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.

ADMINISTRATION ACTION 

New Executive Orders #13494 and #13495 reverse #13202.  The Bush administration’s Executive Order #13202 modified labor rights posters by requiring government contractors to post notices informing workers that they had rights not to join a union or pay certain union dues.  The new administration has issued #13494 requiring contractors to post notices informing workers of their rights under the NLRA, including the right to organize, as well as not to.  It prohibits contractors from using federal contract monies to discourage employees from joining unions, whereas the prior Executive Order allowed use of taxpayer funds for this purpose.  

Executive Order #13495 is the “non-displacement” order.  When one federal contractor is replaced by another, the new contractors must offer jobs to the old contractor’s workers who are qualified. 

TRENDS 

Electronic devices may make it difficult to be “off the clock.”  Technology allows employees to do work from home and allows managers to contact employees at any time.  Some supervisors seem to expect employees to be readily available for questions or to respond 24/7.  Company-provided cell phones, Blackberries, laptops, pagers, etc., make it easy to communicate during “non-work” hours and create an impression that the employee is on-call at any time.  A recently filed Fair Labor Standards case will address this issue.  Rulli v. CB Richard Ellis, Inc., (E.D. Wisconsin, filed March 15, 2009).  Maintenance workers who were issued phones or pagers were expected to have them on at all times—day and night.  Any call was expected to be returned within 15 minutes, usually to answer questions or provide advice.  At times, the workers were expected to go and do work.  The suit raises the issue of how much time every 24 hours the workers should actually receive pay for this constant on-call duty.  It asks for hourly pay and overtime pay for all the company’s maintenance workers, nationwide, for this off-hour/on-call work. 

This case is a good warning that supervisors should be cautioned, and periodically reminded, that the convenience of contacting employees at any hour can have FLSA consequences.  Employers should also review their policies and procedures for on-call responsibilities to assure they are clear, in compliance with the FLSA. and that worked time is properly recorded.  Lack of care in this area can cost a lot in wage and hour liability. 

LITIGATION 

Employer Rights Versus Individual Rights 

Employer may not prohibit guns in parking lot.  The Oklahoma right to store legally owned firearms law outweighs employers’ anti-violence policies and concern for safety in the workplace.  A federal court found no conflict between the state law and OSHA’s safe place requirements.  Employees may keep weapons in locked vehicles on company property.  Ramsey Winch, Inc. v. Henry (10th Cir., 2009).  Alaska, Florida, Georgia, Kansas, Kentucky, Louisiana and Minnesota also have similar laws. 

Constitutional Expression 

Rat balloon makes appearance in New Jersey and can stay!  A 10-foot tall rat-shaped balloon has been traveling the nation, appearing at strike sites and other labor protests.  Unions inflate the rat in front of businesses with which they have labor issues to attract attention and to make a point about the employer.  Employers and local governments have attacked the rat, using local zoning or signage ordinances.  The sign ordinance of Lawrence Township, New Jersey prohibited a union from displaying the rat on a public sidewalk across from a Gold’s Gym which was using non-union electricians in its construction.  The court overruled the Township.  The rat was obviously First Amendment expression.  The Township could show no compelling interest to forbid it.  The sign ordinance allowed businesses to have temporary banners and large balloons for grand openings and other short-term events which were not apparently much different than a short-term labor dispute.  New Jersey v. DeAngelo (N.J. S. Court, 2009) 

DISCRIMINATION 

Age 

Layoff infected by an ageist attitude—managers can be personally liable.  A laid off 62-year-old employee sued the company and its executives under the U.S. Age Discrimination in Employment Act (corporate liability) and New York State and New York City civil rights laws which impose personal liability.  In denying summary judgment, the court found that the employee was laid off and replaced with an employee 40 years younger.  The 62-year-old offered to work for less money, even less than the replacement was paid, but his offer was rejected.  There was evidence that company executives had made comments that he was “too old” for the job and had made ongoing jokes related to the employee’s age.  Carras v. MGS (2nd Cir., 2009). 

Comment was not specific.  A 66-year-old purchasing agent was laid off.  His job was soon taken over by a 26-year-old.  He claimed that management had made prior statements about needing a “change agent” and that this was an indication they really wanted a younger person.  The court disagreed.  The words “change agent” have no age-related connotation.  It takes either more concrete evidence or a speculative stretch of imagination to give them an age-related meaning.  Further, the company laid off most employees (it went from 69 to 25 employees in five years), so the purchasing agent was not singled out.  The 26-year-old was not his “replacement.”  The duties were assigned to the younger employee along with other duties—the same as a number of other jobs were consolidated.  The younger employee had college degrees and advanced training in the areas in which the company needed to make changes in order to survive.  Abnet v. Unifab Corp. (6th Cir., 2009) 

Disability 

Accommodations must be in working order.  A school employee’s throat cancer treatments left her with speaking difficulties.  She requested, and was given, a microphone and speaker to enable her to effectively conduct classes.  However, the equipment stopped working within a month.  Despite her repeated requests to the administration, no effort was made to fix the equipment.  Eventually, the strain on her voice was too great and she had to quit the job.  She then filed an ADA suit and won $244,000.  Accommodations must be maintained in order to meet the requirements of the law.  Olian v. Chicago Board of Education (N.D. Illinois, 2009) 

Failure to interact regarding ADA accommodation request can also be a “failure to negotiate in good faith” claim under state law.  The ADA requires an interactive process for discussion of all workplace situations involving disability and reasonable accommodation.  An employer’s refusal to engage in the interactive process violates the ADA.  Some states also have laws requiring “good faith negotiation” over disability or other EEO-related issues.  In Timmons v. UPS (9th Cir., 2009), the court found the refusal to even discuss a driver’s request for a different vehicle with power steering and brakes was a violation of both federal and state laws.  UPS made an erroneous conclusion that the driver was not “disabled” under the ADA and, therefore, declined to have further discussions. 

Layoff was pretext for disability discrimination.  An employee’s cancer and many months of treatment qualified as a disability.  During periods of treatment, she suffered short-term memory loss.  However, she compensated by copious note taking, and she maintained an excellent performance rating the entire time.  She was laid off, then filed and won an ADA case verdict for $200,000.  The evidence included the fact that when “rating” people for layoff, the supervisor changed her retention score from “high” to “low” based on the disability-caused memory problems, in spite of the consistent excellent performance.  Eshelman v. Agere Systems, Inc. (3rd Cir., 2009) 

FAMILY AND MEDICAL LEAVE ACT 

Performance improvement plan was a set-up.  A sales manager with a long exemplary record took FMLA leave for alcohol-related health issues.  Only two weeks after his return, he was placed on a performance improvement plan and eventually discharged.  The court found the timing, in such close proximity to the leave, was suspicious and supported a claim of illegal retaliation.  Further, the sales figures for which he was criticized were not worse than other sales managers who were not subject to focus.  The sales figures used by management were also inaccurately low.  A number of managers had similar practices, but only he was singled out for criticism, and finally the court found that the performance improvement standards were onerous and apparently designed to ensure his failure.  Burris v. Novartis Animal Health U.S. (10th Cir., 2009)

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