|
|
||||
 |
July 2010 Legal & Legislative Update |
 |
|||
|
|
|||||
|
LEGISLATION AND ADMINISTRATIVE
ACTION
Plan/Prevent/Protect
Regulations Proposed.
The Department of Labor is proceeding to develop new
comprehensive requirements under FLSA, OSHA, Mine Safety & Health
Act and Executive Order 11246 (Contracts with the U.S. Government).
The new regulation will require employers to create detailed,
comprehensive Compliance
Action Plans.
Plan.
Employers will be required to have a formal plan for how to
identify, avoid, prevent and remedy safety and environmental
hazards, potential workplace violence, wage and hour violations, and
other as yet unspecified employment law violations.
Non-management employees must be formally involved in
developing the various plans.
Prevent.
The plan must be "activated." There must be a continuous
process to monitor, revise the plan, and assure no legal violations.
There must be thorough assessments.
For example, the employer should do a formal analysis
of every salaried/exempt position to assure it meets the FLSA
requirements.
Protect.
The employer must "assure" all of the different plans'
provisions are met on an ongoing basis.
The employer must file all of the plans with the DOL.
The agencies will begin to take comments soon.
All interested parties should learn more and actually become
involved in the commentary process.
Though the Plan/Prevent/Protect is intended to be
comprehensive approach, it is spread among several federal agencies,
each of which will develop its own regulations in its own time
frame. To find out
about the OSHA part of Plan/Prevent/Protect, call 202-693-1950.
For the Mine Safety part, call 202-693-9440.
For the OFCCP part, call 202-993-0102.
For the DOL requirements part, call 202-693-0067.
As yet, there are no websites for more specific information.
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).
U.S. Supreme Court
Unanimous decision
validates disparate impact race discrimination case on Chicago
firefighter hiring process.
In an unusually rare unanimous decision, the Supreme Court
reversed the 7th Circuit and validated a suit challenging Chicago's
firefighter selection test as having a racially discriminatory
impact against African American applicants.
Some 6,000 African American applicants are included in the
class action as being denied employment due to the test.
The most interesting factor is that Justice Scalia authored
the decision, finding that the test had a disparate impact.
Just a year ago, in
Ricci v. DeStefano, Justice Scalia issued an individual,
concurring opinion in which he opined that disparate impact class
action cases are not clearly authorized under Title VII, and he
would rule that none should be allowed.
City of
Racketeering Influenced
and Corrupt Organizations Act
Employees can sue
restaurant chain for immigration violation.
A group of restaurant employees can sue their employer under
RICO over allegations that it hired illegal aliens in order to drive
down wages and to replace higher paid U.S. citizens and legal
workers. The
allegations include that the company knowingly hired illegal workers
and provided them with fraudulent IDs and social security numbers.
The plaintiffs also allege retaliation and harassment when
they complained to management about these practices.
Edwards v. Prime, Inc.
d/b/a Ruth's Chris Steak House (11th Cir., 2010).
DISCRIMINATION Age
VP validly fired for
giving company expense account credit cards to his mistress.
A 50+ year old insurance company vice president gave credit
cards for his company expense account to his wife and to his
mistress, both of whom then made personal purchases.
The company discovered this, demanded $15,000 repayment for
unauthorized personal use, and then fired the VP.
The VP's replacement was 28 years old.
The fired VP sued for age discrimination.
The court dismissed the case, finding that the credit card
misuse was a valid reason for the discharge.
McLain v. Liberty
National Ins. (11th Cir., 2010).
Refusal to participate in
investigation nixes case.
An employee had filed several internal complaints of age
discrimination. He was
subsequently believed to have violated a security rule, spending
excessive unexplained time in the secured computer room.
He repeatedly refused to attend meetings or answer questions
in the investigation of the matter and was fired.
He sued for age discrimination and retaliation.
The court found that his refusal to participate in the
investigation was insubordination and a valid reason for discharge.
Whether or not the security charges were motivated by
retaliation for his earlier age discrimination complaints, he had a
duty to follow the employer's investigation policy.
A plaintiff can challenge unfair discipline or discharge but
must usually follow the process through to the end in order to
preserve the right to sue.
Wood v. Summit County
Fiscal Office (6th Cir., 2010).
National Origin/Religion
Settlement conditions
include permanent job ban and negative references for supervisor.
The EEOC has settled a religion, race and national origin
case. The case alleged
that the supervisor of a Muslim employee of East Indian origin
repeatedly called him "terrorist, "Osama" and "Al Qaeda."
The supervisor also used, and allowed other workers to use,
racial slurs toward African American and Hispanic workers.
The Muslim worker complained, to no avail, and was fired
after he complained.
The settlement provides $123,000 to the affected workers.
It also provides that the supervisor will be barred from
employment by the company and will never receive a positive
reference for any other jobs.
The EEOC will monitor the company for two years.
EEOC v. Pace Services
LP (S.D. Texas, 2010). Sex Two
"Largest Evers"
Largest ever verdict in
sex discrimination case.
In Velez, et al. v.
Novartis Pharmaceuticals Corp. (S.C. NY, 2010), a jury found sex
discrimination in pay, promotion and pregnancy leave in a class
action Title VII case.
The $250 million in back pay and punitive damages amounts to
approximately 3% of the company's annual revenue.
Largest class action ever.
The 9th Circuit Court of Appeals has certified for trial the
largest employment discrimination case in history, against Wal-Mart.
This authorizes a class of some 1.5 million women to proceed
in claims covering sex discrimination in all of Wal-Mart's 3,400
stores.
Dukes v. Wal-Mart Stores,
Inc. (9th Cir., 2010).
Hospital and union pay $1
million due to union president's alleged sexual harassment of
employee. A
hospital worker and union member alleged that she was sexually
harassed by her supervisor, who also happened to be president of the
State Employees Union.
She alleged that the harassment progressed from sexual propositions,
to physical touching, to coerced sex.
She sued both the hospital and the union under the state
anti-discrimination law.
An independent investigator was hired by the hospital and
found evidence that the union president had harassed 15 other female
employees, as well. The
hospital and union have agreed to settle, each paying part of the
settlement. The
hospital also issued a statement of "regret for the ordeal" the
worker endured.
Doe v. Washington Dept. of
Social & Health Services and Washington Federation of State
Employees (Washington Supreme Court, 2010).
"Well, you know you are
hot" was not proper supervisory response to sexual harassment
complaint.
In West v. Tyson Foods, Inc.
(6th Cir., 2010), an appeals court upheld a $1.2 million verdict for
a female employee at a Kentucky chicken processing plant.
When she complained to her supervisor about sexual harassing
comments from male co-workers, her supervisor responded, "Well, you
know you are hot." He
took no action to correct the co-workers and did not report the
complaint to Human Resources.
She left after five weeks.
The court found this "woefully insufficient" and that a
reasonable jury could conclude the supervisor "failed to take a
number of steps that would clearly be necessary to establish a base
level of reasonably appropriate corrective action under the
circumstances, such as speaking with the specific individuals
identified, following up with West regarding whether the harassment
was continuing, and reporting the harassment to others in
management."
City found liable for trying to appease sexist male workers; women win bridge painter case. A trial court ruled that New York City "engaged in a pattern and practice of gender discrimination" by hiring only men for bridge painting jobs. Among the judge's findings were that the City Department of Transportation lacked consistent hiring standards in the Bridge Painter Section, that less qualified men were given preference over more qualified women, and that the disparate treatment was intentional appeasement of DOT's existing all-male workforce. . . . supervisors were "well aware" of a workplace culture hostile to women, the sexually hostile environment discouraged DOT from meeting its Title VII obligation of sex-neutral hiring. . . . The city hired painters "without meaningful objective standards or consistent guidelines" and "departed from procedural regularity in multiple respects." The case on behalf of the rejected female applicants was pursued by the U.S. Department of Justice. United States v. N.Y. City Dept. of Transportation (S.D. NY, 2010).
Disability
Employee's two hours per
shift in bathroom is not reasonable for accommodation.
An employee prescribed medication for morbid obesity, sleep
apnea and gastro-intestinal conditions had the side effect of
causing him to spend an average of two hours of every eight hour
shift in the bathroom.
The employer requested medical information as to whether there was
an alternate medication with lesser side effects.
Once informed of the side effects, his physician advised him
to stop taking the medications and consider available alternatives.
The employee continued to take the medications, with the
continuing lengthy bathroom time. He
was eventually laid off, and then he sued under the Rehabilitation
Act for disability discrimination.
The court ruled that an employee has a duty to explore "an
equally efficacious course of treatment" which does not create
significant workplace complications.
The court dismissed the case on summary judgment.
Sulima v. Dept. of the
Army (3rd Cir., 2010).
Inability to bathe is
major life activity under the ADA.
A hospital nurse had a chronic back condition.
She had many absences due to the condition.
Though the hospital tried changes in her duties, she still
suffered pain and absence due to the work duties.
She resigned, and then sued for "constructive discharge,"
alleging that the hospital did not accommodate her enough.
The hospital challenged whether she was "disabled" under the
law. However, she
showed the conditions impacted the activity of being unable to bathe
due to pain and limited mobility.
The court ruled this was a "major life activity", and the
nurse was qualified to sue under the ADA.
Boston v. Memorial
Medical Center (7th Cir., 2010).
[The court later ruled that the Medical Center did
accommodate the nurse by altering her duties as reasonably as
possible, given the information provided by the nurse.]
FAMILY AND MEDICAL LEAVE
ACT Case on FMLA for adult daughter proceeds to jury. The FMLA has more stringent standards when an employee takes family leave for an adult child who lives independently. One must show the adult child is "incapable of self-care." An employee requested FMLA to care for her adult daughter's gynecological surgery that would keep her bedridden for several weeks. The request was denied. The employee quit in order to care for her daughter, then sued for denial of the FMLA rights. The company's defense claimed that since the daughter was self-sufficient, living on her own with a job, she did not qualify. The court did not agree. The FMLA covers leave for adult family members who are temporarily disabled and cannot care for themselves for short periods. The overall condition and pre-operation status of the adult child is irrelevant. The case will proceed to a jury trial. Smallcomb v. Geiginger System Services (M.D. Penn., 2010). |
|||||
 |
 |
 |
|||
 |
 |
 |
|||
|
|||||
