Human resources & employment law cumulative case briefs
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- Controlling law
Controlling law effective at the beginning of 2009. For years many of us have been hoping that the problems with the FMLA and the FLSA would be solved by Congress, but instead the Congress has amended the ADA. Here is a URL for the text of the bill: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406pcs.txt.pdf The ADAAA overrules two United States Supreme Court cases and also liberalizes the interpretation of the ADA: - Sutton v. United Air Lines, Inc., (1999), held that A determination of disability could consider mitigating measures, such as medication, glasses, etc., generally used by much of the population. That case is legislatively overruled by the ADAAA, which states that determination of whether a condition substantially limits an individual's major life activities must be made without regard to the effects of mitigating measures. However, the ADAAA specifically excludes eyeglasses and contact lenses from the list of mitigating measures that should not be considered. - Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, (2002), interpreted the term "substantially limits" to impose too high of a standard, and current EEOC regulations defined the term "substantially limits" as "significantly restricted". Legislatively overruling Toyota and the EEOC, the ADAAA states that determining whether an individual's impairment is a disability under the ADA "should not demand extensive analysis." - Interpretation is liberalized by stating that the definition of disability "shall be construed in favor of broad coverage of individuals." Title VII, NMHRA, Class Action: protected activity, assisting in a discrimination claim; constitutional law, equal protection; discrimination, disparate treatment, similarly situated; retaliation; summary judgment Controlling law. This 10th Circuit Court of Appeals case applies in our jurisdiction. Though it deals primarily with legal procedural matters primarily of interest to attorneys, an important portion of this case for human resources professionals is the discussion of protected activity when an employee participates to assist another employee in making a discrimination claim. Kelley v. City of Albuquerque, No. 05-2309, No. 05-2317 (10th Cir., 9/17/08); 2008 U.S. App. LEXIS 19706 [enhanced lexis.com version]. Concerning protected activity for an employee assisting a fellow employee in making a discrimination claim, the issue was whether this extended to protecting an attorney providing that assistance. It does. The appellate court dealt first with Title VII protection and then with protection under the NM Human Rights Act. Title VII: The court stated: Under Title VII it is "an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (emphasis added). The "explicit language" of Title VII's "participation clause is expansive and seemingly contains no limitations." Deravin v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003). * * * We conclude that the plain language of § 2000e-3(a) provides anti-retaliation protection for a defense attorney who represents an alleged violator of discrimination laws in an EEOC mediation. A defense attorney who later alleges retaliation by her employer is "any . . . employee." 42 U.S.C. § 2000e-3(a) (emphasis added). Additionally, the phrase "participated in any manner in . . . [a] proceeding," id. (emphasis added), covers the act of representing a client in an EEOC proceeding. The term "any" carries an expansive meaning when, as here, it is used without limitation. United States v. Gonzales, 520 U.S. 1, 5 (1997). When the term is given its natural effect in this statutory context it relates to all types of participation. See Merritt, 120 F.3d at 1186 ("Congress did not add any language limiting the breadth of that word, so 'any' means all." (some internal quotation marks omitted)). By representing the City in the 2000 EEOC mediation, therefore, Ms. Kelley "participated" in a proceeding under Title VII. NMHRA: As for state law, the appellate court stated that: * * * "In interpreting [the New Mexico] Human Rights Act, [the New Mexico Supreme Court has] previously indicated that it is appropriate to rely upon federal civil rights adjudication for guidance . . . ." Gonzales v. N.M. Dep't of Health, 11 P.3d 550, 557 (N.M. 2000). Similar to Title VII, the NMHRA covers "participat[ion] in any proceeding" under the NMHRA. N.MANN. § 28-1-7(I)(2) (emphasis added). n13 Like § 2000e(f) of Title VII, the plain language of § 28-1-7 is broad enough to provide protection to a defense attorney participating in a mediation. For the same reasons offered in our analysis of Title VII, therefore, we conclude that NMHRA's retaliation provisions extend to Ms. Kelley under the facts of this case. FMLA: amount of information necessary for leave Illustrative; not controlling law. Merely calling in sick, but not providing additional necessary information, is insufficient notice of a "serious health condition" under the FMLA. De la Rama v. Illinois Dept. of Human Services, No. 07-1156 (7th Cir., 9/2/08); 2008 U.S. App. LEXIS 18756; Internet, Public Library of Law: http://www.morelaw.com/verdicts/case.asp?n=07-1156&s=IL&d=37132 [enhanced lexis.com version]. Title VII, ADEA, Section 1981: race, sex, age; retaliation, protected activity, adverse employment action, causal connection; hostile work environment, evidence, neither severe nor pervasive; discriminatory termination, no pretext; summary judgment for employer Controlling law. Our 10th Circuit requires substantial evidence of each essential element of proof of a legal theory in order for such an issue to be presented to a jury. Employers will not be held liable for isolated or sporadic comments of behavior by coworkers, even if they are blatantly inappropriate in the workplace. Essentially, this confirms numerous decisions stating that the discrimination laws are not intended to regulate civility in the workplace. Denetclaw v. Thoutt Brothers Concrete Contractors, Inc., No. 07-1468 (10th Cir., 6/24/08); 2008 U.S. App. LEXIS 13443; 103 Fair Empl. Prac. Cas. (BNA) 1859; Internet: http://ca10.washburnlaw.edu/cases/2008/06/07-1468.pdf [enhanced lexis.com version]. Two EEOC claims were involved, the first having been dismissed because Denetclaw failed to pursue his legal remedies. Hostile work environment: Incidents were neither severe nor pervasive. "Injun" remarks and frequent requests by coworkers during hot summer months for "rain dances" were considered by Denetclaw to be joking or kidding and not serious enough to be listed in his first EEOC charge (allegation of unfair disciplining for allegedly sexually harassing a younger female coworker, and favoring younger female coworkers rather than him). Other incidents involved being called queer because he wore hair braids, plus crotch and buttocks grabbing. Retaliation: This claim failed for lack of proof of a causal connection because there was no evidence that the supervisor who fired him had any knowledge that he had filed an EEOC charge, and Denetclaw only speculated that he "could have known". Discriminatory termination: The employer's reasons for terminating him were insubordination, safety violations, timecard falsifications, tardiness, and policy violations. He failed to prove they were a pretext for sex, race, and/or age discrimination. Though he claimed he was not given reasons for his termination, he later admitted during his unemployment compensation proceeding that he was told he was being fired for tardiness and working in unsafe conditions. Importantly, he could not prove that each one of the employer's reasons were a pretext. Finally, it was found that he failed to rebut the employer's contention that he was fired "due to cumulative dissatisfaction with his job performance based on multiple incidents of misconduct that occurred during [a] short period of time." ADA: purpose of act, employee not regarded as disabled, firing decision based on professional recommendation of treatment, employee's refusal to comply Illustrative; not controlling law. The purpose of the ADA is to protect employees or prospective employees from basing their employment decisions on stereotypes or misconceptions. In this case the adverse employment action was based on the recommendation of a qualified medical professional rather than a stereotype or misconception about an employee who failed to take his prescribed medication and reverted to abusing alcohol. While so impaired he shot a number of family farm animals and the family dog and later threatened to harm his wife. He was arrested by the county sheriff and the county agreed he should be psychologically evaluated for substance abuse. The employee refused to undergo the professional recommendation of inpatient treatment. When he refused to comply within the ten days set by the county, he was fired. The Eight Circuit Court of Appeals upheld termination of his employment because the employer acted on professional recommendation of treatment, not stereotype, misconception or myth of on the part of the employer. Kozisek v. County of Seward, Nebraska, 8th Cir., No. 07-3682, (8th Cit., 8/27/08); 2008 U.S. App. LEXIS 18339; Internet: http://www.ca8.uscourts.gov/opndir/08/08/073682P.pdf [enhanced lexis.com version]. FMLA: failure to provide adequate medical substantiation of need for reduced work schedule, no leave interference, no retaliation Illustrative; not controlling law. Though the employer did not initially provide sufficient necessary FMLA paperwork, it ultimately did and the employee was validly terminated after ignoring several requests to comply with the FMLA and the company's attendance and leave policy. Under these circumstances, termination of her employment was neither interference with her FMLA leave rights nor retaliation for exercising her FMLA rights. Her doctor provided a brief note as certification of her need, but the employee failed to provide additional information from her doctor about the anticipated duration of a reduced work schedule. Ridings v. Riverside Medical Center, No. 06-4328, (7th Cir., 8/11/08); 2008 U.S. App. LEXIS 17112; 13 Wage & Hour Cas. 2d (BNA) 1703; The Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=rBQEZJx4JhwcTQPxBkrvYA%3d%3d&l=Cases [enhanced lexis.com version]. Independent contractor: material elements [for now] This New Mexico Court of Appeals case is subject to further review by the New Mexico Supreme Court. However, until there is a final decision, this criminal case involving the major issue of whether the victims of battery upon a school employee provides us with a review of whether an individual is an independent contractor or an employee. State of New Mexico v. Derrick Johnson, 2008-NMCA-106, Certiorari Granted, No. 31,215, August 6, 2008; 2008 N.M. App. LEXIS 81; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08ca-106.html [enhanced lexis.com version] The opinion set forth these material elements in analyzing that status [line spacing reformatted to more clearly identify the factors]: {9} Our analysis is informed by the undisputed relationship between the school board and the school security guards. "In determining whether an employer-employee relationship exists, . . . the primary test is whether the employer has the right to control the details of the work to be performed." Savinsky v. Bromley Group, Ltd., 106 N.M. 175, 176, 740 P.2d 1159, 1160 (Ct. App. 1987). We also look to evidence of the right to control employees in the performance of their duties and how the employees are compensated, how equipment is furnished, and which party has the right to end the relationship. Id.; Blea v. Fields, 2005-NMSC-029, 12, 138 N.M. 348, 120 P.3d 430. Our Supreme Court broadened this list to include: (1) the type of occupation involved and whether it is generally performed without supervision; (2) the skill required for the job; (3) whether the employer furnishes the tools or instrumentalities for the job; (4) how long the individual has been employed; (5) whether the work is part of the employer's regular business; and (6) whether the employer is engaged in business activities.
FLSA: joint employment, temporary agency contract worker; attorney fee award, extent of success Illustrative, not controlling law - but a good case to pay attention to because the Second Circuit Court of Appeals is one of the leading circuits for well considered opinions that other jurisdictions look to for persuasive reasoning. As always though, be sure to check with an experienced NM employment law attorney for the latest developments in NM law on joint employment issues. Finally, note that the ruling on attorney fees in this case is typical of the considerations in many other kinds of cases. Barfield v. N.Y. City Health & Hosp. Corp., Nos. 06-4137-cv (L), 06-4310-cv (xap) (2nd Cir., 8/808); 2008 U.S. App. LEXIS 16731 [enhanced lexis.com version] Joint employment: The Second Circuit Court of Appeals used the "economic realities test" in a Department of Labor opinion letter that outlined the "functional control" factors for determining joint employment [partially edited for ease of reading]: (1) whether [defendants'] premises and equipment were used for the plaintiffs' work; (2) whether the [referral agencies] had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which plaintiffs performed a discrete line-job that was integral to [defendants'] process of production; (4) whether responsibility under the contracts could pass from one subcontractor to another without material changes; (5) the degree to which the [defendants] or their agents supervised plaintiffs' work; and (6) whether plaintiffs worked exclusively or predominantly for the [defendants]." * * * Further, to the extent [the trial court] advised further consideration of "any other factors" that a court "deems relevant to its assessment of the economic realities" of a given employment situation, * * * the district court found it undisputed that Bellevue [hospital] "exercise[d] at least some control over which agency nurses are permitted to work for the hospital" because it regularly evaluated the performance of agency employees and could prohibit particular employees from working further at Bellevue and receive overtime either because it determined that the individual had violated a hospital rule or because it was generally dissatisfied with the individual's performance. * * * Accordingly, the district court concluded that the "circumstances of the whole activity viewed in light of economic reality demonstrate that Bellevue exercised functional control over plaintiff and was her joint employer." Attorney fee award: The appellate court said that "the quantity and quality of relief obtained" compared to what the plaintiff sought to achieve in the complaint are important factors for determining the degree of success achieved for the plaintiff. In this case, the primary effort was to certify a "collective action" allowed under the FLSA. The appellate court ruled that it was reasonable to link the attorney's fees award directly to her ability to maintain the case as an FLSA collective action. Reduction of the attorney fee award was appropriate to make attorneys be realistic about bringing and the extent of proceeding with these kinds of cases. USERRA: returning veteran, "promptly reemployed", employer's "fitness for duty" requirements Illustrative; not controlling law. This case has more issues to be decided, but the interesting factor at this point is the ruling that the returning service person was entitled to be "promptly reemployed", despite the employer's standing policy requiring a check of "fitness for duty". This service person was a member of the Army National Guard involved in questionable behavior while on active duty, but was ultimately discharged "under honorable conditions (general)". USSERA Act specifically states that a returning veteran must be "promptly reemployed" after an honorable discharge from military service and requires that, in most cases, reinstatement is made to the position which the individual would have held had he or she not left for military leave. The police department had a required return-to-work process that was applied to all officers returning from an extended leave, regardless of the reason for that absence. Because of Petty's misbehavior, the reason for his discharge was investigated before than returning him to employment, and Petty continued employment at a position different from the one he held prior to activation. The appellate decision upholding the USERRA requirement of speedy reemployment was based on the length of time the police department took to reinstate him, which means the courts ruled that USERRA supersedes the employer's policies. [Note: Employers who may find themselves in this kind of need to confer with legal counsel as soon as possible to determine how to proceed.] Petty v. Metropolitan Govt. of Nashville-Davidson County, 6th Cir., No. 07-5649 (8/18/08); 2008 U.S. App. LEXIS 17549; 2008 FED App. 0302P (6th Cir.); Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0302p-06.pdf [enhanced lexis.com version]. USERRA: arbitrations agreement enforced in written employment contract Illustrative; not controlling law. Generally, the U.S. Supreme Court has held that employment claims brought pursuant to federal statutes are subject to valid written arbitration agreements, This 6th Circuit Court of Appeals case held that USERRA claims are also subject to written arbitration agreements. Landis v. Pinnacle Eye Care, LLC, No. 07-6204 (6th Cir., 8/11/08); 2008 U.S. App. LEXIS 17055; 2008 FED App. 0285P (6th Cir.); Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0285p-06.pdf [enhanced lexis.com version]. Title VII: loss of security clearance, termination, no discrimination, mixed motive Illustrative; not controlling law. "Mixed motive" means that there may have been more than one motive for an adverse employment action. The evidentiary test has two steps: 1) The employee must demonstrate that a protected characteristic of the employee such as race, sex, national origin, etc., was a substantial factor in the employer's adverse action. 2) If that is established, the employer then has the burden of proving that the decision would have been made regardless of the employee's protected characteristic. For example, if a person in a protected class had to have a commercial driver's license in order to qualify for a position, but was ineligible for the CDL because of a medical condition, then the reason for an adverse employment action would likely be based on that ineligibility rather than any discriminatory behavior,[if there had been any].
Title VII: complaining about racial profiling of customers, reprisal Illustrative; not controlling law. An employee's complaints about racial profiling of customers was dismissed. Title VII covers employment situations and how employers and coworkers are treated and treat each other in the workplace. This employee's complaint was about how he and other assets managers were affected by this practice, and thus it was not a situation where he as a member of a protected class was affected by the policy differently from other similarly situated employees. Thus, "it was not objectively reasonable for [him] to believe that he was complaining about activity protected under Title VII." Perhaps this was a matter for a civil rights action by the customers, and if he had been involved in that action and discriminated against for his participation, then this might have been a different matter. Denham v. Saks, Inc., No. 1:2007cv00694 (U.S.D.C.Ill., 7/30/08) [enhanced lexis.com version]. FMLA: checking on child, not "caring for" family member, not protected Illustrative; not controlling law. FMLA leave was held not to cover an employee who wanted to check in on the 11-year-old son of his girlfriend while she underwent surgery. His contention that he was acting "in loco parentis" [i.e., acting in the place of a parent], and was in effect his "son", was rejected. Other factors defeating his claim: - the employee did not establish that the child suffered from a serious health condition, - he could not establish that he was absent to "care for" the son on that day, - undisputed facts showed: - the employee accompanied his girlfriend to the hospital, - the child stayed with his aunt all day, and - the employee left the hospital a few times to go check on the child.
FMLA: joint employment, nature and extent of control over working conditions Illustrative; not controlling law. "Joint employment" may arise when an employee works for more than one organization, business, or government agency. Involved here were a municipality, a county, and an independent, non-profit emergency communications entity. An employee asserted FMLA rights, but lost because he was not employed by the employer required to provide FMLA coverage. In order for there to be joint employment, "each alleged employer must exercise control over the working conditions of the employee", which his evidence failed to establish. However, note that the appellate court warned that "we will not tolerate an organization dividing itself into smaller entities with fewer than the statutory minimum number of employees for the express purpose of avoiding FMLA obligations." Moldenhauer v. Tazewell-Pekin Consolidated Communications Ctr., No. 07-1118 (7the Cir., 7/3108); 2008 U.S. App. LEXIS 16230; The Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=cyDENHLEJsrIscJ80V%2fa4g%3d%3d&l=Cases [enhanced lexis.com version]. Retaliation, reprisal: hostile work environment, racial slurs, epithets, single occasion untimely complaint; employer's summary judgment affirmed Illustrative; not controlling law. Discrimination applies to the workplace and closely related matters, a hostile work environment requires severe and pervasive behavior, plus behavior permeating the workplace and a serious alteration of working conditions. Facts insufficient to meet the "objective reasonableness requirement" support the discrimination claim: - motor vehicle accident on a lunch break, - away from work, - a coworker twice using a racial slur (epithet) twice a few minutes apart, Download 5.55 Mb. Share with your friends:
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