Human resources & employment law cumulative case briefs
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Controlling law. The City of Albuquerque won this complex overtime pay case. Because of its complexity and very technical nature, it will not be briefed and a careful reading of all of the details is strongly recommended. A recurring theme throughout the opinion is the concept that the FLSA is a floor on wages rather than a supplement to them to be negotiated during collective bargaining. Chavez v. City of Albuquerque, Nos. 09-2274 & 09-2288 (10th Cir., 1/12/11); 2011 U.S. App 622; 630 F.3d 1300; 2011 U.S. App. LEXIS 622; 17 Wage & Hour Cas. 2d (BNA) 110; http://www.ca10.uscourts.gov/opinions/09/09-2274.pdf [enhanced lexis.com version]. Title VII: hostile work environment, insufficient evidence of discrimination, lack of proof of discriminatory animus, Title VII is not a “general civility code” Controlling law. Even if the Black employee of African origin felt insulted, suffered hurt feelings, or found some remarks offensive, the conduct was found not to “demonstrate either that any alleged harassment was sufficiently severe, pervasive or objectively offensive as to create an abusive working environment, or that he was harassed because of his race or national origin.” Nor did the employee show any discriminatory animus. As courts have stated many time over the years, Title VII is not a general civility code. Musungayi v. Whirlpool Corp., No. 10-5060 (10th Cir., 11/4/10); 2010 U.S. App. LEXIS 22946; http://www.ca10.uscourts.gov/opinions/10/10-5060.pdf [enhanced lexis.com version]. ADEA: insufficient evidence of discrimination, failure to show replaced by younger person Controlling law. For 26 years Theresa Kosak worked as a financial counselor in the patient access department of the St. Mary-Corwin Medical Center, owner and operator of Catholic Health Initiatives of Colorado. Leah Willey became director of the department in February of 2007, and within a week she began receiving complaints about Kosak. Her investigation included speaking to current and former employees and physicians, plus holding a meeting with Kosak. Based on the results of the investigation Kosak was fired. Her replacement was the same age, 49. Summary judgment was granted in favor of the employer and affirmed on appeal. Usually, an age claim requires a showing of replacement by a younger worker, though if there are “extraordinary circumstances”. With this in mind, in a footnote in the opinion the court observed: . . . evidence, circumstantial or direct, from which a fact-finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue” or that the employer treated the plaintiff “less favorably than younger employees.” Id. While a reduction-in-force is the most obvious example of the need for a different formulation of the fourth element of a prima facie claim, there may be other circumstances that similarly require the reformulation of that element. Kosak v. Catholic Health Initiatives of Colo., No. 09-1526 (10th Cir., 10/28/11); 2010 U.S. App. LEXIS 22349; 110 Fair Empl. Prac. Cas. (BNA) 1141; http://www.ca10.uscourts.gov/opinions/09/09-1526.pdf [enhanced lexis.com version]. Electronic records: electronically stored information (ESI), forensic evidence, preservation of data and records relevant to claim, spoliation, court sanctions, adverse ruling, federal Stored Communications Act, and much more Illustrative; not controlling law. Several federal laws and numerous state laws affect ESI, and failure to comply with them can result in serious consequences for employers. One chilling example is the possibility that could result is an adverse jury instruction. If an employer failed to preserve evidence, or even worse, destroyed it, one consequence could be a jury instruction that the jurors may assume the missing ESI was unfavorable to the employer. Reading this Pure Power Boot Camp case and conferring with legal counsel about preserving ESI could well prevent penalties and adverse rulings by taking steps well before litigation might arise. The same applies to being very cautious about deciding whether you may lawfully access an employee’s personal e-mails. Further, employers need to check their policies about computer usage (you do have them, don’t you?) to ensure they are current and clearly stated, e.g., employees should not expect that their use of company computers will be considered private -including all Internet activity and, specifically, web-based e-mail accounts to the extent they are accessed via the employer’s computer. Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, No. No. 08 Civ. 4810 (THK) (S.D.N.Y., 12/22/10); http://scholar.google.com/scholar_case?case=7281027527677082985&q=Pure+Power+Boot+Camp,+Inc.+v.+Warrior+Fitness+Boot+Camp,+LLC,&hl=en&as_sdt=2,32&as_vis=1 [enhanced lexis.com version]. In this case, two employees were in the process of opening a fitness center that would compete with the company they were then working for. One of the employees quit and the other was fired, and following that the employer accessed and printed emails from the fired employee’s web-based e-mail accounts. The employer claimed that the employee had saved his username and password to the employer’s computer system, though this was a disputed contention. Litigation followed:
Prohibiting use of the e-mails was based on its finding that accessing the employee’s emails violated the Stored Communications Act (SCA), which prohibits, among other things, unauthorized access of e-mail correspondence that has been saved or stored once sent. Damages of $4,000 were awarded to the employees. Even worse, it turned out the e-mails were on the employer’s business computers as well as the username and password to access them, and those e-mails supported the employer’s claim that the employees had been preparing to compete during their employment and had gone on to open a competing business. [Ouch! Lesson: Be very cautious about accessing employee electronic communications and sites.] ADA/Rehabilitation Act: requirement of note from physician after sick leave or restricted duty, nature of illness, capable of returning to duty, constitutional right to privacy, summary judgment in favor of employer Illustrative; not controlling law. The City of Columbus, Ohio, required by one of its directives that employees returning from work must provide to their immediate supervisor a note from their physician stating the nature of their illness and whether the employee is capable of retuning to duty. Employees sued based on allegations of violation of federal disability laws and violation rights of privacy. The 6th Circuit Court of Appeals reversed the summary judgment in favor of the employees and nullified the injunction issued against the city. Lee v. City of Columbus, Ohio, No. 09-3899 (6th Cir. Feb. 23, 2011); 2011 U.S. App. LEXIS 3508; 2011 FED App. 0058P (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/11a0058p-06.pdf [enhanced lexis.com version]. ADA/Federal Rehabilitation Act These two acts are closely related and the Rehabilitation Act applies to any program or activity receiving federal money. The appellate court stated that though the Rehabilitation Act addresses the confidentiality of medical records, it does so only in the context of pre-employment examinations, and the ADA’s limitations on the disclosure of medical information are incorporated by reference into the Rehabilitation Act. However, an important point is the significant difference between the two statutes: the ADA prohibits discrimination “because of” a disability, while the Rehabilitation Act only prohibits discrimination “solely on the basis of” a disability. Accordingly, an employer who makes a decision because of an employee’s disability does not violate the Rehabilitation Act if the disability is not the sole reason for the decision. The court said: The mere fact that an employer, pursuant to a sick leave policy, requests a general diagnosis that may tend to lead to information about disabilities falls far short of the requisite proof that the employer is discriminating solely on the basis of disability. Remembering this distinction will be important for employers when dealing with this kind of situation and when creating policies relating to return from sick leave. The opinion discusses some of this in detail, so read the case so you don’t miss anything of value. Constitutional right to privacy No violation was found by the appellate court. The Sixth Circuit “has developed and applied [an] approach to assessing informational privacy claims” that requires plaintiffs to show “the asserted privacy interest implicates a fundamental right”, and it has recognized an “informational privacy interest of constitutional dimension in only two instances: (1) where the release of personal information could lead to bodily harm, and (2) where the information released was of a sexual, personal, and humiliating nature.” Determining the present case did not implicate either of these instances, the Court held there is no “informational-privacy concern of a constitutional dimension.” Comment on this case by the lawyers of Jackson Lewis cautions that consideration needs to be given to possible violation of the Genetic Information Nondiscrimination Act (GINA), and that article can be found at http://www.jacksonlewis.com/resources.php?NewsID=3562. Jackson Lewis is a regular contributor to the Employment Law Information Network at the URL link show in the box at the top of this database. ADA: drug testing, one-strike rule, no ADA violation, disparate impact, no ADA discrimination Illustrative; not controlling law. This is a case to be aware of, but perhaps not rely on. Whether this case might provide persuasive authority in other jurisdictions is questionable, plus it was a 2-1 decision with a credible dissenting opinion, so proceed with caution. Under the policy of the Pacific Maritime Association, testing positive for drugs or alcohol can result in being forever barred from consideration for employment. Thus, this rule gives no leeway for possible rehabilitation, and it amounts to a ban for life on a type of employment. In affirming summary judgment for the employer, this 9th Circuit opinion stated (1) the one-strike rule applies to anyone who fails a drug/alcohol test, not just addicts or recovering addicts, and (2) the employer also had no knowledge that the applicant was a recovering addict, only that he previously had failed the test. The dissenting judge noted that the applicant ought to have been allowed to try his disparate impact claim of the effect on recovering alcoholics or drug abusers. However, the applicant did not support that argument with statistical proof and, thus, the court did not allow his claim to proceed. Lopez v. Pacific Maritime Association, No. 09-55698 (9th Cir., 3/2/11); 2011 U.S. App. LEXIS 3923; http://www.ca9.uscourts.gov/datastore/opinions/2011/03/02/09-55698.pdf [enhanced lexis.com version]. USERRA: decisionmaker, influence with or over, “cat’s paw” doctrine Controlling law, plus probable extension of the reasoning to other cases, such as those involving Title VII and other discrimination laws. The legal point is the nature and extent of the “cat’s paw” legal doctrine *. Staub v. Proctor Hospital, No. 09–400. ____ U.S. ____ (USSC, 3/1/11); 31 S. Ct. 497; 178 L. Ed. 2d 284; 2010 U.S. LEXIS 8000; 79 U.S.L.W. 3226; http://www.supremecourt.gov/opinions/10pdf/09-400.pdf [enhanced lexis.com version]. In this unanimous decision the U.S. Supreme Court held that an employer may be liable under the Uniformed Services Employment and Reemployment Rights Act (USERRA) when the discriminatory actions of an employee who doesn’t make employment decisions influences an adverse employment action decision made by another employee who is authorized to take that action (i.e., the “decisionmaker”). The Court noted that . . .if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. The cat’s paw doctrine appears in many cases, so it seems likely that the ruling in Staub will be applied many other discrimination cases in the future. Justice Scalia noted: The statute [USERRA] is very similar to Title VII, which prohibits employment discrimination “because of . . . race, color, religion, sex, or national origin” and states that such discrimination is established when one of those factors “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §§2000e–2(a), (m) (Slip Opinion, page 5). Here are facts noted by the Court as important:
Read the entire case for all of the factual and legal details. [Note: Best practices probably require that terminations ought to be for cause based on adequately documented efforts of warning and counseling for deficient performance by an employee, or of misconduct clearly necessitating immediate dismissal. As a practical matter these days relying “at-will” employment status can be of little or no value when taking an adverse employment action. And this may also be the case when conducting investigations. [* See Aesop’s fable: http://mythfolklore.net/aesopica/milowinter/61.htm] Technology: stolen computer contained sensitive encrypted employee data, employer provided protection to employees, fear of losses, no losses, facing a “credible threat of harm”, standing to sue Illustrative; not controlling law. Is the possibility of something bad happening a sufficient basis for a court to find that a plaintiff has standing (sufficient legal cause) to sue? Maybe. This decision is not controlling law in our jurisdiction, but it might be persuasive authority if a similar situation arose here. Accordingly, it is essential to have strong security of sensitive employee information and the hardware on which it is stored. Krottner v. Starbucks Corp., No. 09-35823, No. 09-35824 (9th Cir., Dec. 14, 2010); 2010 U.S. App. LEXIS 26795; 31 I.E.R. Cas. (BNA) 1123; http://www.ca9.uscourts.gov/datastore/opinions/2010/12/14/09-35823.pdf [enhanced lexis.com version]. Quoting from the 9th Circuit Court of Appeals opinion: On October 29, 2008, someone stole a laptop from Starbucks. The laptop contained the unencrypted names, addresses, and social security numbers of approximately 97,000 Starbucks employees. On November 19, 2008, Starbucks sent a letter to Plaintiffs-Appellants and other affected employees alerting them to the theft and stating that Starbucks had “no indication that the private information has been misused.” Nonetheless, the letter continued, As a precaution, we ask that you monitor your financial accounts carefully for suspicious activity and take appropriate steps to protect yourself against 20060 KROTTNER v. STARBUCKS CORPORATION potential identity theft. To assist you in protecting this effort [sic], Starbucks has partnered with Equifax to offer, at no cost to you, credit watch services for the next year. Krottner and Shamasa allege that after receiving the letter, they enrolled in the free credit watch services that Starbucks offered. Krottner alleges that she “has been extra vigilant about watching her banking and 401(k) accounts,” spending a “substantial amount of time doing so,” and will pay out-of pocket for credit monitoring services once the free service expires. Lalli alleges that he “has spent and continues to spend substantial amounts of time checking his 401(k) and bank accounts,” has placed fraud alerts on his credit cards, and “has generalized anxiety and stress regarding the situation.” Shamasa alleges that his bank notified him in December 2008 that someone had attempted to open a new account using his social security number. The bank closed the account, and Shamasa does not allege that he suffered any financial loss. -Appellants filed two nearly identical putative class action complaints against Starbucks, alleging negligence and breach of implied contract. On August 14, 2009, the district court granted Starbucks’s motion to dismiss, holding that Plaintiffs-Appellants have standing under Article III but had failed to allege a cognizable injury under Washington law. Plaintiffs-Appellants appealed, and we have jurisdiction under 28 U.S.C. § 1291. Plaintiffs-Appellants Laura Krottner, Ishaya Shamasa, and Joseph Lalli appeal the district court’s dismissal of their negligence and breach of contract claims against Starbucks Corporation. Plaintiffs-Appellants are current or former Starbucks employees whose names, addresses, and social security numbers were stored on a laptop that was stolen from Starbucks. Their complaints allege that, in failing to protect Plaintiffs- Appellants’ personal data, Starbucks acted negligently and breached an implied contract under Washington law. * * * Affirming the district court, we hold that Plaintiffs- Appellants, whose personal information has been stolen but not misused, have suffered an injury sufficient to confer standing under Article III, Section 2 of the U.S. Constitution. We affirm the dismissal of their state-law claims in a memorandum disposition filed contemporaneously with this opinion. FMLA: unclear, vague or ambiguous request, regulations and duty to inquire for clarification, employee’s failure to reply to legitimate inquiries, claim dismissed Illustrative; not controlling law. What is the difference between diligent required inquiry and pestering calls? Preventing FMLA claims is essential, and adequate training can help avoid problems and expensive litigation. This case might be one more illustrative situation to include in your FMLA training of everyone in your company or agency. Righi v. SMC Corporation of America, No. 09-1775 (7th Cir., 2/14/11): 2011 U.S. App. LEXIS 2822; http://www.ca7.uscourts.gov/tmp/5S0L32CP.pdf [enhanced lexis.com version]. Differences: Why and how are the calls being made?
What’s the difference? Facts in Righi:
Righi sued SMC, alleging it had interfered with his right to take FMLA leave, and he lost. Court’s reasoning and ruling: If an employee's request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations, 29 C.F.R. 825.303(b) requires the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA. When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection. Thus, the employers action required by FMLA regulations was not interference, and the employee’s failure to respond or stay in touch in violation of company policy was valid ground for terminating his employment because he made "no effort whatsoever" to keep SMC apprised of his fluid situation and was absent and out of touch with his supervisor for more than a week. FMLA, ADA: addiction treatment, substance abuse, differentiate between abuse and treatment Illustrative; not controlling law. Differentiating between substance abuse and treatment for that condition can be difficult, so employers need to carefully examine and analyze leave, absence and tardiness related to this problem. Consider these factors:
Read this Texas case for the details and think critically about how things could have been handled better and how you would handle future situations in your workplace. Picarazzi v. John Crane, Inc., No. 2:10-cv-00063 (U.S.D.C. Corpus Christi Div., 02/07/11); http://scholar.google.com/scholar_case?case=2504265269094948652&hl=en&as_sdt=2&as_vis=1&oi=scholarr; http://op.bna.com/dlrcases.nsf/id/jaca-8dvpld/$File/Picarazzi.pdf [enhanced lexis.com version]. FMLA: too frequent contact by employer, possible pressure, possible interference with leave rights; additional complicating factors Illustrative; not controlling law. There difference between having a leave policy that requires an employee to call in regularly when off on leave, and calling an employee too often to ask when he or she anticipates returning. On the one hand the FMLA provides eligible employees with up to 12 weeks of unpaid leave for qualifying conditions, but on the other hand it prohibits employers from interfering with an employee’s rights under the Act, and under FMLA regulations, interference includes “discouraging” an employee from using FMLA leave. Balancing an employee’s leave rights with an employer’s concern with when an employee might return is difficult because an employer is concerned with keeping the operation functioning well. One consideration might have to do with how critical the person on leave is to the operation, e.g., someone in a routine position and a major player who fits the “key person” exception in the FMLA [http://www.ppspublishers.com/ez/html/100207txtb.html]. In this federal district court case in western Arkansas weekly phones calls to a maintenance worker by her immediate supervisor allegedly caused the employee to feel that she was being pressured to return to work and that her job was in jeopardy. Complicating this situation further was the employer’s activity in dealing with a theft problem that the employee may have been implicated in. At trial the issue will be whether the nature and frequency of the weekly phone calls amounted to interference with FMLA leave. Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (WDAK, 1/27/11); http://scholar.google.com/scholar_case?case=12749087681111817538&q=Terwilliger+v.+Howard+Memorial+Hospital&hl=en&as_sdt=2,32&as_vis=1 [enhanced lexis.com version]. Title VII: hostile work environment, evidence, severe or pervasive, McDonnell Douglas test; retaliation, legitimate non-discriminatory reason for adverse employment action Download 5.55 Mb. Share with your friends:
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