Tuesday, December 11, 2012

What Does "Right to Work" Mean?

The last several days and weeks in Michigan (my home state) have been intense as legislation pended regarding making Michigan a "right to work" state.  Today Michigan Governor Rick Snyder signed the legislation into law, inciting a mob scene at the Capitol in Lansing.  But what exactly is a "right to work" state and why did it spark such controversy and anger amongst many people there?

Michigan is only the 24th right to work state as of this week.  A right to work law simply prohibits union security agreements.  While the Taft-Hartley Act outlawed "closed shops" (agreements that required employers to only hire union members), it is still lawful to require employees to pay union fees if a union security agreement is in place in a workplace (the "union shop").  Despite the term, "right to work," it is not any sort of guarantee or literal right to people seeking work.  Many argue over the pros and cons of right to work laws and the jury is still out on whether it benefits the economy by being a right to work state.

Pros and Cons of Right to Work Laws

Proponents of right to work laws hang their hat on the Constitutional right to freedom of association and that it is unfair to require employees to be forced to pay union dues as a condition of continued employment.  Opponents argue that right to work laws create free rider problems whereby employees who don't pay union dues benefit from due-paying employees, essentially earning a subsidy on benefits earned under the collective bargaining agreement.  It is also arguable that right to work laws weaken unions substantially, which is typically why Republicans tend to be right to work advocates.  After all, if employees can obtain all of the benefits of a union without paying for them, why would anyone pay and this would potentially lead to the elimination of the union altogether due to lack of support. 

Economic Impact of Right to Work Laws

As mentioned above, it is still unclear precisely if right to work laws are beneficial for the economy.  However, the Economic Policy Institute (EPI)a non-profit, non-partisan think tank, says the laws and other anti-union measures lower wages—for both union and non-union workers alike—by an average of $1,500 per year, after accounting for the cost of living in each state.  Other findings from the EPI's February 2011 report found:

  • Wages in right-to-work states are 3.2% lower than those in non-RTW states, after controlling for a full complement of individual demographic and socioeconomic variables as well as state macroeconomic indicators.  
  • The rate of employer-sponsored health insurance (ESI) is 2.6 percentage points lower in RTW states compared with non-RTW states, after controlling for individual, job, and state-level characteristics. If workers in non-RTW states were to receive ESI at this lower rate, 2 million fewer workers nationally would be covered.
  • The rate of employer-sponsored pensions is 4.8 percentage points lower in RTW states, using the full complement of control variables in our regression model. If workers in non-RTW states were to receive pensions at this lower rate, 3.8 million fewer workers nationally would have pensions.

Many states justify right to work laws as a way to survive with several states in New England and in the northern Midwest are now considering right-to-work proposals.  Recognizing that businesses are magnetized to right to work states makes it necessary to revisit our country's history with the labor movement and why a trend of right to work states will set us back decades to before the New Deal.

The Workplace Pre-New Deal

Prior to the New Deal, every single state in the United States was a right to work state.  Though the free labor market was an important factor in the rapid economic growth of the union after the Civil War, many critics began arguing that employment at-will was a sham given the overwhelming bargaining power of businesses and corporations.  The disparity in bargaining power led to the uprising of labor unions who tried to reform the industrial labor-relations system.  Early efforts toward this end usually involved a a voluntary association of workers who attempted to work in aggregate to bargain with employers on conditions of employment, wages, hours, etc.  The problem was that employers didn't have to bargain with unions and could fire employees who were a part of unions.  The only other thing employees could then do was go on strike but employers could then simply replace them with other workers who needed the work.  Employees were simply unprotected and at the mercy of employers.  

As employers began using the court system to prohibit strikes, the need for legislation to address employer-labor relations became apparent.  Slowly over time, unions found their way through New Deal legislation and the 1935 National Labor Relations Act (NLRA) (or, the "Wagner Act").  The NLRA, among many other things, required employers to bargain with whatever union the majority of the employees chose and any resulting collective bargaining agreement could include requirements that an employer only hire union members (the "closed shop") or force new employees to join the union (the "union shop")--which was later made unlawful, if a state chose, with the passage of the 1947 Taft-Hartley Act.  However, at last, labor now had laws to give them greater bargaining power when approaching employers for better working conditions and terms.  But with the passage of right to work laws, currently unionized employees could find themselves virtually on-par with at-will employees all over again.

It is left to be seen the effects of the right to work law in Michigan but if the statistics hold true, Michigan employees might soon see a dip in their wages and benefits due to weakened union power.  

Monday, December 10, 2012

EEOC Plans to Heavily Attack Pregnancy Discrimination in the Workplace

The Americans with Disabilities Act Amendment Act (ADAAA) was enacted to address the heavy burden plaintiffs faced in court in proving disability discrimination.  With expansion of those rights in the workplace the Equal Employment Opportunity Commission (EEOC) has announced that it will use the ADAAA to target unaccommodated pregnancies that the Americans with Disabilities Act (ADA) (which doesn't consider "ordinary" pregnancy a disability) and Title VII (under the Pregnancy Discrimination Act (PDA)) did not previously protect.  Specifically, EEOC Legal Counsel Peggy Mastroianni asserted that with the expansion of covered disabilities under the ADAAA, certain common pregnancy-related conditions such as gestational diabetes, carpal tunnel syndrome, sciatica and anemia may now be deemed covered disabilities.

"Ordinary" pregnancy is not covered under the ADA and under the PDA, courts have held that employers generally haven’t been required to provide accommodations for pregnant women unless they provide them for “similarly situated employees” with temporary disabilities.  Coupled with the EEOC's new strategic plan, earlier I wrote about the legislation currently in the works in Congress, the Pregnant Workers Fairness Act which seeks to protect pregnancies and require employers to accommodate pregnant workers unless they can prove an undue hardship.


Pregnant workers, especially those with complicated pregnancies who are having trouble obtaining accommodations in the workplace are highly encouraged to seek legal counsel and advice as it could lead to assisting in the expansion of pregnant workers' rights under the ADAAA.

EEOC Files Suite Against UPS for Firing Jehovah's Witness Over His Request to Attend Annual Service

The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit against package delivery company, United Parcel Service (UPS), alleging it violated Title VII when an employee at their Saddlebrook, New Jersey facility was terminated because of his request to attend an annual Jehovah's Witness service.  

From the EEOC press release on the lawsuit: 

According to the EEOC's suit, UPS failed to accommodate the  request of a newly hired truck loader at its Saddle Brook, N.J. facility to  modify his schedule so that he could attend the Memorial of Christ's Death, an  annual religious service, pursuant to his beliefs as a Jehovah's Witness.  The employee requested that he either start a  different day, start later than his scheduled time on his start date, or be  given an hour's leave during his shift to attend the ceremony and return to  work.  UPS denied his request, the EEOC  said, requiring that he report to work as scheduled, and told him this was  non-negotiable.  When the employee  refused to compromise his religious beliefs and attended the Memorial instead of  reporting to work, UPS fired him.  UPS  also assigned him a "do not hire" status, and refused to hire him when he  applied for a different position at UPS's Staten Island facility.
This alleged conduct violates Title VII of the Civil Rights  Act of 1964.  The EEOC filed the lawsuit  in the U.S. District Court for the District of New Jersey (Civil Action No.: 2:12-CV-07334)  after first attempting to reach a voluntary settlement out of court.
Religious accommodations are similar to accommodations made for disabilities.  They are not automatically granted and are only disallowed if the employer can prove the accommodation would prove to be an "undue hardship."   

Tuesday, December 4, 2012

Obama Quietly Signed Law Protecting Federal Whistleblowers

Recently, President Obama signed a law that had been struggling to pass in Congress for 13 years.  The Whistleblower Protection Enhancement Act (WPEA) affords greater protection to federal employees who expose fraud, waste and abuse in government operations.  The WPEA closes loopholes created by court rulings, which removed protections for federal whistle-blowers. One such loophole specified that whistle-blowers were only protected when they were the first to report misconduct. 
The whistle-blower law makes it easier to punish supervisors who try to retaliate against the government workers.

Despite this significant passage, the Government Accountability Project (GAP) still says there's still more protection needed for federal employees.  The WPEA does not include jury trials to enforce newly-enacted protections, or the extension of free speech rights to national security workers making disclosures within agency channels. While the House removed the national security whistleblower provision from the bill, last month the Obama administration made good on its promise to take executive action on those rights, signing a Presidential Policy Directive to restore the lion's share of national security rights that the House removed.


1.) Expanded Protection for Disclosures of Government Wrongdoing
  • Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)
  • Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)
  • Cancels the 1999 precedent that translates "reasonable belief" to require irrefragable proof ("undeniable, uncontestable, or incontrovertible proof") before they are eligible for protection. (Sec. 103)
  • Protects government scientists who challenge censorship. (Sec. 110)
  • Codifies and provides a remedy for the "Anti-Gag" Statute – a rider in the Appropriations bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations. (Sec. 104(a), (b) and 115)
  • Clarifies that protection of critical infrastructure information does not override WPA protection. (Sec. 111)
2.) Expanded Coverage and Fair Processes
  • Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
  • Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)
  • Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers' presenting their evidence of retaliation. (Sec. 114)
  • Requires that the President's exercise of his discretionary power to impose national security exemptions that deprive employees of Title 5 whistleblower rights must be done prior to the challenged personnel action. (Sec. 105)
  • Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).
3.) Administrative Authorities
  • Provides the Office of Special Counsel (OSC) with authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. (Sec. 113)
  • Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).
  • Requires the designation of Whistleblower Protection Ombudsmen in Inspectors General Offices to educate agency personnel about whistleblower rights. (Sec. 117)
  • Requires the MSPB to report on the outcomes of whistleblower cases, from the administrative judge through the Board appeal, in its annual reports. (Sec. 116(b))
  • Requires the Government Accountability Office (GAO) to study the impact and feasibility of changes in the number and outcome of cases before the MSPB, the Federal Circuit, or any other court; and to provide recommendations to Congress regarding whether the MSPB should be granted summary judgment authority and whether district courts should have jurisdiction over some WPA cases. (Sec. 116)

Tuesday, November 27, 2012

7th Circuit Holds Employer's Revealing Former Employee's Migraine Problems in Reference Check Does Not Violate ADA

Gary Messier was hired by a technology consulting agency to work as a temporary programmer for defendant Thrivent.  During the court of his employment with Thrivent, Messier missed work one day which prompted his supervisor, Thomas Brey, to email Messier to “inquire” about his absence. Late in the day, Messier responded that he had a severe migraine headache condition resulting from a major car accident in the 1980s.

After Messier quit his position with the temp agency and Thrivent, he experienced difficulty finding new employment which prompted him to use a service that acts as a potential employer for purposes of obtaining reference checks to see if he was being disparaged by his former employers.  These reference checks revealed that Thrivent was revealing information about Messier's migraine condition.  Specifically, Thrivent said:

"[Messier] has medical conditions where he gets migraines.  I had no issue with that.  But he would not call us.  It was the letting us know."

The EEOC found "reasonable cause" that discrimination occurred arguing that this reference from Thrivent violated the Americans with Disabilities Act's (ADA) requirement that employee medical information obtained from "medical examinations and inquiries" must be "treated as a confidential medical record."  42 U.S.C. sec 12112(d).

Summary judgment was granted by the district court holding that Thrivent learned of Messier's migraine condition outside the context of a medical examination or inquiry.  Therefore, the court held, the confidentiality provisions of 42 U.S.C. sec. 12112(d)(3) did not apply.  The Court of Appeals for the Seventh Circuit agreed and held Thrivent had no duty to treat its knowledge of Messier's migraine condition as a confidential medical record.

In making their argument, the EEOC first argued that Messier's email disclosure would be covered by 42 U.S.C. sec. 12112(d)(3)(B) if one or both of the following were true:

(1) Thrivent learned about Messier's migraine condition in the course of conducting a medical inquiry, or
(2) Thrivent learned about Messier's migraine condition in the course of conducting "inquiries into the ability of an employee to perform job-related functions" under 42 U.S.C. sec. 12112(d)(4)(B)

The EEOC conceded (1) did not apply and focused on (2) and argued that "inquiries" refers to all job-related inquiries and urged the Court to adopt its liberal interpretation of 42 U.S.C. sec. 12112(d) because it is "consistent with clear congressional intent."  However, this argument failed and the 7th Circuit held that 42 U.S.C. sec. 12112(d) has a "plain meaning" that cannot be ignored. 

The EEOC also pointed to precedent in other circuits but the 7th Circuit noted that in each case the EEOC cited, the employer already knew something was wrong with the employee before initiating interaction in order for that interaction to constitute a 42 U.S.C. sec. 12112(d)(4)(B) inquiry.  Thrivent, prior to Messier's email, had no knowledge of Messier's migraine issues and, therefore, not a medical inquiry because, for all they knew, Messier's "absence was just as likely due to a non-medical condition as it was due to a medical condition."

The case is EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (Nov. 20, 2012).

Monday, November 26, 2012

Another FMLA Case Blown by an Employee's Facebook Page

I am a bit late in posting this as I have been utterly swamped in work but I wanted to make a point to highlight a case that received a lot of attention recently.  The case involves an employee who worked as a customer service representative at Advantage Health Physician Network, and, as the job title suggests, the employee's primary duties involved sitting at a desk answering calls.  The employee, Sara Jaszczyszyn, first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four "flare ups" per month and that each flare up could last anywhere from a few hours to a few days.  When they occurred, Sara could not perform all of her job functions.  However, Sara began a pattern of what appeared to be FMLA abuse and what ultimately got her fired was her Facebook posts as viewed by coworkers, some of which covered for her while she was on FMLA leave.  

While Sara was on FMLA leave, she attended "Pulaski Days," a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara's co-workers weren't amused, since they "were covering for her" (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren't, several of Sara's co-workers complained to their boss, who then viewed the Facebook pictures.  Sara was then fired, but not immediately.  Sara then filed FMLA retaliation and interference claims, which were ultimately dismissed.  

From FMLA Insights write-up of the case: 
After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was "completed incapacitated."   
Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her "complete incapacitation" and the Facebook photos.  Sara's response?  She "was in pain at the festival and was just not showing it."  After that excuse failed miserably, her next response was telling.  You guessed it: silence.  

Starbucks Loses Another Major Tip Pooling Case, Must Pay $14 Million

Starbucks is appealing a court in Massachusett's award of $14 million to Starbucks baristas who worked for the coffee giant in Massachusetts from 2005 and 2011.  Starbucks lost its argument that shift supervisors should be classified as wait staff and partake in shared tips because they have no actual “managerial responsibility,” Justice News Flash reports.

From the JusticeNewsFlash.com article on the appeal:  
In January 2012, Judge Nathaniel Gorton made his final ruling, awarding the plaintiffs $7.5 million in damages, as well as prejudgment interest at a rate of 12 percent per annum. The plaintiffs were also awarded triple damages for more recent violations, totaling $6.6 million that were made mandatory by current state wage-and-hour claims, as amended in July 2008. 
Starbucks maintains that their shift supervisors are correctly classified as “wait staff,” because they only have “limited supervisory” tasks and no actual “managerial responsibility.” The coffeehouse giant also asserts that the ruling is contradictory to the law on tips in Massachusetts, which is to ensure that service employees are the ones that receive the tips from customers. Furthermore, they claim that the plaintiffs named in the lawsuit don’t actually represent the interests of the numerous former baristas that have been promoted to shift supervisors and who now reap the benefits of the current tip policy. 
In addition, Starbucks maintains that the court erred with the treble damages provision because the law allows punitive damages without showing that the punished conduct was reprehensible.
In typical employee misclassification cases employers do the opposite and claim employees who should be classified as hourly staff is management to skirt around paying overtime but in this case Starbucks did the opposite and claimed members of management were akin to hourly staff.

Wednesday, November 14, 2012

November Edition of the Employment Law Blog Carnival is Up!

This month's edition of the employment law blog carnival was hosted by the man who started it all, Attorney Eric B. Meyer and is available here for your reading pleasure.  Enjoy!

Sunday, November 11, 2012

Court Allows Plaintiff to Use Statistics to Help Rebut Employer's Legitimate Non-Discriminatory Reason

In an interesting case out of a New York County Supreme Court case (remember that in New York the Supreme Court is the primary civil court), a plaintiff was allowed to rely on statistics regarding favorable treatment of African-Americans to help prove his national origin discrimination claim.  

The case involved an Assistant Principal of a New York public high school, who was of Hispanic descent, claimed that his most recent favorable positive performance evaluation ("satisfactory") was down-graded (to "unsatisfactory"), that he was not retained under his five-year probationary service agreement, and that he was fired after four years of exemplary service, all by an African-American principal who came to the school shortly before his discharge.  The new principal asserted that the actions were due to the plaintiff's unsatisfactory work record and violation of the conflicts of interest policy, accusations the Assistant Principal denied.  

The New York Court allowed the case to proceed against the employer partially because of statistical evidence offered by the plaintiff:
Before the new principal's arrival, four of the 11 Assistant Principals at the high school were not African-American (three Latinos, one West Indian, and one Caucasian).  Under the new regime, all four non-African-Americans were let go and replaced by African-Americans.  Likewise, all the African-American Assistant Principals were retained or replaced by other African-Americans.  This changed the percentage of African-American Assistant Principals from 64% to 100%.
I applaud the court for being open to considering evidence in all forms and as the famous saying goes, "numbers don't lie."  

The case is Dominguez v. Dept. of Educ., 2012 NY Slip Op 51899(U) (N.Y. Sup. Ct., New York County, Sept. 28, 2012).  

(Hat tip: Attorney Ted Olsen's article on JD Supra.) 

Monday, November 5, 2012

Employer Takes Over Employee's LinkedIn Account, Loses Computer Fraud and Abuse Act Claim

A case that has gained attention as of late involves an employee who filed suit in federal court citing both state and federal law--namely, the Computer Fraud and Abuse Act (CFAA)--over the ownership of the employee's LinkedIn account created during the scope of her employment.  A District Court in Pennsylvania entered judgment in favor of the employer holding that the employee's allegations of the loss of potential business opportunities, goodwill, and/or interference with customers are not cognizable losses under the CFAA, even though it was undisputed that the employee lost control of the LinkedIn account after she was terminated. 

The facts are a bit odd and show the importance of keeping your social media completely private, even on LinkedIn even if you think it may help advance your career.  From the brief article on the case: 

This dispute involved Edcomm, a banking education company, and its former president and majority shareholder, Dr. Linda Eagle.  During Dr. Eagle's tenure, Edcomm's chief executive officer recommended that all employees maintain a LinkedIn account.  The company generally followed a policy that once an employee left the company, Edcomm effectively owned the account and could "mine" the information and incoming traffic. 
After Edcomm terminated her employment, Dr. Eagle unsuccessfully attempted to access the LinkedIn account that she developed during her employment.  The company had changed Dr. Eagle's password so that she would no longer have access and changed her profile so that her replacement's name and picture appeared instead of Dr. Eagle's.  After being unable to access the account from late June 2011 through July 12, 2011, Dr. Eagle ultimately managed to regain access but continued to be unable to receive messages for a substantial period of time thereafter.
Dr. Eagle sued Edcomm for violations of the CFAA, the Lanham Act, and several claims arising under Pennsylvania state law including invasion of privacy, misappropriation of publicity, identity theft, conversion, tortious interference with contract, civil conspiracy, and civil aiding and abetting.  Dr. Eagle claimed she suffered damages because she was unable to access her account and receive communications from clients and prospective clients. 
While the Court granted summary judgment on the employee's CFAA claim, it has allowed the state law claims to advance which may provide some protection for employees moving forward.  Very interesting case to continue watching.

Sunday, November 4, 2012

Employee Rights on Election Day

I've written about this in the past and am unaware of any changes in the law so, to summarize again this year, employees may vote this Tuesday and employers must follow these rules per Wis. Stat. sec. 6.76:

(1) Any person entitled to vote at an election is entitled to be absent from work while the polls are open for a period not to exceed 3 successive hours to vote. The elector shall notify the affected employer before election day of the intended absence. The employer may designate the time of day for the absence.
(2) No penalty, other than a deduction for time lost, may be imposed upon an elector by his or her employer by reason of the absence authorized by this section.
(3) This section applies to all employers including the state and all political subdivisions of the state and their employees, but does not affect the employees' right to holidays existing on June 28, 1945, or established after that date.
So, get out and vote this Tuesday!

Wednesday, October 31, 2012

NLRB Releases More Guidance on At-Will Clauses in Employee Handbooks

A recent decision by the NLRB finding that an employer's provision in an employee handbook regarding at-will employment violated the National Labor Relations Act (NLRA) made major buzz and has led to a call for guidance.  Today, the NLRB's general counsel, Lafe Solomon, released an analysis of at-will employment clauses in two employee handbooks, finding that both are lawful under the NLRA.  

From the NLRB press release on the analysis:  

As both memos explain, an employer violates the Act by maintaining work rules or policies that explicitly prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with coworkers. Even if not explicit, a rule can be unlawful if employees would reasonably construe the language to prohibit such activity.
The clause in a handbook maintained by Rocha Transportation in Modesto, California advised drivers that their employment is at-will and may be terminated at any time. “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will,” it continued. “Only the president of the Company has the authority to make any such agreement and then only in writing.” The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that their NLRA rights are prohibited.
At Mimi’s CafĂ© in Casa Grande, Arizona, the Teammate Handbook description of at-will employment includes the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The Advice Memo found this was not unlawfully broad because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.
Because this issue remains highly unclear and unguided, the NLRB is still asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination. 

Tuesday, October 30, 2012

Wisconsin Woman Settles Age Discrimination Suit for $32,500

The Equal Employment Opportunity Commission (EEOC) announced a settlement in an age discrimination suit it filed on behalf of a Shawano woman, Sharon Passon, 60, who was fired as the billing specialist for Computer Systems LLC, of Shawano, in April 2010, while the company kept a 34-year-old employee who was less qualified for the job, according to the complaint.   From the Milwaukee Journal Sentinel article on the settlement:
A consent degree settling the lawsuit, which was entered by U.S. District Judge William C. Griesbach on Friday, provides that Computer Systems pay Passon $32,500 and prohibits further discrimination. Also, if the company, which was sold later in 2010, resumes operations, it will be required to train its managers and supervisors about an employer's obligations and the rights of employees under the Age Discrimination in Employment Act.
 
Congrats to the EEOC on obtaining this settlement! 

Employer Communications and Elections


Late last week a memorandum sent by the the chairman and owner of Rite-Hite, a major Milwaukee manufacturer of industrial equipment, Mike White, to all employees essentially forecasting what he perceived to be the terrible effects of voting President Obama back into office made major waves.  That email upset a lot of employees and led to an outcry.  The Milwaukee Journal Sentinel highlighted the story but this type of behavior by employers around election time is nothing new as earlier this month an email sent out by the Koch Brothers to its employees supporting candidate Romney sparked outrage and Wynn Resorts, the third-largest casino operator in the U.S., recently mailed a "2012 General Election Voter Guide" to its 12,000 employees in Nevada likewise decided to express its preference for candidates to it employees.  Given how important our vote is for the most important office in the world, these communications raise huge issues and questions of what is allowed under the law.

In 2010 the Supreme Court of the United States made a ruling in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), that held, 5-4, that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. The nonprofit group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA").  The Court held that portions of BCRA §203 violated the First Amendment.  This ruling provided employers which much larger room to communicate to employees about political matters.  However, not all communications are lawful under election laws at both the state and federal level.

As mentioned in the Journal Sentinel article, White's email may run afoul of Wisconsin law on employer restrictions under Wis. Stat. sec. 12.07(3) which reads:
(3) No employer or agent of an employer may distribute to any employee printed matter containing any threat, notice or information that if a particular ticket of a political party or organization or candidate is elected or any referendum question is adopted or rejected, work in the employer's place or establishment will cease, in whole or in part, or the place or establishment will be closed, or the salaries or wages of the employees will be reduced, or other threats intended to influence the political opinions or actions of the employees.
There is a similar federal law housed under 42 USC § 1971- Voting Rights that reads:

(b) Intimidation, threats, or coercion
No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate.

With the Citizens United ruling comes a lot of confusion over what is allowable, protected speech by employers to their employees about their political preference and what is not.  The FEC recently stated that, in general, employers may suggest how employees should vote.  The problem is how to do that without appearing to intimidate, threaten or coerce.  Thus, employers ought to take extreme precaution in distributing political communications as criminal prosecution is a potential remedy for violating election law and employees, if they feel a communication is threatening, coercive or intimidating, ought to seek counsel.  What will happen to Rite-Hite has yet to be determined and probably will not be resolved prior to next week's election.

Friday, October 26, 2012

Wednesday, October 24, 2012

An Administrative Law Judge Has Denied or Reversed My Unemployment Benefits. What Can I Do Now?

Many claimants find themselves, after a hearing before an Administrative Law Judge (ALJ), either with or without an attorney, either further denied benefits or reversed and owing back the unemployment benefits they received to the State and the unemployment fund.  Accompanying these ALJ decisions is a sheet of paper containing a claimaint's rights to appeal and the process and procedures which often goes unnoticed and ignored.  A lot of claimants believe that the ALJ's decision is the final say but Wisconsin provides for several layers of appeals.

Whether it is a good decision or worth appealing an ALJ's adverse decision is not always clear-cut and depends on a number of factors that are best discussed with an attorney who routinely handles unemployment compensation matters and is beyond the scope of this article.  Here is a brief outline of appellate rights for claimants to follow and understand:

Upon receiving the ALJ's decision from the unemployment insurance department, you will have a certain number of days to file an appeal with the Labor and Industry Review Commission (LIRC) and an appeal may be filed a number of ways including electronically here, or by mail.  Upon a successful appeal submission, LIRC will mail out confirmation and further instructions and either party, claimant or employer, may request the appeal to be "briefed," meaning the parties thoroughly make their legal argument on why they should prevail.  However, briefing is not mandatory and not always necessary.  LIRC then makes a decision based on the recording of the hearing and documents submitted into evidence but does not hold new hearings know as de novo hearings. 

Should a claimant receive another unfavorable decision from LIRC, an appeal may then be filed in circuit court pursuant to Wis. Stat. § 108.09(7)(a) within 30 calendar days from the date the decision was mailed to the party’s last known address.  The process and procedure for filing is more involved and handled under Chapter 227 of the Wisconsin Statutes which describes the procedure more thoroughly.  These types of appeals are commonly-referred to as "paper appeals" as they consist of filings and no hearing is held. 

Now of course even the circuit court's decision could be appealed to the Wisconsin Court of Appeals and the Court of Appeals decision appealed to the Wisconsin Supreme Court but such extensive appeals are incredibly rare and expensive.  This is why it is best to consult with an attorney before embarking on the appeals process to discuss options to better determine whether an appeal is the best decision. 

Enochs Law Firm's New Website

I am not sure if anyone noticed or will notice but Enochs Law Firm recently launched a newly-designed website and changed the url.  The new website can be viewed here and I welcome any and all feedback! 

Domestic Violence and the Workplace

In the wake of the unfortunate shooting at a Milwaukee-area salon and spa, many questions have been raised about what legal considerations there are for employers that may prevent or avoid such incidents from occuring in their workplace, questions that perhaps were not considered as seriously as before.

Given the numerous laws involved, there are quite a few considerations for employers and the Equal Employment Opportunity Commission (EEOC) has already issued guidance and considerations on the application of federal anti-discrimination laws on employees or applicants who experience domestic or dating violence, sexual assault or stalking.  The biggest concerns arise out of sex discrimination (e.g., an employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential "drama battered women bring to the workplace.") and disability discrimination (e.g., an employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner.  When she returns to work after a lenghty hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment).  Given these considerations, employers will want to act with precaution when dealing with an employee who may be dealing with domestic violence issues.

Wisconsin also has a "safe-place statute," Wis. Stat. section 101.11(1), which says that every employer is required to furnish both "safe employment" and a "safe place of employment."  However, not much elaboration has been made on the length and extent employers must go to in order to meet this standard and employers do not have a general duty to protect their employees from criminal acts.

Another consideration regards Wisconsin's recent enactment of the conceal weapon law which has prompted many employers and public places to create policies banning weapons on their premises.  The one exception specifically carved out involves an employee's right to conceal in their own vehicle even if the vehicle is used for employment/employer purposes.  Otherwise, if there is an incident involving a shooting in the workplace like the one that occurred at the Azana Salon & Spa, whether there is any liability for the business or employer will involve on several facts that do not appear to have been made public at this time due to the legal issues being sorted out.

It is unfortunate employers have to address issues involving weapons and violence in the workplace but if all of the best and correct measures and steps are taken then perhaps the issue is minimized and employees can do the things necessary to address domestic violence.

Wednesday, October 17, 2012

Employers: Opposing Unemployment Insurance Benefits May Amount to Retaliation!

Attorney Eric Meyer graciously highlighted a recent case out of Pennsylvania involving a retaliation claim under Title VII involving an employer who opposed a former employee's claim for unemployment compensation who had also filed a charge of discrimination.

Under Title VII of the Civil Rights Act, an employer engages in unlawful retaliation when, in response to an employee complaint of discrimination, it acts in a way that may dissuade a reasonable worker from making or supporting a charge of discrimination.  A federal district court in Pennsylvania held that an employer's request that its agent contest the employee's claim for unemployment compensation and state, that the employee was "discharged for gross negligence causing a financial loss to the employer," amounted to retaliation under Title VII.  The employee claimed that this appeal prevented her from continuing to receive unemployment compensation benefits and made it impossible to find new employment.

The employer argued that there was no adverse employment action in contesting the employee's unemployment benefits claim because it occurred after her employment had already ended.  Even though the employer cited previous case law where a court found no adverse employment action because contesting unemployment came after employment ended (the case involved the ADEA and not Title VII), it noted that in this case the employee was already collecting benefits then lost them, suffering economic harm and damaged her chances of procuring future employment.  

The case is STEZZI v. CITIZENS BANK OF PENNSYLVANIA, Dist. Court, ED Pennsylvania 2012, Case No. Civil Action No. 10-4333.

October Edition of the Employment Law Blog

Attorney Jon Hyman was gracious enough to host this month's edition of the Employment Law Blog Carnival and it is available here

Monday, October 8, 2012

Pregnancy Discrimination Continues to Present Hurdle for Women

Recently the Equal Employment Opportunity Commission (EEOC) publicly-announced that it was targeting pregnancy discrimination and highlighted four (4) pregnancy discrimination suits it had filed on behalf of women who allegedly suffered from pregnancy discrimination.  The EEOC also highlighted the fact that pregnancy discrimination claims had risen 23% from 2005 to 2011.  Prior to that headlines were made when Yahoo’s new chief executive, Marissa Mayer, gave birth to a baby boy, but the headlines presented both positive and negative thinking on whether the proverbial glass ceiling had been raised. 

The New York Times recently published an article in their op-ed section discussing women who conceal their pregnancies until the best possible time and the many challenges pregnant women continue to face in the workplace and Congress' recent action in introducing the Pregnant Workers Fairness Act into the Senate.  The Act would require employers to offer workplace accommodations for pregnant women, like exempting them from duties that involve heavy lifting and offering them plenty of water breaks, among other things — the same sort of accommodations offered to disabled workers.  Currently pregnant women are to be treated no differently than any other temporarily disabled person in the workplace (though pregnancy is not considered a disability under the law).