Human resources & employment law cumulative case briefs

1. 
   Absence: Employees are required to report any absences directly to his or her manager or supervisor.
   
2. 
   Job Abandonment: Employees who are absent for two consecutive work days and who fail to report their absences as required were subject to termination.
   

1. 
   The employer’s contention that the alleged violator was simply a “touchy person” who patted men on the buttocks and, thus his conduct was gender neutral and not sexual harassment was rejected on appeal, apparently because there was no evidence that the offender “pulled men into his body” nor was there evidence of any complaints by men or by male patients.
   
2. 
   In at least three portions of the opinion the court mentions that the employer either failed to inform the complainant that it was taking action in an attempt to remedy the situation or failed to follow up on the termination action that it told her that it was taking.
   

• 
  Sheri Sheriff a licensed physical therapist employed by Midwest Health Partners in Nebraska was asked in 2003 to run that department in a chiropractic clinic it had acquired.
  
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  During her work there one of the employed chiropractors, Dr. Meyer, began acting in a way that made her uncomfortable [Note: I.e., unwelcome sexual behavior], including touching her and putting his arm around her.
  
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  When she mentioned it one of the nurses she was told to “get used to it,” because “that’s just the way he is.
  
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  That conduct continued (kiss on the forehead, touching a breast as he put his arm around her), and she reported the problem to Midwest’s management and also wrote a letter to him that such behavior was were “NOT okay!” and that she did not want further physical contact with him. Meyers apologized to Sheriff and said it wouldn’t happen again.
  
• 
  In another aspect of this case, Midwest’s president, Dr. Vrbicky, was aware of a prior female patient’s complaint involving Meyer, but no one at Midwest discussed Sheriff’s allegations with Meyer until she learned of that complaint, plus of other instances involving another female patient.
  
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  She then spoke to Midwest’s Practice Manager about the situation.
  
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  Meyers again began to touch, grab, and embrace Meyers, wrapping his arm around her and touching her breasts.
  
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  She then retained an attorney, who wrote to Midwest, advising it “to take aggressive action to protect itself,”[Question? What about protecting her?], and making several recommendations to stop the chiropractor’s behavior.
  
• 
  Seven weeks later, in November 2005, Midwest met with Meyer and asked him to participate in counseling and requested that he sign an acknowledgement of his inappropriate behavior:
  
  • 
    he did neither, and
    
  • 
    his behavior toward her took on a condescending and intimidating tone.
    
• 
  January 4, 2006, the employer sent the chiropractor a letter, and then in a January 13, 2006 meeting Midwest again set forth its remedial recommendations, and Meyers again refused to participate
  
• 
  Ultimately, on February 23, he agreed to attend sexual harassment training, but only attended one of five sessions.
  
• 
  During this same period she was told that Meyer would be terminated within 45 days, but he was not, and she was given no reason for that failure to act.
  
• 
  On April 11, 2006, Sheriff resigned and brought a legal action against Midwest.
  

This case illustrates what not to do, or how to fail. Acting promptly and proactively and advising the complainant on general terms (but also respecting employee privacy) that action is being taken still ought to be sufficient: acknowledging his or her claim, taking steps to separate the claimant and accused, adequately investigating, documenting the process, following up, etc. Be sensitive to the realities of the situation and the parties, for example, this claimant was dependent on the accused for her livelihood from rehabilitation referrals.

1. 
   The regular rate is determined by dividing all of the hours worked in the workweek into the salary for that workweek.
   
2. 
   Because the resulting regular rate represents straight-time pay for all the workweek's hours (including overtime ones), the employee is owed the product of multiplying one-half of the regular rate (i.e., the "half" of "time and one-half") times the total overtime hours.
   

• 
  Is the flat rate disproportionate to price, such that at perhaps below 5%, the flat rate would be so disproportionate to price that it would not qualify as a commission?
  
• 
  Does the flat-rate commission plan encourage sales staff to work more efficiently or accept undesirable working hours?
  
• 
  Does the flat-rate commission plan apply only to higher-income employees?
  
• 
  Does the flat-rate commission plan reduce hiring incentives?
  

• 
  Hoffman was diagnosed with Stage III Renal Carcinoma,
  
• 
  he was operated on to remove his left kidney;
  
• 
  he returned to work without restrictions or limitations delivering home medical devices, such as wheelchairs and oxygen tanks to patients;
  
• 
  his job description required him to be “available after hours and on call”;
  
• 
  his typical schedule was 9 a.m. to 5 p.m. on weekdays;
  
• 
  he worked his regular schedule from January 2008 through January 2009, and did not miss significant time from work, other than for regular doctor visits;
  

• 
  On January 26, 2009, he met with his supervisor, who told him that the company had acquired a contract with a hospital system that would require service technicians, including Hoffman, to work substantial amounts of overtime each week, to do a night shift once and week, and to be on call on weekends;
  
• 
  Hoffman replied he was concerned that required schedule would “put me in the grave”;
  
• 
  he obtained a note from his doctor that limited him to “8 hours/day, 5 days/week.”; and
  
• 
  at that point his employment was terminated.
  

Controlling law. Essentially, a secondary boycott means an action by a labor union against a company doing business with a [primary]company against whom the union has a dispute. The union displayed large banners at locations of three companies who did business with the primary employers. Its banners were 3 or 4 feet high and 15 to 20 feet long and read "SHAME ON [secondary employer]" in large letters, and on each side was displayed "Labor Dispute" in smaller letters. At the RA Tempe restaurant location the middle section of the banner read, "DON'T EAT 'RA' SUSHI." The National Labor Relations Board held that Congress did not intend Section 8(b)(4)(ii)(B) of the National Labor Relations Act to prohibit the peaceful stationary display of such a banner. Carpenters & Joiners of Am. (Eliason & Knuth of Ariz. Inc.), 355 N.L.R.B. No. 159 (2010); http://www.nlrb.gov/shared_files/Board%20Decisions/355/v355159.pdf [enhanced lexis.com version].

• 
  Around January 17 or 18, 2006, Berry took a break and sat at a table with three male employees.
  
• 
  Then a male employee, Carmichael, seated himself on the bench with his back toward Berry, straddled the bench, and began rubbing his back on her shoulder.
  
• 
  She jumped up, told him to stop, and moved to the other end of the table.
  
• 
  Another employee told Berry to get up, but she remained seated.
  
• 
  Berry alleged that Carmichael approached her and lifted her from behind, grabbed her breasts, rubbed his body against her, forcefully threw her down and then pushed her into a fence.
  

The next day Berry reported this incident to Gorman, one of her supervisors, who told her that she was a “pain in the butt”, could lose her job if she reported the incident, and that he was “going to do whatever it takes to protect CTA.” Nonetheless, Gorman reported the incident to a CTA EEO investigator. Berry reported the incident to the police. Both the EEO and police investigations found that Carmichael had been the aggressor. Berry filed claims alleging gender discrimination, hostile work environment, and retaliation. Without getting into procedural maneuverings and rulings in the trial and appellate courts, ultimately the appellate court allowed her hostile work environment claim to proceed to trial because a single act such as this could be found by a reasonable jury to be severe enough to be a severe occurrence creating a hostile work environment. Important factors for the appellate court were that:

• 
  A single act can create a hostile environment if it is severe enough, and that. Carmichael’s actions, as alleged by Berry, qualify as such an act.
  
• 
  Further, based solely on Berry’s uncorroborated testimony of Gorman’s remarks that he was “going to do whatever it takes to protect CTA” could be a sufficient basis for a “reasonable factfinder” could conclude that CTA, through its manager, had “maliciously thwarted any legitimate investigation, and that CTA was therefore negligent or worse in responding to [Berry’s] report of harassment.”
  

• 
  Require periodic training in FMLA requirements and company policies.
  
• 
  In FMLA situations, ask the employee for a medical certification, and employees must be notified of the possible consequences of failing to provide proper FMLA certification.
  
• 
  Before taking an adverse employment action against an employee who fails to return to work despite a "negative certification" confirming that he or she is not incapacitated, carefully review all of the relevant facts and circumstances to ensure that the employee has received all of the appropriate FMLA notices and had an adequate chance to provide a proper medical certification or to adequately explain the situation.
  

In this case the employee remained absent after her physician provided the employer with a

medical certification confirming that she could return to work. Did the employee know of that certification? Had the employee been adequately trained in rights and responsibilities of the FMLA? Did the employer know that the employee’s physician was not the same one who filled out the certification ad that her regular physician would not have done that? This case has many twists and turns in the details, so it is important to read it and understand the importance of having accurate information before taking an adverse employment action. Yes, we’re all busy, but nowhere as busy as we would be in defending claim of violation of statutory rights. Branham v. Gannett Satellite Information Network, Inc., No. 09-6149 (6^th Cir., 9/2/10); 2010 U.S. App. LEXIS 18328; 2010 FED App. 0283P (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/10a0283p-06.pdf [enhanced lexis.com version].
FMLA in the 8^th Circuit Court of Appeals - so these cases are illustrative rather than controlling law
Statement of Coverage By Supervisor
The employee’s supervisor apparently told her that she was entitled to FMLA leave. The employee’s husband had become ill and taken FMLA leave, and his wife also granted FMLA leave to care for him. About a year later he died and she called her supervisor to advise him of the death, was distraught, and her supervisor offered to get her the information she needed, and she then took three days of bereavement leave. On September 11^th her supervisor called he to tell her leave had ended on the 7^th, and he asked how much more leave she needed before returning to work, she was crying heavily and was clearly distraught, and she told him thirty days. Her supervisor Karnes told her "okay, cool, not a problem, I'll let HR know." She was not told she needed further approval. On September 12^th her supervisor contacted human resources, which denied her request. The appellate court ruled that whether she could have reasonably believed she was requesting FMLA leave, even though she did not mention it. Factors considered by the appellate court were:

• 
  her husband had suddenly died,
  
• 
  she was noticeably distraught,
  
• 
  she had said that she was unable to work the night shift because it reminded her of her husband,
  
• 
  her request for additional leave occurred during a brief conversation in which her supervisor told her that her FMLA leave had expired and asked if she required additional leave, which a jury might reasonably interpret as a request for additional FMLA leave.
  

of company written attendance policy, which provided for accumulation of points for varying types of absences, and FMLA leave was not one of them. When she returned from leave her supervisor told her that additional attendance problems, including extended unauthorized breaks, would put her job in jeopardy. The employer’s human resources manager then met with Despite this warning, she took an extra-long break later that day, which resulted in prompting her suspension. The employer’s human resources manager then met with her to discuss her deficiencies and ultimately terminated her because she violated the Level II warning after returning to work. On appeal, the court ruled that the evidence suggested that the company "would have made the same decision notwithstanding Estrada's exercise of her FMLA rights." Estrada v. Cypress Semiconductor Inc., No. 09-3005 (8^th Cir., 8/17/10); 2010 U.S. App. LEXIS 17121; http://www.ca8.uscourts.gov/opns/opFrame.html - then find by case number, e.g., YY-NNNN [enhanced lexis.com version].

1. 
   is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents),
   
2. 
   is engaged in activity consistent with, and in furtherance of, those religious purposes, and
   
3. 
   holds itself out to the public as religious.
   

[NOTE: The dissent stated a different test that might be argued elsewhere in other federal appellate circuits. In determining whether an entity is a "religious corporation, association, or society":

1. 
   is it organized for a religious purpose,
   
2. 
   is it engaged primarily in carrying out that religious purpose,
   
3. 
   does it hold itself out to the public as an entity for carrying out that religious purpose, and
   
4. 
   does engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts?]
   

Title VII: religion, First Amendment, separation of church and state, gender discrimination, ministerial exception