Tuesday, September 25, 2012

6th Circuit Uphold Wal-Mart's Firing of Employee Who Used Marijuana Under Michigan's Medical Marijuana Law

The Court of Appeals for the Sixth Circuit issued a decision recently upholding the termination of a former Wal-Mart employee who had been prescribed medical marijuana under Michigan's Medical Marihuana Act (MMMA), which was enacted in 2008.  

The employee, Joseph Casias, received a medical marijuana registry card from the state, and he began using the drug to manage his pain that stemmed from sinus cancer and an inoperable brain tumor.  In November 2009, Casias injured his knee at work. He went to the hospital, where he received a standard drug test because of Wal-Mart policy. Prior to the test, he showed his registry card to the testing staff.  When the test inevitably came back positive for marijuana, Casias showed his shift manager, Troy Estill (who was later named as a defendant for terminating Casias) the registry card and told the manager that he never smoked marijuana at work or came to work under the drug's influence. However, Wal-Mart's corporate office in Arkansas ordered store manager Estill to fire Casias because of the failed test, and Estill did so on Nov. 24.

Casias sued the company and Estill for wrongful discharge and violation of the MMMA. The U.S. District Court for the Western District of Michigan decided that the MMMA “contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses.” The district court said the word “business” in the statute does not regulate private employment actions ( 764 F. Supp. 2d 914, 31 IER Cases 1565 W.D. Mich. (2011); (29 HRR 216, 2/28/11).  The 6th Circuit agreed.

Casias argued that the term “business” in the MMMA is independent, while Wal-Mart countered that it modifies the phrase “licensing board or bureau.” The Sixth Circuit sided with the company's interpretation.  As is done in cases calling for statute interpretation, and highlighting the importance of carefully crafting groundbreaking legislation like the MMMA, the Court ultimately held that the MMMA does not govern private employment actions and noted that other states, California, Montana, and Washington have found that their states' similar medical marijuana laws do not govern private employment actions.

The case is Casias v. Wal-Mart Stores Inc., 6th Cir., No. 11-1227, 9/19/12

Monday, September 24, 2012

7 Paycheck No-No's the Department of Labor is Focusing On

Here is a quick, easy-to-understand list of the top 7 law violations the Department of Labor targets as they prove to be the biggest laws employers break.  Employers are always encouraged to evaluate how they classify and pay employees to avoid expensive lawsuits and litigations and employees are encouraged to speak with wage & hour attorneys if they suspect they are not being paid properly.

1. Failure to insure that subcontractors follow the law

General contractors are responsible not only for their own violations of federal labor law, but also for those committed by their subcontractors.

2. Employees working more than 60 hours per week without proper payment

The most egregious problem with workers who work over 40 hours a week is failure to pay at all for all hours worked. It’s not unusual to find workers who are paid for 40 or 50 hours but essentially forced to work 60 hours.

3. Failure to pay required prevailing wages and overtime compensation

Prevailing wage is generally interpreted as the union wage for the area. Of course, any overtime earned must be paid at the prevailing wage rate.

4. Providing inaccurate or falsified payroll records to the government


Obviously, providing falsified records is not a wise practice. However, many submitted records are merely inaccurate. In fact, most experts admit that probably no organization has perfect pay records. But there are common problems that you can watch out for:
  • Clock in and clock out procedures, including especially rounding rules that favor the company and not the employee.
  • Automatic deductions for meal periods. Problems tend to occur when an employee works through part or all of the meal period, but the time tracking system deducts the time. For example, if employees are taking phone calls during lunch, they are probably working.
  • Changes made by supervisors and not checked by employees.
5. Failing to keep accurate records of hours employees worked

Records must be detailed. For example, “8 hours” today is not enough. Note time in, time out for lunch, time in from lunch, and time out at the end of the day. Have employees sign that their time card or other record is “an accurate and full accounting of hours worked for the period.”

6. Failing to pay for all hours employees worked


As was mentioned in yesterday’s Advisor, this failure usually arises from people taking work home or being requested to work before clocking in or after clocking out.
One important point: If employees do work extra hours, you have to pay them, even if you have specified that they can’t work extra hours without permission. (You can discipline them for doing the work, but you still have to pay them for it.)
One new twist here is the rise of cell phone/e-mail use outside of work hours. If non-exempt employees are answering phone calls or dealing with e-mail off hours for more than a de minimus time frame, they are probably working and need to be paid for those hours.
7. Improperly classifying employees who performed work on the projects, resulting in the underpayment of wages and fringe benefits.

Misclassifying (calling employees exempt who should be classified as non-exempt) is a sticky problem. There is a lot of grey area in the supervisory ranks. The general rule is that it’s better to sort out these difficulties before work begins. After the fact, there are lawsuits, class actions, and other expensive challenges to be dealt with.

Wisconsin Piggly Wiggly Supermarkets Settle Numerous Cases with NLRB

The National Labor Relations Board (NLRB) has announced settlements in numerous cases involving six stores part of Sheboygan, Wisconsin-based Piggly Wiggly supermarkets.  From the press release on the settlements, which included signing collective bargaining agreements with the union representing its employees, reinstating discharged workers, providing about 500 employees a total of more than $570,000 in backpay, and keeping open a store that had been slated for closure: 

The settlements signed by Piggly Wiggly Midwest, LLC, based in Sheboygan, resolve cases involving six stores that began in 2009 and were in various stages of litigation. As a result, the parties agreed to seek dismissal of a case pending in the 7th Circuit Court of Appeals, and Piggly Wiggly agreed to drop its opposition to the enforcement of a Board order in another case.  A third set of cases scheduled for trial were resolved by a formal agreement that requires approval by the Board in Washington.  A fourth set of cases still under investigation were withdrawn.
The employees, represented by UFCW Local 1473, agreed to accept a reduced amount in bargaining-related backpay to facilitate the employer’s agreement to keep the Sheboygan store open.
 Congrats to the NLRB Region 30 office based in Milwaukee on this resolve of multiple cases years in the works.

Wednesday, September 19, 2012

September Edition of the Employment Law Blog Carnival

Daniel Schwartz was this month's host for the monthly Employment Law Blog Carnival over at his blog, "Connecticut Employment Law Blog."  It is available for viewing here.

Wednesday, September 12, 2012

7th Circuit Holds Reassignment to Vacant Position is Reasonable Accommodation Under Americans with Disabilities Act

The Court of Appeals for the Seventh Circuit recently issued a decision holding that the Supreme Court's ruling in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) overrules precedent set in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), which held that the Americans with Disabilities Act (ADA) did not require employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified.


In overturning their previous precedent, the 7th Circuit held:
We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accom- modations would be ordinarily reasonable and would not present an undue hardship to that employer.
The case, EEOC v. United Airlines Inc.No. 11-1774,  stemmed from the EEOC's issue with United Airlines accommodation policy which stated that “transfer . . . [to] an equivalent or lower-level vacant position” may be a reasonable accommodation, the guide- lines specify that the transfer process is competitive. Accordingly, employees needing accommodation will not be automatically placed into vacant positions but instead will be given preferential treatment.  The EEOC believed the Supreme Court's ruling in Barnett required employers to reassign disabled employees needing accommodation into positions they were qualified for so long as it was reasonable and did not pose an undue hardship to the employer.  The district court did not agree with the EEOC and dismissed the case pursuant to FRCP Rule 12(b)(6).

The 7th Circuit was careful to note that some employers, in making reassignment decisions and transfers, use a seniority system and noted that an employer can state the reassignment may be reasonable in the presence of a seniority system--but did not create a per se rule noting an employee can point to "special circumstances" warranting the reassignment even in the presence of a seniority system.

With respect to employers with a "best hire" practice (i.e., choosing the best candidate over the employee needing an accommodation), the Court held that the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy.  For this reason, the Court held that it erred in a 2002 decision in Mays v. Principi, 301 F.3d 866 (7th Cir. 2002) that held that an employer did not violate the duty of reasonable ac- commodation in the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., by giving an administrative nursing position to a better qualified applicant, rather than to a disabled employee needing reassignment.

The 7th Circuit remanded this case back to the district court with the following instructions in following Barnett:
On remand, the district court must conduct the Barnett analysis. In this case, the district court must first consider (under Barnett step one) if mandatory reassignment is ordinarily, in the run of cases, a reasonable accommodation.3 Assuming that the district court finds that mandatory reassignment is ordinarily reasonable, the district must then deter- mine (under Barnett step two) if there are fact-specific considerations particular to United’s employment system that would create an undue hardship and render manda- tory reassignment unreasonable.
Luckily for the plaintiff in the case, United has no seniority system for reassignments so the first step will be easy to deal with and the second step requires the employer to show some sort of special consideration that would make the accommodation unreasonable.

Monday, September 10, 2012

New York Federal Court Allows Latino Employee's Hostile Work Environment Claim to Move Forward for Being Called a "Monkey"

A former employee, Fernando Marrero, of a moving and storage company filed claims alleging race-based discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296 et seq.  A federal judge granted summary judgment in part and denied in part allowing the employee's hostile work environment claims to move forward based on, inter alia, the employee's almost-daily being called a "monkey" and coworkers' repeated throwing of monkeys at him, monkey noises made in his presence, posters of a monkey and his name written on it posted in numerous locations in the workplace, and even a banana presented to him as a joke.  After repeated complaints to management that went nowhere and actually and incredibly led to harassment from management itself, the employee eventually quit after he noticed his work hours reduced.  What makes this case interesting and unique is the fact the employee is Latino and "monkey" is most often referred to as an ethnic slur used on black people.  Nevertheless, the Court allowed the hostile work environment claims to move forward to a jury.

In allowing the employee's hostile work environment claim to move forward on his incessantly being called a "monkey" in the workplace, the Court reasoned that:

[T]he fact that plaintiff is not specifically of African heritage would not prevent a jury from concluding “monkey” was a derogatory reference to his race. Plaintiff self-identifies as a dark-skinned, dark-haired Hispanic man. He testified he understood “monkey” to be a reference to his physical appearance.  Plaintiff also submitted an affidavit from a Hispanic co-worker, Joseph Amadiz, who witnessed plaintiff being called “monkey” and interpreted “monkey” to be a derogatory reference to plaintiff’s race.  As plaintiff rightly notes, although nicknames were common between employees at R-Way, none of the nicknames given to other employees had any racial connotation.
The Court also noted that the employee was called a "monkey" by another Latino employee but the plaintiff told the other Latino not to be an "Uncle Tom" and engage in the harassment and also noted that Latino is a term that encompasses a variety of Latino countries with people of differing physical features as plaintiff was in fact darker than his other Latino coworkers.

This is a very thoughtful opinion from the Court that acknowledges differences in ethnicities and does not allow the employer to attempt to make a silly, clever argument that "monkey" can only be a racial slur against African-Americans or other African decent employees.  Clearly this plaintiff was being taunted for his physical characteristics stemming from his ethnicity and race and the Court was wise to see that.

[Plaintiff's retaliation claims were dismissed for failure to show a causal connection between his protected activity of complaining about the harassment and his reduction in hours and constructive discharge.]  

The case is Marrero vs. R-Way Moving & Storage, Ltd., , Case No. 10 Civ. 5838 (US Dist. EDNY)

Wednesday, September 5, 2012

Nominations for ABA's Annual Blawg 100 Due!

A friend just reminded me that it's that time of the year for nominations to be submitted to the ABA for their annual Blawg 100.  Nominations may be submitted here and no pressure to vote for this blog at all :-)