Myopic Disability Laws, July 27, 2007
Courts, including the Supremes, have worked hard to lend some common sense to the Americans with Disabilities Act. In that regard, it has become an important part of any disability case that an individual have a medical condition that warrants special treatment in order to be protected. But, Congressmen Hoyer and Sensenbrenner are not happy with that outcome. They proposed that the Act be amended to include an accommodation obligation for medical conditions that include poor eyesight. By specific reference, that would mean that courts could not consider eyeglasses for myopia as alleviating the need for disability protection. I guess that would cover a lot of voters.
OSHA Cites Forest Service, July 24, 2007
The Esperanza Fire in October 2006 destroyed 34 houses, 20 outbuildings, and 40,200 acres of landscape in California. Sadly, it also cost 5 firefighters their lives. OSHA stepped into do an analysis, and concluded that the Forest Service was at fault for the death of the firefighters. OSHA said that the tragedy could have been avoided if the firefighters had not been on a steep slope blanketed with highly combustible vegetation. Remarkably, OSHA spokesperson Roger Gayman, asked whether the Forest Service was responsible for the deaths through it's violations answered, "By implication, yes."
A firefighter with the Forest Service responded, "What we do is inherently dangerous. You can't make it a sterile, safe environment. You can't make it into a video game." The Forest Service plans to appeal the findings. Perhaps they can just agree to abate the problem by ordering nature not to have any fires on steep slopes near combustible vegetation.
Equal Rights Regression, July 23, 2007
The 1961 Supreme Court, in order to protect women, reached back to 1879 to reaffirm that women need special protection because they are "regarded as the center of home and family life." That antiquated notion, which embraced the image of frail womanhood, is long gone, right? Not for Senators Edward Kennedy and John Kerry. They proposed legislation on July 20, 2007, that would protect nurses (92% of whom are women) from being required to work more than 80 hours in a 2 week period. According to Senator Kerry, the legislation is necessary so that employers will not "overwork our nurses and put such an enormous strain on . . . their coworkers and families." It appears that the Equal Rights Amendment is truly dead.
Urinals, IMs and Lazy Eyes, July 18, 2007
by Clifton R. Gray
If you are going to complain about what you perceive to be harassing behavior at work, you should try your best to use the complaint procedure provided by your employer if it has one. Todd Bernier, an equity analyst at Morningstar, Inc., an investment research firm, thought that one of his openly gay co-workers was staring at his penis while they were both using the urinals at work. Upset at this, Bernier sent an anonymous instant message over the company computer network to the co-worker, which stated "Stop staring! The guys on the floor don't like it." The co-worker reported the message to the Human Resources department, believing it to be harassment because of his homosexuality. Morningstar was able to trace the anonymous message back to Bernier's computer and, after being questioned about it, Bernier was fired. Bernier thereafter filed a charge of hostile work environment sex discrimination and retaliation with the EEOC and, after receiving a right-to-sue letter, brought suit against Morningstar in the federal district court.
Morningstar was granted summary judgment at the district court level and Bernier then appealed to the Seventh Circuit. The Court noted that it came out during litigation that the co- worker whom Bernier thought was inappropriately staring at him suffered from a lazy left eye "that sometimes made it appear that he was looking off at something while conversing." In affirming the lower court's summary judgment decision, the Seventh Circuit found that Bernier's decision to voice his complaints not through the means provided by company policy (that is, notifying Human Resources), but instead sending an anonymous IM to the perceived harasser, doomed his Title VII claim. In fact, the Court noted that the only reason management came to know about the situation is because the co-worker brought it to the attention of Human Resources, believing himself to be the target of harassment because of his sexual orientation. If Bernier had gone through the proper channels to complain about his co-worker "staring" at him, the whole mess likely would have been avoided, with Bernier being made aware that his co- worker had a lazy eye and the perceived staring was not for any sexual reason, and Bernier would probably still have a job at Morningstar. Bernier v. Morningstar, Inc., No. 04-C-6924 (7th Cir. July 17, 2007).
Flight Training Instructor Loses Disability Claim, July 17, 2007
by Pat Stewart
A federal district court recently held that a flight training instructor for Southwest Airlines who had a history of "nodding off" and snoring could not prevail in his claim that he was terminated in violation of the Americans with Disabilities Act ("ADA").
Herbert Grubb ("Grubb") worked for Southwest as a flight crew training instructor. A flight instructor trains pilots in flight simulators and in classrooms in accordance with FAA and Southwest guidelines. Additionally, a Southwest flight instructor must remain current on equipment and instruction techniques by attending monthly instructor meetings, skill practice sessions and critique review sessions, as well as through self study. A flight instructor divides his/her time equally between simulator training and office hours/classroom training.
From December 2002 through June 2004, Southwest staff repeatedly counseled Grubb about behavioral problems, including "nodding off at work while training students in the simulator, during instructor meetings and during office hours; tardiness; and missing office hours." For example, during a proficiency training event, Grubb fell asleep, and the pilots vectored themselves onto the final approach and then missed approach. During the missed approach, they shook the simulator around to see if they could wake him, but they could not, and Grubb eventually woke up on his own. In response, Southwest encouraged Grubb to seek medical care and offered him time off to do so.
Thereafter, Grubb was suspended for two weeks due to the fact that he had fallen asleep numerous times in a training class. When he returned from the suspension, Grubb was given a written warning about his behavior to the effect that all flight training instructors must be able to give their full attention to the pilots while conducting training, which cannot be done if the instructor is sleeping or dozing off. Grubb, however, continued to nod off. One supervisor stated: "At one point he told the trainees to prepare for an approach to a certain runway, and as he turned to change the runway in the simulator, he dozed off again never changing from the original runway."
Southwest then held a fact finding meeting to discuss Grubb's sleeping problem. At the meeting, Grubb told Southwest that, effective immediately, he was beginning a three and one-half week sleep apnea medical treatment program. Several weeks later Grubb fell asleep in a new hire training meeting, and he was subsequently terminated. He then sued, claiming his termination was in violation of the ADA.
The district court noted that to establish a violation of the ADA, Grubb was required to show that (1) he had a disability; (2) he was qualified for the job; and (3) an adverse employment decision was made solely because of his disability. Without specifically deciding the issue, the court held that even assuming Grubb had a disability, he could not demonstrate that he was qualified for the job. Stated the court:
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From the undisputed facts in the record, the court concludes that Grubb could not perform the essential functions of his job, and that Southwest reasonably accommodated Grubb's condition. Southwest maintains that it discharged Grubb not because of his disability, but because of his poor productivity and his violation of various workplace conduct rules. The burden lies with Grubb to show that he is otherwise qualified. Grubb has adduced no facts suggesting that a discriminatory reason likely motivated the decision to terminate his employment or that Southwest's explanation was not credible, i.e., was probably pretextual. Grubb's subjective belief that he was a victim of discrimination is insufficient, without further evidentiary support, to overcome Southwest's articulation of a legitimate, non-discriminatory motive for terminating him.
I just hope Grubb is not working as a driving instructor. Grubb v. Southwest Airlines, 19 AD Cases (BNA) 719 (N.D.Tex. 2007)
Court Denies Class Action To Wal-Mart Plaintiffs, Throws Out Contract Claim Based On Employee Handbook, July 17, 2007
by Pat Stewart
Late last month, the Maryland Court of Special Appeals held that two former employees of Wal-Mart and Sam's Club could not bring class action claims against the companies on behalf of approximately 60,000 current and former employees who had worked in Maryland stores between 1999 and 2003. It also ruled that the trial court properly dismissed breach of contract claims based on employee handbooks which contained disclaimers.
The case began when two former Wal-Mart employees filed a class action lawsuit against the companies for breach of contract for failure to pay wages for off-the-clock work and failure to provide rest and meal breaks as set forth in the companies' employee handbooks, unjust enrichment, promissory estoppel, breach of the covenant of good faith and fair dealing, failure to pay timely wages and overtime pay in violation of Maryland's wage payment and collection law, conversion, and negligent misrepresentation.
The Circuit Court for Prince George's County threw out the breach of contract claims, noting that the employee handbooks had disclaimers specifically stating that they were not to be considered as contracts. It then ruled that the remaining claims required case-by-case evidence of unpaid wages, individual evidence of reliance on alleged promises and misrepresentations, and individual analysis of time records and policies within each store and/or department, which made it inappropriate for a class action.
On appeal, the Maryland Court of Special Appeals upheld the circuit court. Insofar as the wage payment claims were concerned, the appellate court noted that class certification was inappropriate as "[e]vidence of each class member's time records, as well as individual explanations for breaks missed and individual testimony regarding work performed off the clock, would be required for the employees to prove their claims." The court also held that the lower court properly dismissed the breach of contract claim due to the prominent disclaimers in the employee handbook.
http://mdcourts.gov/opinions/cosa/2007/1376s05.pdf
Anti-Arbitration Bills Introduced In Congress, July 16, 2007
by Pat Stewart
Last week, the House and Senate introduced legislation that outlaws mandatory arbitration of employment claims unless provided under the terms of a collective bargaining agreement. The bills come at a time when it is believed that about one-fifth of the nation's workforce is subject to mandatory arbitration of employment claims. For Maryland employers, it comes at a time when employers are seriously considering adopting arbitration of employment disputes in light of the recent amendments to Article 49B which will permit employees to go directly to state court over claims of discrimination. The Arbitration Fairness Act of 2007 (H.R. 3010) (S. 1782) makes pre-dispute, mandatory arbitration clauses in consumer, employment, and franchise agreements unenforceable. The sponsor of the Senate bill, Democrat Russ Feingold, said "When this bill is enacted, Americans will once again have a choice--whether to go to arbitration or whether to go to court, and that's the way it should be."
Hourly Paid Engineer Cannot Be Exempt From Overtime Obligations, July 11, 2007
by Eric Paltell
Under the Fair Labor Standards Act, employees must be paid a "salary" to be exempt from overtime obligations. Although there are limited exceptions to this rule for computer programers, doctors, lawyers and teachers, an employer loses the exemption when it pays any other type of employee on an hourly basis. Unfortunately for a Virginia defense contractor, they learned this lesson the hard way when they paid a software engineer on an hourly basis and then got stuck with a bill for unpaid overtime. Intracomm, Inc. v. Bajaj, No. 06-1516 (4th Cir. 7507).
The case arose when the employer decided to hire Baback Habibi as a software engineer. Instead of paying him a conventional salary, the Company paid him $7.00 an hour, plus the potential for a large payout if the Company decided to purchase technology he had desigend. In early 2005, Habibi demanded that BAE exercise its option to buy his technology for 1.5 million dollars. The company refused, and terminated his employment. Habibi responded by suing for unpaid wages and overtime. The United States District Court for the Eastern District of Virginia ruled in favor of Habibi, and the Fourth Circuit affirmed its decision. The Courts ruled that the decision to pay him hourly converted him to a non-exempt employee, regardless of what his job duties entailed.
The decision reenforces how important it is to follow the FLSA's basic rules. Although in this case, it was Habibi, not the Company, which came up with the idea for the hourly compensation and the right to revenue from the sale of his product, the employer was still liable for unpaid overtime. The FLSA prohibits "unsupervised" waivers of employee rights, meaning that even a highly skilled, well educated worker cannot voluntarily give up their right to overtime pay if they are paid on an hourly basis.
Migraines In A Perfume Factory Are Not A Disability, July 11, 2007
by Eric Paltell
As employment lawyers, we are often asked whether an allergy to a co-workers perfume is a disability under the law (the answer is probably not). A recent Ohio case put a new twist on the issue when a court ruled that an employee who was unable to work in a perfume manufacturing plant because of migraine headaches was not disabled under the Americans With Disabilities Act ("ADA"). Thomas v. Avon Products, Inc., No. 1:05-cv-794 (S.D. Ohio 6/20/07).
The plaintiff, Cheryl Thomas, was hired in 1998 by Avon as a customer service representative. In the fall of 2002, Avon required that Thomas -- who by this point had transferred to the lipstick area -- be "cross-trained to work in the perfume manufacturing section. Thomas claimed that exposure to perfume scent caused severe migraines, and, in November 2004, got a note from her doctor that said she "may not medically work in perfumed ambiance, ever." Given the nature of Avon's business, the company decided it was impossible to accommodate her request. Thomas eventually went out on long term disability leave.
After leaving Avon, Thomas brought suit under the ADA, alleging that Avon had unreasonably failed to accommodate her disability. The court dismissed her claims because Thomas could not show that she was disabled in the major life activity of working, nor could she show that she was disabled in any other major life activity. Although she testified that she was unable to work around perfume, the ADA requires a plaintiff to show that she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes." The ADA regulations further state that the "inability to perform a single, particular job does not constitute a substantial limitation on the ability to work."
The Thomas decision demonstrates that an employee's inability to perform just one type of job because of a medical condition does not make the employee disabled under the ADA. To be disabled, the employee must have a limitation, such as a vision impairment or severe lifting restriction, which would make them unable to perform the essential functions of a large number of jobs, not just a few specialized occupations.
4th Circuit Holds that FMLA Rights Cannot be Waived, July 6, 2007
The 4th Circuit has held in Taylor v. Progress Energy, Inc., that FMLA rights cannot be waived either prospectively or retrospectively. This means that a settlement with an employee may not contain a provision waiving the employee’s rights to bring an action under the FMLA. The decision was reached despite the Department of Labor’s filing of an Amicus Brief in support of a contrary interpretation.
The DOL, in their Amicus Brief, urged the court to endorse the holding in Faris v. Williams WPC-I, Inc., 332 F.3d 316 (5th Cir. 2003), which held that 29 C.F.R. §825.220(d) prohibits only the prospective waiver of the FMLA’s substantive rights. 332 F.3d at 322. However, the 4th Circuit found that §220(d)’s provision that “Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA,” clearly included all rights under the FMLA, including the right to bring an action under the FMLA both prospectively and retrospectively.
The Court also pointed to the purposed amendments to the regulation that included an amendment that “recommended explicit allowance of waivers and releases in connection with [the] settlement of FMLA claims as part of a severance package.” Preamble to the Final Regulations Implementing the Family and Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995). The DOL responded by explaining that it had “given careful consideration to the comments on this section…and…concluded that prohibitions against employees waiving their rights and employers inducing employees to waive their rights constitute sound public policy under the FMLA…” Id.
EEOC Holds that Employers Can Favor Older Workers, July 6, 2007
The Equal Employment Opportunity Commission has issued a final rule implementing the decision of General Dynamics Land Systems v. Cline, 540 U.S. 581 (2004). The Supreme Court in Cline held that a company may favor older workers over younger ones, even when all the individuals are older than 40. The new rule from the EEOC provides:
“Favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. However, the ADEA does not require employers to prefer older individuals and does not affect state, municipal, or local laws that prohibit such preferences.”
This means that the new rule only effects the ADEA and not state or local laws, which are free to offer greater legal protection to younger employees than is provided by the ADEA.
The final rule takes effect on July 6, 2007 and amends 29 C.F.R. Part 1625.
Sure, Mr. DHS, Stop By Anytime, July 5, 2007
Arizona Governor Janet Napolitano has signed a bill making Arizona the most aggressive state the country in sanctioning employers who knowingly or intentionally hire undocumented workers. This new Arizona law permits the state to suspend a company's state license to conduct business if the company knowingly or intentionally hires undocumented workers. The law also requires all employers to utilize the "Basic Pilot" federal database as a means of verifying an immigrant's legal status.
For those of you who do not know, Basic Pilot is a federal database wherein an employer inputs the information contained on the I-9 into the database electronically. DHS then submits that information to the Social Security Administration who checks the validity of the Social Security number, name, date of birth and citizenship provided by the worker. However, several problems with the Basic Pilot system have lead to numerous recommendations that the system is not ready for required nationwide use. These problems include the fact that numerous U.S. citizens and foreign nationals with actual work authorization have been listed as unauthorized to work in the system and that many employers are using the system to engage in unlawful employment discrimination practices.
To participate in Basic Pilot, an employer must sign a Memorandum of Understanding (MOU). This MOU permits DHS and SSA to enter the employer's property and interview any employee of the company at any time without notice. In addition, DHS and SSA may demand to examine all I-9 records at any time and without notice.
The head of the Arizona Chamber of Commerce and Industry stated that the Arizona bill was "not only a blow to Arizona businesses, but a devastating setback to the state's economy." Governor Napolitano herself indicated that a special session was warranted later this year to repair what she calls "defects" in the bill. Among the defects include a lack of provisions to protect critical infrastructure, such as hospitals and power plants, and the lack of protections against employment discrimination.
It should be noted that the bill was to prevent knowing and intentional behavior. Presumably, companies exercising good faith activities would not fall victim to the new law. This reiterates the importance of conducting annual internal I-9 audits to catch errors and deficiencies in order to remedy them and demonstrate good faith efforts in complying with I-9 procedures.
Consistency is a Concern of the Court, July 5, 2007
The U.S. District Court for the Easter District of Pennsylvania has held that a former Boeing employee can proceed on her claim of age discrimination. The employee, Eileen McKee had worked for Boeing for 34 years and was 52 years old when she was terminated. While Boeing was making cutbacks, Ms. McKee's supervisor, Mr. Chevalier, compared the performances of McKee and her co-worker, who was 36 years old, based on nine criteria graded on a scale of 1 to 5. Ms. McKee received a 17 while her younger coworker received a 39. Unfortunately for Boeing, Mr. Chevalier had provided Ms. McKee nothing but glowing recommendations in the past. In addition, the categories that Mr. Chevalier graded Ms. McKee on originally included knowledge the systems associated with her job. In this one area, Ms. McKee had a perfect score. However, Mr. Chevalier decided to drop this criterion in his final evaluation.
The Court held that these two facts, when read together, would permit a reasonable jury to find that Boeing's proffered reason for terminating Ms. McKee was merely a pretext for discrimination. The Court stated that "The starkly contrasting accounts of the same employee told by the same evaluator...is an inconsistency that could lead a reasonable factfinder to deem Boeing's proffered reason (for termination) 'unworthy of credence.'"
Isn't a Caretakers Job to Take Care? July 5, 2007
The U.S. Court of Appeals for the 3rd Circuit upheld the lower courts ruling granting the University of Pennsylvania summary judgment stating that the Plaintiff, Michael Coulton, a white male, failed to state a prima facie case of racial discrimination. Coulton, who was hired as an animal caretaker, was terminated after he euthanized several laboratory mice by disposing of them in a garbage disposal in front of his co-workers. Coulton was already on probation for planning to sacrifice valuable mice instead of re-breeding them and exercising poor judgment in the care of the mice.
Coulton alleged that since his supervisors and department were primarily African American he must have been terminated because he was white. The Court found no evidence that the decision to terminate Coulton was based on anything but his job performance. The Court found further support in that a white man was hired to replace Coulton. The Court stated that, "Coulton has failed to offer anything other than unsupported speculation that any decisionmaker took race into consideration when conducting the investigation or making the termination decision."
The Immigration Bill Is Dead But Not Gone, July 2, 2007
While the immigration bill has been stopped in the Senate, there are still several bills being introduced to expand the H-1B cap. For those of you who do not know, H-1B classifications allow persons who will engage in "specialty occupations" to come to the United States to work for a period of three years which can normally be renewed for one additional period of three years. H-1B visa's are considered non-immigrant visa's although dual intent is allowed.
- S.1397 would exempt those aliens with a master's or higher degree in science, technology, engineering, mathematics or those who have a medical specialty certification based on post-doctoral training, in addition to raising the cap for other "specialty occupations."
- S.1083 would also increase the annual H-1B cap and would exempt certain aliens who earned a master's degree or higher at U.S. universities or those awarded a medical specialty certification based on post-doctoral training and experience in the United States
- S. 1351 would increase the H-1B cap by 20% each year and revise the H-1B provisions to combat fraud, among other provisions
- S. 1092 wold temporarily increase the number of H-1B visas that can be issued to certain highly skilled workers.
The H-1B program is designed to address the shortage of workers in certain specialized fields. These are not employees coming in to the U.S. to take undesirable jobs, but rather foreign nationals with certain high level skill-sets coming into the U.S. in order to help keep the U.S. competitive in the world. The present cap is limited to 65,000 H-1B visas each year. These typically are gone soon after the time applications are accepted.
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