|
|
||||
 |
January 2009 Legal & Legislative Update |
 |
|||
|
|
|||||
|
LEGISLATION and ADMINISTRATIVE ACTION Union Plans to Ask Obama Administration to Change New FMLA Rules. The new regulations take effect on January 16, 2009, but by the end of the month, the new administration will receive requests to rescind them and make more “employee-friendly” modifications. The Postal Workers Union claims that the new rules—allowing employers to get more frequent verification of medical conditions, require more verification of sudden, unanticipated absence, and give more direct access to employees’ doctors―will have a chilling effect on workers’ use of FMLA. The Department of Labor has responded to this critique by pointing out that the new rules create more rights for workers and place more requirements on employers than the previous regulations. 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). Case of the Month and Trends: Inter-State Work California Overtime Wage Law Applies to Out-of-State Workers Temporarily in the State. California law is much more generous than federal and most other state wage and hour laws. In this situation, the California law required payment of overtime wages for more than eight hours in a day, rather than just for over 40 hours in a week. A federal court has ruled that the state law can apply to hourly employees of non-California companies who temporarily work in the state. Those workers are entitled to the state-required extra overtime pay for the full days they worked extra hours in California. Sullivan v. Oracle Corp. (9th Cir., 2008). The workers at issue in this case were IT employees who were providing some training on new software. In this era of nationwide and worldwide business, companies routinely have service workers, installers, sales representatives and many other employees traveling to company facilities, customer sites, trade shows and training in other states. This case provides fair warning that crossing jurisdictions has more effect than just jet lag or travel expenses. The courts are dealing with increasing litigation involving crossing the borders. For instance, the recording of interstate phone calls is subject to the differing privacy laws of each state. Though it may be legal in the state where the supervisor is recording the employee, it may violate the law where the person being recorded is located. Laws regarding what information may be kept in employment records may be different in the central office HR depository than in the states where the information is gathered. The October Legal Update described how the state court applied Wisconsin’s different Workers Compensation standards for a Texas employee who was injured during just a few days’ trip to Wisconsin. Must Human Resources be aware of the law of each state an employee drives through on the way to an assignment? For traveling employees, must supervisors be aware of the differing discrimination categories in each state or locality? The 9th Circuit Court’s decision noted that there was nothing in the employee’s home state laws that provided for exclusive jurisdiction nor that prevented application of any other state’s laws or local laws to traveling workers. Will this sort of ruling motivate employers to lobby states to pass “protective” employment laws so they can depend on the home law of each employee rather than be blindsided by the wide variety of not-so-readily-ascertainable laws of each state and local government in the nation? Or is compliance with all these laws simply a cost of doing business in this wider world? Electronic Communications Privacy Good Computer Use Policy Saves Company from Liability. An employee used the company computer and company cell phone to harass a couple with whom he had a personal dispute. He used the computer to find information on the victims and to place false ads, orders and magazine subscriptions in their names and to make false statements, pretending to be them. When discovered, the employee was fired for inappropriate use of company time and the electronic system. The victims sued the ex-employee and the company, since it was the company’s equipment used in the harassment. The Wisconsin Court of Appeals dismissed the company from the case. It had good computer usage policies which clearly prohibited such activities. All employees were required to verify receipt and understanding of the policies. The company periodically reemphasized the policies. It had done everything a reasonable employer should do to prevent abuse. Therefore, the company was not liable for the employee’s misuse of the equipment. Sigler v. Kobiasky (Wis. App., 2008). Insurance What is a “Case”? — Late Notice Results in No Insurance Coverage. An insurance company denied employment practice liability coverage on a discrimination case because the covered employer did not give prompt notice that it was being sued. The employer, a labor organization, argued that it did give notice as soon as the matter became a “formal case” in court. It had initially used its regular attorneys for the first several months to respond to the employee’s charges during the “informal” initial EEOC process. A court agreed with the insurance company. Any government filing is not “informal.” The company’s failure to notify the insurance carrier denied the insurer’s ability to be involved in the defense from the start, where the employer often makes admissions, misses negotiation opportunities, or sets its strategy into a mold that affects all subsequent stages of litigation. The employer was stuck with having to pay all costs and liabilities. American Center of Int. Labor Solidarity v. Federal Ins. (D. DC, 2008). An employer should promptly notify its insurance company of anything that might be the first step of litigation, including any demand letters by a plaintiff’s attorney or a letter with a threat to sue. When in doubt, send each letter or notice at each stage to the insurer until it either accepts or denies coverage. Be sure to let your regular attorneys know you may have insurance before they make any response. Discrimination Damages Winning Employer Only Gets Fees if Case is Frivolous. The Fifth Circuit Federal Court has verified the general interpretation of the Title VII and other EEO laws’ attorney fee rule. The words of the statute state that actual attorney fees may be awarded to the “prevailing party.” A prevailing plaintiff is almost always awarded attorney fees in addition to other damages. However, a prevailing employer is only given fees for defending when the plaintiff’s case is found to be frivolous and without merit. The mere fact that the plaintiff lost is not enough. Many hard-fought cases are close calls and had valid evidence which showed a non-frivolous case, even though the plaintiff lost. In Stover v. Hattiesburg Public Schools (5th Cir., 2008), the appeals court reversed an award of $144,058 in legal fees to the winning employer in a race, sex and Equal Pay Act case because there was sufficient basis to show a good faith, non-frivolous case. The losing plaintiff was still required to pay $5,285 in related litigation costs to the employer. Race Firecrackers at Work did not Justify Discharge When Supervisor was Selective in Reporting Violations. An African American Street Department worker was fired for setting off firecrackers at work. The top level manager who made the discharge decision had absolutely no knowledge that anyone else had ever done any similar behavior and relied on the direct supervisor’s report of this safety violation. The court, however, found racial discrimination. The direct supervisor clearly knew of several instances in which his White employees set off firecrackers or committed worse safety violations, but chose to report only the African American worker. Though the top level decision maker did not intentionally discriminate, the entire process was tainted by the lower supervisor’s biased reporting of violations, so this supervisory discrimination was “imputed” to all decisions that grew out of it. Madden v. Chattanooga City Wide Service Dept. (6th Cir., 2008). Religion Religious Preclusion Trumps ADA Case. The constitutional separation of church and state doctrine gives religious organizations immunity from many employment laws as to their religion-related jobs. A teacher at a church-run K-12 school was discharged after taking a leave to treat the condition of narcolepsy. The school administrator was reluctant to reinstate her due to concerns about the condition. When she threatened to sue under the ADA, her contract was terminated. She then sued, with the backing of the EEOC, for disability discrimination and retaliation. The court dismissed the case. The teacher was a “ministerial” employee, unlike the lay teachers at the school (who are covered by the ADA and other standard employment laws). This teacher had special additional duties to lead prayers and help with student devotionals. She took special religious training for these duties and received a resulting extra pay stipend which the school’s lay teachers did not. Therefore, the courts could not interfere with the religious organization’s decision about the ministerial employee. EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School (E.D. Mich., 2008). Disability Improper Use of Pre-employment Drug Test Violates ADA. A pre-employment test for illegal drugs does not come under the ADA’s prohibition against pre-job-offer medical evaluation. However, in Connelly v. First Personal Bank (N.D. Ill., 2008), an applicant for a bank officer position was eliminated when the drug test revealed a prescription drug. Revealing an applicant’s use of legal medications is pre-employment “medical testing” and can violate the ADA. In the pre-employment phase, the testing lab should not have revealed the presence of a prescription drug, and the bank should not have considered it. (After one is hired, the employer has latitude to get medical fitness for duty information, including effects of prescription drugs—see next case.) Further, the ADA’s medical testing rules do not require a plaintiff to be “disabled”; any person subjected to an improper process can bring a case. Employer has the Right to Know Safety Related Medical Information. A railroad engineer sued for disability discrimination after being discharged for refusal to provide complete medical information to his employer. The company had a safety policy which required all employees on safety-sensitive jobs to report any prescription medications that might affect safe operations. The company learned that the employee had been taking more than one medication which caused drowsiness and lack of concentration. He failed a safety test during the time he was taking these medications. He filled out standard safety forms and neglected to list any of the drugs. The company fired him for this failure to report. The case was dismissed on summary judgment. There was no discrimination. All employees, disabled and non-disabled, were required to report medications that could affect safety. Safety is an important interest that warrants this limited medical information inquiry. All employees have an obligation to comply. Kosmicki v. Burlington Northern and Santa Fe Railroad (8th Cir., 2008) Repeated Requests for Accommodation are not Disruptive. An employee returned from breast cancer treatment with permanent physical restrictions on lifting. She requested reassignment to a job that accommodated the lifting restrictions. However, the transfer did require lifting. She continued to request accommodation, but every job she was transferred to again required lifting in excess of the restrictions. Management did not seem to either pay attention to the restrictions or assess the job before placing her into it. She continued to remind management of her restrictions and request accommodation and was fired for being “disruptive” because she kept going to her supervisor about the accommodation issue. The company could provide no other evidence of “disruptive” behavior except her repeated requests for accommodation and the supervisor’s negative comments about these requests. The court found sufficient evidence of discrimination and retaliation under the ADA. Mayer v. Future Electronics G.P. Corp. (N.D. Miss., 2008). Fair Labor Standards Act Court Dismisses 571 Pharmacists from Class Action — Only Two Left. Wal-Mart was sued by 573 store pharmacists under the FLSA, claiming they were treated as hourly instead of exempt employees and should be entitled to two years of overtime pay. The court granted summary judgment to Wal-Mart, finding that it did not violate the Salaried Basis Treatment Rules for all but two of the plaintiffs. There was evidence that Wal-Mart did change the pay of two pharmacists based on hours worked so frequently that it did violate the consistent salary requirements for exempt status. The two pharmacists were allowed to continue their case. Archuleta v. Wal-Mart Stores, Inc. (10th Cir., 2008). National Labor Relations Act False Statement in Public Warrants Discharge. A city public works employee went to a training session attended by employees of various organizations and conducted by a private sector trainer. In the session, he stated that his city had engaged in deliberate damage to private property in order to then justify condemnation proceedings and demolition of that property. This would be an illegal activity and could jeopardize all condemnation/demolition efforts by the city. There was no evidence that any such thing had ever occurred. The evidence showed the employee knew his statement was not true. The training session was a “public forum,” not an internal venue. The intentionally false and potentially highly damaging public statement was not protected by any freedom of expression rights. Thus, the city’s discharge of the employee was warranted. In re City of Flint (2008). |
|||||
 |
 |
 |
|||
 |
 |
 |
|||
|
|||||
