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

OFCCP planning more enforcement actions. The Office of Federal Contract Compliance Programs has targeted 4,500 federal contractors for compliance audits in the next few months. This is more than double the number of contractors identified for examination in the last six months of the previous fiscal year.

New minimum wage--get your new posters. The minimum wage increase is finally here. Employers should replace their federal bulletin board posters with the new information.

LITIGATION

Case of the Month: Personal Liability

Business owner evicted from home--has art, furniture and wallet seized to satisfy sexual harassment verdict. A jury awarded $620,764 to a plaintiff in a sexual harassment case. $462,964 of the verdict was against the company owner, personally. The plaintiff then obtained a "writ of execution" to collect by sale of property and filed this with the Roan County Tennessee Sheriff. The Sheriff then showed up without warning at the business owner's home, with several deputies and a moving van. The Sheriff escorted the owner out of the house and proceeded to pack up and remove all of the contents. The Sheriff then changed the locks and forbid the owner from reentering, in preparation for selling the home. The sheriff also demanded the owner's wallet, but because it contained only $3, it was returned. The business owner remained homeless until he was able to post a large bond and get the court to allow him back into his house over a week later. He then lost his subsequent suit against the sheriff for the above actions. Revis v. Meldrum (6th Cir., 2004). This case should be a warning that personal liability is a growing issue in employment law and not to be taken lightly if you are a business owner, corporate officer, board member or key manager. [For more information, request the article, or the seminar, entitled Are You in the Crosshairs? (Your Personal Liability in Employment Cases) by Bob Gregg, at rgregg@boardmanlawfirm.com.]

Benefits/Fiduciary Duty

Wal-Mart sues retired executive to get back retirement benefits. The Arkansas court has agreed to hear a case alleging that a former executive committed fraud―misappropriating several hundred thousand dollars during his employment―and failed in his fiduciary duty to disclose material facts when he negotiated his retirement agreement. If the company is successful, the retirement benefits could be recovered, as well as other damages for wrongful acts. Wal-Mart Stores, Inc. v. Coughlin (Ark., 2007).

Discrimination

National Origin

Treaty does not allow Japanese company to retaliate against U.S. employees. The Friendship Commerce and Navigation Treaty gives "favored nations" doing business in the U.S. the right to hire and supervise their own nationals for management and technical positions without regard to U.S. employment laws (and gives the same right for U.S. companies operating overseas). However, the treaty does not give blanket immunity from U.S. laws. Two whistleblowers based in California were retaliated against after raising serious safety concerns. They sued under the California whistleblower law. The court rejected the company's attempt to use the treaty to void the case, ruling that when a company does hire U.S. employees here, they are still entitled to the full protection of our employment laws. Ventress v. Japan Airlines (9th Cir., 2007).

Union has duty to translate or interpret contract terms to non-English-speaking members. Two Hispanic employees could not bring their Title VII or 42 U.S. Code 1981 national origin discrimination cases against a tribally-owned company, because (1) tribes are immune from Title VII claims, and (2) their collective Bargaining Agreement's arbitration clause precluded a case under Section 1981 (and any other sort of standard legal suit). The employees claimed that the contract was in English, and they did not read English. Therefore, they should not be barred from bringing a 42 U.S. Code 1981 suit due to contract provisions the employer did not provide in an understandable way. This sort of challenge has been successful in previous cases involving the unfairness of applying English-only agreements to non-English literate employees in a variety of non-union settings. However, in this case, the employees were represented. A union is suppose to be the exclusive agent of the workers, and the employer is suppose to contract and deal through the union. The court found that it was the union's duty to interpret the contract for its members; the employer had no obligation at all. If non-English literate union members were not properly aware of contract provisions, they should have sued the union under Title VII, Section 1981, or for not fairly representing them under the National Labor Relations Act. Aleman, et al. v. Chugach Support Services (4th Cir., 2007). [The tribal business's financial manager was allowed to bring a 42 U.S. Code 1981 case over retaliation he suffered after he reported the discrimination against the two Hispanic workers. As a manager, he was not covered by the union contract. Tribes are not immune from Section 1981 cases.]

Religion

Pharmacist cannot refuse to talk to customers who use birth control. Some states have adopted laws which give pharmacists and other health care professionals a right to not participate in medical care that violates their personal religion beliefs, such as filling birth control prescriptions; another staff person can be asked to provide the care. In this case, a pharmacist took things a step further. He had been relieved of any duties regarding the filling or handling of birth control prescriptions but he believed he should have the right to have no interaction whatever with anyone who used birth control because it offended his Catholic beliefs. The court found that this "inflexible" position was beyond the "reasonable" accommodation requirements of Title VII, and the employer was right to deny the request. Noesen v. Medical Staffing Network (7th Cir., 2007).

Sex

Auto dealership engaged in harassment, even though emails were not intended for victim to see. A female employee was the topic of ongoing crude sexual emails and commentary between male managers. She found out and filed a harassment case. The company tried to defend by claiming that the emails and comments were about her but not directed at her, and were never intended for her to see. Thus, there was no intent to create a hostile environment for the female employee. The court rejected this argument. The sexually crude and derogatory emails created a hostile environment toward the employee by others, whether or not she knew exactly why she was being treated negatively. When she eventually discovered the underlying reason (as people often do), she had a valid foundation for the harassment case. EEOC v. PVNF, LLC d/b/a Big Valley Auto (10th Cir., 2007).

Race

Corruption in campus parking system was not enough for Title VII case. A federal court officially recognized that university parking permit systems are often a "corrupt Machiavellion world!" An African American employee alleged that a racist administrator falsely accused him of misuse and alteration of parking passes, and this ultimately contributed to his discharge, and also to his dismissal from a graduate research assistantship. However, the court found that the administrator was not a decision-maker and therefore his action was only "marginal" in the discharge and dismissal decisions. The "marginal involvement" was insufficient for a Title VII claim. Further, the university independently investigated the plaintiff's claims and found nondiscriminatory reasons for the discharge and loss of the assistantship. Breuer v. Board of Trustees, University of Illinois (7th Cir., 2007).

Disability

Failure to discuss and requirement for no restrictions violates ADA. Some employers have still not recognized that the ADA requires one to engage in an interactive process to explore whether a disability can be reasonably accommodated. In this case, the employee's requests to discuss his back condition and duties were repeatedly rebuffed because his supervisor was "too busy." This violated the interactive provision. When the employee took medical leave for the condition, he was told not to return until he had a "no restrictions" certification. This, too, violates the ADA. Any employee should be able to return to work when he can accomplish the essential functions of the job with a reasonable accommodation of any restrictions, rather than a request of no restrictions. Ridgeway v. Metropolitan Museum of Art (S.D. NY, 2007).

On the other hand,

Employee must be clear about need for accommodation. The interactive process is a mutual obligation. An employee who is vague or does not mention disability when requesting time off and is otherwise nonspecific about the reason for wanting a duty modification has not triggered any ADA issues nor employer liability. Friedman v. Metro Property and Casualty Ins. (1st Cir., 2007).

Emotional disability does not justify threats. The ADA does not insulate disabled employees from the consequences of serious rule violations. A teacher's emotional disability following a head injury made her prone to "outbursts." When a group of middle school students became disruptive, she reacted by threatening to kill them. She was fired and then filed an ADA case. The court ruled that no accommodation of such serious behavior was required. An employer can fairly and equally enforce rules of conduct for all employees. Macy v. Hopkins County School Board (6th Cir., 2007). See also Sever v. U.S. Postal Service (3rd Cir., 2007) in which a mentally disabled employee was validly fired after stating that if he was ever terminated, he would "buy a gun and come back."

Driving anxiety is not a disability. A home health care nurse's anxiety disorder was triggered by driving under bridges or on four-lane highways (i.e., beltways). She took a one-year medical leave, during which the employer tried plotting out a work route that would avoid beltways and bridges, but there was no such route that was at all reasonable. The employee was terminated. In the ensuing case, the court ruled that not all disorders are "disabilities" under the ADA. The nurse was fully capable of working in a fixed location, hospital or clinic. She was just limited in the narrow area of visiting nurse work, so there was not the major impact on life activities required by the ADA. Rose v. Visiting Nurse Assn. of Maryland (D. MD, 2007).

Retaliation

Timing wins retaliation case. An African American employee made complaints about racial discrimination after the employer started an investigation into his poor performance. He was then fired for poor performance, and brought a retaliation case. The court dismissed the case, holding that the employer had raised the performance issue before the employee made the discrimination complaints; thus, he could not claim that the continuing investigation and action on his performance were the result of his having made protected complaints. Merely continuing an already-existing investigation is not retaliation. Further, the court found that "complaining of discrimination in response to a charge of workplace misconduct is an abuse of the anti-retaliation remedy." Carrington v. City of Des Moines (8th Cir., 2007).

back to top