Hostile Environment Finding Does not Automatically Mean Back Pay, November 29, 2006
A federal appeals court has ruled that it is not enough for an employee to show that she was the victim of hostile environment discrimination to quit and get back pay. The court said that the employee would have to show that the environment was so bad that she was "forced to abandon the job," not merely that she was subjected to discrimination. Spencer v. Wal-Mart Stores Inc., Nos. 05-2143, 05-3436, 05-3471, (3d Cir., November 22, 2006).
Ignorance is Not Bliss - Firm Hit with $2.3 Million Verdict, November 21, 2006
A trucking firm lost a sexual harassment case filed by the EEOC on behalf of three female salespeople who claimed that the employer turned a blind-eye to the highly-charged sexual atmosphere at the office. EEOC v. Custom Cos. Inc., No. 02 C 3768 (N.D. Ill., verdict November 17, 2006). The women were apparently subjected to constant comments, groping, and graphic photographs. The employer's defense that it did not know was rejected in light of evidence that the misconduct in the office was pervasive.
Employers need to be aware of the office and workplace demeanor of its employees. Sexual comments and conduct can easily degenerate into a fraternity house atmosphere if left unchecked, and they could result in charges of sexual harassment.
Dental Plan Must Be Continued During FMLA Leave, November 21, 2006
The Department of Labor has issued an opinion letter that dental plans must be continued during Family and Medical Leave Act Leave, just as medical insurance must be maintained for the employee. Wage and Hour Opinion Letter, FMLA2006-6-A. Under the FMLA, the employer must continue group health coverage for employees on leave, but may require the employee to repay the premiums if he or she does not return from leave.
Firm Guilty of Improper Wage Deduction, November 21, 2006
Under New York law, as in many states, employers may not deduct amounts from an employee's paycheck without written authorization (except withholding taxes and similar mandatory deductions). Further, deductions, even if authorized by the employee, have to be for the benefit of the employee, not the employer. A business in New York employing laborers decided to provide a "service" to its employees by giving them the option to be paid by check or paid by a cash dispensing machine. Employees who opted for the cash machine, however, were charged a fee for the transaction. The company over time made more than $8 million in fees because about two-thirds of the employees preferred cash.
Because the program was voluntary, the state agency administering the wage deduction law found the program legal. The Court of Appeals of New York, however, disagreed. Angello v. Labor Ready Inc., No. 149 (N.Y., November 16, 2006). In essence, the court found the benefit to the employees, if any, far outweighed by the benefit to the employer.
Strength-Testing Found Discriminatory, November 20, 2006
A federal appeals court has approved a $3.4 Million verdict against an employer that runs a meat processing plant. The court found that the requirement, which had a disparate impact on women, was not a business necessity. The meat packer had adopted the testing requirement because it wanted to reduce workplace injuries, ostensibly related to lifting issues.
The court relied on evidence that the number of women hired in the plant was drastically reduced after the requirement was adopted. Further, the test itself was found to disqualify more women than men, making it necessary for the employer to prove there was a business necessity for the test. EEOC v. Dial Corp., No. 05-4183 (8th Cir., November 17, 2006).
Second Circuit Upholds Jury Award Of Lost Earnings To Undocumented Worker, November 17, 2006
Jose Raimundo Madeira is a citizen of Brazil who illegally entered the United States in 1998. In Brazil, he worked in a factory and earned about $175 a week. Once in the United States, Madeira was hired by his brother to work as a construction laborer for C&L Construction (“C&L”). In this position, Madeira earned approximately $15 per hour and worked as many as 50 hours per week. There was no evidence that Madeira used false identification to obtain his job at C&L. On June 20, 2001, while working as a roofer for C&L, Madeira fell from the top of a building at a development site in Monroe, New York. Madeira sustained serious disabling injuries. A vocational rehabilitation counselor testified that Madeira had little chance of future employment in Brazil or the United States.
Madeira sued the owner of the construction site and the general contractor for failing to provide adequate safety equipment in violation of New York’s Scaffold Law. The jury awarded Madeira $638,671.63 in total compensatory damages, which included $40,020 in past lost earnings and $230,000 for future lost earnings. The Defendants appealed the award of past and future lost earnings, arguing that the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), required the conclusion that federal immigration law, which prohibits the employment of undocumented aliens, precludes state law from permitting an award of lost earnings to an undocumented worker such as Madeira.
In Hoffman Plastic the Supreme Court ruled that the NLRB's discretion to fashion remedies for violations of the National Labor Relations Act did not reach so far as to permit that agency "to award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud," Hoffman Plastic, 535 U.S. at 149. The Second Circuit found important legal and factual distinctions between the facts presented in Hoffman Plastic and Madeira’s situation. First, the injury being remedied in Hoffman Plastic was employment termination, but Madeira was being compensated for a disabling personal injury caused by job site negligence. In addition, the Court found it important that Madeira himself had not violated the Immigration Reform and Control Act (“IRCA”) by presenting false documentation to obtain employment.
Upholding the award of damages for lost earnings, the Second Circuit concluded, “[a]lthough federal immigration law prohibited Madeira's employment in this country, where, as in this case, both his initial hiring in violation of IRCA and his personal injury resulted from the wrongdoing of others, we identify no clear conflict between federal immigration law and New York law allowing a jury, upon being instructed to consider an alien's removeability, to award some measure of compensatory damages based on lost United States earnings for a violation of Labor Law § 240(1).”
Madeira v. Affordable Hous. Found. , 2d Cir., No. 04-3606, 11/14/06.
Distance Between Worksites Under FMLA Measured In Surface Miles, November 16, 2006
Kelly Hackworth was employed by Progressive Casualty Insurance Co. (“Progressive”) at its Norman, Oklahoma facility. On March 19, 2004, Ms. Hackworth requested paid leave under the Family and Medical Leave Act (“FMLA”) to care for her mother. Her supervisor responded by offering Ms. Hackworth a choice between a demotion and a severance package, but Ms. Hackworth was subsequently approved for FMLA leave. Later, when Ms. Hackworth informed Progressive of her intent to return to work, she was told not to come back. Progressive told Ms. Hackworth her job had been eliminated, and it did not offer her equivalent work or compensation. Ms. Hackworth sued Progressive under the FMLA for failure to reinstate and retaliation.
Progressive moved for summary judgment arguing that Ms. Hackworth was not an eligible employee under the FMLA, because Progressive did not employ at least 50 people within 75 miles of the Norman, Oklahoma worksite. Progressive employed a combined 47 people at its Norman and Oklahoma City facilities, which it admitted are within 75 miles of each other. A third facility, in Lawton, Oklahoma, is 67 linear miles or 75.6 surface miles from the Norman facility, depending on how the distance is measured. If the Lawton facility was included, Progressive would reach the 50 employee threshold for FMLA coverage.
Ms. Hackworth argued the distance between Norman and Lawton should be measured “as the crow flies,” which is contrary to Department of Labor regulations. The applicable regulation provides:
The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the eligible employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g. airline miles). 29 C.F.R. § 825.111(b) (1995).
The United States Court of Appeals for the Tenth Circuit affirmed summary judgment in favor of Progressive. The Court determined Congress did not specify how to measure the geographic proximity of worksites, and that using surface miles was reasonable given the purpose of the 50/75 provision, which was intended to create an exception for employers that may have difficulty reassigning workers to cover for employees on FMLA leave. The Court wrote, “[t]he use of surface miles is a fair, reasonably accurate and commonly-understood method of determining whether an employer has a significant pool of substitute workers nearby.” The Court also rejected Ms. Hackworth’s argument that 75.6 miles was close enough to be considered within 75 miles.
Hackworth v. Progressive Casualty Insurance Co., 10th Cir., No. 05-6198, 11/14/06.
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