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 

Breaks for breastfeeding.  House Bill 2819 would amend the federal FLSA to require reasonable break times for employees to express breast milk for one year after birth.  The bill would cover employers of 50 or more people.  The bill would alter the FLSA to allow shorter than half-hour breaks to be unpaid time.  A tax incentive of up to $10,000 per year would be available to employers to “promote and support” breastfeeding and provide proper, private break areas. 

Department of Labor hiring hundreds of new investigators.  After eight years of public, judicial and Congressional criticism for “hands off” enforcement and blatantly ignoring serious wage and hour violations, the DOL is attempting to correct this problem by hiring a number of investigators and stepping up audits and complaint investigations.  One priority of the DOL is improper use of independent contractors, so expect more inquiries and audits.  Now is the time to make sure your practices are in compliance.  [A more active DOL may actually result in lower costs to businesses.  The DOL gives corrective opportunities and often negotiates lower cost, no penalty resolutions.  The recent “hands off” approach on the other hand left complainants nowhere to go except court, creating an increase in individual suits and class actions, with largely escalated costs and awards.  Overall, this ended up costing employers more, often far more than the DOL process.] 

Theme of the Month 

Does the Current Supreme Court Help or Hurt Employers? 

The term “activist judge” seems to be applied to any judge who makes a decision one does not like, regardless of political leaning.  A judge who slants the law in the direction one wishes is not “activist.”  In recent years, though, the current “conservative” majority of the U.S. Supreme Court has seemed activist.  Its employment case rulings have seemed to stretch and alter the law beyond the original Constitutional or Congressional intent, creating law rather than interpreting it.  Examples are the several ADA decisions such as Toyota Motor Mfg. v. Williams which so radically restricted the definition of disability, that one of the most conservative members of Congress, Jim Sensenbrenner (Republican-Wisconsin), reacted by fathering the movement which resulted in the ADA Amendments Act of 2008 to “correct” the Supreme Court’s rulings.  Gross v. FBL Financial Services eliminated the “mixed motive” cause of action in age discrimination cases.  The recent Ricci, et al. v. DeStefano, et al. significantly altered the long established burden of proof precedents in Title VII disparate impact cases, and Justice Suter’s concurring opinion signaled an overt intent to actually judicially overrule Congress and eliminate disparate impact cases altogether.  That seems to be a radically activist judicial stance. 

Overwhelmingly, these decisions have been in favor of employers and have initially been applauded by employers.  They have eased the burden of proof for employment defense attorneys, such as this writer.  However, this may be a short-lived affect.  “Activist” judicial decisions invite reaction.  Whenever the court swings the pendulum too far, one way or another, Congress reacts.  The current seemingly activist majority swung the pendulum so far that the ADA reaction was lead by a staunchly conservative congressman.  We now have several new laws and a number of proposed laws which appear to be in reaction to the court.  All of these do, or will, increase complaint time limits, burdens of proof and liabilities for employers.  There will be more to defend, more at stake and more cases! 

Moderate courts, with a “centrist” approach, do not usually generate strong Congressional reaction; laws change incrementally, if at all.  Employers and HR professionals can rely on precedent and reasonable stability in employment law.  An activist court, however, will generate confusion and reaction such as we are presently watching.  If the current Supreme Court majority continues its course, will seemingly strongly “favorable” decisions for employers quickly backfire and place employers more and more in an ultimately worse situation? 

LITIGATION 

The Legal Update includes new developments and matters of interest throughout the United States.  Be aware that our various federal circuit courts reach somewhat differing conclusions.  So a federal court decision in another part of the country, and especially a different state’s court decision, may not quite be “the law” in your jurisdiction.  Some courts lead the way; others lag behind.  The Legal Update lets you see the overall trends and compare them with your jurisdiction.  Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana). 

Uniformed Service Employment and Reemployment Rights Act 

USERRA does not include preferential scheduling.  USERRA protects the rights of Guard or Reserve service members to take leave, for a weekend or long-term duty, without harm to their regular employment or benefits.  A police officer was promoted to a position requiring a routine weekend schedule.  Guard duty required occasional weekend service.  The officer requested, and was denied, the ability to reschedule his weekend work so he could take the weekend for Guard services and still work and be paid for a full five-day week.  The court ruled against the officer.  It held that the city had allowed him the time off as required but was not required to give a special benefit, which no one else received, to alter his regular scheduled workdays.  Crews v. Mt. Vernon (7th Cir., 2009). 

Discrimination 

Age 

Two decisions may create “catch 22” for age discrimination plaintiffs suing state agencies and state universities.  Public sector employees have historically been able to file discrimination cases under both the standard discrimination laws (Title VII, ADEA, etc.) and under 42 U.S. Code §1983 for violations of Constitutional Equal Protection.  Since 1998, state agencies and state universities have been able to assert Constitutional “sovereign immunity” from being sued in some instances.  These two concepts have recently come together around age discrimination, with a possibly “no where to go” result for those who have suffered age discrimination. 

In Ahlmeyer v. Nevada System of Higher Education (9th Cir., 2009), the court dismissed a plaintiff’s §1983 suit for age discrimination.  It held that the Age Discrimination in Employment Act (ADEA) was the sole remedy for age cases; they do not fit within the §1983 Equal Protection scope, so §1983 cannot be used to challenge this type of discrimination. 

Then, in EEOC v. Board of Supervisors for the University of Louisiana System (5th Cir., 2009), the court ruled that an ADEA case cannot be brought by an individual plaintiff against a state government.  Constitutional sovereign immunity bars the ADEA suit.  So, an age discrimination plaintiff is stuck in limbo.  One court states that the ADEA is the only remedy against the state, then another court states that it, too, cannot be used against the state. 

This is not a total block.  The EEOC v. Board of Supervisors decision held that individual plaintiffs could not sue state agencies, but the federal government could.  The EEOC is a federal agency, so it could continue its case, on behalf of an individual, against the university system. 

Those cases are by different federal circuit courts, so there may be other decisions on these issues.  If they stand, this may result in fewer age challenges because the EEOC takes only a limited number of cases each year, leaving most individual complainants on their own.  [Sovereign immunity is a complicated area.  It applies only to state agencies, not counties, municipalities, etc.  It applies to some laws but leaves people free to sue states under other laws.  The courts often reach conflicting conclusions in this area.] 

Disability 

The first case in this category illustrates the ADA Amendments Act principle that conditions in remission are covered disabilities, if they reoccur and effect an employee’s work performance. 

Relapse of old condition is a disability.  An administrative aide’s Chronic Fatigue Syndrome had been in remission for 17 years before she started working for the company.  More than a year after being hired, she had a relapse and requested accommodation for the CFS disability.  Instead, she was fired.  The reason given was that she had “falsified” her pre-employment medical evaluation by not revealing the CFS on the medical questionnaire.  The court ruled against the company.  The questions did not specifically include CFS as a condition.  After 17 symptom-free years, it is unlikely that a reasonable person would understand that CFS might be someone includable in the generic category of “blood conditions.”  The court found the company’s reason for discharge seemed to be pretextual.  EEOC v. Chevron Phillips Chemical Corp. (5th Cir., 2009). 

Just take my word for it!  An applicant for a jailor position tested positive for PCP in a pre-employment drug test.  She claimed this was a result of two prescription medications she took to control a seizure disorder.  She later took a re-test, at her own expense, with a negative result, but did not provide requested medical evidence that the drugs she claimed to be taking could have caused the PCP positive result on the earlier test.  The county refused to hire her, and she sued under the ADA.  The court granted summary judgment to the county.  A person with a disability must provide medical information to verify their claim of disability.  In this case, one must medically verify they are actually taking certain medications and that the medications actually have the effects which they claim.  Ozee v. Henderson County, Ky. (W.D. Kentucky, 2009). 

Weird is not disabled.  No one was aware of an employee’s diagnosed OCD condition.  He made no mention to anyone and “covered” his condition.  After he was discharged, he sued, claiming that he was “regarded as disabled” because his co-workers perceived him as “weird” or “crazy” due to some of his behaviors at work.  The court dismissed the case.  There was no evidence any such behaviors were connected with or considered in the discharge.  A person’s idiosyncrasies or unusual behavior, unless extreme, are not sufficient to put an employer on notice that a person might have a disability.  Ablestein v. U.S. Dept. of Agriculture (D. New Jersey, 2009).  

Psychiatric fitness for duty evaluation warranted by threatening comments.  An employee told a co-worker that he “would go postal and then laugh from his jail cell” in regard to his work situation.  The co-worker reported this to management.  The employee denied the statement, but management believed the co-worker and ordered the employee to have a mental fitness for duty evaluation.  He refused and was placed on suspension until he complied.  Instead, he retired and sued for violation of the ADA section on unwarranted medical inquiries.  The court ruled that the company had a valid reason for the inquiry.  It had a policy against threats and violence.  it promptly investigated all reports of threats.  The situation matched the law’s “business necessity” requirement for such an evaluation.  Shannon v. Verizon New York (N.D. New York, 2009). 

Employee must be pro-active in accommodation.  A truck driver’s leg condition resulted in medical restrictions preventing him from lifting and unloading.  He could no longer perform his delivery driver job.  The only open positions within his restrictions required a commercial driver’s license.  The company encouraged him to test for that license, but he failed to follow through.  He was terminated due to no work being available, and he then sued.  The court found in favor of the company.  There is no duty under the ADA to create a special position.  The company offered an open driver job.  The employee had an obligation to be pro-active in seeking to meet the requirements for that job.  McLain v. Anderson Corp. (8th Cir., 2009). 

family & medical leave act 

Notice is important -- double leave.  A care facility gave an employee 12 weeks of paid short-term disability leave.  The employee later requested unpaid FMLA.  On return, she was placed in a lesser job.  She sued.  The employer argued that she had exhausted her FMLA during the first leave and was not entitled to restoration to the same position.  The court disagreed.  There was no notice to the employee that the first leave was being counted as FMLA.  Therefore, the full 12 weeks and the full restoration rights were still available for the second leave.  If an employer wishes to count any other sort of leave as FMLA, it must notify the employee.  Lafuta v. Church of Christ Home for the Aged (6th Cir., 2009).

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