Human resources & employment law cumulative case briefs
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Controlling law. Employers bound by union contracts have a duty to bargain with the union if there is to be a substantial change in the terms and conditions of employment, and drug and alcohol testing is one such kind of term and condition. An employer may not unilaterally change such a term in either content or application without notifying the union of a proposed change so that the union can have the opportunity to bargain about that change. Failure to do so can result in an unfair labor practice (ULP) claim. In this case the employer's policy required employees to submit to drug and/or alcohol testing when: (1) they were involved in any on-the-job accident where the employee was injured and required medical attention; (2) they were involved in any on-the-job accident involving equipment, machinery or motorized vehicles; or (3) their conduct raised suspicion of being under the influence of drugs or alcohol. In this case there was a problem with testing for drugs and alcohol in worker's compensation cases involving cumulative trauma (hearing loss, bodily injury form repetitive stress, etc.), and also decisions made by a company employee ("a loss control manager") without a medical degree. Because the company essentially changed its policy about and application of its rules and had not given the union the opportunity to bargain those terms and conditions of employment, the NLRB ruled that the company had to submit to arbitration with the union to come to a new agreement about that new policy application and practice. Union-Tribune Pub. Co., 353 NLRB No. 2 (2008); Internet: http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3532.pdf [enhanced lexis.com version]. FLSA: overtime violations; third-party payroll manager, owners should have known Illustrative; not controlling law. A doctrine in the legal system of "knew or should have known" applies to many situations, and it did in this overtime pay case. Both the trial court and the appellate court ruled that the owners were sophisticated business people who should have known that their employees were not being paid for working over time in one or more of their fast-food outlets. Though the owners pleaded lack of knowledge and good faith reliance on a third-party payroll manager, that defense was rejected because they should have known of the violations, and delegating payroll functions to a third party did not in this case qualify the owners for the FLSA good faith exception to liability. [Note: Part of taking care of business is paying attention to business]. Chao v. Barbeque Ventures, No. 08-1284, (11/22/08); 2008 U.S. App. LEXIS 24674; Internet: http://www.ca8.uscourts.gov/opndir/08/11/081284P.pdf [enhanced lexis.com version]. Benefits: reduction, arbitration, union, retirees, current employees Illustrative; not controlling law. The employer was compelled to arbitrate a union's claim of an unfair labor practice (ULP) based on an allegation that the company violated a collective bargaining agreement (CBA) by reducing retiree benefits. When the company informed the union that changes to its medical benefits plan would affect both retirees and current employees, the union requested arbitration before the company made the change. In response, the company cited cases stating a rule barring such arbitration if the union had not obtained consent of the affected retirees. However, the appellate court rejected that defense, reasoning that such a rule ignores that retiree benefits changes might also affect current employees still covered by an existing CBA. International Brotherhood of Electrical Workers, AFL-CIO Local 1245 v. Citizens Telecommunications Co., No. 06-16189 (9th 12/5/08); 2008 U.S. App. LEXIS 24640; Internet: http://www.ca9.uscourts.gov/coa/newopinions.nsf/88D2D5D5730CAD3F882575160004319B/$file/0616189.pdf?openelement [enhanced lexis.com version]. Title VII: reverse discrimination, pretext, speculative evidence Illustrative; not controlling law. Plaintiff worked for about five years as an administrative assistant in the Office of the Dean of the Engineering College and during that time had received positive performance evaluations. When a new dean arrived plaintiff was transferred to another department of the university, the college's Outreach Coordinator. Her pay and status remained the same, but her workload increased when another employee left on maternity leave and she had to assume that person's duties in addition to her own. After expressing concern about that problem, her superior assumed the additional duties. When first evaluated in her new position, she was rated as unsatisfactory by her new manager, though evaluations by others and other input rated her as satisfactory and also noted the lack of a job description and poor feedback to her so that she could correct perceived deficiencies. Unfortunately, subsequent performance evaluations by her manager continued to rate her as unsatisfactory. Her employment ended and she was replaced by a Hispanic woman. She filed discrimination claims, including reverse discrimination. The issue here was whether her termination was because of Title VII prohibited factors or for other reasons not protected by anti-discrimination laws [Note: perhaps academic politics or favoritism]. Apparently it was for other reasons: both the trial court and the appellate court rejected her claims because her evidence of unlawful discrimination was speculative and insufficient. She had contended that: - the Engineering Department's staff was exclusively white and a new dean would want to diversify; - the individuals who made the final decision not to renew her contract were themselves minorities; and, - the University employed its affirmative action guidelines in making its decision to hire the Hispanic administrative assistant. Hunter v. Rowan University, No. 07-2300 (3rd Cir., 11/12/08); 2008 U.S. App. LEXIS 23423[enhanced lexis.com version]. Title VII: failure to hire, discrimination, insufficient evidence Illustrative; not controlling law. The applicant for a state trooper position had been found initially qualified after a background check, but about eight months after he was hired the employer determined another background check was necessary because of errors and omissions on his application form and poor character reviews by his relatives and former employer. Summary judgment in favor of the employer was affirmed on appeal because it was found that the employer had a valid business reason (rather than a discriminatory one) for terminating him. Further, when opposing a motion for summary judgment, a party (in this case, the plaintiff) "may not solely rely on his own allegations" but must presenting evidence to rebut the State's (the employer) evidence, which would have been, for example, "such as an affidavit… from any of the references" mentioned in the State's report that it relied on in making the decision not to hire him. Gaston v. New Jersey, No. 08-1831 (3d Cir., October 30, 2008); 2008 U.S. App. LEXIS 23576; Internet, [Note: But listed as "not to be published as authority", so read it only for its reasoning.]: http://op.bna.com/eg.nsf/id/pdon-7l6n2w/$File/gaston.pdf [enhanced lexis.com version]. FMLA: leave eligibility, "for the intended purpose of the leave", fraud, honest suspicion, investigation, interference with leave Illustrative; not controlling law. The employer honestly suspected the employee's use of intermittent medical leave on some occasions was not actually for her migraine headaches. FMLA leave must be "for the intended purpose of the leave". The private investigator hired by her employer to check on whether her leave may be used for fraudulent purposes confirmed she had been absent from work because she mowing lawns for her husband's lawn-mowing service. Fired for making fraudulent FMLA leave claims, she sued on a claim of interference with FMLA leave rights and lost. Such investigation conducted on an honest belief of misuse of FMLA leave is not interference prohibited by the act because it revealed she was not using leave for which the FMLA was intended. Vail v. Raybestos Products Company, No. 07-3621, 533 F.3d 904 (7th Cir., 7/21/08); 2008 U.S. App. LEXIS 15384; 184 L.R.R.M. 2718; 156 Lab. Cas. (CCH) P35,457; 13 Wage & Hour Cas. 2d (BNA) 1537; Internet from the Public Library of Law: http://www.plol.org/Pages/Login.aspx?ReturnUrl=%2fPages%2fSecure%2fDocument.aspx%3fd%3dakoJNPXuLNsrpofURmSUgQ%253D%253D%26l%3dCases%26rp%3d4&d=akoJNPXuLNsrpofURmSUgQ%3D%3D&l=Cases&rp=4. [Warning: Consult with legal counsel or an experience, qualified human resources expert before proceeding with such a course of action.] [enhanced lexis.com version] Title VII: national origin, hostile work environment, supervisor, definition Illustrative; not controlling law. Who is deemed to be a supervisor in order for an employer to be strictly liable for a hostile work environment? An employee who merely has the authority to oversee an individual's work performance is not necessarily a supervisor for purposes of supporting a hostile work environment claim. Under Title VII, a supervisor must have the authority to "directly affect the terms and conditions of the plaintiff's employment," which would include the power to hire, fire, promote, or demote. Because the employee about whom hostile work environment (racist comments and treatment) claim was made did not have that authority, he thus was not a supervisor for the purposes of strict liability of the company for creating a hostile work environment. And if such a person is not a supervisor and if an employer neither does not know nor should not have known of a hostile work environment between coworkers, then it may not liable. Further, in this case the worker was validly discharged for substandard performance. Andonissamy v. Hewlett-Packard Company, Nos. 07-2387 and 07-2390 (7th Cir., 11/7/08); 2008 U.S. App. LEXIS 23711; 104 Fair Empl. Prac. Cas. (BNA) 1253; 14 Wage & Hour Cas. 2d (BNA) 328; Internet for the Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=44wIeKWnSguzDLaAdUDQvQ%3d%3d&l=Cases. [enhanced lexis.com version] [Warning: Consult with legal counsel or an experience, qualified human resources expert about this kind of situation.] Title VII: Hostile work environment, evidence of harassment of other workers but not witnessed by claimant Illustrative; not controlling law. Though some offensive conduct and language were not experienced by the claimant, evidence of or testimony about it should have been admitted into evidence at trial as demonstrating the atmosphere in the workplace: "Hostile conduct directed toward a plaintiff that might of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a number of women experienced similar treatment". It tends to add credence to her claim, or show harassment she believed was pervasive, or otherwise support her claim of a hostile workplace based on her gender. Ziskie v. Mineta, No. 06-2060 (6th Cir., 1/14/08); 2008 U.S. App. LEXIS 23702; Internet: http://pacer.ca4.uscourts.gov/opinion.pdf/062060.P.pdf [enhanced lexis.com version]. Title VII: prior sexual harassment claim, separate adverse employment action, subsequent retaliation; McDonnell Douglas, pretext Illustrative; not controlling law. Claimant succeeded on gaining a jury trial based on the following factors: - previously reported sexual harassment on the employer's helpline, - on the day of firing: - told to by supervisor her the charges she brought were wrong and were costing the company, - told her to hand him the store "keys and walk away and save us this embarrassment", - she presented evidence that retaliatory conduct had increased up to that time (finding fault with her performance in an apparent attempt to set her up for termination and told she would never survive the performance improvement plan), - showed that she was previously praised in her annual performance evaluation, and - coworkers directly supervised by her stated she was a good manager. Webb v. Starbucks Corp., No. 1:07-cv-271 (W.D.N.C., Asheville Div. Nov. 12, 2008) [enhanced lexis.com version] [Note: For a 10th Circuit case, our jurisdiction, involving differences between the reasons for firing compared with previous favorable performance evaluations, see this case below in the database: Platero v. Baumer, No. 03-2167, 98 Fed. Appx. 819; 2004 U.S. App. LEXIS 10473 (10th Cir., May 27, 2004).] [enhanced lexis.com version] ADA: regarded, fired for policy violations, summary judgment for employer Illustrative; not controlling law. Written company policies are important. Here, the employee lost on his claim of being regarded as disabled (he alleged preconception about a previous brain injury) because his employers was found to have had a valid business reason for terminating him and his claim of pretext failed to defeat the employer's defense. Brain injury was not the reason for his termination. Rather, medical evidence indicated he could not perform the essential functions of his job because opiates (Risperdal, Ativan and Lexapro) prescribed and taken impaired his ability to work safely for himself and for the safety of coworkers. Written company policy was violated when he was taking prescription and falsified a required company medical questionnaire. Further, evidence showed that in recent months before his termination he was taking opiates that cause sleepiness and dizziness that affected his operation to operate a train. He also admitted he had failed simulator tests to evaluate his ability to operate a train. Kosmicki v. Burlington Northern & Santa Fe Railway Company, No. 08-1511 (8th Cir., 10/27/08); 2008 U.S. App. LEXIS 22310; Internet: http://www.ca8.uscourts.gov/opndir/08/10/081511P.pdf [enhanced lexis.com version]. ADA: regarded, broad range of jobs, summary judgment for employer affirmed FMLA: retaliation, summary judgment reversed for trial
FMLA: calculating absenteeism rates Illustrative; not controlling law. Read this case for an illustration of how an employer may properly calculate FMLA absenteeism rates. The employer used this formula: No. of Non-FMLA Hrs. Missed ÷ (No. of Work Hrs. Scheduled - FMLA Hrs. Missed*) * Treated as non-scheduled hours. However, the Eighth Circuit Court of Appellate Appeals [Note: our jurisdiction is the 10th] stated the correct method is as follows: No. of Non-FMLA Hrs. Missed ÷ (No. of Work Hours Scheduled, Including No. of FMLA Hrs. Taken) Amanda Dickinson v. St. Cloud Hospital, 2008 U.S. Dist. LEXIS 84554 (8th Cir., 2008) [enhanced lexis.com version]; see Keasey v. Federal Express Corp., No. 03-228 slip op. (W.D. Mich. Dec. 9, 2003), which approved a similar manner of calculation., and 29 C.F.R. § 825.220(c) [enhanced lexis.com version]. Title VII: EEOC, protected activity, evidence, illegal disclosure by claimant of unredacted confidential medical records; retaliation, "participated in any manner", disparate treatment Controlling law. Title VII broadly protects those who participate in claims. An employee who sent copies of confidential medical records to the EEOC to substantiate her retaliation claim was held to be engaged in a protected activity, despite the illegality of that act. However, her claim failed because the appellate court found her employer's defense of valid business purpose as the basis for terminating her employment was credible and her pretext claim failed. Vaughn v. Epworth Villa, No. 07-6005, 537 F.3d 1147 (10th Cir., 8/19/08); 2008 U.S. App. LEXIS 17674; 104 Fair Empl. Prac. Cas. (BNA) 135; 91 Empl. Prac. Dec. (CCH) P43,305 [enhanced lexis.com version]. Bernadine Vaughn, a 40 year-old African-American female, sustained an adverse employment action for errors in medical charts. She claimed age and rage discrimination as evidenced by disparate treatment, i.e., younger white employee was not disciplined for charting errors. After her charge was filed with the EEOC, she tried to demonstrate that disparate treatment with several pages of unredacted medical records that included confidential details of medical treatment, a violation of company policy. She was fired and claimed retaliation in violation of Title VII protection provisions. Protected activity, "participated in any manner": Preliminary proof of retaliation under Title VII requires that: 1) she engaged in a protected activity, 2) she suffered an adverse employment action, and 3) there was a causal connection between her protected activity and the adverse employment action. At trial the judge ruled that disloyal or dishonest conduct in a Title VII proceeding presumptively is illegal and unprotected unless the claimant has no other reasonable way to support her claim. It said her more sensible choices would have been (1) to redact [black out] certain identifying parts of the records, or (2) obtain the patient consent, or (3) submit an affidavit in the summary judgment proceeding explaining that other employees who made charting errors weren't disciplined. Based on this the trial judge ruled that she did not engage in protected activity and could not establish her preliminary case of retaliation. In disagreeing with the trial judge, the appellate court stated that Title VII is unambiguously clear that retaliation is prohibited when an employee has "participated in any manner in an investigation proceeding or hearing". It said that the "participation clause" provides "broad coverage" to employees. As such, it rejected the trial court's requirement to resort only to honest and loyal conduct unless she proves it was necessary to resort to other means. Thus, her disclosure of confidential medical records was protected even if dishonest or disloyal. Next, her employer cited its policies regarding protection of medical record and patient confidentiality as a valid business reason for firing her. Finally, she had to prove her employer's reason was a pretext. She contended her employer wasn't required to fire her for that action and that it was having trouble managing its records. After considering the evidence from the trial court, the appellate court found it was plausible that she could be fired for that behavior, and it ruled against her on the pretext issue. As to her claim of disparate treatment, proof showed the younger coworker wasn't disciplined because the records in that incident did not contain patient medical information that would have been a violation of federal or state law. Retaliation: However, despite prevailing on the protected activity portion of her claim, her retaliation claim was dismissed because the appellate court determined her employer had a valid business reason for firing her because she violated company policies against disclosing confidential medical information.. [Note: Concerning "participated in any manner", see the recent 10th circuit case in this collection of Kelley v. City of Albuquerque, No. 05-2309, No. 05-2317 (10th Cir., 9/17/08); 2008 U.S. App. LEXIS 19706. That phrase and protection are gaining attention in retaliation litigation [enhanced lexis.com version]. ADA: reasonable accommodation, functional capacities evaluation; collective bargaining agreement (CBA); retaliation Controlling law. An employee returning for a workers' compensation hernia injury was examined by an outside clinic for his functional capacities for lifting, pushing and pulling. Though positions were open, they were governed by the CBA, which can control which jobs can be filled. Because of the CBA, the employer could not provide an accommodation and did not fail to provide one. The employee's adverse employment action, termination, from another position was found to be validly based on a number of corrective action warnings for poor performance. Roberts v. Cessna Aircraft Co., No. 07-3133 (10th Cir. unpublished opinion, 8/10/08); 2008 U.S. APP LEXIS 17645 [enhanced lexis.com version]. Independent contractor: unlicensed, dangerous work, comparative negligence, duty of general contractor, public policy Controlling law. As a general rule, one who hires an independent contractor is not liable for physical harm caused to another or others by the negligent acts of the independent contractor. However, this case presented a new issue in NM: Is a general contractor liable for the injuries or death of an unlicensed independent contractor hired to perform dangerous work for which the independent contractor is neither licensed nor qualified? The answer is yes, and the negligence of both is to be compared by the jury in apportioning damages to be awarded to the plaintiff or the plainiff's survivor(s). Lesson: Trying to cut corners and costs by attempting to circumvent licensing and safety laws can have tragic and costly consequences. Tafoya v. Rael, 2008-NMSC-057, 2008 N.M. LEXIS 519; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08sc-057.html [enhanced lexis.com version] A licensed general contractor with proper permits had completed an apartment renovation except for the sewer line from the apartment to the city sewer line. That city line was located close to the apartments and close to the state highway into the city. Such a connection required excavation of a trench on the state highway right-of-way and permits from the State Transportation Department, a traffic study before that permit could be issued, traffic control during the process, and compliance with federal and state laws and industry safety standards. Doing the job in compliance with applicable laws and safety requirements would have cost at least $10,000. Instead, the general contractor hired an unlicensed independent contractor to excavate and for only $3,800. OSHA regulations were violated: (1) failing to dig with the required slope, (2) failing to brace the dirt sides of the trench, (3) failing to put the excavated dirt at least two feet from the trench, and (4) failing to provide traffic control. The trench collapsed and the independent contractor suffocated when the dirt collapsed over him. The purpose and public policy of the NM Construction Industry Licensing Act is "to promote the general welfare of the people of New Mexico by providing for the protection of life and property, and further, to do so by "examination, licensing and certification of occupations and trades within the jurisdiction . . . to encourage the highest quality performance and to require compliance with approved codes and standards." Avoidance of licensing requirements is prohibited and punishable. Negligence law is based on a duty of care to others, and violation of public policy and statutes set duties of care (e.g., traffic laws, health codes, construction codes, etc.). Accordingly, avoiding the construction licensing laws was a violation of the general contractor's duty of care to others, in this case the unlicensed independent contractor. Negligence law also allows comparison of fault of the parties in a lawsuit. Thus, this case is remanded (returned) from the NM Supreme Court to the trial for court for a jury to determine the amount of damages to award the widow and family, and then determine the percentage of fault of the general contractor and the independent contractor to determine the amount of damages to be paid by the general contractor. [Note: For example, if the jury set damages at $900,000 and set the percentage of fault of the contractors at 50% each, then the general contractor would be liable for $450,000. This would be the same if it were a motor vehicle accident, swimming pool, etc.] ADEA: direct evidence, reduction in force (RIF) justification, pretext Title VII: gender, age, pretext not proved Download 5.55 Mb. Share with your friends:
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