Monday, December 9, 2013

Madison Passes Ordinance Banning Unemployment Discrimination

Just a few days ago, in a landmark move, the Common Council of Madison, Wisconsin passed ORD-13-00211 to prohibit employers from discriminating against job applicants based on their unemployment status.  Madison, in passing this new anti-discrimination ordinance, joins a small group of areas across the country that have done the same as it is not likely such will become federal or even Wisconsin state law.  

New Jersey, Oregon and the City of Chicago ban advertisements that disallow unemployed individuals from applying and Washington D.C. and the City of New York have curtailed the consideration of an applicant's unemployment status in adverse hiring decisions. 

As many employment law practitioners are already aware, the City of Madison offers significantly protective ordinances to protect employees and ORD-13-00211 amends Section 39.03 of Madison's Equal Opportunities Ordinance to prohibit employers from discriminating against individuals based on their unemployment status with respect to their compensation, or the terms, conditions, or privileges of employment. Along these lines, employers may not limit, segregate, or classify employees or job applicants based on unemployment status so as to deprive them of employment opportunities or otherwise adversely affect their employment status.  The new ordinance does, however, expressly allow employers to inquire into or consider the facts or circumstances that led to the applicant's unemployment.  Like the NJ, OR and Chicago laws, it is also unlawful to discriminate in job advertisements.

It will be curious how difficult it will be for those who file complaints under this new ordinance with the Madison Equal Opportunities Commission to prevail and what is needed to meet their burden but at least perhaps a few employers will consciously cease discriminating against unemployed applicants in this increasingly competitive job market.

Wednesday, November 20, 2013

Employee Privacy and Smart Phones: Even if Employers Give Phones to Employees, Don't Read Personal Content!

Evolving and new technology will always present new issues and questions for present laws.  In the employment law context, a trend that has been around for quite some time is employers providing employees with smart phones, which allow people to store all kinds of personal information from pictures, to text messages, to emails.  The issue then becomes, if the phone is property of the employer, does the employee have an expectation of privacy if they choose to store personal content in the phone?  A former employee of Verizon in Ohio has sued asserting her right to privacy.

The case, Lazette v. Kulmatycki (N.D. Ohio, June 5, 2013), involves a former Verizon employee, Sandi Lazette, who was issued a Blackberry.  Lazette chose to use the phone to receive and send personal emails from a Gmail account with the employer's permission.  When Lazette went to leave her job with Verizon and turn the phone in, she thought she deleted the Gmail account from the phone as it was known the phone would be given to another employee but she did not delete the account properly and her former supervisor reviewed her emails.  Lazette sued Verizon and her supervisor for violating the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., and her common law right to privacy, among other things.  The Defendant filed a motion to dismiss which was granted in part and denied in part (the Order is available here).  The SCA claim and state common law claims survived the motion to dismiss.

The court held that Plaintiff could not prevail on claims based on access to emails she had previously opened but not deleted, but declined to dismiss claims based on those emails that were accessed by the former supervisor before being opened by the plaintiff.  While the court largely rejected Defendants’ assertions, it did find in favor of Defendants--at least partially--with regard to the question of whether all of the accessed emails had been in “electronic storage”--a question that would affect liability under the SCA, which narrowly defines "electronic storage."

Though this case may not have huge implication on Wisconsin law, it will certainly be interesting to see how this case plays out as it is an issue certain to become bigger as technology and employer-issued smart phones are used in the workplace.

November Edition of the Employment Blog Carnival is Live!

Attorney Eric B. Meyer over at his blog, "The Employer Handbook," hosted this month's edition of the employment law blog carnival.  Check it out here!

Tuesday, November 12, 2013

Pregnancy Accommodation in the Workplace May Be Decided by Supreme Court

Apparently the Supreme Court of the United States asked the Solicitor General's opinion last month as to whether to accept the case of Young v. UPS for next year’s term.  For those that don't know, Young was a delivery driver for UPS who became pregnant and was not able to return to work due to a lifting restriction imposed by her physician.  Thus, UPS was unable to return to her previous position as a delivery driver during her pregnancy.  This then prompted Young to request a temporary light duty assignment.

Pursuant to the collective bargaining agreement with Young’s union, UPS provided temporary modified work assignments only in specific situations. UPS offered light duty assignments to employees who were injured on the job, who were suffering from a disability as defined by the Americans with Disabilities Act (ADA), or to drivers who lost their Department of Transportation certification due to, among other things, failed medical exams. As pregnancy itself is not considered a disability under the ADA, under UPS’s policy and the CBA Young was ineligible for light duty work based on limitations arising solely as result of her pregnancy.

Young then sued after she went on an extended, unpaid leave of absence, claiming that UPS' policy of providing light duty work to some employees but not to pregnant workers like herself violated the Pregnancy Discrimination Act under Title VII.  However, both the district and the Fourth Circuit Court of Appeals ruled in favor of UPS because current laws regarding pregnant employees do not provide for any extra protections than are provided for other temporarily-disabled employees.

This will be interesting to watch if the Supreme Court grants writ and hears this case since there have been efforts to pass legislation providing the type of protection that would have covered Young--the Pregnant Workers Fairness Act.  If the Supreme Court ultimately finds UPS violated the Pregnancy Discrimination Act, it may invalidate the need for passage of the Pregnant Workers Fairness Act.

Monday, November 4, 2013

Boehner Claims ENDA Would Spark Litigation Avalanche, Statistics Not Supportive

Earlier today the Employment Non-Discrimination Act passed vote  to end debate in the Senate 61-30.  A final vote is expected this Thursday in the Senate with passage in the House looking very dim.  Recently, Speaker John Boehner (R., Ohio), in voicing objection to passage of the bill stated that "...[t]his legislation will increase frivolous litigation and cost American jobs, especially small-business jobs,”  However, data and statistics according to a report released in July by the U.S. Government Accountability Office. The agency examined the number of complaints filed in the 21 states – 22, including the District of Columbia – with laws on the books forbidding discrimination against lesbian, gay and bisexual workers. Eighteen of those states also ban workplace discrimination on the basis of gender identity, which would apply to transgender people.  From the Wall Street Journal article on the Speaker's remarks:
The data “show relatively few employment discrimination complaints based on sexual orientation and gender identity,” the GAO found. The agency looked at data provided by the states for the years 2007 to 2012. 
In Wisconsin, for example, only 69 of the 3,383 employment discrimination grievances filed in 2012 – or 2% — included sexual orientation as a basis. In Oregon, it was 30 out of 1,676 complaints (1.8%); in New York, 243 out of 5,032 (4.8%); and in California, 1,104 out of 19,839 (5.6%). 
The low numbers partly reflect the fact that only a small percentage of the U.S. population identifies as gay, lesbian or bisexual – 4%, according to the Williams Institute, a research organization based at the University of California School of Law. The Institute estimates that 500,000 Americans are transgender.
Though Wisconsin  provides for protection against employment discrimination on the basis of sexual orientation, further protection at the federal level would better protect employees as the remedy available for a violation found under the Wisconsin Fair Employment Act (WFEA) is limited to a make-whole remedy (i.e., back pay, attorney's fees, lost benefits, etc).  ENDA would provide for similar remedies as other federal anti-discrimination laws in the form of punitive and/or compensatory damages.  Stay tuned!

Wednesday, October 30, 2013

ENDA Could Finally Make Progress in Congress As Early as Next Week

Today Twitter was buzzing about news that the Employment Nondiscrimination Act (ENDA) is expected to be introduced in the Senate by Senator Harry Reid of Nevada, the majority leader, as soon as Monday.  60 votes are needed to overcome a filibuster and it appears there's about 59 votes in support of ENDA.  The New York Times reports:  

The Republicans who are expected to vote yes are Susan Collins of Maine, Orrin G. Hatch of Utah, Mark S. Kirk of Illinois and Lisa Murkowski of Alaska. Ms. Collins and Mr. Kirk, who are cosponsors of the bill, have been working to persuade colleagues on their side of the aisle.
So far, the most likely undeclared Republican supporter appears to be Rob Portman of Ohio, who said this week that he was inclined to vote yes. Mr. Portman said earlier this year that he had come around on the issue of same-sex marriage after learning that his son is gay.
While Mr. Manchin’s support makes it much more likely that the bill will get through the Senate, the Republican-controlled House of Representatives is another story.
Along with no federal protection against  discrimination against people on the basis of sexual orientation and gender identity, there are also 29 states that also do not provide such protection as well.  Wisconsin, under the Wisconsin Fair Employment Act (WFEA), does provide such protection.

I have previously written about ENDA and those posts can be found here.

Happy Birthday, Pregnancy Discrimination Act of 1978

Today the Pregnancy Discrimination Act of 1978 turned 35 years old!  Though the legislation has been important and useful to expecting workers, more protection is still needed that the Pregnant Workers Fairness Act would provide but has yet to make progress in Congress.

Tuesday, October 29, 2013

5th Circuit Holds "Locker Room Talk" in All-Male Workplace Constitutes Sexual Harassment

In an interesting decision out of the Court of Appeals for the Fifth Circuit, a 10-6 majority held that the crude sexual banter and ribbing of a heterosexual male worker by a heterosexual male supervisor could constitute sexual harassment under Title VII.  

The case, EEOC v. Boh Brothers Construction Company, involved an iron worker and structural welder, Kerry Woods, who had a supervisor, Chuck Wolfe, that allowed and cultivated what the 5th Circuit called, "an undeniably vulgar place" where "very foul language" and "locker room" talk was commonly used.  After Woods revealed that he used “Wet Ones” instead of toilet paper at the work site, he was consistently targeted by Wolfe for being “kind of gay” and “feminine,” and was called a “princess,” a “pu–y,” and a “fa–ot,” two to three times per week.

The facts get even worse:

Wolfe approached Woods from behind and simulated anal intercourse with him, exposed his penis to Woods while urinating, suggested that Woods perform fellatio on him, and made crude remarks about Woods’ daughter — all of which caused Woods to feel “embarrassed and humiliated.”  The evidence suggested, however, that while Wolfe thought that Woods was “not manly enough,” he did not in fact believe Woods to be a homosexual.  The evidence also suggested that Wolfe used similar language in speaking with other workers, and that vulgarity was commonplace there.

The Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Woods against the employer, Boh Brothers, and a jury found that Boh Brothers was liable for damages arising from the sexual harassment of Woods by Wolfe. Boh Brothers appealed to the 5th Circuit.  

The Fifth Circuit held that a sexual harassment claim could be established by showing “evidence of sex-stereotyping” and thus “the EEOC may rely on evidence that Wolfe viewed Woods as insufficiently masculine to prove its Title VII claim.”  In this, the Court held, the focus is on the alleged harasser’s subjective perception of the victim.

In other words, the Court did not “require a plaintiff to prop up his employer’s subjective discriminatory animus by proving that it was rooted in some objective proof; here, for example, that Woods was not, in fact, ‘manly.’” Here, Wolfe’s subjective believe that Woods was not manly enough was sufficient to establish that he harassed woods “because of . . . sex,” as required under Title VII.
In so ruling, the Fifth Circuit explained that Title VII is not “a general civility code of the American workplace.”  However, Judge E. Grady Jolly, in his dissent, accused the majority of doing just that: “The vulgarities can cast turmoil on a strong stomach, but that does not mean that the laws of the United States have been violated, and it does not require Title VII and the EEOC to serve as federal enforcer of clean talk in a single sex workforce.”
The dissenting opinions took aim at the decision fearing it may spark an avalanche of litigation in response to vulgar language in the workplace, which they claimed is "ubiquitous in today’s culture and is everywhere else protected from government diktat by the First Amendment."

Two Recent Developments in Overtime and Wage & Hour Law

Attorney Danny Wash over at his blog, "Texas Employee Rights," has an excellent summary of two developments in wage & hour law:

The first area deals with the “fluctuating workweek”. The Fair Labor Standards Act (FLSA) requires that employees that are not qualified as exempt (usually called “non-exempt employees”) from overtime receive one & one-half times their regular rate of pay for any hours worked in excess of 40 in a workweek. This general rule applies to hourly employees and to salaried, non-exempt employees, such as clerical or certain administrative employees. The area of exempt vs. non-exempt is fairly complicated and information about these classification can be found by clicking on this link. If an employer makes a mistake in classifying an employee as exempt and does not pay overtime, the employer would owe the employee back pay at a rate of 150 percent of the employee’s regular rate for the overtime hours worked. 
The fluctuating workweek exception (FWE) may apply to salaried, non-exempt employees but not to hourly employees. The key to whether or not the FWE may be utilized is the actual agreement between the employee and employer. The bottom line is whether or not there was an agreement made between the employer/employee before the method was utilized. The agreement does not have to be written and can be proven by statements or actions of the parties. The importance of the FWE is that if there is an agreement that the salary paid is intended to cover all hours worked by the employee during the workweek, then any hours worked over 40 in the week will be compensated as overtime by payment of an additional 50% of the weekly rate (instead of 150%) for each overtime hour worked (calculated by dividing the number of hours actually worked in the subject week by the salary amount for the week). An example would be if the weekly salary was $1,000 and the employee worked 50 hours during the week, the overtime would amount to $100 ($1000/50 hrs.= $20/hr; 50% of $20= $10/hr overtime rate; $10 x 10 hrs= $100 overtime pay). 
The second important overtime area is one that will not be effective until January 1, 2015. This area involves home care employees. At present, home care companies can compensate their home care employees utilizing the “companionship” exemption to paying overtime and pay them on a salary basis. The exemption is generally applicable to any employee who provides services for the care, fellowship, and protection of persons who, because of advanced age or infirmity, cannot care for themselves. The exemption covers employees engaged in a wide variety of care jobs of the home bound persons. Under the new rule, the exemption will change and will only apply to individuals employed directlyby the household. Those workers who continue to work through an agency will become hourly workers subject to the duty to pay them overtime for each hour worked over 40 hours during a workweek.
These are fairly complex and complicated areas to understand so if you believe you are not being paid correctly, it is best to consult with a wage & hour attorney.

Wednesday, October 16, 2013

October Edition of the Employment Law Blog Carnival is Live!

Attorney Tim Eavenson, at his blog, Current Employment, hosted this month's edition of the Employment Law Blog Carnival, titled, "Haunted House Edition."  Be sure to check it out!  #ELBC

Amazon Sued in Class Action For Unpaid Security Screenings

Popular online merchant Amazon has been sued by a Pennsylvania employee who filed a class action law suit alleging that Amazon put him and other workers through extensive 10-20 minute security screenings when they were off the clock. The screenings took place when employees entered the building and again after they clocked out for lunch and for the day, during which they were not being paid.

Inside Counsel has a short write-up of the lawsuit: 

The complaint was filed in a Philadelphia court house and alleges that daily, over 100 workers were subjected to these extensive and unpaid security screenings. The suit attempts to recoup lost wages for the time associated with the frisks.
“Defendants have never paid warehouse workers for time spent processing through this required post-shift screening process prior to exiting the Amazon Fulfillment Center,” Amazon said in court documents stated. “As a result of the compensation practice utilized by defendants, warehouse workers are not compensated for all time during which they were required to be on the premises of the Amazon Fulfillment Center.”  
This is the second suit against Amazon alleging improper compensation in relation to security screening time. A similar suit was brought in September by a group of workers in a Tennessee fulfillment center. Plaintiffs in that case where offered a settlement that reimbursed them for the time that they lost during the frisks.
This often-litigated issue is known as "compensable time" under the Fair Labor Standards Act (FLSA).

Monday, October 14, 2013

New York Court Rules Unpaid Interns Not Able to Pursue Sexual Harassment Claims Against Workplace

A New York federal district court ruled last week that an unpaid intern from China, Lihuan Wang, could not pursue  a sexual harassment claim under New York human rights laws because she was not paid, and therefore not considered an employee.  Most people are probably not aware that most every employment law statute only governs an "employee-employer" relationship and often times the focus of litigation may be whether this relationship exists.  It's part of the reason there is the independent contractor label and the issue of potential employee misclassification. 

Yahoo! Finance has a nice write-up of the court decision:

In a lawsuit, she said the station's Washington D.C. bureau chief Zhengzhu Liu sexually harassed her after luring her to his hotel room on the pretext that he wanted to talk about her job performance and the possibility of hiring her full time.

When the two were alone, Wang alleged that Liu threw his arms around the then 22-year-old intern, tried to kiss her and "squeezed her buttocks with his left hand." After she refused to let him go any further and left the hotel, she said Liu no longer expressed interest in permanently hiring her.

New York Judge Kevin Castel ruled that Wang can't assert these claims, because as an unpaid intern, she didn't have the status of an employee.

"It is uncontested that Wang received no remuneration for her services," Castel wrote. "New York City's Human Rights Law's protection of employees does not extend to unpaid interns."

The Yahoo! story also points out that only one state, Oregon, has broadened out the standards for harassment to protect unpaid interns. The state passed a law in June that extends such protections to all interns, whether they're paid or not.

It is possible Wang could have pursued her harasser in his individual capacity under common laws or any specific New York law fitting the facts but employers tend to have the bigger, deeper pockets making it impractical to bring such suits against individuals.  However, if liability cannot be imputed upon the employer, then Wang, as an unpaid intern, unfortunately has to experience the harsh reality of the way employment laws are written currently.

Friday, October 4, 2013

10th Circuit Overturns Decision in Abercrombie Religious Headscarf Case

Last month I reported on a religious discrimination case filed by the Equal Employment Opportunity Commission (EEOC) against retailer Abercrombie & Fitch whereby a Court held the retailer violated Title VII when it terminated a Muslim employee for wearing a head scarf after a district manager visited the store and saw the employee's attire.  In another case involving the same claims with different facts, Abercrombie appealed a federal district court's grant of summary judgment in favor of the EEOC and against them and the Court of Appeals for the Tenth Circuit reversed and ruled in favor of Abercrombie.

From the case:

Abercrombie & Fitch ("Abercrombie") appeals from the district court's grant of summary judgment in favor of the Equal Employment Opportunity Commission ("EEOC") and the court's denial of summary judgment in favor of Abercrombie, on the EEOC's claim that Abercrombie failed to provide a reasonable religious accommodation for a prospective employee, Samantha Elauf, in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. @@ 2000e to 2000e-17. Exercising jurisdiction under 28 U.S.C. @ 1291, we reverse the district court's grant of summary judgment to the EEOC. Abercrombie is entitled to summary judgment as a matter of law because there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore her headscarf or "hijab" for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie's clothing policy. Accordingly, we remand the case to the district court with instructions to vacate its judgment and enter judgment in favor of Abercrombie, and for further proceedings consistent with this opinion.

The opinion is over 90 pages long and the case is: EEOC vs. Abercrombie & Fitch Stores, Inc., Case No. 11-5110 (10th Cir. Oct. 1, 2013)

Tuesday, September 17, 2013

11th Circuit Holds Urging an Employee to Retire is Not 'Necessarily' Evidence of Age Discrimination

In yet another case of why the facts matter in employment law cases, the 11th Circuit upheld a district court's grant of summary judgment dismissing a case in favor of an employer police department that demoted 51-year-old Captain to a Patrol Officer after his relationship with the Chief of Police soured.

The plaintiff, James Woolsey, was promoted to Captain by the same Chief of Police that demoted him because Woolsey had implemented certain practices the Chief did not agree with.  Woolsey claimed the Chief twice demanded that he retire and was silent when Woolsey asked why.  The Chief also provided Woolsey with materials for the Florida Retirement System's Deferred Retirement Option Program (DROP).  Woolsey claimed that the Chief told him that if he did not retire, he "was going to take [him] down in an embarrassing ball of flames."

What clearly killed Woolsey's case is the fact that in support of the Chief's stated reasons for Woolsey's demotion, the town submitted multiple letters of counseling/reprimand and performance evaluations issued to Woolsey explaining his specific deficiencies and what needed to be done for him to improve, including a warning of possible demotion or termination if he did not.  The Court also noted Woolsey was promoted while he was age 49.

It is usually unlawful to require or demand retirement under the Age Discrimination in Employment Act (ADEA), but interestingly enough, in upholding the lower court's decision, the 11th Circuit made little importance or significance of the Chief's retirement "suggestions."  Perhaps a plaintiff with less performance issues, a younger employee taking their place and more aggressive "suggestions" might have a different outcome.

The case is Woolsey v. Town of Hillsboro Beach (11th Cir., September 6, 2013).

Monday, September 16, 2013

Abercrombie & Fitch Loses Yet Another Religious Garb Case

In July 2011, famous clothing maker Abercrombie & Fitch (A&F) was sued by a Muslim applicant who was not hired after wearing a hijab during her interview.  A jury awarded that woman $20,000.  In late 2009, Umme-Hani Khan, then 19, started working at a Bay Area Hollister store. She wore a head scarf during her interview and regularly on the job but was allegedly fired four months later after a district manager visited the store. The manager and a corporate human resources director said the scarf violated the company dress code, according to the lawsuit.  The Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Khan in 2011 and a California district judge ruled last week that the termination violated the portion of Title VII that bars religious discrimination.

A&F maintains that the dress code goes to the “very heart of its business model” and that any deviation from it threatens its bottom line.  However, when it comes to religious garb and Title VII, unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices.  Obviously A&F has been unsuccessful in proving this undue hardship.

Damages in Khan's case will be determined later this month in a separate hearing.

Wednesday, September 4, 2013

EEOC Loses Criminal Background Check Case

Back in June I wrote about two Equal Employment Opportunity (EEOC) cases filed, one against BMW (EEOC v. BMW Manufacturing Co., LLC, No. 7:13-cv-01583-HMH-JDA, South Carolina) and the other against Family Dollar (EEOC v. Dollar General, No. 1:13-cv-04307, Illinois), on the basis of their use of criminal background checks in hiring.  Though there is no federal statute that bans discrimination on the basis of an applicant's arrest and conviction record/criminal background like there is in Wisconsin under the Wisconsin Fair Employment Act (WFEA), the theory the EEOC pursued was disparate impact under Title VII when they suggested data showed such use of criminal background checks had a disparate impact on African-American applicants.  Prior to these suits, back in 2009, the EEOC also filed a suit based on the same theory against Freedman Companies and the district court where that suit was filed recently granted summary judgment in favor of the employer dismissing this suit and the opinion was somewhat scathing.  

The law firm Fisher & Phillips, LLP has a great write-up on the opinion:

The direction of the district court’s decision was prefaced in the first sentence when it noted, “For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process.” The court went on to explain, as any retailer knows, that there are numerous legitimate reasons to employ criminal-background checks in the hiring process and noted that the EEOC itself performs criminal-background checks on applicants for every one of its positions. In light of these facts, the court concluded that “a disparate impact case must be carefully focused on a specific practice with an evidentiary foundation showing that it has a disparate impact because of a prohibited factor.” 
Under this standard, the court found the EEOC’s proof wanting in virtually every respect. The EEOC presented testimony of an expert witness, whose statistical analysis of data obtained from Freeman showed that Freeman’s use of criminal-background checks had a disparate impact on African-American males. The district court concluded that the database upon which the expert had based his report contained so many fallacies and errors that it rendered any conclusion based on that database unreliable. 
Some of the problems stemmed from the expert’s failure to use a random sample of the data provided it by Freeman. Rather, the expert “cherry picked” the data for inclusion, suggesting he was manipulating the underlying data to reach a predetermined result.
Next, the court noted that the analysis did not address decisions made over the time frame at issue. Finally, the court pointed out that the expert had hand picked additional data to add to the database to further manipulate the results in favor of the EEOC’s position calling this “an egregious example of scientific dishonesty.” 
The EEOC tried to save its case by relying on national data contained in the reports. The district court quickly rejected this attempt noting that the generic national data did not reflect the applicant pool. After noting several other flaws in the information, the district court excoriated the EEOC noting, “By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.” 
The most compelling aspect of the decision is not that it broke any new ground on the issues of the use of statistics in disparate-impact cases or in the use of criminal-background checks. Rather, it was the district court’s concluding that the EEOC brought a massive case against an employer using an expert who cooked the books to prove a fact that was not true.

Apparently, Texas has passed legislation protecting employers' against liability from negligent hiring which allows employers to not only avoid suits based on use of criminal background checks by not having to use criminal background checks at all, but shields them from liability in hiring those with criminal records who later commit some sort of crime during the course of their employment.  Thus, it may appear, likewise, potentially depending on the outcome of the cases against BMW and Family Dollar, that the only way the EEOC will win these cases is likewise with legislation specifically passed to ban use of criminal background checks just as it is under the WFEA.  Stay tuned!

Tuesday, September 3, 2013

70% of Sexually Harassed Workers Say They Didn't Report it to Their Employers

A new HuffPost/YouGov poll revealed that one in five women say they have been sexually harassed by a superior at work, while one in four report being harassed by another coworker.  Men also report sexual harassment, with 6 percent saying they were harassed by a boss and 14 percent by a coworker.  Yet while overall 13 percent of all workers say they were harassed by a superior and 19 percent report receiving that treatment from another colleague, 70 percent say they didn’t report the harassment to their employers.  There were over 11,000 sexual harassment charges filed against employers in 2011, but that figure is clearly far below the actual number of instances given how few people report the problem.

Hat tip Think Progress for the story.

Wednesday, August 21, 2013

6th Circuit Overturns NLRB Decision, Finds Nursing Home RNs Are Supervisors

A highly contested and litigated issue in labor law is the issue of whether certain employees are "supervisors" or "employees" for purposes of organizing under the National Labor Relations Act ("NLRA") as supervisors and managers are not able to organize and become part of bargaining units.  Even though some workers have labels and job descriptions suggesting they are a manager or supervisor, these inquiries are highly fact-specific.  A recent case, GGNSC Springfield LLC v. NLRB, highlights exactly that issue.   

In GGNNSC, the International Association of Machinists and Aerospace Workers, AFL-CIO (the “Union”), petitioned the Board and sought to represent the Center’s RNs in collective bargaining. The Center opposed the petition, claiming that its RNs (all charge nurses) were “supervisors” under the Act and therefore not permitted to unionize. See 29 U.S.C. §§ 152(3), 157. A hearing was held where evidence was received. In November 2011, the Board’s regional director concluded that the RNs are not supervisors, certified the requested bargaining unit, and directed an election. The Board declined further review. The following day, the RNs elected the Union as their bargaining representative.

A week later, the Union asked the Center to bargain with it. The Center refused, prompting a complaint with the Board that alleged unfair labor practices. See 29 U.S.C. § 158(a)(1), (5). The Center admitted its refusal to bargain and contested only the regional director’s decision to certify the bargaining unit. The Board sustained the Union’s complaint and ordered the Center to bargain with it. A petition for review to the 6th Circuit and cross-application for enforcement followed.

The NLRA creates “a three-part test for determining supervisory status.” NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 712–13 (2001). Individuals are supervisors if (1) they hold the authority to engage in any one of the twelve listed supervisory functions, (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.” 29 U.S.C. 152(11); see Kentucky River, 532 U.S. at 713. The burden of proving supervisory status falls on the party asserting it. Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 305 (6th Cir. 2012).

In reversing the Board's decision, the 6th Circuit found that the NLRB had misapplied the term “discipline” contained in the statute by concluding that discipline meant the employee must suffer some immediate adverse employment action, such as suspension or termination. The problem with the NLRB’s view was that the term “discipline” was one of twelve supervisory functions, including suspension and termination:  “any individual having authority . . . to . . . suspend, . . . discharge, . . . or discipline other employees . . . .”  

Since the RNs had the authority independently to write memoranda that automatically resulted in a written warning, it was clear to the Sixth Circuit that RNs were supervisors because they exercised authority to discipline.  The GGNSC disciplinary policy did not include verbal warnings as a step in the disciplinary process. As a result, the Sixth Circuit found that merely deciding whether to give a verbal warning would not constitute discipline. Presumably, if the employer’s policy had included verbal warnings in the process, this might have been sufficient also. 

The key take away in cases like these is that giving a certain type of employee a supervisory title and having a job description filled with supervisory functions and responsibilities will not make them "supervisors" under the NLRA unless this is all actually occurring in the workplace and in practice.  

August 2013 Employment Law Blog Carnival is Live

The August edition of the Employment Law Blog Carnival is live and available over at The Employer Handbook.  Be sure to check it out and enjoy!

Monday, August 19, 2013

Wounded Veteran Wins Disability Discrimination Lawsuit Against FBI

Late last month I wrote a brief article on the trial set in Wisconsin native Justin Slaby's lawsuit against the FBI when he was dismissed from FBI  training academy due to his prosthetic hand.  The trial has since ended and a jury awarded Slaby $75,000 in damages and reinstatement back into the academy.

From the article on the jury award and trial:

During the trial, Slaby showed the jury that he could hold a gun and pull the trigger with his prosthetic hand, which resembles a mechanical claw. Lawyers for the FBI argued that a piece of the claw could accidentally bump the trigger because of his grip. 
But Slaby’s attorney, Kathy Butler, argued that the FBI prejudged Slaby even before he was tested and decided they were not going to give him a chance. 
John Griffin, another attorney for the veteran, argued that Slaby, who is right-handed, can fire a gun with his uninjured right hand, and that there is no FBI requirement that an agent prove he can fire a gun with his non-dominant hand. He also argued that other FBI agents have injuries similar to Slaby’s.
Any time a plaintiff wins a disability discrimination case it is a big deal because it is difficult to win such claims, even in light of the Americans with Disabilities Act Amendments Act.  Slaby still has hurdles as the FBI could appeal and even if they do not, he still has to get through training academy.  Congrats to Mr. Slaby either way.

Wednesday, August 7, 2013

7th Circuit Holds a Party's Affidavit May Create a Material Factual Dispute for Summary Judgment Purposes

The Court of Appeals for the Seventh Circuit, although upholding grant of summary judgment in favor of the employer, took a moment to issue a ruling overruling a string of precedent that suggested a plaintiff may not rely on “self-serving” evidence to create a material factual dispute for summary judgment purposes. 

(See, e.g., Broaddus v. Shields, 665 F.3d 846, 856 (7th Cir. 2011); Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006); Scaife v. Cook Cnty., 446 F.3d 735, 741 (7th Cir. 2006); Smith v. Potter, 445 F.3d 1000, 1009 (7th Cir. 2006); Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006); Witte v. Wis. Dep’t. of Corrections, 434 F.3d 1031, 1037 (7th Cir. 2006); Evans v. City of Chicago, 434 F.3d 916, 933 (7th Cir. 2006); Rogers v. City of Chicago, 320 F.3d 748, 751 (7th Cir. 2003); Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002); Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); United States v. Raymond, 228 F.3d 804, 814 (7th Cir. 2000); McPhaul v. Bd. of Comm’rs of Madison Cnty., 226 F.3d 558, 564 (7th Cir. 2000); Cable v. Ivy Tech State College, 200 F.3d 467, 478 (7th Cir. 1999); Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999); Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999); Taylor v. Monsanto Co., 150 F.3d 806, 809 (7th Cir. 1998); Patterson v. Chicago Ass’n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998); U.S. for and on Behalf of Small Bus. Admin. v. Torres, 142 F.3d 962, 968 (7th Cir. 1998); Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir. 1997); Darnell v. Target Stores, 16 F.3d 174, 177(7th Cir. 1994); Unterreiner v. Volkswagen of Am., Inc., 8 F. 3d 1206, 1210 (7th Cir. 1993); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993); McDonnell v. Cournia, 990 F.2d 963, 969 (7th Cir. 1993); Kornacki v. Norton Performance Plastics, 956 F.2d 129, 132 (7th Cir. 1992).)

The issue came about in Hill v. Tangherlini, No. 12-3447 (7th Cir. Aug. 2013) when the lower district court discredited Hill’s testimony about his interactions with coworkers because of its “self-serving” nature. Hill v. Johnson, No. 11 C 2144, 2012 WL 4483442, at *2 n.6 (N.D. Ill. Sept. 27, 2012).  The Court stated:

This was error. Deposition testimony, affidavits, responses to interrogatories, and other written statements by their nature are self-serving. Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003). As we have repeatedly emphasized over the past decade, the term “self- serving” must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment. ...
Hill described the three encounters in his deposition based on his personal knowledge and set forth specific facts and the district court should have considered his statements as evidence. See Fed. R. Civ. P. 56(c); Kellar v. Summit Seating Inc., 664 F.3d 169, 175 (7th Cir. 2011); Whitlock v. Brown, 596 F.3d 406, 411–12 (7th Cir. 2010). 
Despite this holding, the 7th Circuit still upheld summary judgment because the plaintiff failed in other aspects of his case at the summary judgment phase--namely, he couldn't prove pretext.

Tuesday, July 30, 2013

Former Mercedes-Benz Employees Sue for Race Discrimination, Harassment and Retaliation

Two former employees of a Manhattan Mercedes-Benz dealership have filed lawsuits after receiving their Notice of Right to Sue letters from the Equal Employment Opportunity Commission (EEOC) alleging that they were subject to race harassment, discrimination and retaliation.

The Huffington Post has a good write-up of the lawsuit, which Mercedes-Benz claims is baseless:
Burnell Guyton and Andre Grammer say they found grafitti in the showroom’s bathroom featuring swastikas, an image of a stick figure hanging from a noose, and phrases like "Burnell is a dumb as [sic] n*****," according to a lawsuit filed earlier this week. The two claim they were ultimately fired for complaining about the discrimination, despite their successful work performance. ... 
Guyton, who had a 30-year career in the auto industry, including owning three dealerships before his time at Mercedes, said people were initially "resistent" when he was first hired as the only African-American manager in the showroom. He added that had heard racial discrimination being expressed verbally before the graffiti appeared. ... 
After Guyton and Grammer complained, the graffiti was painted over and the dealership's director of human resources asked the employees near the bathroom to refrain from putting racist remarks on the stalls, according to the lawsuit. But the suit claims she didn’t make an effort to investigate the source of the graffiti, make any indication that the behavior wasn’t permitted by a anti-harassment or anti-discrimination policy, or say that the behavior was unacceptable.
Mercedes-Benz claims one of the plaintiffs was terminated for cause and the other quit "without cause or provocation," which is a substantially different version from the plaintiffs who claim they were termination at nearly the exact same time.  

Monday, July 29, 2013

Florida Jury Finds Walgreens, Pharmacist Guilty of HIPAA Violations, Awards $1.44 Million

This past Friday, at the conclusion of a four-day trial, a Marion County, Florida jury awarded a woman $1.44 million after finding Walgreens and a pharmacist violated her privacy when the pharmacist looked up and shared the woman’s prescription history.  The lawsuit filed in Marion Superior Court spun out of a tangled relationship between the pharmacist, her husband and the man’s ex-girlfriend.  

From the linked-story on the verdict:
The lawsuit alleged Audra Peterson, a pharmacist at the Walgreens store at 6269 W. 38th St., improperly reviewed the prescription history of Abigail Hinchy, Crown Point, and divulged that confidential information. 
“As a provider of pharmaceutical service, defendant Walgreens Co. owes a non-delegable duty to its customers to protect their privacy and confidentiality of its customers’ pharmaceutical information and prescription histories,” Hinchy claimed in the lawsuit. 
Walgreens was negligent in training and supervising Peterson, the suit said, while Peterson breached her statutory and common law duties of confidentiality and privacy to Hinchy. 
The six-member jury found for Hinchy, ruling the pharmacist and Walgreens violated privacy rules when Peterson looked up records on Hinchy, her husband’s ex-girlfriend, according to attorney Neal F. Eggeson, who represented Hinchy. 
He said testimony indicated Peterson then shared that information with her husband, Davion Peterson, who has a child with Hinchy.

New Jersey Court Rules Casino Can Fire Waitresses That Gain Too Much Weight

The Borgata Hotel, Casino & Spa in New Jersey was sued by 22 former waitresses who believed it was unlawful for the casino to prohibit "Borgata Babes" from gaining more than 7 percent of their original body weight.  However, Atlantic County Superior Court Judge Nelson Johnson in New Jersey held that this policy is lawful in granting The Borgata's motion for summary judgment.  From the L.A. Times story on the ruling: 

New Jersey Superior Court Judge Nelson Johnson wrote last week in his ruling that the "Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons."
He said the women who sued "cannot shed the label babe" because they "embraced it when they went to work for Borgata."

This lawsuit is apparently not the first of its kind as in 2006, former Borgata Babes Renee Gaud and Trisha Hart brought a $70 million lawsuit against the casino over the same policy. Their case ended quietly with a confidential settlement two years later.  The Press of Atlantic City has a more in-depth write-up of the story and adds further information from Judge Nelson's ruling: 

Johnson said nothing bans an employer from asking employees to remain attractive, especially when they were hired in part because of their appearance. Courts have held that employers are allowed to rely upon stereotypical notions of how men and women should appear, but they cannot impose professional disadvantages based on a person’s gender.
Borgata’s practices were applied to both male and female Borgata Babes, although there are substantially fewer men employed in the positions, Johnson said. Between February 2005 and December 2010, there were 646 women and 46 men employed as Borgata Babes. Weight accommodations were made for 48 servers — all female — during that time frame.
Still, Johnson acknowledged that while Borgata’s policies are legal, they can prove problematic.
“From the court’s perspective, the term ‘babe’ is at best undignified and at worst degrading,” Johnson wrote. “Regardless, there are people in our society who view ‘babe’ as playful flattery ... To the chagrin of those in our society hoping to leave sexual stereotypes behind, some of those people are female. And some of those people may be among the plaintiffs.”

The case was part sex discrimination because the plaintiffs argued their male counterparts were treated more favorably but weight discrimination was also alleged even though Michigan is the only state that explicitly prohibits weight (and height) discrimination in statute.  Madison, Wisconsin has a local statute that forbids the same and some say there is no momentum to protect it at the federal level or in other states.  

Saturday, July 27, 2013

Wisconsin Veteran Set to Challenge the FBI in Disability Discrimination Claim

On Monday in Alexandria, Virginia, a trial will begin in a case filed by Justin Slaby, an Oak Creek, Wisconsin native against the Federal Bureau of Investigation (FBI) who he claims discriminated against him on the basis of his disability (amputation) when he was turned down for a job as an FBI agent because the FBI claims Slaby cannot safely perform several tasks required of an agent.  The Milwaukee Journal Sentinel has a nicely-written article on the case which has several huge potential implications for disabled workers in the outcome.  Definitely a case to watch.

Wednesday, July 24, 2013

Obesity to Become a "Disability" Under the Americans with Disabilities Act?

With the American Medical Association (AMA) voting last month to classify obesity as a 'disease,' many lawyers believe this means obesity will soon qualify as a "disability" for purposes of the Americans with Disabilities Act (ADA).  From Michele Bowman's article on the topic:

“[T]he AMA [has] adopted policy that recognizes obesity as a disease requiring a range of medical interventions to advance obesity treatment and prevention,” according to a news release about the AMA’s annual meeting, where the vote took place." ...  “Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” said AMA board member Patrice Harris, M.D."

The Americans with Disabilities Act Amendments Act (ADAAA) was enacted in 2009 to expand the definition of "disability" in light of many court decisions where plaintiffs failed on this prong but recent studies and statistics show the ADAAA hasn't quite had that effect.  Perhaps the AMA could be persuasive in qualifying obesity as a disability.

The EEOC has already been treating “severe obesity” – defined as having a BMI of 40 or above, or a BMI of 35 in addition to an underlying condition like diabetes – as covered under the ADA

EEOC Files First GINA Lawsuits Attacking Post-Offer Medical Exams

The Equal Employment Opportunity Commission (EEOC) filed two lawsuits against employers for their use of post-offer medical exams this past May alleging violations of the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA).  These are amongst the first ever GINA lawsuits filed by the EEOC and one of the suits settled almost immediately for $50,000.

In the first lawsuit, EEOC v. Fabricut, Inc., an applicant was sent to an employer's medical examiner for a post-offer medical examination where the examiner's standard questionnaire asked the applicant to identify and disclose disorders in her family history, including heart disease, diabetes, and arthritis. The examiner concluded that the applicant had carpal tunnel syndrome and the employer withdrew its offer of employment.  The EEOC sued the employer, alleging the employer violated GINA by requesting the family medical history on the questionnaire and violated the ADA by incorrectly "regarding" the applicant as having a disability.  This case has settled for $50,000.

In the other lawsuit, EEOC v. Founders Pavilion, Inc., a claim of pattern or practice was alleged against a New York nursing and rehab center claiming it violated GINA by requesting family medical history in its post-offer medical exams. The EEOC also alleges that the employer violated the ADA by withdrawing offers of employment based on the results of its post-offer medical exams.

GINA prohibits employers from requesting, requiring, or purchasing genetic information from applicants or employees, including family medical history. 

Staffing Agency Settles ADA Claim with EEOC for $100,000

The Equal Employment Opportunity Commission (EEOC) has announced it has settled with a staffing company, Staffmark, in a federal lawsuit it filed on behalf of Dorothy Shanks in the amount of $100,000 for their role in discriminating against her on the basis of her prosthetic leg when she was removed from her job and reassigned “because they did not want anyone bumping into her.” No reassignment was made by Staffmark and she was fired.  The EEOC also sued SONY but they continue to battle the lawsuit.

An EEOC lawyer stated that the woman “was fired because of unjustified fears about her having a prosthetic leg. Firing employees because of baseless fears and stereotypes about their disabilities is illegal, and the EEOC will defend the victims of such unlawful conduct.”  This is the latest in the EEOC's fight against staffing agencies who can not justify their actions as following an employer-client’s orders.  It is important to note that employers cannot avoid liability by saying the victim was "really employed" by the staffing agency.

The case is  EEOC v. Staffmark Investment LLC and Sony Electronics, Inc, N.D. Ill. No. 12-cv-9628.

Wednesday, July 17, 2013

July Edition of the Employment Law Blog Carnival is Up!

Attorney Robin E. Shea over at Employment & Labor Insider has hosted this month's installment of the Employment Law Blog Carnival titled, "1950's Summer Road Trip Edition," and it is quite good and fun!  Enjoy!

Wednesday, July 10, 2013

Tipped Employees and the Minimum Wage

Earlier this evening I came across a 'picture' discussing servers and the minimum wage with a goal of making patrons feel guilty if they are bad tippers--if they tip at all--but the picture was rather misleading.  A very commonly-misunderstood area of wage & hour law is tipped employees (i.e., those who customarily and regularly receive more than $30 per month in tips) and how they are paid since they are not paid like regular, hourly employees.  The Department of Labor (DOL) has an excellent break down of tipped employees and the minimum wage available here.

It is fairly well-known that tipped employees--e.g., servers and bartenders, are only paid $2.13 per hour with the rest of their income typically made up of tips from customers.  A huge misconception is that employers only have to pay $2.13 per hour and if the tipped employee receives no tips, that's all they earn.  FALSE!  The Fair Labor Standards Act (FLSA) requires tipped employees to be paid at least the minimum wage ($7.25), made up by the employer.  That is, if a waiter/waitress or bartender receive no tips in a given shift, it is the duty of the employer, under the law, to make up the difference so that employee receives at least the minimum wage.

Other helpful information regarding tips to know include:

Retention of Tips: A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. The FLSA prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. For example, even where a tipped employee receives at least $7.25 per hour in wages directly from the employer, the employee may not be required to turn over his or her tips to the employer.
Tip Pooling: As noted above, the requirement that an employee must retain all tips does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips. The FLSA does not impose a maximum contribution amount or percentage on valid mandatory tip pools. The employer, however, must notify tipped employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each tipped employee ultimately receives, and may not retain any of the employees' tips for any other purpose.
Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA. However, this charge on the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.
The DOL's website also has a list of "typical problems" associated with tipped employees that are the basis of a lot of lawsuits:
  • Where an employee does not receive sufficient tips to make up the difference between the direct (or cash) wage payment (which must be at least $2.13 per hour) and the minimum wage, the employer must make up the difference.
  • Where an employee receives tips only and is paid no cash wage, the full minimum wage is owed.
  • Where deductions for walk-outs, breakage, or cash register shortages reduce the employee’s wages below the minimum wage, such deductions are illegal. Where a tipped employee is paid $2.13 per hour in direct (or cash) wages and the employer claims the maximum tip credit of $5.12 per hour, no such deductions can be made without reducing the employee below the minimum wage (even where the employee receives more than $5.12 per hour in tips).
  • Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed all tips he or she contributed to the pool and the full $7.25 minimum wage.
Overtime Problems:
  • Where the employer takes the tip credit, overtime is calculated on the full minimum wage, not the lower direct (or cash) wage payment. The employer may not take a larger tip credit for an overtime hour than for a straight time hour (i.e., $4.00 tip credit per hour for the nonovertime hours and $5.12 tip credit per hour for overtime hours).
  • Where overtime is not paid based on the regular rate including all service charges, commissions, bonuses, and other remuneration.