November 2007 Quick Clips

OSHA Issues Rule Requiring Employers To Pay For Most Protective Equipment, November 29, 2007

The Occupational Safety and Health Administration recently issued a final rule requiring employers to pay for most categories of employee personal protective equipment (PPE). The new standard applies to general industry, shipyard employment, marine terminals, long shoring, and construction. The rule does not impose different or additional PPE requirements, but does obligate employers to pay for required PPE, except in limited circumstances specified in the standard. On a positive note, employers do not have to pay for lost or intentionally damaged PPE.

The rule takes effect on February 13, 2008, and must be implemented by May 15, 2008.

The text of the rule can be found at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=20094

Pilot With Post-Traumatic Stress Disorder Loses Disability Discrimination Lawsuit, November 29, 2007

by Pat Stewart

A pilot for the U. S. Customs Service whose sleep was limited by a post-traumatic stress disorder failed to show that his asserted disability substantially impaired him in the major life activities of sleeping or working, and therefore he was not an individual with a disability eligible to pursue a claim for his disability discrimination.

The pilot, Don Carter, was involved in a near-fatal crash while flying a light, piston-driven aircraft. As a result, he experienced "significant anxiety" while flying such planes and flew only turbine-driven planes for a number of years. However, when he was reassigned to a piston-driven plane, Carter informed a supervisor of his difficulties, and he was transferred to a non-flying position. A fitness-for-duty examination disclosed that Carter was able to continue working as a pilot but that he not fly piston-driven planes. Because Carter was not fit to fly both piston and turbine driven planes as required by his position, he was offered comparable non-pilot jobs at the same pay, grade, and promotion track as his pilot position.

Unwilling to accept a non-pilot position, Carter filed a discrimination charge alleging discrimination based on a mental disability, specifically, his post-traumatic stress disorder. He claimed that the disorder substantially limited him in the major life activities of working and sleeping.

The trial court dismissed the case. A federal appellate court affirmed the dismissal. With respect to Carter’s claim regarding working, the court determined that Carter admitted that his condition only restricted him from flying a specific type of aircraft and therefore did not significantly restrict his ability to perform either a class of jobs or a broad range of jobs in various classes. With respect to his claim regarding sleeping, the court concluded that Carter failed to show that his condition substantially limited him in that activity. Stated the court, "difficulty sleeping is extremely widespread, and plaintiff must present evidence, beyond vague assertions of a rough night's sleep or a need for medication, that his affliction is worse than that suffered by a large portion of the nation's adult population.”

Although the court ruled against Carter based upon the evidence, employers should be mindful that most federal appellate courts have ruled that sleeping is a major life function under disability discriminations laws, and a substantial impairment of that activity can be a basis for a discrimination claim.

New French President Takes On Organized Labor, November 16, 2007

by Eric Paltell

For the past week, France has been plagued by nationwide strikes by public transportation workers. The strikes result from French President Nicolas Sarkozy's attempt to fulfill his campaign promise to reform the cash-strapped public sector retirement system and bring about pension equality between public and private sector workers.

The main issue in this strike is President Sarkozy's proposal to require employees of "special regimes" to have 40 years of service prior to retirement. At present, these employees -- which include transit and utility workers, miners, fisherman, and dancers and technicians at the Paris opera -- can retire on a full pension after only 37.5 years of service, while the rest of the country must put in 40 years of service to qualify for full retirement benefits.

France last attempted to reform its pensions in 1995. However, then-President Jacques Chirac backed off after a two month strike that closed transportation networks and post offices nationwide. Unlike 1995, public sentiment in France seems to support the pension reforms now, and President Sarkozy seems confident that public opinion will ultimately force the unions to capitulate.

The French strikes may provide a glimpse into the future for public sector workers in the United States. Many local governments are burdened with enormous obligations for retiree medical benefits and public safety pensions that require only 20 years of service for retirement eligibility. In the years to come, state and local governments will be forced to either dramatically increase taxes or cut retirement benefits in order to meet their obligations. At a time when few private sector employees have such generous benefits, we would be surprised to see American workers be willing to pay increased taxes to fund such rich benefits for their public sector counterparts.

Leave Your Beliefs at Home, November 16, 2007

by Ken C. Gauvey

Kathryn Grossman was a guidance counselor at a public school in the tiny town of Port Wing which had a population less than 500. She started with a three year probationary period, which if renewed would have given her lifetime tenure. At the end of the three years, the school district decided not to renew her employment. It seems that one of the first things she did after beginning her work was to throw out all the materials related to the use of condoms and replace them all with materials on abstinence. In addition, on at least a couple of occasions she instituted prayer sessions with students. By the end of her three year stint as a guidance counselor there had been six teen pregnancies in this tiny school.

The school district cited philosophical differences in their decision to terminate Grossman’s employment. Grossman sued, stating that she was terminated because of her religious beliefs. The district stated that its faculty and parents were primarily Christian and held the same beliefs as the plaintiff. The district stated that it was not her beliefs that were in issue but her conduct and job effectiveness. The entire county population where the school was located was only 15,000.

The court stated that six pregnancies in such a small student body seemed like a lot and that “it is easy to understand how the people running the school would think it imprudent to retain a guidance counselor who throws out pamphlets instructing the use of condoms and replaces them with pamphlets advocating abstinence.” In reaching this conclusion the court cited numerous studies that show abstinence only programs simply do not work. The court also stated that it was not the schools job to teach religious beliefs that may be contrary to the parents.

The New I-9 Form is Released After Ten Years, November 15, 2007

by Ken C. Gauvey

Many of you probably do not know this, but 10 years ago, the law changed which made the I-9 form obsolete. Employers still had to use it, but several of the documents listed in Section A were no longer considered valid employment authorization documents. After the law was passed in 1997, the Federal Government took the affirmative step of deciding to change the I-9 to comply with the new regulations. Now, in 2007, that dream is a reality and the new I-9 Form has been released. Ten years after the law changed, the government has revamped the I-9, which includes a one page form and two pages of instructions.

Five previously accepted documents have been removed from the List A acceptable documents. In addition, the most recent Employment Authorization Document, Form I-766, was added to the list. The most interesting change however, is that employees are no longer required to provide their social security number in Section 1 of the form, unless the employer participates in E-Verify. Employers will still need this information for payroll and tax forms, but that requirement has now been eliminated with the new I-9.

For more information on the new I-9 and what it means for employers, please see the Kollman & Saucier newsletter, the Employment Brief, for November, 2007. You can find the newsletter at http://kollman-saucier.com/newsletter.html.

If You Say You’re Going to Do It, You Better Get To It, November 14, 2007

by Ken C. Gauvey

Beck was a female employee at Fry’s Food Stores who had a strict policy against the use of profanity at the workplace. During a conversation with a coworker who was recently promoted, Beck used a series of profanity while indicating that the coworker was promoted was not based on merit. Evidently, Beck had a previous romantic relationship with the coworker. The coworker reported the conversation and Beck was issued a written warning. She sought to file a grievance through the union because the conversation occurred in the parking lot before her shift was to begin. The shop steward agreed to file the grievance and never did.

Later, during a conversation regarding a pay dispute with the office clerk, Beck again let loose with a string of profanity. She was then terminated. A grievance was filed and in the company’s statement of position the attorney stated that in his view a single instance of profanity was not grounds for termination, but as Beck already had an uncontested written warning in her file, this second instance of profanity warranted termination.

Beck sued the union and won lost wages, $125,000 in compensatory damages for emotional distress and $50,000 in punitive damages. Beck was able to prove at trial that complaints brought to the union by male members were acted on and at least two complaints brought to the union by female members of the union were not. The moral of the story here is that you better do what you say you are going to.

Sexual Harassment on the Job: When in Doubt, Tell Mom, November 8, 2007

by Meg Gallucci

A federal appellate court recently reversed a lower court decision in favor of a defendant fast food restaurant in a sexual harassment case. The case involved a sixteen year old female student who had rebuffed the repeated sexual advances of the thirty-five year old general manager of the restaurant. Not knowing what to do when faced with sexual harassment on her first paying job, the student first complained to her shift supervisor. When he failed to respond, she told her mother, who came to the restaurant and complained on behalf of her daughter.

The lower court did not deny the charge of sexual harassment when it dismissed the case. Rather, the court stated that the victim had failed to invoke the company grievance process. When a company creates a reasonable mechanism by which the victim of sexual harassment can complain and get relief, and the victim fails to activate the process, a court may reasonably find for the company. In this case, the student did not follow the company procedure, and the lower court therefore dismissed the complaint against the restaurant.

In overturning the lower court decision, the appellate court noted that the company had adopted complaint procedures that would confuse even mature adult employees. Furthermore, the complaint process would have required the harasser to take charge and proceed against himself. The appellate court found the harassment procedure to be incomprehensible by a sixteen year old and ineffective even if understood. The court also decided that requiring the mother to implement the company procedure as legal agent for her daughter “would be carrying the agency analysis too far.” The mother did all that was required under the circumstances.

Employer’s Swift Response to Harassment Claim Relieves It of Liability in More Ways Than One, November 6, 2007

by Meg Gallucci

A West Virginia court recently reversed a decision by the West Virginia Human Rights Commission holding an airline liable for money damages to a pilot-trainee for harassment and discrimination. The Human Rights Commission had also ordered the airline to reinstate the pilot-trainee, and the court reversed the order for reinstatement. The airline was relieved of liability because it had established clear rules forbidding harassment in the workplace and had an effective grievance mechanism in place for receiving, investigating and resolving complaints. Management took quick and effective action as soon as it learned of the harassment. When the harassment continued, the employees responsible were forced to resign.

The pilot-trainee had also filed a retaliatory discharge claim asserting that he was terminated in retaliation for filing his charge of discrimination. The court held that the pilot-trainee had in fact made a case for retaliatory discharge. However, the court also concluded that the airline had a legitimate, non-discriminatory reason for firing him. The court stated that the pilot-trainee’s failure to pass an FAA proficiency test was clear and insurmountable evidence that he simply could not fly an airplane and the degree of his inability was “egregious.” Contrary to the ruling of the West Virginia Human Rights Commission, the court did not order reinstatement.

Court Enforces Workplace Violence Injunctions, November 3, 2007

by Meg Gallucci

Scios Inc., a California pharmaceutical company, pursued an injunction when a former employee, Brian Allen, remarked that three people in the company were going to die. Allen had approached his supervisors and informed them that he was resigning because of messages he had received from God. Allen told his supervisors that God had chosen Allen to inform them that three people were going to die from Scios's product in the near future. Considering that Allen was "sweating profusely, blinking rapidly, and making unusual gestures," it was possible that Allen was himself at risk, but his supervisors interpreted Allen's remarks differently. The supervisors tried to convince Allen to take a leave of absence rather than quit his job, but Allen insisted that he had a higher calling in life than working in the commercial manufacturing department of a pharmaceutical company.

After resigning, Allen called the Scios hotline and told the operator that three people were going to die. There were two supervisors and three employees in Allen's division so the message was interpreted as a direct threat to the department. In the week following his resignation, Allen also left approximately eighteen messages on the cell phone of his former female co-worker, whom he had repeatedly and unsuccessfully tried to date while he was employed at Scios. The bizarre messages caused the female employee substantial emotional distress. The company installed an alarm system in her house at company expense.

Later, Allen phoned a supervisor, Lee Mermelstein, and informed him that Mermelstein was aware that there were problems with the company's product. Allen also stated that if there was "something else" he was "required" to do, he "will do it." Mermelstein interpreted Allen's words as a direct threat, and hired additional security guards to secure the work area. Meanwhile, the company consulted its attorneys, concerned that Allen might possess confidential information concerning the safety of a Scios product.

The female co-worker filed for a temporary restraining order against Allen for herself, and Scios filed for temporary restraining orders for all remaining employees in his division. Under California law, a company may seek the same kind of relief available to an individual to protect employees against a credible threat of violence in the workplace, including restraining orders and injunctions. The Alameda County Superior Court found that Allen posed a credible threat to Scios employees and issued two-year injunctions prohibiting violence or threats of violence against the Scios employees.

Undaunted, Allen appealed, claiming, among other things, that he made no threats and there was no showing that he was insane. Because the court determined that a reasonable person would have taken Allen's repeated communications to Scios employees as threats to carry out potential violence, the appellate court upheld the lower court decision. No showing that Allen was insane was required. Substantial evidence supported the conclusion that Allen posed a credible threat of violence in the workplace. The case is Puthukkeril v. Allen, No. A114069, WL 3112412 (Cal. App. Oct. 25, 2007).

Federal Appeals Court Faults Union for Not Filing Grievance, November 2, 2007

by Frank L. Kollman

I recently heard the clerk of the United States Supreme Court give a speech. He stated that the Ninth Circuit Court of Appeals, whose jurisdiction includes California, provides more appealable cases to the Supreme Court than any other circuit.

This week, that court ruled that the failure of a union to file a grievance over a final written warning was a breach of the union's duty to the employee. Beck v. UFCW Local 99, No. 05-16414 (9th Cir., November 1, 2007). The employee was later fired for the same behavior. The court found that the failure to grieve the written warning made it more difficult for the union to contest the ultimate firing of the employee.

Unfortunately, this case will encourage unions to file grievances where they agree (or at least do not quarrel) with the employer's decision. If the union fears that it will be sued later by the employee, it may file grievances in situations where it agrees that the employee engaged in misconduct. So much for fostering good management-labor relations.

Gas Station Manager Exempt, November 1, 2007

by Frank L. Kollman

A federal appeals court in Ohio has found that a working manager of a convenience store gas station is exempt from overtime because of her managerial duties. Even though the employee performed many nonmanagement tasks, such as cleaning and stocking shelves, the employee was responsible for hiring, firing, and supervising employees. This was enough, in the court's opinion, to make her management duties the most essential part of her job. Thomas v. Speedway SuperAmerica, No. 06-3768 (6th Cir., October 30, 2007).

Supreme Court Doesn't Care, November 1, 2007

by Frank L. Kollman

The Supreme Court declined to review six labor related decisions of lower federal courts last week. This continues the general trend of the Supreme Court reviewing fewer cases generally and fewer labor cases specifically.

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