EMPLOYMENT LAW UPDATE
August 2011
by
Bob Gregg, Legislative Director
Jefferson County HRMA
rgregg@boardmanlawfirm.com
Boardman Law Firm
www.boardmanlawfirm.com
LEGISLATIVE AND ADMINISTRATIVE ACTION
Legal Workforce Act proposed. Representative Lamar Smith (R-Texas) has introduced a law
(HR 2164) which would require all employers to use E-Verify for all hiring. The law would also
allow state and local governments to deny licenses to any business which did not comply. There
are concerns that E-Verify cannot handle this; the system is currently faulted for lack of capacity
to accurately manage the level of requests. So, if the law passes, it may create problems in hiring
if not implemented with a major improvement to the system.
NLRB considering rules on employees' company email rights. The National Labor Relations
Board is considering rules which would expand employees' rights to use company email to send
messages regarding labor-related issues and their concerns about wages, hours and conditions of
employment. The proposed rules would stop a company from prohibiting employees' nonbusiness use of emailing and impose stricter scrutiny on computer usage policies which "might
chill" employees' protected activities. Non-unionized employers should be aware of this
development since many Unfair Labor Practice cases are brought by the employees of non-union
companies. The NLRB covers almost all private sector employment regardless of whether or not
there is a union.
Wisconsin's conceal/carry law signed by governor. Wisconsin became the 49th state to adopt
some form of conceal/carry law allowing licensed owners of hand guns, electric weapons or
knives to carry their weapon onto most public and private property, including the workplace
(schools, courthouses, airports and police stations are among the exceptions). The law grants
immunity from liability to any property owner who allows concealed weapons in the event of
any injury caused by the carrier. Property owners who wish to bar weapons must post prominent
no-weapon notices at all entrances. Is there a penalty for posting a no-weapon notice? A
property owner who bans weapons remains liable for violence or accidents caused by those who
ignore the sign and bring weapons onto the workplace or onto the property. However, the grant
of immunity to those who allow weapons seems to be absolute. There is no liability no matter
what. Apparently, even if the property owner knows an employee poses a risk, there may be no
liability for any resulting injury of others if the property owner unrestrictedly allows concealed
weapons. Those who post no-weapon notices, however, would potentially be liable for the
violence unless they also made extra efforts to address the possible risk and prevent the
employee from sneaking a weapon onto the premises.
LITIGATION
The Legal Update includes new developments and matters of interest throughout the United
States. Be aware that our various federal circuit courts reach somewhat differing conclusions.
So a federal court decision in another part of the country, and especially a different state's court
decision, may not quite be "the law" in your jurisdiction. Some courts lead the way; others lag
behind. The Legal Update lets you see the overall trends and compare them with your
jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).
Fair Labor Standards Act (Wages and Hours)
The FLSA covers a wide territory regarding employee status, wages, hours and retaliation for
protected activities. This month's cases illustrate that scope with decisions on independent
contractors, what is protected activity and personal liability of managers. There is also a case
under the related Motor Carriers Act, illustrating that liability can be a thin line, hinging on just a
few pounds.
Security guards were not independent contractors. In yet another case in the Department of
Labor crackdown on violations of the independent contractor rules, a court found 57 security
guards were "employees" instead of contractors. The company must pay over $200,000 in back
overtime wages, plus penalties for not having kept employment records on the guards. Solis v.
International Detective and Protection Services, Inc. (N.D. Illinois, 2011).
Facebook posting is not a protected "complaint." An employee griped on her Facebook page
that she was not paid proper overtime. She was later fired and claimed retaliation under the
FLSA. The court ruled that an FLSA "complaint" must be more formal than just "letting off
steam" on a personal website. The complaint must be made directly to the employer or a
government agency in order to give fair notice that an FLSA issue is actually being raised and to
provide the law's protection from retaliation. Morse v. J.P. Morgan Chase (M.D. Florida, 2011).
Branch manager may be personally liable for FLSA violations. Under the FLSA, managers
can be personally named and personally liable for violations of the Act. In Speert v. Proficio
Mortgage Venture LLC (D. Maryland, 2011), several former mortgage officers sued, claiming
they were not exempt employees and were not paid proper overtime or proper commissions. The
suit named both the organization and their branch manager. The court followed a line of other
court decisions holding that individual managers can be held liable and be considered as the
"employer" under the FLSA if they have the authority to hire, fire and set the terms and
conditions of employment (exactly the same conditions required to meet the salaried executive
exemptions under the FLSA. So, all exempt managers probably fit the personal liability
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definition). For more information about managers' personal liability under a variety of
employment laws, request the management seminar or see the article "Are you in the Crosshairs?
- Your Personal Liability in Employment Cases" by Boardman Law Firm at
http://www.boardmanlawfirm.com/legis_developments/personal_liability.php
Weight of vehicle determines case. The Motor Carriers Act provides certain exemptions from
overtime pay for drivers, including route salespeople, who operate vehicles over 10,000 pounds.
Several Frito Lay route drivers/salespeople claimed that they were due overtime pay. The court
found that the company operated trucks both over and under 10,000 pounds. Drivers/salespeople
were assigned to both sorts of vehicles over time. The company could not produce adequate
records of when the employees operated which weight of vehicles and how often. Thus, there
was a valid claim that they did not fit within the special exemptions for overtime pay. Cerutti v.
Frito Lay, Inc. (W.D. Pennsylvania, 2011).
Private Rights - Public Policy
Medical marijuana use protected from prosecution - not from employment discharge. In line
with a consistent series of rulings by other courts, Washington has validated the firing of an
employee who failed an employment drug test due to legal prescription use of medical
marijuana. Though the State of Washington decriminalized the use of prescribed medical
marijuana, the law did not prohibit employers from having rules regarding a safe, drug-free
workplace, operated by unimpaired employees. So, employers can still enforce their drug testing
policies. This is similar to enforcement of policies prohibiting coming to work under the
influence of the legal product of alcohol. Roe v. TeleTech Customer Care Mgt., LLC
(Washington S.Ct., 2011).
Discrimination
Litigation Practice and Penalties
EEOC ordered to pay employer's legal fees due to frivolous case. The EEOC mounted a
nationwide class action suit alleging that a large employer had a hiring policy with an adverse
impact on African Americans. The alleged policy involved improper consideration of arrestconviction records. However, during the discovery process, the company provided clear
evidence that no such policy existed, and it had actually hired a large percentage of the people
the EEOC accused it of rejecting. Nonetheless, the EEOC continued to pursue the case for two
more years, requiring the company to expend great sums on the defense. The court ruled that the
EEOC should pay all those costs and fees from the point it clearly should have known its case
was without foundation, and the continuation of the case from that point was frivolous. (EEOC
v. Peoplemark, Inc. (W.D. Michigan, 2011).
Destruction of interview notes sinks case. "Spoilation" is the term for destruction or alteration
of evidence. Spoilation results in courts assessing penalties or even precluding the party from
presentation of evidence at all due to a presumption that if some is spoiled, then all of it is
suspect. In Talavera v. Shah (USAID) (D.C. Cir., 2011), a federal employee with excellent
evaluations alleged she was passed over for promotion and filed a Title VII case. She also
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alleged that this was due to her complaint about sexual harassment by a contractor. The
Department claimed the promotion was based on another candidate's "superior" interview
performance. However, the interviewing supervisor destroyed all interview notes. The court
concluded that it was reasonable to infer the destruction was done to hide evidence of either
discrimination or pretext which would undermine the Department's defense.
Sex/Gender
No policy - no training dooms company to liability. A male ironworker won a Title VII genderstereotyping harassment case. The supervisor on a bridge construction project thought the
employee acted too "feminine" and not "rough enough for an ironworker." He then engaged in a
series of abusive comments, sexual taunts and exposed himself to the worker. When the
employee complained, the company transferred him to a lower paying job which was slated for
layoff and then laid him off. The company had no policy prohibiting harassment and had given
no training to its supervisors regarding their duty to prevent harassment. A jury gave a half
million dollar verdict to the ironworker. EEOC v. Boh Brothers Construction Co. (E.D.
Louisiana, 2011).
Female concrete tester promoted slower than all men. A federal concrete and soil testing
technician was hired first, yet promoted only after virtually all of the later-hired male
technicians. She filed suit under the Equal Pay Act. The U.S. Bureau of Reclamation claimed
that she had performance problems which delayed her advancement, however, it presented no
tangible evidence to back that claim, and the court found the defense to be suspicious and found
a valid cause of action for unequal pay due to gender-based slow promotion. Lee v. Salazan (D.
Utah, 2011).
Testing
Fitness should be fitness - not calibrated by age or sex. A correctional officer fitness test was
measured by a timed 1.5 mile run. The "passing" time was rated on a scale according to both the
gender and age of the correctional officer, with a significant minutes' gap allowed due to these
factors. The test was challenged by those who failed but were still faster than older people who
passed. There was a significant adverse impact between faster women who failed and slower,
older men who were given a "pass." The court found evidence of discrimination. When dealing
with a prison population, unruly inmates do not consider the sex or age of the guards and then
considerately alter their unruliness based upon which guards are present. All guards must
encounter the same critical incidents and be able to respond fully and effectively. The
Department presented no evidence to show how the "scaled" run had any relevance for response
to incidents by correctional officers. The court stated that only a common minimum standard
would appear to validly meet the legal standards for employment testing in this situation.
Eastering v. Connecticut Dept. of Corrections (D. Connecticut, 2011).
Race
White supervisor fired for racial email has valid discrimination case over unequal discipline.
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A White supervisor received and then forwarded to others in the company a racial email titled
"Why There Are No Black NASCAR Drivers." It contained a series of derogatory stereotypes of
African Americans. He was fired for violating the company's anti-harassment and improper
computer use policies. He sued under Title VII, claiming that the discharge was racially
discriminatory. The court agreed that he had a valid case. In the same time frame, several
African American employees had been using company email to circulate "How to Dance Like a
White Guy!" It contained a series of derogatory terms and stereotyped characterizations of
White men. However, these employees only received short-term suspensions for violation of the
harassment and computer policies. There was an appearance of racial disparity in the issuing of
discipline for virtually the same infraction. Smith v. Cockheed-Martin Corp. (11th Cir., 2011).
Disability
Restaurant manager shows evidence that discharge was pretext. A restaurant manager
informed the company that he had a brain tumor and would eventually need a several month
leave of absence. Three days later he was fired for having improperly altered the time and pay
records of employees. He sued under the ADA. The court found that the termination was
suspiciously close to the company learning of the disability. Further, several employees testified
that their records had, in fact, not been changed and were accurate. The court found evidence of
pretext in the reason given for firing the restaurant manager. Meinelt v. P.F. Chang's China
Bistro, Inc. (S.D. Texas, 2011).
Car salesperson did not request reasonable accommodation. A salesman at an auto dealership
took leave for a heart condition. He then provided no information about his expected date of
return. He made no contact at all. After 15 weeks, his employment was terminated. He then
sued under the ADA. He claimed that sales positions are high turnover, and he "didn't think it
would be of any concern" for the dealership if he was out for a while. The court dismissed the
case. A disabled person has an obligation to keep the employer informed and to actively request
an accommodation, such as leave of absence. An indefinite leave, without information about an
expected return date is not reasonable. Jacoby v. Bethlehem Suburban Motor Sales (E.D.
Pennsylvania, 2011).
Bridge worker's fear of heights is valid disability. A bridge worker's acrophobia resulted in a no
work over 25 feet high restriction. He was terminated due to failure to meet essential functions
of the job. However, a court found that his particular job mostly involved ground work. Further,
the employer had a history of swapping duties depending on the strength and weakness of the
employee assigned to a job. The employee's accommodation request was met with a supervisor's
statement, "I'll tell you right now we don't grant requests!" The court found evidence of failure
to engage in the required interactive process and insufficient foundation to show an undue
hardship to deny the accommodation request. Miller v. Illinois Dept. of Transportation (7th Cir.,
2011).
Firefighting is an essential function for fire department job. This would seem to be a logical
conclusion. However, a fire investigator's primary work is usually after the fire is over and cold.
Due to a heart condition, the investigator could not engage in the high intensity physical and
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emotional stress of active fire suppression and requested the accommodation of not being
required to do so. The department declined the request. The employee took early retirement and
then sued under the ADA. The court ruled for the department. Due to budget cuts, the
department had a lean staff and all firefighting-qualified employees had to be able to fill in for
short staffing or for multiple fire situations. There was no operational latitude for a firefighterqualified person who could not engage in that duty when needed. Cremeens v. City of
Montgomery (11th Cir., 2011).
Regular, predictable attendance is an essential function. A teleservice employee with serious
food allergies which triggered without notice, had frequent, unpredictable absences. He
requested a flexible schedule in which he would not be required to have consistent attendance.
The employer declined, informing him that his repeated absences were seriously harming the
mission of his position. He sued under the Rehabilitation Act. The court ruled for the employer,
finding that for that position regular attendance was an essential function; "attending whenever
able" and ongoing absence without prior notice was not reasonable. Lang v. Social Security
Administration (S.D. California, 2011.
Family and Medical Leave Act
Key employees still entitled to proof of reason for non-reinstatement. The FMLA has a "key
employee" exception to the 12-week guarantee of reinstatement after leave. However, in
Johnson v. Resources for Human Development, Inc. (N.D. Pennsylvania, 2011), the court ruled
that this does not create a "free pass" for employers to simply quickly replace a key employee
who takes FMLA. The employer must still show the denial of reinstatement was necessary to
prevent substantial harm to the employer's operations. Absent such proof, the key employee can
sue for violation of their FMLA right to return to the job.
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