April 2009 Quick Clips

1.3 Million Dollar Award Thrown Out, April 22, 2009

A trucker was fired after being diagnosed with paranoid schizophrenia; he sued. He was not rehired a few years later, and by the time the case got to court, the jury focused on the failure to rehire. That same jury awarded him $1.3 million in damages on the rehire claim alone.

Unfortunately, the charge of discrimination never identified failure to rehire as a basis for discrimination. The Massachusetts Supreme Judicial Court found that this was a fatal flaw and reversed the jury's verdict. Everett v. 357 Corp., No. SJC-10238 (Mass, April 13, 2009). Once an employee files charges, those charges form the basis for any subsequent lawsuit. The court found that the original charge was too vague to cover any claims relating to failure to rehire.

Review Commission Decides 15 Year Old OSHA Case, April 20, 2009

by Frank L. Kollman

Reducing the proposed penalty from $5 million to $1,092,750.00, the Occupational Safety and Health Review Commission has affirmed most of the citations issued in 1994 for lead paint exposure to bridge painters in the oldest case on its docket. OSHA had originally issued 4 serious and 202 willful citations as a result of a follow-up inspection. In the earlier inspection, OSHA had issued citations and penalties in the amount of $50,000, which the employer had paid. Secretary of Labor v. E. Smalis Painting Co., OSHRC No. 94-1979 (April10, 2009).

The employer here obviously thought paying the first penalty would put an end to its obligations. Instead, the earlier citations formed the basis for the later $5 million in penalties for willful behavior.

Workplace Fraud Act, April 17, 2009

by Clifford B. Geiger

Earlier this week the Maryland legislature voted to increase penalties associated with mislabeling employees as independent contractors in the construction and landscaping industries. A civil penalty of up to $1,000 per misclassified employee will apply if the misclassification is not corrected within 45 days. Correction includes paying restitution to the affected worker as well as coming into compliance with all legal requirements, including paying payroll taxes, unemployment insurance, and workers compensation. There will be a penalty of up to $5,000 for “knowingly” misclassifying an employee, regardless of whether the situation is remedied. A civil penalty of up to $20,000 will apply to individuals who knowingly assist or facilitate an employer's misclassification of employees.

No Changes to Police Uniform Allowed, April 17, 2009

by Clifford B. Geiger

Kimberlie Webb is a practicing Muslim and has been a Philadelphia police officer since 1995. In February 2003, Webb requested permission to wear a headscarf while on duty and in uniform. Webb’s headscarf would have covered her head and the back of her neck. Her face would have remained uncovered. Webb’s request was denied, because Philadelphia Police Department Directive 78 did not authorize wearing religious symbols or garb as part of the police uniform. Directive 78 is the memorandum that specifically describes what constitutes the approved police officer uniform. Webb brought several claims, including one for religious discrimination under Title VII.

Webb’s claim was dismissed, because the court agreed that her request to wear the traditional Muslim head covering could not be accommodated without imposing an undue hardship on the City of Philadelphia. In the City’s view, “[i]f not for the strict enforcement of Directive 78 … the essential values of impartiality, religious neutrality, uniformity, and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the police department.” It was critically important to maintain the police uniform “as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.” The court concluded that permitting deviations from the dress code, in this case by allowing officers to wear religious symbols or garb, would have more than a de minimus cost (i.e., negative effect) on the proper functioning of the police department. Therefore, Webb’s request to wear a headscarf did not have to be accommodated. Webb v. City of Philadelphia, - F.3d - (3d Cir. April 7, 2009).

It Wasn't Me, It Was Him, No Him, April 6, 2009

by Peter S. Saucier

According to Gary Lizalec, as a result of his religious beliefs, his corporeal self was in fact three separate beings. Lizalec refused to comply with his employer's direction "that he stick with a single identity for professional purposes." As a result, the employer determined that Lizalec's difficult communication style, and inaccurate tax forms were cause to end his employment. Lizalec sued for religious discrimination based upon his claim that he had "covenanted all of [his] time, talent, effort, energy, everything . . . to the building up of the Kingdom of God on Earth." The employer was forced to go through "considerable discovery," with accompanying costs and fees, before the case was dismissed on summary judgment.

Is Exorcism In The Workplace Constitutionally Protected? April 6, 2009

by Kelly C. Hoelzer

The University of Texas in Arlington fired two administrative assistants after they said prayers and rubbed olive oil on a coworker's office cubicle because they believed her to be "demonically oppressed." The two employees, who considered themselves to be devout Christians, were having trouble interacting with the coworker, and wanted to exorcise what they believed to be the demons that possessed her. When the university learned of their bizarre ritual, they were fired for harassing the coworker and for disregarding university property.

The two women sued, alleging that the university violated their First Amendment rights to free speech and religious freedom. The court found that because their ritual related to an internal personnel dispute, it did not involve a matter of public concern, and therefore was not protected free speech. The court did acknowledge, however, that because the employees claimed their actions were part of a religious ritual, they could be protected as the free exercise of religion. The court granted summary judgment to the university on the free speech claim, but requested additional legal arguments on the free exercise of religion claim. Shatkin v. Univ. of Texas, Case No.: 4: 06-CV-882-Y (N.D. Tex. Mar. 10, 2009).

Cheating On Certification Form Means Loss Of Fmla Rights, April 6, 2009

by Kelly C. Hoelzer

The FMLA entitles eligible employees to up to 12 weeks of unpaid leave for, among other things, a serious health condition that prevents them from performing their job functions. As permitted under the law, most employers require employees seeking such leave to obtain written documentation from their health care provider certifying the need for the FMLA leave. If an employee fails to provide the certification in a timely manner, the employer may deny the leave.

What happens if the employee falsifies the medical certification form? The Seventh Circuit recently held that an employee who did so lost her leave and reinstatement protections under the FMLA. See Smith v. Hope School, Civil Action No.: 08-2176 (7th Cir. Mar. 30, 2009). Because she tried to defraud her employer, the court found that the employer did not violate the statute by firing the employee for unauthorized absences from work, even though she might have otherwise been eligible for FMLA leave.

Tanum Smith worked as an instructional aide at Hope School, a residential treatment facility for kids with developmental disabilities. Smith was injured by students at the facility twice within two months, and in September 2006, told the school that she was stressed out by concerns of future injuries and needed to take leave. The school requested medical certification before granting FMLA leave, and Smith brought in a physician's certification form which stated only that she had recurrent headaches, as well as neck and arm pain. Before submitting it to the school, however, Smith added to the note "plus previous depression." She never told the doctor that she wanted to add that, and the doctor confirmed that it did not authorize the addition to the note. Smith also backdated her signature on the certification form by three days.

Hope School checked with the DOL about how to handle Smith's fraud and was told it could deny her FMLA leave. The school then fired Smith for unauthorized absences from work, and Smith sued for violation of her FMLA rights. The trial court granted summary judgment for the school.

On appeal, the circuit court affirmed summary judgment, finding that "where an employee adds to a medical care provider's certification form a condition that she has not been diagnosed with, without the knowledge or approval of her physician, an employer can deny her request for FMLA leave." Even though she would have been entitled to FMLA leave based on the certification as written by the doctor, her falsification of the form by adding a non-existent condition nullified her rights. The court was quick to point out, however, that its ruling did not necessarily address whether more minor alterations to a certificate, such as correcting a typo, would have the same result.

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