October 2009 Quick Clips

OSHA Announces Review of State Safety Plans, October 30, 2009

As most employers know, in many states, OSHA regulations are enforced by state agencies. In Maryland, MOSH is the agency, and except on federal property and around the waterfront, MOSH enforces federal safety and health laws.

OSHA has announced that it plans to review all state plans to make sure they are being “tough enough” with employers in their state. Some accountant working for the Department of Labor has determined that state fines average about 65% of federal fines, somehow suggesting that the nation’s laws are not being properly administered.

Of course, in typical governmental fashion, OSHA is looking at punishment levels, not safety levels, to determine effectiveness. Perhaps the low fines mean that those states are doing a better job than OSHA at promoting safety. If a state plan is being effective, wouldn’t you expect the amounts of fines to be less? Apparently, not OSHA.

EEOC Makes New Poster Available, October 29, 2009

by Frank L. Kollman

The EEOC has issued a new poster to take into account several changes in federal discrimination law. Specifically, the Americans with Disabilities Act was amended to broaden its coverage, and Congress passed a new Genetic Information Nondiscrimination Act. Posters can be ordered and downloaded from the EEOC's website at http://www.eeoc.gov/posterform.html.

Expiration of Employment Contract Doesn't Prevent Discrimination Lawsuit, October 27, 2009

by Frank L. Kollman

A federal appeals court in New York has ruled that the failure to renew an employment contract can trigger a discrimination claim. The trial court had ruled that once the contract expired, the employer had no obligation to renew it, and therefore could not be sued for failure to renew. The appeals court disagreed, finding that if the decision not to renew was motivated by race, sex, etc., the employee could sue. Leibowitz v. Cornell Univ., No. 07-4567-cv (2d Cir., October 23, 2009).

If an employee's employment contract is about to expire and there is no intention to renew it, the employer should be prepared to show a non-discriminatory reason for doing so. In other words, the employer should not rely on the expiration of the employment contract as the sole reason for failure to renew, especially if the employee wants to stay longer.

Federal Court Slams Retaliation Claim Under FMLA, October 26, 2009

by Frank L. Kollman

An employee fired 5 months after taking time off under the Family and Medical Leave Act for poor work performance was found not to have been the victim of retaliation. The court, a federal appeals court in Chicago, noted that performance issues had been documented before the FMLA leave had been taken. Long v. Teachers' Ret. Sys. of Ill., No. 08-3094 (7th Cir., October 23, 2009).

This case illustrates the wisdom of documenting performance problems as soon as they arise. Waiting until after a bad employee takes FMLA leave, becomes pregnant, complains about discrimination, or otherwise becomes protected under the anti-retaliation clauses of federal and state labor statutes is never a good idea. Deal with employment issues immediately.

H1N1 Flu Guidance For Employers, October 21, 2009

by Clifford B. Geiger

The CDC and EEOC have both issued guidance for employers preparing for and dealing with the H1N1 flu pandemic. The CDC’s suggestions can be viewed at http://www.cdc.gov/h1n1flu/business/guidance/. The EEOC’s guidance, which primarily relates to complying with the ADA’s rules about medical exams and disability-related inquiries when facing a pandemic, can be found at http://www.eeoc.gov/facts/pandemic_flu.html.

Attorneys General Threaten FedEx Ground With Lawsuit, October 21, 2009

by Clifford B. Geiger

This week the states of New York, New Jersey, and Montana told FedEx Ground Package System Inc. (FedEx) that they intend to commence litigation over FedEx’s policy of classifying its drivers as independent contractors rather than employees. The attorneys general of these states cited, in particular, the level of control FedEx exerts over the drivers, even down to the colors of the drivers’ socks. The letter from the attorney generals, which reviews some of the details that determine proper classification as employee or independent contractor, can be found at http://oag.state.ny.us/media_center/2009/oct/pdfs/Oct%2020%20letter.pdf. Other states have also expressed concern about FedEx’s classification practices, and FedEx is already engaged in multidistrict litigation involving the same issue.

Not So Clear Arbitrator Vision, October 15, 2009

by Peter S. Saucier

An Area Supervisor for Lewis County had seen something in a movie that he found so intriguing that he had to share it with co-workers. Apparently, this jokester learned that drinking Visine induces distressful diarrhea. He announced to co-workers that he was going to put some in his boss's coffee. Later, the Area Supervisor told others that he placed the Visine in coffee and gave it to the boss, but the boss did not drink it.

When the employer learned about these acts, it terminated the employment of the Area Supervisor. Teamsters Local 252, his friendly union representative, pursued a grievance on his behalf, taking the matter through to arbitration. Arbitrator Robin A. Romeo "reinstated [the Area Supervisor] with full back pay and benefits . . . ."

Arbitrator Romeo reached that conclusion despite finding, "The [Area Supervisor] made a threat of harm against his supervisor. Telling co-workers that you should put Visine in someone's coffee is a threat." But, Romeo said, there was no proof that the Area Supervisor had received copies of the Workplace Violence and Personal Conduct policies. Moreover, although the Area Supervisor's file contained "two prior incidents of misconduct," it also held "certificates of completion of training courses . . . ."

So, unless you have clear written direction not to threaten to poison your boss, and as long as you apparently fail at the undertaking, you simply have to pocket a couple of certificates to counterbalance any prior misconduct. Then, a termination becomes a thirteen-month, fully paid vacation.

Arbitrator's Trick Question: What Date is the Fourth of July? October 14, 2009

by Peter S. Saucier

WOTCO, Inc. has a collective bargaining agreement with the Ironworkers that provides Independence Day as a paid holiday. Employees who work on a holiday are paid double time the hourly rate, and holiday pay. The agreement also reads that Sunday holidays are celebrated on Monday, but is otherwise silent as to moving holidays.

July 4, 2008, was a Friday. No surprise to most of us, that also was Independence Day, celebrated on July 4 of each year since George Washington issued a double ration of rum to the troops on that date in 1778.

In the summer of 2008, the Ironworker employees at WOTCO were regularly scheduled to work 10 hours a day, Monday through Thursday, with 8 hours of mandatory overtime on Friday. Understandably, WOTCO celebrated the Fourth of July on . . . well . . . the Fourth of July. The employees wanted the holiday to be celebrated on Thursday, July 3 – the last regular work day.

Arbitrator Martin Henner ruled that Independence Day at WOTCO should have been on July 3, 2008. In part, he reached that conclusion because, "[a]rbitration is an equitable proceeding." Apparently equity trumped the calendar.

Indefinite Leave Is Not Reasonable Accommodation Under ADA, October 9, 2009

by Kelly C. Hoelzer

The ADA prohibits disability discrimination in the workplace. When an employee becomes disabled, as defined under the ADA, her employer is expected to make reasonable accommodations for her disability if she is otherwise qualified to perform the essential functions of her job. Courts routinely hold that attendance at work can be an essential function of the job.

Ana Cortez's lawsuit against her former employer, Raytheon Company, is one such case. Cortez worked as a senior IT technologist for Raytheon and went out on medical leave in 2005 due to complications with her pregnancy. After she gave birth in December 2005, Cortez did not return to work as she had planned in February 2006. Instead, Cortez continued her medical leave due to her post-partum depression and a variety of other physical problems. Raytheon extended her medical leave six times until late 2006. Cortez received long-term disability benefits during that time. In September 2006, the LTD insurance carrier determined that Cortez was no longer eligible for benefits because there was no indication of any medical condition that prevented her from working. After the carrier told Raytheon about terminating Cortez's benefits, the company sent her a letter requesting her to return to work because she had exhausted her FMLA leave and no longer had medical certification of her need for LTD benefits. Cortez told the company that her doctor would not release her to return to work at that time because he wanted to monitor her progress for awhile, but that she might be able to come back a few months later. Cortez also inquired about telecommuting, staying indefinitely on medical leave, or taking educational leave. When Cortez ultimately failed to return to work as requested, she was fired.

Cortez sued for disability discrimination under the ADA. The court found that Cortez was not a qualified individual with a disability because she could not meet one of the essential functions of her job – i.e., coming into work. The court also ruled that Cortez essentially wanted "open-ended leave," which was not a reasonable accommodation. The court granted summary judgment in favor of Raytheon. (Cortez v. Raytheon Co., No. 3:08-cv-00801-K (N.D. Tex. Oct. 1, 2009).

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