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 

Job Tax Credit Act.  The President has signed the Job Tax Credit Act (HR 2847) giving a tax incentive for hiring unemployed workers.  The bill had bi-partisan support.  Following the dramatic fight over health care reform, it is likely that Congress will focus on the economy and more bi-partisan supportable legislation until after the November election.   

Indiana governor signs right to bear arms in the workplace law.  A new Indiana law makes it illegal for employers to prohibit employees from carrying firearms in the workplace.  Employers can be legally liable for having policies prohibiting firearms.  The law has limited exceptions, such as daycare centers and any facility where Federal Homeland Security rules prohibit weapons.  The law was vigorously opposed by the Society for Human Resource Management, which advocated that employers should have the right to control behavior on their own private property. 

Abusive workplace law introduced in Wisconsin.  On March 24, 2010, Assembly Bill 894 was introduced.  It would prohibit general "abusive behavior, bullying, derogatory remarks, insults, verbal humiliation, undermining an employee's work performance, and exploiting an employee's known vulnerabilities," among other things.  The proposed law provides for both corporate liability and personal liability: the "abusive" supervisor or co-worker can be personally sued.  The law provides for economic, compensatory (i.e., pain and emotional suffering), and punitive damages, plus attorney fees to the successful plaintiff.  The complete act is available at http://www.legis.state.wi.us/2009/data/AB894hst.html. 

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). 

Constitution -- Established Clause 

Teacher can sue church school under the ADA.  The Constitutional Establishment Clause prevents any "ecclesiastic" employee from suing a religiously affiliated entity.  However, "ecclesiastic" requires one to do at least some theologically-based duties, such as conducting a faith-based class or teaching a religious message.  In EEOC v. Hosanna-Tabor Evangelical Lutheran Church & School (6th Cir., 2010), the court found that the employee taught standard subjects from the same textbooks used in public schools and had no religious content or duties.  Thus, she could sue under the ADA for retaliation after having taken a disability leave. 

Violations of Duty of Loyalty 

Ex-salesman may be sued for breach of loyalty.  In Wisconsin, the general rule has been that only officers, directors and those with fiduciary roles have a duty to be honest to their employers.  Anyone else could be deceptive (but not illegal).  For instance, a salesperson could use the current company's time-and pay-to seek a new job and set up future clients, all the time assuring the current employer of their "loyalty and devotion."  Now, the Wisconsin Court of Appeals has changed that rule.  It has ruled that "key employees" also have a duty of loyalty.  It has allowed a case to proceed against an ex-salesperson who was allegedly not honest about his intent to leave, and then interfered with his former employer's customer and supplier relationships.  The court did not define exactly what makes one a "key employee," leaving that to case-by-case evidence of "the context of the business and the specific role the employee plays in the business."  Info Corp. LLC v. Hunt (Wis. Ct. App., 2010).  [For more information on this duty of loyalty/honesty issue, request the article When is Honesty the Best Policy? by Bob Gregg, Boardman Law Firm, at rgregg@boardmanlawfirm.com.  The current law also allows employers to sometimes be untruthful to employees.  This case may have an eventual "obverse effect" and impose a duty of honesty to key employees.]   

Conspirators found liable for bribery.  Two employees and two transportation companies were found guilty of conspiring against S.C. Johnson & Sons Co.  The employees solicited bribes and kickbacks from the transportation companies.  The transportation companies submitted inflated billings to cover the bribes.  The jury found the employees, the transportation companies and two individual principals of those companies liable for civil conspiracy.  The court also refused to allow one of the defendants to withdraw his Fifth Amendment right not to self-incriminate/ refusal to testify, and denied his request to now testify in his own defense.  He had stonewalled the other side all through two years of discovery, denying the other side information.  Halfway through the trial, he then wanted to present information for his defense.  The court decided it would be prejudiced to the plaintiff to suddenly allow the defendant to give his own self-serving spin on evidence he had previously and steadily kept hidden from the other side.  S.C. Johnson & Sons, Inc. v. Morris, et al. (Wis. Ct. App., 2010). 

Discrimination 

Sex 

When it's over, it should be over.  A male restaurant waiter filed a valid claim for sexual harassment, based on his female manager's post-breakup continuing romantic advances.  Though told that the relationship was over and further attention was unwelcome, she continued highly overt advances.  These included repeated grabbing and touching the employee's private parts.  The court found that though these same attentions may once have been mutual and welcome, once the consensual relationship ends, the now unwelcome attention fits the definition of sexual harassment.  Turner v. The Saloon, Ltd. (7th Cir., 2010).  

"Motherhood" does not equate to sex discrimination.  A regional sales manager objected to travel requirements because she was the mother of two young children.  The company did not decrease her travel requirements and she sued for sex discrimination.  The court dismissed the case, finding no gender discrimination.  A mother has no more protection than a father.  As long as a company uniformly imposes travel requirements, there is no discrimination.  Feinerman v. T-Mobile USA (S.D., NY, 2010) 

Race 

Law firm sued for segregating African American attorneys.  In Young v. Covington & Burling LLP (D.C., DC, 2010), the court found sufficient grounds for trial on a staff attorney's Title VII adverse impact case.  The case alleged that a Washington, D.C. law firm predominantly relegated African American attorneys to "staff attorney" positions, which paid less and were ineligible for partnership.  Further, in order to get these lower level staff positions, African American candidates had to have graduated from more prestigious law schools, with better grades than White candidates who were hired for associate (partner track) positions.  Also, those who were White and hired as staff attorneys received special mentoring attention and were provided opportunities to transfer to associate positions.  The law firm has denied the allegations.  

Disability 

Bank's perceptions about attempted suicide violate ADA.  A bank's Assistant Vice President had an emotional disorder.  He attempted suicide.  He recovered, underwent therapy and was medically cleared to return to work.  The bank refused to let him come back and discharged him, stating that his actions and condition could affect the bank's reputation and hurt business.  The court found for the ex-VP in the subsequent ADA case.  There was no evidence to support the bank's position.  It did not seek any additional information from the doctor to establish any ground for concern.  The VP was fully capable of performing the duties of the job.  There was no evidence that any accounts or goodwill were lost due to the VP's incident.  The court ruled that the ADA prohibits people being discharged "due to accumulated myths, fears and stereotypes."  Lizotte v. Dacotah Bank, et al. (D. N.D., 2010). 

Drug test only after offer of employment.  The ADA allows medical examinations only after an offer of employment.  The offer can be made conditional upon "passing" the medical evaluation.  A drug test is a medical test.  In Harrison v. Benchmark Electronics (11th Cir., 2010), an applicant was sent for a drug test prior to an offer letter.  He tested positive for a prescription drug.  He was not hired.  The court found a violation of the ADA due to the timing of the test and also evidence that rejection for a drug prescribed for the applicant's medical condition could be discrimination based upon a "perceived" disability. 

100% rule violates ADA.  A company required an injured truck driver to present a "100% healed--no restriction" medical release in order to return to work.  The court ruled that "requiring an employee to be released completely without restriction does not allow for the case-by-case assessment of an employee's ability to perform the essential functions of his or her job with a reasonable accommodation, and can constitute a per se violation of the ADA."  Powers v. USF Holland, Inc. (N.D. Ind., 2010). 

Two "no information" cases.  Two recent decisions reemphasize the employee's role to cooperate and provide information in the ADA's "interactive process."  Unreasonable refusals result in dismissal of cases: 

An FAA employee sued over denial of her accommodation requests for leave and to work from home.  However, she did not submit leave paperwork, and she never completed the accommodation request and documentation.  The court ruled that she had failed to meet the requirements for ADA coverage.  Thomas-Bagrowski v. DOT-Federal Aviation Administration (7th Cir., 2010).  

A law firm file clerk with non-Hodgkin's Lymphoma requested transfer to another position to alleviate the affects of the job on her condition.  The firm obliged.  However, the new position did not solve the problem, and she could not continue working.  She was eventually placed on long-term disability.  She claimed that the firm should have found her another accommodation, but did not indicate what might work.  The court ruled that an employee must give some clue as to what accommodations are necessary, and it is the plaintiff's burden to show that a reasonable accommodation in fact existed for the condition.  Batlidze v. Harris Beach LLP (2nd Cir., 2010). 

FAMILY AND MEDICAL LEAVE ACT 

back to top