The WIB Legal Line is our new regular feature. Employment laws are confusing. The WIB LEGAL LINE updates members on developments that could impact your business. Robert E. Gregg is a partner in the Boardman Law Firm of Madison and has long been associated with WIB. Want to read even more employment law legal updates? Visit the WIB website, WWW.WIBIZ.ORG and click on LEGAL LINE.

LEGISLATION AND ADMINISTRATIVE ACTION

House Passes “Card Check Majority” Bill. The U.S. House of Representatives passed the Employee Free Choice Act, which would force employers to recognize a union if it presents “authorization cards” in favor of a union. No actual election would occur. One problem with this approach, according to many labor relations experts, is that authorization cards have repeatedly been found to not mean an employee actually wants a union. Some cases show that card signatures are at times obtained under false pretenses, at bars after several drinks and even coerced. There is a question as to whether effective safeguards against such practices can be built into the law. The Senate has not yet acted upon the bill.

Mandatory Drug and Alcohol Testing for Wisconsin Contractors. Wis. Stat. §103.503 becomes effective May 1, 2007. Companies that contract or subcontract state public works projects must have substance abuse prevention and testing policies for employees working on a state project. Employees must be tested before starting the project, and be subject to post-accident, reasonable suspicion and random testing during the work.

LITIGATION

Public Policy Discharge

Public Policy Unfair Discharge Does Not Apply Where a Specific Law Provides a Remedy. Wisconsin, like many other states, has an exception to Employment at Will when a person is fired for refusal to follow an employer’s orders to violate a law. In Repetti v. Sysco Corp. & Sysco Foods of Eastern Wis. (Wis. App. Dist. II, 2007), an employee alleged that he was fired because he refused to engage in fraudulent corporate accounting, and he reported the violation to his managers as a whistleblower under the Sarbanes-Oxley Act. He then filed a state suit for Public Policy Unfair Discharge. The court dismissed the case. It ruled that since Sarbanes-Oxley had a specific complaint/suit procedure and its own set of adequate remedies, the employee must follow that law. The court’s opinion stated that a Public Policy Discharge case is to be “narrowly construed.” It is for “the need to protect workers who are wrongfully discharged under circumstances not covered by any other legislation or whose job security is not safeguarded by a collective bargaining agreement or civil service regulations . . . where Congress or the legislature has enacted a variety of statutes to prohibit certain types of discharges and where the legislature has created a statutory remedy for a wrongful discharge, that remedy is exclusive.”

Discrimination

Standards: Federal and State Harassment Standards Can Be Different

Company Not Liable For Harassment by Supervisor. A company used the federal law “Faragher/Ellerth” defense to win a case in which the supervisor sexually harassed an employee. The company had an anti-harassment policy and took action to correct the situation once the employee complained. The employer made a good faith effort to comply with Title VII. Harsco Corp. v. Renner (10th Cir., 2007).

Supervisor’s Acts Create Automatic Liability Under Michigan Law. Emphasizing that the State Civil Rights Act is different than Title VII, the Michigan Appellate Court ruled that an employer’s anti-harassment policies and corrective action are NOT a defense when a supervisory employee engages in overt sexual harassment. Unlike a co-worker, a supervisor is an “agent” of the employer. His acts are the acts of the employer! Under the state law, the supervisor’s acts create instant liability for the employer and for himself personally. Elezovic v. Bennett (Mich. Ct. App., 2007). [The Wisconsin Fair Employment Act can have a similar result, except there is no personal liability under that statute.]

Race

Court Penalizes Plaintiff’s Attorney for Misquoting Employer. An African American doctor’s 42 U.S.C. §1981 race discrimination case against a hospital was dismissed due to insufficient real evidence to show racial bias. His attorney was also sanctioned. The court found that in an affidavit and brief, the attorney had added the word “boy” when quoting a hospital administrator’s statement to the doctor. The word “boy” altered the quote to give it a highly racially-charged connotation. However, the administrator never used that word, so the court ordered sanctions against the attorney for presenting the altered evidence. Jenkins v. Methodist Hospital of Dallas, Inc. (5th Cir., 2007).

Harassment Suit Dismissed Due to 20-Year Delay in Reporting. A white supervisor allegedly harassed Hispanic and African American airport workers for 20 years. The employees waited until after he retired to file a case under Title VII and 42 U.S. Code §1981. The court ruled that the long delay in reporting had deprived the employer of the chance to know of and correct the problem. The plaintiffs were denied a “continuing violation” cause of action. They clearly knew years ago of the alleged illegality of the supervisor’s behavior and knew of the policy encouraging reporting of harassment. Plaintiffs who are asserting a “continuing violation” theory of liability cannot wait forever. Even if the behavior continues, they have a duty to protect themselves by letting the employer know, and/or suing at an earlier date. The employer should not be liable for years of liability which the plaintiffs silently allowed themselves to experience. Pruitt v. City of Chicago (7th Cir., 2007).

Age

Unequal Documentation Wins Age Case. A 63-year-old employee was fired due to bookkeeping errors and alleged friction with co-workers. However, the same supervisor did not bother to document similar errors by a younger worker and did not take any action against a younger worker who had friction with others. The discrepancy made it appear that the supervisor singled out the 63-year-old for closer supervision and documentation. Also, the supervisor’s several inquiries about the employee’s plans for retiring, and how soon, did not help the employer’s defense. Tuttle v. Metro Government of Nashville and Davidson County (6th Cir., 2007).

Disability

Passed Around With No Plan Violates ADA. An employer did not terminate a disabled employee, but also did not adequately address his issues. The employee made several requests for reasonable accommodation and requested assignment to jobs he could perform, such as forklift driver. Instead, there was evidence that the company did not respond, did not develop an accommodation plan and passed the employee from supervisor to supervisor, job to job. There was sufficient evidence of violation of the interactive process requirement to warrant trial. Wagers v. Arvinmeritor, Inc. (S.D. Ind., 2007).

Lessor Production Quota is Not Reasonable for Assembly Line Job. An assembly line worker’s request for a less-per-hour production quota was deemed an “unreasonable” accommodation. In the ensuing litigation, the court agreed. An assembly line operates only as fast as its slowest member. Granting the disabled worker’s accommodation would result in a slow down of the entire line, resulting in setting a new, lower quota for all the workers and a significant decline in the line’s end result. Denczak v. Ford Motor Co. (6th Cir., 2007).

Religion

Failure to Complain About Slurs Toward Others Dooms Religion Harassment Case. In Cutler v. Dorn (N.J. Sup. Ct., 2007), police officers engaged in a lot of overt banter, including “one-up” insults with racial, ethnic, etc. connotations. One officer participated and regularly heard banter about others’ ethnicity and race. When a co-worker made comments about “dirty Jew” and “Jew nose” and “Jews have all the money,” the officer filed a religious harassment case. The court dismissed the case due to (1) the sporadic incidents were not sufficiently severe or pervasive to constitute actionable harassment, and (2) the officer had participated in, and sat idly by listening to, offensive remarks about other workers’ race or ethnicity without raising any apparent concern, accepting it as workplace joking. Only when his own ox was gored did he seem to see any problem. His failure to speak up when others were gored made it apparent to the court that the officer understood this was “joking” and approved of the banter type of environment, except when it turned to him.

National Labor Relations Act

Tribal Casino is Subjected to National Labor Relations Act. Tribal sovereignty trumps many employment laws, such as Title VII, giving immunity to tribes and tribal businesses. A federal court has ruled that the NLRA is an exception. A tribal casino can be sued for violating the NLRA by interfering with a union’s effort to organize the workers. The court found that the casino could not fit within the NLRA’s exclusion for state or political subdivisions since a casino is not a traditional attribute of a government. It ruled that the NLRA coverage did not unduly impair the Tribal Sovereignty. San Manuel Indian Bingo Casino v. NLRB (D.C. Cir., 2007).

Family & Medical Leave Act

Employer Cannot Force Use of Discretionary Leave for FMLA. An employer may force the use of accrued sick leave, vacation or some other paid time off while an employee is on federal FMLA. [Some state laws, such as Wisconsin, allow the employee to elect not to use paid leave during the state-protected term and take unpaid FMLA, saving vacation for later use.] However, when a contract or other cause gives the employee the discretion as to when to use the vacation time, the employer cannot force use of that leave during FMLA. Brotherhood of Maintenance of Way Employees VCSX Transportation, Inc. (7th Cir., 2007). (This decision is similar to cases which hold that earned comp time—allowable for public sector employees—is to be used at the discretion of the employee, and cannot be a forced use during FMLA). In a similar case, the court ruled that if an employee is receiving short-term disability benefits during FMLA, the company cannot also force the burning of vacation and sick leave pay during that same time. Repa v. Roadway Express (7th Cir., 2007).

“In Loco Parentis” Required for the Care of New Child. An employee was granted, and took, FMLA to care for his new grandchild because the mother had been called to active military duty. However, the mother’s activation was delayed and she continued to parent the child. The employer then invalidated the FMLA, holding it to be unexcused leave. The employee sued. The court dismissed the case holding that in order to qualify for FMLA, the grandparent must be “in place of” the actual parent. As long as the actual parent continued to be present and able to provide care, no one else could qualify for new child FMLA leave. Martin v. Brevard Co. Public Schools (M.D. Fla., 2007).

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