March 2002 Quick Clips

Supreme Court Knocks Down FMLA Regulation, March 20, 2002

Under the Family and Medical Leave Act, the Secretary of Labor has adopted regulations that extend the Act's provisions beyond the plain language of the FMLA. For example, one regulation provided that if the employer did not designate leave as FMLA leave, an employee would still be entitled to 12 weeks leave beyond leave already taken. The Supreme Court has struck down that regulation, which is a good sign for employers trying to administer this difficult, constraining statute. Ragsdale v. Wolverine Worldwide Inc., No. 00-6029 (U.S.S.Ct., March 19, 2002).

In the case before the Court, the employee had already taken 30 weeks leave. Because the employer did not designate the leave as FMLA, the employee demanded 12 weeks more, and sued when the leave was denied. While the Court's decision was close, 5 to 4, the case should encourage other courts to interpret the FMLA in a more practical manner than the Secretary of Labor has.

Attendance Policy For Probationary Employees Not A Violation of PDA, March 14, 2002

Baxter Healthcare Corp., a Mississippi health care products factory, has a policy which provides that a probationary employee who misses more than three days of work during the first 90 days of employment will be terminated. When Wilma Nicole Stout began working for Baxter, she was pregnant. Two months into her job, she had a miscarriage that rendered her unable to work for two weeks. She immediately notified her supervisor, provided medical documentation of her absence, but was terminated anyway, according to policy.

Stout brought a charge against Baxter, alleging that she was terminated because she was pregnant, in violation of the Pregnancy Discrimination Act. The United States District Court for the Northern District of Mississippi granted Baxter's motion for summary judgment, and the Fifth Circuit affirmed. See Stout v. Baxter Healthcare Corp., No. 00-60542 (5th Cir., Feb. 19, 2002).

Not every pregnant employee should be able to make out a prima facie case of pregnancy discrimination just because the employee is pregnant, the court noted. "[T]he PDA does not require preferential treatment of pregnant employees and does not require employers to treat pregnancy-related absences more leniently than other absences." Interestingly, the Court of Appeals concluded, "[i]n the end, Stout's claim . . . is simply that she should have been granted medical leave that is more generous than that granted to non-pregnant employees. This the PDA does not require."

Headaches, congestion not enough to establish disability, March 11, 2002

A warehouse worker who suffered headaches, congestion, and coughing failed to prove he was "disabled" within the meaning of the Americans with Disabilities Act.

Gary Rose reported these symptoms to a doctor soon after starting work in a hot and dusty Home Depot warehouse. Noting that his condition seemed to improve when he traveled to higher altitudes, Rose sought a transfer from his current location (184 feet above sea level) to a store in another state that was 554 feet above sea level. When the transfer didn't happen, Rose sued under the ADA for failure to reasonably accommodate his "disability."

His case was dismissed by a federal judge in Maryland, based on Rose's failure to prove that his symptoms seriously interfered with "major life activities" such as breathing, sleeping, and working. Without such proof, there is no disability under federal law. The judge also took Rose to task for failing to get a proper diagnosis and failing to follow a treatment plan. Rose admitted that his breathing problems could be explained by the fact that he was a heavy smoker. Rose v. Home Depot, No. AMD 01-229 (D. Md., Feb. 26, 2002).

Arbitrator Overturns Employer's Decision - Reinstates Sexual Harasser, March 8, 2002

A male employee, accused of harassing a co-worker by unfastening her bra strap was discharged for sexual harassment. His union grieved the discharge, arguing that its member was never disciplined in the 17 years he worked for the employer. It also argued that even if the employee had sexually harassed a co-worker, discharge on his first offense was too egregious.

Arbitrator Richard S. Remmes overturned the employee's discharge. Although he found that the employee committed the offense and the employee's "statements and responses to questions and hesitations left many gaps in credibility, while the statements of the complaining woman were verified in most cases by a second person," he held that a lesser penalty was warranted. City of Boston, 116 LA 906. Remmes considered the mitigating factors of the employee's long service record and the fact that it was the employee's first offense and decided that a long-term suspension of approximately one year was the appropriate penalty for the harasser.

Believe it or not, Remmes is not the only arbitrator to reduce penalties for sexual harassers. Arbitrators C. Gordon Statham, Lionel Richman and Fredric R. Dichter have also reinstated employees. See e.g. Commercial Printing Co., 115 LA 393 (employee who asked female co-worker 20 to 30 times during one evening to have sex had discharge reduced to a one-year suspension); Baskin Robbins, 111 LA 554 (employee who told a co-worker that she smelled good and asked her to sit on his lap had discharge reduced to 5-day suspension); PPG Industries, 113 LA 833 (employee who violated company's sexual harassment policy by sending pornographic e-mails through company computers had discharge reduced to suspension because of 9-year discipline-free record).

Want Severance? Sign a Release, March 7, 2002

by Frank L. Kollman

A federal court has ruled that a back pay award to an employee under the Age Discrimination in Employment Act does not have to be offset by severance pay. Kulling v. Grinders for Industry Inc., No. 99-74339 (E.D. Mich. February 28, 2002). In other words, not only can the employee who takes severance pay sue, he does not have to give it back if he wins. It's the equivalent of termination lotto; you have to play to win.

Whenever significant severance pay is given to an employee being fired, a prudent employer should get a signed release. It is better to know right away that the employee intends to sue than to fund the employee's first few sessions with a plaintiff's lawyer. Remember, the release should comply with the Older Workers Benefit Protection Act, but compliance is a relatively easy thing to accomplish.

Consistency Equals Employer Win, March 4, 2002

by Frank L. Kollman

An employer in Missisippi fired an employee for missing three days of work due to a miscarriage. The company's policy stated that missing time for any reason during the first 90 days of employment was grounds for termination. The company allowed no exceptions. The employee sued, claiming that her discharge violated the civil rights laws against pregnancy discrimination. A federal appeals court, however, found no basis for the claim that the policy has a disparate impact on pregnant workers because everyone, pregnant or not, was subjected to the same treatment. Stout v. Baxter Healthcare Corp., No. 00-60542 (5th Cir. Feb. 19, 2002). This case demonstrates the wisdom of applying rules uniformly and granting exceptions in only the most compelling circumstances.

New Labor Solicitor Promises Tough OSHA Enforcement, March 4, 2002

by Frank L. Kollman

Labor Solicitor Eugene Scalia, who is the Department of Labor's top lawyer, has promised to enforce safety laws despite his reputed pro-business attitude. He made his remarks at the midwinter meeting of the American Bar Association. He announced, however, that his office will focus on assisting employers to comply with OSHA regulations, and that his special target in enforcement cases will be employers who employ low-paid workers and neglect to insure their safety. In other words, Solicitor Scalia has pledged to protect workers instead of punish companies.

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