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

Guns in the Workplace. The National Rifle Association and Republican legislators are pushing gun rights bills which would require employers to allow employees to have firearms on company property. The bills have been introduced in Georgia, Florida and Texas.

Department of Labor Will Devote Special Emphasis to Combat Slavery. Slavery did not end in the U.S. with the 13th Amendment, it simply shifted. It continues to exist in various forms. Past issues of this Update have noted enslavement of legal immigrants, sweat shops, and forced agricultural labor, among others. Human trafficking crosses all racial, ethnic and gender lines, and these types of slavery are on the rise in the U.S. The DOL has announced a partnership with several other agencies to train agents to be more aware and to locate and investigate these situations.

Trends
International Business

Wal-Mart Has a Union! The company that has a reputation for adamantly fighting to remain union-free now has a union–in China. Wal-Mart’s Shanghai operation is now unionized. This does not portend any change in the U.S. Further, China’s labor laws are quite different, and unions do not have the same rights as in the U.S.

U.S. Fast Food Companies Accused of Underpaying Chinese Workers. China’s minimum wage law requires the equivalent of $1 per hour. Recent surveys report that McDonalds, Burger King, and KFC pay part-time workers 52 cents to 65 cents per hour. Several workers have filed complaints, seeking the full minimum wage. The Chinese labor department has started investigating the matter, but China’s laws are a bit vague regarding part-time employment.

PUBLIC EMPLOYMENT - CONSTITUTIONAL RIGHTS

Just Cause Hearing Required for Municipal Probationary Employee's Reputation Interest. “Probation” is supposed to give an employer the right to terminate at will, with no reason, and no sort of procedure. However, that principle may have now changed for public sector employees. A probationary police officer was fired for “falsifying records.” He allegedly advanced the odometer in his squad car by 10,000 miles, so he could get a new vehicle sooner. He denied the charges and demanded a “Name Clearing Hearing” under the 14th Amendment Due Process Clause, to force the employer to show just cause, and be able to refute the charges. When denied a hearing, he sued. The Court ordered the hearing. It decided that there is a “likelihood” that a public records request, possibly by a future potential employer, would make the allegations public and unfairly “stigmatize” the officer if he were innocent. So, he (and presumably every other probationary public employee charged with prohibited behavior) is entitled to a Due Process Hearing at the time of discharge. Sciolino v. Newport News, VA (4th Cir., 2007).

DISCRIMINATION

Sex

Questions About Children and Husband Warrant Trial. A candidate for promotion was asked pointed questions about how her children would be affected if she took the job and had to work in a different city much of the time, and on how her husband would feel about the job’s travel requirements. When the promotion then went to a man, the hiring manager allegedly stated that the man had grown children, so he could move to the other city without disruption of his family. The Court found ample evidence of sex discrimination to deny the company’s motion for Summary Judgment and order a trial. Letteri v. Equant, Inc. (4th Cir., 2007).

Settlements/Releases

Pre-existing Discrimination Case Dismissed Because Employee Signed a General Release as Part of a Layoff Severance Package. A department was eliminated and all employees were offered a reduction-in-force severance package. The severance agreement contained a general release of all existing liabilities and contained all the proper release provisions. One laid-off employee had a preexisting EEO case in progress. He took the severance package. The company then used this to request dismissal of a Title VII case the employee had pending and had previously refused to settle for a far greater amount than the severance package. The employee argued that the Severance Release should not apply to his preexisting and already-filed case because he did not receive any extra compensation over and above the standard layoff severance; he thought he was only releasing the company from liability associated with the layoff, not for the previously brought suit. The Court disagreed. The Severance Release language was clear; “All claims up to and including the date of layoff.” Further, the employee had an attorney review the Release before signing it. Myricks v. Fed. Reserve Bank of Atlanta (11th Cir., 2007).

Disability

Court Rules that Driver with Fainting Condition Could Be Terminated. A truck driver, who previously won the company’s “Million Miles Without An Accident” award, experienced a subsequent fainting incident. He was diagnosed with neurocardiogenic syncope, a condition that rendered him prone to sudden, unpredictable fainting. He was terminated for inability to drive safely. The EEOC took on the case, claiming that the company fired the driver due to disability or perceived disability. The Court ruled that the company (and public) should not have to risk the possibility that the driver would faint while driving. There was no violation of the ADA. EEOC v. Schneider International, Inc. (7th Cir., 2007).

False Statements, not Disability, were Valid Reasons for Discharge. A forklift driver gave false statements about a work accident and was fired. He sued, claiming the real reason for discharge was his disability. The Court found that untruthfulness was a valid, nondiscriminatory reason for discharge. Watson v. Kraft Foods (SD Ohio, 2007).

No Chair Results In Case. A car rental center worker with a degenerative back condition requested a chair to sit in when she was not actively serving customers. The manager believed that chairs enabled employees to be lazy and lounge around instead of working, so had removed all chairs. The employee requested that one be returned for her, but the request was denied. As a result of constant standing, her back condition worsened and the employee was forced to take an indefinite disability leave. The Court found sufficient grounds for lack of accommodation to warrant a trial. Westbrook v. DTG Operations, (D Nev. 2007).

WARN ACT

Delay of Sale Creates Liability. The WARN Act requires 60-day notice of plant closings. Failure to give proper notice results in up to 60 days pay to the employees who were terminated or laid off. One exception is in a sale/rehire situation. If the purchasing company immediately continues the employment of most workers, and fewer than 50 are actually terminated, there is no WARN Act notice or payments due. However, in Pharon v. Meridian Rail Corp., (7th Cir., 2007) there was a glitch. The sale was supposed to occur December 31st. All employees were notified that day of their immediate termination. Most of them had already been offered jobs by the purchaser, and were to continue their employment the very next business day–so no WARN Act issue requirement. However, there was a problem in the sale and it was delayed for two weeks. The effect was termination of all employees and no immediate continuation of employment. So the exception did not apply; the gap created a liability for the seller to pay all the terminated employees up to 60 days' pay.

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