Time

Not only is it beyond crazy to fire 34 people all of the same national origin and religion for engaging in a religious activity, but it was done only two years after the EEOC helped unionize the same workplace where an agreement was reached that allowed workers to clock out to pray during their two 10-minute breaks.  On top of that, the clock out policy was never enforced.  However, in arbitrary fashion, that policy suddenly became enforceable and was used to terminate 34 workers--all Somali Muslims--for not clocking out before praying, reports the Seattle Times.


Hertz is claiming that the workers were warned repeatedly prior to their suspensions about clocking out and that those who did clock out before praying were not fired.  However, as is typical in employment law disputes, the employees cite different facts:
Zainab Aweis told the newspaper she was unaware of any rule change and was simply warned, along with other Hertz drivers, by a manager on Friday that they could not pray, not that they were required to clock out first.
"He said, 'If you guys pray, you go home,' " she recounted. "I said, 'Is that a new rule?' And he said, 'yes.' "
When they went ahead and prayed anyway, as religious Muslims do up to five times daily, they were taunted, she says.

Tuesday, October 4, 2011

Employment Case Law Update

Not a good week for plaintiffs:


--Michaels v Continental Reality Corp, DMd, Civil Action No. RDB-10-1998:  Defendant's motion to dismiss plaintiff's ADA claim GRANTED.  Plaintiff's disability discrimination claim was based on the fact he was obese, weighing in over 400lbs.  However, plaintiff unerwent a surgical procedure that lowered his weight by 100lbs which then allegedly resulted in mental and physical problems which required accommodations from the employer though it was never quite made clear by the plaintiff to the employer that his requests were related to any qualifying disability.  Plaintiff was later presented with resignation paperwork that he did not sign, was deemed a resignation and then filed a charge with the EEOC alleging disability discrimination.
In dismissing the plaintiff's claim, the court noted that "...simply being overweight or obese has generally not been viewed as constituting a disability."  They do note, however, that according to the EEOC, in rare circumstances it "may" rise to the level of "disability impairment."  Despite the fact the plaintiff alleged that it was "plainly visible" and "transparent" that he was obese still did not put the employer on notice that he had a qualifying disability under the ADA as the court noted the plaintiff was able to perform his job duties and responsibilities.
This case also emphasizes the need to plead employment discrimination cases with particularity in light of the Supreme Court's decision in Twombly as many of the plaintiff's claims were dismissed for failure to plead a prima facie case of discrimination, retaliation, etc.


--Warren v The Shaw Group, Inc, DNev, Case No.: 2:10-cv-01116-GMN-GWF: Defendants' (the employer and union involved) motions for summary judgment GRANTED on plaintiff's religious discrimination claim.  Plaintiff filed a religious discrimination claim under Title VII after refusing to provide his social security number to drug-testing personnel.  So what was the plaintiff's bona fide religious belief?  Plaintiff claimed to hold a religious belief that social security numbers are the “sign of the beast” as described in the last book of the Bible, Revelation.  However, plaintiff would give his SSN out for employment and tax purposes, which is what allowed the defendant to argue that the plaintiff had an inconsistent use of his SSN, therefore, he did not have a bona fide religious belief.  The court agreed.  However, even if he did have a bona fide religious belief regarding the use of his SSN, plaintiff also failed under the second prong of his burden because he also could not show that he informed anyone of this belief.  Thus, it was only through plaintiff's lawsuit that the defendants learned of this "religious belief."


--Veliz v Collins Bldg Svs, Inc, SDNY, Case No. 10 Civ. 06615 (RJH):  Defendant's motion to dismiss plaintiff's Title VII and ADEA claims of national origin and age bias and reprisal because his claims were subject to mandatory arbitration under the applicable collective bargaining agreement.  The court also dismissed the employee’s Title VII and ADEA claims against several individual defendants because individuals cannot be held liable under either statute.