Tuesday, April 24, 2012

9th Circuit Discusses "Attendance" as Essential Function of Job in ADA Claim

The Court of Appeals for the Ninth Circuit recently released an opinion discussing the issue of attendance as an essential job function for purposes of the Americans with Disabilities Act (ADA) providing further guidance on how attendance is to be viewed in ADA claims with respect to essential job function.  The case involves a nurse, Monika Samper, who was employed as a neo-natal intensive care unit (“NICU”) nurse with Providence Hospital for eleven years but developed fibromyalgia, a condition that limits her sleep and causes her chronic pain.  The employer's attendance policy was as follows:
Employees are allowed to take up to five unplanned absences during a rolling twelve-month period. In addition, “[u]nplanned absences related to family medical leave . . . jury duty, bereavement leave and other approved bases are not counted” towards this limit, and each absence, however long, counts as only one occurrence. 
Samper challenged this policy and sought to opt-out of it due to her disability.  In response to Samper's attendance issues related to her disability, the employer did accommodate her by allowing her to call in when having a bad day, and move her shift to another day in the week. Providence did not require Samper to find a replacement for her shift.  However, this accommodation required further accommodation as Samper continued to have attendance issues which ultimately led to her termination (oddly enough, Samper was absent from the termination scheduled).  This then prompted Samper to file an ADA claim citing failure to accommodate.

The district court granted summary judgment in favor of Providence, reasoning that because Samper was unable to adhere to Providence’s attendance policy, she was unqualified for her position as a matter of law. The court also held that the 2006 part-time work plan was a reasonable accommodation, and that the accommodation that Samper requested, to obtain a waiver from the five unplanned absence limit, was unreasonable.
In upholding the district court's grant of summary judgment, the 9th Circuit held that "Samper [ran] into an insurmountable hur- dle, however, in arguing that regular attendance is not an essential function of the NICU nurse position."  The Court noted that it was Providence's burden to show that attendance was an essential function of the job and further highlighted precedent showing where attendance is an essential function:
Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as “part of a team.” Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). Other jobs require face-to-face interaction with clients and other employees. Nowak v. St. Rita High Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994) (teacher). Yet other jobs require the employee to work with items and equipment that are on site. EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner, 169 F.3d 481 (production worker); Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer sup- port); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) (computer consultant); Rogers v. Int’l Marine Termi- nals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding clerk under the Rehabilitation Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Reha- bilitation Act).
The Court found Samper's job as a neo-natal nurse highly illustrative of a job that requires on-site regular attendance.  To rebut Providence's showing that regular attendance was an essential function, Samper could only highlight hat Providence’s policy allows for some unplanned absences, and that her absences had exceeded those permitted under the policy in past years without repercussions.  The Court then discussed precedent where regular on-site attendance may NOT be an essential job function:
See Waggoner, 169 F.3d at 485 (“In some jobs . . . working at home for a time might be an option.”); Jackson, 22 F.3d at 279 (“[O]ther jobs . . . can be performed off site or deferred until a later day.”); Carr, 23 F.3d at 530 (“Indeed, in appro- priate cases, that section requires an agency to consider work at home, as well as reassignment in another position, as poten- tial forms of accommodation.”). Similarly, in Humphrey, a medical transcriptionist provided evidence that other trans- criptionists were allowed to work at home, and therefore, his attendance was not required for performance. 239 F.3d at 1137. However, even when an employee “work[s] at home, . . . regular hours on a consistent basis” often remain a requirement. Carr, 23 F.3d at 530.
 The case is Samper v. Providence St. Vincent, Case No. 10-35811

Monday, April 23, 2012

Employee Allegedly Fired for "Liking" Gay Facebook Page

A former Library of Congress employee has recently filed suit claiming he was terminated after his manager discovered that he had "liked" the "Two Dads" page on Facebook.  The employee, Peter TerVeer, also claims that after his manager discovered he was gay, that his performance reviews turned negative, started making derogatory statements about his sexual orientation and sending religiously motivated emails.


Sexual orientation discrimination is not protected at the federal level (though some courts have found a cause of action under Title VII) so TerVeer's attorney is pursuing a Title VII claim because of the religious aspect of the case.

Stripper Sues for Overtime and Unpaid Wages

A stripper in New York, Crystal DiCesare, who worked for a company called "Dial-A-Dancer" sued her former employer for unpaid wages and overtime pay, claiming she worked 12-hour days and only made $200 per week.  DiCesare also claims that the company's owner was also taking part of her tips, which she claims were around $500 per night.


Dial-A-Dancer claims DiCesare and all of its dancers are "independent contractors" which would make her exempt from wage and overtime laws.  However, DiCesare is claiming she was misclassified because the company's owner chose what she wore and whether she could eat, in addition to having access and control over her tips.  Findlaw.com has the rest of the story here.

Thursday, April 19, 2012

April Edition of the Employment Law Blog Carnival!

Attorney Andrea W.S. Paris is hosting this month's edition of the employment law blog carnival and it's available here.  Thanks, Andrea!

Monday, April 16, 2012

Latest Version of Jobs Bill Contains Numerous Employment Law-Related Provisions

The Rebuild America Act (S. 2252) incorporates a whole host of employment-related provisions into a single piece of legislation that would substantially change the landscape of employment law and provide a lot more benefits for employees.  Specifically, the Act seeks to:



  • The bill would initially increase the federal minimum wage to $8.10 an hour, then to $8.95 and $9.80 an hour one and two years after the bill’s enactment, respectively. The minimum wage for tipped employees would also increase initially to $3 an hour, then by an additional 85 cents per year until the hourly rate is equal to 70 percent of the federal minimum wage.
  • The bill incorporates the Healthy Families Act, a measure last introduced in May 2011 that would require employers to provide employees with paid sick leave. Specifically, employees would earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually.
  • To combat worker misclassification, the bill includes components of the Fair Playing Field Act, which was most recently introduced in March as a standalone bill. This bill that would limit the use of a federal “safe harbor” that allows businesses to treat workers as independent contractors for federal employment tax purposes, regardless of the employee’s actual status under the common law test. In addition, the bill would direct the Secretary of the IRS to issue regulations and guidance clarifying who constitutes an independent contractor.
  • The bill would amend the National Labor Relations Act (NLRA) to narrow the exemption for supervisors and clarify that workers misclassified as independent contractors are entitled to NLRA protections. The legislation would impose civil penalties of up to $20,000 on employers the commit unfair labor practices.
  • The measure would amend the Fair Labor Standards Act (FLSA) to make it more difficult for employees to qualify for the executive, administrative, and professional exemption. Specifically, the bill would increase certain salary thresholds to potentially enable more “white collar” workers to qualify for overtime. This threshold is currently $455 a week, or $23,660 annually. This threshold would be raised incrementally to $54,340 after three years and indexed to inflation.

Checking Facebook at Work is NOT a Federal Crime, Holds 9th Circuit

Tuesday, April 10, 2012

Volunteers May Be Entitled to Pay Under the Fair Labor Standards Act

Not too long ago a big stir was made surrounding volunteers and whether they are entitled to pay under the Fair Labor Standards Act (FLSA).  It was a fairly controversial issue because for years and years the term "volunteer" came with the assumption that the work was not compensated and volunteers were doing just that: volunteering their time.  However, when volunteers are taken advantage of, that is when the litigation begins and we have since been provided with guidance on when pay is called for under the FLSA in certain volunteering situations. 


Some "volunteer" activities can be employment under the FLSA thus warranting compensation and wages.  This is true even if a volunteer isn't employed by the entity they are volunteering for, if the volunteering is labeled "charitable" or for "public service," and even if the volunteering is for a non-profit organization.  "Interns" are not paid wages under the FLSA but certain types of "volunteers" may be under the FLSA.



The FLSA itself excludes individuals who volunteer to perform services under certain circumstances for a state, a political subdivision of a state, or an interstate governmental agency. These exceptions explain why, in the proper situations, volunteers at public schools and in some other settings are not viewed as being engaged in FLSA employment.
The Department of Labor (DOL), the governmental agency that enforces the FLSA, has issued guidance on the issue of volunteering and compensation and has held that individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.  However, the DOL has held that employees may not volunteer services to for-profit private sector employers.
The DOL’s position also holds that individuals may not “volunteer” to do things for their employer which are the same as or are similar or related to their normal work duties.   This is considered compensable FLSA work time. The DOL might also take the same view regarding time an employee spends even in arguably dissimilar services of a public or charitable nature, if this occurs at the employer’s request, under its direction or control, or during the employee’s normal working hours.  That is, if it works like a duck and quacks like an employee, it gets paid under the FLSA!

EEOC Issues Final Regulation on "Reasonable Factors Other Than Age" in Age Discrimination Claims

The Equal Employment Opportunity Commission (EEOC) released a final regulation to help clarify and provide guidance on “reasonable factors other than age” (RFOA) as a defense to disparate impact claims brought under the Age Discrimination in Employment Act (ADEA).  The regulation comes in the wake of two U. S. Supreme Court decisions where the EEOC's previous guidance was criticized.  Specifically, the Court disagreed with the provision which said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”


In criticizing the EEOC's former rule, the Court held that in an ADEA disparate impact case (as opposed to disparate treatment claims), the employer did not have to prove business necessity; it only needs to prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA, which prompted the new EEOC guidance and regulation.


In their rule, the EEOC provides a non-exhaustive list of factors for employers to consider in determining whether an employment factor is based on RFOA's.  This list includes:

  • The extent to which the factor is related to the employer's stated business purpose;
  • The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
  • The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
  • The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

The EEOC issued a quick Q&A section on the new regulations and is available here.  

Monday, April 9, 2012

Federal Benefits Program Ending in Wisconsin as Unemployment Rate Improves

This past weekend the federal extended benefits program ended in Wisconsin. The Department of Workforce Development (DWD) says it’s all due to the continued improvement in the State's unemployment rate.


The state was notified of the change last month, posted the info on their website, and send out notifications to more than 7,700 people. After this week, the number of weeks you can collect benefits from 86 to 73.


The state’s three month average seasonally adjusted rate fell to 7 percent in February, meaning Wisconsin no longer meets the federally required threshold for the 13 week program.

Friday, April 6, 2012

Wisconsin Governor Scott Walker Repeals Law, Stripping Discriminated Employees of Right to Punitive and Compensatory Damages

As expected for weeks now, Wisconsin Governor Scott Walker signed 2011 Senate Bill 202 (SB 202) at the very last minute yesterday which repeals Wisconsin Statute sections 111.39 (5) (d), 111.397 and 893.995; and amended Wisconsin Statute sections 111.39 (4) (d) and 814.04 (intro.); relating to: elimination of compensatory and punitive damages for acts of employment discrimination or unfair honesty or genetic testing.  That is, employees who are able to prevail on discrimination claims before the Equal Rights Division are no longer able to seek punitive and compensatory damages in Wisconsin State Court.  If employees wish to seek such damages, they will have to do so in federal court now.

It's not exactly clear at this point but Section 6 of SB 202 seems to read that it applies to all claims currently active with the Equal Rights Division even though they were filed before these laws were repealed unless a claimant has received a final decision before the law was repealed.  Section 6 reads:

Section 6. Initial applicability.
(1) Elimination of employment discrimination damages.  This act first applies to an administrative proceeding under section 111.39 of the statutes concerning a violation of section 111.321, 111.37, or 111.372 of the statutes in which a copy of the final decision under section 111.39 (4) (d) or (5) (d) of the statutes is mailed to the last-known address of the complainant on the effective date of this subsection.  
This will probably cause a lot of cases to be re-thought and strategized and this will inevitably cause a spike in cases filed in federal court.  Allowing discriminated against employees the right to punitive and compensatory damages in State court was meant to serve as a deterrent against employers who violate the Wisconsin Fair Employment Act (WFEA) and to give proper damages to employees who suffered discrimination in the workplace.  As I discussed previously, it may not sound like a big deal to lay persons given punitive and compensatory damages are still available via federal court, but litigants often fail to consider or be aware that federal litigation is much more onerous, expensive and burdensome whereas pursuing claims through the State via the WFEA tends to be easier, cheaper and faster with nearly the same remedies available through federal anti-discrimination laws previously.  Now the Wisconsin Fair Employment Act lacks teeth once again.

Monday, April 2, 2012

Attorney Randy Enochs Quoted in "In Business Wisconsin" on Facebook Password Issue

Here is a recent article in "In Business Magazine" on the controversial issue of employers requesting applicants and current employees for Facebook and other social media passwords that I was interviewed for and quoted on that I wanted to pass along.  Enjoy!

Should I Mediate My Employment Law Case?

A commonly misunderstood aspect of litigation for people is alternative dispute resolution and mediation. In some cases, mediation is mandatory and court-ordered and in others it is merely optional and merely encouraged.  In employment law cases, mediation is usually optional and at the discretion of the parties.

What is Mediation?

Mediation is a tool of alternative dispute resolution where an unbiased, impartial third-party official, called a mediator, attempts to help parties resolve a case to avoid the cost, time and expense of a hearing or trial.  The goal of mediation is to get the parties to settle the matter and end litigation.  Therefore, mediation is a tool used sometimes early on in a claim in order to see if the matter may be resolved quickly and amicable and also helps parties early on realize the strengths and weaknesses of their cases and defenses.

The typical mediation takes place at the mediator's office where the parties to a lawsuit gather and every mediator proceeds in different manners and styles.  Some mediators will have all the parties start out together in the same room and then separate the parties to meet and discuss with them separately and some mediators separate the parties the entire time and go back and forth in an attempt to get the parties to settle.  Mediators pride themselves on their settlement success rate and the most successful mediators keep their appearance as unbiased and impartial to each party so as to not appear to be taking a side.

In meeting with each party, the mediator goes over the case and usually is given a "mediation report" which is a brief description of the lawsuit and claim(s) before the mediation.  This allows the mediator an opportunity to identify strengths and weaknesses in each party's claims and defenses to help the parties reach common ground to settle.

Mediation can vary in time from mere minutes to an entire day, depending on the progress and how close the parties are to settlement.  If settlement is reached, paperwork is filled out memorializing the agreement.  If mediation fails, the matter proceeds along through the system, on pace to hearing or trial.

ERD Mediation Program

In Wisconsin, for claims before the Equal Rights Division (ERD), a mediation program was created where complainants and respondents may mediate their claims almost immediately after a claim is filed.  The nice thing about the ERD's mediation program is that actual Administrative Law Judges who handle these cases on a weekly basis and see all types of claims are assigned as mediators (though they will not be the ALJ assigned if the matter proceeds to hearing).  Allowing current ALJs to serve as mediators means that the foremost opinions and suggestions will be proffered and parties can really learn and see the strengths and weaknesses in their claims under the Wisconsin Fair Employment Act (WFEA) through mediation.

Do I Need a Lawyer for Mediation


No, you don't "need" a lawyer for mediation but it is highly recommended to obtain a lawyer as soon as possible as an employment attorney is in a good position to inform you of what a reasonable settlement offer is as it is often difficult to know what amount of money to take as a settlement.  Many times I receive calls from individuals who have filed discrimination claims with the ERD and their expectation of what their case is worth and what they want to settle their case is incredibly unreasonable and above and beyond what the law provides for a remedy.  This hinders a case and only leads to a hearing that could have been avoided very early on.

Should I Opt for Mediation?


This is not an easy "yes or no" answer as every case is different and really just depends on each party's mentality of the case and the facts of the case.  Some parties are incredibly open-minded and easy to work with whereas other parties will be very stubborn and unwilling to budge on what they want to settle, assuming the other side will settle at all!  This is another reason it is best to obtain an attorney before the mediation process as mediation can be a waste of time if you unknowingly go in with either unrealistic expectations or the other side is completely unwilling to settle and this could have been found out beforehand.

Sunday, April 1, 2012

Teacher Fired for Refusing to Give School Facebook Password

The issue of employers requesting Facebook login information and passwords from applicants and employees has been all the buzz lately and now we have a firing in Michigan of a teacher who refused to turn over her Facebook login and password to the school she was employed with, Frank Squires Elementary School in Cassopolis, Michigan.  The teacher, Kimberly Hester, refused to turn over her Facebook information after she posted controversial pictures on her page.  Hester was apparently "friends" with some of her students' parents who saw the pictures and other controversial content on Hester's page which prompted the Lewis Cass Intermediate School District to delve into the situation and requested Hester's login information, which she refused to do and resulted in her termination.  Hester has filed for arbitration on the termination.


From The Huffington Post article on the firing: 

Hester's battle resonates with Michigan Republican state Reps. Matt Lori and Aric Nesbitt, who reportedly contacted the teacher's aide Thursday to include her story in House Bill 5523. The legislation would make it illegal for employers to request employees' login information for social networking sites.
But in Washington last week, the House of Representatives struck down an amendment, titled "Mind Your Own Business On Paswords," that would prevent companies from requiring current or potential employees to surrender their passwords to social networking sites.
In response to widespread controversy over employers' requests for social networking information, Facebook issued a statement March 23 that reinforces its commitment to protecting user privacy, threatening lawsuits against companies who make such requests.

This will become an increasingly interesting issue as social media and its implications in the workplace have transcended across several areas of labor, employment, privacy and communication laws.