Tuesday, September 23, 2014

Western District of Wisconsin Denies Employer's Summary Judgment Motion in Age Discrimination Case

Diana Schaefer worked for Bank Mutual for 10 years, including eight years as a bank office manager.  In 2011, Schaefer got a new manager, Tom Kendall, who wanted to terminate Schaefer almost immediately.  When Kendall found out that Schaefer had submitted an inaccurate timesheet, despite that fact she was salaried, he told the director of human resources who then fired Schaefer, who was then 56-years-old, and Bank Mutual then hired a 36-year-old woman who lacked management experience.  Schaefer sued Bank Mutual alleging age discrimination under the Age Discrimination in Employment Act ("ADEA") in the Western District of Wisconsin, and in an Opinion and Order dated August 29, 2014, Judge James D. Peterson denied Bank Mutual's Motion for Summary Judgment holding that Schaefer "adduced sufficient evidence to support a reasonable jury verdict that Bank Mutual's purported reason for firing her was a pretext, and that Schaefer's age was the but-for case of her termination."

In his decision, Judge Peterson noted the relevant policies of Bank Mutual's regarding attendance and time keeping, as well as their disciplinary policy.  Though Schaefer was salaried and her hours were non-consequential to her pay as an exempt employee under state and federal wage and hour laws, Bank Mutual still required her to keep an accurate accounting of the days and hours she worked and had a policy stating falsification could lead to termination, which is how Schaefer came to be fired.  Judge Peterson also noted that Bank Mutual fired three (3) other managers for falsifying their time records since 2007, two of whom were over the age of 40. 

Schaefer proceeded under the indirect method of proving age discrimination, and the parties agreed to two prongs of the prima facie case:  that she is over the age of 40 (thus, in the protected class), and that she suffered an adverse employment action (she was fired).  The parties then disagreed over the two remaining prongs:  whether she was meeting the employer's legitimate interested, and whether younger employees were treated more favorably.  Bank Mutual argued Schaefer was not meeting their legitimate interest because of her falsification of time sheets, and Schaefer naturally argued that this was pretext.

Schaefer argued that the two time sheet errors were merely honest mistakes.  The court noted that Bank Mutual's policies state that they may terminate an employee who makes this mistake, and that her mistakes were not "falsification," and though they violated Bank Mutual's policies, they did not do so in a way that would warrant termination under those policies.  Furthermore, the Court noted that Bank Mutual declined to initially terminate Schaefer when Kendall first made the recommendation which evidenced that she was meeting their legitimate expectations.  Because she was able to show she was meeting Bank Mutual's legitimate interest, she is entitled to the benefit of a more relaxed showing at step four in her prima facie case:  she need only show that she was replaced by a substantially younger employee, which she also did.

Judge Peterson ultimately found Bank Mutual's termination of Schaefer to be "suspicious" given their written policies and the offenses for which Schaefer was terminated given Kendall's attempts to get her fired in the past. The court also noted at least one other employee who committed a similar violation and was not terminated like Schaefer.  Because Kendall influenced the human resource director's decision so heavily, the court applied the Cat's Paw theory of discrimination.

The case is Diana Schaefer v. Bank Mutual, Case No. 13-cv-713-jdp (W.D. Wis.)

Tuesday, September 9, 2014

Massachusetts Enacts Domestic Violence Leave for Employees

In the wake of the Ray and Janay Rice incident sweeping the news across the country, Massachusetts Governor Deval Patrick has enacted emergency legislation entitled “An Act relative to domestic violence.”  The new law is effective immediately and mandates that all employers with 50 or more employees permit an employee to take up to 15 days of leave from work in any 12-month period if the employee, or a family member (defined below) of the employee, is a victim of abusive behavior and the employee is using the leave from work to:
  • Seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; attend child custody proceedings; or address other issues directly related to the abusive behavior against the employee or family member of the employee; and
  • The employee is not the perpetrator of the abusive behavior against such employee’s family member.
The new law has several important definitions:

"Family members" include:
  • Persons who are married to one another;
  • Persons in a substantive dating or engagement relationship and who reside together;
  • Persons having a child in common regardless of whether they have ever married or resided together
  • A parent, step-parent, child, step-child, sibling, grandparent or grandchild; or
  • Persons in a guardianship relationship.
The Act defines “abusive behavior” as:
  • Domestic violence, defined as abuse by a person with whom the individual is in a relationship
  • Stalking
  • Sexual assault
  • Kidnapping
There are several other nuances of the law but because this does not help or affect Wisconsin, I will not delve into those here in this post.  For more information on the new law, click here.

There is currently no such law at the federal level, though Rep. Lynn Woolsey (D-CA) has attempted several times over the years to get such legislation passed in Congress, which I have written about before here.

Wednesday, September 3, 2014

Recent NLRB Decision Holds Weingarten Rights Extend to Workplace Drug and Alcohol Testing

In a rather ground-breaking decision from the National Labor Relations Board ("NLRB"), in Ralph's Grocery Co., 361 NLRB No. 9 (2014), the Board held that an employee's Weingarten Rights extends to employees who request representation after an employer refers them for a workplace drug and alcohol test.  Weingarten Rights come out of a 1975 Supreme Court case whereby it was held that unionized employees have the right to have union representation at any interview or meeting that could lead to disciplinary action against you.  Thus, because the results of a drug and alcohol test could lead Weingarten Rights would extend to these situations and consider them "investigatory interviews."

The employee, Vittorio Razi, was ordered by his employer to take a drug and alcohol test.  Razi refused  and requested union representation, which he was denied.  After Razi refused to submit to the drug and alcohol testing, he was suspended and subsequently terminated.  The Board held that "[t]he drug and alcohol test, ordered as part of the Respondent’s investigation into Razi’s conduct, triggered Razi’s right to a Weingarten representative."  

In agreeing with the administrative law judge, the Board held:
We agree with the judge that the Respondent violated Section 8(a)(1) by requiring Vittorio Razi to submit to a drug and alcohol test notwithstanding his request for representation, and by suspending and discharging Razi for his refusal to take the test without representation.  Because the reason for Razi’s suspension and discharge is inextricably linked to his assertion of Weingarten rights, with which the Respondent unlawfully interfered, we find that the judge’s make-whole remedy is appropriate. 

There was discussion about Board Member Harry Johnson's dissenting opinion who believed the employer "had a legitimate interest in conducting its investigation and taking action without delay, particularly given the time-sensitive nature of sobriety tests."  However, given the facts of this case, the Board held that "although the investigation was triggered by the Respondent’s observations of Razi’s behavior, the Respondent did not take disciplinary action based “on the information it already had,” because the employer made no mention to Razi being under the influence in deciding to suspend and terminate his employment.  Thus, perhaps this case comes out differently if Razi was clearly under the influence and a safety hazard to himself and his coworkers, but even this scenario depends on very specific facts as such an observation can be highly subjective.  However, the only way to be sure of whether someone is under the influence is through a positive test result.

It is important to note that these cases are highly fact-specific and Razi prevailed in this matter specifically because he requested union representation before submitting to the drug and alcohol test.  If an employee refuses a drug and alcohol test and doesn't request union representation, there would not be a finding of violation of Weingarten Rights, unless the collective bargaining agreement ("CBA") requires such.