Tuesday, May 29, 2012

EEOC Opines Wearing a Confederate Flag T-Shirt May Rise to Level of Racially Hostile Work Environment

A postal employee in Alabama who complained for approximately two months of coworkers wearing confederate flag t-shirts in the workplace until the Postmaster finally instructed the supervisor to start sending the employees home to change was found by the Equal Employment Opportunity Commission (EEOC) to have stated a viable claim of discriminatory harassment which requires further investigation by the Commission after his complaint was initially dismissed.


In reversing this dismissal, the EEOC stated:

While isolated incidents may not create a direct and personal deprivation sufficient to render an individual aggrieved, the Commission has held that, under certain circumstances, a limited number of highly offensive slurs related to a federal employee's race may in fact state a claim or support a finding of discrimination under Title VII. See Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996). Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts.
Thus, as is important in most cases and opinions, it's a case-by-case analysis and it often will come down to the employer's response to an employee's complaints that either make or break the day.  The remainder of the opinion can be found here.  

Men Terminated After Complaining to OHSA Awarded $332,000

In a case of outrageous and sad facts with a happy ending (albeit an ending in court through a jury), two men, Douglas Eki and Xerxes "Jason" Doctolero, who were terminated after finally complaining to the Oregon Occupational Safety and Health Division (OSHA) about lack of an on-the-job toilet have been awarded $332,000 by a Portland jury.   


The plaintiffs did mechanical work at the UK-based defendant-employer and, because of the lack of a toilet, urinated in a bucket or worse yet -- soiled their clothing -- because they couldn't get to a toilet fast enough, which was located at a neighboring business that was sometimes closed or use was refused.  The men finally complained to OSHA which cited the company for failing to provide restroom facilities and Eki and Doctolero were fired later that month--a big no-no.


Jurors awarded Doctolero $77,000 and Eki $15,000 in lost wages and benefits. Jurors also awarded each man $30,000 for pain and suffering, and $90,000 each for punitive damages. Under Oregon law, 60 percent of the punitive damage award will go to the state's crime victims compensation fund.  Oregonlive.com has the rest of the story here.  

Wednesday, May 23, 2012

2nd Circuit Overturns NLRB, Holds Starbucks Can Limit Employee Union Flair

Employees at a Starbucks in Manhattan were attempting to unionize and part of their efforts involved wearing pro-union buttons as part of their uniform.  Starbucks limited the amount of buttons, or, flair, that the employees could wear to one button and an unfair labor practice complaint was filed with the National Labor Relations Board (NLRB).  The NLRB ultimately held the limitation to run afoul of the National Labor Relations Act (NLRA) but the Court of Appeals for the Second Circuit has reversed this decision holding that, just as it can require employees to "wear buttons promoting its products, ... it is also entitled to avoid the distraction from its messages that a number of union buttons would risk."


This decision essentially holds that an employer's interest in having employees promote their product outweighs the employees' interest in promoting unionization.  The case is NLRB v. Starbucks Corp., Case Nos. 10-3511-ag, 10-3783-ag(XAP) (2nd Cir. May 2012).  

Monday, May 21, 2012

Can a Poor Performance Review Be Considered an "Adverse Employment Action"?

One of the elements of a discrimination claim is that the employer take an "adverse employment action" against the employee.  For an employer's act to constitute an adverse employment action it must "constitute 'a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'"  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).  Whether an action is an adverse employment action for a plaintiff to help meet their prima facie case is often the subject of litigation and recently the Court of Appeals for the Sixth Circuit had to decide whether a negative performance review constituted an adverse employment action, which is a fact-specific inquiry.


Traditionally, a negative performance review does not constitute an adverse employment action, unless "the evaluation has an adverse impact on an employee's wages or salary." Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 322 (6th Cir.2007).  However, in Goldfaden v. Wyeth Laboratories, Case No. 10-1799 (6th Cir. 2012), the 6th Circuit concluded that a warning letter issued to an employee constituted an "adverse action" even though the employee quit her job before she could suffer any consequences from the warning.  Why?:
She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been.... We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment....
The other adverse employment action alleged was constructive discharge but the plaintiff failed to meet her burden given her conduct prior to the negative review in violating a company policy.  The Court nevertheless held that the negative review "howed that she was “in jeopardy of suffering” a “tangible employment action” as a result of the warning letter which “downgraded [her] evaluation.”  Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000).


The plaintiff ultimately still did not prevail on appeal as she could not show that she was treated differently than other similarly situated males, another element of the prima facie case under Title VII.  The Court further noted that even if the plaintiff did show a prima facie case, she still couldn't show pretext on the part of the employer.

Attorney Enochs Interviewed for Article in Wisconsin Law Journal on "Troublesome Clients"

I recently interviewed for an article written by Jack Zemlicka of the Wisconsin Law Journal on the issue of "troublesome clients."  The link requires a subscription but the full body of the article is below:

Cutting the cord: Attorneys weigh risks when breaking ties with troublesome clients

Glendale solo practitioner Randy Enochs hates to turn away business, even if it means catering to a combative client.

But sometimes, the risks outweigh the rewards, even when there could be a lucrative payday.

In May, Enochs, of Enochs Law Firm LLC, walked away from what could have been a nearly five-figure contingency fee in a workplace sexual harassment case. There was a lot of merit to the claims, he said, which initially drew him in.

But he pushed himself back out when he realized the client was not worth the hassle, Enochs said.

The female client lied about hiring prior representation and engaged in constant disputes about Enochs’ legal reasoning, he said. Eventually, he found out the woman was shopping for another lawyer behind his back.

“I called her about the case, and she answered her phone while she was in another lawyer’s office,” he said. “It kind of put a nail in the coffin.”

After two weeks of battling through representation, Enochs turned the case file over to another attorney two weeks before the client’s court date.

“Given my experience with previous clients, I don’t want to put myself in a bad position,” Enochs said. “Unfortunately, a lot of young attorneys are a slave to the dollar and money people will pay.”

Though he sacrificed the potential payday, he decided the case wasn’t worth the risk of having the woman tarnish his reputation if she lost, or worse, filed a complaint with the Wisconsin Office of Lawyer Regulation.

“That is something I want to avoid at all costs,” said Enochs, a 2007 law school graduate. “People are very Google-happy these days, and you can have the worst reputation online but be the best attorney in person, and people would never know that.”

In five years of practice, Enochs said, four people have filed grievances against him. Two grievances were from pro se opponents and the others were from disgruntled clients who had lost, he said.

While none of the complaints resulted in OLR discipline, he said, the experiences led to a better-safe-than-sorry approach when dealing with clients, even if that means surrendering a fee.

But attorneys walk a fine ethical line when deciding when to discontinue their relationship with a client, said Dean Dietrich, former chairman of the State Bar of Wisconsin’s Professional Ethics Committee.

According to Supreme Court Rule 20:1.16, lawyers are generally prohibited from withdrawing if the action will have a negative effect on the client.

There are broad exceptions, however, that protect attorneys. If notice is given to a client and the court, lawyers can withdraw if the client fails to pay, commits a crime during the course of representation or engages in conduct the lawyer considers “repugnant.”

There is always that risk, however, Dietrich said, that the client will file a grievance with the OLR.

In fiscal year 2010-’11, about half of the 2,377 inquiries or grievances filed with the OLR came from clients, Dietrich said, and 22.7 percent of grievances were for alleged lack of diligence on the part of attorneys.

OLR Director Keith Sellen said, on average, 80 to 85 percent of complaints are dismissed for lack of evidence each year.

“That means there is an identifiable ethical rule that may have been violated,” he said, “but the evidence we receive during intake from the grievant and lawyer is such that it’s clear the lawyer did not violate the rule.”

While the odds are in favor of the OLR dismissing a client’s complaint, it isn’t worth the gamble, said Milwaukee attorney Evan Knupp, of Roney & Knupp LLC.

On more than one occasion, Knupp, a 2009 law school graduate, said he has forfeited a portion, or all, of his fee to separate from a troublesome client rather than risk a complaint.

One case involved representing someone with a rental property in foreclosure. Knupp said the client wanted him to figure out how to unload the property, but there was no easy solution because the city was seeking back-taxes.

“I sent him an invoice for an hour’s work, and he got upset and claimed he already knew what I found out, which he didn’t,” Knupp said. “Because it wasn’t what he wanted to hear, he demanded a refund.”

The decision to dump the client cost Knupp about $200 in a partial refund, but saved him the aggravation of defending against a potential complaint, he said.

When evaluating clients now, Knupp said, he looks beyond the potential payday for red flags such as previous poor experiences with other lawyers.

“If they come in trash talking about how lawyers never do anything for them, then I try to be clear about what I can do for them,” he said. “But it’s risky to take on the type of person who might immediately file a complaint if things don’t work out. Those are the ones that scare me.”

Even if combative clients don’t file complaints, they can still be bad for business, said Brookfield personal injury lawyer Jeff Zirgibel, of Pasternak & Zirgibel SC.

In a recent case, Zirgibel said, he became increasingly frustrated with the client’s incessant inquires, which included more than six calls each day for nearly two weeks.

“It was a good case that I didn’t want to turn away, but this person was getting increasingly needy,” he said. “It was getting to the point of where she was keeping us at the firm from being able to do our jobs.”

In his 16 years of practice, Zirgibel said, he has had a handful of such situations in which he either referred clients for a second opinion on their case or cut ties.

None of the breakups have led to OLR complaints, and, Zirgibel said, he has learned to terminate troublesome relationships when they get to the point of diverting his and his firm’s attention from other clients.

Zirgibel has the benefit of a law partner and office staff members to share the burden of a problem client.

Enochs is on his own.

He said it’s been trial and error figuring out when to forsake a paycheck instead of putting his career in jeopardy.

In the sexual harassment case, Enochs said, his experience prompted him to bow out before things got worse.

“I didn’t want to put myself or the client in a bad position,” he said. “Sometimes, that supersedes the person’s problems and their claims, no matter how good they are.”

Sunday, May 20, 2012

Tips for Calculating Hours Worked for Purposes of Overtime Pay and the FLSA

BLR.com has an excellent and simple explanation of how to calculate employees' hours worked for purposes of the Fair Labor Standards Act (FLSA) as it can be more complicated than people think, leading to overtime violations.

3 Steps to Calculate Overtime Pay Properly:

  1. Calculate the hours worked. Just as it sounds, this is the determination of how many hours the employee worked during the workweek. Where it gets complex, however, is understanding what is and what is not working time under the FLSA. This question alone is worthy of separate discussion – so be sure you understand what time you’re obligated to pay for before you even begin.
  2. Calculate the "regular rate" of pay. This is seemingly simple, but often is not because this rate often includes more than just the employee’s hourly rate. You must determine how much remuneration the employee received during the workweek, which requires you to understand what sorts of payments must be included in calculating the regular rate, such as bonuses (just to name one example).
  3. Finally, calculate the overtime rate. This will let you know how much overtime is owed. This is probably the simplest step, but don’t underestimate the importance of getting the first two steps correct before attempting the third.
Employees need to understand that not ALL hours in the workplace are going to be considered "compensable time" under the FLSA.  What constitutes compensable time is often the issue and subject of much litigation so determining whether overtime pay is properly being paid will not always be cut-and-dry, so to speak.  Always consult with an employment attorney who practices in the area of wage & hour law if you believe you may not be receiving proper overtime pay.

Thursday, May 17, 2012

Anniversary of Brown v. Board


58 years ago today the US Supreme Court handed down its ruling in the landmark case of Brown v. Board of Education of Topeka, Kansas. which overturned provisions of the infamous 1896 Plessy v. Ferguson decision, which had allowed for "separate but equal" public facilities, including public schools in the United States. Declaring that "separate educational facilities are inherently unequal," the Brown v. Board decision helped break the back of state-sponsored segregation, and provided a spark to the American civil rights movement.

Wednesday, May 16, 2012

May Edition of Employment Law Blog Carnival is Up!

Attorney Donna Ballman hosted this month and it's available here.  Enjoy!

Tuesday, May 15, 2012

Recent EEOC Statistics Show Gradual Decline in Charges Filed

The Equal Employment Opportunity Commission (EEOC) recently released statistics breaking down charges filed from FY 2009-2011, state-by-state.  Wisconsin has slowly been declining in the number of charges filed going from 1, 177 in 2009 to 1,049 in 2010 to 993 in 2011.  Charges also went down  or stayed about the same in nearly protected class category except race and color.  The rest of the statistics can be viewed here.

Arrest & Conviction Record Discrimination at the Fore (Again)

A recent article in the Milwaukee Journal Sentinel profiles a woman, Yolanda Quesada, who was terminated from Wells Fargo Bank after three years with the company for a crime she was accused of 40 years ago but not convicted of.  The bank is citing a federal law, Section 19 of the Federal Deposit Insurance Act, as justification for firing Quesada and several other employees who were recently fired after years of service.  That law essentially says employers in certain industries, like the banking industry, cannot hire applicants or maintain employees convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, even if they entered into pretrial diversion of the case.

Quesada has hired an attorney, Sandra G. Radtke, to go to bat for her as Wisconsin has arrest & conviction record discrimination protection under the Wisconsin Fair Employment Act (WFEA).  As Quesada's attorney has pointed out, the federal law has a waiver that employers could seek from the FDIC which asks permission for an employee or applicant to work for them despite the law.  "The employees also can ask for a waiver, but Radtke said it can take nine to 12 months to get a decision. Among the things considered are the nature of the offense, the offender's age at the time and evidence of rehabilitation since then."  

Last month, the Equal Employment Opportunity Commission (EEOC), by a vote of 4-1, approved new guidance on criminal background checks, which, similarly to the WFEA, discourages blanket exclusions of individuals who have been convicted of crimes and encourages the use of individualized assessments of whether an employer’s criminal conduct exclusion is job related and consistent with business necessity.  Specifically:

Job Related and Consistent with Business Necessity
The guidance provides that there are two circumstances in which the commission believes that employers will meet the “job related and consistent with business necessity defense” consistently:
  • The employer validates the criminal conduct screen for the position in question according to the Uniform Guidelines on Employee Selection Procedures standards if data about criminal conduct as related to subsequent work performance is available and such validation is possible.
  • The employer develops a targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.
The individualized assessment would consist of:
  • A notice to the person that he or she has been screened out because of a criminal conviction.
  • An opportunity for the individual to demonstrate that the exclusion should not be applied because of his or her particular circumstances.
  • The employer’s consideration as to whether the additional information provided by the person warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
  • Individual’s Showing:
    • The individual’s showing may include information that he or she was not identified correctly in the criminal or release from prison. (Recidivism rates tend to decline as ex-offenders’ ages increase.)
    • record Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incident of criminal conduct.
    • The length and consistency of employment history before and after the offense or conduct.
    • Rehabilitation efforts, such as education and training.
    • Employment and character references and any other information regarding fitness for the particular position.
    • Whether the individual is bonded under a federal, state or local bonding program.
    • Undoubtedly, given the uncertainty and infancy of arrest & conviction record discrimination we can expect lots of litigation until courts provide better guidance employers can use in the hiring and firing of individuals with arrest & conviction records.  If you believe you have been unlawfully discriminated against, it's best to consult with an employment lawyer and go over the facts of your case.  

      Monday, May 14, 2012

      Attorney Enochs Recently Interviewed on Story on Facebook "Like" and Firings

      I recently interviewed with BtoBonline.com on an article written by Jon Vanzile about recent cases of employees who were terminated for "Like"'s on their Facebook page.  The article is here.  Enjoy!

      Employment Case Law Update

      --Townsend v Benjamin Enterprises, Inc, Case Nos. 09-0197-cv(L), 09-4509-cv(XAP), 2ndCir: Court of Appeals for the Second Circuit, in a case of first impression, AFFIRMED the district court's grant of summary judgment of an HR director's Title VII retaliation claim because the internal sexual harassment investigation she conducted was unconnected to an EEOC charge or proceeding and, thus, was not protected activity under Title VII's participation clause.  The circuit court also affirmed the lower court's determination that the alleged harasser, the sole vice president of the company, was an alter ego of the employer and, therefore, the employer was precluded from relying on the Faragher/Ellerth affirmative defense. The lower court's related jury instructions and its award of attorneys' fees (in the amount of $141,308.80) to an employee who prevailed at trial on her sexual harassment claim were likewise upheld. 
      In an interesting move, though he concurred with the majority opinion, Judge Lohier wrote separately, urging Congress to extend Title VII's participation clause protection to internal investigations.


      --Regan v Faurecia Automotive Seating, Inc, Case No. No. 11-1356. (6thCir):  Court of Appeals for the Sixth Circuit AFFIRMED lower court's decision granting summary judgment in favor of the defendant-employer on plaintiff's disability and gender discrimination claims under both state and federal law.  Plaintiff, Alisha Regan, suffers from narcolepsy that was eventually treated with various medications so she could function on a day-to-day basis without falling asleep or becoming tired so easily which allowed her to make her more than two hour commute to work each day.  However, the employer changed work hours which would have made Regan's commute to work more exhausting and potentially dangerous which prompted Regan to seek an accommodation of the ability to work the same work hours as before.  When the employer said they could not grant that accommodation, they provided Regan with FMLA paperwork, which she never submitted to the employer.
      In affirming the lower court's decision, the 6th Circuit found Regan's request for accommodation regarding her commute unreasonable even if she could show up that she had a qualifying disability under the ADA (but did not delve into this issue).  In affirming dismissal of Regan's gender discrimination claim, the Court likewise noted her failure to demonstrate that (1) she suffered an adverse employment action, and (2) she was treated differently than similarly situated males for the same conduct.


      --Belfiglio-Martley v Waterford Country School, Inc, No. 3:11cv125 (MRK), (DConn): Defendant's motion for summary judgment GRANTED in part and DENIED in part.  The court found that the plaintiff was able to show, through a series of separate acts that collectively constitute "one unlawful employment practice."  In addressing the plaintiff's retaliation claim under Title VII, the court noted that the standard for a materially adverse employment action is slightly different in Title VII retaliation claims than for Title VII discrimination claims. See Cunningham v. New York State Dept. of Labor, 326 F. App'x 617, 620-21 (2d Cir. 2009) (summary order) (noting that the latter requires "materially significant disadvantages with respect to the terms of plaintiff's employment," while the former depends "upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position."  The court ultimately found the employer's act toward plaintiff could collectively send a message dissuading a reasonable worker from making additional complaints.
      The court did not find the employer's action to rise to the level needed for plaintiff to show constructive discharge, however, merely because a reasonable juror could not find that Waterford deliberately intended that Ms. Belfiglio-Martley resign when it instructed her to return and continue working with Mr. Gibson.  The court also dismissed plaintiff's negligent infliction of emotional distress claim.


      --Wolpert v Abbott LaboratoriesNo. 08-4849 (JBS/KMW, DNJ:  A pregnant sales representative who brought claims of gender and pregnancy bias under New Jersey's anti-bias law based on her non-selection for another position was allowed to present evidence of her coworkers' knowledge of her pregnancy to show that the decision-maker was also aware of her condition, a federal district court in New Jersey ruled, denying defendant's motion in limine.  The court also refused to exclude evidence concerning the plaintiff's qualifications for the position and her subsequent performance in another position.


      --Lucas v City of Philadelphia, Case No. NO. 11-4376, (EDPa):  An African-American employee of the Philadelphia water department who contended that race discrimination and harassment by his supervisors led to a disabling anxiety disorder withstood the city's motion to dismiss his federal and state law disability bias claims, ruled a federal district court in Pennsylvania.  The employee sufficiently pled that he was qualified for the essential functions of his position.