Court Rules That Wrongful Discharge Claim May Be Brought By Employees Who Cooperate With Authorities In Investigations Of Wrong Doing,ecember 21, 2005
by Pat Stewart
The United States District Court for the District of Maryland recently held that a claim for wrongful discharge may be brought by an employee who claims that he was terminated for cooperating with federal authorities in its investigation of his employer's accounting practices. The case involved the issue of whether Maryland's public policy supported a claim for wrongful discharge based upon an employee's cooperation with authorities in an investigation as opposed to an employee's reporting improper conduct to authorities ("whistleblowing"). After reviewing Maryland statutes which prohibit persons from retaliating against individuals who testify in an official proceedings, the Court ruled that a wrongful discharge claim could be pursued by the employee even if he did not initially report the improprieties.
The case sends a message to all Maryland employers - - act with great caution if you consider terminating an employee who provides (or provided) information to authorities in an investigation of wrongdoing.
New Employee Notice Posting Required, December 21, 2005
by Pat Stewart
The U.S. Department of Labor recently issued a new regulation which requires employers to post a newly revised notice which informs employees of their rights under the Uniformed Services Employment and Re-employment Rights Act of 1994 ("USERRA"). USERRA is the successor of the Veterans' Re-employment Rights Act. USERRA affects employment, re-employment, and retention in employment, when employees serve or have served in the uniformed services. The notice is required to be posted not later than January 18, 2006. Copies of the notice can be downloaded from the Department's website at http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf.
Union Win Rate Increasing In 2005, December 16, 2005
by Eric Paltell
Statistics released by the National Labor Relations Board ("NLRB") reveal that labor unions have increased their win rate in NLRB representation elections. For the first half of 2005, unions won 68.8% of the elections, compared to only 57.8% in the first six months of 2004.
However, these numbers may be deceiving. First, their were fewer elections in the first half of 2005 then there were in 2004 -- 1,140 in 2005, compared to 1,212 in 2004. Second, unions organized about 24% fewer workers through these elections then in the same period in 2004. Simply put, although the unions win a greater percentage of the elections, they are gaining fewer members through the election process then they did in the preceding year.
The number of decertification elections (where employees vote to get rid of the union) declined slightly in 2005, down to 185 from 219. Once again, the union win rate in these decertification elections increased, this time from 29.7% to 35.7%.
The most active unions on the election front were the Service Employees International Union ("SEIU"), and the United Food and Commercial Workers ("UFCW"). Significantly, all three of these unions have recently left the AFL-CIO and become part of the Change to Win Coalition. The SEIU had the highest win rate of any union in NLRB elections.
These statistics show that unions may be more selective when choosing to file NLRB election petitions. Moreover, the success of the unions which have formed the Change to Win Coalition should put employers on the lookout for increased organizing activity by these unions. As the old saying goes, "the best defense is a good offense" – if an employer treats employees fairly and pays them competitively, there will be no need to worry about your chances of winning an NLRB election!
Employer Settles Failure To Accommodate Guide Dog Case, December 16, 2005
by Eric Paltell
The Equal Employment Opportunity Commission ("EEOC") recently announced a $200,000.00 settlement involving a telemarketing firm that refused to hire a blind applicant because of her reliance on a guide dog. The case is believed to be one of the first cases of its kind to be brought by the EEOC.
The lawsuit arose when Ginny Quick, who is blind, applied for a job as a telemarketing service representative in 2002. Quick was invited to the employer's office for an interview, and was accompanied by her guide dog. Later, she was rejected for the position, with the employer telling her it could not accommodate her guide dog.
Although every employer may not be required to hire an employee with a guide dog, in this case, experts engaged by the EEOC evaluated the facility and determined that it was suitable for use by a blind worker together with a guide dog. Had the employer been able to present evidence that the presence of the guide dog would have imposed an undue hardship on the office or other employees, the employer may have been able to prevail.
The lesson to be learned by employers is that, in cases involving disabled applicants, the employer needs to make an individualized assessment as to whether an accommodation requested by the applicant is reasonable. If the employer can document that it gave careful consideration to the applicant's request but determined that the request would impose an undue hardship, the employer should be able to successfully defend against any charge of disability discrimination.
Private Eyes...They're Watching You! December 12, 2005
by Clifton R. Gray
One of the inherent outcomes of the Family and Medical Leave Act (FMLA) is that skeptical employers will often take it upon themselves to inquire into whether an employee claiming that he or she needs FMLA leave is truthful or is just taking advantage of the law. Such was the case with Brian Colburn, a machine operator in Maine. His employer became understandably suspicious when Mr. Colburn began to take intermittent sick leave on account of, as Colburn put it, migraine headaches that rendered him unable to perform "all activities when an attack occurs, including driving." Between October 2001 and January 2002, Colburn missed twenty five days' work, claimed to be due to migraines.
While there is little dispute that migraine headaches can be severe enough to allow for the use of FMLA leave, Colburn's employer grew curious when Colburn never provided it with the medical information it requested to substantiate Colburn's need for medical leave and to determine his eligibility for disability benefits. With a growing realization that Colburn might be trying to pull a fast one on it, the employer hired a private investigator to follow Colburn around to see if he truly was incapacitated from these, ahem, migraines. It also didn't help matters when Colburn could not be reached at home on days when he called in sick.
Sure enough, the private investigator soon found out that Colburn wasn't exactly incapacitated on the days he called in unable to work because of migraines. In fact, the private investigator followed Colburn as he went to the gym to work out, rented some videos, and then went shopping...all on days where he called in sick! Oh, and let's not forget that Colburn also took the time to stop at a convenience store to pick up some much needed remedies for his migraines...beer and pretzels. And so much for that whole not being able to drive business! Upon receiving an detailed report of these excursions, Colburn was terminated from employment.
At trial, claiming that he was terminated in violation of his FMLA rights (more specifically, that he was retaliated against), Colburn actually had the gall to state that his activities (shopping, working out, buying beer, driving) were not "inconsistent with his having a migraine which prevented him from working" and that "he was most likely experiencing the onset or aftermath of a migraine, which did not prevent him from functioning at the minimal levels shown on the video." Please refrain from laughing.
Unimpressed with this argument, the lower court granted summary judgment in favor of the employer. On appeal to the First Circuit, that court upheld the holding of summary judgment, but for differing reasons. Colburn v. Parker Hannifin/Nichols Portland Div., F.3d (1st Cir. 2005). Nevertheless, this case just goes to show that sometimes an employer need only scratch the surface to see that the continual sick leave that an employee takes may be just another instance of an abuse of a law (the FMLA) intended for beneficent purposes. I do suppose that Colburn has quite a lot of time to alleviate his migraine headaches with beer and pretzels post- termination.
Monkey Business? – Sex Harassment Suit Involving Koko the Gorilla Settles, December 9, 2005
by Clifton R. Gray
If anyone ever doubted that truth is often stranger than fiction, you should refer them to this story. It seems that in February 2005 two former employees of the Gorilla Foundation, an organization founded in 1976 to promote the preservation and study of gorillas, sued the Foundation, alleging sexual discrimination, wrongful termination in retaliation for reporting health and safety violations, and failure to pay overtime or provide breaks.
The really shocking allegations by the women involve the discrimination claim, in which the women alleged that they were told to show Koko, perhaps the world's most famous gorilla, their breasts. According to the two women, Francine Patterson, Koko's longtime caretaker and president of the Gorilla Foundation, pressured the women to expose their breasts as a way to bond with the 33- year-old simian. The actual lawsuit claimed that the two women were threatened if they "did not indulge Koko's nipple fetish." The two women chose not to "indulge" Koko and sued the Gorilla Foundation instead, seeking more that $1,000,000 in damages. Although the dispute has now settled, a separate lawsuit against the Gorilla Foundation by another female employee, alleging the same conduct (although apparently this female employee did choose to remove her clothing to "indulge" Koko) has not been resolved.
Wacky story, eh? I wonder if Koko, who knows how to communicate through sign-language (having mastered a vocabulary of over 1,000 signs) will be able to put her skills to use on the witness stand. Yes, truth is stranger than fiction!
Employer Must Pay Contributions To Pension Fund For Its Use Of Subcontractors, December 2, 2005
by Kevin J. Allis
In a case heard before the U.S. District Court of Illinois, the Court ruled that a trucking company was not obligated to make benefit fund contributions on behalf of an independent contractor. However, as a remedy for breaching the collective bargaining agreement's subcontracting agreement, the employer must pay contributions to the fund. (Trustees of the suburban Teamsters of Northern Illinois Welfare and Pension Funds v. Hope Cartage, Inc.)
The owner of Hope Cartage Inc., and the only employee, signed a bargaining agreement with Teamsters Local 179. This agreement required Hope Cartage to make contributions to the Suburban Teamsters of Northern Illinois Welfare and Pension Funds ("Funds"). Additionally, the agreement contained a provision requiring Hope Carthage to employ at least two employees before subcontracting work.
It late 2001 it was discovered the Hope Cartage had failed to make any contributions on behalf of its only employee, who also was the owner. Shortly thereafter, it was discovered that Hope Cartage subcontracted out some of its work and had not made contributions. The Funds' trustees filed a lawsuit against Hope Cartage seeking nearly $200,000 in contributions on behalf of its only employee, and $23,000 in contributions on behalf of the subcontractors.
Hope Cartage's owner and sole employee argued that it would violate the Labor Management Relations Act ("LMRA") and ERISA to require that contributions be made on behalf of the owner of a one-man corporation. The Court found no merit in this argument and held that the status of Hope Cartage's owner as a sole employee did not prohibit his participation in the plan. As a result, Hope Cartage had to pay nearly $200,000 in delinquent contributions to the Funds.
As to the contributions for the subcontractors, the Court held that the bargaining agreement required Hope Cartage to make contributions to the Funds on behalf of "employees." Since independent contractors are not employees, and could never qualify as such, any contributions on behalf of these individuals would violate the LMRA. However, the Court noted that Hope violated the bargaining agreement's subcontracting agreement by not hiring at least two employees before contracting work out to independent contractors. As a result, the Court held that Hope Cartage must pay to the Funds those contributions that would have been made had it hired additional employees, pursuant to the collective bargaining agreement, instead of hiring the subcontractors.
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