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May 2010 Legal & Legislative Update |
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LEGISLATION AND ADMINISTRATIVE ACTION
Proposed OSHA Protecting
Workers Act would boost criminal penalties.
A proposed bill will enhance criminal penalties for
intentional OSHA violations likely to cause serious injury or death.
Currently, violations which result in fatalities can lead to
misdemeanor convictions.
The new rule would allow for felony convictions for a
fatality with up to a ten-year sentence for those responsible and up
to a five-year sentence for a serious bodily injury when there are
intentional safety violations.
[See the March 2010 Legal Update for an applicable example in
which a supervisor just checked off the equipment inspection form
for over six months without ever looking at the equipment and doing
the actual safety inspection.]
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).
Fair Labor Standards Act Leads in
Class Actions Although discrimination cases filed by
individuals remain the number one category in employment litigation,
the FLSA has taken the lead in class actions (multiple plaintiffs
suing an employer over wage and hour violations).
There were more class actions under the FLSA (and comparable
state wage-hour laws) than Title VII, the ADA, ADEA, ERISA or any
other employment law which allows multi-plaintiff class suits.
Further, the awards in these cases have been increasing.
The economic recession has undoubtedly resulted in some of
this increase since there is a two-year statute of limitations
(three years for intentional violations).
People often wait until after employment ends to challenge
wages. With massive
layoffs in 2008 and 2009, there are a lot more of these ex-employees
seeking redress and much-needed back pay.
Insurance Contracts -
Dishonesty
Deception voids insurance
coverage; leaves employer stuck with the bill; corporate officer
also personally liable.
A corporation had to repay all amounts expended by an
insurance company in defending an employment claim, due to false
representations in the employment practices insurance application
process. The company
had received a letter from an employee claiming that she could no
longer work due to ongoing sexual harassment and retaliation by a
manager, and she had consulted an attorney.
The company then filled out the insurance application
claiming it had no knowledge of any pending claims.
It did state that it knew an ex-employee had consulted an
attorney, but claimed it did not know why.
It failed to provided the employee's name or other relevant
information which would have triggered the insurer to do more
investigation before issuing the policy.
The court granted summary judgment against the company,
finding that "material misrepresentation induced issuance of the
policy." The court also
found that the corporate officer who signed the insurance
application was personally liable for the repayments, since he knew
or should have known of the facts when he signed.
Carolina Casualty
Company v. R.D.D., Inc. (N.D.
False Imprisonment and
Violation of Constitutional Rights
(Agency and Personal
Liability)
Employer is liable for
staff member's dishonesty about sexual relationship and doctor's
wrongful commitment of resident.
A caseworker for a state mental health service became
sexually involved with one of her clients in a transitional living
facility for those with mental disabilities.
She then stopped the relationship, but he told others in the
program. The caseworker
covered up and denied the relationship.
Doctors for the program, taking the caseworker's denial as
true, diagnosed the client as "delusional" after a five-minute
evaluation. They
involuntarily committed him to a mental institution.
He was subsequently released when evidence proving the sexual
relationship came to light.
In the ensuing suit, the court denied the qualified immunity
defense raised by the agency and the employees, and allowed suit for
violation of civil rights; wrongly committing an individual after an
assessment based on false representations and which failed to meet
any standard of adequacy.
Bolmer v. Oliveria, et
al (2nd Cir., 2010).
[This case shows how a false representation by one employee
entrapped several others who relied upon it.
Shortcutting standards and processes is dangerous, no matter
how much one may know, trust and believe another staff member.]
Bankruptcy Protection
Planning to file is
protected activity.
The Federal Bankruptcy Law prohibits employment
discrimination against those who "have filed" a bankruptcy (current
or past). In
Robinette v. WESTconsin
Credit Union (W.D. Wis., 2010), the employer learned that an
employee was contemplating filing a bankruptcy, and fired her
because the bankruptcy would reflect badly on the credit unit.
The employer defended the discharge case by claiming the law
only applied after a bankruptcy files, not for
"contemplating." The
court disagreed, prohibiting a preemptive strike by employers, as
long as the employee did follow through and actually file the
bankruptcy. The judge
also ruled that the bankruptcy law was the only remedy available,
dismissing the plaintiff's additional unfair discharge case under
Wisconsin law.
Discrimination
National Origin
Wrong slurs still count,
and hidden camera surveillance was retaliation: $3 million verdict.
An Ecuadorian immigrant worked as a hotel restaurant baker.
Co-workers and supervisors made ongoing hostile remarks such
as "You Mexican piece of ----" and called him other, sometimes
worse, anti-Mexican slurs.
He complained to management, then filed a complaint with the
New York State EEO agency.
Supervisors then installed a hidden surveillance camera in an
attempt to catch the employee at something to justify discharge, but
found nothing valid. He
sued under federal and state laws.
The court properly ruled that "perceived as" is a valid form
of discrimination; the employee was harassed based upon National
Origin, even if the harassers were too ignorant to get the correct
National Origin. A
special effort to "get" an employee who complained is retaliation,
and the special hidden surveillance warranted damages for emotional
distress. Finally,
there was evidence that the employer altered witness statements
during the litigation.
Two million dollars of the award was in punitive damages.
Mendez v. Starwood
Hotels & Restaurants Worldwide, Inc. (S.D. NY, 2010).
Race
White firefighters were
not discriminated against.
The law prohibits racial discrimination, no matter what race
is involved. There have
been a number of police and firefighter cases challenging promotions
as being discriminatory against White candidates.
Some of these have been successful proving improper,
invalidated decision making by the employer.
Others have shown that the White plaintiffs have attempted to
use the "race card" to try to overcome their own deficiencies (just
as members of all other races or groups have sometimes tested the
limits of the law with less-than-sufficient evidence of
discrimination). In
Stockwell v. Harvey, Illinois
(7th Cir., 2010), four White firefighters claimed that non-White
candidates were promoted while they were not, so it must have
been racial discrimination.
(There were White candidates who received
promotions--just not them.)
The court found the City's explanation of why the plaintiffs
were less qualified to be valid (including evidence that one had
vandalized a public construction project because he did not agree
with it). There was no
racial discrimination.
The plaintiffs were either less qualified or had issues which
rendered them less desirable for supervisory positions.
Disability
Court allows obesity as
perceived disability.
In Frank v. Lawrence
Union Free School District (E.D. NY, 2010), the court has
allowed an ADA case to proceed to trial on the "perceived
disability" of obesity.
A probationary math teacher, weighing 350 pounds, received good
evaluations and the recommendations for permanent appointment from
his direct supervisors and principals.
An Assistant Superintendent overruled the recommendation,
denying further employment.
The evidence showed the Assistant Superintendent had made
remarks about the teacher being "too big and sloppy" and that his
size and weight would interfere with his duties and were not
conducive to learning.
It was these comments about weight significantly impairing job
duties which led the court to believe there was a perceived
disability under the ADA.
The Assistant Superintendent's attempted defense, that the
teacher had poor performance and ineffective teaching methods, was
rejected as pure pretext in light of the uniformly good performance
evaluations and positive recommendations of several people who
regularly observed him in the classroom.
Doctor could not safely
treat patients.
A doctor, during his post-graduation internship, misdiagnosed
patients, prescribed wrong medications, prescribed ten times the
proper dosage of the correct medication, and once identified a
living patient to be dead.
He ignored directions from senior physicians and was
"extremely argumentative" when errors were discussed with him.
After diagnosis of "possible attention deficit disorder," the
doctor asked for accommodations of a significantly reduced number of
patients and a "more compassionate environment."
The hospital could not reasonably reduce the number of
patients below the level required for interns by the Accreditation
Council for Graduate Education.
A special team of doctors had already been formed to provide
coaching help with his notes and charts, and assist when he
expressed having difficulties.
The performance did not improve, and the doctor was
discharged. He sued
under the ADA for "perceived disability" discrimination.
The court dismissed the case, finding that he was not a
"qualified person with a disability;" he could not perform the work
even with accommodation.
"No reasonable jury could find that he provided safe and
appropriate care for patients."
Shir v. U. of Maryland
Medical Systems Corp. (4th Cir., 2010).
Police chief cannot use
ADA to excuse OWI and injury to other motorists.
The chief of a county police unit had an off-duty vehicle
accident which caused hospitalization of two occupants of the car he
hit. He tested three
times the legal limit for alcohol and the state suspended his
drivers license. The
county terminated employment.
The ex-chief then sued, claiming that (1) he had the
disability of alcoholism and the county should have allowed him to
seek treatment and recover rather than firing him; and (2) the
county was premature, not waiting to see if he would be convicted
for OWI. He lost on
both counts. While the
ADA does cover a "history of dependency and treatment" as a
disability, and prevents discharge just because one has a diagnosis
or history of dependency; it does not protect one from the actions
caused by active use, nor immunize an employee from violation of
rules which could cause discharge of any other employee.
The chief's OWI violated police department rules.
Driving was also an essential job function.
Without a license, he could not effectively perform the job,
and there was no reasonable accommodation.
Finally, an employer is not required to await the slow
process and greater burden of proof of the criminal judicial
process. It had
independent evidence sufficient to show violation of employment
rules and could act accordingly.
Budde v.
Safe driving concerns
warrant medical evaluation.
The ADA allows medical evaluation of employees based on
significant job-related factors.
In Kirkish v. Mesa
Imports, Inc. (D. Arizona, 2010), an employee's job involved
significant driving. A
neuropathy condition required him to take large doses of
painkillers, which might impair concentration and driving.
The company requested information from the employee's doctor.
The doctor refused to certify the employee as clearly safe to
drive. The employee was
let go for being unable to do a significant job duty.
He sued. The
court ruled that the employer had a valid safety concern, and the
medical evaluation request was justified under the ADA.
The doctor's failure to certify safety rendered the employee
unable to effectively perform the job.
FAMILY AND MEDICAL LEAVE
ACT
Layoff based on suspect
performance evaluation violates FMLA.
The law does not forbid layoff of an employee who is on FMLA
leave, if the action would have occurred anyway, had they not
been on leave. In
Cutcher v. K-Mart Corp.
(6th Cir., 2010), an employee on FMLA was part of a layoff.
The company based layoffs on performance evaluations, and her
evaluation was low.
However, the court found evidence to suspect the evaluation.
The poor evaluation was done during the employee's absence.
She had received an "exceeds expectations" evaluation just
four weeks earlier, immediately before taking FMLA leave.
Obviously, her work performance could not deteriorate while
she was not present at work.
The layoff evaluation seemed to be a pretext to eliminate a
person who had exercised FMLA rights.
FMLA eligibility can start
in middle of unqualified leave.
An employee with less than a year's service was granted a
short-term medical leave for surgery.
Medical complications resulted in the employee's not being
able to return when the short-term leave expired, and the company
terminated the employment.
However, the employee passed the one-year mark during the
original approved leave.
The court ruled that FMLA eligibility started at that point,
and the employer should have given up to 12 more weeks of extended
FMLA before discharge.
Porcillo v. Vistar Corp.
(M.D. Fla., 2010).
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