EMPLOYMENT LAW UPDATE
Boardman & Clark Law Firm
Labor and Employment Practice Group
Wisconsin SHRM Legislative Sponsor
LEGISLATION AND ADMINISTRATIVE ACTION
First responders and emergency services becoming new protected category
. Several states have passed laws protecting emergency first responders who volunteer for fire departments or other emergency services. They generally add first responders as a protected status under the state EEO laws. Delaware has now prohibited employment discrimination due to a person's membership in a volunteer responder organization. A Maryland law allows emergency services volunteers to take protected leave from their employment to respond to emergency missions.
Wisconsin is revising EEO and Labor Standards Administrative Rules
. The State Department of Workforce Development is revising the Equal Rights and Labor Standards regulations. Among the pending revisions is a new form and requirements for more specific information in appeals of no probable cause determinations in EEO cases. Another focus is conforming the child labor and wage and hour codes to better match with Federal Department of Labor rules and requirements. The draft of the revisions is in progress and will have public hearings once released.
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).
Jurisdiction - Arbitration Agreements
Arbitration agreements must match law.
In Boaz v. Fed Ex Customer Inf. Services
(6th Cir., 2013), a court voided an arbitration agreement which required that employees arbitrate all disputes against the company "within the time prescribed by law or six months of the event, whichever expires first." An employee alleged both FLSA and discrimination claims and challenged the arbitration agreement's six-month time for bringing a charge. The court found the agreement unconscionable. An employee may agree to arbitrate Title VII discrimination claims, but the agreement must provide similar (300 day) time frames as does that law. An employee cannot waive his or her rights under FLSA. That law has language which would not allow limiting an employee's rights to use the standard DOL or court process; "such waivers would undermine the FLSA's purpose of establishing a uniform national policy" regarding wages and hours.
Placement Service Contract - Implied Duty
Staffing agency had duty to check background of temporary workers in spite of contract language excluding criminal record checks.
A staffing agency in Indiana placed a temporary HR-payroll employee. That person embezzled $335,400 by creating false payroll for fictional employees. The temporary worker had a prior felony record for theft and credit card fraud. The employer and its insurance company sued the staffing agency for negligence and breach of its contractual duty in making the placement. The agency defended, showing that its contract specifically stated that it would not do criminal background checks or drug tests unless specifically requested and paid for by the client company. Nonetheless, the court found the agency breached its duty to the client. The placement service contract obligated the agency "to use judgment" to place "qualified individuals." Professional judgment would require a reasonable background inquiry before placing a person into a sensitive position with responsibility for financial and personal identity information. The agency should have done the check regardless of its contract language. Travelers Casualty & Surety v. Adecco, Inc.
(N.D. Ind. 2013).
Older white man cannot support age, race and sex discrimination case.
A 55-year-old white male health department microbiologist, with 20 years of service, was passed over for promotion in favor of a white female in her mid-twenties. The decision maker was an Asian woman. The rejected employee filed a discrimination case alleging age and sex in the promotion, and that the supervisor was also racially biased. He could not sustain his burden of proof. A plaintiff must either show direct evidence of overt bias or that he was more qualified than the person selected. There was no evidence of racially biased statements, and over time the supervisor had promoted both men and women of differing ages, all white. In this specific promotion, the employer showed that the plaintiff had a record of previous disciplinary actions, poor evaluations and performance problems, while the younger woman had a "top performer" rating and no discipline or other negative factors. Though younger, she appeared to be validly better qualified for a promotion. Hester v. Indiana State Dept. of Health
(7th Cir., 2013).
Home care company settles OFCCP charge of discrimination against men.
The OFCCP charged that a home care provider systematically discriminated against male applicants for in-home caregiver positions in favor of women. The provider could not show substantial requests by customers for female caregivers, nor other foundations for a valid BFOQ to justify the large number of men who were rejected for positions. The parties reached a no-fault settlement for $92,000, plus hiring of a number of men. In announcing the agreement, Director Patricia Shiu stated: "When we tell our daughters that there are no limits to what jobs they can pursue, we should be mindful that those same aspirations apply to our sons." OFCCP v. Res Care Home Care Spokane
(Agency Settlement, 2013).
Righteous anger and dueling religious values.
Conflict between a "spiritual Christian" library assistant and an "orthodox Christian" library supervisor resulted in a case for discrimination and retaliation against a public school district. The assistant declined her supervisor's ongoing requests to pray together, attend bible studies and receive religious tracts at work. The assistant explained that she was spiritual, but not of the same denomination or belief system as the supervisor. The pressure continued and the assistant filed a religious harassment complaint with the school board. Thereafter, the supervisor stated that she had a "righteous anger" toward the assistant, gave poor evaluations, and succeeded in non-renewal of the assistant's contract, after ten years of good evaluations, praise and recommendations by other administrators. The court found sufficient evidence for a case of retaliation under Title VII. Scott v. Montgomery County School Board
(W.D. Va. 2013).
Facebook created awareness of disability.
A discharged employee filed an ADA case alleging failure to accommodate and discharge due to HIV. The company defended by claiming it had no awareness of any disability prior to the discharge. The court was not persuaded. There was direct evidence that the employee sent a Facebook message to his supervisor about his preliminary HIV diagnosis. Then he sent Facebook messages to two supervisors when the HIV diagnosis was confirmed. He then texted one of the supervisors several days later about the diagnosis and conditions he might need for continuing work. Given the repeated Facebook and text messages, the court rejected the company's defenses as pretext. Croy v. Blue Ridge Bread, Inc., d/b/a Panera Bread
(W.D. Va. 2013).
Prescription versus direct dispense.
A company's argument that it fired an employee for violating its policy of taking drugs without a prescription was found invalid. The employee had been given Valium for a back condition by her physician during a clinic visit. The employer took the position that since there was no "prescription," the employee violated the policy, even though the employee could verify direct dispense by a licensed physician. The court found there is nothing which requires a piece of paper titled "prescription." A physician can validly directly dispense a medication either by a shot or pills during an office visit. Firing an employee who received valid treatment and medication for a disability violated the ADA. Eastman v. Research Pharmaceuticals, Inc.
(E.D. Pa. 2013).
Essential functions are not the whole picture - parking space is relevant.
A State Department of Justice attorney requested a close parking space to accommodate a knee/walking disability. (The main parking area was three blocks away.) The request was denied. Other nondisabled, and less senior, employees were given closer parking spaces. In the ensuing ADA case, the employer defended by claiming that parking is not an "essential function" of the attorney position description. She could do all
of the attorney functions, and the ADA only requires accommodation when an essential function is involved. The court disagreed, stating that "accommodations also include those that make the workplace accessible." Feist v. Louisiana
(5th Cir. 2013). This is similar to the cases on accessible restrooms. Using the restroom is not part of anyone's official position description "essential job functions;" however, it is a necessity if one is going to be able to stay at work and do the actual job duties. Whether or not stated as a job duty, the ability to get to and stay at work can be essential to the job.
Two failed treatments warrants discharge.
The ADA defines active drug or alcohol dependency as a non
-disability. However, a "history of treatment" renders the person as having a substance dependency disability and covered by the ADA. An employee was in violation of the company drug policy due to abuse of prescription medications (obtaining multiple Vicodin prescriptions from numerous sources). He used FMLA and checked into treatment. He checked out, against doctor's advice, within two days, but told the employer he was pursuing outpatient treatment. He returned to work on a second chance basis. The employer found he was continuing his drug abuse. He checked into treatment again. Then, a day later, left treatment against doctor's advice. The company terminated the employment. The employee sued under the ADA, claiming the discharge was due to his status as a disabled person with a history of treatment. The court dismissed the case. The employee's current and continuing drug use is an exception to ADA protection, regardless of any prior treatment. Further, twice checking in and immediately leaving treatment did not qualify as being engaged in treatment under the act. It did not break the continuing active use status. Shirley v. Precision Cast Parts Corp.
(5th Cir., 2013).
National Labor Relations Act - Arbitration
The perils of workplace romance - jealous girlfriend gets fired.
Two airline employees dated then broke up. The jealous, angry ex-girlfriend then sought to destroy the employment and reputation of her former boyfriend. She forged a letter, appearing to be written by him, and placed copies in the work mailboxes of a number of their co-workers. The letter insulted flight attendants, bragged about physical abuse of prior girlfriends, implied that he was gay, had VD, and then made racist comments about two other co‑workers. Employees reported the letter to management. The investigation revealed the forgery and the jealous girlfriend confessed. She was fired. She grieved, claiming that firing was excessive for a first offense and her 12-year good record as a flight attendant. The arbitrator upheld the discharge due to the outrageous conduct. A first offense and good record were outweighed by the intentional and severe behavior. In re Transportation Workers of America, Air Transport Local 556 and Southwest Airlines
Group drug test of firefighters was valid.
A morning inspection showed two vials of Morphine and four vials of Fentonyl missing from the EMT stock since the prior day's inspection. Any employee with access to the firehouse was drug tested for "reasonable suspicion," including 19 firefighters. The union grieved, claiming that "group suspicion" was invalid; the department must show separate reasonable suspicion evidence for each
employee it wanted tested. The arbitrator rejected this claim. Nothing in the collective bargaining agreement referred to individualized screening. The amount of missing medicines warranted a larger scope of investigation and public safety and integrity of the department operation required a prompt investigation of anyone who might have had the opportunity to take the drugs. In re Professional Firefighters of Ocala 2135 IAFF and City of Ocala, Florida
For additional information, see www.boardmanclark.com. The Reading Room has past issues of the Employment Law Update. Other publications on the website are the Employment Benefits Newsletter, the Municipal Law Newsletter and the School Law Newsletter.