November 2005 Quick Clips

At Least One Witness - First Female African-American Ever Hired as a Manager in her Employer's Tax Department Loses Discrimination Claim, November 23, 2005

by Sarah C. Chernish

In Horne v. Reznick Fedder & Silverman, 2005 WL 3076921 (4th Cir. 2005), the Fourth Circuit found that the firing of the first black female employee in the tax department of accounting firm Reznick Fedder & Silverman was not racial or sex discrimination and affirmed the lower court's summary judgment in favor of the employer.

The plaintiff, Horne, was hired by RFS in 1998 as a senior tax accountant. When she was offered a job at another accounting firm, RFS countered with a management position and a salary increase. Although initial job evaluations were favorable, many of her supervisors became frustrated with her performance because they found she had not progressed as they had hoped and that her performance "remained at the level expected of associates, not managers." She was warned about her performance and in March her mentor told her she should consider finding a new position.

Horne claimed to RFS that she was the victim of race discrimination. As evidence she stated that soon after her promotion, a senior manager had told her that as the first black woman in the department "she should be careful, because she was being closely watched." The firm investigated and concluded that the allegations were groundless. In July, Horne failed to complete a major project prior to leaving for vacation, forcing another employee to work through the night. She was fired and she sued the firm, alleging race and sex discrimination and retaliation.

The Fourth Circuit found persuasive RFS's evidence that every person who had supervised Horne's work as a tax manager considered her performance to be sub-par. In contrast Horne presented only her own assertions that she was performing adequately and failed to produce a single witness who supported her claims she was a good manager. Moreover, Horne did not dispute she had been cautioned about her job performance and that she failed to complete her final assignment. The court found this evidence insufficient to establish a prima facie case of race or sex discrimination.

Broadcast News - Female Employee has a Case for Unequal Pay and Retaliation under Title VII, but not for a Hostile Work Environment, November 21, 2005

by Sarah C. Chernish

The plaintiff, Mary Anne Lewis, sued her former employer, Sheridan Broadcasting Network for gender and race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, violations of the Equal Pay Act and violations of the Pennsylvania state law. The court held the equal pay and retaliation claims survived summary judgment, but the hostile work environment claim did not.

Lewis, a 45 year-old Caucasian woman, was hired by Sheridan to work as a news anchor for its American Urban Radio Networks. During her employment, Lewis claimed she was discriminated against because of her race and gender. She claimed she was denied certain employment opportunities and benefits that were extended to African-American employees. Lewis alleged that she was not sent to cover certain news stories, offered yearly reviews, or chosen to substitute for a prominent radio host. She also claimed that co-workers made comments to her constituting race and gender discrimination. Specifically, she claimed another anchor and a member of the management team, told her that she did not understand the station's "core audience" and she asked too many questions. He called her "stubborn and hardheaded," and complained her desk was a "pile of chaos." A coworker asked Lewis if her parents let her listen to "black music" and told her that the only reason white people would see a certain movie was to "see a black man in chains." In addition, Lewis overheard Miller make a comment to an African-American co-worker, whose wife is Caucasian, about a "white woman whipping a slave." She complained the Human Resources Director on November 9, 2001 and on January 7, 2002, the company terminated due to a reduction in force for financial reasons.

The court found Lewis' evidence of hostile work environment insufficient to establish her prima facie case. The behavior she cited was not, according to the court, sufficiently pervasive to be actionable under Title VII because it consisted of sporadic and individual incidents. Also the comments of her coworkers were found lacking because there was no evidence that any physical threat or humiliation.

The equal pay case was permitted to go forward because Lewis had alleged facts from which a reasonable jury could conclude that discrimination was the actual reason behind the pay disparity and the company had not met its burden in responding to this evidence. In deposition testimony, one of Sheridan's witnesses indicated that the job Lewis performed was essentially the same as the job performed by a male employee who was paid considerably more than she did.

Finally, Lewis's claim she was terminated in retaliation for complaints she made regarding race and gender discrimination to the Human Resources Department survived summary judgment. Although Sheridan offered a non-discriminatory reasons for Lewis' termination, financial restructuring of its newsroom, material facts remained in dispute about whether this was pretext. The court noted that Sheridan terminated Lewis on January 7, 2002, less than two months after her complaint to Human Resources and the company could not point to one other permanent employee who was terminated in this period. Therefore, the court found Lewis had satisfied her burden by demonstrating the temporal relationship between her complaint and termination, as well as challenging the scope of the alleged restructuring, such that the jury could reasonably disbelieve Sheridan's alleged reasons for firing her.

Happy Thanksgiving, Fill'er Up? November 21, 2005

by Pete S. Saucier

Last year, the Allied Aviation Fueling Company, feeling the economic pinch that is hurting the aviation industry, negotiated an agreement with its union that required union-represented fueling employees to work on Thanksgiving as a regular work day. On Thanksgiving Day 2004, 42% of the work force called in sick. As a result, in order to keep the planes flying, some supervisors grabbed fuel lines and helped the poor suckers who showed up for work get the job done.

It seems the contract provided that if supervisors did bargaining unit fueling work, an employee on duty who grieved was entitled to one hour of pay for each plane fueled by a supervisor. An employee grieved, the Company refused payment, and Arbitrator Mark W. Suardi heard the case. Because Allied did not discipline the 42% of absent employees, or investigate whether their absences were the result of legitimate illness (yeah, right), Suardi, said, the grievant was entitled to one hour of pay for each plane fueled by a supervisor that day – 26 extra hours of pay for one day.

Think of Mr. Suardi as you pay for your flight home! Happy Thansgiving!

Time Spent At Security Checkpoints Counts as "Work Time" For Prison Employees, November 16, 2005

by Clifton R. Gray

The Court of Appeals of Maryland has held that employees of the Eastern Correctional Institution in Somerset County can count the time they spend clearing security at the beginning and end of each work shift as "work time." Dep't of Public Safety and Correctional Servs. v. Palmer, Md. (filed November 8, 2005).

The dispute between ECI and several of its "non-uniformed" employees began when the warden of the facility ordered that the time clock used by the employees to clock in and out was moved from a site where the employees could clock in and out without going through any security to a location inside the facility where the employees had to go through several security checks before arriving in their work areas. If an employee was delayed by the search requirements and security in getting to his or her work area location, the employee had to use his or her leave time. Understandably, those employees who were affected by the change in location of the time clock were not pleased with not being compensated for the time they spent waiting to clear security. Thus, a lawsuit was born.

COMAR § 17.04.11.02B(1)(g) states that "[w]ork time includes time during which an employee . . . [p]articipates in activities that are job-related immediately before the beginning or immediately after the end of an assigned shift . . . ." In finding for the ECI employees, the ALJ concluded that waiting to undergo and undergoing security checks at ECI constituted "job- related" activities of the employees as set forth in COMAR § 17.04.11.02B(1)(g) for numerous reasons. For example, the ALJ reasoned that "the requirement to undergo security on site is a prerequisite to the employee's commencement of and completion of the work day" and "it cannot be accomplished off-site, on the employee's own time." On appeal to Maryland's highest court, the Court of Appeals had to consider whether the ALJ misconstrued COMAR § 17.04.11.02B(1)(g).

Upholding the decision of the ALJ, the Court of Appeals stated that "the decision of the ALJ is supported by ordinary rules of statutory construction. By the plain language of ¶ (g), the activity need only be job-related, and the ALJ gave explanations that are reasonable and hardly arbitrary for concluding that the security clearance . . . was job-related." The Court of Appeals rebuked ECI's contention that a job-related activity must be an "integral part of a principal activity of the employment," finding that no such measure is found in COMAR § 17.04.11.02B(1)(g). The Court of Appeals also disagreed with ECI's argument that the Maryland regulation on what constitutes "work time" is no broader than federal law, finding that "if ¶ (g) were merely coextensive with federal law on activities that are preliminary to, or postliminary to, principal activities of employment, ¶ (g) would not be needed at all."

One interesting argument made by ECI before the Court of Appeals was whether a holding in the employees' favor would require the State "to compensate employees who work in State office buildings from the moment the employees enter the building and begin to walk toward their offices, climb the stairs, or wait for an elevator, inasmuch as these activities are equally 'job-related' as waiting to be searched." The Court of Appeals, however, made it clear that its decision "forecasts nothing of the kind. It is limited to the facts presented in this case. If any grievance cases arise in the future in which a line must be drawn between commuting and job-related activity, it will be drawn by the Secretary, in the exercise of Executive Department functions, before there is any judicial review." Any aggrieved State workers out there who feel that the time spent waiting for an elevator or taking the stairs should constitute "work time?" Anyone?

Toothache Not Covered By Fmla, November 14, 2005

by Clifford B. Geiger

David Hastings, an employee of a management consulting firm, claimed his employer violated the Family and Medical Leave Act ("FMLA") by firing him rather than giving him medical leave for sinusitis and a toothache. A federal judge in Minnesota disagreed and granted summary judgment for the employer.

Hastings was hired in February 2003. Three weeks after he was hired Hastings took medical leave for migraine headaches. Hastings also came down with fatigue, sinus infections, back trouble, and depression. These various maladies caused Hastings to miss all but 104 days of work between February 2003 and March 2004. The employer had approved leave for all of the missed work days.

On March 22, 2004, Hastings went on medical leave again. According to the certificate he provided, Hastings was supposed to return to work on Monday, April 5, 2004, to attend a managers meeting that day. On April 1, 2004, Hastings (who also had a sinus infection) saw a dentist about two cracked teeth. On April 5, 2004, Hastings woke up with severe tooth pain. He called his office and said he hoped to return to work in the afternoon. Hastings fell asleep and never made it. Shortly after 5:00 p.m., the employer called Hastings at home and terminated his employment.

The FMLA entitles eligible employees up to 12 weeks of unpaid leave if needed because of their own serious health condition. To be eligible, an employee must have worked for the employer for 12 months and must have worked at least 1,250 hours in the 12 months preceding the request for leave. There was a dispute as to whether Hastings had worked 1,250 hours in 104 days, so the judge moved to the next issue, which was whether Hastings had a serious health condition.

The judge determined, as a matter of law, that Hastings did not have a "serious health" condition. The FMLA defines a "serious health condition as "an illness injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." "Continuing treatment" is defined to involve a period of incapacity of at least three days. Hastings was not incapacitated for 3 days. He could have returned to work on April 6th. The Court also found Hastings did not give his employer sufficient information about his need for leave, because all the employer knew at the time of termination "was that Hastings had gone to the dentist for a toothache and was tired upon returning." Finally, the court noted the FMLA regulations provide that "routine dental or orthodontia problems" are not covered conditions.

Salary Deductions For A Snow Day? November 11, 2005

by Clifford B. Geiger

The Department of Labor (“DOL”) recently issued an opinion letter dealing with deducting salary from exempt employees for weather-related absences and workplace closures. Suppose an employer keeps its workplace open just after a snowstorm, but a salaried employee chooses not to work for personal reasons (i.e., he or she is snowed in). If the employee does not have accrued leave, can the employer deduct salary for the missed work time without jeopardizing the employee’s status as exempt from the FLSA’s minimum wage and overtime requirements? According to the DOL, the answer is yes, provided the deduction is for a full day. The result is the equivalent of leave without pay for the day. This rule applies for full-day deductions only. Deductions for less than a full day’s absence are not permitted by the FLSA. Of course, if the employee has paid leave available, the employer can require the employee to use that leave to cover the missed work time.

The rules are different if the employer closes down its place of business because of the snowstorm. If the workplace closes, employees still can be required to use accrued leave, but employers cannot deduct salary from exempt employees who do not have leave available. The DOL explained that employees who are paid on a salary basis are entitled to their full salary for any absence occasioned by the employer, regardless of whether they have leave available.

Supreme Court Holds Time Spent "Donning and Doffing" Protective Gear and Related Walking Time Compensable, November 9, 2005

by Clifton R. Gray

In an effort to clarify some discord among the Courts of Appeal, the Supreme Court has held that Section 4(a) of the "Portal-to-Portal Act" (29 U.S.C. § 254(a)) does not exclude from compensation the time employees spend donning and doffing required protective gear that is indispensable to the employees' work and walking to and from the work area afterwards. IBP, Inc. v. Alvarez, 546 U.S. (Nov. 8, 2005).

Under section 4(a) of the Portal-to-Portal Act, employers cannot be held liable under the FLSA for not compensating employees for time spent "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform" and "activities which are preliminary to or postliminary to said principal activity or activities . . . ." One group of employees in the case before the Supreme Court were employed in a meat processing plant and were seeking compensation for the time spent donning and doffing required protective gear (outer garments, hardhats, hairnets, earplugs, gloves, sleeves, plexiglass armguards, aprons, leggings, and boots) and walking from the locker rooms to the production floor of the plant. Another group of employees were employed in a poultry processing plant, also having to don and doff required protective gear. At issue was not only the time spent donning and doffing this protective gear, but also the time it took the employees to walk to the work area after donning and back to the locker room prior to doffing the gear. At the respective Courts of Appeal below, the Ninth Circuit held that such time was compensable. The First Circuit held that it was not.

Holding that both the donning and doffing of required protective gear and the time spent walking to the production area after donning and walking to the locker room prior to doffing the gear is compensable under the FLSA, the Supreme Court opined that "the few minutes spent walking between locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line," time which the regulations adopted by the Secretary of Labor have held to be compensable. See 29 C.F.R. § 790.7(c) (2005). The Court then stated that "any activity that is 'integral and indispensable' to a 'principal activity' is itself a 'principal activity' under §4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA."

"Jockeying" for NLRA Recognition, November 9, 2005

by Clifton R. Gray

Feeling that the profession has for too long been unjustly excluded from protection under the National Labor Relations Act, members of the U.S. House of Representatives are calling on the National Labor Relations Board and the National Institute of Occupational Safety and Health to take action to protect jockeys, exercise riders, and others who work with racehorses.

In a myriad of decisions, the Board has declined to assert jurisdiction over proceedings directly involving the horseracing industry. See, e.g., Prairie Meadows Racetrack, 324 NLRB No. 91, 156 LRRM 1251 (Sept. 30, 1997). In fact, Section 103.3 of the Board's Rules and Regulations specifically states that "[t]he Board will not assert its jurisdiction in any proceeding under sections 8, 9, and 10 of the Act involving the horseracing and dogracing industries." On October 18, 2005, however, six members of the House Subcommittee on Oversight and Investigations held a hearing concerning jockey health and welfare and on November 2, 2005, sent a letter to NLRB chairman Robert Battista calling for the NLRB to "correct a grave injustice. . . . The old argument that jockeys and freelance exercise riders are independent contractors should be laid to rest."

The letter continued by stating that "[c]ertainly, jockeys agree to ride specific horses for specific trainers on any given card or at any given meet. It is neither, however, the owners of the racehorses nor the trainers that set the conditions of employment. The workplace is provided and the work rules are established by the racetracks." The letter to Chairman Battista mentions Churchill Downs Inc. and Magna Entertainment Corp. Most Maryland horseracing fans could tell you that Magna is the current owner of Baltimore's Pimlico Racetrack, home of the Preakness (whether the race will continue to remain at Pimlico is a great cause of concern for horseracing fans).

Explaining its position, Churchill Downs' Director of Communications stated that "[t]he National Labor Relations Board has maintained, and we agree, that jockeys are self-employed. Racetracks do not employ jockeys or negotiate their fees for performing services for horse owners and trainers. State regulators determine the rules of racing that jockeys are required to follow." Its position is for the most part echoed by the National Thoroughbred Racing Association (NTRA), which commented in its own statement that it believes "current state regulation of the racing industry is effective and does not warrant extraordinary action by federal regulatory agencies."

A second hearing has been scheduled for November 17, 2005. Whether the NLRB will be receptive to changing its long-held stance on the exclusion of the horseracing industry from the NLRA remains to be seen. Place your bets.

Rockettes Get Cold Feet on Sympathy Strike, November 4, 2005

by Clifton R. Gray

Much has been made in the news this past week over the labor situation involving the union for the musicians who perform the music accompanying the famous Radio City Music Hall Christmas Spectacular, which has now been running annually for 73 years. The musicians' union, Local 802 of the American Federation of Musicians, went on strike on the eve of the start of the Christmas Spectacular, thereby leaving many fans of the New York tradition understandably upset and concerned that the holiday season would be without the Rockettes this year. This concern was bolstered when the Rockettes themselves didn't show for the last dress rehearsal before the start of the annual show (tickets are sold for these dress rehearsals as well) and the media reported that the Rockettes followed the musicians out of the theater in protest, engaging in a sympathy strike in support of the musicians.

Well, what a difference a day makes! The day after the Rockettes pulled a no-show, it was announced that the annual Christmas Spectacular will indeed go on, but with recorded music in lieu of live musicians. Rumor has it that someone pointed out to the Rockettes' representative that their contract contained a clause prohibiting them from engaging in sympathy strikes, which made for the quick about face. As for the musicians, they got wind (no pun intended) of management's decision to use recorded music and appeared in full tuxedo regalia that night, stating that they were ready to perform, with or without a contract. No dice, said Radio City Music Hall, as it has chosen to lockout the musicians for now. Hmm, all dressed up and nowhere to go.

No Videotape -- No Proof, November 2, 2005

by Pete S. Saucier

After taking copious amounts of time off for the birth of her baby, and other ailments, a school clerk found that she had a drug problem, and took even more time on leave. While she was on leave, the school employer discovered that she was going to her husband's motorcycle business and working on the computer on a regular basis. An investigator also approached the business where the woman waited on him. The school fired her for working while on leave from the school.

Not so fast, said Arbitrator William P. Daniel. The woman "said" that she used her husband's work computer for hours to do personal chores, that she only visited the business because she was lonely, and that she only waited on someone that one time because the sales person was away, but never otherwise did it – an astonishing coincidence. Well, not to Arbitrator Daniel. Somehow, it all seemed quite reasonable to him. He put her back to work, ordering that she be "made whole in every respect."

They Just Wanted Their Day In Court! November 1, 2005

by Pete S. Saucier

Michigan state court judges are paid different amounts of money based upon their geographic assignments. The less economically favored judges filed a lawsuit challenging the practice as a violation of their equal protection rights. The case was tossed out by the federal court of appeals for the area, which held that the judges were prohibited from suing Michigan by the United States Constitution.

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