December 2006 Quick Clips

Unqualified Employee Can Proceed with Discrimination Claim, December 22, 2006

Failing to hire an unqualified applicant can’t get an employer into trouble, right? Wrong. In Scheidemantle v. Slippery Rock Univ., No. 05-3850 (3d Cir. Dec. 19, 2006), the Third Circuit held that a female locksmith who was twice not hired for jobs because she was not qualified, nevertheless established a prima facie case of discrimination (and probably survive summary judgment) because she was able to show that the men hired for the positions were also unqualified. "If an employer could, with impunity, appeal to objective qualifications to defeat any female job applicant's challenge to its hire of an objectively unqualified male in her place, discrimination law would be reduced to bark with no bite," said the court. "Title VII demands that employers apply the same standards for hiring women and other protected minorities that they apply to all other applicants." The moral of the story - employers need to remember that discrimination claims will be assessed against the way the employer treats similarly situated employees.

Written Reprimand Without More is not an Adverse Act, December 22, 2006

by Darrell R. VanDeusen

Since the Supreme Court’s decision this past summer in Burlington Northern v. White, 126 S. Ct. 2405 (2006), the question of whether the Court’s "materially adverse" standard for retaliation claims will apply to a substantive discrimination claims has been hanging out there. In Wallace v. Georgia Dep't of Transp., No. 06-13345 (11th Circuit, December 13, 2006)(unpublished), the Eleventh Circuit has held that it does not. The court held that an African-American employee who was issued a written reprimand that did not carry with it any tangible harm, could not show disparate treatment even though he alleged other, white, employees had engaged in the same or worse behavior and had not been disciplined at all. "We reject Wallace's argument that Burlington Northern applies to his substantive disparate treatment claim," said the court. "The [U.S.] Supreme Court made clear in that case that the standard defining an adverse employment action in the context of a retaliation claim does not apply to a core Title VII discrimination claim."

FMLA: It’s 12 Months TOTAL Employment, December 22, 2006

by Darrell R. VanDeusen

The FMLA provides coverage to employees who have worked for an employer for 12 months cumulatively, provided that they have worked for 1,250 hours in the past twelve months. Some employers get confused and think this means the employee must have worked for the most recent past 12 months. It does not. The First Circuit recently made this clear in Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, No. 06-1633 (1st Cir. December 18, 2006), finding that a car salesman with a five-year break in service, but who then worked more than 1,250 hours in the seven and a half months after he returned could proceed with his FMLA claim. "We hold that the FMLA itself is ambiguous as to whether previous periods of employment count toward the 12-month requirement, but regulations promulgated by the United States Department of Labor . . . establish that previous periods of employment do count," said the court.

Be Consistent, Be Consistent, Be Consistent…, December 21, 2006

by Pat Stewart

How many times do human resources managers tell their organization of the need to be consistent in the interpretation of policies to minimize the risk of a discrimination claim? Hopefully, all the time. The need to be consistent was amplified in a recent NLRB decision where the Board ruled that the employer’s inconsistent application of a leave policy justified the overturning of a union election won by the company.

The case arose when the IBEW filed a petition for a representation election at the Exelon Generation Company. As usually is the case, the NLRB held a hearing to determine which employees constituted an appropriate bargaining unit. Prior to the election, the union served subpoenas on a number of union supporters to assist the union at the hearing and to offer testimony if necessary. When the employees informed their supervisor that they had received subpoenas and wanted to use the time off as unpaid leave, they were told that they could only use unpaid leave if their paid time off accounts were exhausted. The employees objected but went to the hearing nonetheless.

The election proceeded to a vote and the company won by a narrow margin (328 to 325). After the election, the union filed objections claiming that the results should be set aside and a new election ordered because the company violated the National Labor Relations Act (‘the Act”) by requiring the employees who were subpoenaed the hearing to use their accrued vacation time as opposed to leave without pay.

In response, the company pointed to its leave without pay policy. The policy clearly stated that unpaid leave may be available under certain circumstances. It further stated that the policy was to “allow eligible employees whose services can be spared to take paid and unpaid time away from work for justifiable reasons” and that “the Company will substitute accrued, available vacation and floating holidays for unpaid personal leave of absences.” The plant manager went on to testify that the company regularly requires employees to exhaust their paid leave accounts prior to having the time off as unpaid leave and he provided several examples. The NRLB, however, introduced many examples of situations where employees were given unpaid time off without the need to use their accrued paid time off, examples for which the company could not rationalize or justify. The Board then concluded that given the anti-union animus demonstrated against the union supporters, the company’s failure to provide them with unpaid leave was discriminatory and in violation of the Act. As a result, it negated the election results and ordered another election.

Darn; had the company just been consistent….

The case is Exelon Generation Co., 347 NLRB No. 77 (2006).

Anti-Harassment Policy Works, December 18, 2006

by Pat Stewart

As most employers are aware, an effective anti-harassment policy may operate as a shield to certain claims of harassment. Specifically, the courts hold that an employer may escape liability by showing that it had reasonable measures in place to prevent and promptly correct any harassing behavior.

In a recent case in Pennsylvania, the employer published an employee policy manual that described its anti-discrimination policies and reporting procedures. It also specifically identified several company officials to whom harassment was to be reported, and provided their home and work phone numbers. When sued for harassment, the employer pointed to the policies, demonstrated that the employee received the policies and that he never complained to any of the individuals identified in the policies.

Guess what? It really can work--the court dismissed the case!

Flsa's Motor Carrier Exemption In Jeopardy, December 15, 2006

by Eric Paltell

The "Motor Carrier Exemption" to the overtime requirements of the Fair Labor Standards Act provides that employees who transport certain goods or vehicles across state lines need not be paid overtime. To qualify for the exemption, the employee must be one "with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service" under the Motor Carrier Act. In practice, this exemption has applied to a broad range of individuals, ranging from truck drivers to persons transporting company-owned tools across states lines in conventional automobiles.

On August 10, 2005, Congress passed the "Safe, Accountable, Flexible, Efficient Transportation Equity Act" ("SAFETEA"), which eliminated the Transportation Department's authority to regulate commercial vehicles weighing 10,000 pounds or less. As a result, drivers of vehicles under this weight may no longer be subject to the FLSA's Motor Carrier overtime exemption. One federal court in Georgia has already questioned the impact of the SAFETEA when it allowed a printing company driver to use his own car to transport company materials to proceed with an overtime claim under the FLSA because of the 2005 change in the law.

Based on the legislative history of SAFETEA, it does not appear that changes in the Motor Carrier Act definitions were intended to limit the scope of the FLSA's Motor Carrier exemption. Rather, it appears the change was intended only to ease the regulatory burden on certain transportation industry employers. As a result, on December 6, 2006, the United States Chamber of Commerce sent a letter to House and Senate leaders urging Congress to fix the 2005 legislation.

It appears that it is unlikely Congress will take action to correct the legislation before its holiday recess. As a result, employers need to be careful about applying the Motor Carrier exemption to employees who drive vehicles that weigh less than 10,000 pounds.

Union Leaders Seek Passage Of Card Check Legislation, December 15, 2006

by Eric Paltell

Just one month after Democrats regained control of Congress, labor leaders are pushing for the enactment of a law that would signal the end of secret ballot elections in the workplace. The new legislation, ironically called the "Employee Free Choice Act" (HR 1696; S842), would require employers to recognize a union when a majority of workers sign authorization cards.

Similar legislation has been introduced in Congress for a number of years. However, the Republican-controlled leadership failed to give the bill a hearing or a vote. With a change in party control, labor leaders believe they will be able to get the legislation to a vote.

If enacted, the Employee Free Choice Act would dramatically change the way unions organize work places. Rather than allowing employees to vote for or against a union in a confidential, secret ballot election, employees would be forced to make their choice publicly known. Specifically, union organizers could ask employees to sign authorization cards (hence the term "card check"), and employers would be forced to bargain with the union if the union presented authorization cards signed by a majority of employees in the "appropriate bargaining unit."

Many labor law practitioners have concerns about these so called "card checks" because the employer does not know the circumstances under which the employee signed the authorization card. Indeed, we have had cases where less than one third of the number of employees who sign authorization cards actually voted in favor of the union when a secret ballot election was held. Many emplolyees tell stories of orgainzers and coworkers exerting tremendous pressure on them to sign authorization cards. For this reason, we remain highly skeptical that any union that is recognized on the basis of a "card check" is the product of "employee free choice."

High School Dropout Unsurprisingly Unqualified, December 7, 2006

by Clifton R. Gray

In the area of Title VII jurisprudence regarding claims of failure to hire because of unlawful discrimination, in order to be successful in his claim a plaintiff generally must be able to show that he was actually qualified for the job in question. If he cannot show this, courts will likely find in favor of the employer. Once such recent case highlighting this requirement concerned a high school dropout who applied to be a sales associate at a Radio Shack store during the busy holiday season, a time when many stores, including Radio Shack, hire extra employees to be able to handle the higher sales volume. The applicant, Mylann Overall, completed a job application, but the manager at the local Radio Shack store refused to accept it. Overall then brought suit against Radio Shack, claiming that this denial of his application was due to him being African- American. The District Court granted summary judgment for the employer.

On appeal to the Sixth Circuit, the court stated that to make out a prima facie case of discriminatory refusal to hire, one of the elements that Overall had to show was that "he was qualified for the job." The job description for a sales associate position at Radio Shack required that an applicant over the age of eighteen have a "high school diploma or equivalent." Overall did not, and he could not show a single instance where Radio Shack did not follow this requirement in its hiring of sales associates. Thus, the Sixth Circuit affirmed the lower court's grant of summary judgment for Radio Shack.

One good things appears to have happened to Overall because of this lawsuit. The Sixth Circuit noted in a footnote that he has since earned his general equivalency degree (GED), which, if he had acquired prior to applying to Radio Shack, would have made him qualified for the sales associate position. Overall v. Radio Shack Corp., No. 05-4520 (6th Cir., filed October 18, 2006).

A Smelly Situation, December 6, 2006

by Clifton R. Gray

The U.S. District Court for the Eastern District of New York recently granted summary judgment for an employer where a former employee brought a lawsuit alleging she was terminated because of her irritable bowel syndrome (IBS) in violation of the Americans with Disabilities Act (ADA). Crawford v. New York Life Insurance Co., No. 04-CV-1853 (E.D.N.Y. 2006). Crawford, the plaintiff, a former legal secretary in the company's Office of General Counsel, suffered from IBS, which caused her to experience bouts of diarrhea during the workweek. Her IBS caused her to feel embarrassed and socially isolated, and she carried around "personal sprays" to cover up any unpleasant odors. She alleged that her co-workers were often rude to her in regard to her IBS, commenting on how bad her work area smelled and that the reason why her work area was near a bathroom was "because you stink." Crawford admitted, however, that her work area did smell bad, as she "had gas 24/7." When she was absent for several days from work, thus exceeding her permitted absences for the year, allegedly because she was stressed out by her co-workers' behavior, she was terminated.

The District Court, in its determination of whether the ADA had been violated when the company terminated Crawford, first had to decide whether she was in fact "disabled" under the ADA. While the court acknowledged that it was possible that a person suffering from IBS could, in fact, be disabled for the purposes of the ADA, the court found that Crawford was not, as she could not show that her IBS-related symptoms "substantially limited" her in "any major life activity." While the ability to interact with others, to eliminate waste, and to work had previously been held by the Second Circuit to constitute major life activities, the District Court found that Crawford has not presented sufficient evidence to show that her "IBS had substantially limited these activities." The court pointed out that Crawford admitted that while her IBS sometimes impaired the speed at which she completed her work assignments (as she was often in the bathroom), it did not prevent her from completing her work. Also, her IBS did not substantially limit her interaction with others, as she "was able to communicate with her superiors and coworkers enough to complete her work," and she admitted that it did not prevent her from being an active member of her church group, for which she participated in religious activities "several times per week."

What this case makes clear is that an employee who suffers from what many would consider to be a disability may not actually be regarded as "disabled" under the ADA if the employee cannot show that the disability "substantially limits" her in a major life activity. Crawford could not show that her IBS did "substantially limit" her in a major life activity to the court's satisfaction, and summary judgment for the employer was granted.

Reserve Duty Not Always Considered Compensable "Working" Time, December 1, 2006

by Kevin J. Allis

The Tenth Circuit recently determined that an America West Airlines pilot's paid reserve duty time is not considered compensable "working" time when determining if she worked sufficient hours for FMLA coverage. (Knapp v. America West Airlines, 10th Cir., No. 05-4322, unpublished opinion, November 24, 2006). America West paid Knapp a guaranteed amount while on reserve duty. During this time, she could not drink alcohol, had to be available by phone, and had to be able to report to the airport, in uniform, within one hour of being called.

Knapp argued that since her reserve duty time severely restricted her ability to engage in personal activities, and coupled with the fact that under the terms of her employment contract she was paid for reserve duty time, all such time should be considered compensable "working" time.

Knapp's son suffered from a medical condition that qualified as a "serious health condition" as defined by the FMLA. However, when Knapp requested FMLA leave to care for her son, the airline denied her request on the grounds that she did not work at least 1,250 hours during the preceding 12 months to qualify for FMLA leave. The airline refused to count her reserve duty time as compensable "working" time when determining if she could take FMLA leave.

The court sided with the airline. Consistent with what courts traditionally look at when determining whether on-call time is compensable "working" time, it considered Knapp's restrictions on movement, response time, frequency of calls, and her actual use of on-call time. The court recognizing that no one factor is determinative, and Knapp's failure to provide any evidence that the airline frequently called her into work, concluded that the reserve duty requirements did not infringe upon her freedom as to raise her reserve duty time to be considered compensable "working" time. Finally, the court noted that despite the fact that she was paid for reserve duty time, that alone did not require the court to render such time as "working" time.

This matter highlights considerations for what makes on-call time compensable or not. Remember that the underlying inquiry almost always involves the amount of freedom an employee has while on call, and whether this level of freedom allows the on-call time to be effectively used by the worker for his or her own purposes. Make sure not to place too many restrictions on employee movements and give employees enough time to respond to calls.

Department of Labor Seeks Comments on FMLA, December 1, 2006

by Frank L. Kollman

After 12 years, the Wage and Hour Division of the Department of Labor is contemplating a major overhaul of its regulations under the Family and Medical Leave Act. It is seeking comments from the public on all aspects of the FMLA, with an emphasis on the following 12 areas:

Computing the 12-month eligibility requirement for FMLA leave. For example, must the 12 months be consecutive?
Definition of Serious Health Condition.
Definition of a "day" in determining seriousness of illness. Should holidays count?
The effect of the substitution of paid leave for unpaid FMLA leave. Should the employer be able to apply normal paid leave policies?
The effect of the FMLA on attendance policies. Should "perfect attendance" programs be rendered obsolete by the FMLA?
Whether employees are abusing FMLA leave, especially in the area of "intermittent" leave?
Should light duty count as FMLA leave?
Should an employer be able to prevent an employee from taking FMLA leave by modifying the essential functions of his or her job?
Should employees be able to settle FMLA claims without causing problems under the section that prohibits waiver of FMLA rights?
Communication between employers and employees. What should be required?
Medical certifications. For example, is the process fair, adequate, and understandable?
The effect of FMLA on employee morale and worker retention.

Comments are due by February 2, 2007. For more information, consult the DOL website at http://www.dol.gov/esa/whd/fmlacomments.htm.

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