Wednesday, January 29, 2014

The EEOC and "English-Only" Policies in the Workplace

A common question a lot of people ask is whether it is legal for an employer to have a policy prohibiting other languages from being spoken in the workplace, or, English-only policies.  There is no specific law that explicitly prohibits such a policy but Title VII of the Civil Rights Act of 1964 which prohibits discrimination based on national origin, among other protected characteristics, provides that a policy or practice that is job-related and consistent with business necessity is permissible, even if it’s disadvantageous to certain employees on the basis of their national origin, if no other alternative would satisfy the business necessity with less or no disadvantage to the protected group.  Thus, they are legal, with exception.

An employer asserting an English-only policy bears the burden of showing that a policy or practice is job-related and consistent with business necessity. If an employer successfully shows this, the employee must then show that an alternative policy or practice would fulfill the business need without a disparate impact.

The Equal Employment Opportunity Commission (EEOC), in its long-standing compliance manual on English-only policies, provides examples of situations in which business necessity would justify an English-only rule:
  • Communications with customers, coworkers, or supervisors who only speak English;
  • Emergencies or other situations in which workers must speak a common language for safety reasons;
  • Cooperative work assignments in which the English-only rule is needed to promote efficiency; and
  • To allow a supervisor who speaks only English to monitor the employee’s performance if his job duties require communication with coworkers or customers.
Thus, an employer policy that prohibits employees from speaking other languages in idle chat, while on break or during other non-working moments in the workplace *may* violate Title VII and the Wisconsin Fair Employment Act as it may be difficult for an employer to argue "business necessity" or speaking English only during these times.

Monday, January 27, 2014

NFL's Oakland Raider Cheerleader Sues Team for Paying Below Minimum Wage

Out of the 32 teams in the National Football League (NFL), 26 have cheerleading squads.  While it may seem like cheerleading at any level isn't a "job" as the term is used generally, the cheerleaders in the NFL are paid and the teams are subject to labor and employment laws just as any other person in a non-glamorous job.  Many women try out for these cheerleading squads every year and it is the dream of many, which opens the door for abusive practices.  One Oakland cheerleader, known as a Raiderette, knew she was not being paid correctly and has filed suit against the NFL team alleging various wage & hour law violations.

Lacy T. (team policy requires the cheerleaders real names be kept anonymous) is a 27-year-old stay at home mom who filed the suit which alleges the Raiderettes are required to take part, without pay, in two to three rehearsals per week, the 10 charity events, a team rally, Fan Day and the swimsuit calendar photo-shoot. They must also pay the costs of traveling to those events.  The Raiderettes are also responsible for paying numerous and various costs and are subject to fines for things such as bringing the wrong pom-poms or yoga mats to practice or are "benched" for gaining weight or not looking toned enough.

The Raiderettes' contract calls for $125 per home game, or $1,250 per season. That amounts to less than $5 an hour, counting hours of unpaid work in rehearsals, performances at 10 charity events and participation in the team's annual swimsuit photo-shoot, the suit said.  Additionally, the suit said, the Raiders withhold the cheerleaders' pay until the end of the season, in violation of a California state law requiring pay at least twice a month.

The suit, which is a class action suit on behalf of current and past Raiderettes from the last 4 years, seeks compensation for minimum wages, overtime, expenses and meal and rest breaks that state law requires after five hours of work.

Wednesday, January 22, 2014

6th Circuit Holds Voluntary Transfer Can Constitute Adverse Employment Action

Last week the Court of Appeals for the Sixth Circuit reversed a district court's grant of summary judgment in favor of an employer holding that transferring an employee to another position constituted an adverse employment action, despite the fact that the employee requested the transfer.  

As you may have guessed, this case contains fairly unique facts.  The plaintiff applied for a job transfer to an Equipment and Facilities Superintendent position in November 2008 because he viewed the new position would provide better potential for career advancement. The posting for the open position described the working conditions as “primarily in the office and in garage where there is exposure to loud noises and diesel fumes.” However, the plaintiff did not receive the position and complained to his supervisors about not getting the position, but the individual who did left the position shortly thereafter. In 2009, the plaintiff was finally transferred to the Equipment and Facilities Superintendent position.  

Shortly after his transfer to the new position he thought had better career advancement potential, he began to complain about the diesel fumes and alleges suffered from bronchitis and sinus headaches.  A few days after a meeting involving disagreement over the redesign of a truck, the plaintiff was hospitalized for five days, which he attributed to work-induced stress and a stress-related mental breakdown. The plaintiff then took eight month’s leave under FMLA. When he was cleared to return to work by his psychiatrist, the plaintiff learned he had been terminated for exhausting all his leave.

After his termination the plaintiff filed suit alleging race, national origin, and age discrimination. He asserted the job transfer was an adverse employment action and he was set up to fail. The District Court disagreed and granted the defendant summary judgment because it determined that transferring an employee to a position the employee applied for was not an adverse action.

In reversing the district court, the 6th Circuit noted that generally reassignments without changes in salary, benefits, or title usually do not constitute an adverse employment action. The 6th Circuit noted, however, that a job transfer may qualify as an adverse employment action where it amounts to a constructive discharge. In order for an employee to be constructively discharged, the working conditions must be objectively intolerable to a reasonable person. The 6th Circuit took it a step further and determined that a job “transfer may constitute a materially adverse employment, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability,” which the plaintiff showed in this case.

The case is Deleon et al. v. Kalamazoo County Road Commission et al., Case No. 12-2377 (6th Cir., Jan. 14, 2014).

Wednesday, January 15, 2014

January Edition of Employment Law Blog Carnival

The January 2014 edition of the Employment Law Blog Carnival is now live!  Crystal Spraggins of the HR BlogVocate is this month's host and did a great job. 

Tuesday, January 14, 2014

7th Circuit Reverses Summary Judgment in ADA Claim Highlighting Importance of Expert ADA Paperwork

In an opinion issued just yesterday, the Court of Appeals for the Seventh Circuit reversed an Indiana district court's decision granting summary judgment in a disability discrimination claim filed under the Americans with Disabilities Act (ADA) but upheld the grant of summary judgment in the plaintiff's Family and Medical Leave Act (FMLA) claim.

The case involved a forming inspector/packer, Kimberly Spurling, at a packing company, C&M Fine Pack, Inc..  Spurling worked third shift since 2004 but in 2009 began experiencing a pattern of decreased consciousness and alertness, which netted her several write-ups.  In February 2010, Spurling received a final warning/suspension when she left to use the bathroom and was found sleeping after she didn't return for 20 minutes.

Following her suspension Spurling met with the plant manager and three of her supervisors where she told them that her sleep problems were caused by medication she was taking, as prescribed.  She also provided a note from her physician which stated, "Pt was recently asked to discontinue medicine related to her passing out--please excuse symptoms [at] work."  However, Spurling had continued conscious problems while at work which led to another final warning/suspension two months later.  In response, Spurling told the employer that the sleep issues might be related to a medical condition.  The employer then provided Spurling with a letter regarding the ADA and documentation for her physician to complete.

Upon receiving this ADA paperwork, Spurling requested time off to determine the extent of her medical issues.  The employer denied that this request happened and claimed Spurling was not eligible for FMLA leave because she was facing suspension pending termination of employment.  One of Spurling's supervisors wanted to terminate her employment but it was decided they would await the ADA paperwork.  Spurling's physician filled out the ADA paperwork and stated she had a mental or physical disability covered under the ADA.  The employer did not find the physician's opinion as sufficient to establish she had a qualifying disability under the ADA and subsequently fired Spurling.

The ADA Claim

The district court granted C&M's summary judgment motion under the ADA by stating the employer could not be held accountable for discrimination under the ADA when both the employer and employee are unaware that a condition exists as on the ADA paperwork the physician stated that he was still examining Spurling and did not indicate a diagnosis.  Thus, the district court believed discrimination could not have occurred since the termination occurred prior to having any knowledge of her condition.

The Court found that C&M terminated Spurling after they had knowledge she had a disability covered under the ADA from the ADA paperwork was submitted by Spurling's physician as she was not notified of her termination until after this paperwork was submitted and received by C&M.  Furthermore, in terminating Spurling after they received the ADA paperwork, the Court held that C&M also failed to accommodate her disability by failing to engage in the interactive process and deciding to terminate instead.

The FMLA Claim

The 7th Circuit upheld summary judgment in the FMLA claim because the FMLA requires the employer to have knowledge of the qualifying condition, which C&M did not have when it terminated Spurling.  It doesn't appear that any FMLA medical certification was submitted and the only information C&M had from Spurling as to her serious health condition was a statement she made indicating she needed time off to figure out why she was falling asleep.  The court did not find this as notifying C&M of a "serious health condition."  

The case is Kimberly Spurling v. C&M Fine Pack, Inc., Case No. 13-1708 (7th Cir., January 2013).

Monday, January 13, 2014

6th Circuit Reverses Grant of Summary Judgment in ADA Case, Highlights Importance of Job Descriptions

In a case that reminds me of a recent high-profile case involving an amputee who was kicked out of the FBI's training academy, the Court of Appeals for the Sixth Circuit has reversed summary judgment in a disability discrimination case filed under the Americans with Disabilities Act (ADA) involving an excavator operator who was fired after his left leg was amputated after being involved in a motorcycle accident.

After the plaintiff, Wayne Henschel, lost his leg, his employer terminated his employment after they considered him unable to be an excavator operator anymore and claimed they did not have another position to employ him in.  Henschel presumably would have been able to return to work but the employer required him to seek a medical waiver from the Michigan Traffic Safety Division who only cleared him to perform work on automatic transmission vehicles.

What doomed the employer is that they told Henschel that he was being terminated because of his inability to transport the excavator to job sites.  

In an employment discrimination case under the ADA, a plaintiff must show that: 


1) he is an individual with a disability within the meaning of the ADA; 

2) he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and 
3) he suffered an adverse employment decision because of his disability. 

Gilday v. Mecosta Cnty., 124 F.3d 760, 762 (6th Cir. 1997); 42 U.S.C. § 12111(8). The employer claimed that Henschel’s claim fails at the second prong because Henschel is not qualified for employment, with or without reasonable accommodations.   When Henschel lost at the district court level, they held that (1) transporting the excavator to job sites was an essential function of the excavator operator position; (2) Henschel was unable to haul the excavator; and (3) reassigning Henschel to a year-round truck driver position (in an automatic transmission truck) was not a reasonable accommodation because another driver would have to be displaced.


The regulations accompanying the ADA provide seven non-exclusive factors for determining whether a particular function is essential:


(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement; (vi) The experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3).  The job description, as provided by the employer, doomed the employer because the job description did not prove to the court that transporting/hauling the excavator was an essential function of the job.  Thus, employers live and die by job descriptions when it comes to the "essential functions" prong in disability discrimination claims. 

The case is Henschel v. Claire Co. Rd. Comm., 6th Cir. No. 13-1528 (Dec. 13, 2013).

Wednesday, January 8, 2014

"Hang Up Your Superman Cape" and Age Discrimination: 8th Circuit Reverses Grant of Summary Judgment

The Court of Appeals for the Eighth Circuit, in reversing a lower district court's grant of summary judgment for an employer in an age discrimination case under the Age Discrimination in Employment Act (ADEA) and Missouri Human Rights Act (MHRA), found that the Plaintiff, a 76-year-old former security guard for Securitas, established a prima facie case of age discrimination, in part because of the decision makers in his termination made comments about his age including the Plaintiff's need "to hang up his Superman cape."

The case involves Carlyn Johnson, age 76, who performed work for Securitas, a private company that provides security services for various venues across the country.  Johnson had been working 20 consecutive hours one night when he collided with an unoccupied truck with a vehicle he was driving and was subsequently terminated.  What more than likely led Johnson to believe his termination was based on age is the fact that while he was employed with Securitas, his supervisor, who was later involved in the decision to terminate Johnson, made comments such as Johnson "needed to hang up his Superman cape," was "too old to be working," and needed to retire.  The supervisor also compared Johnson to his father who was 86-years-old and had stopped working.  The district court, in granting Securitas' motion for summary judgment, held that these remarks were "stray remarks, remote in time, and unrelated to the decision to terminate Johnson."  The 8th Circuit disagreed.

The problem with the district court's disregard for the comments about Johnson's age is that it went toward the fourth element in the prima facie case in proving age discrimination claims under the McDonnell Douglas burden-shifting scheme whenever the employee is not replaced with a younger worker:  showing that age was a factor in the employer's decision to terminate.  After all, in discovery it was found that this supervisor had a role in the decision to terminate Johnson.  It is also important to note that the district court did not find the "Superman cape" comment had anything to do with age while it appears the 8th Circuit did.

The case is Johnson v. Securitas Security Services USA Inc., No. 12-2129 (8th Cir. Aug. 26, 2013).

Monday, January 6, 2014

NLRB ALJ Finds College's "No Gossip" Rule Violates the NLRA

Last month in Laurus Technical College, Case 10–CA–093934, ALJ Donna Dawson ruled that Laurus Technical College's "no gossip rule," which led to the termination of the charging party, "chills the exercise of Section 7 activity, and violates Section 8(a)(1)."  The college's "gossip rule" contained the following language:

Gossip is not tolerated at Laurus Technical Institute. Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action. Gossip is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral, and overall satisfaction. It has the potential to destroy an individual and is counterproductive to an organization.Most people involved in gossip may not intend to do harm, but gossip can have a negative impact as it has the potential to destroy a person’s or organization’s reputation and credibility... 
Gossip is defined as follows:1) Talking about a person’s personal life when they are not present 2) Talking about a person’s professional life without his/her supervisorpresent 3) Negative, or untrue, or disparaging comments or criticisms of anotherperson or persons 4) Creating, sharing, or repeating information that can injure a person’scredibility or reputation 5) Creating, sharing, or repeating a rumor about another person 6) Creating, sharing or repeating a rumor that is overheard or hearsay... 
If an employee is found to have been involved (instigated, encouraged, or contributed to) gossip against another employee, a written warning is provided to the employee and the employee is directed to immediately cease the gossip...Further incidents will result in further disciplinary action and may include termination.
In finding this rule violated the NLRA, ALJ Dawson, as part of the remedy, reversed the charging party's termination and ordered it be removed from her personnel file.  This is a very encouraging decision as a lot of employers may not often create a policy or rule like Laurus Technical College did in this case but employers do often tell employees not to talk about certain things in the workplace whenever there's disruption or an issue, which is likewise often violative of the NLRA.

NLRB Will Not Seek Review from Supreme Court on Notice Posting Rule

After receiving two decisions from Court of Appeals invalidating their notice posting rule, the National Labor Relations Board (NLRB) has announced today that it will not seek cert from the U.S. Supreme Court on the issue.  The rule would have required most private sector employers to post a notice of employee rights in the workplace in an effort to ensure employees are informed of their rights under the National Labor Relations Act (NLRA).