December 2009 Quick Clips

In Case You Were Sleeping, December 29, 2009

The Senate passed an $871 billion health bill before Christmas. No one understands it, and no one apparently has read it. The House and Senate must reconcile their differences, but the Democrats appear hell bent to pass a health bill, regardless of the consequences.

NLRB Remains Three Members Down, December 29, 2009

by Frank L. Kollman

The National Labor Relations Board, which administers the country's labor laws concerning union activity, is supposed to have five (5) members. Because the Senate, controlled by Democrats, would not approve nominees submitted by President Bush, the Board has been operating with only 2 members for quite some time. In fact, the Supreme Court has agreed to consider whether decisions by the 2-member NLRB are legal.

President Obama submitted three nominations to the Senate in 2009, and at least one of those nominees is highly controversial (the general counsel to the SEIU, the union that takes much of the credit for getting the President elected). John McCain has objected to that selection, so it appears the White House must decide whether to cut that nominee loose or stand fast. Meanwhile, the appointment of the other two members hangs in the balance.

Eventually, the Board will be packed with members less favorable to management and more favorable to labor. While inevitable, however, the country must wait a little while longer for that to happen.

Fear of Workplace Violence Is Legitimate Non-Discriminatory Reason For Termination, December 23, 2009

by Clifford B. Geiger

In Calandriello v. Tennessee Processing Ctr., LLC (M.D.Tenn., No. 3:08-1099, 12/15/09), the court dealt with an employer’s ability to discipline an employee with a disability.

Robert Calandriello was a data testing technician at Tennessee Processing Center, LLC (“TPC”), which is a subsidiary of the Bank of New York (“BNY”). One of Calandriello’s coworkers told a supervisor that Calandriello had an inappropriate poster on display, and that Calandriello had been on the internet viewing pictures of assault weapons. It turned out that Calandriello had altered a motivational poster by replacing the head of a BNY employee with the head of Charles Manson. As a consequence, Calandriello received a final warning that any other similar displays, including on his computer, would lead to further discipline, up to and including termination of employment.

Several days later Calandriello told his boss that he had bi-polar disorder. Calandriello believed the disorder caused a lapse in judgment, which resulted in him inappropriately creating and displaying the Charles Manson poster. Calandriello contended he should be exempt from disciplinary action, because he was entitled to a reasonable accommodation under the Americans with Disabilities Act (“ADA”). As an accommodation to his disability, Calandriello requested that TPC remove the final warning from his personnel file.

During this same period, TPC was reviewing Calandriello’s internet use. TPC discovered that Calandriello had used his office computer to surf the internet for articles and images related to guns, rifles, and serial killers. TPC was particularly concerned about one image of an assault weapon with a silencer and bayonet. It was Calandriello’s rifle.

TPC believed Calandriello’s continued employment posed a high risk, particularly in light of recent reported increases in workplace violence. Accordingly, TPC terminated Calandriello’s employment for what it called a “loss of confidence” following the posting of the Charles Manson poster and the discovery of the inappropriate internet activity. Calandriello sued under the ADA, contending that TPC should have accommodated his disability by rescinding the final warning, and that he was terminated in retaliation for requesting a reasonable accommodation.

The court dismissed Calandriello’s reasonable accommodation claim, because TPC was not required to make the accommodation that he requested. Employers may impose discipline for workplace violations, and reasonable accommodation does not include foregoing or rescinding such discipline. An employer is not required to give an employee a second chance or excuse past misconduct, even if the misconduct is the result of a disability. In other words, anti-discrimination statutes do not insulate employees from appropriate discipline for violating work rules.

Calandriello‘s retaliation claim was also dismissed. Calandriello was fired because TPC was concerned about the possibility of workplace violence after he posted the Charlie Manson picture and the material involving assault weapons and serial killers was found on his computer. The court noted that the fear of workplace violence is a legitimate nondiscriminatory reason for an adverse employment action. Quoting a Seventh Circuit decision, the court wrote:

… But if an employer fires an employee because of the employee's unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act. . . . The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor's edge-in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone.

Palmer v. Circuit Court of Cook County, Ill., 117 F.3d 351, 352 (7th Cir. 1997)

Holiday Potables, December 17, 2009

by Peter S. Saucier

An employee of Santa Cruz county, whose name is not available, had been counseled without formal discipline about smelling like alcohol. Later, she began drinking vodka at 5:00 a.m. on a workday, and continued drinking from a flask throughout the day. By the end of the day, the employee, who drove her truck all day, ending with a fender-bender accident, "smelled of alcohol, had bloodshot eyes, slurred speech, and staggered when she walked." Her blood alcohol level was 0.20. Santa Cruz fired her, after which her union, SEIU, dutifully brought the matter to arbitration.

Arbitrator Paul D. Staudohar, whose name is available, ruled that the dead drunk truck driver was entitled to a "one-time exception." The earlier counseling was too gentle to count as an exception. According to Staudohar, "[T]he county did not have just cause to discharge [the driver]." Remarkable!

Pharmacist Who Breaks The Law Gets His Job Back, December 11, 2009

by Kelly C. Hoelzer

Medco Health Solutions is a large mail order pharmacy in Ohio, processing about 380,000 patient orders per week. In March 2007, one of its pharmacists, Brian Scott, spoke to a patient on the telephone about an order the patient sent in without the required prescription. Scott then falsely documented on the order form that the patient's physician had issued a prescription for the drug requested. Scott's falsification of the patient order was in violation of Ohio civil and criminal law. When his supervisor asked Scott about it, he lied and stated that he had talked to the doctor personally. As a result of Scott's unlawful and unethical conduct, he was fired.

Scott's union filed a grievance protesting his termination, which ultimately ended up in arbitration. The arbitrator found that Scott was terminated without just cause and reduced his penalty to a seventeen month unpaid suspension and reinstatement. His reasoning was that, even though Scott violated state regulations (putting his employer at substantial risk of liability), he did not act maliciously or with reckless disregard for the patient's safety and did not deserve to be fired.

Medco petitioned federal court to vacate the arbitration award on the grounds that reinstating the pharmacist would expose the company to possible liability for his future misconduct and force it to risk compromising public safety. Following the deferential standard in favor of enforcement of arbitration awards, the court disagreed. The court noted that the real issue was whether the arbitrator's decision to suspend Scott without pay and reinstatement – not whether Scott's conduct – violated public policy. Because the arbitration award punished Scott, though less severely, and did not condone his behavior, the court refused to vacate the award on the grounds that it violated public policy. Medco Health Solutions v. Assn. of Managed Care Pharmacists, No. 2:08-CV-1181 (S.D. Ohio Nov. 13, 2009).

No ADA Claim For Employee Reassigned To More Stressful Department, December 11, 2009

by Kelly C. Hoelzer

Becky Becerril works for the Pima County Assessor's Office in Tucson, Arizona. Becerril has temporomandibular disorder ("TMD") (a condition of the jaw), which she claims may be aggravated by stress. In December 2003, the County Assessor, Richard Lyons, transferred Becerril from the mobile home section of the office to the public service department. He did so because Becerril engaged in misconduct that was creating a morale problem in the mobile home section.

Becerril claimed the public service section was too stressful and asked to be transferred out of that area as a reasonable accommodation for her TMD. Lyons declined her request, and Becerril sued for disability discrimination under the ADA. (She ultimately transferred to the audit division). The district court granted summary judgment for the Assessor's Office, which was affirmed by the Ninth Circuit. The appellate court found that Becerril had no evidence to show that her employer's legitimate reasons for her reassignment to the public service section were pretext for disability discrimination, other than her personal speculation. The court also found that the Assessor's Office was not required to engage in the interactive process to find another reasonable accommodation for Becerril because she was not disabled within the meaning of the ADA. In its decision, the Ninth Circuit refused to retroactively apply the broader definition of "disability" created by the ADA Amendments Act of 2008 to Becerril's circumstances, following the lead of the District of Columbia, Fifth, Sixth, and Seventh Circuits. Becerril v. Pima County Assessor's Office, No. 08-17070 (9th Cir. Nov. 25, 2009) (per curiam).

It's Not Okay To Steal From Your Employer, Even When You Have Bills To Pay, December 9, 2009

by Kelly C. Hoelzer

Employees working at a warehouse operated by Ryder Integrated Logistics ("Ryder") in Highland Park, Michigan, are eligible for state unemployment compensation benefits when the warehouse has no work available. All they have to do is call into the state's automated system, request benefits, and establish their eligibility.

In December 2008, Ryder discovered that about 38 union employees received unemployment benefits for weeks that they actually were working. As permitted under its contract with the union, Ryder fired all of the dishonest employees without prior warning. After discussions with the union, the company decided to give all of the employees who had three weeks or less of double-dipping the opportunity to return to work under a last chance agreement.

There was only one employee who did not return to work under the last chance arrangement. When the HR manager and union business agent called him to encourage him to return to work on at least two separate occasions, he hung up on them. He still refused to talk to them, even when instructed to return to work and told that his failure to do so would result in his termination. Instead, after he was fired, he initiated a grievance through the union, which ultimately landed in arbitration.

The employee unabashedly acknowledged that applying for unemployment benefits for weeks he worked was fraud. Yet, he excused his behavior because he "had bills to pay." The arbitrator did not buy his excuse, finding that "this is a pure and simple example of a person with larceny in his heart. . . . If he had not been stealing from his employer he probably would have been following some other dishonest course. . . ." Noting that the employee rejected the helping hand the employer tried to extend to him, the arbitrator denied the grievance. Ryder Integrated Logistics, 126 LA 1725 (Daniel, Sept. 30, 2009).

FMLA Likely to be Amended for Airline Flight Crews, December 3, 2009

by Darrell R. VanDeusen

The House and Senate have now approved an amendment to the FMLA (H.R. 912, S. 1422) that will permit airline pilots and flight attendants to qualify for leave. The President is expected to sign this legislation, known as The Airline Flight Crew Technical Corrections Act. Interest groups have complained that, because of the way airlines record work hours, airline pilots and flight attendants face unique hurdles in qualifying for leave. Under the FMLA now, only hours worked by airline flight crews while “in flight” can be counted toward meeting the hours-of-service requirement, not work hours spent between flights or on while stand-by. The legislation modifies this definition by providing a “full-time equivalent” calculation for flight crews's work hours when considering whether an employee has worked 60 percent of a full-time schedule over the past year.

DOL Issues Guidance on H1N1 and the FMLA, December 1, 2009

by Darrell R. VanDeusen

Everyone’s getting into the act. The EEOC has issued guidance the implications of a pandemic - particularly H1N1 - on employee rights and employer obligations under the ADA. In early November, the DOL issued FAQ form guidance on “Pandemic Flu and the Family and Medical Leave Act.” No surprises here: covered employers must comply with the requirements of the FMLA. The seven page document can be found at http://www.dol.gov/whd/healthcare/flu_FMLA.pdf

Reminder to Maryland Employers on Direct Deposit and Debit Card Pay, December 1, 2009

by Darrell R. VanDeusen

Employers, and most employees, recognize the benefit of foregoing a paycheck in favor of direct deposit or debit cards. But, it’s easy to forget that a Maryland employer cannot make one of these options mandatory.

In an opinion letter issued in February 1994 (79 Op. Att’y 340), Maryland’s Attorney General stated that, because Maryland Wage law provides an employee must authorize the direct deposit (and now a debit card), an employer cannot demand employees take their pay that way, since you cannot penalize an employee for refusing to authorize the use of direct deposit or debit card.

Maryland’s Wage Payment & Collection Law (Md. Code Ann. Lab. & Emply. § 3-502) provides (emphasis added):

(1) in United States currency; or

(2) by a check that, on demand, is convertible at face value into United States currency.

(d) . . .

(2) An employer may not print or cause to be printed an employee’s Social Security number on the employee’s wage payment check, an attachment to an employee’s wage payment check, a notice of direct deposit of an employee’s wage, or a notice of credit of an employee’s wage to a debit card or card account.

(e) This section does not prohibit the:

(1) direct deposit of the wage of an employee into a personal bank account of the employee in accordance with an authorization of the employee; or

(2) credit of the wage of an employee to a debit card or card account from which the employee is able to access the funds through withdrawal, purchase, or transfer if:

(i) authorized by the employee; and

(ii) any fees applicable to the debit card or card account are disclosed to the employee in writing in at least 12 point font.

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 1999 - 2010 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.^tm