HOT TOPICS
IN THE
WORKPLACE
DallasHR Legal Round Up
September 9, 2014
Dallas, Texas
Terrence S. Welch
Brown & Hofmeister, L.L.P.
740 E. Campbell Road, Suite 800
Richardson, Texas 75081
www.bhlaw.net
“The Times They Are A-changin’.”
— Bob Dylan
There have been significant decisions by the United States Supreme Court and
other courts during the last several years that have rocked the workplace, resulting in
discarding past notions of who is, or is not, married and how same-sex couples should
be treated under the law by employers. Similarly, the federal circuit courts have wrestled
with the concept of gender discrimination, including the rights of both heterosexual and
homosexual plaintiffs to bring suit. In a different vein, and not surprisingly, there have
been a multitude of cases that address more mundane issues, from overtime
compensation under the Fair Labor Standards Act (FLSA) to obesity being considered a
disability and the ongoing battle about what constitutes a reasonable accommodation
under the ADA. There also are some unique Texas-only type of FLSA issues included
for your consideration. The purpose of this paper is to provide a broad overview of
recent cases, including “hot topics” in employment law.
I. Same-Sex Marriage and the Death of DOMA
A. United States Supreme Court Cases
The two blockbuster United States Supreme Court cases on the topic of same
sex marriage during the 2013 term of the Court were United States v. Windsor,1 and
Hollingsworth v. Perry.2 While not providing a detailed analysis of both of the cases, a
brief review is nonetheless helpful.
Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were
lawfully married in Ontario, Canada in 2007. Ms. Spyer died in 2009, leaving her entire
estate to Ms. Windsor. Ms. Windsor sought to claim the federal estate tax exemption for
surviving spouses; however, she was barred from doing so by Section 3 of the
Defense of Marriage Act (DOMA) (codified at 1 U.S.C. § 7),3 which provided that the
1
570 U.S. ___, 133 S.Ct. 2675 (2013).
2
570 U.S. ___, 133 S.Ct. 2652 (2013).
3
Section 3 of DOMA provides as follows:
In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word “marriage” means only a legal
union between one man and one woman as husband and wife, and the
word “spouse” refers only to a person of the opposite sex who is a
husband or a wife.
1 U.S.C. § 7.
1
term “spouse” only applies to a marriage between a man and woman. The Internal
Revenue Service (IRS) found that the exemption did not apply to same-sex marriages,
denied Ms. Windsor’s claim, and compelled her to pay $363,053 in estate taxes.
On November 9, 2010, a lawsuit was filed against the United States government
in the United States District Court for the Southern District of New York, where Ms.
Windsor sought a refund because DOMA singled out legally married same-sex couples
for “differential treatment compared to other similarly situated couples without
justification.” On February 23, 2011, U.S. Attorney General Eric Holder issued a
statement from the Obama administration that agreed with the plaintiff’s position that
DOMA violated the United States Constitution and said he would no longer defend the
law in court. The Bipartisan Legal Advisory Group (BLAG) of the House of
Representatives continued the defense of the law. On June 6, 2012, U.S. District Judge
Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due
process guarantees of the Fifth Amendment and ordered the federal government to
issue the tax refund, including interest.4 The Second Circuit Court of Appeals affirmed
the decision on October 18, 2012.5
BLAG and the U.S. Department of Justice (DOJ), as a nominal defendant,
appealed the decision to the U.S. Supreme Court, which granted a writ of certiorari in
December 2012. On March 27, 2013, the Supreme Court heard oral arguments and on
June 26, 2013, issued a 5–4 decision declaring Section 3 of DOMA to be
unconstitutional. The Court first held that although DOJ decided not to defend DOMA,
the government retained a stake sufficient to support Article III jurisdiction because the
unpaid refund is “a real and immediate economic injury.”6 Thus, there was a sufficient
basis for the court to entertain jurisdiction over the case. 7 DOMA was then determined
to be unconstitutional as a deprivation of the equal liberty of persons under the Fifth
Amendment. The Court noted that although the regulation of marriage has traditionally
been within the authority of the states,8 DOMA, applicable to more than 1,000 federal
4
833 F.Supp.2d 394 (S.D.N.Y. 2012).
5
699 F.3d 169 (2d Cir. 2012).
6
Windsor, 133 S.Ct. at 2686.
7
Interestingly, Justice Kennedy, writing for the majority, addressed the political nature
of this case. “The integrity of the political process would be at risk if difficult
constitutional issues were simply referred to the Court as a routine exercise. But this
case is not routine. And the capable defense of the law by BLAG ensures that these
prudential issues do not cloud the merits question, which is one of immediate
importance to the Federal Government and to hundreds of thousands of persons.
These circumstances support the Court’s decision to proceed to the merits.” Id. at
2689.
8
Id. at 2690-92.
2
statues and numerous federal regulations—such as Social Security, housing, taxes,
criminal sanctions, copyright and veterans’ benefits—was directed to a class of persons
that the laws of New York and 11 other states had sought to protect. 9 Justice Kennedy
wrote that DOMA is inconsistent with the principle that marriage laws may vary from
state to state, but are consistent within each state. “The principal purpose [of DOMA] is
to impose inequality . . . to deprive some couples married under the laws of their State,
but not other couples, of both rights and responsibilities.” 10 New York’s decision was a
proper exercise of its sovereign authority and by seeking to injure the class New York
sought to protect, DOMA violated basic due process and equal protection principles
applicable to the federal government. Constitutional guarantees of equality “must at the
very least mean that a bare congressional desire to harm a politically unpopular group
cannot” justify disparate treatment of the group. DOMA’s history and text indicated a
purpose and practical effect to impose a disadvantage, a separate status, and a stigma
upon those entering into same-sex marriages made lawful by the states. The law
deprived some couples married under the laws of their states, but not others, of rights
and responsibilities, creating two contradictory marriage regimes within the same state;
it diminished the stability and predictability of basic personal relations.11 Justice
Kennedy concluded that
[DOMA] is invalid, for no legitimate purpose overcomes the purpose and
effect to disparage and to injure those whom the State, by its marriage
laws, sought to protect in personhood and dignity. By seeking to displace
this protection and treating those persons as living in marriages less
respected than others, the federal statute is in violation of the Fifth
Amendment. This opinion and its holding are confined to those lawful
marriages.12
On the same day that the Windsor opinion was issued, the Court also issued a
second 5–4 decision in Hollingsworth v. Perry, a case related to California's
constitutional amendment initiative barring same-sex marriage. The Hollingsworth
decision effectively allowed same-sex marriages in that state to resume after the Court
ruled that the proponents of the initiative lacked the requisite Article III standing to
appeal in federal court based on its established interpretation of the case or controversy
clause.
In 2008, the California Supreme Court held that limiting the official designation of
marriage to opposite-sex couples violated the equal protection clause of the California
9
Id. at 2694.
10
Id.
11
Id. at 2693.
12
Id. at 2695.
3
Constitution.13 Later that year, state voters then passed a ballot initiative, Proposition 8,
amending the state constitution to define marriage as a union between a man and a
woman.14 Same-sex couples who wished to marry filed suit in federal court, challenging
Proposition 8 as being in violation of the Due Process and Equal Protection Clauses of
the Fourteenth Amendment to the U.S. Constitution.15 Not unlike the position taken by
the Obama Administration in Windsor, California state officials refused to defend the
law; however, the federal district court allowed the initiative’s official proponents to
intervene and the court subsequently declared Proposition 8 unconstitutional and
enjoined its enforcement.16 State officials declined to appeal but the intervenors opted
to appeal. The Ninth Circuit certified a question about Article III standing, to which the
California Supreme Court answered that the official proponents of a ballot initiative had
authority to assert the state’s interest to defend the constitutionality of the initiative when
public officials refuse to do so. The Ninth Circuit, relying on that answer, concluded that
petitioners had standing and affirmed.17 The Supreme Court vacated and remanded,
holding that the intervenors did not have the requisite Article III “case or controversy”
standing to appeal. While the Court determined the intervenors had standing to initiate
this case against the California officials responsible for enforcing Proposition 8, once the
federal district court issued its order, they no longer had any injury to redress—they had
won—and state officials chose not to appeal.18 The intervenors had not been ordered to
do or refrain from doing anything and their “generalized grievance” was insufficient to
confer standing. “Their only interest in having the District Court order reversed was to
vindicate the constitutional validity of a generally applicable California law.” 19
B. So How Is The Federal Government Responding?
Since late June, the Federal Government has been in the process of responding
to Windsor. Not surprisingly, federal regulations are being revised accordingly. Federal
guidelines have been amended as follows:
●
Federal Taxes. On August 29, 2013, in Revenue Ruling 2013-17, the
Department of the Treasury and the Internal Revenue Service (IRS) ruled that same13
In re Marriage Cases, 43 Cal.4th 757; 76 Cal.Reptr.3d 683; 183 P.3d 384.
14
Hollingsworth, 133 S.Ct. at 2659.
15
Id. at 2660.
16
Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010).
17
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).
18
Hollingsworth, 133 S.Ct. at 2662.
19
Id.
4
sex couples, legally married in jurisdictions that recognize their marriages, will be
treated as married for federal tax purposes. The ruling applies regardless of whether the
couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that
does not recognize same-sex marriage. Under Revenue Ruling 2013-17, same-sex
couples will be treated as married for all federal tax purposes, including income and gift
and estate taxes. The ruling applies to all federal tax provisions where marriage is a
factor, including filing status, claiming personal and dependency exemptions, taking the
standard deduction, employee benefits, contributing to an IRA and claiming the earned
income tax credit or child tax credit.
Any same-sex marriage legally entered into in one of the 50 states, the District of
Columbia, a U.S. territory or a foreign country will be covered by the ruling; however,
the ruling does not apply to registered domestic partnerships, civil unions or similar
formal relationships recognized under state law. Same-sex marriage partners may file
amended tax returns and choose to be treated as married for federal tax purposes for
one or more prior tax years still open under the statute of limitations. Generally, the
statute of limitations for filing a refund claim is three years from the date the return was
filed or two years from the date the tax was paid, whichever is later. As a result, refund
claims can still be filed for tax years 2010, 2011 and 2012. Some taxpayers may have
special circumstances, such as signing an agreement with the IRS to keep the statute of
limitations open, that permit them to file refund claims for tax years 2009 and earlier.
Additionally, employees who purchased same-sex spouse health insurance coverage
from their employers on an after-tax basis may treat the amounts paid for that coverage
as pre-tax and excludable from income.20
● Immigration. On July 1, 2013, Secretary of Homeland Security Janet
Napolitano issued the following statement:
After last week’s decision by the Supreme Court holding that Section 3 of the
Defense of Marriage Act (DOMA) is unconstitutional, President Obama
directed federal departments to ensure the decision and its implication for
federal benefits for same-sex legally married couples are implemented swiftly
and smoothly. To that end, effective immediately, I have directed U.S.
Citizenship and Immigration Services (USCIS) to review immigration visa
petitions filed on behalf of a same-sex spouse in the same manner as those
filed on behalf of an opposite-sex spouse.21
USCIS has done exactly that, and
visas and green cards now extend to same-sex
spouses. An FAQ issued by USCIS provides the following information about immigration and
20
Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under
State Law is found at http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questionsfor-Same-Sex-Married-Couples.
21
See http://www.dhs.gov/news/2013/07/01/statement-secretary-homeland-securityjanet-napolitano-implementation-supreme-court.
5
same-sex marriages: U.S. citizens or lawful permanent residents in a same-sex marriage can
now sponsor their spouses for a family-based immigrant visa; U.S. citizens who are engaged
to be married to a foreign national of the same sex can file a fiancé or fiancée petition;
and same-sex couples who were married in a U.S. state or a foreign country that
recognizes same-sex marriage may file an immigrant visa petition for the spouse,
because as a general matter, the law of the place where the marriage was celebrated
determines whether the marriage is legally valid for immigration purposes. Just as
USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, it
will apply all relevant laws to determine the validity of a same-sex marriage. The
domicile state’s laws and policies on same-sex marriages will not bear on whether
USCIS will recognize a marriage as valid.22
●
Family and Medical Leave Act. The U.S. Department of Labor issued its
Guidance (Fact Sheet #28F)23 in mid-August confirming that same-sex married couples
are entitled to the same benefits of the Family and Medical Leave Act (FMLA) as
heterosexual married couples. The Guidance indicates that FMLA spousal leave
entitlements extend to same-sex spouses that reside in states that recognize same-sex
marriages. DOL now defines “spouse” as “a husband or wife as defined or recognized
under state law for purposes of marriage in the state where the employee resides,
including “common law” marriage and same-sex marriage.” An employer located in a
state that does not recognize same-sex marriage does not have to grant FMLA leave to
a same-sex married employee to care for that employee’s same-sex spouse if the
same-sex married couple does not reside in a state that recognizes same-sex marriage.
There is nothing in the DOL Guidance, however, that precludes an employer from
having its own internal leave policy allowing for leave for a same-sex spouse. Until there
is further judicial review, there will be disparate treatment of same sex married couples
for FMLA leave purposes that will turn on the place of residence—DOL’s interpretation
is unique because it focuses solely on the residence of the employee and not where the
employer is located.
●
Other Federal Regulations. Below is a summary of other regulations
from the federal government about same-sex marriage:
Employees may cover their same-sex spouses under health care plans
provided by their employers without having to pay taxes on the value of
such coverage.
Same-sex spouses have full rights to continuation health care coverage
under the Consolidated Omnibus Budget Reconciliation Act (COBRA) in
22
See USCIS Frequently Asked Questions (FAQ) about Implementation of the Supreme
Court Ruling on the Defense of Marriage Act (updated on July 1, 2013), and found at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?
vgnextoid=fbfe0b8497b9f310VgnVCM100000082ca60aRCRD
23
See http://www.dol.gov/whd/regs/compliance/whdfs28a.htm.
6
the event of a participant’s termination of employment, divorce or legal
separation.
Employees may receive tax-free reimbursement under flexible spending
accounts, health reimbursement arrangements and health savings
accounts for qualified medical expenses incurred by same-sex spouses.
Same-sex spouses are entitled to the same special enrollment right under
the Health Insurance Portability and Accountability Act (HIPAA) as
opposite-sex spouses.
Same-sex spouses are entitled to a 50 percent qualified joint and survivor
annuity (QJSA) or a 75 percent qualified optional survivor annuity (QOSA)
under a participant’s pension plan, and the spouse’s consent is required to
pay pension benefits in any other form.
Same-sex spouses are entitled to a 50 percent qualified preretirement
survivor annuity (QPSA) where the participant dies prior to commencing
pension benefits, unless the spouse consents to waive the benefit.
Same-sex spouses are entitled to receive 100 percent of a participant’s
Section 401(k) account balance at death, unless the spouse consents to
another beneficiary.
Same-sex spouses are clearly eligible to receive a qualified domestic
relations order (QDRO) apportioning pension benefits upon divorce.
Same-sex spouses may roll over plan distributions to their own individual
retirement account or employer plan, rather than only being able to roll
over to an “inherited IRA” (which is subject to more restrictions).24
II. Gender Stereotyping
An issue of increasing relevance in the workplace is gender stereotyping, and
more specifically, are actions brought by gay employees under Title VII viable or are
they “lost causes”? Not surprisingly, federal courts have approached this issue
somewhat differently. In essence, a “straight” male brining a claim may have more
success than a gay man. Three recent federal appellate cases highlight this dichotomy.
As most know, Title VII prohibits discrimination based on gender stereotyping as
a form of sex discrimination; however, no federal statute prohibits discrimination based
on sexual orientation alone. Distinguishing between gender stereotyping and sexual
24
See http://about.bloomberglaw.com/practitioner-contributions/same-sex-marriageand-erisa-in-the-windsor-era/.
7
orientation is problematic, though, when the plaintiff is gay or lesbian. While no federal
court has opined that sexual orientation is protected under Title VII, some courts have
looked upon gender stereotyping claims brought by gay plaintiffs with skepticism. In
fact, the federal courts have cautiously guarded against allowing gay or lesbian plaintiffs
to use gender stereotyping claims as a means for litigating sexual orientation
discrimination claims “through the back door.”25
The Fifth Circuit’s recent en banc decision in Equal Employment Opportunity
Commission v. Boh Brothers Construction Co.,26 highlights the issue for a “straight”
male plaintiff. The plaintiff, an iron worker, alleged that his supervisor called him various
homophobic names, which are spelled out in the opinion and will not be repeated here.
The plaintiff also alleged that when he performed a task that required him to bend over,
his supervisor would approach him from behind and simulate having sex with him.
Although the supervisor viewed the plaintiff’s conduct as “kind of gay” and “feminine, he
did not perceive the plaintiff to be gay. The EEOC alleged that the supervisor harassed
the plaintiff because he “was not a manly enough man” in the supervisor’s eyes. 27
The Fifth Circuit held that the plaintiff had a viable cause of action for gender
stereotyping, based upon the Supreme Court’s 1989 Price Waterhouse decision.28 The
Fifth Circuit wrote that the supervisor’s use of sex-based epithets as well as the
supervisor’s simulation of sexual acts on the plaintiff suggested that the supervisor
viewed the plaintiff as falling outside of a “manly man stereotype.” A reasonable jury
could therefore find that the plaintiff suffered harassment because of his sex. 29
In Vickers v. Fairfield Medical Center,30 the Sixth Circuit Court of Appeals
dismissed a similar gender stereotyping claim brought by a gay man. Similar to the
plaintiff in Boh Brothers, the Vickers plaintiff alleged that he had been called derogatory
homophobic slurs by his co-workers and had been subject to simulated sex acts;
however, unlike Boh Brothers, the plaintiff’s co-workers perceived him to be gay
because of his friendship with a gay physician. In fact, the plaintiff alleged that his co25
See Stephen Trimboli, The Gender Stereotyping Paradox: Are Actions Brought by
Gay Employees Under Title VII Viable Claims or Lost Causes?, The Federal Lawyer
(Sept. 2014) at 20 (hereafter referred to as “Trimboli”).
26
731 F.3d 444 (5th Cir. 2013).
27
Trimboli at 20 (citations omitted).
28
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Trimboli at 20.
29
Boh Brothers, 731 F.3d at457; Trimboli at 20.
30
453 F.3d 757 (6th Cir. 2006).
8
workers had subject him to a slew of homophobic epithets and lewd sexual gestures
because of his perceived (and indeed, actual) sexual orientation. The Vickers plaintiff
alleged that he was a victim of gender stereotyping because his harassers allegedly
objected to “those aspects of homosexual behavior in which a male participant assumes
. . . traditionally female or less masculine roles.”31
The Sixth Circuit rejected the Vickers plaintiff’s gender stereotyping claim.
According to the Sixth Circuit, recognizing the plaintiff’s theory of the case would
effectively amend Title VII to allow sexual claims based on sexual orientation. “[I]n all
likelihood, any discrimination based on sexual orientation would be actionable under a
sex stereotyping theory . . . as all homosexuals, by definition, fail to conform to
traditional gender norms in their sexual practices.”32 The Sixth Circuit also found that
the plaintiff had failed to show that his gender nonconformance was demonstrable in the
workplace through his appearance or behavior. The plaintiff had “made no argument
that his appearance or mannerisms on the job were perceived as gender
nonconforming in some way and provided the basis for the harassment he
experienced.”33 The Sixth Circuit cited the Second Circuit’s decision in Dawson v.
Bumble & Bumble,34 a case involving a gay female employee, for the proposition that a
“gender stereotyping claim should not be used to bootstrap protection for sexual
orientation into Title VII.”
In Prowel v. Wise Business Forms, Inc.,35 the Third Circuit attempted to strike a
more balanced approach to the issue. The plaintiff, a gay machine operator, alleged that
he was called “princess” and other homophobic slurs, similar to the plaintiffs in Boh
Brothers and Vickers. The plaintiff also alleged that he was the victim of lewd sexual
jokes and gestures. In allowing the Prowel plaintiff’s claim to proceed, the Third Circuit
reasoned that a gay plaintiff could be discriminated against both for failing to conform to
gender stereotypes and for his sexual orientation, but that this dual nature should not
bar the plaintiff from proceeding with a sex discrimination claim under Title VII.36
In holding that the Prowel plaintiff could proceed with a gender stereotyping claim
under Title VII—despite the fact that his harassment involved homophobic slurs and
anti-gay sentiment—the Third Circuit reasoned: “It is possible that the harassment
31
Id. at 763; Trimboli at 21.
32
Id. at 764; Trimboli at 21.
33
Id. at 763; Trimboli at 21.
34
398 F.3d 211, 218 (2d Cir. 2005); Trimboli at 21.
35
579 F.3d 285 (3d Cir. 2009).
36
Trimboli at 21.
9
[plaintiff] allege[d] was because of his sexual orientation, not his effeminacy.
Nevertheless, this does not vitiate the possibility that [plaintiff] was also harassed for his
failure to conform to gender stereotypes.”37 Noting that the alleged harassers had made
reference to his clothing, the way he crossed his legs and filed his nails, and the way he
walked, the court observed that such remarks constituted “sufficient evidence of gender
stereotyping harassment—namely, [plaintiff] was harassed because he did not conform
to [his co-workers’] vision of how a man should look, speak, and act—rather than
harassment based solely on his sexual orientation.”38
Notably, the Third Circuit reasoned that “there is no basis in the statutory or case
law to support the notion that an effeminate heterosexual man can bring a gender
stereotyping claim while an effeminate homosexual man may not.39 Accordingly, the
Third Circuit found that the plaintiff had a viable gender stereotyping claim despite the
anti-gay nature of much of the harassment, and despite his sexual orientation.40
Unlike the plaintiffs in Boh Brothers and Vickers, the Prowel plaintiff presented
evidence suggesting that his workplace behavior differed from that of his male coworkers. The Prowel plaintiff claimed that he had a high voice and did not curse; was
well groomed and wore “dressy” clothes, carried himself in an effeminate manner; and
talked about art, music and interior design.41 The plaintiff claimed that his co-workers
reacted negatively to his demeanor and appearance, taunted him with anti- gay
epithets, left lewd drawings in the workplace, made threatening statements such as
“they should shoot all fa-s,” and accused him of having AIDS and sleeping with male coworkers.42 The allegations allowed the Prowel court to identify a viable gender
stereotyping claim separate and apart from a nonviable claim based solely on the
plaintiff’s sexual orientation.43
Until the United States Supreme Court speaks on the issue, the gender
stereotype paradox will remain. Gay and lesbian plaintiffs will face greater difficulty in
pursuing sex discrimination claims based on gender stereotyping, at least in certain
federal circuit courts, than will heterosexual plaintiffs, as the federal courts struggle to
37
Prowel, 579 F.3d at 292.
38
Id. at 291-92.
39
Id. at 292 (emphasis in original).
40
Trimboli at 21.
41
Prowel, 579 F.3d at 287.
42
Id. at 287-88.
43
Trimboli at 21.
10
distinguish actionable gender stereotyping claims from non-actionable claims based
solely on sexual orientation. Consequently, employers will face a greater likelihood of
incurring federal liability based on claims brought by heterosexual plaintiffs than those
brought by gay and lesbian plaintiffs, as counter-intuitive as that might seem. The best
defense for employers against any such claims is prevention. Harassing conduct based
on gender, including homophobic language and mistreatment based on real or
perceived “unmanly” or “unwomanly” behavior, should be prohibited, and allegations of
such conduct should be investigated and, where appropriate, remedied appropriately.44
III. New Technology and Overtime Compensation
Under the Fair Labor Standards Act and its regulations, an employer must record
and pay non-exempt employees for all hours “suffered or permitted to work,” without
regard to the reason for the work. 45 Hours worked includes time spent for the
employer’s benefit, as well as time an employee cannot otherwise effectively use as his
or her own, even if the employee is not actively engaged in performing a task. 46 There
is no such thing as “unauthorized” work; if management is aware the work is being
done, the employer must record the hours and compensate the non-exempt employee
accordingly.47 Nonetheless, in 1946 the United States Supreme Court created a “de
minimis” exception to the general rule that non-exempt employees must be paid for all
hours worked.48 Courts have noted that “[n]o rigid rule can be applied with
mathematical certainty” when determining whether work time is de minimis for purposes
of the Fair Labor Standards Act.49 Consequently, courts often employ a three-pronged
test, considering: (1) the practical administrative difficulty of recording the additional
44
Trimboli at 26.
45
29. C.F.R. § 785.11 (“Work not requested but suffered or permitted is work time. For
example, an employee may voluntarily continue to work at the end of the shift. He may
be a pieceworker, he may desire to finish an assigned task or he may wish to correct
errors, paste work tickets, prepare time reports or other records. The reason is
immaterial. The employer knows or has reason to believe that he is continuing to work
and the time is working time.”).
46
29 C.F.R. § 785.7.
47
Id.
48
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946); see also 29 C.F.R.
§ 785.47 (“In recording working time under the [Fair Labor Standards] Act, insubstantial
or insignificant periods of time beyond the scheduled working hours, which cannot as a
practical administrative matter be precisely recorded for payroll purposes, may be
disregarded.”).
49
Lidow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984).
11
time; (2) the aggregate amount of compensable time; and (3) the regularity of the
additional work.50
The analytical and regulatory emphasis on “administrative difficulty,” “industrial
realities,” and whether an employee’s working time is “practically ascertainable” in the
context of the de minimis exception should serve as a signal to employers that they
need to remain cognizant of the technological advances that are emerging to make it
easier than ever to record hours worked. The U.S. Department of Labor even has an
app to assist employees in independently tracking their hours, breaks and overtime. 51
As a consequence of new technology, more cases are being filed about alleged
entitlement to overtime compensation. A few representative cases follow:
●
Kuebel v. Black & Decker.52 The plaintiff in this putative collective action
was a Black & Decker employee whose job duties included travelling to various Home
Depot stores. Black & Decker required this employee to synch his company-issued
personal digital assistant (PDA) with Black & Decker’s server, which he would do
several times a week by plugging it into his home computer. The employee sued for
overtime compensation relating to his at-home work as well as other compensation
issues. The employee admitted he never reported the overtime being claimed (and he
thus submitted false timesheets) but testified he did so at his supervisor’s instruction.
The court ruled the actual time spent working at home could be compensable and
represented a fact issue for trial.
●
Allen v. City of Chicago.53 Plaintiff Chicago police sergeant brought a
wage-hour collective action claiming that he and other similarly-situated employees
were required to use employer-issued PDAs and other electronic communication
devices to perform work outside of normal working hours without receiving
compensation, including overtime compensation. The court denied the City’s motion to
dismiss because “whether the amount of time plaintiff worked off the clock is greater
than a de minimis amount . . . is a matter of the proof of his claim, not a matter of the
sufficiency and plausibility of his complaint.” The court questioned “the ability to treat on
a class basis the broad range of situations in which police personnel may ‘respond’ to
messages that are sent to them on PDAs, the extent to which those responses might
constitute ‘work,’ and the extent to which work might not be compensable because it is
‘de minimis.’”
50
Reich v. Montfort, 144 F.3d 1329, 1333-34 (10th Cir. 1998); Lidow, supra note 66.
51
Press Release, U.S. Department of Labor, Keeping track of wages: The US Labor
Department has an app for that! (May 9, 2011).
52
643 F.3d 352 (2d Cir. 2011).
53
2011 WL 941383 (N.D. Ill. 2011).
12
● West v. Verizon Communications, Inc.54 A personal account manager for
Verizon sought overtime compensation on behalf of herself and all similarly situated
meployees for work allegedly performed remotely using a company-issued BlackBerry.
The court denied the collective action, but in a subsequent order, the court held that
there were genuine issues of material fact whether the employee had worked the hours
claimed. The difficulty for Verizon was that it had not required such employees to keep
track of their work time nor did it track the hours these employees worked. Accordingly,
when Verizon submitted evidence of Ms. West’s hours worked in the form of a list of the
calls (incoming and outgoing) made on her BlackBerry (including the length of each call)
and a list of the call log entries made by Ms. West on the Verizon website (including
how many words each call log entry consisted of), Ms. West simply submitted her
testimony that she did not work exclusively by BlackBerry. Considering the conflicting
evidence, the court found that there was a fact issue.
Some employers have now adopted policies that explicitly require all non-exempt
employees to record all of their time worked, even if it is just checking emails on their
telephones. Such a policy also could prohibit employees from working “after hours,”
thus prohibiting employees from checking emails on their phones. If an employee
violates such a policy, the employee could be subject to disciplinary action. While this
may seem harsh, with more collective actions being authorized by trial courts, large
employers face ever increasing potential liability.
IV. Obesity as a Disability
In the Equal Employment Opportunity Commission’s (EEOC) original ADA
regulations, the EEOC determined that “except in rare circumstances, obesity is not
considered a disabling impairment.”55 Cases generally required an individual to show
some different underlying medical condition that is a disability and that causes obesity
as a “symptom.” After the adoption of the Americans With Disabilities Act Amendments
Act of 2008, the EEOC’s regulations still provide that “[t]he definition of the term
“impairment” does not include physical characteristics such as . . . weight, . . . that are
within “normal” range and are not the result of a physiological disorder.”56 Nevertheless,
it is interesting to note that the EEOC may now consider obesity a disability under the
ADAAA.
In 2010, in a case arising prior to the ADAAA, the EEOC filed a lawsuit in
Louisiana against an employer, claiming that it had terminated an employee because of
54
2009 WL 2957963 (M.D. Fla. 2009).
55
29 C.F.R. § 1630.16 App. (§ 1630.2(j), “Substantially Limits”) (Pre-ADAAA text).
56
29 C.F.R. § 1630.16 App. (§ 1630.2(h), “Physical or Mental Impairment”).
13
obesity. In a somewhat surprising ruling the federal district court sided with the plaintiff,
finding that severe obesity may qualify as a disability, regardless of the cause. 57
Lisa Harrison was slightly over five feet in height and weighed 527 pounds when
she was fired from her job in 2007 at a Louisiana drug addiction treatment center. She
had been hired in 1999 and at that time, Ms. Harrison weighed more than 400 pounds.
She contended in her EEOC charge that she was “discriminated against in violation of
the Americans with Disabilities Act (ADA), in that [she] was regarded as having a
disability.” Ms. Harrison passed away on November 1, 2009, and the official cause of
death listed on her death certificate was morbid obesity. Additionally, her death
certificate listed hypertension, diabetes and congestive heart failure as other “significant
conditions contributing to death.” While the court noted that Ms. Harrison was a qualified
individual with a disability under the ADA, it noted that she “was severely obese, which
is an impairment under the ADA [and] she was actually disabled as a result of her
severe obesity because of the resulting diabetes and heart problems.”
Additionally, there was evidence that Ms. Harrison “was regarded by Defendant as
being substantially limited in the major life activities of walking, being mobile, and
working,” and the court noted there was “sufficient evidence that supports the notion
that [Defendant] regarded her as disabled based upon her supervisor's comments.”
The key contested issue for trial was whether Ms. Harrison's disability was the cause of
her termination from Family House.58 What is noteworthy about this case was that the
EEOC filed suit on Harrison’s behalf and took an expansive view of obesity as a
disability.
Not surprisingly, after the ADAAA’s effective date in 2009, the “regarded as”
prong of a disability claim based on obesity is now an easier threshold than under preADAAA case law. In Lowe v. American Eurocopter,59 a federal district court in
Mississippi held that an obese receptionist, who alleged that her weight affected her
ability to walk, could proceed with her “regarded as” having a disability claim 60 because
her former employer harassed her based on her use of disabled parking. She also
alleged that (i) her weight affected the major life activity of walking (she was “unable to
park and walk from the regular parking lot”); and (ii) her “[e]mployer was informed of this
57
EEOC v. Resources for Human Development, 2012 WL 669435 (E.D. La. 2012).
58
Id.
59
2010 WL 5232523 (N.D. Miss. 2010).
60
Under the ADA, as amended, a disability is “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). A “qualified individual with a disability” is “an individual with a disability who,
with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
14
situation [referring to her obesity and her inability to walk from the regular parking lot].”
The Court read this allegation as an attempt by the plaintiff “to show that her employer
regarded her as having such a disability.” The court noted that under the ADAAA, an
individual is now not required to demonstrate that the disability she is regarded as
having is an actual qualified disability under the ADA or that it substantially limits a
major life activity61; rather, the ADAAA requires a plaintiff to only show “that he or she
has been subjected to an action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” Thus, a plaintiff now might be considered
disabled due to obesity under the ADA if an employer perceived the employee’s weight
as an impairment.62
V. Is It a Reasonable Accommodation for Fern to Sit in a Plastic
Lawn Chair for Half of Her Shift?
Since the focus of any disability inquiry no longer rests on the interpretation of
whether an individual is disabled, but instead whether (i) employers have complied with
their statutory obligations and (ii) discrimination has occurred, the safer course is to
assume that all employees suffer from no disabilities and if indeed there is an
impairment, assume the ADA applies and the employee qualifies for some sort of
reasonable accommodation. The purpose of the ADAAA, in part, was to broaden the
restrictive definitions that often had been judicially imposed, of course including the
Sutton trilogy63 of Supreme Court cases. As a consequence, in the cases determined to
date, few defendants have been successful. One notable exception is EEOC v. Eckerd
Corp.64
Fern Strickland began working as a cashier at Eckerd’s in 1992. In 2000, Ms.
Strickland transferred to a different Eckerd’s store, where she continued to work as a
cashier. Rite Aid purchased the Eckerd Corporation in June 2007, and Ms. Strickland
worked as a cashier for the Rite Aid store from the date of the acquisition until she was
terminated on January 29, 2009.
Ms. Strickland was diagnosed with osteoarthritis in both of her knees in June
2001. Her condition made it difficult for her to walk without the assistance of a cane or
61
See 42 U.S.C.A. §§ 12101(1)(C), (3).
62
Id.
63
The three “Sutton trilogy” cases are Sutton v. United Airlines, Inc., 527 U.S. 471
(1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); and Albertson’s, Inc.
v. Kirkingburg, 527 U.S. 555 (1999).
64
2012 WL 2726766 (N.D. Ga. 2012).
15
to stand for prolonged periods of time. At some point in 2001, Ms. Strickland began
intermittently sitting in a chair at work to relieve pain in her knees, having knee
replacement surgery in her right knee in 2006. Her knee pain nevertheless persisted
and she continued to use the chair at work.
In March 2008, Larry Frisbie became the district manager of the Rite Aid store.
Several months later, Mr. Frisbie and Human Resources Manager Linda Sheffield
visited the store and observed Ms. Strickland sitting in a plastic lawn chair behind the
counter. Ms. Sheffield was perplexed by this observation because Rite Aid generally did
not permit cashiers to sit while they were on duty and she had never seen a cashier
sitting in this manner. According to Mr. Frisbie, cashiers were required to productively
work on the sales floor stocking, cleaning and performing other housekeeping and
general store duties when they did not have a customer at the register.
When Mr. Frisbie and Ms. Sheffield asked Ms. Strickland why she was sitting
behind the counter, Ms. Strickland informed them that she had provided Rite Aid a
doctor’s note concerning her need to use the chair at work. Following the store visit, Ms.
Sheffield checked Ms. Strickland’s file for a doctor’s note and found one from January
2007. The note stated that Ms. Strickland “requires a stool or chair to sit in at work . . .
throughout the day, and most of the day due to severe arthritic symptoms.”
After reviewing the note and speaking with Ms. Strickland, Ms. Sheffield determined that
she needed more information about Ms. Strickland’s limitations as well as her work
habits and ability to meet the requirements of the cashier position.
Upon further investigation, Ms. Sheffield was informed by the store manager,
Robin Jean, that Ms. Strickland had been permitted to sit intermittently and at her
discretion for several years due to her arthritic symptoms; however, Ms. Sheffield did
not find any evidence that Eckerd or Rite Aid had ever formally approved a sitting
accommodation for Ms. Strickland. Moreover, Ms. Sheffield surmised from her interview
with Ms. Jean that Ms. Strickland’s frequent sitting was causing productivity and
personnel problems for the store.
Based on her preliminary inquiries, Ms. Sheffield concluded that the 2007
doctor’s note was outdated and vague concerning Ms. Strickland’s precise limitations.
Accordingly, Ms. Sheffield requested an updated and more specific doctor’s note
regarding Ms. Strickland’s medical restrictions. Per Ms. Sheffield’s request, Ms.
Strickland provided a doctor’s note in December 2008 stating that she “requires a chair
at checkout and limited to 15 minutes or less at a time due to osteoarthritis.” In an
accompanying handwritten note, Ms. Strickland indicated that “Dr. Ellis’s nurse ‘Allison’”
could provide more information if necessary. In addition to requesting an updated
doctor’s note, Ms. Sheffield asked Rite Aid Loss Prevention Manager Gibson to review
security surveillance tapes over the register to determine how much time Ms. Strickland
spent sitting idly and how much time she spent working productively. By mid-January
2009, Mr. Gibson had reviewed four days of video footage from the first week of
January 2009 and he reported to Ms. Sheffield that, on those four days, Ms. Strickland
was sitting down idly for about half of her shift. A loss prevention associate reviewed
16
two additional days of tape and reported similar findings.
After reviewing the updated doctor’s note and the loss prevention reports, Ms.
Sheffield determined that she and Mr. Frisbie needed to meet with Ms. Strickland to
determine whether they could find an appropriate accommodation for her. They
scheduled a meeting with Ms. Strickland on January 15, 2009. The stated purpose of
the meeting was for Ms. Sheffield and Mr. Frisbie to engage in an interactive dialogue
with Ms. Strickland so that they could better understand her restrictions and try to
identify reasonable accommodations. During the meeting, Ms. Sheffield and Mr. Frisbie
advised Ms. Strickland that they had received an updated doctor’s note, but that the
note still was unclear about Ms. Strickland’s limitations. They also informed Ms.
Strickland about the results of the loss prevention surveillance review indicating that Ms.
Strickland was sitting down idly for about half of her shift. At some point in the meeting,
Ms. Sheffield and Mr. Frisbie asked Ms. Strickland about the permanency of her
requested sitting accommodation. Ms. Strickland responded that she would likely need
the accommodation forever.
Shortly after the January 15 meeting, Ms. Strickland provided Ms. Sheffield and
Mr. Frisbie a new note from her doctor stating that she “needs to sit at least 30 minutes
per hour worked throughout the work day.” The new note was consistent with the
amount of time that Ms. Strickland had been observed to be sitting idly on video
surveillance tapes; however, the note did not provide a rationale for the half-time sitting
restriction or a more specific assessment of Ms. Strickland’s limitations, as requested by
Ms. Sheffield and Mr. Frisbie. Based on their most recent discussions with Ms.
Strickland and the new doctor’s note, Ms. Sheffield and Mr. Frisbie concluded that they
still needed more information about Ms. Strickland’s restrictions and needs to identify a
reasonable accommodation.
On January 19, 2009, Ms. Sheffield faxed a written cashier job description to Dr.
Ellis and asked him to review it to ensure that Ms. Strickland was medically capable of
performing the essential functions of the job. The purpose of Ms. Sheffield’s request
was to determine whether Ms. Strickland’s doctor could recommend any
accommodation other than the “very restrictive 50% sitting accommodation” requested
by Ms. Strickland and indicated by the doctor’s most recent note. Dr. Ellis never
responded to Ms. Sheffield’s job description inquiry and Ms. Strickland admitted that
she never asked Dr. Ellis to provide the requested information or otherwise followed up
to see if he had responded to Ms. Sheffield’s inquiry.
Within the next several days, Ms. Sheffield concluded that Rite Aid could not
provide Ms. Strickland with the sitting accommodation that she had requested. Mr.
Frisbie, as well as Ms. Sheffield’s direct supervisor, concurred. Mr. Frisbie and Ms.
Sheffield met with Ms. Strickland on January 29, 2009, to tell her that Rite Aid would not
allow her to sit for half of each hour that she worked. Per Ms. Sheffield’s
recommendation and accommodation decision, Ms. Strickland was not permitted to
continue working on January 29, 2009, and Ms. Strickland was terminated on that date.
17
In her lawsuit (filed on her behalf by the EEOC), Ms. Strickland contended that (i)
she was not provided a reasonable accommodation for her disability, and (ii) was then
terminated on account of her disability, in violation of the ADA. To prevail on her
reasonable accommodation claim, Ms. Strickland was required to prove that she had a
disability (which was assumed here) and that she was qualified for the Rite Aid cashier
position. She also had to prove that the defendant failed to provide a reasonable
accommodation for her disability. For the defendant to avoid liability, it was required to
show that Ms. Strickland’s accommodation would impose an undue hardship on its
business or operations. Not surprisingly, the defendant contended that Ms. Strickland
was not a qualified individual because she could not perform the essential functions of
the cashier position, either with or without a reasonable accommodation. Moreover, the
defendant asserted that Ms. Strickland’s requested accommodation of sitting for half of
every hour she worked would impose an undue hardship on its business.
The court determined there was no question that the cashier job at issue here
had significant physical requirements and that the defendant’s written job description for
the cashier position included several customer service and housekeeping duties that
are physically demanding, including unloading merchandise, stocking shelves and endcaps, building merchandise displays, and ensuring that the store is always clean and
visually pleasing. To accomplish those duties, the job description specified that cashiers
must be able, among other things, to (1) regularly stand dynamically for long periods of
time without a break, (2) regularly walk about, (3) occasionally stand statically for long
periods of time without a break, and (4) occasionally lift and carry up to fifty pounds.
Consistent with the written job description, the store manager and district manager
testified that cashiers were expected to productively work on the sales floor, rather than
sit idly, when they did not have a customer at the register. According to Mr. Frisbie,
cashiers spent much of their time at work walking customers to a department, cleaning,
stocking shelves, unloading trucks, implementing price changes and performing other
inventory duties throughout the store. For that reason, cashiers were not permitted to sit
while on duty and they were expected to stay busy doing tasks that generally required
movement around the store.
The court, crediting Ms. Strickland’s testimony and her doctor’s assessments,
wrote that Ms. Strickland did not meet the physical requirements described in the written
job description, and could not perform many of the tasks identified by her employer as
essential, without an accommodation. The determinative question was whether Ms.
Strickland could perform the essential job functions with a reasonable accommodation,
and the court wrote that the EEOC had not met that burden with respect to Ms.
Strickland.
The only accommodation that Ms. Strickland ever identified was to be allowed to
sit in a chair for at least half of her work day and the EEOC did not explain how sitting
idly for half of the work day would enable Ms. Strickland to (1) work productively on the
sales floor when there is not a customer at the register, or (2) meet the physical
demands required to assist with truck unloads and perform regular stocking, cleaning
and inventory-related duties. In fact, the court wrote that the sitting accommodation
18
would simply eliminate, rather than enable Ms. Strickland to perform, many of the
essential functions of the cashier job and that the proposed accommodation was per se
unreasonable.
The EEOC also argued that the accommodation was nevertheless required by
the ADA because Ms. Strickland had been allowed to sit for the last eight years of her
employment without incident. The defendant conceded that Ms. Strickland began using
a chair intermittently at work in 2002, but during the first five years that Ms. Strickland
was allowed to sit, her store was operating as an Eckerd rather than as a Rite Aid.
When Rite Aid purchased Eckerd in 2007, it reduced the payroll budget and
correspondingly increased the expectations of its cashiers. Assuming that the sitting
accommodation was reasonable for an Eckerd cashier, it was not necessarily feasible
once the store became a Rite Aid, as evidenced by the fact that Mr. Frisbie and Ms.
Sheffield began questioning Ms. Strickland about her sitting within about a year of the
acquisition. In any case, the court wrote, it is well-settled that an employer’s previous
willingness to provide a certain accommodation does not establish that the
accommodation is reasonable or required. Additionally, the EEOC contended that the
functions that Ms. Strickland was unable to perform were not essential because she
was not personally asked to do them during the last several years of her employment.
On this point, the store manager testified that she exempted Ms. Strickland from any
physically demanding tasks and that she allowed her to sit frequently during the work
day. The court determined that as with any other type of voluntary accommodation, an
employer does not concede that a job function is unessential by temporarily removing
the function from a disabled employee’s duties.
Finally, the last effort by the EEOC was to suggest that the defendant was liable
under the ADA as a result of its failure to discuss alternative accommodations that might
have enabled Ms. Strickland to perform the essential functions of her job. The court
disposed of this contention summarily, holding the Eleventh Circuit has held that an
employer has no affirmative duty even to engage in an interactive process where the
disabled employee fails to identify a reasonable accommodation—the only
accommodation that Ms. Strickland identified during her employment with the defendant
was per se unreasonable. The court wrote that “[e]ven now, neither Strickland nor the
EEOC can point to any accommodation that would enable Strickland to perform the
essential functions of the cashier job. Given Strickland’s acknowledged physical
limitations, it is doubtful that any such accommodation exists.” To the extent that the
ADA required an interactive process in this case, it was determined that the defendant
clearly met its burden in that regard—Mr. Frisbie and Ms. Sheffield conducted an
investigation during which they gathered information from various sources concerning
Ms. Strickland’s condition, her work habits, and her ability to perform the cashier job in
spite of her physical limitations. They subsequently met with Ms. Strickland several
times, at least once with the express purpose of identifying and discussing potential
accommodations. Having fully engaged in a dialogue with Ms. Strickland about her
limitations and ability to be accommodated, the court wrote that the defendant was not
liable under the ADA for failing to consider accommodations that Ms. Strickland herself
never identified or requested.
19
Based on the foregoing, the district court concluded that the sitting
accommodation requested by Ms. Strickland was not only unreasonable, it was patently
incompatible with the essential functions of the cashier job as identified by management
and routinely performed by every other cashier except Ms. Strickland. It was undisputed
that Ms. Strickland never identified an alternative reasonable accommodation, and there
was no indication that such an accommodation exists. Accordingly, Ms. Strickland was
not a “qualified individual” under the ADA.
The court next addressed the “undue hardship” defense. An accommodation is
an undue hardship when it can only be accomplished with “significant difficulty or
expense” to the employer.65 To determine whether that is the case, a court considers
several factors, including the nature and cost of the accommodation and its impact on
an employer’s operations and workforce.66 Accommodations that result in other
employees having to work harder or longer are often denied on the ground of undue
hardship.67
The EEOC acknowledged that Rite Aid operates on a lean staffing model. There
are generally only one or two cashiers and a store manager or other supervisor on duty
during any given shift. In addition to checking out customers at the register, cashiers are
responsible for a number of other customer service and housekeeping duties, including
unloading merchandise, stocking shelves, cleaning, working in the photo lab, and
assisting customers with their shopping needs. To fulfill those duties, cashiers are
expected to productively work on the sales floor any time they do not have a customer
at the register. The court noted that given the defendant’s business model, having a
cashier sit idly for half of her shift would necessarily cause productively and morale
issues. In fact, there was undisputed evidence that Ms. Strickland’s sitting interfered
with the defendant’s operations in a number of ways. Ms. Strickland admitted that she
(1) did not work in the photo lab, (2) only mopped the floor two or three times during her
entire Eckerd/Rite Aid employment, and (3) helped stock only a small fraction of the
store, and there was testimony that other Rite Aid employees became frustrated by Ms.
Strickland’s low productivity.
The EEOC countered that the sitting accommodation was essentially cost-free
because Ms. Strickland purchased her own chair, and that the defendant can easily
absorb any impact associated with the accommodation because it is a large corporation
with over 4,700 stores and 80,000 employees. The court held that these arguments
65
See 42 U.S.C. § 12111(10)(A).
66
Id. at § 12111(10)(B).
67
See Dey v. Milwaukee Forge, 957 F.Supp. 1043, 1052 (E.D. Wis. 1996) (“An
accommodation that would result in other employees having to work harder or longer is
not required under the ADA”); and Pate v. Baker Tanks Gulf S., Inc., 34 F.Supp.2d 411,
417 (W.D.La.1999)(holding same).
20
failed to account for the true cost of the accommodation and its impact on the particular
store where Ms. Strickland worked. Every employee, including Ms. Strickland, testified
that the cashier job required frequent movement throughout the store in order to
accomplish a variety of tasks that are essential to the operations of the store. At any
given time, there were only one or two cashiers who are available to perform the
required work. While Ms. Strickland was sitting, the work was either being done solely
by one person or not being done at all. The court wrote that the defendant’s size does
not ameliorate the impact of that arrangement on the productivity and morale of the
specific store. Therefore, the requested sitting accommodation met the definition of
“undue hardship” under the ADA.
VI. Plaintiffs Almost Always Get Their ADA Day in Court
The news for plaintiffs is much better. Although Rite Aid ultimately prevailed in
the district court, courts around the nation have been far more sympathetic to plaintiffs,
at least allowing them to have their day in court to attempt to prove some sort of
disability discrimination. Again, many cases are unreported, but do serve to show that
courts are far more sympathetic to plaintiffs’ disability discrimination claims after the
ADAAA than before its adoption.
In LaPier v. Prince George’s County,68 Steven LaPier began training as a
student officer at the Police Department sometime in October 2008. Mr. LaPier alleged
in his lawsuit that he witnessed “what he considered inappropriate and unprofessional
conduct by the police instructors” from the “very first day of the Academy.” He alleged
various examples of this conduct— e.g., the instructors’ use of “foul language”; the
instructors’ forcing the cadets to fold clothes for weeks; an instructor’s punching a hole
in a wall and “telling” a cadet to pay for it; and the instructors’ forcing students to change
in a parking lot “at some point during the winter months.” Although Mr. LaPier alleged
that he and other student officers were subjected to “demeaning and dehumanizing
treatment” on a daily basis, he alleged no details regarding such treatment. He also
alleged that he communicated these concerns to Major David Morris who, at some
point, communicated them to “appropriate personnel” at the Department.
On April 9, 2009, Mr. LaPier passed out during a training run. One or more
doctors diagnosed him with Osler–Weber–Rendu syndrome, which is a chronic blood
disorder that causes decreased oxygen in the blood. Mr. LaPier resumed his normal
training activities after a weeklong period during which his doctors advised him to
perform only light work. In a letter dated May 5, 2009, one of Mr. LaPier’s doctors
informed the County that Mr. LaPier was fit to resume normal training activities.
The County’s Medical Advisory Board (MAB) met on June 4, 2009. The MAB
reviewed Mr. LaPier’s medical records, determined him to be unfit for duty, and
recommended his separation from the Police Department. The Police Chief advised Mr.
68
2012 WL 1552780 (D. Md. 2012).
21
LaPier of the Board’s recommendation in a letter that the Chief signed on June 9, 2009,
and delivered on June 18, 2009. Mr. LaPier appealed to the County Personnel Board
the MAB’s recommendation that the Chief terminate him. Mr. LaPier was represented
by legal counsel during this appeal and was permitted to produce witness testimony on
his behalf. Mr. LaPier also alleged that the Personnel Board made a decision and
transmitted it to the County’s law office for review, but that the County’s law office
unjustifiably failed to permit the Personnel Board’s decision to issue.
On June 17, the day before Mr. LaPier received the termination letter, he learned
of a cheating scandal in which instructors were spoon-feeding exam answers to police
cadets. Apparently, on the same day, Mr. LaPier informed Major Morris of his discovery,
who in turn informed the Chief.
On October 14, 2010, Mr. LaPier filed a complaint containing six counts. While
not addressing the civil rights violations alleged by Mr. LaPier in his lawsuit, he asserted
a claim for violations of the ADA and ADAAA, along with a claim for violation of the
Rehabilitation Act of 1973.
In brief, the County argued that Mr. LaPier was not a qualified individual with a
disability under the ADAAA. An individual can show that he is disabled in three ways,
only two of which are relevant to this case, under the ADAAA. An individual can show
that he suffers from “a physical . . . impairment that substantially limits one or more
major life activities of such individual.” 69 Alternatively, an individual can show that his
employer regarded him as having such an impairment.70
Under the ADAAA, the court noted that an individual has an actual disability
where he suffers from a physical impairment that substantially limits at least one major
life activity.71 One can divide this definition of disability into three prongs: (1) whether
someone suffers from a physical impairment; (2) whether the physical impairment limits
at least one of the person’s major life activities; and (3) whether such limitation is
substantial.
In this case, the court determined that Mr. LaPier had adequately alleged that he
had a physical impairment—a chronic blood disorder. Further, the court wrote that Mr.
LaPier had sufficiently stated that this impairment limited a major life activity. The
ADAAA defines “major life activities” to include “breathing,” as well as “respiratory” and
“circulatory” functions.72 Here, Mr. LaPier had alleged that he passed out on account of
69
42 U.S.C. § 12102(1)(A).
70
Id. § 12102(1)(C).
71
See id. § 12102(1)(A).
72
Id. § 12102(2)(A)-(B).
22
a chronic blood disorder that causes decreased oxygen in the blood, and at a minimum,
the court noted that this event would seem to implicate breathing, respiration, and/or
circulation.
Therefore, the only question for the court was whether Mr. LaPier had
satisfactorily stated that his blood disorder “substantially” limited a major life activity. As
the court noted, the ADAAA does not define the phrase “substantially limits.” In an
attempt to fill this gap, the court reviewed the ADAAA’s legislative history and concluded
that “although the [ADAAA] evinces Congress’s intent to lower the threshold for
demonstrating a disability, the impairment’s severity must rise above a floor of material
restriction.”
Here, at a minimum, the court determined that Mr. LaPier had suitably asserted
that his blood disorder substantially limited the major life activities of breathing,
respiration, and/or circulation. “To reiterate, Plaintiff alleges that he suffers from a
chronic blood disorder that, inter alia, causes decreased oxygen in the blood. Plaintiff
maintains that he has experienced ‘bleeding events’ from his adolescence. Plaintiff
further avers, and Defendants do not dispute, that Plaintiff lost consciousness during a
training activity. In light of these allegations, it is plausible that Plaintiff’s blood disorder
limits his ability to engage in major life activities (e.g., breathing) compared to most
people in the general population. Anything less would make a mockery of the ADAAA’s
mandate that ‘[t]he definition of disability in this chapter shall be construed in favor of
broad coverage of individuals under this chapter, to the maximum extent permitted by
the terms of this chapter.’”73 Accordingly, the court held that Mr. LaPier had stated a
cognizable claim for actual disability.
The next issue addressed by the district court related to Mr. LaPier’s allegation of
a perceived disability. The ADAAA provides that disability means being “regarded as”
having an impairment that substantially limits at least one major life activity. 74 An
employee may satisfy this definition by showing that his employer subjected him to
discrimination “because of a . . . perceived . . . impairment whether or not the
impairment limits or is perceived to limit a major life activity.”75 Here, Mr. LaPier alleged
that the County perceived him as disabled because he provided the County with
medical documentation of his blood disorder and the County relied on such
documentation in determining him to be physically unfit for duty. The County did not
dispute these assertions.
Instead, the County contended that Mr. LaPier’s blood disorder was “transitory
73
See 42 U.S.C. § 12102(4)(A); see also 29 C.F.R. § 1630.2(j)(1)(i) (“‘Substantially
limits’ is not meant to be a demanding standard.”).
74
See 42 U.S.C. § 12102(1).
75
Id. § 12102(3)(A).
23
and minor” and, therefore, did not fall under the ADAAA’s “regarded as” definition of
disability.76 The court wrote that the foregoing discussion, however, demonstrated that
Mr. LaPier had adequately alleged that his blood disorder was more than minor.
Moreover, the ADAAA defines “transitory impairments” as those with “an actual or
expected duration of 6 months or less.”77 In this case, by contrast, Mr. LaPier
maintained that he has suffered from his blood disorder since he was an adolescent.
Therefore, the court determined that the County’s argument was without merit and that
Mr. LaPier had stated a cognizable claim for perceived disability.
Alternatively, the County contended that Mr. LaPier had failed to state a prima
facie case for disability discrimination. In this case, as the court explained, Mr. LaPier
had suitably asserted that he came within the ADA’s protected class because he had
stated a cognizable claim that he is disabled under the ADAAA. Although Mr. LaPier’s
allegations were “somewhat sparse,” they sufficed to state that Mr. LaPier was
performing at a level that met the County’s legitimate expectations. Nevertheless, in
light of these admittedly sparse allegations, the court held that Mr. LaPier had stated a
facially plausible claim that he can satisfy the elements of a prima facie case. The court
also held that because Mr. LaPier had stated a cognizable claim for disability
discrimination under the ADAAA, “it forcibly follows that he has stated a cognizable
claim for disability discrimination under the Rehabilitation Act.”
VII. Recent ADA Cases: Mostly Victories for Plaintiffs
Below is a listing of cases where plaintiffs generally have been successful, at
least by “lowering the bar” to survive motions to dismiss and other pleas.
●
Gibbs v. ADS Alliance Data Sys.78 The court denied defendant’s motion
for summary judgment and held that carpal tunnel syndrome that is debilitating in one
hand may constitute a disability under the ADAAA. The court stated that under the new
law, “Congress intended to convey that the question of whether an individual’s
impairment is a disability under the ADA should not demand extensive analysis and that
the primary object of attention in cases brought under the ADA should be whether
entities covered under the ADA have complied with their obligations.”
●
Kinney v. Century Services Corp.79 Plaintiff had isolated bouts of
depression, which was debilitating when active, but did not impact her work
performance when it was inactive. The district court denied defendant’s motion for
76
See id. § 12103(3)(B).
77
Id.
78
2011 WL 3205779 (D. Kan. 2011).
79
2011 WL 3476569 (S.D. Ind. 2011).
24
summary judgment and held that although intermittent depressive episodes were clearly
not a disability prior to the ADAAA’s enactment, plaintiff’s depression raised a genuine
issue of fact as to whether she is a qualified individual under the Amendments Act.
●
Feldman v. Law Enforcement Assoc.80 One plaintiff had episodic multiple
sclerosis and the other plaintiff had TIA, or “mini-stroke.” The court found that the
multiple sclerosis was clearly a disability under the ADAAA since the statute specifically
states that “an impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active.” In addition, the recent EEOC
regulations for the Amendments Act specifically list MS as a disability. As to the plaintiff
suffering from TIA, the court held that “while the duration of [plaintiff’s] impairment may
have been relatively short, the effects of the impairment were significant”, and therefore,
he also alleged sufficient facts at the initial stage of the case.
●
Chamberlain v. Valley Health Sys.81 Plaintiff adequately alleged that she
was “regarded as” disabled as a result of her visual field defect which made fine visual
tasks more difficult. The court denied summary judgment and held that the issue of
whether the employer believed that plaintiff’s impairment “was both transitory and minor
must be decided by a jury” given that plaintiff submitted an affidavit stating that one of
her supervisors insisted that plaintiff was completely unable to work as a result of her
vision problem.
●
Cohen v. CHLN, Inc.82 Plaintiff alleged that he suffered from debilitating
back and leg pain for nearly four months before his termination. The court denied
summary judgment and held that under the less restrictive standards of the ADAAA,
plaintiff has offered sufficient evidence to raise an issue of fact as to whether he was
disabled at the time of his termination. While defendant claimed that his condition was
of too short a duration, the court disagreed and found that the ADAAA mandates no
strict durational requirements for plaintiffs alleging an actual disability.
●
Norton v. Assisted Living Concepts, Inc.83 The court denied summary
judgment and held that renal cancer qualified as a disability under the ADAAA. The fact
that plaintiff’s cancer was in remission when he returned to work is of no consequence
since there is no dispute that renal cancer, “when active,” constitutes a physical
impairment under the statute. Moreover, cancer, when active, substantially limits the
major life activity of normal cell growth, as defined by the statute and the EEOC
80
779 F.Supp.2d 472 (E.D.N.C. 2011).
81
781 F.Supp.2d 305 (W.D. Va. 2011).
82
2011 WL 2713737 (E.D. Pa. 2011).
83
786 F.Supp.2d 1173 (E.D. Tex. 2011).
25
regulations regarding the Amendments Act. See also Meinelt v. P.F. Chang’s China
Bistro, Inc.84
●
Coffman v. Robert J. Young Co., Inc.85 A copy center operator (and 15year employee) was seriously injured in a non-work related accident. She was placed
on FMLA leave and subsequently received both short-term and long-term disability
benefits. Even though she was given a “return to work” date with certain lifting
limitations, she was terminated because (1) she could not perform the tasks of her
position, (2) the company needed to fill the position and (3) “due to [her] long term
disability.” The court held that the plaintiff had sufficiently pleaded a physical impairment
that substantially limited the major life activity of working and the defendant had
terminated her employment as a result of her impairment.
●
Rico v. Xcel Energy, Inc.86 Plaintiff suffered a work-related back injury as
an apprentice lineman and after surgery, he returned to work with “modest lifting
restrictions” and “no utility pole climbing.” He subsequently requested a transfer, which
was denied, where he would not lift or climb poles. Instead, he was recommended for
long-term disability benefits and terminated, and he applied for an open position in
competition with other job applicants. He was offered a lower-paying job with a loss of
seniority. Plaintiff’s allegations of a violation of the ADA, as amended by the ADAAAA,
withstood a motion to dismiss because plaintiff sufficiently pleaded he was disabled.
●
Harty v. City of Sanford.87 After having received knee injuries and a 40%
disability rating from the VA while in the Navy, plaintiff accepted a job with the city as an
equipment operator. After a pre-employment physical, it was determined that he could
perform all essential job functions. After 2 weeks on the job, he applied for and was
offered a foreman’s job, with no additional fit-for-duty examination being conducted. He
injured his knee while assisting a bricklayer and was placed on light duty. After returning
to work full-time with restrictions on squatting, kneeling, running and jumping, among
others, a fit-for-duty evaluation was performed, and it was determined that he could not
perform all of the essential functions of a foreman and he was terminated. The
employer’s motion for summary judgment was denied because there was evidence the
plaintiff was disabled and a qualified individual who could perform essential job
functions.
84
2011 U.S. Dist. LEXIS 57303 (S.D. Tex. 2011) (denying summary judgment where
plaintiff had an operable brain tumor).
85
2011 WL 2174465 (M.D. Tenn. 2011).
86
893 F.Supp.2d 1165 (D.N.M. 2012).
87
2012 WL 3243282 (M.D. Fla. 2012).
26
●
Johnson v. Farmers Ins. Exchange.88 Under the broad definition of
disability in the ADAAA, the plaintiff’s allegations that she suffered from sleep apnea
were sufficient to state a claim that she had a disability that substantially limited a major
life activity. As a consequence, the defendant’s motion to dismiss was denied.
●
Farina v. Branford Bd. of Educ.89 Since the ADAAA lowered the threshold
requirement to establish a disability, and specifically included lifting as a major life
activity, “it is possible that even a relatively minor lifting restriction could qualify as a
disability within the statute.” In this case, the lawsuit of a tenured elementary school
teacher who had substantial performance issues and was often tardy to work did not
survive a motion for summary judgment because of factual insufficiencies in her
pleadings.
●
Phelps v. Balfour Commemorative Brands, Inc.90 Although the plaintiff
alleged she suffered from arthritis, bursitis, obesity, tendonitis, diabetes and anemia and
was often sick and hospitalized, she made no factual statements as to the nature of her
disability and did not show that her impairment substantially limited one or more major
life activities. Consequently, she failed to establish a prima facie case for discrimination
and also could not show a failure to accommodate a disability.
●
Fierro v. Knight Transportation.91 Terminated truck driver requested that
he not be sent over-the-road because of important medical appointments and that he be
granted leave from work to seek medical attention. The plaintiff alleged that he had
adenoid cystic carcinoma, a form of cancer, but failed to plead any facts giving rise to
an inference that his cancer substantially limited one or more major life activities. He
also failed to plead sufficient facts regarding the timing of his termination relative to his
alleged cancer as well as facts that his employer had notice of the disability and failed to
accommodate; however, the plaintiff did plead sufficient facts that he was perceived by
his employer to have cancer, thus stating a cause of action for discriminatory discharge.
●
Nayak v. St. Vincent Hospital and Health Care Center, Inc.92 Hospital
OB/GYN resident delivered one of two twins (one passed away during pregnancy) and
experienced serious post-partum difficulties. Her contract was not renewed and she
alleged it was a result of her pregnancy complications. The court determined the
88
2012 WL 95387 (W.D. Okla. 2012).
89
2010 WL 3829160 (D. Conn. 2010).
90
2013 WL 653542 (W.D. Ky. 2013).
91
2012 WL 4321304 (W.D. Tex. 2012).
92
2013 WL 121838 (S.D. Ind. 2013).
27
resident had sufficiently pleaded a plausible claim for disability discrimination but had
not adequately pleaded a “regarded as” disabled claim of discrimination.
VIII. Special Issues for Public Sector Public Safety Employers
Not surprisingly, the human resources landscape for public sector employers is
sometimes vastly different than that for private sector employers. This section of the
paper will address several, but certainly not all, of these differences. In a shameless act
of self-promotion, please refer to a law review article I authored on this topic, A Primer
on Texas Public Employment Law, found in 56 Baylor Law Review 981 (Fall 2004).
A. Texas Public Safety Employees—Overtime
Chapters 141 and 142 of the Texas Local Government Code provide unique
challenges for local governments, due in large part to the difficulty in understanding the
wording and intricacies of the language and the reliance upon other statutes referenced
therein, such as the Fair Labor Standards Act and the Texas Code Construction Act.
Additionally, in the public safety context questions are often raised about the use of
polygraph examinations in investigations. Below is a short review of the three principal
areas of concern for local governments in Texas relative to Chapters 141 and 142 of the
Texas Local Government Code as well as a short discussion of the use of polygraph
examinations in the public safety context.
Section 207(k) of the Fair Labor Standards Act93 partially exempts employees
engaged in fire protection or law enforcement activities from the standard overtime for
all work in excess of forty hours provisions of the Fair Labor Standards Act. According
to Section 207(k), for fire protection employees, overtime must be paid for hours worked
beyond 212 during a 28-day work period; for law enforcement personnel, overtime is
triggered for employees working more than 171 hours during a 28-day work period. In
the case of fire protection and law enforcement employees who have a work period of at
least seven (7) days but less than twenty- eight (28) consecutive days, overtime
compensation is required to be paid when the ratio of the number of hours worked to
the number of days in the work period exceeds the ratio of 212 (or 171) to twenty-eight
(28) days. The Section 207(k) exemption, however, may be preempted by a state law or
municipal ordinance establishing a maximum workweek lower than that established by
the Fair Labor Standards Act. Simply stated, the Fair Labor Standards Act expressly
provides that it does not preempt any state law that establishes lower maximum hours
(as well as higher rates of overtime pay) than the Fair Labor Standards Act. In such a
situation, state law (or a municipal ordinance) controls the employer’s duties relative to
overtime compensation for police and fire personnel.
In Texas, the Section 207(k) exemption often does not apply in municipalities
with a population of more than 10,000. Availing itself of Section 218(a) of the Fair Labor
93
29 U.S.C. § 207(k).
28
Standards Act, the Texas Legislature in most cases has mandated a workweek for
police personnel and certain fire personnel of forty (40) hours. In such Texas
municipalities, the general rule is that these personnel may not work in excess of the
average number of hours worked by a majority of other non-sworn personnel (other
than firefighters). Section 142.0015(f) of the Texas Local Government Code specifically
provides:
A police officer may not . . . be required to work more hours during a
calendar week than the number of hours in the normal work week of the
majority of the employees of the municipality other than firefighters and
police officers.
Consequently, since the overwhelming majority of cities in Texas have forty (40) hour
workweeks for non-firefighters and non-police personnel, most cities are limited to forty
(40) hour workweeks for police officers (or fewer than forty (40) hours, if the majority of
the city’s employees work less than a forty (40) hour workweek). The exceptions to this
rule are (i) police officers who work more hours due to an emergency and (ii) those
police officers who sign a written waiver of their rights, thereby agreeing to workweeks
with more hours than those of a majority of the employees of the municipality other than
fire fighters and police personnel. Similar provisions exist for those non-exempt fire
department personnel who do not fight fires or provide emergency medical services,
including a mechanic, clerk, investigator, inspector, fire marshal, fire alarm dispatcher
and maintenance worker; however, non-exempt firefighters and emergency medical
service personnel may avail themselves of the Section 207(k) exemption; that is, they
may work up to 212 hours in 28-day tours of duty. Thus, most Texas cities with
populations in excess of 10,000 cannot rely on the Section 207(k) exemption for police
officers and those fire personnel listed in Section 142.0015(c) of the Texas Local
Government Code because the Section 207(k) exemption “cannot excuse
noncompliance with any Federal or State law or municipal ordinance establishing . . . a
maximum workweek lower than the maximum workweek established under [the Fair
Labor Standards Act].”
Under the Fair Labor Standards Act, compensatory time may be given public
employees in lieu of monetary overtime compensation, at a rate of not less than one
and one-half (1½) hours for each hour of overtime worked. The calculation generally is
the same as that used for calculating monetary overtime. Only state and local
governments may use compensatory time; private employers are not eligible and must
pay cash overtime. Public employees generally may accrue up to 240 hours of
compensatory time while public employees who work in a public safety activity,
emergency response activity or seasonal activity may accrue up to 480 hours of
compensatory time. A public employee who has accrued compensatory time and
requests use of the time must be permitted to use the time off within a “reasonable
period” after making the request if it does not “unduly disrupt” the operations of the
public agency. Moreover, a public employer may force its employees to use accrued
compensatory time.
29
B. Public Safety Employees—Vacation
Section 142.0013(b) of the Texas Local Government Code provides, in part, that
“[a] member of a fire or police department in a municipality with a population of more
than 30,000 is entitled to 15 vacation days each year with pay if the member has been
regularly employed in the department or departments for more at least one year.”
Section 142.010(b) of the Texas Local Government Code defines a “member of
the police department” as a licensed peace officer and a “member of the fire
department” is defined as “an employee of the fire department who is defined as ‘fire
protection personnel’ by Section 419.021 of the Texas Government Code.” According to
Section 419.021(3) of the Texas Government Code, “fire protection personnel” means:
(A)
permanent, full-time law enforcement officers designated as fire
and arson investigators by an appropriate local authority;
(B)
aircraft rescue and fire protection personnel; or
(C)
permanent, full-time fire department employees who are not
secretaries, stenographers, clerks, budget analysts, or similar support staff
persons or other administrative employees and who are assigned duties in
one or more of the following categories:
(i)
fire suppression;
(ii)
fire inspection;
(iii)
fire and arson investigation;
(iv)
marine fire fighting;
(v)
aircraft rescue and fire fighting;
(vi)
fire training;
(vii)
fire education;
(viii)
fire administration; and
(ix)
any other position necessarily or customarily related to fire
prevention or suppression.
Thus, while a “member of the police department” as a practical matter includes
sworn personnel only, the term “member of the fire department” includes almost
everyone in a fire department except clerical and support staff.
30
Similar to Section 142.0015(f), the operative word in Section 142.0013(b) of the
Texas Local Government Code is “population.” Chapter 311 of the Texas Government
Code is the Code Construction Act. According to Section 311.002, the Code
Construction Act applies to any code enacted by the 60th or subsequent Legislature.
The Local Government Code was enacted by the 71st Legislature in 1989. According to
Section 311.005(3) of the Government Code, “population” means “the population shown
by the most recent federal decennial census.” Therefore, when Section
142.0013 of the Local Government Code refers to a population of more than 30,000,
that number refers to the population as of the most recent decennial census. Further,
according to Section 2058.001 of the Texas Government Code, “a governmental entity
may not recognize or act on a report or publication . . . of a federal decennial census . . .
before September 1 of the year after the calendar year during which the census was
taken.”
C. Public Safety Employees--Acting Status (or “Step Up”) Pay
A recurring issue for many public safety issues in municipalities with a population
of 10,000 or more is the issue of acting status pay for members of the Police and Fire
Departments, as referenced in Section 141.033(b) of the Texas Local Government
Code. In brief, it is our contention that all police and fire department officers are entitled
to acting status pay (or “step up” pay) for performing the duties of a higher classification
if and only if they assume all (or substantially all) of the duties of the higher classified
position, regardless of the duration of such an assignment. Therefore, in deciding
whether an officer is entitled to acting status pay, a determination must be made on a
case-by-case basis whether the officer in question is performing all, or substantially all,
of the duties of the higher classified position.
Section 141.033(b) of the Texas Local Government Code provides that
[a] member of the fire or police department who is required to perform the
duties of a particular classification is entitled to be paid the salary
prescribed for that position during the time the member performs those
duties.
Almost ten years ago the Texas Attorney General’s Office issued a letter opinion,
LO-96-027 (March 11, 1996), in which the Attorney General held that “a municipality
that has temporarily assigned a fire fighter or police officer to perform the duties of a
higher classification may not restrict the fire fighter’s or police officer’s entitlement to
higher classification pay under subsection (b) [of Section 141.033 of the Local
Government Code] to an assignment of a certain minimum duration.”
In Mokwa v. City of Houston,94 the court, interpreting Tex.Rev.Civ.Stat.Ann. art.
1269q,95 in conjunction with Tex.Rev.Civ.Stat.Ann. art. 1269m, § 8(b),96 held that a
94
741 S.W.2d 142, 148 (Tex.App.—Houston [1st Dist.] 1987, writ
denied). 31
police officer called upon to perform the duties of a higher pay classification was entitled
to be compensated at the higher rate. In this case the officer had worked in higher job
classifications 268 days over a 45-month period.97 Nevertheless, the court wrote that
we hold that an officer is eligible for compensation of a higher
classification if the Chief of Police designates the officer to temporarily fill
a vacant position, under article 1269m, or if the officer is “called upon to
perform the duties” of the position, under article 1269q.98
In the situation, for example, where the Fire Chief and Police Chief is absent from the
city for a seminar and a lieutenant is named the acting chief in the chief’s absence, we
do not believe that Section 141.033(b) would be applicable because the lieutenant is not
performing all, or substantially all, of the chief’s duties, only part of them. In our opinion,
an officer or firefighter who is “called upon to perform the duties” of that position must be
authorized to perform all of the duties of that position, not just several of the duties. For
example, an acting chief over a weekend would not, or clearly should not, assume that
he would be allowed to terminate firefighters or police officers, reorganize the
department or eliminate positions from the budget. For purposes of that weekend, the
lieutenant is nothing more than the contact person in the case of an emergency should
the need arise for an executive decision of some type. In the situation, however, where
a police patrol officer assumes the duties of a patrol sergeant, including all (or
substantially all) job responsibilities, then that patrol officer is entitled to be paid a
sergeant’s salary for that period.
Mokwa still remains good law and clearly holds that a police or fire employee who
(1) temporarily fills a vacant position or (2) is called upon to perform the full duties of a
position is entitled to the position’s salary for that time period. Absent these circumstances,
we do not believe that acting status pay must be given to an employee who temporarily
assumes some of the duties of a higher classified position for a short period of time.
Additionally, another Texas court has upheld such a determination. In Haliburton v. City of
95
Article 1269q was the predecessor statute to Section 141.033(b) of the Texas Local
Government Code.
96
Article 1269m, § 8(b) was the predecessor statute to Section 143.111(a) of the Texas
Local Government Code.
97
Id., 741 S.W.2d at 148. Chapter 143 of the Texas Local Government code is entitled
“Municipal Civil Service.” In Mokwa, the court recognized that the City of Houston had
adopted civil service in its police department. In LO 96-027, the Attorney General’s
Office concluded that Section 141.033(b) of the Local Government Code applies to all
municipalities over 10,000 population, regardless whether civil service has been
adopted.
98
Id. (emphasis in original).
32
San Antonio,99 Chief Justice Hardberger of the Court of Appeals in San Antonio described
Mokwa as standing for the proposition that “municipal police officers be compensated for
temporarily and substantially performing the duties of higher ranked employees.” 100
The key for a city is determining if and when an employee is entitled to acting status
pay. Some public safety officers would suggest that if a police lieutenant, for example, is
out of town on a regular work day attending a seminar, then the sergeant who “fills in” for
him is entitled to lieutenant’s pay for that day. It is clear that in this example the sergeant is
not entitled to lieutenant’s pay since he was nothing more than the contact person for that
day, took messages for the lieutenant, etc. He did not perform all of the duties of a
lieutenant—he simply “filled in” for one day and, in all likelihood, performed his regular
sergeant duties. On the other hand, when there is a vacancy in a lieutenant position and a
sergeant is the acting lieutenant (usually this entails more time than a day or two), then the
sergeant is entitled to lieutenant’s pay. The only problem we foresee is when a lower rank
fills in for a short time a position at a higher rank and is expected to perform the higher rank
job duties. Thus, the primary issue is whether an employee is truly performing all, or
substantially all, of the duties in the higher classification.
Our suggestions are as follows. First, it is imperative that when an employee is
simply a contact person for a day or a weekend, then any departmental memorandum or
other documentation about that matter should be clear and precise. It should not state that
“Sergeant X is the Acting Lieutenant for the weekend.” That language will cause certain
personnel to conclude that the sergeant is entitled to acting status pay because the
memorandum stated that “Sergeant X is the Acting Lieutenant.” Rather, the memorandum
should state that since Lieutenant Y is out of town for a training seminar, Sergeant X will be
the contact person and that during Lieutenant Y’s absence, any questions or issues should
be referred to Sergeant X.” Unfortunately, most police and fire departments are somewhat
loose in using the phrase “acting chief” or “acting lieutenant,” for example. It is difficult to
argue that an individual is not entitled to acting status pay when a memorandum from the
chief has named the person as “acting lieutenant.” A public safety agency simply needs to
be careful about the wording it employs.
Second, in the situation where an individual truly is acting in the higher
classification, then it should be made clear to that individual that he or she has all, or
substantially all, of the duties of the higher classification.
Third, even though it may be difficult in some situations to determine whether an
individual truly is “acting” (generally due to questions about the length of time involved), it is
clear that an individual is entitled to acting status pay as soon as such status commences,
not after 8 hours or 30 days, for example, of serving in that position.
99
974 S.W.2d 779 (Tex.App.—San Antonio 1998, no writ).
100
Id. at 780.
33
D. (Most) Public Safety Employees—Polygraph Examinations
The Employee Polygraph Protection Act of 1988 101 generally prohibits
employers from requiring, requesting, suggesting or causing any employee or
prospective employee to take or submit to a lie detector test; employers cannot use,
accept, refer to or inquire about lie detector test results; and employers cannot
discharge, discipline or otherwise discriminate in any manner or deny employment or
promotion to employees who refuse or otherwise decline to submit to a lie detector
test.102 Although there are certain exceptions to the Employee Polygraph Protection Act
of 1988, 103 the key exception is that this Act does not apply to any state or local
government or any political subdivision of a state or local government. 104 Thus, while
private employers’ use of lie detector tests at any time during an employee’s tenure is
severely curtailed by the Act, state and local governments are free to administer
polygraph examinations, subject to any state law provisions on point.
In the Texas public employment context, polygraph examinations are often used;
however, the use of such examinations for public employees other than certified peace
officers is subject to Texas Supreme Court jurisprudence and, for peace officers,
subject to applicable provisions of the Texas Government Code.
For public employees, the Texas Constitution provides that the right to personal
privacy is safeguarded against unreasonable intrusion and, the Texas Supreme Court
has reasoned, should yield only when the government demonstrates that the intrusion
will achieve a compelling governmental purpose, which cannot be attained with any less
intrusive, more reasonable means.105 Moreover, Texas has recognized the common
law right to privacy in the employment context.106 Consequently, there are three
elements to consider in regard to the invasion of privacy: (i) an intentional intrusion, (ii)
upon the seclusion, solitude or private affairs of another, (iii) which a reasonable person
101
29 U.S.C. § 2001 et seq.
102
29 U.S.C. § 2002.
103
29 U.S.C. § 2006.
104
29 U.S.C. § 2006(a).
105
Texas State Employees Union v. Texas Dept. of Mental Health and Mental
Retardation, 746 S.W.2d 203, 205 (Tex. 1988).
106
Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 253 (Tex.App.—Houston [1st
Dist.] 1993, writ denied)(citing Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973)).
34
would find highly offensive.107 For an employer to succeed in polygraphing its employees,
the employer must demonstrate unique circumstances that are adequately compelling to
warrant the intrusion in order to maintain a polygraph testing procedure.108
As the Texas Supreme Court wrote:
We do not doubt that the Department [of Mental Health and Mental
Retardation] is entitled to require employees to answer questions that are
narrowly and specifically related to the performance of their job duties.
The use of a lie detector, however, presents a qualitatively different
question. The Department’s asserted interests are inadequate to
overcome the privacy interests impinged upon by the polygraph testing.
We hold that the Department’s polygraph policies impermissibly violate
privacy rights protected by the Texas Constitution.109
In the law enforcement context, this privacy interest may be outweighed by the
government’s compelling interest in public safety since persons who accept
employment as police officers subordinate their right to privacy to the superior right of
the public to an efficient and credible police department. 110 Therefore, an officer who
refuses to submit to a polygraph examination “is guilty of insubordination in refusing a
direct order to submit to a polygraph examination during a departmental investigation of
a matter relating to efficiency and credibility when reasonable cause exists to believe
that the police officer so ordered can supply relevant knowledge or information.”111
A statute governing polygraph examinations for non-civil service peace officers
was enacted in 1997112 to limit previous practices of terminating peace officers who
refused to take polygraph tests. This legislation allows the head of a law enforcement
organization to order the polygraph examination of a peace officer when the subject
matter of a complaint is confined to the internal operations of the organization; the
complainant is an employee or appointee of the organization; and the complaint does
not appear to be invalid based on the information available when the polygraph
107
Id. (citing Gill v. Snow, 644 S.W.2d 222, 223-24 (Tex.App.—Fort Worth 1982, no writ)).
108
Texas State Employees Union, 746 S.W.2d at 206.
109
Id.
110
Richardson v. City of Pasadena, 500 S.W.2d 175, 177 (Tex.Civ.App.—Houston [14th Dist.]
1973), rev’d on other grounds, 513 S.W.2d 592 (Tex. 1974).
111
Id.
112
Tex.Gov’t Code § 614.063.
35
examination is ordered.113 Additionally, the head of the law enforcement organization is
required to provide written explanation why he considers the circumstances to be
extraordinary and why he believes the integrity of the peace officer or the law
enforcement organization is in question.114 This written notice is not required for
matters affecting internal operations of the law enforcement organization. 115 Thus, it is
clear in Texas that law enforcement officers may be required to submit to polygraph
examinations due to the unique circumstances inherent with law enforcement, thereby
justifying polygraph examinations in the appropriate situation. 116
113
Tex.Gov’t Code § 614.063(d).
114
Tex.Gov’t Code § 614.063(e).
115
Id.
116
Texas State Employees Union, 746 S.W.2d at 206 (“Texas courts have shown a
deference to the important interests served by public agencies that are directly involved
in the compelling state goal of protecting the safety of the general public.”).
36