Human resources & employment law cumulative case briefs
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- NLRB: social media, overly-broad company policy concerning postings Controlling law.
- Controlling law.
- Controlling law
Controlling law. A vehicle salesman posted unfavorable comments about the dealership’s plans for a large sales event, and soon thereafter posted pictures of minor vehicular accident involving a customer of the adjacent dealership also was owned by his employer. Another dealership reported the postings to his employer, and the salesman was fired. The NLRA protects terms and condition of employment, but not making fun of the employer. Also, remember that a few portions of the NLRA, such as those relating to concerted activity and speech about terms and conditions of employment apply to employers who are not unionized. Karl Knauz Motors, Inc., 358 NLRB No. 164 (9/28/12); NLRB announcement at http://www.nlrb.gov/news/nlrb-finds-facebook-posting-caused-salesman%E2%80%99s-discharge-chicago-area-bmw-dealership-was-not-pro [enhanced lexis.com version]. The employee alleged unlawful termination for engaging in an activity protected by the NLRA. On appeal from the decision of the Administrative Law Judge, the NLRB ruled that he was not engaged in protected activity when he posted the accident pictures because, "It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent and had no connection to any of the employees' terms and conditions of employment." NLRB: social media, overly-broad company policy concerning postings Controlling law. Though employers may have company policies about social media, they cannot be so broad in scope as to discourage or prohibit or to "chill" the right of employees to engage in "protected, concerted activity". This decision essentially means that employers planning to draft and put into effect social media policies will need to seek expert assistance from competent, experienced employment law attorneys. Also, remember that a few portions of the NLRA, such as those relating to concerted activity and speech about terms and conditions of employment apply to employers who are not unionized. Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, 358 NLRB 106 (9/18/12); http://mynlrb.nlrb.gov/link/document.aspx/09031d4580c45356; http://www.crowell.com/files/Costco-Wholesale-Corp-and-United-Food-and-Commercial-Workers-Union.pdf [enhanced lexis.com version]. In this case the employee handbook contained a prohibition on electronic postings that "damage the Company, defame any individual or damage any person's reputation." After reviewing the matter, the Board ruled that the company's policy was unlawful on the ground the posting prohibition was overbroad because it could be construed to "chill" the right of employees to engage in "protected, concerted activity". FMLA: maternity leave, permanent replacement, reinstatement, same or equivalent position Illustrative; not controlling law. This federal district court case is a good of the full extent of the requirements for returning an employee to work after FMLA leave. Here, the employer failed to return employee to “equivalent position” after FMLA her ended. So what is an “equivalent position”? Wanamaker v. Bd. of Education, No. 3:11-cv-1791 (VLB) (U.S.D.C.CT, 7/25/12); from FMLA Insights - http://www.fmlainsights.com/Wanamaker%20v.%20Bd.%20of%20Education.pdf [enhanced lexis.com version]. FMLA and the its regulations require that an employer to return an employee to the same or an equivalent position upon return from FMLA leave, which means . . .one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. Sally Wanamaker was employed as a computer teacher for the Westport Board of Education in Connecticut. She gave birth to her daughter on maternity, but complications during labor caused a spinal cord injury, plus daughter was born with a heart defect, all of which necessitating a lengthy period of FMLA leave. Her allegations of FMAL violations were:
Status of the litigation in the trial court:
NLRB: limitation of employer’s right to discipline employee for making vulgar, offensive and threatening comments Controlling law. Employers need to effectively manage their workplace, especially because vulgar and threatening comments might lead to claims of gender discrimination, hostile work environment. Fresenius USA Mfg. Inc., 358 N.L.R.B. slip op. 138 (Sept. 19, 2012) [enhanced lexis.com version]. During a decertification campaign, in which several female employee made a formal written complaint about vulgar, harassing and threatening statements they found scribbled on union newsletters in the company break room:
These statements were meant to coerce employees into voting for the union in the upcoming decertification election, and the evidence pointed to a specific employee as the person responsible. In response, company management questioned him about the statements; at first he lied, but later confessed. The employer then terminated him for lying during the investigation and for his statements. The NLRB had no problem with the employer investigating and interrogating the employee about the statements and his misconduct [and it never inquired about his union views or any of his union activities], but is said that it went too far when it actually terminated the employee for lying about and writing the statements because it found that the employee’s statements and his false denial were protected, and the employer’s act of discharging him for engaging in such protected activity violated the NLRA. The employer argued that the employee’s offensive statements were so egregious as to lose the protection of the NLRA, but the NLRB found that they were merely “impulsive” and not premeditated, and therefore did not lose their protected status. [For a detailed critique of this case, see Theresa Thompson’s article in NetWorked at http://www.networkedlawyers.com/was-the-nlrb%E2%80%99s-decision-about-employee-use-of-social-media-on-company-time-much-to-do-about-nothing-%E2%80%93-maybe/.] Wages: “workweek standard”, NM Minimum Wage Act; analogy to FLSA Controlling law. “Workweek” is an important definition because it delineates the time period during which certain things can be done or not done, such as allow “comp. time”, or in this case determine overtime pay. As such “workweek” often is different from “pay period” [a distinction I used to have to stop and think about]. In the introductory section of this collection there is a discussion of how state courts find federal authority and or reasoning persuasive and use it, but do not therefore adopt federal law – it’s a states’ rights thing. An advantage of this approach is greater consistency for human resources practitioners and employment law attorneys. Sinclaire v. Elderhostel, Inc., No. 30,089 (NMCA, 8/13/12 – no appeal to NMCS); http://www.nmcompcomm.us/nmcases/nmca/slips/CA30,089.pdf [enhanced lexis.com version]. In the New Mexico Minimum Wage Act (MWA) it is “any week of seven days” and means “a fixed and regularly recurring workweek established by an employer” The FLSA uses the same definition. In this case the plaintiff worked as a guide on educational tours. In the packet of policies given to him when his employment started with the company, one stated that the Elderhostel workweek started at 12:01 a.m. on Sundays and ended at midnight on the immediately following Saturday, and time sheets were provided. His schedule tended to be irregular, sometimes starting on Wednesday, so if he worked more than 40 hours on a tour running from one Wednesday to the next one, there was a question of when during the Wednesday-Wednesday gigs he might be entitled to overtime pay as opposed to a Sunday-Saturday situation. He filed a claim for unpaid overtime wages with the NM DOL in 2007 on the ground that he ought to have been paid overtime based on hours he actually worked in any period of seven consecutive days rather than no in the company’s stated workweek. NM DOL his claim, Magistrate Court did the same, as did District Court. The New Mexico Court of Appeals ruled: {18} Although we generally agree with Sinclaire that state law can provide greater protection for employees than the FLSA, we are not convinced that Section 50-4-22(C) was intended to adopt anything inconsistent with the FLSA’s definition of the workweek. It makes sense that employers should be required to establish a fixed workweek (or different fixed workweeks for different types of employees) in order to have predictability and certainty about payrolls. So long as an employer pays its employees a premium for the overtime hours worked in the established workweek, that employer is in compliance with Section 50-4-22(C). [Also see this case in which the 8th Circuit approved an employer’s modification of the workweek: Abshire, et al., v. Redland Energy Services, LLC, No. 11-3380 (8th Cir., 10/10/12); http://www.ca8.uscourts.gov/opns/opFrame.html. As summarized by the appellate court: Five current and former employees of Redland Energy Services, LLC * * * commenced this action alleging that Redland violated this overtime provision by changing the designation of their workweek, but not their work schedule, so that fewer hours qualified as “overtime.” Agreeing with a Department of Labor investigator, the district court1 found no FLSA violation and granted Redland’s motion for summary judgment. * * * The employees appeal, arguing that the district court misinterpreted § 207(a)(1) and an implementing regulation, 29 C.F.R. § 778.105, and that disputed issues of material fact made summary judgment inappropriate. Reviewing the grant of summary judgment de novo, we affirm.] Sovereign Immunity: limited liability company (LLC) owned by Cherokee nation, “subordinate economic entity; Title VII and ADEA claims Controlling law in the 10th Circuit, but based on Oklahoma law. Because of the limited applicability of this case, it is cited but not briefed. Litigators and other interested parties may read it at: Somerlott v. Cherokee Nation Distr., Inc., No 10-6157 (10th Cir., 2012); http://www.ca10.uscourts.gov/opinions/10/10-6157.pdf 686 F.3d 1144 [enhanced lexis.com version]. Jurisdiction: “federal enclaves”; when state law can or cannot apply, three exceptions to the general rule of applicability Controlling law, but of limited application because of its specific facts. Because of the limited applicability of this case, it is cited but not briefed. Litigators and other interested parties may read it at: Allison v. Boeing Laser Technical Serv., (10th Cir., 8/10/12); http://www.ca10.uscourts.gov/opinions/10/10-2237.pdf 2012 U.S. App. LEXIS 16768 [enhanced lexis.com version]. ADA: employee unable to perform essential functions of the job; Iowa Civil Rights Act (ICRA) Illustrative; not controlling law. The employee requested a “straight workweek” rather than having to continue working the rotating schedule necessary to provide daily 24 hour service to customers, i.e., 24/7 coverage. Kallail v. Alliant Energy Corporate Services, Inc., No. 11-2202 (8th Cir., 9/4/12); http://www.ca8.uscourts.gov/opns/opFrame.html; http://scholar.google.com/scholar_case?case=4297547789195933156&hl=en&as_sdt=2,32; http://scholar.google.com/scholar_case?case=4297547789195933156&hl=en&as_sdt=2&as_vis=1&oi=scholarr [enhanced lexis.com version] Essential functions of the job of Resource Coordinators require working in teams of two on nine-week schedules rotating between twelve-hour and eight-hour shifts, and day and night shifts:
The employee’s Type I diabetic problems required frequent daily blood testing, and her physical condition worsened. She requested accommodations, human resources personnel responded and investigated the situation, conferred with her health care providers, and the company determined no reasonable accommodation was possible, which meant she was not a qualified individual with a disability (QIWAD, and her employment was terminated. The trial court granted summary judgment in favor of the employer, and the appellate court affirmed that order. ADA: Reasonable accommodation; vacant positions, qualified individual with a disability (QIWAD) Illustrative, but in line with controlling law in our 10th Circuit case of Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) [enhanced lexis.com version]. From time to time it’s a good idea to have a reminder of the law in the 10th Circuit, and this case provides a well reasoned, detailed review. As you may recall, the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for qualified employees with disabilities, and lists several examples of possible accommodations, including "reassignment to a vacant position. 42 U.S.C. § 12111(9)(B): (9) Reasonable accommodation The term "reasonable accommodation" may include - (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. EEOC v. United Airlines, Inc., No. 11-1774 (7th Cir., 9/7/12); http://www.ca7.uscourts.gov/tmp/LL0MHXM8.pdf [enhanced lexis.com version]. Summary by the court: . In this case, the Equal Employment Opportunity Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The case turns on the meaning of the word “reassignment.” The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. 42 U.S.C. § 12111(9). The EEOC contends that “reassignment” under the ADA requires employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified. However, this court has already held in Humiston-Keeling, 227 F.3d at 1029, that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in Barnett, 535 U.S. at 391, undermines Humiston-Keeling. Several courts in this circuit have relied on Humiston-Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of HumistonKeeling’s continued vitality. The present case offers us the opportunity to correct this continuing error in our jurisprudence. While we understand that this may be a close question, we now make clear that HumistonKeeling did not survive Barnett. We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. We remand with instructions that the district court determine if mandatory reassignment would be reasonable in the run of cases and if there are fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable in this case. * * * Two of our sister Circuits have already determined that the ADA requires employers to appoint disabled employees to vacant positions, provided that such accommodations would not create an undue hardship (or run afoul of a collective bargaining agreement): the Tenth in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) and the D.C. in Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en banc). ADA: Rehabilitation Act, analogous decision on “reasonable accommodation”; summary judgment in favor of employer reversed Controlling law. Pertinent parts of the opinion are quoted because of its detailed enumeration of critical factors to be considered and explored by an employer rather than making a decision without sufficient facts and information. Sanchez v. Vilsack, No. 11-2118 (10th Cir., 8/19/12); http://www.ca10.uscourts.gov/opinions/11/11-2118.pdf [enhanced lexis.com version] Summary by the court: Clarice Sanchez, a long-time secretarial employee of the United States Forest Service (“Forest Service”), suffered irreversible brain damage after falling at work. As a result of her injury, Sanchez lost the left half of her field of vision. She requested a hardship transfer to Albuquerque, New Mexico, where she could better access ongoing medical treatment. After the Forest Service declined to accommodate her request, she brought suit under the Rehabilitation Act, 29 U.S.C. § 791. The district court granted summary judgment in favor of the Forest Service, concluding that Sanchez was not disabled within the meaning of the Act. We disagree and hold that Sanchez has raised a genuine issue of material fact regarding her disability. On appeal, the Forest Service urges us to affirm summary judgment on an alternative ground. However, we decline this invitation because we conclude that transfer accommodations for the purpose of medical treatment or therapy are not unreasonable per se. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand. On appeal, out 10th Circuit Court of Appeals set forth these factors in reversing the trial court’s summary judgment order in favor of the employer: The Rehabilitation Act prohibits the federal government from discriminating against an “otherwise qualified individual with a disability.” 29 U.S.C. § 794(a); McGeshick v. Principi, 357 F.3d 1146, 1149 (10th Cir. 2004). Part of the government’s obligation is to provide reasonable accommodations to disabled employees. To prevail on a failure-to-accommodate claim a plaintiff must demonstrate that: (1) she is disabled; (2) she is “otherwise qualified”; and (3) she requested a plausibly reasonable accommodation. * * * There is no dispute that Sanchez has a recognized impairment or that the life activity she has identified—seeing—falls within the Act. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 900 (10th Cir. 1997) (defining “major life activity” to include “seeing”); 29 C.F.R. § 1630.2(i)(1)(i) (same). We thus focus on whether Sanchez has demonstrated at least a genuine dispute of material fact as to whether her condition “substantially limits” her ability to see. We conclude that she has done so. An impairment is substantially limiting when it renders an individual significantly restricted in her ability to perform a major life activity “compared to the average person in the general population.” Johnson v. Weld Cnty., 594 F.3d 1202, 1218 (10th Cir. 2010) (quotation omitted). In conducting this analysis, courts must take into account: (1) the nature and severity of the impairment; (2) the expected duration of the impairment; and (3) the permanent or long term impact resulting from the impairment. Pack v. Kmart Corp., 166 F.3d 1300, 1305-06 (10th Cir. 1999); see also 29 C.F.R. § 1630.2(j)(4)(i) (“[I]n determining whether an individual is substantially limited in a major life activity, it may be useful in appropriate cases to consider, as compared to most people in the general population, the condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity.”). As this definition suggests, it is not sufficient for a plaintiff to identify an impairment and leave the court to infer that it results in substantial limitations to a major life activity. Cf. Rhodes v. Langston Univ., 462 F. App’x 773, 779 (10th Cir. 2011) (unpublished) (amputee who relied on a prosthesis did not present any evidence about its effect on his ability to walk). At the summary judgment stage, Sanchez must point to some evidence showing that her impairment limits her seeing or some other major life activity. Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999). For a visually impaired plaintiff, this might include evidence of “loss of depth perception,” id., “degree of visual acuity,” “age at which [the individuals] suffered their vision loss,” “extent of . . . compensating adjustments in visual techniques,” or the “ultimate scope of restrictions on visual abilities.” Id. at 566. Nonetheless, Sanchez’s burden is not an “onerous” one. Id. at 567 (explaining that an individual with monocular vision will “ordinarily” be disabled under the Act). The ADA and Rehabilitation Acts “address[] substantial limitations on major life activities, not utter inabilities.” Id. at 565 (quoting Bragdon v. Abbott, 524 U.S. 624, 641 (1998)). * * * . . . The question is not whether Sanchez can do many of the same activities a person who is not visually impaired takes for granted. Rather, we must focus on the major life activity Sanchez has identified—seeing—and determine whether she has shown “the [substantial] extent of the limitation” on that activity “in terms of [her] own experience.” Albertson’s, Inc., 527 U.S. at 567. We conclude that Sanchez has produced ample evidence that “the manner in which” she sees is substantially limited as compared to the average individual. 29 C.F.R. § 1630.2(j)(4)(i). And thus this will be the question for a jury to decide. FMLA: damages, overtime included in back-pay award, 29 U.S.C. § 2617(a)(1)(A)(i)(I) Illustrative; not controlling law. Under the provision of the FLMA, overtime pay is included in calculating damages for a successful plaintiff. Pagan-Colon v. Walgreens of San Patricio Inc., Nos. 11–1089 and 11–1091 (1st Cir., 9/4/12); http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-1089P.01A; [enhanced lexis.com version]. LIPEZ, Circuit Judge, on the issue of what is included in an award of backpay under the FMLA: * * *
FLSA: litigation, automatic meal break deductions, collective action [similar to class action] decertified Illustrative; not controlling law. This case is primarily of interest to litigators, so it will not be briefed; the entire opinion is available to them on the URL link cited below Frye v. Baptist Memorial Hospital, Inc., No. 11-5648 (6th Cir. 2012); http://www.ca6.uscourts.gov/opinions.pdf/12a0926n-06.pdf; 2012 U.S. App. LEXIS 17791[enhanced lexis.com version]. [Also see Camilotes v. Resurrection Health Care Corp., No. 1:10-cv-00366 (N.D. Ill. Oct. 4, 2012)]. The appellate court upheld decertification of an FLSA collective action challenging the use of an automatic 30-minute deduction for unpaid meal breaks because the group contained too many differences in how this situation was handled. [Note: As you may recall, it is common in many industries to automatically deduct unpaid meal break from employees' hours worked, unless employees perform any work during their meal breaks. When that occurs, they are instructed to report such work through exception procedures made available by the employer, such as by writing meal-break work in a formal log, submitting a written note to a supervisor, or orally informing a supervisor of the work performed. These methods often vary from location to location or employer to employer, which was the situation with this case.] Settlement agreement: draft carefully and specifically Illustrative; not controlling law. This case is included for litigators to read the full for pointers on the need for careful drafting of settlement agreements. Also, when settling case with workers forty years of age, attorneys need to review cases dealing with the provisions of the Older Workers Benefits Protection Act (OWBPA) that Perkins v. Metropolitan Government of Nashville and Davidson County, No. M2010-02021-SC-R11-CV (TN Sup. Ct., 8/22/12); http://www.tncourts.gov/sites/default/fil specific and es/perkinsp_opn.pdf; http://caselaw.findlaw.com/tn-supreme-court/1610062.html [enhanced lexis.com version] Summary by the court: An employee of an agency of the Metropolitan Government of Nashville and Davidson County (“Metro”) was discharged after she filed complaints with the Equal Employment Opportunity Commission and a lawsuit against Metro alleging employment discrimination. The employee appealed her termination to the Metro Civil Service Commission and eventually settled the appeal, receiving backpay and other consideration in exchange for her agreement not to apply for or accept future employment with the agency that discharged her. The employee subsequently filed a complaint against Metro alleging, among other things, retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). Metro filed a motion seeking summary judgment. The trial court granted the motion, reasoning that the employee could not establish that her termination constituted an adverse employment action because she had accepted backpay and agreed not to be reinstated as part of the settlement of her Civil Service Commission appeal. The Court of Appeals affirmed. We conclude that the employee’s acceptance of the settlement does not preclude her from establishing that her termination constituted an adverse employment action for purposes of her federal retaliatory discharge claims. We reverse the judgment of the Court of Appeals, vacate the judgment of the trial court granting Metro summary judgment, and remand this matter to the trial court for further proceedings consistent with this decision. FICA: timely informative article on refund Sixth Circuit Decision Offers FICA Tax Refund Opportunities for Severance Pay September 11, 2012, Vicki M. Nielsen (Ogletree Deakins, Washington office); http://www.ogletreedeakins.com/publications/2012-09-11/sixth-circuit-decision-offers-fica-tax-refund-opportunities-severance-pay: “Any employer that implemented reductions in force or layoffs after 2008 should consider filing refund claims for the Federal Insurance Contribution Act (FICA) taxes paid on severance benefits based on a recent Sixth Circuit Court of Appeals decision. In United States v. Quality Stores, Inc., No. 10-1563 (September 7, 2012), the Sixth Circuit held that severance payments paid to employees pursuant to an involuntary reduction in force were not “wages” for FICA tax purposes.” Case URL link: http://www.ca6.uscourts.gov/opinions.pdf/12a0313p-06.pdf [enhanced lexis.com version]. Public Sector: free speech, First Amendment; public concern rather than private matter; summary judgment reversed Illustrative; not controlling law. And we wonder what is wrong in the schools these days (please pardon my bias, but my daughter is a teacher, as are many of my friends). Gschwind v. Heiden, No. 12-1755 (7th Cir., 8/31/12); http://www.ca7.uscourts.gov/tmp/LH0OVX4Q.pdf; http://www.ca7.uscourts.gov/tmp/LH0O0HO2.pdf [enhanced lexis.com version] Background:
At a meeting with the student’s parents, the father threatened the teacher with litigation and said the student should have assaulted the teacher. In a class subsequent to these incidents, during a “math karaoke,” an assignment to create a song relating to something learned in class, the student’s presentation was based on a rap song and had lyrics about the student stabbing the teacher. Prudently, the teacher informed the administration of the incident and talked about filing a criminal complaint against the student, and later did so. What next, you ask? The teacher alleged that the
In his complaint in the trial court, he alleged violation of his right to free speech by the school district by constructively discharging him for complaining and filing the criminal complaint against the student [Note: “Constructive discharge” generally means that working conditions are so intolerable as to amount to a firing, despite a lack of a formal termination notice, or in this case, quit or be fired, with all of the adverse consequences involved with that.] Litigation:
ERISA: fraudulent withdrawal by ex-wife, plan administrator held not liable Download 5.55 Mb. Share with your friends:
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