Human resources & employment law cumulative case briefs

• 
  It was operated by a crew consisting of an excavator operator and a trench hand.
  
• 
  The trench hand’s duties included greasing the excavator after each cut, which was performed with a rubber hose grease line and metal nozzle connected to the excavator.
  

The employer briefed all the workers at the site during the first week on various safety issues according to safety analyses it had prepared for the job:

• 
  For the excavator operator and the trench hand, the analysis included warnings relating to the high-voltage power line that crossed over one end of the construction site, and specific instructions that workers to maintain a 20-foot clearance between the excavator and the power line.
  
• 
  Unfortunately for the trench hand, he never received that training because he joined the project after the first week, and his individual safety training didn’t include any instructions about the overhead power line.
  

In March, the excavator operator decided to refuel the excavator by taking it off of its dirt work pad and moving it to the portable fuel tank located beneath the power line. The trench hand was walking alongside the excavator holding the fuel line when the 75-foot boom of the machine came close enough to the power line for an electric current to pass through it. The current went through the boom to the excavator and through the grease line, killing the trench hand.

1. 
   the Act applies to the situation;
   
2. 
   the employer didn’t comply with the standard;
   
3. 
   the employee had access to the condition causing the violation [being in the area of the electric line; and
   
4. 
   the employer had actual or constructive notice of the violation.
   

Rejecting those contentions, the court held that the test suggested by Compass erroneously failed to focus on determining whether the OSHA training standard has been violated;

• 
  it noted that the third prong of the test, access to a condition, makes no sense because the violation was insufficient training, and
  
• 
  the appellate court stated:
  

• 
  Compass had recognized a hazard existed by providing training to its workers on the appropriate distance to maintain between their equipment and the power line, the court rejected Compass’ argument that the training it offered was actually unnecessary and didn’t prove that a reasonably prudent employer would have trained the trench hand on the electrocution hazard.
  
• 
  Further, not only did Compass provide training to the workers generally, but it also provided the training in its job safety analysis for the specific position of trench hand , which was contrary to it contention the trench hand position did not need the training.
  
• 
  . . . “an employer’s identification of and training on a specific hazard is certainly relevant to the question of whether a reasonably prudent employer would have provided training on this hazard”.
  

• 
  The employer violated the Act by failing to train the trench hand, even if it “might not have been able to predict the manner in which the trench hand would be exposed to [the] hazard” - and “one purpose of [the OSH Act] is to prevent the first accident.”
  

Privacy: GPS secret surveillance tracking, personal vehicle, purpose, problem employee, extent, duration, less intrusive measures

• 
  He had been employed by the state since 1980,
  
• 
  For the past ten years he had been disciplined on several occasions for workplace misconduct.
  
• 
  In 2008 he was suspected of engaging in a pattern of taking unauthorized absences from work as well as falsifying time records.
  
• 
  An investigator attempted to tail him when he left his office during work hours in April
  
• 
  2008, but that was thwarted when he realized he was being followed.
  
• 
  His case was referred to Office of the Inspector General (OIG).
  
• 
  OIG investigated during June and July 2008, including among other things:
  
  • 
    obtaining via subpoena his E-Z Pass records and
    
  • 
    placing a global positioning system (hereinafter GPS) device on his vehicle on June 3, 2008 when it was parked in a parking lot near his work place.
    
  • 
    On June 11 the GPS device was removed and was replaced with another GPS device on June 11, 2008.
    
  • 
    This procedure was repeated again on June 20, 2008, and
    
  • 
    that last GPS, which – which stopped recording information on July 3, 2008, was removed on July 8, 2008.
    
  • 
    OIG used the GPS devices for a 30-day period of June 3 to July 3, 2008 as part of the evidence for its report and concluded that petitioner had engaged in a pattern of submitting fraudulent time records, which was that during relevant time period he allegedly had reported false information about hours worked on many days and submitted false vouchers related about travel with his vehicle.
    
• 
  The state served him with a notice of discipline pursuant to Civil Service Law § 75 alleging 13 specifications of misconduct including, among other things, falsifying time records and travel vouchers for himself and his secretary.
  
• 
  He moved to suppress the evidence obtained using GPS devices and the Hearing Officer denied the motion.
  
• 
  Following a hearing, the Hearing Officer found ample proof to sustain 11 of the 13 charges and recommended a penalty of termination of employment.
  
• 
  The Commissioner of Labor adopted the findings and recommendation, and the case was appealed.
  

At this point it is important to read this reported appellate case for the reasoning of the majority opinion, the concurring opinion, and the dissenting opinion – then discuss this matter with your experienced, informed employment law attorney before using such surveillance, or any similar surveillance.

• 
  All five judges agreed that use of the GPS was reasonable at inception because the Labor Department had a reasonable suspicion of the employee’s wrongdoing.
  
• 
  Three judges in the majority further concluded that constantly tracking his locations for one month was reasonable because the employee had intentionally undermined less intrusive investigative methods and because “the GPS devices were not constantly monitored”, rather, the OIG extracted only location information revealing the employee’s whereabouts during working hours.
  
• 
  The two dissenting judges emphasized that the Labor Department’s “valid interest in [the employee’s] whereabouts extended only to the hours of his workday and yet the tracking had continued for one month”, which they found particularly troubling because that covered his locations for a period of a week of family vacation.
  

Now then, here is the URL to United States Supreme Court case of the criminal case opinion in

UNITED STATES v. JONES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

(a)

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assure[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman

v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.
(c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. ALITO, J., filed an opinion concurring
[ Note: This narrow and limited decision with reasoning from the various perspectives of a number of Supreme Court Justices means that developments in this area of the law likely will come from the trial courts and subsequent appeals.]
ADA: "100% healed" policy, not per se disability discrimination

• 
  Controlling law or illustrative; not controlling law? Our 10^th Circuit Court of Appeals discussed this issue in Jones v. United Parcel Service, but the case actually involved procedural matters rather than the ADA issue. This is a situation where legal advice is necessary. Here are the citations of our 10^th circuit Jones case and the recent 7^th circuit Powers case:
  
• 
  Jones v. United Parcel Service, Inc., No. 06-3088, 06-3095, 502 F.3d 1176 (10^th Cir., 9/13/07); 2007 U.S. App. LEXIS 22036; 19 Am. Disabilities Cas. (BNA) 1320; 13 Accom. Disabilities Dec. (CCH) P13-029; http://www.ca10.uscourts.gov/opinions/06/06-3088.pdf [enhanced lexis.com version].
  
• 
  Powers v. USF Holland, Inc., No. 10-2363, (7^th Cir., 12/15/11) 2011 U.S. App. LEXIS 24865; http://www.ca7.uscourts.gov/tmp/EZ0PEHP4.pdf [enhanced lexis.com version].
  

Why approach the "100% healed" policy issue this way? Because the Jones case has complex facts and a mixture of issues involving legal procedure and statutory law, and it could be clearer on what the state of the law is in our 10^th Circuit jurisdiction, at least for my professional comfort.

1. 
   Exhaustion of Administrative Remedies
   

1. 
   Filing a charge
   
2. 
   Scope of the allegations raised in the EEOC charge
   

2. 
   Discrimination on the Basis of Disability
   
3. 
   Retaliation
   

Because (1) opinions may differ on whether the Jones case is controlling authority on the ADA issue, (2) because the Powers case is only illustrative, and (3) because the ADAAA went into effect after Jones, additional exploration by human resource practitioners of the "100% healed" policy with an experienced employment attorney is essential.

• 
  the employer could not have interfered with her FMLA rights because she was not entitled to FMLA leave at the time she requested it, and
  
• 
  as she was not eligible for FMLA leave at the time she made the request, she could not have engaged in protected activity, and, thus, her employer could not have retaliated against her.
  

On appeal:

• 
  Interference:
  
  • 
    “. . . the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.”
    
  • 
    29 U.S.C. § 2612(e)(1), which requires that an employee provide an employer with 30 days notice of foreseeable leave, was “meant as protection for employers to provide them with sufficient notice of extended absences.” Thus, failing to provide a remedy for an employee who “in goodwill exceed[s] the [30-day] notice requirement,” would create a “trap for newer employees” and extend to employers a “significant exemption from liability.”
    
• 
  Retaliation:
  
  • 
    Because the FMLA protects a pre-eligibility request for post-eligibility maternity leave, she also could state a cause of action for FMLA retaliation.
    
  • 
    Pre-eligibility request for post-eligibility leave is protected activity “because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.”
    

ADA: ADAAA, establishing disability, migraines, ADAAA retroactive effect rejected