Next Time, Install Two Cameras, March 26, 2007
by Thomas A. Bowden
Suspecting the grievant of engaging in unauthorized activities, a company installed a video camera in a manager's office to monitor after-hours behavior. Sure enough, videotape caught the grievant with his back to the camera, making motions "suggestive of the act of masturbation" while a personal video played on a laptop computer. With his trousers dropped to the floor, the grievant wiped his crotch area with a napkin or handkerchief.
The company discharged him for that and other reasons. But wait ... the employee says he was just wiping a boil, and the arbitrator believes him. Reinstatement and back pay ordered.
So, just having videotape is not enough. Sometimes you need two cameras (or an arbitrator with more common sense).
Kuhlman Electric Corp., 123 BNA Labor Arb. 257 (Dec. 11, 2006).
Companies Can Shun Drivers with Fainting Disorder, March 26, 2007
by Thomas A. Bowden
A risk-averse employer can adopt a zero-tolerance policy regarding a medical disorder without running afoul of the Americans with Disabilities Act, according to a recent Seventh Circuit decision.
Jerome Hoefner has neurocardiogenic syncope, a fainting disorder that does not limit a major life activity. Nonetheless, the EEOC sued Schneider National, Inc., a trucking company that refused to hire him, alleging that the company "regarded" Hoefner as disabled. The trial court threw out the case, and the Seventh Circuit affirmed.
Any given company is entitled to decide how much risk it will accept, the appellate court said. Schneider adopted a zero-tolerance policy for this particular disorder, partly because one afflicted driver had already had a fatal accident. Schneider acted within its rights in refusing to employ Hoefner, even though the disorder is treatable with drugs.
The company did not "regard" Hoefner as disabled merely because it refused to let him drive their trucks. The court said: "If being able to drive a huge truck or a truck filled with hazardous chemicals safely, or being able to fly a plane or guide climbers to the summit of Mt. Everest, is a major life activity, then virtually the entire population of the United States is disabled, which would be a ridiculous construction to place on the Americans with Disabilities Act."
EEOC v. Schneider National, Inc. (7th Cir. Mar. 21, 2007).
Random Drug Tests Okay for City Truck Driver, March 26, 2007
by Thomas A. Bowden
The Fourth Amendment does not prevent a city from random drug testing of employees with safety-sensitive positions, the Seventh Circuit has ruled.
Robert Krieg's job was driving a dump truck on city streets in Marion, Ind. The city government established a random drug testing program. One day it was announced that each employee in the streets and sanitation department (except for one secretary) would be tested. Krieg refused, and he was fired because of it. Krieg and his AFSCME local sued, saying that searches (such as drug tests) must be based on individualized suspicion or wrongful acts to be valid under the Fourth Amendment. The city responded with Supreme Court precedent that random testing is okay if governmental interests outweigh individual privacy expectations.
The city's interest in traffic safety was strong, since Krieg drove a one-ton dump truck, a backhoe, and a front-end loader on city streets. If such equipment were to be operated under the influence of drugs or alcohol, significant injury to others could result. (Other courts have found that operators of smaller equipment such as vans and cars do not pose a great enough threat to justify random testing. Go figure.)
On the other hand, Krieg's expectation of privacy was relatively weak. The court noted that an employee who has been tested in the past has a diminished expectation of privacy. Krieg had earlier been suspended for a positive marijuana test.
Krieg also argued that the Fourth Amendment's due process clause prohibited his discharge, but the court found that he was an at-will employee with no property interest in his job (such as might have been present if the collective bargaining agreement required "just cause" for discharge).
Krieg v. Seybold, No. 06-2322 (7th Cir. Mar. 21, 2007).
Court Okays Fitness-For-Duty Exam For Bizarre Employee Behavior, March 23, 2007
The Third Circuit recently approved an employer's requirement that an employee, who was acting in a "zombie-like" and bizarre manner, submit to a fitness-for-duty examination as a condition of continued employment. Ward v. Merck & Co., No. 06-1270 (3d Cir. March 14, 2007). The plaintiff, Gary Ward, worked for Merck as a research biochemist. In 2002, he resigned because of alleged job-related stress, then changed his mind and returned to work a few weeks later. The following year Ward had a "psychotic episode" in the company cafeteria and was subsequently diagnosed with an anxiety disorder. After a month off, Ward returned to work on a part-time basis.
Ward's performance continued to deteriorate. His co-workers thought that he was acting strangely – he was disengaged from his work and acted "like a zombie." Merck requested that Ward take a fitness-for-duty exam with the company doctor to make sure that he could still perform. Ward refused. Merck suspended and ultimately terminated him for refusing to take the exam.
Ward sued for violations of the FMLA and ADA, specifically claiming that Merck regarded him as disabled, failed to offer him any accommodation, and unreasonably required him to take the fitness-for-duty exam. Both the district and appellate courts disagreed, finding that the employee reports of Ward's strange behavior, and the implicit employee safety concerns, gave the company a legitimate business necessity for requiring the medical exam. The Third Circuit found Ward's claim devoid of merit and dismissed the lawsuit.
NLRB To Hear Arguments On Important E-Mail Case, March 22, 2007
by Pat Stewart
In a case of tremendous importance to employers, the National Labor Relations Board will hear oral arguments on a number of issues pertaining to an employer's right to restrict e-mail and other electronic communications for business-only purposes. The case arose when an administrative law judge ruled that a business-only rule was permissible to bar employees from using the employer's e-mail system to communicate with other employees about terms and conditions of their employment. The questions posed for argument on March 27 are:
- Do employees have a right to use their employer's e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non–job-related e-mails but not those related to union or other concerted, protected matters?
- Should the Board apply traditional rules regarding solicitation and/or distribution to employees' use of their employer's e- mail system? If so, how should those rules be applied? If not, what standard should be applied?
- If employees have a right to use their employer's e-mail system, may an employer nevertheless prohibit e-mail access to its employees by non-employees? If employees have a right to use their employer's e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
- In answering the foregoing questions, of what relevance is the location of the employee's workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
- Is employees' use of their employer's e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer's e-mail system, to what extent is that right waivable by their bargaining representative?
- How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
- Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?
Although oral arguments will take place, don't expect to see the Board's decision for a while. It usually takes it a long time to issue decisions on novel issues.
Is Mandated Paid Sick Leave On The Horizon For Employers? March 21, 2007
As this new session of Congress moves forward, certain representatives continue their efforts to make employers provide paid leave to their employees. In the most recent example, Sen. Ted Kennedy (one of the biggest proponents of enacting the FMLA in the early 1990's) and Rep. Rosa De-Lauro have introduced the Health Families Act, requiring employers with 15 or more employees to provide at least seven paid sick days annually to their employees. Employees could use the leave for their own medical condition, for doctor visits, or for the care of a sick family member.
The proposed legislation would give employees the right to sue for violations in state or federal court and would permit enforcement by the Department of Labor. While it is unclear whether this bill will even make it out of committee, employers should consider contacting their congressional representatives to express their concerns about more mandated leave laws.
Contraception not "related to" pregnancy, says Eighth Circuit, March 16, 2007
In a case of first impression in the federal appellate courts, the Eighth Circuit has held the Pregnancy Discrimination Act "does not require coverage of contraception because contraception is not ‘related to' pregnancy for PDA purposes and is gender-neutral." Reversing certification of a class action by female employees against the Union Pacific Railroad, the Court held that the Railroad did not discriminate on the basis of sex by providing health benefit plans for its employees that did not cover any prescription, over-the-counter, or surgical contraceptive methods used by women or men. In re Union Pac. R.R. Employment Practices Litig., No. 06-1706 (8th Cir. March 15, 2007).
The court also held that there was no disparate treatment as prescription contraception was not provided for men or for women. In dissent, Judge Bye stated that "[a]n insurance policy providing comprehensive coverage for preventative medical care, including coverage for preventative prescription drugs used exclusively by males, but fails to cover prescription contraception used exclusively by females, can hardly be called equal."
DOL Gets It’s Wish For FMLA Comments, March 14, 2007
Last December, the U.S. Department of Labor asked for public comments on the FMLA and its Regulations. Comments were due by February 16, 2007. Well, DOL got it’s wish: thousands of comments were received, from the ridiculous ("FMLA should not cover pregnancy!!! This is a self inflicted illness . . . .") to the sublime. If you are interested in viewing the comments, do the following:
- Click on this link: www.regulations.gov; then
- Click the "All Documents (Open and Closed for Comment)" field; then
- In the "Agency *" field, select "Employment Standards Administration" from the drop- down list of choices; then
- Click on the "Submit" button at the bottom of the page; then
- Click on the Document ID "ESA-2006-0022"; then
- Click on one of the "Views" icons to view a particular comment.
Union Sticker on Construction Worker’s Helmet Causes NLRB Split, March 12, 2007
You’ve probably seen the sticker on the back of someone’s pick-up truck: it looks like an evil "Calvin" from the Calvin and Hobbes comics, and he’s relieving himself on someone or something. Well, when a employee/union organizer at a non-union Kansas construction firm wore a sticker like this on his helmet (where Calvin was soaking a rat labeled "non-union"), the company’s owner told him to take it off. When the employee was later fired an unfair labor practice charge was filed.
Travis Williams, a salt and a member of Iron Workers Local Union No. 10, was hired by the Leiser Construction. Williams did not reveal his union affiliation during the hiring process, but soon appeared at work wearing his own hard hat, decorated with union stickers. One of the stickers was the "wet rat" sticker. The company’s owner told Williams he could not work with the sticker on his helmet.
While employees, generally speaking, have the right to wear union insignia at work, the NLRB held that, in this case, the order that Williams remove the emblem was appropriate because of it was "unquestionably vulgar. In dissent, however, Member Walsh thought the sticker was not "out of line" with a "workplace culture" in which vulgarity was commonplace. Leiser Constr. LLC, 349 N.L.R.B. No. 41 (February 28, 2007).
Ok, construction sites are not Victorian Salons, but the mind reels at the possibility of a Labor Board that would have to determine whether union buttons are either too vulgar or not vulgar enough based on the employment setting.
Employee Free Choice Act Passes House, March 1, 2007
by Pat Stewart
Last week, the U.S. House of Representatives passed the so-called “Employee Free Choice Act.” As noted in Kevin Allis’ article, the legislation operates to eviscerate one of the most important aspects of existing law: the right of employees to decide whether they want a union by allowing them to cast a vote for or against unionization in a secret ballot election, the same concept that applies to the election of members of Congress. If the House has its way, unions can bypass this democratic principal by merely obtaining signatures from a majority of employees, regardless how the signatures are obtained and the surrounding circumstances.
Equally troubling, the legislation also guts the notion that the terms of any collective bargaining agreement are to be decided by the union and the employer, with the union having the ability to call a strike and the employer having the ability to withstand the strike or lock-out employees. The new legislation now injects our government into the picture. The legislation provides that if the parties fail to reach an agreement within 90 days of bargaining, the FMCS is to be notified and become involved in trying to get the parties to reach an agreement. Fair enough. But the legislation further proposes that if an agreement is not reached within 30 days of the FMCS’ involvement, the dispute will be sent to binding arbitration by an FMCS board, and the board’s decision shall apply for 2 years. That’s a 2 year FMCS decided agreement. Now that’s scary!
Department Of Labor Issues Guidance On Real Estate Salesperson Exemptions, March 1, 2007
by Eric Paltell
Under the Fair Labor Standards Act, employees who are engaged in "outside sales" occupations are exempt from the overtime requirements. However, to meet this outside sales exemption, the employee must be "customarily and regularly engaged away from the employers place or places of business" when performing sales duties. In real estate sales, it can be hard to determine whether and when the sales person is "away from the employer's place of business."
Three recent opinion letters from the United States Department of Labor's Wage and Hour Division offer employers in the real estate arena new guidance on this issue. In the first opinion letter, the Department of Labor held that a timeshare sales person was not exempt because they were performing their sales work at the resort, which was the timeshare employer's principal place of business.
In two other letters, the DOL found that persons selling newly constructed homes, as well as sales representatives marketing single family homes, were exempt from the overtime requirements of the FLSA. In the case of employees working at a new construction site, the DOL found that the sales employees were exempt because they generally left the model home one or two hours a day, one or two times a week, to perform sales activities such as showing the customers homes on the site. Likewise, in the case of a sales representative selling new homes, the DOL found these employees to be exempt because they traveled from a sales trailer to a home site which may be as far as 10 to 20 miles away to show the homes to prospects.
These DOL opinion letters demonstrate the importance of being able to prove that a sales person is regularly away from their principal place of business in order to make them exempt from the overtime requirements of the FLSA. Keep in mind that even working out of someone's house may not make that person exempt, since the home office could be the person's principal place of business. The ultimate question is whether or not the person's "primary duties" keep him or her out of the office.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 2008 Kollman & Saucier, P.A. All rights reserved.
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