Wisconsin Employment & Labor Law Blog by Enochs Law Firm

10th Circuit Holds Migraines Not a Disability Under the ADA

2012-02-08T18:05:00.000-08:00

Despite the fact the 2008 amendments to the Americans with Disabilities Act were enacted to make it easier for plaintiffs to qualify as individuals with disabilities, the Court of Appeals for the Tenth Circuit has delivered a decision that does the opposite of that intent. In Allen v. Southcrest Hospital, No. 11-5016, 2011 U.S. App. LEXIS 25488 (10th Cir. Dec. 21, 2011), the plaintiff transferredto work for a particular doctor, who had a busy practice that was especiallyhectic on the three days during the doctor’s compressed office hours. Shortlyafter the transfer,the plaintiff claimed that she began having migraines. These migraines variedin severity -as some days she could go to work, while other days she had to stay home - andshe was prescribedmedication for the pain. In August 2009, after requesting and being denied FMLAleave andallegedly being denied a reasonable accommodation for her migraines, theplaintiff resigned, becauseof “migraines and hypertension.” Although she later tried to rescind the resignation, the employer told her that her resignation was accepted the day she tendered itand that her employmentwas terminated.

Upon filing both federal FMLA and ADA claims, the employer moved for summary judgment arguing the plaintiff was not disabled as defined under the ADA and the district court granted the motion. On appeal, the 10th Circuit noted that the plaintiff had to showthat: (1) she had a recognized “impairment;” and (2) the impairmentsubstantially limited one or more of her major life activities. It was undisputed that the migraines were an "impairment" but what was disputed was whether the plaintiff was substantially limited in one or more of her major life activities. The plaintiff claimed thatthe migraines affected her ability to “work,” to “care for herself,” and to “sleep.”

The employer was able to prevail on appeal but critiquing the plaintiff's daily routines both when she had migraine pains and when she didn't. The 10th Circuit was not persuaded that the plaintiff's migraines as an impairment "substantially limited her in one or more of her major life activities."

This decision does not mean that migraines are not disabilities ever under the ADA as disability discrimination cases are a case-by-case evaluation. It may be that a different plaintiff suffering from migraines may very well be substantially limited in major life activities to qualify as an individual with a disability under the ADA.

Employment Case Law Update

2012-01-16T19:31:00.000-08:00

--Savage v Gee, 6thCir, January 4, 2012, Case No. 10-3839: Court of Appeals for the Sixth Circuit AFFIRMS grant of summary judgment in favor of defendant on all of plaintiff's claims, which included a First Amendment violation and cosntructive discharge. The plaintiff was Head of Reference and Library Instruction at The Ohio State University’s Bromfield Library in Mansfield, Ohio. In 2006, the plaintiff joined a committee that sought to select a book all incoming freshman would be asked to read. It was the plaintiff's recommendations that served as the basis of his suit as Savage wanted to "choose something that confronts the accepted wisdom of Ohio State University." Savage then selected a book that had a anti-homosexual message, which highly offended another member of the committee.

Savage's recommendation led to a serious of sexual harassment complaint exchanges with the university as well as a series of emails discussing Savage's behavior though the university chose to not terminate him. Eventually Savage took a leave of absence and claimed the university did nothing to protect him against the attacks. Savage then instituted claims in state court against the university and resigned. When Savage filed suit in federal court before dismissing his state-level claims, the university moved for summary judgment on the grounds that Savage had waived all federal and state damages claims against state officials arising from the above-recited facts by bringing an action in the Court of Claims, citing Leaman v. Ohio Department of Mental Retardation & Development Disabilities, 825 F.2d 946 (6th Cir. 1987) (en banc). The district court then found that Savage’s claims for damages were barred byLeaman; his right to free speech was not infringed because his speech was not protected; he was not constructively discharged; he lacked standing to bring a facial challenge to the University’s sexual harassment policy; and that his as-applied challenge to the policy failed because he sustained no

cognizable harm because of the policy.

--Draper v Martin, 7thCir, December 30, 2011, Case Nos. 10-2837 & 10-3054: Defendants' motion for summary judgment on plaintiffs' wrongful termination claims AFFIRMED. Plaintiff's filed claims in response to losing their jobs arguing that their terminations were politically motivated in violation of the First Amendment, and second, that they were denied a property interest in their jobs in violation of the Fourteenth Amendment. In affirming the lower court's decision, the 7th Circuit held that these claims were barred by Illinois' two-year statute of limitations for wrongful termination claims given the date they were issued unequivocal termination notices. The court did not delve into the merits of the underlying claims.

--Hemphill v City of Wilmington, DDel, December 20, 2011, Case No. 10-679: Plaintiff's hostile work environment claim based on race dismissed on summary judgment but retaliation claim under Title VII proceeded to trial and, after a three-day trial, a jury returned a verdict finding defendant had retaliated against plaintiff when it forced her to transfer from her supervisory position back to her position as administrative assistant to the Chief of Police. The jury awarded no compensatory and the equitable remedies of reinstatement, back pay, and other appropriate equitable relief were reserved for the judge to determine. The judge awarded placement in an equivalent position, back pay, and equitable relief in the form of a court order requiring the city to hire a third party to further train its managers on handling harassment complaints and also to post a complete and accurate account of the outcome of the litigation.

--EEOC v The Gap, Inc, EDMich, December 27, 2011, Case No. 10-14559: Court DENIES EEOC's motion to amend their complaint and modify the scheduling order. After initially filing his charge with the EEOC, the charging party discovered that a symptom of his disability was attributable to HIV and not glomerulonephritis as originally thought. In denying the EEOC's motion, the magistrate noted the length of unexcusable delay and prejudice to an employer The magistrate also found that because the agency knew and concealed the fact that this was an HIV case, the EEOC also denied the employer a reasonable opportunity to conciliate and refused the EEOC’s alternative request to stay the proceedings for further conciliation.

7th Circuit Holds Employee Not Entitled to Overtime Pay Despite Substantial Pre-Shift Work

2012-01-15T15:46:00.000-08:00

Just catching up on a lot of blogging and case updates I've missed over the last several weeks and noticed this decision out of the Court of Appeals for the Seventh Circuit on the ever-popular issue of compensable time. The case, Kellar v. Summit Seated, Inc., Case No. No. 11-1221, involved an employee who performed substantial pre-shift activities and believed she was entitled to overtime pay because the activities constituted compensable time. However, the 7th Circuit held that the employee was not entitled to overtime pay because she failed to show that her supervisors had actual or even constructive knowledge of her overtime work.

The 7th Circuit also found several other things wrong with the plaintiff's pre-shift routine in upholding the lower court's decision. First, the court noted how the plaintiff conceded that most employees who clocked in early did not perform work until their shift began. Next, the court noted that the plaintiff's behavior did not raise any red flags. For instance, the plaintiff did not record her pre-shift time – rather she consistently indicated on her time cards that she arrived at the beginning of her shift, not before it. Moreover, she attended weekly meetings with her supervisors in which schedules were discussed, but never disclosed that she had worked pre-shift time or complained about the same. In sum, the supervisors had no reason to know that she had worked unpaid overtime.

While it is unfortunate that this plaintiff worked to the employer's benefit and will not receive pay, the lesson to be learned here is to keep your employer informed when it comes to pay. As this case highlights, it is never safe to assume that you will be paid for any and all work performed.

Department of Workforce Development Overpays Unemployment Insurance Claimants

2012-01-15T14:56:00.000-08:00

The Wisconsin Department of Workforce Development recently notified state law makers that an error in computer coding resulted in more than 600 unemployment compensation claimants receiving overpayments of about $280, on average. From the Milwaukee Journal Sentinel on the overpayment errors: Sixty-two people had overpayments applied to existing balances they owed the agency. Those are in the process of being reversed internally. The remaining 562 will be offered the option of returning the overpayments in installments.

University of Wisconsin Law School to Argue Interesting Unemployment Compensation Case in Front of Court of Appeals

2012-01-13T13:26:00.000-08:00

On January 18, 2012, the Wisconsin Court of Appeals for District IV will hear oral arguments in a case involving unemployment compensation and the issue is what effect the change in language in Wis. Stat. sec 108.02(12)(a) has on claimants for unemployment insurance. Specifically, a part-time real estate agent began collecting unemployment when he was laid off from his full-time manufacturing job. Later, the claimant switched real estate agencies and the Department of Workforce Development held that the claimant quit his job without good cause attributable to the employer and cut off his unemployment benefits. The reason this is on appeal is because the Department made this determination even though the claimant performed services that are not covered employment for purposes of unemployment purposes.

In 2005 the Wisconsin legislature made a change in the language of Wis. Stat. sec. 108.02(12)(a) by removing the phrase, "in an employment." The Wisconsin Labor & Review Commission (LIRC) argue that removal of the phrase means claimants meet the definition of employee for any services they perform for an employing unit, regardless of whether that service is in covered or excluded employment.

This link has more information on the technicalities of the case. Best of luck to the University of Wisconsin Law School's Unemployment Appeals Clinic. I used to volunteer with this clinic when I was a law student there!

EEOC Discusses Upcoming New Guidance on Reasonable Accommodation Under Americans with Disabilities Act Amendments Act

2012-01-10T21:31:00.000-08:00

The ADA Amendments Act (ADAAA) took effect on January 1, 2009 and put new emphasis on accommodating otherwise qualified applicants and employees with disabilities. However, the Equal Employment Opportunity Commission (EEOC) has not issued guidance since well before the ADAAA took effect and not since 2002. In a recent webinar hosted by the American Bar Association, a panel consisting of EEOC commissioners Chai Feldblum and Victoria Lipnic discussed reasonable accommodation in light of the ADAAA to shed light on what to expect out of the upcoming EEOC guidance.

Bloomberg has an excellent summary of the webinar's highlights here.

New Businesses in Wisconsin Increases

2012-01-10T18:27:00.000-08:00

The Wisconsin Department of Financial Institutions has revealed its 2011 figures and numbers and revealed that 33,190 new businesses formed in 2011 which is up from 32,458 the previous year. The Milwaukee Journal Sentinel has a VERY brief article on the new business increase.

PS
Enochs Law Firm, LLC is one of the new businesses!

Mexican Immigrant Indianapolis Hotel Workers File Wage & Hour Class Action Suit

2012-01-09T22:09:00.000-08:00

More than a dozen ow-level hotel workers in Indianapolis have filed a class-action lawsuit against ten of the city's hotels and a labor staffing agency, claiming they were routinely cheated out of pay with the knowledge of hotel management. The workers claim they had to work while off-the-clock and during unpaid breaks which often put them below the minimum wage rate of $7.25/hour. The suit is potentially only the tip of the iceberg in a widespread problem in the workplace and could potentially involve more than a thousand workers and millions of dollars in claims, according to the hotel workers union UNITE HERE, which is organizing workers in Indianapolis.

From The Huffington Post article on the lawsuit:

The Hospitality Staffing Solutions (HSS)-staffed hotels named in the Indianapolis lawsuit include Embassy Suites, Marriott, Westin, Hyatt, Holiday Inn and Omni properties.

Martha Gonzalez, 28, one of the workers now suing, tells HuffPost she worked at Hyatt and Marriott properties as an HSS employee earning the minimum wage. She says that she was required to come in early and prepare her housekeeping cart before punching in, and that she often wound up working through her lunch break or clocking out to finish work at the end of the day, to avoid being punished. She says she quit last summer.

"I was sick of getting a check that didn’t meet my family's needs," Gonzalez, who's from Mexico, says through a translator. "Every check was just too small. I was so tired of working in a place under pressure, getting calls from the manager, 'Are you finished? Are you finished?'"

This is a huge, huge problem as a lot of immigrants are fearful of losing their jobs and concerned about immigration issues which prompts employers to take advantage of their immigrant employees. However, immigrant employees should not be worried as they have rights in this country even if they are here unlawfully or not yet through the immigration process. An unlawful immigration status does not allow rights to be circumvented and immigrant employees who believe they are not being paid properly are encouraged to contact attorneys who practice wage & hour law.

EEOC Issues Informal Discussion Letter on the ADA and High School Diploma Requirements

2011-12-14T20:33:00.000-08:00

Last month the Equal Employment Opportunity Commission (EEOC) posted an informal discussion letter on its website addressing the requirement of a high school diploma as it relates to jobs and job postings. Some of you may be wondering how requiring a high school diploma may violate a disability anti-discrimination statute such as the Americans with Disabilities Act (ADA), but think about it: if an individual has a learning disability/impairment and is therefore restricted from a large pool of jobs that he or she could probably perform without a high school diploma, that would run afoul of the scope and spirit of the ADA.

From the informal discussion letter:

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

However, there will obviously be a large pool of jobs that meet the "consistent with business necessity" requirement such as jobs as doctors, pharmacists, nurses, etc.

Fitness Instructor Fired for Tweet About Big Mac

2011-12-14T19:32:00.000-08:00

In yet another case of an employer over-reacting to a harmless social media posting, a fitness instructor's termination over a Twitter post is making news. Grant Hill (not the NBA star), a cycling instructor at Life Time Fitness in Rockville, Maryland, like a lot of Americans, has a Twitter account and likes to tweet about life's musings. One day Hill saw a coworker eating a Big Mac from McDonald's and decided to tweet:

“A McDonalds bag sits on an employees desk @lifetimefitness aka “the healthy way of life company.” Ah the irony.”

He was later terminated.

Apparently, Life Time Fitness did not find the post humorous, and, according to the "Capital Business" article on the Twitter firing, "triggered weeks of back-and-forth with managers demanding that the tweet be deleted. Hill said he refused unless Life Time allowed him to write an article about the health risks of fast food for its widely distributed magazine." Life Time Fitness is claiming the termination was not for the tweet but, instead, "for his work outside the company, which Life Time deemed to be a competing
personal fitness business."

So, then, the inevitable question that ensues for such a termination: "Is this legal?" Well, Hill wouldn't have a 1st Amendment claim because Life Time Fitness is a private employer and not public. Hill "probably" doesn't have a discrimination claim unless other similarly-situated employees did the same, were in a different protected class and were treated more favorably. That then leaves labor laws and the National Labor Relations Act (NLRA) which the National Labor Relations Board (NLRB) governs. The most used section of the NLRA in social media terminations is Section 7 governing "concerted protected activity." In this case, while it's not entirely obvious how Hill's tweet is protected, Hill did claim the tweet related to Life Time Fitness' "mission," and an argument could be made!

Can My Employer Force Me to Get a Flu Shot?

2011-12-07T20:00:00.001-08:00

A popular question and issue that arises every year around this time is whether an employer can force it's employee to receive flu shots/vaccinations. The answer is that employers may generally require employees to receive a flu shot but there are potential law violations associated with such a practice (and with requiring employees to do anything in general). Specifically, there may be issues with some employees' religion or medical conditions that may prevent them from receiving a shot and employers run the risk of violating Title VI and the Americans with Disabilities Act Amendments Act (ADAAA) and state-equivalent employment laws.

If an employee just doesn't want to be told what to do, they may face discipline and even termination and it may not run afoul of any employment law. If an employer has a reasonable purpose for requiring the shots (e.g., a health-care provider), then take that into consideration before declining the vaccination. However, if you believe you genuinely and truly cannot have a shot, contact an employment attorney to discuss the matter.

I Was Granted Unemployment Compensation: Does That Mean I Have a Case?

2011-11-28T20:23:00.001-08:00

A lot of calls I receive from potential clients stems from the State of Wisconsin granting their claim for unemployment benefits. A lot of recently-unemployed people jump to the conclusion or infer that this means the State has found some wrong-doing or unlawfulness regarding their termination, which is not the case and I then spend a considerable amount of time explaining to people why a grant of unemployment insurance does not mean their termination was necessarily unlawful.

The Standard for Receiving Unemployment Insurance is Different from a Determination of Discrimination, etc.

A determination for granting and issuing unemployment insurance is completely and utterly different from a finding of discrimination or a wrongful termination. Wisconsin first finds out whether the person was terminated or quit and then the standard is either "misconduct connected to their employment," or "good cause attributable to the employer." A finding for discrimination or wrongful termination has a completely different standard and burden of proof by a plaintiff and there's actually case law that forbids the use of unemployment compensation decisions in discrimination claims.

Employment claims, for the most part, use what we call "burden-shifting schemes," which is a framework used to determine whether a plaintiff/complainant was discriminated against. A burden-shifting scheme is simply how a case is proven in a hearing or court by the parties to show that discrimination did or did not occur. Cases are also proven either directly or indirectly (circumstantially) whereas unemployment cases do not have burden-shifting schemes and decisions by Administrative Law Judges (ALJ) are made through evidence presented by the employer (direct evidence) and the credibility of the witnesses. An employment discrimination case can take one to several days to litigate whereas an unemployment case takes minutes to a few hours to litigate because they're not as complex.

Obtaining Unemployment Benefits is Just a Start

Just because receiving unemployment benefits provides almost no insight into the viability of a discrimination or wrongful termination claim does not mean you should not contact a local employment attorney to discuss your situation. Often times it is helpful for an attorney to represent a claimant at an unemployment hearing because it gives us an opportunity to ask certain questions of the former employer and to get testimony under oath and on the record regarding a termination or quit. Obtaining unemployment benefits also means that a claimant was either fired and did not engage in misconduct or quit for good cause attributable to the employer which may help in a subsequent discrimination claim.

Massachusetts Becomes 16th State to Provide Protection Against Discrimination on Basis of Gender Identity

2011-11-28T19:56:00.001-08:00

Massachusetts recently became the 16th state to provide protection against discrimination in employment, housing, education, and credit (but not in public accommodation) on the basis of "gender identity." As defined by the new state law, gender identity means, “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” For evidentiary purposes, “gender-related identity” may be shown by providing “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity.”

In a nutshell, this protects homosexuals (or those that appear to be homosexual), transgenders, etc from discrimination in several areas. Wisconsin provides protection on the basis of "sexual orientation," but not specifically for "gender identity." There have been several attempts to pass such legislation at the national level, the Employment Non-Discrimination Act ("ENDA") but has yet to pass in Congress.

Bravo, Massachusetts.

EEOC Closer to Amending Regulations on Age Discrimination Law

2011-11-22T20:32:00.000-08:00

Back in February 2010 the Equal Employment Opportunity Commission (EEOC) proposed amendments to the Age Discrimination in Employment Act (ADEA) called, “Final Regulation on Disparate Impact and Reasonable Factors Other than Age." Prompting the changes were recent court rulings that, according to EEOC Chair Jacqueline A. Berrien, restricted the rights of age discrimination plaintiffs. The proposed amendments have now been forwarded to to the Office of Management and Budget (“OMB”) for review and interagency coordination. OMB will have at least 90 days to review the EEOC’s proposed regulations. After OMB approval, the RFOA Regulations will be published in the Federal Register.

The proposed “reasonable factors other than age” (RFOA) Regulations create a six-pronged test (not all of which necessarily need be satisfied) to determine whether an age neutral practice or factor is reasonable:

Whether the employment practice and the manner of its implementation are common business practices.
The extent to which the factor is related to the employer’s stated business goal.
The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers).
The extent to which the employer took steps to assess the adverse impact of its employment practices on older workers.
The severity of the harm to the individuals within the protected age group, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm.
Whether other options were available and the reasons the employer selected the option it did.

The proposed regulations also set forth a three-pronged test (not all of which necessarily need be satisfied) to evaluate whether an employment practice or factor is age neutral:

The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively.
The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes.
The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

Glad to see we continue to look out for older employees who still need to work to support themselves and their families.

Not-So-Good Interview Questions To Beware Of

2011-11-22T19:30:00.001-08:00

Here's a quick video on some perhaps not-so-good interview questions that you maybe shouldn't answer but probably have to to avoid not getting a job. However, these types of questions, if you don't land the job, may be evidence of potential discrimination and are good to take note of if asked in a job interview.

EEOC Reports Record Year

2011-11-22T18:50:00.001-08:00

The Equal Employment Opportunity Commission (EEOC) recently released statistics and figures for the 2011 fiscal and revealed a record-level of complaints file and money obtained for charging parties. From The Huffington Post article on the numbers:

The Equal Employment Opportunity Commission received just shy of 100,000 charges from citizens during the 2011 fiscal year, the most logged in a single year in the agency's 46-year history, according to a new report. The agency also managed to obtain a historic amount of monetary relief for alleged victims of job discrimination -- $365 million, the most on record.

So what explains the record level of complaints? The article attributes a large part to the "sputtering economy" but it could also have something to do with a more aggressive EEOC since there's a Democratic regime in charge.

The EEOC's numbers reflect the "severity of the economic downturn," says Christine Owens, executive director of the National Employment Law Project, an advocacy group for workers.

"At times like this, when job loss makes workers especially vulnerable, employers bent on breaking the law are even more likely to do so," Owens told HuffPost in a statement. "The strong report the EEOC has released today underscores how critical it is for America's workers that we maintain robust laws and regulations to ensure protection of basic labor standards."

Employment discrimination complaints filed with the EEOC have generally been rising over the previous decade, with a pronounced spike during the weak economy of the last four years.

It would be interesting if the Equal Rights Division released figures to see if Wisconsin had a parallel record-breaking year.

Pregnancy Discrimination Case Against Chicago Law Firm Allowed to Proceed to a Jury

2011-11-16T16:38:00.001-08:00

A three-judge panel for the Court of Appeals for the Seventh Circuit has overturned a district court's grant of summary judgment in a case filed by a former marketing director for Chicago-based law firm SmithAmundsen, LLC. The plaintiff, Lisa Makowski, was fired by SmithAmundsen while she was out on FMLA leave during her pregnancy and the law firm cited "firm organizational restructuring." However, Makowski was then told by the firm’s human resources director informed her she was actually terminated because she was pregnant and took medical leave, and suggested speaking with a lawyer. The human resources director, who monitor’s the firm’s compliance with anti-discrimination laws and consulted outside counsel before Makowski’s firing, denied saying that.

The firm's HR director's comments caused Makowski to filed suit under Title VII and FMLA but the district court granted SmithAmunden's motion for summary judgment on the grounds the comments were inadmissible hearsay. The 7th Circuit saw it quite differently and reversed that granted motion. From the Wisconsin Bar's article on the decision:

The district court ruled that O’Gara’s alleged statements to Makowski were not admissions by a party opponent because her job responsibility did not relate to the termination decision. Without O’Gara’s statements, the district court ruled, summary judgment was warranted.

But the appeals panel disagreed, explaining that O’Gara’s statements were admissions by a party opponent because she was involved in the process leading up to Makowski’s termination even though O’Gara did not make the decision to terminate.

“O’Gara’s duties as Human Resources Director at the Firm included regular consultations regarding decisions to eliminate positions and terminate employees in order to ensure compliance with federal anti-discrimination laws, making her a part of the firing process,” wrote District Judge Richard Young, sitting by designation.

The panel ruled that a jury must decide whether O’Gara made those statements, but assuming she did for purposes of summary judgment, granting summary judgment was not warranted.

“O’Gara’s alleged statements to Makowski, which are now admitted under Rule 801(d)(2)(D), provide direct evidence that pregnancy was a motivating factor in Makowski’s discharge,” Judge Young wrote. “Although O’Gara denies having made the alleged statements, whether or not she made such admissions is a question for the jury."

Employment Case Law Update

2011-11-14T16:15:00.001-08:00

--Overly v KeyBank Nat’l Ass’n, 7thCir, November 10, 2011, Case No. 10-2705: Employer-defendant's motion for summary judgment, granted by lower court, on plaintiff's gender discrimination, retaliation, and hostile work environment because of gender AFFIRMED. The facts in this case are not incredibly outrageous and it's fairly obvious to see why the 7th Circuit affirmed summary judgment for the employer but it also is easy to see why the plaintiff filed the claims she did. Often times there is unprofessional and inexcusable conduct engaged in by the employer against an employee based on the EE's sex but court's simply consider some statements "stray remarks" or not "passing muster."

--Bayer v Neiman Marcus Holdings, Inc, NDCal, November 8, 2011, Case No. CV 11-3705 MEJ: Employer sought to have plaintiff's disability discrimination claim dismissed and arbitration compelled DENIED. Although the terms of an arbitration agreement stated that continued employment constituted consent, an employee’s express rejection of the agreement, which required written acknowledgment, was sufficient to document his refusal to consent to the agreement, so an employer could not compel the employee to arbitrate a disability claim. Instead of signing the agreement, the employee forwarded his refusal and rejection of the agreement on several occasions. Employers, therefore, should be wary of a conflict between provisions in agreements that can undermine a showing of consent.

--McIntire v Keystone RV Co, NDInd, November 9, 2011, Case No. 3:10-CV-508: Defendant's motion to dismiss DENIED. Plaintiff filed a claim of race and religious discrimination when employer began hiring amish employees over non-amish and fired him and hired an amish employee. The defendant motioned to dismissed claiming that being “non-Amish” is not a category protected by Title VII. Because this is a religious discrimination claim based on the employee NOT holding the same belief as the employer, the court properly noted that a more relaxed standard is applied in denying the employer's motion to dismiss.

--Howard v Penn Dept of Pub Welfare, EDPa, November 3, 2011, Case No. 11-1938: Defendant's motion for summary judgment GRANTED in part, DENIED in part. An employee’s FMLA claims survived an employer’s motion to dismiss where the employer demanded that she return to work or face discipline, refused to let her return, and then issued a second demand that she return.

Women Who Work in Positions with Greater Likelihood of Sexual Harassment Paid More

2011-11-09T16:40:00.000-08:00

In a unique and interesting study by Law Professor Joni Hersch, it was discovered that women in jobs with an average probability of sexual harassment are paid 25 cents an hour more than those in jobs with no risk of sex harassment. For men, the wage differential is 50 cents an hour. From the ABA article on the study:

Hersch adopted the same kind of methodology used to estimate boosts in pay associated with jobs where the risk is greater for death or injury. She found that women are more at risk of sex harassment in male-dominated industries such as mining. She estimates the pay differential for women miners at $2 an hour, the Post says.Hersch explained the likely reason for her findings in an interview with the Post. Unhappy workers quit jobs, she says, and the only way to keep them is to pay more. “Sexual harassment is the kind of working condition that is so universally despised that people require some compensating differential,” she says.Women in high sex-bias risk jobs would likely earn even more if there were no right to sue and other workplace protections, Hersch tells the Post.

EEOC Issues Advisory Opinion on Use of Arrest & Convictions Records in Hiring Process

2011-10-31T19:07:00.000-07:00

As most Wisconsinites are aware, the Wisconsin Fair Employment Act (WFEA) specifically prohibits discrimination in employment based upon arrest and conviction record. However, most states do not provide this protection and there is no federal law to protect the entire country which has cased the Equal Employment Opportunity Commission (EEOC) to get creative and innovative to find a cause of action where protection is needed and a trend in employment discrimination is occurring. As can be reasonably understood. minorities tend to be the impacted most by arrest & conviction discrimination so the EEOC has announced that it will consider disparate impact suits under Title VII of the Civil Rights Act of 1964 where they see fit. Specifically, in an unbinding advisory opinion letter, the EEOC stated that it:

(1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.

This position by the EEOC impacts Wisconsin residents little except for maybe where a class-action type of action could be considered. Though Wisconsin offers arrest & conviction record discrimination, it does remain an unclear area that has little court and administrative law precedent and appears to be applied inconsistently by the Equal Rights Division. I enjoy and get excited about interesting and blatant violations under the WFEA but it can be discouraging given the law's inconsistent application of the "substantially-related" defense and sometimes bizarre application but I always encourage complainants to pursue their rights under the WFEA.

Compensable Time Expanding: Starting Up the Computer and Checking E-Mails May be Compensable!

2011-10-31T18:34:00.000-07:00

Recently the Department of Labor (DOL) announced a major settlement with Hilton Reservations Worldwide, LLC in the amount of $715,507 for minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania. In arriving at this settlement, the DOL's audit revealed that Hilton Reservations failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails.

The DOL has been focusing on call centers heavily lately but the issue of pre- and post-shift activities is not unique to call centers. Having a slow, old computer may pay off after all!

Wisconsin's Department of Workforce Development Loses Second Secretary in Under a Year

2011-10-30T15:40:00.000-07:00

Manny Perez resigned five months after Gov. Scott Walker named him the Secretary of the Department of Workforce Development, the agency that handles the State's unemployment and discrimination matters, among other things, and now Scott Baumbach has resigned after just four months on the job. Walker has since announced that Reggie Newson, who had been serving as executive assistant at the Department of Transportation, was taking over as secretary effective Monday.

Strange happenings at the DWD!

FMLA Leave for Victims of Domestic Violence

2011-10-25T19:42:00.000-07:00

Legislation has been reintroduced into Congress by Rep. Lynn Woolsey (D-CA) that would allow employees to take leave under the Family and Medical Leave Act (FMLA) to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partner and same-sex spouse), parent or child. The bill, the Domestic Violence Leave Act (H.R. 3151), could be used to seek medical attention for injuries; obtain legal assistance or remedies; participate in a legal proceeding; attend support groups or therapy; and participate in safety planning, among other related activities held during work hours. An employee would be able to substitute paid leave for the leave provided under this bill. An employer would be entitled to seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the measure, but would be required to keep such information confidential. In lieu of such written documentation as police reports or witness statements, an employee would be able to satisfy the certification requirement by providing a written statement describing the reason for taking leave.

Employment Case Law Update

2011-10-24T19:49:00.000-07:00

--Bonefont-Igaravidez v Int’l Shipping Corp, 1stCir, October 14, 2011, No. 10-1953: Court of Appeals for the First Circuit AFFIRMS lower court's grant of summary judgment on plaintiff's Age Discrimination in Employment Act (ADEA) claim. Plaintiff worked for Defendant-Employer for 57 years and prior to his termination had taken medical leaves and returned to be the butt of jokes about his age and medical conditions, often in the presence of supervisors. This in turn led to an incident whereby the plaintiff attacked one of his superiors (who was also over the age 60) for teasing him which then led to his termination. Plaintiff then sued under the ADEA.

Because the plaintiff lacked direct evidence of age discrimination, the McDonnell-Douglas burden-shifting scheme was evoked and the employer conceded that the plaintiff made out a prima facie case of age discrimination but asserted it possessed a legitimate non-discriminatory reason (LNDR) for terminating the plaintiff when he attached his supervisor, which the court held was legitimate and that plaintiff failed to show that this was pretextual despite the fact the plaintiff presented evidence that younger employees engaged in similar behavior but were not terminated (apparently the fights were somehow substantially different though the court does not describe how).

--Dorvil v Burlington Coat Factory Warehouse Corp, DNJ, October 14, 2011, Case No. 09-5778: Defendant-Employer's motion for summary judgment DENIED. Plaintiff is a Haitian immigrant with a thick accent and managed to climb his way all the way up to a management position that oversaw some 170 employees. Upon receiving a new supervisor, the plaintiff, on a weekly basis, began experiencing teasing and mockery due to his hard-to-understand accent which ultimately made the plaintiff feel as though his ability to supervise was undermined due to the involvement of his subordinates in the teasing. Over time the plaintiff's relationship with his new supervisor deteriorated and the racially-motivated teasing escalated to name-calling and "hostile gestures." Plaintiff also offered up other incidents that did not have racial-components but proved to be racially-motivated.

To his surprise, the plaintiff, despite years of above-average performance and positive annual reviews, found himself placed on an performance improvement plan (PIP) which gave him a month to improve work performance or be terminated. Plaintiff was terminated. Using the plaintiff's previous decade of satisfactory work, the racially-motivated teasing and comments and the fact plaintiff was replaced with a white woman, the court found that plaintiff made out a prima facie case for race discrimination. Defendant-employer showed a LNDR through plaintiff's flunking his PIP, which plaintiff was able to show was pretext because it was reasonable to believe plaintiff was placed on the PIP because of his race due to a lack of performance issues in the decade prior to his termination. This all created issues of triable fact for the plaintiff.

--Been v New Mexico Dept of Info Tech, DNM, September 30, 2011, Case No. 6:09-cv-00726 MV/WDS: In a case of super-specific facts, Plaintiff, after being terminated while tending to pregnancy-related problems, filled several claims against her former employer, including, inter alia, FMLA interference, pregnancy and sex discrimination which then led to a plethora of dispositive motions by both parties.

Regarding plaintiff's pregnancy/sex discrimination claim, the court held that plaintiff made out a prima facie case for pregnancy discrimination and that the employer's LNDR was pretextual given the employee's clear attempts to keep the employer abreast of her work absences attributed to her pregnancy's complications which created triable issues of fact for a jury. Regarding plaintiff's FMLA interference and retaliation claims, the court held that plaintiff's FMLA interference claim could proceed because a jury could reasonably conclude that plaintiff's FMLA rights were interfered with as she was fired while on leave and it is disputed whether plaintiff did follow the employer's leave policies. Likewise, the court found that a jury could reasonably conclude that plaintiff's was retaliated against for asserting FMLA rights as the defendant took too narrow a view of when an employer is placed on notice of an employee's request for FMLA and re-highlighted the fact that an employer’s duties under the FMLA are triggered so long as “the employer is on notice that the employee might qualify for FMLA benefits.” Once again, because it was clear prior to her termination that she was off for pregnancy-related issues and because plaintiff was terminated while on leave, defendant's motion for summary judgment on the retaliation claim was denied also.

--Beem v Providence Health & Srvs, EDWa, October 13, 2011, Case No. CV-10-0037-JLQ: Defendant-employer's motion for summary judgment on plaintiff's disability discrimination claim DENIED but on plaintiff's FMLA claim GRANTED. A habitually tardy employee’s claim that the employer violated the ADA when it refused accommodations for her tardiness survived summary judgment, ruled a district court in Washington, where fact issues remained on whether the employer met its continuing obligation to engage in the interactive process with the employee. The employee’s FMLA claim was dismissed, however, because not only was there no legal basis for using intermittent leave to cover tardiness, but the employee failed to submit an application for FMLA leave with respect to her tardiness.

Target Worker Fired for Working Through Lunch Break

2011-10-17T19:57:00.000-07:00

In case being labeled "ironic" by the plaintiff, an 8-year veteran of Target stores, Jason Kellner, has filed suit in federal court after being terminated for working while on his lunch break. The suit, however, is a retaliation charge as Kellner, along with several other Target employees, had been an outspoken opponent of the store's break policy (employees are not allowed to work while off the clock for overtime pay purposes). Kellner claims that though policy does not allow employees to work while off the clock, he was routinely not given uninterrupted breaks because he was often needed for to address problems that occurred during his break. Coincidentally, Kellner had met with an "investigative manager" about the issue just two weeks before his termination. Target did not respond to the suit when contacted by the Huffington Post who had the story.

Federal Court in CT Rules Pregnancy Discrimination Act Protects More Than the Pregnant

2011-10-16T16:30:00.000-07:00

In another admirable court decision that recognizes the flexibility and intent of discrimination law, a federal court in Connecticut recently held in Canales v. Schick Manufacturing, Inc., 2011 WL 4345006 (D. Conn. Sept. 15, 2011) that a woman does not have to be pregnant at the time of discrimination under the Pregnancy Discrimination Act in denying the employer-defendant's motion for summary judgment. In Canales the employee was terminated while out on maternity leave and the court, citing the language of the Act, held that the Act does not just cover pregnancy but "childbirth," as well. (The Pregnancy Discrimination Act, which protects "women affected by pregnancy, childbirth, or related medical conditions.").

Milwaukee Ranked 6th Best City for Working Mothers

2011-10-16T16:05:00.000-07:00

According to Forbes, if you're a working mother, Milwaukee is a pretty good place to be, ranking in at #6!

Hertz Fires 34 Drivers at Seattle Airport for Praying on Company Time

2011-10-10T19:08:00.000-07:00

Not only is it beyond crazy to fire 34 people all of the same national origin and religion for engaging in a religious activity, but it was done only two years after the EEOC helped unionize the same workplace where an agreement was reached that allowed workers to clock out to pray during their two 10-minute breaks. On top of that, the clock out policy was never enforced. However, in arbitrary fashion, that policy suddenly became enforceable and was used to terminate 34 workers--all Somali Muslims--for not clocking out before praying, reports the Seattle Times.

Hertz is claiming that the workers were warned repeatedly prior to their suspensions about clocking out and that those who did clock out before praying were not fired. However, as is typical in employment law disputes, the employees cite different facts:

Zainab Aweis told the newspaper she was unaware of any rule change and was simply warned, along with other Hertz drivers, by a manager on Friday that they could not pray, not that they were required to clock out first.
"He said, 'If you guys pray, you go home,' " she recounted. "I said, 'Is that a new rule?' And he said, 'yes.' "
When they went ahead and prayed anyway, as religious Muslims do up to five times daily, they were taunted, she says.

Employment Case Law Update

2011-10-04T21:03:00.000-07:00

Not a good week for plaintiffs:

--Michaels v Continental Reality Corp, DMd, Civil Action No. RDB-10-1998: Defendant's motion to dismiss plaintiff's ADA claim GRANTED. Plaintiff's disability discrimination claim was based on the fact he was obese, weighing in over 400lbs. However, plaintiff unerwent a surgical procedure that lowered his weight by 100lbs which then allegedly resulted in mental and physical problems which required accommodations from the employer though it was never quite made clear by the plaintiff to the employer that his requests were related to any qualifying disability. Plaintiff was later presented with resignation paperwork that he did not sign, was deemed a resignation and then filed a charge with the EEOC alleging disability discrimination.
In dismissing the plaintiff's claim, the court noted that "...simply being overweight or obese has generally not been viewed as constituting a disability." They do note, however, that according to the EEOC, in rare circumstances it "may" rise to the level of "disability impairment." Despite the fact the plaintiff alleged that it was "plainly visible" and "transparent" that he was obese still did not put the employer on notice that he had a qualifying disability under the ADA as the court noted the plaintiff was able to perform his job duties and responsibilities.
This case also emphasizes the need to plead employment discrimination cases with particularity in light of the Supreme Court's decision in Twombly as many of the plaintiff's claims were dismissed for failure to plead a prima facie case of discrimination, retaliation, etc.

--Warren v The Shaw Group, Inc, DNev, Case No.: 2:10-cv-01116-GMN-GWF: Defendants' (the employer and union involved) motions for summary judgment GRANTED on plaintiff's religious discrimination claim. Plaintiff filed a religious discrimination claim under Title VII after refusing to provide his social security number to drug-testing personnel. So what was the plaintiff's bona fide religious belief? Plaintiff claimed to hold a religious belief that social security numbers are the “sign of the beast” as described in the last book of the Bible, Revelation. However, plaintiff would give his SSN out for employment and tax purposes, which is what allowed the defendant to argue that the plaintiff had an inconsistent use of his SSN, therefore, he did not have a bona fide religious belief. The court agreed. However, even if he did have a bona fide religious belief regarding the use of his SSN, plaintiff also failed under the second prong of his burden because he also could not show that he informed anyone of this belief. Thus, it was only through plaintiff's lawsuit that the defendants learned of this "religious belief."

--Veliz v Collins Bldg Svs, Inc, SDNY, Case No. 10 Civ. 06615 (RJH): Defendant's motion to dismiss plaintiff's Title VII and ADEA claims of national origin and age bias and reprisal because his claims were subject to mandatory arbitration under the applicable collective bargaining agreement. The court also dismissed the employee’s Title VII and ADEA claims against several individual defendants because individuals cannot be held liable under either statute.

Q: What Employment Laws Require Accommodation from an Employer?

2011-09-28T20:00:00.001-07:00

A: Federally, only the Americans with Disabilities Act and Title VII with respect to religion. State laws vary, however.

Federal Court Holds Not Returning Employee's Calls While on FMLA Leave May Amount to Retaliation

2011-09-28T19:55:00.000-07:00

A case catching a lot of attention right now involves a decision out of a federal court in Pennsylvania where it was found that an employer's failure to return an employee's telephone calls while she was on FMLA leave is indirect evidence of retaliation.

The plaintiff in the case took FMLA leave that was expected to last approximately two months. The employee claimed that, during her leave, she and her husband regularly provided her direct supervisor with leave updates. However, her supervisor often failed to return the calls. In early November, she provided a return to work certification clearing her return for November 13. She also contacted her supervisor to ask for a "modest" extension through November 13, but the supervisor again did not return the call. Instead, the Medical Center sent the employee a letter informing her that her employment had been terminated because she failed to return to work on November 6 when her FMLA leave allotment had been exhausted.

Obviously behavior like that from an employer prompts an employee to seek legal counsel because they understandably feel that their termination was unlawful. The employee then filed an FMLA retaliation, interference, disability discrimination and state law claim. The trial court held that the supervisor's failure to return phone calls was evidence of "an antagonistic attitude toward the employee, particularly where - as here - such refusal began after the employee initiated FMLA leave, and continued despite regular communications from the employee." As such, it could be used as evidence of retaliation.

The plaintiff's interference claims ultimately failed because the plaintiff could not show that she could return to work at the end of the 12-week period.

The case is Kathleen Hofferica v. St. Mary Medical Center, Case No. 10-6026

7th Circuit Holds a Supervisor Can Be a "Comparator" Under Title VII

2011-09-20T19:39:00.000-07:00

The Court of Appeals for the Seventh Circuit recently held in Rodgers v. White, No. 10-3916 (7th Cir. Sept. 2, 2011) that a district court erred in holding a supervisor cannot be comparable to a line employee for purposes of applying the McDonnell Douglas method of proof, vacating summary judgment and remanding the claim for trial. In making their decision, the 7th Circuit stated: "We have observed in many decisions that employees of differing ranks usually make poor comparators, but the rationale behind that general rule does not apply in this case." The Court further stated:

"Many times we have acknowledged that supervisors usually make poor comparators for plaintiffs claiming employment discrimination. But usually does not mean always, and we have not held that a supervisor is never an apt comparator. Supervisors typically make unrealistic comparators because, as relevant to the issues in a particular case, employees of higher rank commonly have different job duties or performance standards. And especially in situations where the plaintiff alleges discriminatory promotional practices, it is difficult for the plaintiff to show that he deserved to be promoted over an employee of a higher rank, who usually possesses more experience. Yet when uneven discipline is the basis for a claim of discrimination, the most-relevant similarities are those between the employees' alleged misconduct, performance standards, and disciplining supervisor. Formal job titles and rank are not dispositive; an employer cannot 'insulate itself from claims of racial discrimination' by making formalistic distinctions between employees. Thus, when a plaintiff and his supervisor were accused of making similar mistakes, were equally responsible for avoiding those mistakes, and were disciplined by the same superior, the plaintiff can make a realistic comparison with his supervisor for purposes of establishing a prima facie case of discrimination."

This decision makes sense because it recognizes the reality and practical work place in the real world. It is encouraging to see the 7th Circuit applying Title VII and the McDonnell Douglas burden-shifting scheme in a flexible manner that allows for common-sensical results.

IRS Updates Guide on Use of Employer-Provided Cell Phones

2011-09-20T18:56:00.000-07:00

The Internal Revenue Service (IRS) recently issued updated guidance (pdf) on the tax treatment of employer-provided cell phones, effectively treating both business and personal use of such phones as exempt from an employee’s wages. The reasoning behind this update is that the IRS has noted that employers provide cellphones for numerous noncompensatory purposes. Accepting what is a common business reality today, the IRS announced that if an employer provides an employee with a cell phone “primarily for noncompensatory business purposes,” the cell phone will be treated as a working condition fringe benefit and the value of the cell phone usage will be excluded from the employee’s wages. However, not all employer-provided cell phone use is noncompensatory. The IRS also noted that providing cell phones to “promote the morale or good will of an employee, to attract a prospective employee or as a means of furnishing additional compensation to an employee” do not qualify as being “primarily for noncompensatory business purposes.”

NLRB's Mandatory Union Poster is Available!

2011-09-15T22:21:00.000-07:00

The poster most employers are required to post under the National Labor Relations Act (NLRA) as of November 14, 2011 is now available for download but employers may pick the posters up at the local National Labor Relations Board (NLRB) regional office. The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.

As I posted previously regarding the poster, failure to post this poster has two major consequences. Specifically, failure to postcould result in an extension of the normal six-month statute of limitations for filing an unfair labor practice charge under the NLRA. Second, if an employer fails to post the notice, the NLRB has indicated it might take that into consideration as evidence of an employer's motive against unionization. That could be a relevant fact in an unfair labor practice charge, such as if an employee were claiming that he or she had been fired because of union activity.

2nd Circuit Holds Employer May Have Duty to Accommodate Employee's Commute To and From Work

2011-09-13T20:48:00.000-07:00

In a potentially landmark case, the Court of Appeals for the Second Circuit had held that, under certain circumstances, an employer may have a duty to accommodate an employee in their commute to and from work. The Court reversed the lower court's decision that held an employer has no legal duty to accommodate a worker's commute, as the commute is "outside the scope" of the employee's job. The plaintiff has a hearing impairment, cancer, heart problems and asthma - was transferred from Queens to Manhattan for 13 months, during which she complained about problems associated with her commute. The 2nd Circuit held that possible accommodations for her may have been "transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit." The Court's reference to the accommodation of working from home deviated from traditional disability accommodation law.

The Court did say, as has always been the case with disability discrimination claims as it relates to the employer's duty to accommodate, that accommodating the commute turns on a case-by-case basis. Upon remanding the case back to the lower court, the 2nd Circuit stated:

"On remand, the district court shall consider factors such as the number of employees employed by DOHMH, the number and location of its offices, whether other available positions existed for which Tinkelman showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening DOHMH's operations, and the reasonableness of allowing her to work without on-site supervision."

Interestingly enough, the Court rejected the plaintiff's suggestion for an accommodation of a special telephone or device for the hearing impaired while she worked in the Manhattan office.

The case is Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene,No. 10-3317-cv (2d Cir. Aug. 10, 2011)

Walgreens Fires Employee for Opening $1.39 Bag of Chips to Stabilize Low Blood Sugar

2011-09-13T20:23:00.000-07:00

The Equal Employment Opportunity Commission (EEOC) has filed a suit under the Americans with Disabilities Act (ADA) in the Northern District of California against Walgreens for firing a veteran 18-year diabetic employee with diabetes who suffered a hypoglycemia even during work, and took a bag of potato chips worth $1.39 she was able to pay for them, in order to quickly stabilize her diabetes-related low blood sugar.

The full complaint can be found here.

Trouble Wage & Hour Statistics from the Dept. of Labor

2011-09-11T18:16:00.000-07:00

The Department of Labor ("DOL") has been busy recently revamping its website and recently offered a phone application to help hourly employees keep track of their time in an effort to ensure employers are complying with wage & hour laws. Now the DOL has released recent statistics of 68,644 enforcement actions that revealed violations in 50,364 cases, and no violation in just 18,280. In other words, the DOL found violations in roughly 73% of all of its compliance actions. These findings resulted in findings of back wages due totaling $681,151,513, or about $13,524.57 per case in which a violation was found. This is pretty disturbing data but hopefully with proper education and enforcement the stats will look better next time around.

Employers Covered by the NLRA, Post This!

2011-08-28T18:13:00.000-07:00

The National Labor Relations Board (NLRB) has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011. From the NLRB press release on the new posting requirement:

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website.

Failure to post this notice has a couple big consequences. Specifically, failure to post could result in an extension of the normal six-month statute of limitations for filing an unfair labor practice charge under the NLRA. Second, if an employer fails to post the notice, the NLRB has indicated it might take that into consideration as evidence of an employer's motive against unionization. That could be a relevant fact in an unfair labor practice charge, such as if an employee were claiming that he or she had been fired because of union activity.

Nominated for LexisNexis' Labor and Employment Law Top Blogs

2011-08-23T18:28:00.000-07:00

I have received the distinguished honor of being nominated by LexisNexis' staff as one of the top 25 labor and employment blogs in their annual "top blogs." Members of the LexisNexis Community (to become a member is simple and free) can "talk up" this and other blogs in an effort to help narrow down to the top 25 blogs in every legal category. No pressure to help me, but strongly encouraged!

Employment Case Law Update

2011-08-22T17:23:00.000-07:00

--McKenna v City of Philadelphia, 3rdCir, No. 09-3567: The Third Circuit applied the "cat's paw theory" of discrimination in addressing whether a supervisor's alleged discriminatory animus served as a causal connection between the plaintiff's termination and an independent tribunal's decision to terminate. The defendant argued that the plaintiff's supervisor's discriminatory animus played no role in the independent review tribunal's decision while the plaintiff maintained it was the supervisor's discriminatory intent that led to the need for review in the first place, therefore, serving as a causal connection. The 3rd Circuit concluded, "In the words of Staub, a reasonable jury could conclude that Colarulo‟s animus bore a direct and substantial relation to Carnation‟s termination and that the PBI‟s recommendation was not independent and was foreseeable. See Staub, 131 S. Ct. at 1192-93. See also Sosa, 542 U.S. at 703."

The 3rd Circuit also found that even though Staub was decided after the jury returned a verdict in favor of the plaintiff that they were properly instructed per Staub on proximate cause, thus finding no need to remand the case back to district court and AFFIRMED the district court's decision.

--EEOC v Dresser-Rand Co, WDNY, 04-CV-6300 CJS: Defendant's motion for partial-summary judgment DENIED, plaintiff's cross-motion to preclude testimony of defendant's expert witness GRANTED. The Court held that employees have no obligation to go to school after they are unlawfully discharged in order to mitigate their damages. The court ruled that, although employees who are fired for discriminatory reasons must seek other employment, they are under no obligation to go to school for retraining. In fact, a terminated employee who pursues an education rather than seeking a job fails to mitigate his damages, the court noted.

In this case, the plaintiff sought and found other employment after he was discharged by the defendant, thus, he fulfilled his duty to mitigate; the fact that he did not go to school was irrelevant, which in turn allowed the exclusion of defendant's expert which found had the plaintiff sought specific educational training he would have more successfully mitigated his damages.

--Miller v Whirlpool Corp, NDOhio, Case No. 3:10CV00473: Both plaintiff and defendant's motions for partial summary judgment DENIED. This case highlights why medical questionnaires may be a bad idea in certain employment situations. Defendant terminated plaintiff after repeated refusals by the plaintiff to fill out a medical questionnaire. Under the Americans with Disabilities Act (ADA) a medical examination shall not be required and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. Furthermore, for purposes of contesting an improper medical inquiry, a claimant need not prove they have a disability, which is what allowed this plaintiff to file suit. Neither party here contested that the questionnaire in this case constituted a test that would reveal a disability constituting a protected disability-related inquiry leaving a remaining question of whether it falls within the ADA's exception of being “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).

The burden of showing job-related and consistent with business necessity is placed on the employer and carries a high bar. Because facts were presented to bring into question whether the defendant can meet their burden and whether it violates the ADA's disclosure provision, the Court held summary judgment inappropriate and also did not buy the defendant's proffered defenses for the questionnaire. Specifically, the employer presented two defenses: 1) that the questionnaire was given uniformly to both disabled and nondisabled employees; and 2) hat its disability-related inquiry was lawful because it was required under OSHA’s general duty clause.

NLRB Acting General Counsel Issues Report on Social Media Cases

2011-08-21T18:47:00.000-07:00

The National Labor Relations Board's (NLRB) Acting General Counsel, Lafe Solomon, issued a report, based upon 14 cases, on the use of social media and employers’ social and general media policies as a guide for practitioners and human resource professionals. The 24-page report can be read here.

7th Circuit Employment Case Law Update

2011-08-15T17:21:00.000-07:00

I've been slacking on my case law updates because I've been busy with my own cases. I recently noticed a few decisions out of the 7th Circuit in the employment law arena and wanted to highlight them.

--Diaz v. Kraft Foods Global, Inc., No. 10-3073 (7th Cir. Aug. 8, 2011): District court's grant of summary judgment affirmed in part (disparate pay), reversed in part (race discrimination). This case highlights the Court's stance on Title VII race discrimination claims that an employer cannot defend against a Title VII claim by pointing to the fact it treated at least one minority group member favorably. After all, this is a disparate treatment claim, not disparate impact:

"Title VII would have little force if an employer could defeat a claim of discrim- ination by treating a single member of the protected class in accordance with the law. Suppose the district court’s view carried the day: a female employee suffering from discrimination on the basis of her sex would have to establish that her employer discriminated against all women in the workplace to assert a sex dis- crimination claim. That, sensibly, is not how Title VII operates. Instead, “[t]he principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole.” Connecti- cut v. Teal, 457 U.S. 440, 453-54 (1982); City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 708-09 (1978) (recognizing that fairness to the class of women employees does not excuse discrimination against an individual female employee). Discrimination against one Hispanic employee violates the statute, no matter how well another Hispanic employee is treated. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). We agree with the plaintiffs that there is no token excep- tion to anti-discrimination law. See Teal, 457 U.S. at 455"

--Burnell v. Gates Rubber Co., No. 10-3490 (7th Cir. July 27, 2011): District court's grant of summary judgment affirmed in part (section 1981 and discriminatory discharge), reversed in part (retaliatory discharge). This case focuses on the ever popular "temporal proximity" aspect of discrimination claims. In this case, the plaintiff had a long history of lodging complaints of perceived racial discrimination, mostly from 1993-1996, but had lodged a complaint as early as 2006 (he was terminated in December 2006). Though the plaintiff was terminated for refusing a disciplinary form, because the employer made a statement about the plaintiff "playing the race card" when the plaintiff refused to sign, an inference that the termination was in part based on complaining about racial discrimination was created.

--Benuzzi v. Board of Education of the City of Chicago, No. 10-3021 (7th Cir. July 21, 2011): In a case of, "what the heck was that employer thinking?," exactly one day after sitting for her deposition, the plaintiff was issued a Notice of Disciplinary Action for something that happened 4 months previously by the defendant-employer! Obviously this allowed the Court to find for retaliation for the underlying Title VII gender, race and ADEA and ADA claims.

University of Wisconsin Law School Symposium, "The Constitutionalization of Labor and Employment Law?"

2011-08-14T19:10:00.001-07:00

On October 28 & 29, 2011 my alma mater, the University of Wisconsin Law School, will be holding symposium titled, "The Constitutionalization of Labor and Employment Law?" From UW's website for the event:

The Constitutionalization of Labor and Employment Law? is an innovative and timely symposium at the intersection of constitutional law and labor and employment law. Recent U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano.

Through discussion of five separate areas of constitutional law:

Freedom of Speech,
Freedom of Association,
Equal Protection,
The 13th Amendment, and
Workplace Privacy under the Fourth Amendment,

this symposium explores whether constitutional law concepts are infiltrating public and private labor and employment law, and whether this development is beneficial or detrimental to the rights of workers.

Up to 12.0 CLE credits have been approved for this event for all you Wisconsin lawyers trying to get their credits! Hope to see you all there!

Wisconsin Law Journal on Leave as an Accommodation Under Anti-Disability Discrimination Laws

2011-08-14T18:00:00.000-07:00

Recently the Equal Employment Opportunity Commission (EEOC) held a panel to discuss leave as an accommodation under the Americans with Disabilities Act (ADA). Attorney Marcie B. Cornfield has an article on the Wisconsin Law Journal's website about the topic and has a great discussion on Wisconsin's stance on leave as an accommodation From the article:

For Wisconsin employers, this line of cases indicates that the EEOC is taking an approach more akin to Wisconsin’s notion of “clemency and forbearance.” The “clemency and forbearance” requirement was first applied in Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998). There, the employee had repeatedly fallen asleep on the job due to her sleep apnea, a disabling condition, and had been disciplined and finally discharged in accordance with the employer’s rule against loafing on the job. She sought treatment for her condition and kept her employer informed of the nature of the treatment she was getting (an inhaler) and the treatment her physician was going to try next (a CPAP machine). She was discharged before going on the CPAP machine, which solved her sleeping problem and which would have permitted her to stay awake while at work. 217 Wis. 2d at 4–8, 576 N.W.2d at 547–49.

The Court of Appeals concluded that LIRC’s decision that the employer should have exercised temporary forbearance in the enforcement of its rule against loafing on the job was reasonable and supported by substantial evidence. Id. at 20, 576 N.W.2d at 553. The court observed:

Like a leave of absence, forbearance from enforcing the loafing rule is a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility. Whether either is a reasonable accommodation in a given case will depend on the facts and circumstances of that case.

Id. at 19–20, 576 N.W.2d at 553.

In short, Wisconsin employers have been advised for some time that they may need to temporarily suspend their attendance and leave policies for employees with known medical conditions. At the same time, the Wisconsin Supreme Court has stated that “‘clemency and forbearance’ is not an open-ended requirement mandating that an employer indefinitely suspend its attendance requirements for the disabled employee.” Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶ 67, 2007 WL 2034022 (2007).

Unfortunately for employers, neither the EEOC nor Wisconsin courts have provided guidance as to how much leave an employer must provide to an employee.

Woodman's Settles Disability Discrimination Suit for $35,000

2011-08-13T13:38:00.000-07:00

The Equal Employment Opportunity Commission (EEOC) announced in a press release that it has settled a disability discrimination claim it filed on behalf of a former employee, Kimberly McMillan-Goodwin, under the Americans with Disabilities Act (ADA) against the Wisconsin grocier for $35,000 plus other injunctive relief. From the press release on the suit and settlement:

The EEOC charged that a Woodman’s store in Beloit, Wis., terminated Kimberly McMillan-Goodwin, a long-term Woodman’s employee who worked as a clerk at its gas station, because she had a back condition that kept her from lifting more than ten pounds. The EEOC contended that McMillan-Goodwin had successfully worked in that position with the lifting restriction for many years. Woodman’s, however, placed McMillan-Goodwin on medical leave and then terminated her. ...

In resolution of the suit, Woodman’s will pay $35,000 to McMillan-Goodwin. The decree also includes substantial other relief, including injunctions against any further discrimination and retaliation. Further, the company will adopt a policy prohibiting discrimination based on disability; update its employee handbooks; conduct training on the ADA; and post a notice to employees about the resolution of the suit in all of its locations. The EEOC will monitor Woodman’s compliance with the decree for two years.

“This case might never have arisen if Woodman’s had had clear policies and training to guide its management and human resources employees on the requirements of the ADA,” said EEOC Regional Attorney John Hendrickson of the agency’s Chicago District, which has jurisdiction over Wisconsin. “Among the most important provisions in the consent decree, therefore, are the requirements that Woodman’s adopt a policy to clarify its obligations and provide training to its management and human resources staff.”

The suit was EEOC v. Woodman’s Food Markets. Inc. (Civ. No. 10-cv-562-wmc), and was filed September 28, 2010, in U.S. District Court in Madison.

ABA Blawg 100 Nomination Time!

2011-08-12T16:06:00.000-07:00

It's time again for nominations for the ABA's Blawg 100! To nominate a blog, simply click on this link and fill out the amici! This blog is just over a year old and I was not fortunate enough to be listed last year but hope this year is different!

Q: Is an employer required to pay unused vacation time upon resignation or termination?

2011-08-02T18:44:00.000-07:00

A fairly common question people have when their employment concludes is what happens with their unused, accrued vacation time. The answer is: it depends.

In Wisconsin, like most every other state, the rule is that unused vacation time is to be paid out upon separation of employment UNLESS the employer's policy says it will not be paid out. For example, an employer may have a policy (usually stated in the employee handbook) that states unused vacation pay will not be paid out if an employee quits without giving proper 2-week notice or they may have a policy that doesn't pay accrued vacation time is the employee is terminated for cause.

If you believe you are owed vacation time at the end of your employment, first consult with the employee handbook, and if you still believe you are owed vacation time pay, you may consult with a local employment attorney who can assess whether a complaint with the Wisconsin Department of Workforce Development is appropriate.

Parental Bereavement Act of 2011 Introduced in Senate

2011-08-01T20:27:00.000-07:00

The Parental Bereavement Act of 2011, a bill seeking to amend the Family and Medical Leave Act (FMLA) to give parents grieving from the death of their child to receive up to 12 weeks of job-protected time-off, has been introduced in the U.S. Senate by Senator Jon Tester of Montana. Currently, parents are only covered for extended, unpaid time-off to care for newborn babies, adopted children, and family members with serious health conditions.

Keep an eye on this one! Can never have enough protection for employees.

Filing an Equal Rights Division Discrimination Complaint

2011-08-01T18:47:00.000-07:00

I feel compelled and obligated to disclaim at the beginning of this post that this article is not meant to be a thorough, exhaustive discussion or a how-to guide. The purpose of this article is to briefly discuss the Equal Rights Division (ERD) process for filing an employment discrimination complaint to better inform the public. No blog or article can ever replace knowledgeable, effective legal counsel!

The Wisconsin Fair Employment Act (WFEA) is Wisconsin's state law that expressly prohibits discrimination in employment based upon a person's "protected class" and provides more protected classes than federal law.

PROTECTED CLASSES

It is important to first discuss who and what is protected and what are the basis of employment discrimination claims--also known as protected classes. Also, it is important to note that Wisconsin provides more protected classes than the federal government. In Wisconsin, protected classes are:

Race (also protected federally under Title VII)
Color (also protected federally under Title VII)
Creed/Religion (also protected federally under Title VII)
Ancestry (also protected federally under Title VII)
National Origin (also protected federally under Title VII)
Age (also protected federally under the Age Discrimination in Employment Act (ADEA))
Sex/Gender (also protected federally under Title VII and the Equal Pay Act (EPA))
Disability/Handicap (also protected federally under the American with Disabilities Act (ADA))
Arrest & Conviction Record (NOT protected federally)
Marital Status (NOT protected federally)
Sexual Orientation (NOT protected federally)
Military Status (NOT protected federally, but in some cases, USERRA may apply)
Use or nonuse of lawful product (i.e., alcohol, cigarettes, tobacco, etc) (NOT protected federally)

PROTECTIONS PROVIDED

Since almost everyone employed fits into a protected class, the next question is what is protected in connection with belonging to a protected class? Federal law and the WFEA prohibit discrimination in employment-related actions such as:

Hiring or recruitment
Pay
Promotion
Training
Lay-off and firing/termination
Demotion
Job assignments
Leave or benefits
Licensing or union membership
Retaliation against those who assert their rights under the WFEA, WFMLA, etc
Harassment on the job because of a person's sex or protected class (e.g., race, religion)
Genetic testing or giving an improper honest test
Other related actions

It is extremely important to keep in mind that it's not enough to simply belong to a protected class and suffer an adverse employment action because it's not employment discrimination unless the adverse employment action was taken BECAUSE OF the membership in the protected class, which isn't always so easy to prove.

FILING A COMPLAINT

It is always advisable to first speak with a local employment law attorney before running off and filing a complaint with the ERD or Equal Employment Opportunity Commission (EEOC), as there are still plenty of considerations even if you believe you suffered an adverse employment action because of your protected class. Some considerations are:

Is my complaint timely? A complaint under the WFEA is timely if filed within 300 days of the alleged discrimination.
How do I file a complaint? The ERD department is very helpful to individuals without a lawyer, but an employment lawyer has the training and expertise to carefully draft a complaint to hit all the important points that need to be made.
How long does the process take? After the complaint is filed, it is then processed and sent to the employer (also known as the Respondent). Then the employer has about a month to draft a well-crafted response and then the employee (called the Complainant) has 20 days to respond to the employer's response. After all responses are submitted, the investigator then reviews the file and makes an Initial Determination of either Probable Cause or No Probable Cause.
What will I "win" if I prevail? This is probably the biggest consideration in deciding whether to file a claim and whether to settle and for how much. Only a knowledgeable employment attorney can assist here as the ERD avoids providing legal advice. An administrative law judge (ALJ) can only award a "make-whole remedy" which is limited to back pay, reinstatement (if reasonable), lost benefits, interest and attorney's fees and costs. Punitive and Compensatory damages are only possible through circuit court after the ALJ issues their decision.

There is a lot to discuss when deciding whether to file a complaint, at any level. This article simply hopes to bring some major considerations to the fore and better educate employees on what the employment discrimination complaint process involves.

Employment Case Law Update

2011-07-25T18:26:00.000-07:00

--Benuzzi v Board of Educ of the City of Chicago, 7thCir, July 21, 2011: Plaintiff's retaliation claim allowed to advance by the Court of Appeals for the Seventh Circuit because it was a jury question whether the disciplinary notice and hours restriction memorandum she received the day after she gave her deposition in her underlying sex discrimination case were materially adverse, and the short time span between the events could reasonably infer they were linked. Plaintiff's sex discrimination claims dismissal affirmed.

--Dorward v Macy’s Inc, MDFla, July 20, 2011: An employer’s alleged breach of an employment contract containing an arbitration agreement did not foreclose enforcing arbitration against an employee, ruled a federal district court in Florida, in spite of her laundry list of reasons for why she should not be compelled to arbitrate her Title VII claims. The employee assented to arbitration by declining to send in an opt-out form that was provided with other new-hire materials. Also, the agreement did not violate public policy, and it was not unconscionable because it was voluntary, afforded all rights available in court, and imposed no substantial costs on the employee.

--Basden v Professional Transp, Inc, SDInd, July 19, 2011: Defendant's motion for summary judgment against plaintiff's ADA and FMLA claims GRANTED. This case presents a quintessential example of the difficult balance between an employee with a disability who requires absence from work frequently and the employer's interest in having employees who can reliably be present to complete work. A dispatcher who was terminated after being diagnosed with multiple sclerosis failed in asserting claims under the ADA that her employer did not reasonably accommodate her disability and that it terminated her employment because of her disability or in retaliation for seeking accommodation. There was no evidence from which a reasonable jury could conclude that she was a qualified individual with a disability at the time of her termination, the court found, adding that because only qualified individuals with disabilities are entitled to the protections offered by the ADA, the employer was entitled to summary judgment on her claims.

Dismissing the plaintiff's FMLA claim was easier to rule on because the employee had not been employed for 12 months at the time of her termination, she could not satisfy the first element; she was not eligible for FMLA protection and, therefore, she had no rights under the FMLA.

--Louis v Sun Edison, LLC, DMd, July 15, 2011: Defendant's motion for summary judgement on plaintiff's sex discrimination GRANTED. Plaintiff's retaliation and sexual harassment claims allowed to proceed. District court held the employer’s alleged “honest belief” that she was lying and filing false charges could be considered by a jury to be a pretextual considering the one-sided nature of the investigation into her complaint.

The ADA vs. HIPAA: Medical Information Confidentiality

2011-07-24T13:24:00.000-07:00

As most people are aware, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted by President Clinton to accomplish and protect employees in several ways including:

Limits the ability of a new employer plan to exclude coverage for preexisting conditions;
Provides additional opportunities to enroll in a group health plan if you lose other coverage or experience certain life events;
Prohibits discrimination against employees and their dependent family members based on any health factors they may have, including prior medical conditions, previous claims experience, and genetic information; and
Guarantees that certain individuals will have access to, and can renew, individual health insurance policies

Most people know of HIPAA for its privacy rule. However, what most people (and perhaps most attorneys) do not know is that the Americans with Disabilities Act (ADA) also possesses a privacy rule that protects employee medical information. Specifically, the ADA states:

(3) Employment entrance examination

A covered entity may require a medical ex- amination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examina- tion, if—

(A) all entering employees are subjected to such an examination regardless of disability; (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, ex- cept that—

(i) supervisors and managers may be in- formed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, if the disabil- ity might require emergency treatment; and

(iii) government officials investigating compliance with this chapter shall be pro- vided relevant information on request; and

A recent case highlights on sometimes HIPAA's privacy rule won't cover an employee like the ADA's rule does. In Blanco v. Bath Iron Works Co. and General Dynamics Corp., (U.S. Dist. Ct. of Maine), No. 2:10-cv-00429-JAW, the plaintiff was terminated for failing to disclose his Attention Deficit Hyperactivity Disorder (ADHD) when he responded to the company’s post-offer, pre-hire Medical Surveillance History Questionnaire. According to the lawsuit, the in-house physician with whom Blanco discussed his post-employment request for a reasonable accommodation accused Blanco of failing to disclose his ADHD on the medical questionnaire. Blanco further alleged that the in-house physician discussed Blanco’s allegedly false responses to the questionnaire with management in General Dynamics’ Labor Relations Department. Blanco claimed that General Dynamics terminated his employment as a result of the disclosure. The case did not allege a HIPAA violation, but, instead, alleged an ADA violation.

The Court, in denying the employer's motion to dismiss the ADA violation count, held that the ADA’s confidentiality requirement to apply not only to disclosures to third parties outside the company (except in the limited circumstances described above), but also to inner-corporate disclosures. More to the point, if the complaint’s allegations turned out to be true, the in-house physician would have violated the ADA because her disclosure of Blanco’s medical information was not necessary for managers in General Dynamics’ Labor Relations Department to accommodate Blanco or to address a work restriction, and the other two exceptions obviously did not apply. The General Dynamics decision is particularly remarkable because the court held that the ADA protects even false medical information provided by an applicant or employee to an employer.

What Wisconsin's Concealed Weapon Law Means for the Workplace and Employment Law

2011-07-20T19:25:00.000-07:00

Recently Wisconsin Governor Scott Walker signed the concealed weapon bill which allows residents 21 years and older to carry a concealed weapon – a handgun, electric weapon such as a taser, knife (other than a switchblade knife), and billy club – almost anywhere in the state, including most places of employment. Wisconsin will issue licenses to carry concealed weapons, subject to background check and training requirements. Since concealed weapons will be allowed in the workplace, what does that mean for employers and employees?

The new law contains provisions that address the workplace. Specifically, employers may still prohibit employees from carrying weapons during the course of their employment (at both work sites and off-site locations where employees are working). Significantly, however, employers cannot prohibit an employee from carrying or storing a weapon in his or her own vehicle even if that vehicle is used in the course of employment or where the motor vehicle is driven or parked on property used by the employer. In addition, an employer is not permitted to bar an individual from employment because he or she is licensed to carry a weapon.

Also expect to see somewhat comical signs posted in certain places. Businesses prohibiting persons (e.g., employees, visitors, customers, etc.) from carrying a weapon on their premises must post signs (no less than 5" x 7") prominently near entrances and other locations where persons entering the property or building can be expected to see the signs.

The law also protections employers from certain liability if they do not prohibit their employees from concealing. However, given the newness of the law and the many situations that can arise, it is not known how far the no-liability provision will extend. The provision would also not save employers from liability under federal law.

Like any new law implicating the workplace, this statute promises to create lots of new work for us employment attorneys. Employers will need to begin drafting policies to address the law and employees who want to conceal on the job or in the workplace will present issues for employers and counsel. Interesting times ahead!

Wisconsin Supreme Court Rules Worker's Comp Statute Does Not Require Employer to Accommodate

2011-07-19T17:08:00.000-07:00

In a case overturning a worker's compensation administrative law judge, the Wisconsin Labor and Industry Review Commission (LIRC) AND circuit court, the Wisconsin Supreme Court upheld the Court of Appeals finding that LIRC applied an unreasonable interpretation of Wis. Stat. § 102.35(3), the statute for an unreasonable refusal to rehire. If you recall from my previous post, an unreasonable refusal to rehire is where an employee sustains an injury in the course of employment and is subsequently terminated or denied rehire.Ray Hutson Chevrolet, Inc. v. Labor & Indus. Review Comm'n, 186 Wis. 2d 118, 122, 519 N.W.2d 713 (Ct. App. 1994). "If the employee makes [this] showing, the burden shifts to the employer to show a reasonable cause for the refusal to rehire." Id. The employer may meet this burden by showing "that it refused to rehire an injured employee because the employee's position [was] eliminated to reduce costs and increase efficiency[.]" Id. at 123. At issue in this case was whether the employer failed to show reasonable cause for its refusal to rehire Swenson and if LIRC applied an unreasonable interpretation of § 102.35(3),, or based its conclusion on findings of fact that were not supported by credible and substantial evidence in the record.

The summary of this case's evolution is long and somewhat complex but the Supreme Court ultimately took issue with LIRC's finding that the employer violated the unreasonable refusal to rehire statute when it refused to change one of its policies for the employee-respondent. Specifically, the employee worked the graveyard shift because of his ailing father's needs and when the employer required an overnight check-ride, the employee-respondent requested an accommodation to complete the check-ride, which the employer refused to do. LIRC found the employer's unwillingness to accommodate the employee-respondent troubling and therefore found it reasonable to infer that Swenson's injury played a role in deBoer's refusal to rehire Swenson.

In reaching it's decision, the Supreme Court noted that there is no accommodation requirement present in the worker's compensation statute like there is in the Wisconsin Fair Employment Act (WFEA) (§ 111.34(1)(b)). Under § 111.34(1)(b), employers are required to make reasonable accommodations for employees with disabilities. See, e.g., Crystal Lake, 264 Wis. 2d 200.

The case also highlights the numerous unsettled issues surrounding the unreasonable refusal to rehire statute which are worth a read. The case is DeBoer Transportation v. Swenson, Docket: 2009AP000564 07-12-11.

Taking FMLA Leave to Care for a Parent or Parental Figure

2011-07-18T16:37:00.000-07:00

Under the federal Family and Medical Leave Act (FMLA), an eligible employee may take leave to care for a covered family member, including a parent. A "parent" under the FMLA includes a biological, adoptive step or foster mother or father, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (e.g., under 18 years of age, or over 18 years of age an incapable of self-care due to a disability). 29 CFR 825. 122(b). In loco parentis means that the individual had day-to-day responsibility to care for or financially suport the employee when the employee was a son or daughter. 29 CFR 825.122(c)(3). Therefore, the parental relationship need not be legal nor biological.

To invoke the protections of the FMLA, the employee must notify his or her employer of the need for FMLA-qualifying leave. A lot of litigation surrounds this issue of notice and whether a sufficient amount was given to the employer by the employee in order to evoke the protections of the Act. The FMLA's notice requirements are not onerous. Basically, the employee must provide adequate information to the employer that the leave may be in need of FMLA leave. An employee doesn't even have to use the term or words "FMLA" to evoke protections. If the employer needs more information to determine whether the leave is covered by the FMLA, they are required to inquire further.

It is utterly important that an employee seeking FMLA leave pursuant to In loco parentis provide enough information to their employer to show the type of relationship required to take the leave--especially if there isn't a legal or biological relationship. Absent a legal or biological relationship it isn't always obvious that a person serves as a parental figure to qualify the employee for FMLA leave and that could get the employer off the hook in a subsequent suit.

EEOC Settles Sexual Harassment Suit Against Wisconsin Company

2011-07-17T09:20:00.000-07:00

The Equal Employment Opportunity Commission (EEOC) announced that it has settled a sexual harassment suit it had filed against Richardson Industries, doing business as Richco Structures. Richardson has agreed to pay more than $22,000 to settle the suit brought by a former employee who says she was sexually harassed at the company’s Christmas party. From the Wisconsin Journal article on the settlement:

The U.S. Equal Employment Opportunity Commission accused Richardson Industries, doing business as Richco Structures, of violating federal law when it fired Morgan Rae Brocker after supervisors allegedly reported to management that a supervisor had sexually harassed her at the party in December 2005.

District Judge Charles Clevert entered the consent decree Thursday that pays Brocker $22,500 and provides training for managers and supervisors.

Richco Structures has offices in Sheboygan Falls, Haven and De Pere and is part of Richardson Building Products division.

Wisconsin Court of Appeals Finds Employer Unreasonably Refused to Rehire Despite Attempt to Commit Fraud by Employee

2011-07-11T19:14:00.001-07:00

The Wisconsin Court of Appeals released an opinion today (not to be published) upholding the Labor and Industry Review Commission (LIRC) and circuit court's decision finding that an employer, Advanced Transmission Service, LLC, (ATS), unreasonably refused to rehire an employee, Bradley Woodford, contrary to Wis. Stat. § 102.35(3) despite the fact evidence was presented showing Woodford asked ATS's owner to participate in a fraudulent scheme, and ATS did not want to employ someone who would "propose and perpetuate a fraud."

As I have discussed in a previous post, to recover under § 102.35(3), an employee must show that he or she sustained an injury in the course of employment and was subsequently terminated or denied rehire. In finding that Woodford met his burden and rebutted ATS' reasonable cause for the refusal to rehire, the Court stated:

Here, the Commission made the following factual findings in support of its conclusion that ATS lacked reasonable cause for refusing to rehire Woodford: (1) Woodford's elbow was still sore in July 2008; (2) Woodford convinced his physician to release him to return to work, even though his elbow was still sore; (3) Woodford would not have asked to be released had he known ATS did not have enough work for him; (4) during the July 24 conversation, Woodford told Effertz that his elbow was not fully healed and he wanted to go back to work for a week in order to reinstitute his existing worker's compensation claim; (5) by making this proposal, Woodford did not intend to do anything fraudulent; (6) Woodford did not realize that he did not need to return to work in order to reinstitute his worker's compensation claim; and (7) Effertz knew on July 24 that Woodford's elbow was not fully healed and that Woodford had "forced" his doctor to release him to return to work.

The Court and ALJ who decided the case at the administrative level also gave huge points to Woodford for his "extreme" honest and truthfulness relating to the fraud issue:

At the hearing [Woodford] was extremely honest and truthful. He did not deny that in July 2008, he told [Effertz] about going back to work so that he can go back to his doctor and then continue his eligibility to receive temporary disability benefits. He did not need to go back to work to receive temporary disability benefits and what he actually needed was for his doctor to state that he did not reach maximum medical improvement. On the other hand, Effertz was calculating and unconvincing. He was programmed to answer his questions in a manner to always include such terms as "fraudulent" and dishonesty. He calculated every step to see that he would have what he perceived to be legitimate reason so that he would not hire [Woodford] again. Simply, Effertz['s] testimony that he did not call [Woodford] to work for him in November 2008, because he was not willing to participate in a potential fraudulent scheme, is not convincing. [Woodford] wanted to go back to work so that he would receive wages which are higher than the temporary total disability benefits he was receiving.

(Emphasis added.) In its memorandum opinion, the Commission stated that it had "discussed the witnesses' credibility" with the ALJ, and the ALJ "did not credit Mr. Effertz['s] testimony that the only reason he refused to rehire [Woodford] in November 2008 was because of the proposal [Woodford] made in July 2008." Additionally, the ALJ "indicated that he found [Woodford] to be very credible and straightforward in his testimony that he did not intend anything dishonest or fraud[ulent.]" Based on its independent review of the record, the Commission "found nothing to warrant overturning the [ALJ's] credibility determination[s]."

The full opinion can be read here.

Pursuing an ERD Complaint without a Lawyer

2011-07-07T18:28:00.000-07:00

One of the odd aspects of being a labor & employment attorney is the fact I represent people who are more often than not unemployed and on a very tight budget yet, for the same reason we all work, I too have to be paid for my time and work. Defense counsel knows this fact and work that to their advantage when they are up against a complainant who is without an attorney (known as a pro se litigant) or dealing with a litigant who has private counsel because they know the complainant probably cannot afford to litigate their case to the fullest extent like the EEOC can with their tremendous resources.

I am often left conflicted and sometimes upset that I cannot help everyone with an employment issue because the potential client either cannot afford representation or the case isn't strong enough at the outset to risk a contingency fee arrangement. However, this does not mean that someone with an Equal Rights Division (ERD) complaint cannot win without an attorney in their complaint--it simply makes it more difficult.

A common area where pro se litigants get stumped and feel over-burdened is when the defense counsel sends out that first round of discovery requests in the form of interrogatories, requests for admissions and/or requests for production. Most calls I get from pro se litigants is around this time and at that point it may make an employment attorney's job more difficult depending on when the hearing is scheduled for. As most people have learned through the Casey Anthony case, evidence, direct or circumstantial, is everything and it's not what you know or believe, it's what you can prove. Discovery is the time to gather up that information and evidence to prevail in an employment discrimination claim.

While I remain highly sympathetic and mindful of the economic reality of people with employment complaints, I still encourage people to do their best to obtain counsel as soon as possible and assist in proving up their case.

DOJ Issues Suit Against Farmland Foods Alleging Immigration-Related Employment Discrimination

2011-07-05T17:06:00.000-07:00

Late last month the Department of Justice announced a complaint it filed against Farmland Foods, Inc. in Missouri that alleged the major producer of pork products engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on non-U.S. citizens when establishing their authority to work in the United States. From the press release on the suit:

The department’s investigation revealed that Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth plant in Illinois to present specific and, in some cases, extra work authorization documents beyond those required by federal law. The Immigration and Nationality Act (INA) requires employers to treat all authorized workers in the same manner during the hiring process, regardless of their citizenship status. Farmland imposed different and greater requirements on non-U.S. citizens and foreign-born U.S. citizens as compared to applicants who were native-born U.S. citizens.

“Employers may not treat authorized workers differently during the hiring process based on their citizenship status,” said Thomas E. Perez, the Assistant Attorney General in charge of the Civil Rights Division. “Federal law prohibits discrimination in the employment eligibility verification process, and the Justice Department is committed to enforcing the law.”

The lawsuit charging Farmland with discriminatory practices has been filed before the Office of the Chief Administrative Hearing Officer (OCAHO) within the Executive Office for Immigration Review, another component of the Department of Justice.

The Office of Special Counsel (OSC) for Immigration Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the INA, which protects work authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification (Form I-9) process.

Bill Gives Businesses Tax Credit for Hiring Unemployed

2011-07-05T16:48:00.000-07:00

Sen. Sheldon Whitehouse (D-RI) has introduced a measure, the Job Creation Tax Credit Act of 2011 (S. 1271), which proposes to provide businesses with tax incentives for hiring individuals in 2011 and 2012 who have been unemployed. The bill would expand on certain provisions in the HIRE Act of 2010 by giving employers refundable tax credits of 15% of wages paid in 2011 and 10% of wages paid in 2012 for qualified new hires.

A "qualified" individual under the bill would be those who (a) begin employment with the employer after the date of the bill’s enactment but before January 1, 2013; (b) have not been employed for more than 40 hours during the 60-day period before the date of hire; and (c) are not being hired to replace another employee unless that employee left work voluntarily or for cause.

For more, here is the press release on the bill from Senator Whitehouse's website.

LensCrafters Settles "Reverse" Sexual Harassment Case for $192,500

2011-06-20T19:47:00.000-07:00

In a case highlighting the emerging trend of female-on-male sexual harassment in the workplace ("reverse" sexual harassment), the largest optical chain in the country, LensCrafters, has settled a case filed by one of its former employees, William Sheard, for $192, 500. The suit was filed on behalf of Sheard by the Equal Employment Opportunity Commission (EEOC) and claimed Sheard fended off repeated come-ons from colleague Melissa Brandt in a LensCrafters store in Saginaw, Mich., and alleged that management ignored Sheard's complaints because he was a man being harassed by a woman.

From The Huffington Post article on the settlement:

According to the suit, Sheard started working at LensCrafters in 1998. In 2006, Brandt told him she wanted to have a relationship with him that was "more than platonic." Sheard declined. From then on, Brandt would reference sex acts in front of Sheard, talk openly about his body, touch and grab his chest and backside and tell him she loved him and wanted to have sex with him, the suit claimed.
At a holiday party in 2008, Brandt allegedly tried to grab Sheard's crotch several times, to the point where Sheard had to leave. After repeated rejections, Brandt eventually made a sexual harassment claim against Sheard, a charge she later admitted was false, according to the lawsuit. The lawsuit alleged that LensCrafters management immediately investigated Brandt's charge while ignoring Sheard's.
"People witnessed things," Sheard said. "Nobody wanted to do anything about it."
Sheard repeatedly brought his issues to management -- at first the lab manager, and then up the company ladder -- all to no avail, he said. All told, the alleged harassment lasted for more than a year.
"I just kept taking it to higher authorities," Sheard said. "I'd take it to a supervisor, then to their supervisor, and it just kept getting overlooked. It blew up to a point that they had no choice but to try to do something about it. But at that point it was way too late."
Sheard left LensCrafters in 2008, after Brandt's father threatened him at the store due to his repeated complaints, according to court records. The EEOC took up Sheard's case and filed its suit the following year.

This suit, once again, highlights the importance of properly lodging complaints with management and HR when you feel sexually harassed as we have seen a plethora of cases dismissed when the plaintiff only first complaint through a lawsuit. Always remember that the employer has to receive a chance to remedy the harassment before a suit may be filed and stand a chance.

Union Salting Bill Reintroduced into the House

2011-06-20T18:05:00.000-07:00

A union "salt" is an undercover union organizer and legislation, the Truth in Employment Act of 2011 (H.R. 2153), has been reintroduced into the House of Representatives by Rep. Steve King (R-IA). The legislation seeks to amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire salts. Specifically, the legislation would amend Section 8(a) of the NLRA to read:

“Nothing in this subsection shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”

Currently, an employer cannot discriminate against a “salt” simply because of an alleged conflict of interest or due to “potential” violation of company policies. The employer does have the right to expect the salt to perform work in the normally expected manner. The extent of “salting” in use by unions is uncertain, as some salts identify their union affiliation and others do not.

Employment Case Law Update

2011-06-20T17:30:00.000-07:00

--Rahlf v Mo-Tech Corp, Inc, 8thCir: The Court of Appeals for the Eighth Circuit upheld a district court's ruling that three employees laid off in a reduction-in-force (RIF) who were the oldest in their job group were unable to proceed with their Age Discrimination in Employment Act (ADEA) and state law claims of age discrimination because they failed to sufficiently refute as pretextual the employer's claim that the RIF was necessary due to shifting and reduced customer needs and concerns about continued profitability.

The court rejected their assertion that that the RIF was unnecessary. Although the plaintiffs pointed out that within a year after they were fired, the company hired new employees and its sales increased, the Court found that none of the employees who were subsequently hired were Class A mold-makers and the fact that the remaining mold-makers were busy and that the employer's sales increased after the employees were terminated did not support an inference that the RIF itself was pretextual. The Eight Circuit also rejected the employees’ attempt to attack the methods (objective data and subjective observations) that the employer used to determine which employees to terminate. Given the relatively small number of Class A mold-makers and management’s close involvement with daily operations, subjective knowledge of each employee’s work and skills was relevant to the ultimate termination decision, held the court, and the employer was not required to base its RIF decision on positive performance reviews. The court also rejected the employees' assertion that the employer provided inconsistent rationales for its termination decision, finding no inconsistencies in the employer's proffered reasons for their termination.

--Marin v Bloom Roofing Sys, Inc, EDMich: In a case with an unusual twist, although two Hispanic construction workers failed to set forth a winning pretext argument that their employer prevented them from developing the necessary job skills because of their race, a federal district court in Michigan, on its own accord, unearthed a prima facie case of race discrimination from the evidence they presented.

Noting that it can consider evidence from the employees’ prima facie case for pretext purposes, the court concluded a fact finder could find that the employer’s articulated reason for termination could be rebutted by the disparate treatment with respect to use of the heat welding gun. The court also considered evidence that the employees were required to do tear-downs while white workers performed more desirable installation work. Specifically, the court ruled, a fact finder could conclude that the inequality in the types of jobs given to Hispanic employees demonstrated that the company disfavored them or placed less value on their work. Accordingly, the decision to terminate the two employees may have been based on discrimination, the court concluded.

--Fields v Rainbow Rehab Ctr, Inc, EDMich: Employer's motion for summary judgment GRANTED. A Jehovah’s Witness whose employer had already accommodated his request not to work on four particular days of the week could not proceed with his Title VII claims that his employer refused to accommodate his religious beliefs when it discharged him after he failed to schedule a one-on-one training, offered to him as an accommodation for missing a staff meeting on his day off.

The employee was unable to demonstrate that the employer discharged or disciplined him for failing to comply with employment requirements that conflicted with his religious beliefs. Moreover, he did not claim that he failed to attend that training due to a conflict with his religious beliefs, but rather indicated that he was not there because he had been stuck at school with his son. Further, the court noted that the employee was not discharged simply because he failed to attend a staff meeting scheduled on one of his accommodation days. Rather, he was terminated because he did not contact his supervisor to arrange alternative one-on-one training.

--Smith v Koch Foods of Mississippi,SDMiss: Employer's motion for summary judgement DENIED. A female employee who asserted that her plant supervisor made inappropriate remarks and showed her a sexually explicit video of himself, and who was discharged after complaining to management about the supervisor's harassment as well as alleged race bias in the workplace, presented sufficient evidence to proceed with her Title VII sexual harassment and reprisal claims, a federal district court in Mississippi ruled. The record demonstrated that a triable fact issue existed as to whether the harassment affected a term, condition or privilege of her employment as well as whether the sexual harassment was sufficiently severe or pervasive. The court also ruled that, although a close question, the employee presented sufficient evidence to proceed with her claim that she was discharged in retaliation for complaining about sexual harassment and alleged race bias.

Missouri Jury Awards Woman $95 Million in Sexual Harassment Case

2011-06-13T19:13:00.000-07:00

In perhaps a case of the worst facts I have ever read, a Missouri jury awarded a woman, Ashley Alford, $15 million in compensatory damages and $80 million in punitive damages for a grand total of $95 million--a potential record. However, a cap on damages in federal sexual harassment cases will reduce that to about $41.6 million. The facts of the incidents of sexual harassment are pretty, pretty horrific:

The store's then-general manager, Richard Moore, began by making inappropriate comments, nicknamed her "Trixie" and "Trix," and pinched her

The manager gave her clothes and chocolates, progressed to groping, and sneaked up behind her as she was sitting on the floor of the stockroom and hit her on the head with his penis in the fall of 2006.

On Oct. 12, 2006, the suit alleges, Moore threw Alford to the ground, lifted her shirt and masturbated over her as he held her down. He was arrested later that day and awaits trial in St. Clair County Circuit Court on a charge related to the accusation.

Not that this could get any worse, the employer also ignored Alford's sexual harassment complaints until the police intervened! STLtoday.com has the rest of the story here.

Electronic Paycard Protection Act Introduced in House

2011-06-13T18:26:00.000-07:00

Earlier this month Rep. Joe Baca (D-CA) introduced the Electronic Paycard Protection Act (H.R. 2125) which would mandate certain disclosures to and options for employees who receive their pay electronically through payroll cards. The bill, if passed, would add a section to the Fair Labor Standards Act (FLSA) that outlines the new conditions imposed on employers that use electronic payroll cards. The bill would also seek to:

Allow employees to access the full amount of their wages at least once per pay period;

Provide employees with a mechanism to check their balance free of charge;

Provide employees with a written explanation of all the terms and conditions associated with the use of an electronic payroll card, including any fees associated with such a card. Employers would also be required to make these disclosures in any other manner typically used by the employer to communicate to employees;

Give employees the option to receive either a paper paycheck or electronic paycheck deposit instead of a paycard;

Disallow an electronic paycard payment of an employee’s final payment or any severance payment to an employee whose employment has been discontinued;

Prevent an employer from firing or failing to hire employees or applicants for refusing to use electronic paycards as their primary means of receiving wages; and

Ensure that any funds made available by the paycard may not expire.

Senator DeMint Files FOIA Request Against NLRB for Information on Boeing Complaint

2011-06-13T17:53:00.001-07:00

Sen. Jim DeMint (R-S.C.) last week sent a Freedom of Information Act (FOIA) request to the National Labor Relations Board (NLRB) in an effort to "bring transparency" to what DeMint says was a partisan decision by the board to sue Boeing. From "The Hill" on the FOIA request:

DeMint is looking for evidence that the suit was a result of coordination between the NLRB and the International Association of Machinists (IAM), and believes he has found it.

Specifically, he cited the April 2011 edition of Aero Mechanic, the newsletter of the IAM Local 751, the same local union that would benefit from the NLRB's suit against Boeing. In that edition, the group said monetary contributions "gains your Union access to officials, which is critical to get our issues addressed and ensure our input is heard."

"Local 751 would appear to be openly engaged in a pay-to-play system of political influence," DeMint said in his letter to the NLRB. "The question is unavoidable: did Local 751’s political activities or campaign contributions 'gain [it] access to officials' at the NLRB?"

The FOIA request can be read here.

Establishing a Hostile Work Environment Claim

2011-06-12T19:21:00.000-07:00

One of the most common inquiries I receive and words used by potential clients involves "hostile work environments." This common inquiry always brings to surface the common misconception that "crappy" work places are actionable under a hostile work environment claim with nothing else--that is, not based upon Title VII protections, OHSA violations or labor law violations. I generally attempt to probe for any sort of protected activity and generally ask whether the potential client believes the "hostile work environment" may be based upon their belonging to a protected class and then explain what is an actionable hostile work environment.

The Supreme Court of the United States held that in seeking to establish the existence of a hostile work environment, plaintiffs must show that their work environment was both objectively and subjec- tively offensive—that is, “one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). In determining whether an environment is sufficiently hostile to support a claim, the Supreme Court has instructed courts to cast a wide net and consider the totality of the circumstances. The circumstances include “the frequency of the discrim- inatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive ut- terance; and whether it unreasonably interferes with an employee’s work performance.” Faragher, 524 U.S. at 787- 88.

To qualify as a hostile work environment, the conduct at issue must be severe or pervasive enough to cause psychological injury, al- though Title VII “comes into play before the harassing conduct leads to a nervous breakdown.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). In addition to showing that the environment was sufficiently serious, the plain- tiff must show that the harassment was based on mem- bership in a protected class, Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002), and also that there is a basis for imputing liability to the plaintiff’s employer. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).

Showing a hostile work environment is not easy and there have been many, many cases where a plaintiff is able to show deplorable conduct on the part of the employer but under the totality of the circumstances standard, the facts do not pass muster. Every case is different and it is conceivable that a single, isolated incident in the workplace may amount to a hostile work environment, but employees are always encouraged to take their concerns and complaints up with the employer first as resolving workplace issues short of litigation is always ideal.

Gov. Walker Names New Dept. of Workforce Development Secretary

2011-06-08T20:56:00.000-07:00

Wisconsin Governor Scott Walker announced a new Secretary of the Department of Workforce Development after his initial appointee, Manny Perez, abruptly resigned after only about five months on the job. The new secretary, Scott Baumbach, was initially named deputy secretary of the department by Walker in January. From the Journal Sentinel article on the new appointment:

“Scott Baumbach has done a tremendous job in the Department of Workforce Development since day one, both as a deputy and interim secretary, and I know that he will continue to succeed in his new role,” Walker said in a statement.

Baumbach, was an associate and partner at Michael Best & Friedrich LLP law firm in Milwaukee from 2001-2010, and a law clerk for Wisconsin Supreme Court Justice Diane Sykes from 2000-2001.

Employment Case Law Update

2011-06-08T18:15:00.000-07:00

--Hart v Family Dental Group, 2ndCir: In affirming a district court’s grant of judgment as a matter of law on the plaintiff's Sec. 4312(A) of the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court of Appeals for the Second Circuit held there was no reasonable basis to find a violation because the plaintiff was reinstated with the same title, pay, and employment terms upon his return from active duty in Iraq. The twist in this case takes place when the plaintiff was informed that he was being terminated 60 days after he returned to work for the defendant. The plaintiff questioned the legality of his termination so the defendant shortened the termination from 60 to 30 days, which prompted suit under USERRA. The Dept. of Labor informed the defendant that it had to employ the plaintiff for at least 180 days upon his return from active service, which it did, and once the 180 days were up it re-terminated the plaintiff. In ruling in favor of the defendant-employer the 2nd Circuit noted that USERRA only requires an employer to re-employ a member of the armed services for 180 days (unless they can terminate for cause) and that is what was done here. Nothing more is required of the employer.

--Khufu v Jones Retail Corp, DHaw: Defendants' motion for summary judgment DENIED in part, GRANTED in part on plaintiff's race, color, age, hostile work environment, intentional infliction of emotional distress and state law claims. As is common with a lot of employment cases, this case presents an employment history marred with disciplinary actions and questionable employer conduct. This case also highlights the blunder commonly made by plaintiffs when they fail to properly check all the relevant "boxes" in EEOC complaints in order to properly exhaust administrative remedies in order to file suit in federal court.

In claiming race discrimination under Title VII the plaintiff relied upon the Supreme Court's recent cat's paw decision in Staub v. Proctor Hosp.. While the court acknowledged that the plaintiff was terminated for violating certain policies, the court held it could not ignore the other evidence presented on behalf of the plaintiff pertaining to the alleged discriminatory conduct of his immediate supervisor which also factored into the decision to terminate in denying the employer's motion for summary judgment on the Title VII claim.

--Magnussen v Casey’s Mktg Co dba Casey’s Gen Store, NDIowa: Employer's motion for summary judgment GRANTED. Plaintiff has a temporary and sporadic back problem that left her unable to stand for long periods of time was held not disabled under the ADA (prior to ADAAA amendment) or state law, nor was she qualified for her position, held the Iowa district court. The court also held that even had the plaintiff been a qualified individual with a disability, it was she and not the employer who was responsible for the breakdown of the interactive process, and therefore, her failure to accommodate claim could not proceed.

--Winterhalter v Dykhuis Farms, Inc, WDMich: Employer's motion for summary judgment GRANTED on employee's Family and Medical Leave Act (FMLA) claims. The court held that the termination of the plaintiff on the day he returned from FMLA leave occurred during a broader reduction in force (RIF) and was based on objective criteria of poor work performance and a high salary not because of the FMLA leave.

Expert Economic Study Reveals Raising Minimum Wage Would Help Economy

2011-06-07T19:44:00.000-07:00

A group of economists for the Center for American Progress (CAP) revealed the results of 15 years' worth of research and concluded that raising the federal and state minimum wages across the country would boost the stagnant economy and improve the standard of living among low-wage earners. From The Huffington Post article on the study:

Michael Reich, an economics professor and director of the Institute for Research on Labor and Employment at the University of California, Berkeley, said his research has shown that businesses don't suffer from having to dish out slightly higher wages to their lowest-paid employees. In fact, he argued there are benefits to employers.

"The labor market absorbs the minimum wage," said Reich. "Turnover goes way down when there's a minimum-wage increase. Employees -- when they stay longer, they'll be more experienced and more productive. And the employers will have lower turnover costs."

The economists made their argument at a time when the American economy remains stubbornly sluggish. On Friday, the federal government released a disappointing report showing that the economy hasn't been adding jobs at the pace it needs to for a robust recovery. The unemployment rate has risen to 9.1 percent, and many experts believe it will be several years before it drops to pre-recession levels. Many of the jobs being added also happen to be lower-wage positions.

The current federal minimum wage is $7.25, or about $15,000 a year for a full-time worker. The minimum wage had been stuck at $5.15 for over 10 years until 2007, when a series of increases were put into effect. Seventeen states currently have a minimum wage set higher than the federal standard, and a number of states are considering giving their lowest-paid workers another raise.

The economists arguing for a minimum-wage boost compared it to stimulus action, saying that it pumps money into local economies and can even lead to job growth. Such an increase is like food stamps or unemployment benefits in that the recipients, who tend to be low-wage workers and their family members, usually have to spend the money rather than sock it away.

Nevada Passes Legislation Banning Discrimination in Employment Based Upon Gender Identity or Expression

2011-05-31T19:10:00.000-07:00

Though there remains no specific protection at the federal level against employment discrimination against lesbian, gay, bisexual or transgendered employees, Nevada has chosen to provide such protection for their employees by amending their employment discrimination law.

Under the right set of circumstances and facts, however, a claim could be brought under Title VII against discrimination involving lesbian, gay, bisexual or transgendered employees IF the employer’s adverse action was based not upon sexual orientation or transgendered status, but upon a failure by the employee to conform to gender stereotypes.

Congrats, Nevada!

Proposed Federal Legislation Would Establish Minimum Nurse/Patient Ratios, Provide Whistleblower Protections

2011-05-31T18:46:00.000-07:00

Senator Barbara Boxer (D-CA) recently reintroduced legislation that would establish minimum nurse-to-patient ratios, require hospitals to implement nurse-to-patient staffing plans, and provide whistleblower protection for patients and hospital employees. The National Nursing Shortage Reform and Patient Advocacy Act (S. 992) is the latest in a number of bills introduced in recent years that are designed to provide nurses – and their unions – with greater influence on nurse staffing levels. The proposed ratio calls for:

‘(1) IN GENERAL- Except as otherwise provided in this section, a hospital’s staffing plan shall provide that, at all times during each shift within a unit of the hospital, a direct care registered nurse shall be assigned to not more than the following number of patients in that unit, subject to paragraph (4):

‘(A) One patient in trauma emergency units.

‘(B) One patient in operating room units, provided that a minimum of 1 additional person serves as a scrub assistant in such unit.

‘(C) Two patients in critical care units, including neonatal intensive care units, emergency critical care and intensive care units, labor and delivery units, coronary care units, acute respiratory care units, postanesthesia units, and burn units.

‘(D) Three patients in emergency room units, stepdown units, pediatrics units, telemetry units, antepartum units, and combined labor, delivery, and postpartum units.

‘(E) Four patients in medical-surgical units, intermediate care nursery units, psychiatric units, and other specialty care units.

‘(F) Five patients in rehabilitation units, and skilled nursing units.

‘(G) Six patients in well-baby nursery units and postpartum (3 couplets) units.

Think Twice Before Traveling While on Medical Leave!

2011-05-24T19:05:00.000-07:00

In a case somewhat oddly involving a union, the Communications Workers of America (CWA), an employee, Denise Pellegrino, filed suit alleging Family and Medical Leave Act (FMLA) interference after she was fired for traveling to Cancun, Mexico while on medical leave. There are a few facts unique to this case that may render different results under a different scenario but the Pennsylvania federal district court ultimately upheld the termination on the grounds that companies have the right to create and enforce leave policies, to the extent that they do not abridge an employee's rights under the FMLA and that Pellegrino would have been terminated anyway, even without a written paid sick leave policy.

CWA had a written paid sick leave policy that required employees to get examined by a doctor of CWA's choosing and to remain in the immediate vicinity of their homes while on sick leave. Pellegrino pursued the paid leave and then left to Mexico without informing CWA. The court held:

No reasonably jury could find that an employer acts illegitimately or interferes with FMLA entitlements when that employer terminates an employee for taking a week-long vacation to Mexico without at least notifying the employer that her doctor had approved the travel or that she would be out of the country.

While it may seem perfectly ok to travel while on sick leave because a vacation is the complete opposite of work, employees ought to review their handbook and policies and even consult with human resources before jumping on a plane and assuming traveling is allowed.

I Received a "Right-to-Sue" Letter from the EEOC. Now What?

2011-05-24T18:18:00.000-07:00

Among the numerous confusing and misunderstood things in employment law concerns the Equal Employment Opportunity Commission's "right-to-sue" notice. Many potential clients and callers think this means the EEOC is informing them that they have a good case and should file a lawsuit in federal court. However, a right-to-sue notice letter does not mean the EEOC is communicating to you that you ought to file a lawsuit, rather, this notice is the EEOC's issuing you the requisite letter that allows you to file a federal lawsuit independently as they have concluded they cannot represent you in your case.

Federal law requires this notice of right-to-sue before an individual may file a suit in federal court though there are exceptions (i.e., If you plan to file an age discrimination lawsuit, you won’t need a Notice of Right-to-Sue to file in court. You can file anytime after 60 days have passed from the day you filed your charge (but no later than 90 days after you receive notice that our investigation is concluded). If you plan to file a lawsuit under the Equal Pay Act, you don’t have to file a charge or obtain a Notice of Right-to-Sue before filing. Rather, you can go directly to court, provided you file your suit within two years from the day the discrimination took place (3 years if the discrimination was willful). The right-to-sue letter is issued after the EEOC has concluded its investigation and then the charging party only has 90 days to file suit in federal court or loses their right to file.

A charging party does not have to wait for the EEOC to conclude their investigation to request a right-to-sue letter but does have to wait at least 180 days after the date they filed their charge.

If you have received a right-to-sue letter and are considering filing suit in federal court, it is best to seek a private employment attorney as soon as possible so that an assessment of your case can be made and the suit can be drafted and filed timely and properly.

Arbitration Fairness Act of 2011 Reintroduced

2011-05-18T20:37:00.000-07:00

The Arbitration Fairness Act of 2011 (H.R. 1873, S. 987) has been reintroduced into Congress by Rep. Henry “Hank” Johnson (D-GA) and Sen. Al Franken (D-MN) and seeks to amend the Federal Arbitration Act (FAA) to invalidate all predispute arbitration agreements that require the arbitration of any employment or consumer dispute, or conflict arising under any statute intended to protect civil rights. It would not, however, apply to arbitration provisions contained in collective bargaining agreements. The Act essentially also seeks to overturn a series of recent U.S. Supreme Court decisions upholding arbitration as a legitimate means of dispute resolution. In the most recent decision issued in April of this year (ATT&T v. Concepcion), the Court held that the FAA preempted a California state supreme court decision that conditioned the enforceability of a consumer arbitration agreement on the availability of class-wide arbitration.

This legislation broadly defines “employment dispute” as “a dispute between an employer and employee arising out of the relationship of employer and employee as defined by the Fair Labor Standards Act.” The definition of “consumer dispute” is similarly broad enough to encompass a wide range of legal conflicts. If enacted, this bill would essentially eliminate arbitration as a litigation alternative for employee claims – as well as those brought by clients/customers – unless the parties agree to the arbitral forum post-dispute. The provisions of this bill would take effect on the date of enactment, and would apply to any dispute or claim arising on or after that date.

NLRB Files Another Facebook Firing Complaint

2011-05-18T14:09:00.000-07:00

The National Labor Relations Board (NLRB) announced a complaint it has filed alleging that Hispanics United of Buffalo, a nonprofit in New York that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The complaint was issued May 9 by Rhonda Ley, NLRB Regional Director in Buffalo, New York. From the official release on the complaint:

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. Unless the case is settled, the complaint will be the subject of a hearing before an administrative law judge on June 22, 2011, in the Buffalo office of the NLRB.

EEOC Files Suit Against Starbucks Alleging Disability Discrimination Related to Dwarfism

2011-05-17T17:55:00.000-07:00

The Equal Employment Opportunity Commission (EEOC) has announced a lawsuit against a Starbucks in El Paso, Texas after a former employer with dwarfism was terminated shortly after requesting an accommodation to be able to help fix drinks and serve customers with a stool or stepladder and after only 3 days on the job. According to the EEOC's complaint, Starbucks stated that the former employee could "pose a danger to customers and employees."