EMPLOYMENT LAW UPDATE
May 2013 by Bob Gregg
Boardman & Clark Law Firm
Wisconsin SHRM Legislative Sponsor
LEGISLATION AND ADMINISTRATIVE ACTION
FLSA amendment would end special disability wage
. Rep. Gregg Harper (R-Miss.) has introduced a bill (HR-831) to end the special sub-minimum wage for certain disabled workers. The special wage has drawn fire due to abuses (see the December 2012 Employment Law Update regarding turkey farm worker's case). On the other hand, many non-profit employment programs for those with special needs are dependent on this special wage. Without it, they may cease to exist, leaving many disabled people without employment, job coaches and vital support which have enabled them to have any sort of income and to be more functional in society and live more rewarding lives.
The EEOC rules restrict criminal background checks, BUT states are moving to expand them
. The EEOC, followed by the OFCCP, issued opinions that criminal background checks have an adverse impact upon certain racial and ethnic groups and are suspect under the anti-discrimination laws and contract compliance rules. The EEOC issued Guidance about proper and improper use of arrest/conviction records in employment decisions, seeking to restrict their use. At the same time, a number of states are expanding the requirements to do these same arrest/conviction record employment searches; most recently Arizona, Arkansas, Maryland, New Jersey and Virginia. The EEOC takes the position that any state law in conflict with its own Guidance is invalid and illegal. Yet the states require the background checks, or employers face state sanctions for illegality. [For more information on how to thread this needle,
request the article Arrest/Conviction Records (EEOC Guidance)
, or request the
seminar Pre-Employment Testing and Liability by emailing Bob Gregg, email@example.com.]
More states get on the employee/applicant social media privacy band wagon
. Ever since a news article emerged about an employer asking job applicants to turn over their 2
private social medial passwords or be eliminated from consideration, there has been a frenzy of legislative activity and Congressional proposals to prohibit the practice. Past Updates have reported on a number of states passing such laws. The latest states passing laws prohibiting employers asking for applicants' or employees' social medial information are Arkansas, New Mexico and Utah. Wisconsin has a bill introduced in the Legislature on this subject. The term "band wagon" is used because there is little evidence that this sort of practice occurred more than a few times in the United States. There is no evidence it occurred at all in many of the states passing these laws. Yet, both political parties are rushing to endorse and pass this legislation. Perhaps it is wise to be ahead of the issue and legislate before the few examples escalate into a problem.
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).
Theme of the Month -- Sports
Female referee has case for being excluded from male basketball games; Referees Association is an "employment agency" subject to Title VII.
Men have always refereed and coached women's basketball. However, in New Jersey a 10-year veteran female ref has requested and consistently been prohibited from refereeing boy's high school games. The State Athletic Association has never allowed a female to officiate a male high school game. The court has validated a Title VII suit against a school district, which employed the female referee to officiate girls' high school games, and against the State Athletic Association, which is the employer hiring referees for post-season games. It also allowed suit of the International Association of Approved Basketball Officials. Since it approves all referees, it acts as an "employment agency" within the scope of Title VII. So, it is also liable for discriminatory placement practices. Covington v. Int. Assoc. of Approved Basketball Officials, et al.
(3rd Cir., 2013).
Football team harassed assistant -- and university retaliated.
A female Hofstra University graduate student had an assistantship as a football team manager. Male football players made sexual comments and started a Facebook page devoted to crude comments about her. The coaches ordered the Facebook page shut down. On a trip to a game, where she was the only woman on the bus, players made overt sexual comments to her. Then when she broke into tears, the team started to chant, "We want boobies" over 3
and over. This resulted in expulsion of one player and discipline of others. The female team manager also filed a charge of sexual harassment. Then the next season the football coach refused to continue her assistantship. She obtained an assistantship in another department, only to have it withdrawn when Human Resources learned of the job offer. A case was filed under Title VII, Title IX and the New York Human Relations Law. The court found that Hofstra had taken action to stop the harassment and discipline players; it met its obligations under the law. However, there was ample evidence of retaliation. The University showed no valid reason for stopping her team manager position and no valid reason for withdrawing the second position. The Human Resource Manager had become involved in the denial process "to a far more substantial degree" than with any other graduate assistantship, ever. There was an appearance of a special effort to retaliate after the graduate student brought the harassment charges. Summa v. Hofstra University
(11th Cir., 2013).
Police sergeant has First Amendment claim, and court expands rights to all others on promotion list
. In an unusual decision, a federal court has granted a remedy to the individual who was subject to retaliation and to all others on a promotion list, even though they engaged in no protected activity at all. A female police sergeant made internal complaints that the department passed over women for promotion, including her. She then tested toward the top of the list for upcoming promotions. It was a certainty that she would receive a position, since 66 positions were authorized. However, the Department then failed to fill a single lieutenant position. It let the number of vacancies grow by 50%, leaving them unfilled until the list containing the female sergeant expired. Then the Department began filling the jobs. The Police Chief was witnessed, stating, "As long as I am Chief, that cow c**t will never get promoted to lieutenant." The court found ample evidence of retaliation. The sergeant's complaint about discrimination regarding all women on the force was clearly a "matter of public concern" within the protection of the First Amendment. She is entitled to remedy. The court then went on to recognize that all the other sergeants on the list had also suffered damage due to the Department's retaliation against the one female officer. Most of them would also have been promoted, but were also held back. Though none of the others engaged in protected acts, they were all innocent "collateral victims" and also due a remedy. Montone v. Jersey City
(3rd Cir., 2013).
"Were already paying you a lot of money for a young black man" was not the right reason to deny pay increase
. An African American auditor was promoted to team leader. However, unlike others who were promoted, he received no pay raise. When he inquired 4
about this, a supervisor said that he was already being "paid a lot of money . . . for a young black man." The auditor then filed an EEO complaint. Following this, he allegedly was told he could choose between being fired or dropping the complaint, and in a heated meeting a supervisor used the n-word. The auditor was then fired. He sued for discrimination and retaliation under 42 U.S. Code §1981. The court found evidence of discrimination in pay and retaliation. It also found that the single incident of the n-word was sufficiently severe to create a racially hostile environment under the harassment standards. (The supervisor was later fired after an internal investigation concluded that he did use the word.) Ayissa-Etoh v. Fannie Mae
(D.C. Cir., 2013).
Prejudice is not necessarily discrimination
. An African American delicatessen worker was fired for stealing from the restaurant -- not paying for food and drink she consumed. The employee sued for racial discrimination, claiming that the manager had made numerous "anti-Black comments" and disparaged African American public figures in front of the staff. (The manager would often end these comments with "I'm just funning with y'all.") He also tolerated hostile racial comments, including use of the n-word by a customer. The court dismissed the case, finding no connection between the manager's comments and the decision to fire the employee. The employee did not deny taking the food and drink. Fourteen other employees, many of whom were White, had been fired for the same infraction. There was no showing of any racial disparity in enforcement of the theft policy. A company is not precluded from firing a person for theft just because a manager has made prejudiced comments unrelated to the theft policy. Even a prejudiced manager can do non-discriminatory discipline by equally enforcing rules. Addison v. Ingles Markets, Inc.
(11th Cir., 2013). [The ruling could have been very different if this was a hostile environment harassment case, rather than a rule violation case. A manager's prejudiced comments are not "just funning." They quickly establish a discriminatory environment. There is no excuse for any supervisor to "fun" about
racial, sexual, ethnic, religious or other EEO topics. For more information, request
the article The Undefendable
by Boardman & Clark by emailing Bob Gregg at firstname.lastname@example.org.]
Court dismisses EEOC's case over random drug testing
. U.S. Steel did random drug and alcohol tests on probationary employees in safety sensitive positions. This policy was approved under the collective bargaining agreement. A coking oven worker failed the alcohol test and was fired. She claimed it was a false positive due to diabetes. She filed with the EEOC for disability discrimination. The EEOC filed suit against the company and the United Steelworkers Union on behalf of the person and all others who had been fired for failing the test. The EEOC claimed that the alcohol test is a medical exam which has an adverse impact on certain disabilities. It sought to prohibit all random testing and restrict tests to only individualized reasonable suspicion situations. The court 5
rejected this claim. It found that safety was fundamentally job-related and the alcohol test was "consistent with business necessity." The EEOC's argument was also inconsistent with its own rule that random testing is valid for "public safety" employees (fire, police, security, transit drivers). The court ruled that the lives of private sector employees in "dangerous jobs" are no less worthy of protection" than those in the public sector. EEOC v. U.S. Steel Corp. and United Steelworkers
(W.D. Pa., 2013).
Remember to separate medical information from the rest of the personnel records
. The EEOC won a $105,000 jury verdict for an employee with epilepsy who was fired shortly after having a seizure. He had worked for the company only a week before the seizure. He was not allowed to return to work. The company failed to engage in the interactive communication process. Another factor in the decision was the company's failure to meet the federal requirement to keep employee's medical information in a separate, more secure file than other personnel records. [Other laws have similar requirements for information such as I-9 verification materials.] EEOC v. Western Trading Co.
(D. Col., 2013).
Short extension of leave is almost always "reasonable."
A $50,000 settlement was reached in EEOC v. REDC Default Solutions LLC
(N.D. Texas, 2013). An employee requested a short extension of medical leave for stroke recovery. Her doctor provided a specific date for return to work without restrictions. The company allegedly refused to grant the medical extension and terminated the employment. The EEOC alleged failure to reasonably accommodate and no showing of undue hardship for the company if it had been flexible and granted the short extension.
National Labor Relations Act - Arbitrations (Inadequate Procedures)
Hearsay is not sufficient to support a demotion
. A police officer received a disciplinary demotion due to "problem behavior." The demotion was based on a "summary report" which was not followed by a detailed investigation prior to the action. The grievance arbitrator reversed the discipline because of a lack of due process. A "summary" is not a full factual exploration. It is largely hearsay. A police department should clearly understand this concept. A police officer's "initial report" on a crime is enough for an arrest. It is never enough for a conviction. A bit more detailed due process is needed before a final decision. In re City of Chicago and Fraternal Order of Police #7
Denial of promotion was premature and mischaracterized.
A federal corrections employee was accused of improper acts toward an inmate. He was placed on suspension during the investigation. He was then cleared of all charges. (The inmate was confused. A different person with the same last name had committed the alleged acts.) However, during this time the employee was denied a promotion because he was on a "disciplinary suspension" and the rules prevented promotion of anyone with recent disciplinary actions
on their record. In the ensuing grievance, the arbitrator overturned the decision and ordered the promotion. The employee was on an "investigatory" suspension, not a "disciplinary" suspension. He was innocent. No "discipline" ever occurred. The employer should have waited until the investigation was completed. There was no need to rush to the promotion decision. U.S. Dept. of Justice Bureau of Prisons v. American Federation of Government Employees #922
(2013). [This is similar to the EEOC v. REDC
case in the disability section. The same principles apply in several areas of the law. A short wait is almost always "reasonable" - and prudent - before making a final decision.]
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.