Tuesday, August 21, 2012

Employment Case Law Update

-- Turner v McKesson Corp, Case No. 2:12-CV-2053-SLB (NDAla)- Defendant’s Motion to Dismiss granted in part and denied in part.  After a detailed analysis of what is allowed under FMLA regarding paying employee bonuses, the court found that plaintiff sufficiently stated a claim of interference under the FMLA, likewise for her FMLA retaliation claim under the McDonnell Douglas prima facie case.  The Court did however grant Defendant's motion regarding Plaintiff's Title VII and Section 1981 race discrimination claims because the complaint failed to be supported by sufficient factual allegations to state a claim for which relief can be granted as Plaintiff could only plead she was not promoted.  

--Vallee v Indiana Department of Transportation, Case No. 1:11-cv-00481-WTL-MJD (SDInd):  Defendant's Motion for Summary Judgment DENIED.  Plaintiff (female) filed a claim for sex discrimination under Title VII after not receiving a position she possessed all of the minimum requirements for but was still passed up for by a male who did not have all of the minimum requirements and after not receiving an interview for another position that opened up, which no females were interviewed.  After plaintiff filed her claim with the EEOC, defendant disciplined plaintiff for direct insubordination, possessing a negative attitude, and conduct unbecoming a state employee, despite plaintiff's only receiving positive employee evaluations every single previous year and no disciplines.  Plaintiff was also transferred to the most physically-demanding job in the employer's department which led to her injuring her back.  After being passed up for yet another promotion, plaintiff then received the lowest performance rating of her career, which is characterized as “Does Not Meet Expectations.”


On April 8, 2011, plaintiff filed the instant action, alleging that the Defendant had discriminated against her because of her sex by failing to promote her to the Paint Supervisor position. She also alleged that the Defendant retaliated against her after she filed a charge of sex discrimination with the EEOC by (1) failing to promote her to another open Paint Supervisor position in 2009; (2) again failing to promote her to the same position in 2010; and (3) creating what she calls a “hostile work environment.”  In denying the Defendant's Motion, the Court took issue with the individuals interviewed and hired over the plaintiff for promotion and noted some of their behavior toward plaintiff and comments made after she filed her charge with the EEOC.

--Carrier v VCA Animal Hospitals, Inc, Case No. DKC 11-0129 (DMd):  Defendant's Motion for Summary Judgment GRANTED in part, DENIED in part.  Although a veterinary resident had epileptic seizures and suffered side effects from the medication to control them, she failed to demonstrate that she was substantially limited in her ability to perform any major life activities and, therefore, was not disabled under the definition of the ADA.  Noting that Maryland law explicitly includes epilepsy as a disability, the court considered but rejected her state law claim alleging that the employer failed to reasonably accommodate her. On the other hand, she presented a triable prima facie case of disability discrimination to support her state law statutory wrongful termination claim. Stating that the side effects of her medication mimicked intoxication, the court the reasoned that the employee established pretext by showing that the employer failed to investigate plausible reasons for her erratic behavior, leading to her discharge.

--Rodriguez v Atria Senior Living Group, Inc, Case No. 10-CV-8965 (ER) (SDNY):  Court DENIED plaintiff’s motion for partial summary judgment in its entirety and GRANTED summary judgment to defendant on each of the issues except for two of the FMLA claims.  A maintenance technician who was discharged when he was unable to return to work after depleting all his leave was not entitled to summary judgment on his claim that he was fired in retaliation for requesting an extension of his FMLA leave in order to accommodate his shoulder surgery and post-operative rehabilitation.  Although the court granted summary judgment to the employer on the employee's failure to accommodate claim and four of his six FMLA claims, it found material fact issues existed on the two remaining FMLA claims.

479 of Fortune 500 Companies Voluntarily Provide Sexual Orientation Protection

While the federal government continues to not provide sexual orientation discrimination protection in employment and the Employment Non-Discrimination Act ("ENDA") remains shelved and NOT included sexual orientation or gender identity protection, a recent report from the Equality Forum reports that 479 companies (95.4%) making up the Fortune 500 voluntarily provide sexual orientation protection for its employees.  Eight years ago, only 323 (64.6%) provided such protection showing increasing public support of such laws and protection.

Vice Presidential candidate Paul Ryan supports passage of federal ENDA and the inclusion of sexual orientation protection in ENDA.  To see which of the companies that do not provide voluntary sexual orientation protection for its employees, click here.

Thursday, August 16, 2012

August Edition of the Employment Law Blog Carnival is Up!

The August Edition of the Employment Law Blog Carnival: Post-Olympics Edition,is now up and running. You can find it here.

Special thanks to all who contributed posts and, of course, to this month's hosts, Ari Rosenstein and CPEhr, for doing a fantastic job on getting it all together. 

Monday, August 13, 2012

EEOC Making Bigger Effort to Target Discrimination and Harassment of Hispanics in the Workplace

The Equal Employment Opportunity Commission ("EEOC") announced recently that it was going to make a bigger effort to root out and pursue claims involving discrimination and harassment of Hispanics in the workplace.  One case toward that end is EEOC v. RJB Prop­­erties, No. 10-C-2001, ND IL, 2012 which involves alleged abuse of Hispanic janitorial workers in the Chicago area.  A federal judge has ordered a trial in the case.


The case involves a manager who appears to dislike Hispanics and allegedly favors black employees. Testimony included claims the manager frequently used slurs like “wetback,” and “bean eaters.’ In meetings, she was said to have openly stated she wanted to get rid of the Hispanics in the company.  For example, one group of claims going to trial involves several His­­panic workers who allegedly fell asleep on the job and were terminated. Un­­­­for­­tu­­nately for the company, several supervisors testified that the manager had urged them to find ways to get rid of Hispanic workers, including falsely accusing them of sleeping at work.
The EEOC has also launched a website in Spanish to assist Hispanic workers.

EEOC Releases New Decision Digest

The Equal Employment Opportunity Commission ("EEOC") has released a newer decision digest covering topics ranging from compensatory damages, dismissals, merit findings, sanctions, more.  It is available here.

Friday, August 10, 2012

NLRB Holds Employer's At-Will Section of Handbook Violates NLRA

In a potentially ground-breaking case, an administrative law judge for the National Labor Relations Board (NLRB) has held that an ‘at-will employment clause’ which was part of a non-unionized employer’s employee handbook acknowledgment page violates Section 7 of the National Labor Relations Act (NLRA).  The decision appears to be a first of its kind.

The language specifically held unlawful under the NLRA read:
"I further agree that the at-will employment relationship cannot be amended, modified or altered in any way."
In finding the language unlawful, the ALJ stated that this language violates Section 7 by making it sound as if it is impossible for employees to collectively bargain (i.e., bring in a union) so as to enter into a collective bargaining agreement with the employer.  The decision came in American Red Cross Arizona Blood Services Division and the ALJ was somewhat cautious in his opinion given the controversial holding.

The ALJacknowledged that it was questionable whether the language expressly restricted Section 7 activity, but held that there was “no doubt” that it violated the Act because employees would reasonably construe the language to prohibit Section 7 activity. Specifically, the ALJ reasoned that by signing the form the employee waived her right to individually attempt to change her at-will status. The language, however, could be interpreted by employees as also waiving the right to engage in concerted activity in an attempt to change that status. For these reasons, the ALJ concluded that the acknowledgement form contained “overly-broad and discriminatory language that had a chilling effect on the employee’s Section 7 rights,” and violated the NLRA. The American Red Cross was ordered to remove or revise the language, notify all employees in writing that the provision had been revised or rescinded, and post a notice advising employees of their rights under the NLRA, and assuring them it would respect those rights.
Either way, this is a very important holding as it is common in most workplaces for employer's to have similar written policies regarding at-will employment.  There is a need for more guidance so perhaps the NLRB's General Counsel will issue such after a few more cases go through the pipeline, should anymore be forthcoming.

Monday, August 6, 2012

NLRB Finds Chicago Bus Company Violated Several Labor Laws

The National Labor Relations Board (NLRB) has found that a Chicago-based bus company, Latino Express Inc., violated federal labor law by firing two employees and committing a host of other unfair labor practices during a union organizing campaign.  From the NLRB's press release on the ruling:

The Board decision largely affirmed an earlier ruling by Administrative Law Judge Michael A. Rosas, who found that, in addition to the illegal firings, the company unlawfully ordered employees to refrain from discussing wages and working conditions with each other, promised benefits to discourage union organizing, created the impression that employee union activity was being watched, and interrogated and threatened employees regarding their union activities. The Board also found that the company violated the Act by granting a wage increase to the employees after learning of the organizing drive. The union later prevailed in a secret ballot election. 
(In the same decision, the Board severed two remedial issues and invited briefs on questions of tax collection and Social Security payments.)Charges were filed by the fired drivers and Teamsters Local 777 at the NLRB Regional Office in Chicago, which investigated and issued a complaint alleging the violations. While the case was pending before the Board, attorneys in the Region won atemporary injunction in federal district court and the company was ordered to, among other things, offer reinstatement to the two fired drivers and post a copy of the court’s order in both Spanish and English at its facility.

Federal Judge Orders LA-Based Trash & Recycling Center to Stop Violating Labor Laws, Orders Reinstatement of Fired Employees

Judge Dean D. Pregerson of the U.S. District Court for the Central District of California has issued a temporary injunction at the request of the National Labor Relations Board (NLRB) against American Reclamation, Inc., a Los Angeles trash hauling and recycling service.  The injunction orders American Reclamation to stop violating federal labor laws by threatening employees with dismissal for supporting a union, among other things, and to offer interim reinstatement to three employees who were fired while the case is pending before Administrative Law Judge William Kocol.  

From the NLRB press release on the temporary injunction and case: 

A complaint issued by the NLRB Regional Office in Los Angeles in April alleged that American Reclamation engaged in multiple unfair labor practices beginning in early October 2011, during a union organizing campaign. The company allegedly threatened employees that they would be fired for supporting the union and that the company would be closed or sold if the employees voted for the union. In addition, company officials unlawfully promised improved working conditions, including better safety equipment, to discourage their support for the union.
Two employees who openly supported the union were discharged in October 2011, and a third was discharged in January 2012 after photographing hazardous materials and encouraging employees to voice concerns about hazardous materials they were handling. The injunction orders the company to offer reinstatement to the three employees, and to read the order to all employees.