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 

Uniformed Services Act Amendment.  Congress has passed an amendment to USERRA to lift the five-year limit on employment reinstatement rights for members of the Guard and Reserves.  The bill has proceeded to the Senate for consideration.  

Breaks for nursing mothers.  A new amendment to the Fair Labor Standards Act requires breaks for nursing mothers to be able to express milk.  Only hourly nonexempt employees are eligible; exempt salaried or commissioned employees are not (on the theory that they have more flexible schedules and can take breaks without affecting hourly timekeeping).  Breaks are to be held in a reasonably private area, not the standard restrooms.  The DOL is in the process of developing regulations to define conditions, frequency and reasonable length of breaks. 

Department of Labor targets unpaid internships.  The DOL has announced an intensification of investigations to "crack down" on abuses of unpaid internships.  It seems too many employers are ignoring the educational purposes and requirements of the internship regulations and simply using "interns" for standard work to replace regular wage earners at no pay. 

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).

Cases of the Month 

Courts Issue Confusing Decisions for Placement Companies/Leased Employees Regarding Liability for Third-Party Acts 

Two different federal circuits issued what appears to be opposite decisions regarding the liability of placement/leasing agencies for the policies of their clients. 

Placement agency is not required to prove whether or not its client company would have an undue hardship to accommodate religious garb.  Kelly Services did not place a Muslim woman at a manufacturing plant because its client's safety rules prohibited loose clothing, including all head coverings.  She was religiously required to wear a khimar head covering.  Kelly Services offered a series of other placements, including some which paid more.  She refused, insisting she should be assigned to the manufacturing plant and that her khimar should be accommodated.  She and the EEOC sued Kelly Services, but not the manufacturing plant.  The court ruled for Kelly Services.  It ruled that Kelly Services had no belief that the safe clothing requirement was pretext, and the placement agency is not required to provide a defense on behalf of another, nonparty company (it's client) for that third-party's policies.  The plaintiff should have brought the other company into the case in order to challenge its policies.  EEOC v. Kelly Services, Inc. (8th Cir., 2010).  

Placement service is liable for government's discriminatory requirements.  MVM, Inc. contracts with the U.S. government to provide leased security guards to federal courthouses.  The U.S. Marshalls Service (USMS) implemented a new standard that required guards to pass a hearing test and be able to work without hearing aids.  A long-term MVM-provided guard, with an excellent performance record while always wearing a hearing aid, could not pass the hearing test.  USMS would not allow him to continue his work in the courthouses.  So, MVM terminated the employment.  He sued MVM under the ADA, Rehabilitation Act and state disability laws.  (He did not effectively join the Marshalls Service into the case.)  MVM defended on the basis that its client, the U.S. government, created the hearing standard and solely controlled who could or could not work in the federal courthouses; so, MVM had no control over the situation.  The court ruled otherwise.  "The ADA imposes liability for discrimination carried out via a contractual agreement with a third party."  Further, "MVM's liability turns on whether USMS engaged in discrimination prohibited by the ADA."  It found MVM liable for "participating in a contractual arrangement" which had a discriminatory effect on a qualified person with a disability.  Fromm v. MVM, Inc. (3rd Cir., 2010).  [MVM had no role in creating the new hearing standards.  MVM had no authority to tell USMS what to do.  MVM still has no power, at all, to force USMS to let Mr. Fromme reinstate back to work in a courthouse.  Nonetheless, MVM may be liable to pay Mr. Fromme, perhaps continually, because of the USMS decisions, which it has no authority to change.]

Privacy - Reading Ex-Employee's Emails 

Unclear computer use policy and company attorneys' overreach violated both privacy and legal ethics (sanctions for company and its attorneys).  An employee used her company laptop to communicate with her attorney about her concerns of sex, religion and national origin discrimination.  All emails were to and from her personal email account; she just went to that account through the company's internet access.  She left and then sued the company, but the record of her personal account remained on the company laptop's hard drive.  The company reviewed the contents.  The company attorneys then used her attorney-client communication in preparing its case defense strategy.  When this came to light, the ex-employee added an invasion of privacy case to her suit.  The New Jersey court ruled that the company's electronic usage policy was "vague."  It did not clearly inform employees that personal usage, including accessing one's own personal account via the company computer, was archived in the hard drive, became a company record and was not private.  Therefore, it found that reading her personal account emails was an invasion of privacy.  Even if the policy had been clear, reading attorney-client emails was still impermissible.  The court held that the "attorney-client privilege is venerable" public policy.  Any company attorneys should know this, and not invade that privilege.  So, in addition to an invasion of privacy, the company's legal counsel was involved in violation of the Ethics Code, and the attorneys themselves may be subject to additional sanctions by the court.  Stengart v. Loving Care Agency, Inc., (N.J. Ct. of Appeals, 2010).  

Constitution:  Embassy Immunity 

Foreign embassy not immune from age discrimination suit by U.S. citizen-employee.  The Foreign Sovereign Immunities Act prevents suit of foreign embassies and prosecution of foreign diplomats in U.S. courts (and prohibits suit of our embassies and diplomats in those nations).  An exception is the law's "commercial activity" provision for issues which are totally devoid of any diplomatic purpose and not tied to diplomatic staff (i.e., lease of a building, standard utility bills, etc.).  In Lee v. Taipie Economic and Cultural Representative Office (S.D. Texas, 2010), the court ruled that a driver/maintenance employee for the Taiwanese Embassy was a standard worker, with no diplomatic role or involvement.  He was hired in the U.S. and not recruited or brought to the U.S. for special embassy work.  He never performed any work which could be considered "official" in nature.  Therefore, he could sue for age discrimination.  

Discrimination

Age 

"Difficult employee" loses case - must work well with others.  A 51-year-old employee was not called back from layoff; he then applied for and was denied interviews for other open jobs.  He sued for age discrimination.  The company successfully defended the case with tangible proof that it did not consider him eligible for reinstatement because he did not work well with others and needed constant supervision.  There was evidence that while employed, his co-workers considered him "ready to snap" and were always on guard to not set off his temper.  The court ruled that "the inability to get along with co-workers is a sufficient basis" for non-recall, refusal to hire an ex-employee, or to fire a current worker.  Viergutz v. Lucent Technologies, Inc. (6th Cir., 2010).  [This case should be kept in mind in light of the proposed Wisconsin Abusive Workplace Act.  Under that law, an employer could also be liable to the co-workers if it did rehire an abusive ex-employee.  For more in-depth information, request Boardman Law Firm's seminar on Managers' Duty of Care for the Respectful Workplace.]   

Disability 

Sludge boat captain's shy bladder disorder does not require accommodation of no-drug testing.  The captain of a New York City sludge boat could not take the standard required drug test due to the disability of a shy bladder.  The Coast Guard withdrew his license due to failure to test.  The City discharged him, since he could not work without the license.  He sued under the ADA, claiming discrimination and failure to accommodate.  The court found that the City and Coast Guard had sought additional medical information in order to decide whether an alternative test was warranted.  The captain submitted vague and inadequate doctor notes.  The court decided it was the captain, not the employer, who was at fault.  The employer would have considered an alternate test if he had just met his medical certification obligation.  Kinneary v. New York City (2nd Cir., 2010).  

Shift change may be reasonable accommodation for employee who cannot drive to work.  Usually the accommodation focus is on-the-job items to assist a person to perform duties.  In Colwell v. Rite Aid Corp. (3rd Cir., 2010), the employee could perform all duties well; but when she developed blindness in one eye, she could not drive to work at night.  It was also shown that alternative transportation (public or private) was not available to the employee.  The employer informed her that getting to work was her responsibility and did not explore a change to day shift.  She resigned, then sued, claiming constructive discharge.  The court agreed, finding that the employer apparently failed to engage in the interactive process and failed to consider the accommodation of an on-the-job schedule change.  The ADA specifically states that "reasonable accommodation can include a modified work schedule." 

Everything 

Loss of master key warrants discharge -- no matter how many sorts of discrimination plaintiff may claim.  A mail carrier lost the master key, which opened every customer's mailbox in a large area.  Then she kept the loss a secret and did not report it, as required.  The key was found days later by a passerby and turned in.  The carrier claimed she had a hearing loss condition and did not hear the master key fall from her keychain; therefore, she should be excused from any negative consequences as a reasonable accommodation of this disability.  Instead, she was fired for the major security violation of intentionally not reporting the loss.  She then sued for discrimination on the basis of age, national origin, gender, equal pay, disability and retaliation [any and all categories she could conceivably fit within].  She lost on all counts.  Her serious violation of security justified discharge.  She could show no tangible evidence of bias on any of the discrimination categories she filed under.  She could show no one else who had done anything similar and not been fired.  Though her hearing loss may have meant she did not hear the key fall, she could not explain how her hearing, or any of the other categories, had any role in her covering up the loss and failing to report it.  Hernandez v. Potter (10th Cir., 2010).   

Uniformed Services Employment and Reemployment Rights Act (USERRA) 

No right to reinstatement at old job after company is sold.  During an employee's tour of active duty, a company sold the facility where she had worked at the time of being called up.  On return, the company offered her another job, at a different location.  She rejected the offer, in the belief that USERRA guaranteed her return to the exact job, in the same facility, she had before.  This was denied by the new owners, and she sued.  The court dismissed the case, ruling that USERRA does not impose an obligation on a company which was not the service member's prior employer and which had no connection with her, and had not taken on any of the previous owner's employees.  All USERRA rights were tied to her prior employer, and it met its duty by preserving and offering her an alternative job when the old one ceased to exist.  Reynolds v. Rehab-Care Group East (8th Cir., 2010).  

Further Limitation on Employment at Will 

Public policy exception to protect benefits.  The Wisconsin Court of Appeals has ruled that a termination in order to deny benefits violates public policy and allows a wrongful termination suit.  At Will employees can be terminated without notice, without cause, except for an illegal reason (i.e., discrimination and a variety of specific laws) or a "cause against public policy."  The plaintiff alleged that she was part of a benefit plan, and the employer discharged her for the purpose of not having to pay out her rightfully-earned benefits.  The court ruled that such a discharge would be a "public policy violation exception" to Employment at Will, and remanded the case for a trial on the merits of the allegations.  Phillips v. U.S. Bank (Wis. Ct. App., 2010).  [A number of federal courts have made similar rulings under a variety of benefit laws.  They have found it illegal to terminate people "just short" of collecting on pensions; just short of becoming eligible for FMLA leave; creating pretextual reasons to prevent one from collecting on stock redemptions, etc.] 

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