What's Good For The Goose.... January 28, 2005
by Eric Paltell
The Equal Employment Opportunity Commission ("EEOC") is the federal agency responsible for enforcing federal anti-discrimination laws. The EEOC also enforces the law which makes it illegal to retaliate against employees who bring complaints of discrimination. And, not surprisingly, the EEOC is supposed to abide by these laws as well.
In the recent case of Castillo v. Dominguez, the United States Court of Appeals for the 9th Circuit held that the EEOC may have violated the very rules it enforces by the way they treated one of their own employees. The case arose after Castillo, a Hispanic investigator in the EEOC's San Diego office, alleged that the Office Director discriminated against her in 1999 by promoting a Black female co-worker to a supervisory position instead of Castillo. Castillo also claimed that the failure to promote her was retaliation for her having filed previous complaints of discrimination against two former supervisors.
The Court dismissed Castillo's discrimination claim against the EEOC. However, the Court found sufficient evidence to -- including allegations that Castillo was referred to as a "trouble maker" by her supervisors -- to conclude that the EEOC may have retaliated against her for bringing prior complaints. For this reason, the Court ordered that Castillo's retaliation case must go to trial.
This decision reminds us of the old proverb "What's good for the goose is good for the gander." It is also a reminder that employers must be very cautious when dealing with current employees who have brought discrimination complaints. As the Castillo case shows, comments like "trouble maker," which might be harmless in another context, can be deemed to be the "smoking gun" evidence of retaliation when that person has filed a discrimination claim.
Beer Delivery Driver Exempt From Overtime, January 27, 2005
by Eric Paltell
Most employers treat delivery drivers as "non-exempt" employees who are entitled to receive overtime for working more than 40 hours in a week. However, a recent opinion from the United States Court of Appeals for the 4th Circuit (which has jurisdiction over Maryland, Virginia, West Virginia, South Carolina, and North Carolina) demonstrates how some delivery drivers may be exempt for overtime under a little known rule.
Generally, the Fair Labor Standards Act ("FLSA") requires that employees who are engaged in interstate commerce be paid overtime for working more than 40 hours in a week. However, employees who fall within the "Motor Carrier Act" exemption are exempt from overtime. The Motor Carrier Act exemption applied to "any employee with respect the whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49 [the Motor Carrier Act]." Courts have interpreted this exemption to extend not just to drivers who actually cross state lines while transporting goods, but also to drivers whose cargo originates from outside the state, or is ultimately bound for destinations outside the state, even if the driver's route is entirely intrastate.
In Talton v. I.H. Caffey Distributing Company, the employee was a driver and sales route representative responsible for unloading, pricing, stocking, and securing payment for beer. After he quit work in June 2002, he sued his employer for unpaid overtime. The employer argued that he was not entitled to overtime because at least half the beer he distributed was produced outside of North Carolina and, therefore, the beer he carried and delivered was an item in interstate commerce. The trial court, as well as the Fourth Circuit Court of Appeals agreed, and ruled that Talton was not entitled to overtime.
This decision highlights the importance of a relatively obscure exception to the overtime requirements of the FLSA. However, the details of the Motor Carrier Exemption are complex, and employers should seek advice from counsel before denying overtime payment to employees based upon this exemption.
New NLRB Rule to Allow Regional Director to Resolve all Election Disputes, January 18, 2005
by Kevin J. Allis
Effective March 1, 2005, the NLRB's Rules and Regulations will get a new addition that will afford employers and unions the ability to agree that all pre-election and post-election disputes will be resolved by the Regional Director. This voluntary procedure will resolve such disputes with finality with no right to appeal the Regional Director's decision to the board.
Currently, under Section 102.62(a), the parties can agree to post-election dispute resolution, with finality, by the Regional Director. Also, Section 102.62(b) allows a stipulated election agreement in which the parties retain their right to file exceptions or requests for review with the board.
The voluntary use of this new provision will result in quicker final resolutions on issues concerning representation. Finally, any decision rendered under this new section (102.6(c)) will not be regarded as board precedent in future cases. This is consistent with the current practice and procedure under Section 102.62(a). The notice of final rule will be published in the January 25, 2005, Federal Register.
Nasty Language not Protected Activity, January 18, 2005
by Kevin J. Allis
A ruling by the National Labor Relations Board, that an employee's foul language was protected activity, was overruled by the U. S. Court of Appeals for the Fourth Circuit. The word "bastard," or phrase "redneck son-of-a-bitch" used by an employee during a conflict with his supervisor, was not protected because it had nothing to do with articulating a grievance.
The appellate court held that the foul language was not presented in a manner to emphasize a message or union concern, but was uttered after being confronted by management about his disruptive behavior. Protected action requires the showing of a purpose inducing, or furthering, group action. In this case, the employee's comments were made when no other union members were present, and lacked content that would have helped union members advance a cause. (Media General Operations, Inc., d/b/a Winston Salem Journal v. NLRB, 4th cir. No. 04- 1222, 1/10/05).
Manager's excessive loquacity warrants unfair labor practice finding by Board, January 17, 2005
by Kevin J. Allis
The U.S. Appeals Court of the Forth Circuit upheld a Board finding that a bridge contractor violated the National Labor Relations Act ("NLRA") by coercively interrogating and terminating a crane operator, and issuing warnings to two other employees who had engaged in a work stoppage to protest the termination. (TKC v. NLRB, 4th Cir., No. 03-2420, unpublished opinion 1/6/05).
Shortly after the employee ("Lumpkin") was hired, a local began an organizing effort whereby Lumpkin agreed to distribute union handbills before his shift, and place union stickers on his hard hat and on his car bumper. The contractor's area manager, Mayer, asked Lumpkin about his union activities and intent to become a union member. After Lumpkin's response, Mayer, in a profane and hostile manner, stated "why anyone would want to do such a thing."
Within a week, Lumpkin's employment was terminated and he was told by Mayer that he should ask his union friends for a job. Additionally, in a later interaction, Lumpkin was told by Mayer to keep his union friends away from the job site. Following Lumpkin's termination, the union organized a work stoppage in protest of the termination. As a result of their participation, two employees were given written warnings for unexcused absences.
The Board found, and the Fourth Circuit affirmed, that the contractor violated NLRA § 8(a)(1) which bans coercion of employees seeking union representation. Mayer, by interrogating Lumpkin about his union involvement and activities, followed by his use of profanity in questioning Lumpkin's actions and decisions, were coercive actions infringing on an employee's protected right to seeking union representation. The Board also found a violation of § 8(a)(3) that protects employees from discriminatory employment actions against union advocates. Lumpkin's discharge was found to be a result of his union activities, a clear violation of NLRA protected rights. Finally, the disciplinary warnings against the two employees who engaged in protected activity in support of Lumpkin, were also found to be in violation of § 8(a)(1).
Section 8(a)(1) prohibits any employer interrogation because of the natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained. Questioning employees, as to their union sympathies, is not treated as an expression of employer views or opinions. Therefore, front line managers need to severely limit their conversations with employees concerning union support and activities.
Cingular Goes Over its Minutes, January 14, 2005
by Sarah C. Chernish
Cingular Wireless has agreed to pay $5.1. million in back wages to thousands of its customer service representatives who worked overtime hours "off the clock." The consent decree requires Cingular to pay back wages to more the 25,000 employees, and maintain compliance with record keeping and overtime regulations under Federal law. Individual employees may receive anywhere from $20 and $2889 in settlement.
The agreement comes after a Department of Labor's investigation revealed customer service representatives at several of Cingular's call centers were beginning to work before the start time of their scheduled shifts and occasionally worked beyond the end of those shifts as well. This time was considered "off the clock" and employees were not paid for it.
After Cingular was made aware of the alleged violations, it worked cooperatively with the DOL to come into compliance and compute the back wages owed. While Cingular did not admit any wrong doing, in addition to the settlement agreement, the company has designed and implemented a comprehensive initiative involving employee training, time reporting and compliance review procedures throughout its call center operations to ensure continued compliance with the FLSA. Chao v. Cingular Wireless LLC, C.D. Ill., No. 053009, "consent judgment filed" 1/13/05).
Fourth Circuit Upholds EEOC Regulation Prohibiting Age Discrimination in Apprenticeship Programs, January 12, 2005
by Sarah C. Chernish
The Fourth Circuit upheld the EEOC's 1996 regulation extending age discrimination protection under the Age Discrimination in Employment Act ("ADEA") to apprenticeship programs. The court noted that the ADEA was enacted to protect individuals from discrimination based on their age not merely at the hiring or firing stages of employment, but to prevent employers and unions from limiting, segregating, or classifying individuals in an age-discriminatory manner. The court further stated that apprenticeships serve as the entry point to the workforce for a significant number of individuals and that age discrimination in these programs perpetuated the stereotypes that "older people are unable to learn the skills of a trade as efficiently as their younger counterparts," which was exactly the type of discrimination Congress sought to combat.
The court held that the EEOC regulation prohibiting age discrimination in apprenticeship programs respected the purposes of the ADEA and did not contravene the clear statutory language, and therefore it represented a "permissible interpretation of the Act" and would be upheld as a valid exercise of the agency's authority. EEOC v. Seafarers International Union, No. 03-2057 (4th Cir., January 7, 2005).
Nonunionized Employees have No Right to Co-worker Presence during Investigatory Interview, January 10, 2005
by Kevin J. Allis
In a recent NLRB hearing, it was determined that Wal-Mart Stores, Inc. was permitted to decline an employee's request for a co-worker's presence during an investigatory interview. (Wall-Mart Stores, Inc. 343 NLRB, No. 127, 12/16/04). The board relied on its June 2004 decision in IBM Corp. (341 NLRB No. 148, 06/16/04), holding that nonunionized employees, unlike union-represented employees, do not have the right to bring witnesses to investigatory interviews the employee believes will result in discipline.
In the Wal-Mart case, a store employee, Stanhope, used profanity to describe an assistant store manager. When managers approached Stanhope, and informed him of the complaint, he asked to have a witness present during his interview. Managers informed Stanhope that pursuant to company policy, employees may talk directly with any member of management, but the company does not allow co-workers to attend. Upon refusing to attend investigatory interviews without a witness, coupled with the refusal to provide a statement, Stanhope was terminated for creating a hostile work environment and using profanity.
The Board overruled the ALJ who previously found that Wal-Mart was obligated to either grant Stanhope's request to bring a witness, terminate the meeting, give him the choice of continuing the meeting without a witness, or to have no meeting at all. The Board held that Wal- Mart could lawfully require Stanhope to continue the investigatory interview without the presence of his requested witness.
However, on the discharge issue, the case was remanded. Under IBM Corp., employees are still protected when asking to be joined by a co-worker even if the employer is not obligated to grant the request. In other words, a nonunionized employee cannot be fired solely of the basis of his refusal to participate in the investigatory process because he could not have a witness present during the interview.
For more information on this subject, please read Eric Paltell's quick clip on the IBM case. This can be found here.
An Employee's Desire to Display That Confederate Bumper Sticker is Not Protected by Title VII, January 10, 2005
by Sarah C. Chernish
The Third Circuit Court of Appeals recently granted an employer's motion to dismiss the claims of a former employee who had been fired after refusing to remove Confederate battle flag stickers that he had put on his lunch box and his pickup truck.
The employee filed suit claiming he was terminated because of his national origin- "Confederate Southern-American" and his religion- "Christian." The employee claimed "Confederate Southern-American" is a valid national origin under Title VII because members of this group share a common culture and history of persecution dating back to the civil war era and that the Confederate flag is a religious symbol because it incorporates the cross of Saint Andrew. He claimed that displaying that symbol is similar to displaying a traditional cross or the Star of David
While not addressing the merits of the employee's contention that "Confederate Southern-American" is a national origin, the court granted the motion to dismiss because the employee had not suffered an adverse employment action because of his beliefs, but rather he was fired because he refused to cover the stickers. The court noted that if he had complied, he would not have been fired, and would have continued working for the employer as a "Confederate, Southern American" and Christian.
The court found that nothing in the employee's complaint suggested that displaying the stickers was a requirement of his national origin or religion. The employee himself admitted he only "displayed these stickers because he is proud of being a Confederate Southern-American" and "is interested in sharing his passion for his heritage with others." The court held "his personal need to share his heritage can not be equated with something endemic to national origin or a religiously mandated observance" and therefore he had failed to establish his claim. Storey v. Burns Int'l Security Services, 390 F.3d 760, (3rd Cir. 2004).
Employees Cannot Be Forced to Wear Union Logo, January 6, 2005
An employer and a union cannot agree, according to a federal appeals court, to a contract provision requiring employees to wear the union logo on their uniforms. Citing the section of the National Labor Relations Act stating that employees have the right to "refrain" from union activities, the court reversed the NLRB, which had allowed the contract provision. Lee v. NLRB, No. 01-2075 (4th Cir. January 4, 2005).
Nutty Employees and the ADA, January 3, 2005
Good news and bad. A federal appeals court has joined three others in finding that an employee can pursue a "hostile environment" claim under the Americans with Disabilities Act. Employees with mental and physical disabilities who may be covered by the ADA must now be shielded from insensitive comments concerning their condition and behavior. Lanman v. Johnson County, No. 03-3316 (10th Cir., December 30, 2004).
The ADA, however, also covers people who are perceived as having a physical or mental disability, even if they do not actually have one. A female sheriff with a bad attitude tried to bring a hostile environment ADA claim when a supervisor commented, "insensitively," on her nutty behavior. Fortunately, the court was unwilling to hold that an employee who acts crazy is automatically perceived as having a mental illness under the ADA.
Mascara, Rouge, and Lipstick Requirements Upheld, January 3, 2005
A federal appeals court in California has upheld a workplace rule requiring female bartenders to wear makeup. A female bartender fired for refusing to wear makeup claimed the requirement amounted to illegal sex discrimination.
The court, in a 2 to 1 decision, found that the requirement did not impose an "unequal burden" on women. Different rules for men and women are permitted under the Civil Rights Act, such as different weight requirements for male and female flight attendants, provided the employer can demonstrate that the burden on male and female employees is the same. The court apparently accepted the argument that applying makeup for women, like shaving for men, is a normal part of grooming. The rule, therefore, did not unlawfully discriminate against women. Jespersen v. Harrah's Operating Co., No. 03-15045 (9th Cir., December 28, 2004).
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