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 moves to address Ledbetter decision. The U.S. Supreme Court’s Ledbetter decision put a short time limit on how far back one can track discriminatory treatment, especially in an unequal pay case. (See June 2007 Legal and Legislative Update.) Now the House has passed the Lilly Ledbetter Fair Pay Act to amend Title VII and specify that discrimination in pay is a “continuing violation” and one can be awarded damages back to the first instance of inequality (years and years) rather than just to the current statute of limitations (300 days). The bill has a long way to go before becoming law. As with many “quick fix” bills, it may also prove to be a poorly thought out, knee-jerk political reaction instead of a serious effort to study and address the ongoing issue of pay discrimination. Will it “solve” a problem or simply confuse and complicate the law? Will it jeopardize a fundamental Title VII purpose: the prompt raising and resolution of disputes?

Bipartisan bill on bi-gay-lesbian discrimination. This Employment Non-Discrimination Act would add sexual orientation and sexual identity as protected classes under federal discrimination law. The bill has bipartisan support, as well as strong support from major businesses. The bill would exempt the military and also would not require domestic partner employee benefits.

Hearings on independent contractor status. The Congressional Ways and Means Committee recently held hearings on the issue of employer use of independent contractors. Often these workers do not meet the legal independent contractor definition, and should be classed as employees for wage and tax purposes. There was much testimony on “abuse” of independent contractor status. Therefore, watch for the Department of Labor to start more audits of independent contractor use and begin tax and wage enforcement actions. If you use independent contractors, this may be the time to be sure they meet the various legal qualifications to be legitimate.

DOL summarizes, but does not act on, FMLA comments. In 2006, the Department of Labor requested comments in anticipation of much-needed revisions to the FMLA regulations. It has now put out a summary of the 15,000 comments it received. However, there is no indication that it is planning to actually move ahead and do anything with the comments. With only 15 months until the next election, it may be too late to expect the current administration to proceed with the process.

EEOC issues new caregiver guidelines. Taking care of a family member is not a “protected category” under Title VII (though being “associated with a disabled person” is protected under the ADA). However, the EEOC believes that caregiving may have adverse effects on certain classes of people and can be a form of discrimination. So, it has issued guidance on how to avoid discrimination against protected classes due to caregiving issues. Some of the advice warns (1) against gender stereotyping that women do the child care and will have more absences; (2) that men have rights to give care and may not be denied paternity leave if women get maternity leave; and (3) there may be racial or ethnic disparities in granting time off or flexible schedules for caregivers. See eeoc.gov/policy/docs/caregiving.html.

TRENDS

Biometrics

Employment technology is moving past GPS and microchips embedded under employees’ skin for identity and tracking. Biometric scanning is on the rise. Employers are using iris scans, fingerprints, hand prints, vein patterns, voice recognition and walking gait as identification and access factors. Why? Biometrics are unique to the individual. Unlike an ID card or a security PIN, they cannot be stolen, loaned or used by others. In a biometric system, one employee cannot “buddy punch” the time clock for others, cheating the employer. An imposter cannot breach security with stolen ID. It is also tough to claim, “I couldn’t get into the building on time because I forgot my ID.” The U.S. government is using the Homeland Security Act and President Bush’s Directive HSPD-12 to push biometric identifications for 17 million federal employees. A growing number of public and private sector employers are adopting hand scans (vein patterns and/or fingerprints) for time clocks and building access.

Concerns

Theft. Critics have raised concern about identity theft. How securely does the employer keep its biometric records? However, as of now, no one has postulated what a hacker could do with the stolen electric record of fingerprints or iris patterns of an organization’s employees. As technology advances and biometrics are more common, this may change.

Medical. There is medical information that might be gleaned from veins, irises and gait. An employer or employer’s insurance company could use this for disability discrimination. So, biometrics may raise the same concerns and laws as genetic testing is doing now.

Yuck! Hand scans require everyone to press the same entry pad or time clock. There are health concerns. The open sores on the hand of the person(s) in front of you are not appealing. In one city department, everyone, including the trash collectors and sewer workers, used the same hand pad to clock out. The trash and sewer workers sometimes wash their hands, and other times are in a hurry to leave. Hopefully they are not clocking out as the food service workers are clocking in!

Collective bargaining. An employer may have a duty to bargain with a union before implementing biometric ID. So far, the National Labor Relations Board and various state Employment Relations Commissions have made conflicting and confusing rulings on this issue.

LITIGATION

Drug Testing

Air industry subcontractors must test employees. A federal court upheld the Omnibus Transportation Employee Testing Act, which requires drug testing of all air carrier employees or contract employees performing safety sensitive tasks. The court upheld the application of the requirement for employees of subcontractors at any level whose work impacts air carrier operations. This greatly expands the number of companies and employees covered. Aeronautical Repair Station Association v. FAA (D.C. Cir., 2007).

Privacy

Transportation Security Administration loses personal data on 100,000 employees. A not-so-secure TSA lost, or perhaps had stolen in a security breach, all of the personally identifiable SSNs, birthdates, addresses, pay and tax information, and other personal records of 100,000 employees. The AFGE Union has filed suit on behalf of those affected, alleging the Department’s failure to establish effective safeguards for security and confidentiality. AFGE, et al. v. Kip Hauley & TSA (D.C., DC., 2007).

Discrimination

Disability

U.S. Postal Service pays $61 million in largest ever disability settlement. The EEOC has procured the largest disability settlement on record from the U.S. Postal Service in Glover/Albrecht v. Potter (EEOC, 2007). The class action case alleged that after workplace injuries, several thousand employees had been slotted into permanent “disability” or “rehab” positions. Even after healing, they remained in these “dead end” jobs in which they were denied opportunity for promotions or other opportunities. USPS also agreed to policy changes regarding post-injury treatment of employees.

Sudden focus on performance results in $750,000 verdict. An electrician was fired for “negativity, poor communication skills and contentiousness” only five weeks after he informed the supervisor of his fibromyalgia condition. The evidence was that the electrician did have negativity, etc., and was a difficult, even disruptive, person to work with. However, the court found that for over 18 years of employment the company had taken little or no action on the numerous complaints about his “attitude”―year after year. Then after learning of the disability, management suddenly seemed to have a great concern. The timing seemed suspicious, and the company’s reasons for the discharge were found to be pretextual―a cover-up for disability discrimination. Harding v. Cianhro Corp. (D. Me., 2007).

A similar result was reached in Hicks v. Tech Industries (W.D. Pa., 2007). An employee had 20 years of poor attendance for non-medical reasons. The employee was then suddenly fired for “excessive absence” when he had medical absences after a cancer diagnosis. The message is that long-term tolerance of poor performance may trap an employer and hamper corrective action in the future if the employee develops a disability.

Effective medication makes condition a non-disability. Not every long-term medical condition is a disability. In Fine v. Fred Meyer Stores, Inc. (D. Or., 2007), the court ruled that a plaintiff’s asthma, leg and shoulder conditions were all controlled by effective and available medications; therefore, he had no actual impairment in any major life activities. Medication also negated the need for any work accommodations. The court held that the ADA definition of “disability” should be made on reality instead of “hypothetical effects” based on “what if” the person did not have mitigating medication.

Race

$500,000 settlement for race discrimination. Michigan Seamless, Inc. purchased the assets of another company. It then hired on many of the employees of the prior company to continue to do the same work. However, none of the prior company’s African American workers were hired. Over a three-year period, Michigan Seamless hired more of the previous company’s workers, but no African Americans, in spite of the fact that many of the African American candidates had more experience, greater skills, and had previously trained many of the White workers who were hired. The company agreed to the $500,000 settlement, hiring of African American applicants, and anti-discrimination training for managers. EEOC v. Michigan Seamless, Inc. (E.D. Mich., 2007).

Sex

Office rumors generate harassment case. The president of a realty/resort company made advances toward a female employee. She asked him to stop. Then he started a rumor that she and he were a couple, and he seemed to “revel” in the discomfort she experienced due to the gossip. He fostered the rumor by sending her flowers and gifts and hugging her at work. She repeatedly asked him to stop, to no avail. The court found sufficient grounds for a sexual harassment case. Meyers v. Centra Florida Investments, Inc. (11th Cir., 2007).

Religion

Religious favoritism warrants discrimination trial. In Noyes v. Kelly Services (9th Cir., 2007), the court reversed summary judgment and ordered a Title VII trial on charges that management had favored members of a particular church in hiring, pay and promotion. Noyes, who was not a member of the manager’s church, appeared clearly more qualified than the employee-church member who was promoted. The court also considered statistical evidence showing that the office’s hiring, pay and promotions tended to disproportionately favor members of the manager’s church.

Police uniform is exception to religious accommodation in dress codes—no headscarf. The discrimination laws require reasonable accommodation of employees’ religious practices, including allowing the wearing of religious garb or jewelry. Employers may have to modify dress codes. One exception is safety. Another is police uniforms. Webb v. City of Philadelphia (E.D. Pa., 2007) involved a Muslim police officer who was told she could not wear her religiously-prescribed headscarf. She took a stand on the issue, disobeyed the directive, and was suspended by the Police Commissioner (who was also Muslim). The court dismissed her discrimination case ruling that there is a constitutionally-compelling intent for banning any religious symbolism on public police uniforms. Police must exhibit absolute religious neutrality when serving a greatly diverse population. This case is in accord with many previous decisions banning other symbols of other religions from police uniforms.

[The rule may be different for officers in street clothes and garb or jewelry worn under a uniform. For more information, request the article Laws on Appearance or the program Spandex is a Privilege, Not a Right (Casual Days, Dress Codes and Work Appearance) from Bob Gregg at rgregg@boardmanlawfirm.]
 

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