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February 2008 Legal & Legislative Update |
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LEGISLATION and ADMINISTRATION ACTION President signs military FMLA law. The 26-week leave for service members or family listed in the January Update has now been signed by President Bush. More information on this new law is available at http://www.dol.gov/esa/whd/fmla/NDAA_fmla.html Congress raises mandatory retirement age for pilots. The age discrimination laws prohibit pushing people out of the workplace simply because of a specific age. There is no mandatory age except in a few congressionally-created “safety” categories (airline pilots, police, firefighters). Now Congress has approved a raise in the mandatory retirement age of airline pilots from 60 to 65. This is in accord with international standards; foreign-owned carriers flying in the U.S. have been operating under the older age standard for years. Wisconsin Senate passes punitive damages bill for discrimination cases. On January 31, 2008, the State Senate passed SB 165, allowing unspecified punitive damages in discrimination cases, plus a 10% surcharge to the state treasury. Wisconsin law currently allows only economic damages, attorney fees and injunctive relief, so this would be a huge change. It would probably destroy one important purpose of the court administrative process—to enable common people and small businesses to resolve or contest discrimination issues without the complexity and expense of full-blown, attorney-involved litigation. (The federal courts and Title VII, etc., are available for that.) The bill also creates a committee to study pay disparity in the state. The bill will now go to the State Assembly for debate and vote. Anyone in Wisconsin interested in this bill should contact their elected Assembly representative. OFCCP sets enforcement record. The Office of Federal Contract Compliance enforces regulations regarding government contractors. It can levy penalties and collect damages for employees who were harmed by a contractor’s non-compliance. Last year, the OFCCP conducted 4,923 audits (a 24% increase) and collected almost $16 million for non-compliance. More full time workers. The Department of Labor Bureau of Labor Statistics’ year-end report shows more full-time workers in the U.S. than a year ago. The gain was in large part due to part-time jobs becoming full time. Demographically, African American women and Hispanic men had the biggest increase in full-time employment. LITIGATION Case of the Month: Triple Threat There is a maxim that “the law is a seamless web.” There are few clear issues; one situation can easily flow over into several other legal areas where they become “sticky.” Recently, one case brought together issues under the National Labor Relations Act (NLRA), the Immigration Reform and Control Act (IRCA), Title VII, and 42 U.S. Code §1981 national origin discrimination laws. Undocumented aliens are “employees” entitled to vote in union representation elections. A company lost a union-organizing drive election. It then argued that it had “discovered” a number of illegal aliens in its workforce. If their votes were removed, the company would have defeated the union. It asked the National Labor Relations Board to void the election and ban illegal workers from voting. The company argued that the Immigration Reform and Control Act requires this conclusion. The NLRB rejected the argument, finding nothing in the IRCA that alters the labor law. In fact, the ICRA’s legislative history and Congressional Record shows an intent for the ICRA not to be used to affect labor and several other laws. On appeal, the court agreed with the NLRB. Agri-Processors Co. v. NLRB (D.C. Cir., 2007). There are deeper issues underlying this decision. Whatever one may think of illegal immigration, the courts have to be careful in preventing parties from using the law opportunistically to reward bad behavior, and to prevent manifest unfairness. It is unlikely that an employer suddenly just discovers that it has large numbers of illegal workers at the very time of a union-organizing drive. Such a company either “looked the other way” or intentionally hired and reaped the advantage of these workers, and should not now, suddenly, be able to reverse the course and get the advantage of disregarding all of them. This would be a “reward” for the company’s illegal or grossly negligent behavior. Any other ruling by the NLRB would also encourage employers during union organizing drives to initiate investigations focused on those who might be illegal aliens. The focus would invariably be upon those with ethnic names and accents known to be from recent immigrant groups (India, Pakistan, China, Russia, Albania, Somalia, Cambodia and Latin America). Many of these workers are legal, but they would be lumped into the “close scrutiny” category for a witch hunt. All relevant laws (NLRA, IRCA, Title VII and 42 U.S. Code §1981) prohibit discrimination. Any other ruling than the one above would encourage and open the flood gates for that discrimination. LABOR RELATIONS No Mandatory Flu Shots. The NLRB requires an employer to bargain with the union over terms and conditions of employment. Mandatorily sticking needles into people at work would seem to be a “condition of employment,” yet a hospital simply imposed a mandatory flu shot requirement for all employees. The nurses union contested and won an unfair labor practice case. The employer had a duty to consult with the union before implementing the practice. (The nurses were not against the flu shots; they just did not want to get “stuck” with a violation of their right to be consulted before new policies were adopted.) Virginia Mason Hospital v. Washington State Nurses Assoc. (9th Cir., 2007). DISCRIMINATION National Origin Cultural authenticity is valid requirement for Norwegian pavilion at Disney World. A waiter of Asian origin sued under Title VII after being denied a waiter position at the Epcot Center Norwegian pavilion restaurant. The court granted summary judgment against him after Disney showed that it required cultural authenticity for ethnic pavilion staff, but not necessarily a person of a particular race or ethnic group. The workers must be able to speak the language and have firsthand, in-depth conversational knowledge of the country and its culture, but Disney showed that over time there were people of various backgrounds (African American, Middle Eastern, Asian) who possessed these skills and were hired to work in the pavilions. The plaintiff in this case had once visited Norway for two days but did not speak the language and was not versed in the culture. Gupta v. Walt Disney World Co. (11th Cir., 2007). Age/Retaliation Boss-bashing beer rep gets canned. There are a variety of employee complaint activities protected by the law. General gripes and generic “badmouthing” of the company to the customers is not among them. A beer salesman loudly complained to the customers about how management was unfair to him. Some customers complained about him to the management. When fired, the salesman sued for retaliation under the Age Discrimination Act. He claimed that a feeling of age discrimination had motivated his gripes. However, he did not voice any coherent age discrimination concern to the customers; he just did a lot of generic griping about “unfairness” and that he worked for a bad company. Employees have a certain duty of loyalty not to “badmouth” the company to the customers during the performance of their duties. Since no “protected” complaints were involved, the company could fire the salesman. Fox v. Eagle Distributing Co. (6th Cir., 2007). [Be aware that there are a lot of protected areas. Complaints about those topics would give an employee legal rights. To learn what those areas are, request the article “Retaliation” from Bob Gregg at rgregg@boardmanlawfirm.com.] Age/Sex Unisex names and lack of awareness wins case. In the hiring process, often “ignorance is bliss!” The Court of Appeals upheld the State Equal Rights Division’s dismissal of an age and gender discrimination case. The evidence showed that the screening committee members who chose which applicants moved on to the interview process had no knowledge of the plaintiff’s age, or other candidates’ ages. Names on the applications were also not usable as evidence of sex discrimination, since candidates whose first names could be used for either gender were selected for interviews. Rosneck v. University of Wisconsin-Madison and Labor Industry Rev. Comm. (Wis. Ct. App. Dist. IV, 2008). Sex Drunken police dispatcher entitled to sue department. A female police dispatcher was fired after an evening of off-duty drinking in which she passed out in a church parking lot and was found by a parishioner. The court allowed her sex discrimination suit to proceed to trial based on evidence that male officers who got drunk that same evening were only given reprimands, as well as evidence of male officers who got drunk and caused accidents and property damage but were not fired. One intoxicated male officer even abandoned his car full of weapons after crashing into a tree, but received no discipline at all. Johnson v. Olmsted Township (Ohio Ct. App., 2007). Sex/Personal Liability Employer dismissed from harassment case, but supervisor remains as personally-named defendant. Public sector employers are subject to both Title VII discrimination cases and 42 U.S. Code §1983 “Equal Protection” (discrimination) cases, and a sexual harassment suit can be filed under both. Title VII is filed against the employer organization, but §1983 is filed against named individuals in their official and personal capacity. In Lauderdale v. Texas Dept. of Criminal Justice (5th Cir., 2007), a warden allegedly became romantically fixated on a new employee and was calling her multiple times per shift, asking her to visit his office, asking her to go out with him, to “snuggle,” and proposing romantic trips to Las Vegas. She repeatedly rejected the advances. The employee complained to her immediate supervisor, who took no action, but she failed to use the other “multiple means” for raising a complaint under the department’s harassment policy. The court dismissed all claims against the department under the Faragher/Ellerth doctrine for failure to use the available process. However, the suit against the warden, as an individual, was allowed to continue. Under §1983, there is a Constitutional right for a public employee to be free of sex discrimination and a sexually hostile work environment, and “any person” in authority who violates this right can be sued. The court stated that any reasonable person in a position of public authority should know this clearly established principle and should know that his pervasive advances violated the 14th Amendment’s Equal Protection. Disability “I’m out of here!” and key toss overcome disability case. The ADA is not the only venue for disability cases. Union contracts often require all employment issues to go to arbitration. In In re Ohio Lottery Commission, 2007, the arbitrator ruled against the employee. During a meeting in which her performance was criticized and there was a potential for discipline, the employee suddenly threw her keys to the office on the supervisor’s desk, said, “I’m out of here!” and walked off the job. Management promptly sent a letter accepting her resignation. The union filed a grievance, claiming the employee had an anxiety disorder, was experiencing a “panic attack” and thus, her key toss and statement were due to the disability, and there was no resignation. The arbitrator ruled that the employer had a valid right to view the behavior as a resignation, and there was no evidence to show the employer should have known the incident was disability-related. [Be careful. This illustrates how an arbitrator ruled. The EEOC or a court might see things differently. It all depends on the circumstances and facts of the specific case.] Disability of alcoholism does not protect drinking on the job. Alcohol dependence is a disability under the ADA. While the law prohibits discrimination against people on their status as alcohol-dependent, it does not protect alcohol-related misconduct at work. In this case, the court upheld the discharge of an employee who had returned to work after a reasonable accommodation leave for alcohol treatment. He was found to be drunk on the job (three times the legal limit for intoxication) in violation of the company’s policies. Daft v. Sierra Pacific Power Co. (9th Cir., 2007). Religion Employee has duty to use accommodation that fits employer’s needs. An employer is required to reasonably accommodate religious beliefs but can choose the accommodation it wishes from among several available options. The employee has no right to choose from among workable accommodations. Further, the employee has a duty to make a good faith attempt to use an accommodation that is most compatible with the employer’s operation. In Bush v. Regis Corp. (11th Cir., 2007), the company altered Sunday morning work so the employee could attend religious services and gave schedule changes so she could attend religious conventions. The employee’s demand for no Sunday work so she could perform religious “field service” work with her family was denied, and she sued. The court found that “field service” was a religious practice, but was not required on any particular day of the week. It was the employee’s preference to use Sunday afternoon for the field service. There was no obligation to further alter the schedule. The Sunday morning accommodation was sufficient. Legal Fees $1.1 million in attorney fees awarded for $30,000 damages case. A White employee won a race discrimination case about non-promotion and was awarded $30,000 in back pay. On top of that, his attorneys were awarded $1.1 million in legal fees. The court found the fees valid. The case had been up and down the appeals system, had been vigorously defended, and the fees had been very clearly examined by the trial judge before the award. Harman v. City of San Francisco (Cal. Ct. App., 2007). [Several prior Legal Updates have reported cases in which the legal fees dwarf the actual damages. This often occurs when the case turns into a “grudge match” in which the original issue gets lost in the antagonism or “win at all odds” mentality of the parties.] Court denies $1 million legal fee request due to attorney’s ethics violation. A law firm representing plaintiffs in a class action race discrimination suit was dismissed from the case due to an “egregious ethical lapse” during the discovery process. The law firm had put in $1 million of legal time and expenses before being dismissed. Another firm proceeded with the case and was successful. The ex-firm applied for fees for its part of the case but was denied as a penalty for “damaging the integrity of the legal system and legal profession.” It got nothing for its efforts. Arnold v. Cargill, Inc. (D. Minn., 2007). FAMILY AND MEDICAL LEAVE ACT Gossiping nurse’s privacy violations justify discharge (and a word to the wise about email). A nurse was fired after requesting FMLA leave, and filed suit. The hospital won. It refuted the claim of FMLA retaliation by showing she violated record confidentiality policies. She had accessed co-workers computers, printed their emails which indicated an affair between a supervisor and employee, and showed those messages to other workers to create office gossip. She had also accessed co-workers’ medical records for her personal curiosity and use. The court found the hospital had valid reason to discharge the nurse for unprofessional behavior and record policy violations. Woodson v. Scott & White Memorial Hospital (5th Cir., 2007). Though the nurse got fired, this case should be a reminder to all that the workplace electronic system is not private. Do not put things in emails you do not want others to see and talk about! Not only should one realize that employers monitor system usage, but no matter how tough the privacy policy may be, there will always be occasional people who will violate and spread the indiscretions of others to the world. So, though the nurse may have been fired for her violations, people who put their personal indiscretions or improprieties into the system are also at fault. [For additional information on this issue, request Boardman articles Office Gossip, Rediscovering the Lost Art of Verbal Communication or Use and Abuse of Computers in the Workplace by emailing Bob Gregg at rgregg@boardmanlawfirm.com.] Notice must give fair warning that leave will count as FMLA. An employee was granted a leave request for surgery. The notice granting the leave did not specify that it would count as use of FMLA and that she had only 52 hours left of FMLA entitlement. The employee then took longer than 52 hours and was denied return to her job. In the ensuing suit, the court ruled that the employer had violated the FMLA’s prompt notice requirement. It is the employer’s responsibility to designate leave as FMLA or not, and to give clear information about how much FMLA is available. Downey v. Strain (8th Cir., 2007). Incomplete is not “close enough” for FMLA verification. In Tome v. Harley Davison Motor Co. (M.D. Pa., 2007), the court found the employer had valid reason to deny FMLA leave when the employee’s doctor failed to fully complete the leave request verification form. There was no information regarding duration of the leave or any prognosis of frequency of intermittent leave. The FMLA gives 15 days for an employee to provide requested medical information. When the company informed the employee and the doctor of the need for a completed form, it took over a month before the complete information was supplied. The court found that the company had no obligation to grant leave as “provisional” leave after 15 days based on partial information. |
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