How not to fire an employee for theft.  (Workplace Prof Blog)

Diabetic’s disability lawsuit against restaurant is hard to swallow.  (LA Times)

Should I fight or settle?  (Connecticut Employment Law Blog)

New OSHA PPE (personal protective equipment) guidance.  (Manpower Employment Law Blawg)

Weekly calls to employee interfere with FMLA leave.  (FMLA Blog)  (Additional commentary here.)

Who is a successor for FLSA purposes?  (Connecticut Employment Law Blog)

Discrimination complaints on the rise in Virginia.  The story can be found here.

USCIS reaches FY 2011 H1-B cap.  Their press release can be found here.

Updating 20th Century laws for the 21st Century.  The Ohio Employer’s Law Blog has some comments here (and cross-links to the Connecticut Employment Law Blog).

4th Circuit to hear oral argument on scope of FLSA anti-retaliation provision.  Virginia Qui Tam Law.com has the story here.

Facebook case settles at NLRB.  Workplace Prof Blog has the story here.  Connecticut Employment Law Blog has commentary here.  Ohio Employer’s Law Blog has commentary here.

More unemployment taxes on the table.  The Wall Street Journal has the story here.

Defendant, operator of seven residential care facilities, employed 24 workers.  Defendant admittedly treated 16 of these employees as independent contractors because they lacked social security numbers and issued each Form 1099 tax statements instead of the itemized wage statements required by California Labor Code section 266(a).  In 2008, the California Division of Labor Standards Enforcement (DLSE) performed a workplace inspection at defendant’s premises.  The DLSE issued defendant a citation for penalties under section 226.3 in the amount of $72,000, representing 288 violations for failing to provide the employees classified as independent contractors with itemized wage statement during the previous year.  The citation and penalty was affirmed after an administrative hearing before the DLSE and defendant’s writ of administrative mandamus was denied by the trial court.    

The California Court of Appeal affirmed the penalty amount and held that defendant’s failure to provide itemized wage statements to its employees was not “inadvertent” under the meaning of Labor Code section 226.3.  Under the Labor Code, the DLSE is instructed to take into consideration whether the employer’s failure to provide proper wage statements was “inadvertent” and may decide not to penalize an employer for a first violation when that violation is due to a “clerical error or inadvertent mistake.”  The Court of Appeal concluded that “inadvertent” has the commonplace meaning of “unintentional,” “accidental,” or “not deliberate.”  The Court of Appeal concluded that regardless of defendant’s subjective intent to comply with the Labor Code, defendant’s failure to provide its employees with wage statements was an intentional act and not an accident.  Accordingly, the DLSE was not required under section 226.3 to consider whether to mitigate the penalties awarded against defendant.         

To read the full opinion, click here.

UT – The state supreme court recently reversed a trial court’s dismissal of an intentional infliction of emotional distress suit for failure to state a claim.  In this case, the plaintiff alleged that his supervisor directed his co-workers to “waterboard” him during a work retreat (hold him down while his supervisor poured water over his nose and mouth).  The supreme court’s reversal was solely premised on the fact that the trial court failed to provide a reason for the dismissal.

MI – Consumers Energy asked a court to overturn an $8 million verdict in favor of an employee who sued the company for sexual harassment and hostile work environment.

PA – A non-profit organization was found guilty of race discrimination when it fired an African-American employee.  The Pennsylvania Human Relations Commission ordered the company to undergo non-discrimination training.

IA – A federal jury awarded a hotel employee $50,000 in a sex discrimination and retaliation suit against her employer.  The employee, who described herself as “slightly more masculine”, alleged she was fired for opposing the company’s sex stereotypes for their female employees.

VA – A federal jury returned a verdict in favor of the Chesterfield County school system in an age discrimination suit brought by a former director of community relations who alleged she was forced to resign and then replaced by her younger subordinate.  For our previous post on the court’s denial of the school’s motion for summary judgment, click here.

TX – A federal jury found that five of seven FMC Technologies employees were subject to a racially hostile work environment after nooses were found in the workplace.  The jury did not award any damages and was undecided on whether the company exercised reasonable care to prevent and correct the harassing behavior.

NJ – An appeals court upheld a trial court’s decision to dismiss a Perth Amboy police officer’s second lawsuit against his former chief for retaliation; a jury found in favor of the officer in his first lawsuit for national origin discrimination.

NY – The New York State Division of Human Rights adopted the administrative law judge’s recommendation and awarded $600,000 to a former contract partner at a law firm who alleged he had been fired because of his mental health problems.  The law firm stated that the lawyer’s termination was due to unusual charges on the firm’s credit card that he attempted to pass on to clients.

TN – The city of Chattanooga withdrew its appeal of a jury verdict in favor of two former police officers who alleged age discrimination after they were fired and replaced by younger officers.  The city agreed to pay the officers $840,000 in settlement of the appeal, almost $100,000 more than the jury verdict.

CA – Verizon Communications, Inc. agreed to settle a class action suit for over $6 million. The suit was brought on behalf of a class of employees who alleged that their rights were violated under the state’s family and medical leave act.  As part of the settlement, Verizon also agreed to revise its leave policies and train its managers and human resource personnel on the proper leave procedures under the law.

Complainant was employed as a full-time customer service representative for Avis at the San Francisco airport.  In 2001, Complainant was diagnosed with major depression and post traumatic stress disorder.  As part of her medical treatment, Complainant’s doctor concluded in June 2001 that her work hours should be reduced from eight to six hours per day for two months.  Based on a note from Complainant’s doctor, Avis agreed to the reduced work schedule.  In August 2001, Complainant returned to working an eight-hour day.  Avis again allowed Complainant to work a reduced six-hour work day for two or three-month periods in 2002, 2003, and 2005 based solely on notes from her doctor.    

In June 2006, Complainant again requested that she be scheduled to work six-hour shifts as an accommodation for her mental disability.  The doctor’s note provided by Complainant stated that the accommodation would be required for one year.   

In response, Avis immediately placed Complainant on an unpaid leave of absence to consider her request for a six-hour day.  Ten days later, Avis requested that Complainant provide specific information from her doctor regarding her medical condition.  Complainant returned the requested doctor’s documentation, but she declined to authorize Avis’ personnel to view her medical records or to speak with her doctor directly.  Avis decided the doctor’s documentation was inadequate, and requested that either she release her medical records or submit to an Avis-selected physician for evaluation.  Approximately five months after beginning her leave, Complainant was evaluated by Avis’ medical doctor who agreed with the opinion of Complainant’s doctor.  Avis accepted the opinion and agreed to grant an accommodation.  Upon her return to work, Complainant was told that she was going to be scheduled to work only four-hour shifts for four days per week due to Avis’ business needs.  Due to the 16-hour work week, Complainant was considered a “part-time” employee pursuant to the terms of the collective bargaining agreement applicable to her employment.  As a “part-time” employee, Avis selected Complainant for layoff in December 2006. 

FEHC concluded that forcing Complainant to take a five-month involuntarily unpaid leave and then returning her to a 16-hour work week was not a reasonable accommodation and was discriminatory.  FEHC also found that Avis failed to engage in the interactive process due to the delay of Avis’ Human Resources personnel in communicating with Complainant.  Additionally, Avis made unlawful inquiries about Complainant’s disabilities when it initially required her to release her medical file or to allow Avis access to her doctor.  Avis also violated FEHA when it did not allow Complainant’s doctor to answer Avis’ further questions before insisting that Complainant submit to an independent medical evaluation.

As a result of Avis’ violations, FEHC ordered an award of $89,863.70 (including $14,863.70 in back pay and $50,000 in emotional distress damages to Complainant; and $25,000 in administrative fine to the General Fund), plus affirmative relief of postings and training for management personnel regarding reasonable accommodation.

For a full copy of the FEHC’s decision, please click here.

The FMLA Blog has a good post here (“Adverse References to FMLA Leave Usage Sufficient to Defeat Employer’s Claim that it Terminated Employee for Performance Deficiences, Not Exercise of FMLA Rights“) on why employers should not make negative references to FMLA leave in employee performance reviews.

A recent study suggests that only 6 percent of the plaintiffs in employment discrimination cases make it to trial.

Release of memo by law firm on gender disparities at Wal-Mart may prove to be unhelpful in giant class action suit.  WSJ Blog has a post here.

Slaughterhouse manager acquitted of child labor charges.  The story is here.  Yes, there are still criminal labor law prosecutions.

The Senate has moved to eliminate the business tax deduction for punitive damages awards.  The BLT has a post here.

Cassandra Smith began working for Hooters in 2008, and claims she weighed 145 pounds at the time she was hired.  After two years of successful performance reviews and a promotion to Shift Leader, Smith alleges that during her May 2010 evaluation she was placed on “weight probation,” because her extra small uniform no longer fit properly.   (According to Smith, the three available sizes for Hooters uniforms are small, extra-small, and extra extra-small).  Smith claims that management offered her a free gym membership, and told her she would need to lose weight within 30 days or face termination, even though she now weighs 132.5 pounds.   Rather than face the indignity of a 30-day weight probation, Smith quit her job and brought suit for violation of Michigan’s Elliott-Larsen Civil Rights Act, which prohibits discrimination based upon a variety of factors including weight.  In response, Hooters denied that it has a weight requirement, and said it instead maintains image standards for fitness and appearance, similar to those imposed by the Dallas Cowboy cheerleaders and the Radio City Music Hall Rockettes.

Michigan’s law is the only one in the U.S. that prohibits weight discrimination.  A handful of U.S. cities, including Washington, D.C. and San Francisco, also prohibit discrimination based upon appearance.

WSJ Law Blog has a story here.

The new law provides a 15-month premium subsidy to individuals who were involuntarily terminated between September 1, 2008, and May 31, 2010.  Individuals who were terminated between March 2, 2010, and May 31, 2010, following a reduction of hours that occurred between September 1, 2008, and May 31, 2010, also qualify for the subsidy.  In addition, the Act provides transition relief for individuals who lost their jobs between March 31, 2010, and April 15, 2010.  Other provisions under the Act include an extension on the deadline to file for Federal Emergency Unemployment Compensation until June 2, 2010, an extension on Medicare physician payment rates until May 31, 2010, and compensation for federal employees who were furloughed during March 1st and 2nd.

Additional information on this law here, here and here (DOL site).  The text of the law can be found here. 

Contributed by Claudia L. Guzman

 Source:  HR Magazine, April 2010:  If Adding Temps, Audit Your Benefits Plans

The original Code section (Va. Code Ann. § 44-93.3) required a Virginia service member to apply for reinstatement within 14 days of release from duty or hospitalization following release.  The 14 day time period still applies to absences that are less than 180 days.   For absences that exceed 180 days, a service member now has 90 days to apply for reinstatement to a former position.  Upon release, an employer shall restore a service member to the same position held at the time of order to active duty, or a comparable one if that position has been eliminated.  The reemployment rights do not apply when the cumulative length of absences (for reason of uniformed service) exceeds five years.  The amended law, signed on April 8, 2010, becomes effective on July 1, 2010.

The new Code section is here.

Contributed by Ellen D. Kennedy

John Harrison began working for Benchmark Electronics (“Benchmark”) as a temporary employee in 2005.  A few months later, Harrison applied for a permanent position with the company and consented to a background check and drug test as part of the pre-employment inquiry.  After Harrison’s drug test turned out positive for barbiturates, his supervisor, Don Anthony, approached him about it.  Harrison informed Anthony that he had a prescription for the medication, and Anthony proceeded to call the Medical Review Officer (“MRO”) in charge of reviewing Harrison’s drug test.  The MRO asked Harrison some questions over the telephone regarding the medication.  With Anthony present in the room, Harrison told the MRO that the medication was for his epilepsy, a condition he had since he was a child.  After the MRO cleared Harrison’s drug test and the company’s human resources department gave Anthony the go-ahead to hire Harrison, Anthony told human resources not to extend Harrison an offer.  He then informed the temporary agency not to return Harrison to Benchmark, citing performance and attitude problems.  The agency then fired Harrison.

Harrison proceeded to sue Benchmark under the ADA, alleging improper medical inquiry and discrimination due to a perceived disability.  The district court granted summary judgment for Benchmark on all claims.  Harrison appealed only the medical inquiry claim.  The Court of Appeals first examined whether a non-disabled employee could state a private cause of action for a medical inquiry claim, an issue of first impression in the Eleventh Circuit.  The ADA prohibits employers from “conduct[ing] a medical examination or mak[ing] inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”  Applying principles of statutory construction, the court reasoned that the statute at issue does not limit coverage to job applicants who are also disabled within the meaning of the ADA.  The court stated that under the ADA, employers may ask follow-up questions after a positive drug test result to determine whether the medications taken are legally prescribed, so long as the questions do not relate to disability.  Citing EEOC guidance, the court stated that questions that “are likely to elicit information about a disability” are prohibited as part of the pre-employment offer inquiry.  The court found that there was a genuine issue of material fact as to whether the supervisor’s presence in the room during the MRO’s conversation with Harrison constituted “an intentional attempt likely to elicit information about a disability,” and so reversed the grant of summary judgment in favor of Benchmark.

The company describes itself as “the Internet’s only site committed to the development of truly customized, perfect job references” and offers different packages consisting of either a live receptionist or a voice mail service to field job reference inquiries.  Job seekers are encouraged to provide their desired career field and the company will act as a past employer in that field with a “real” business address, 800 number, and website.  Interestingly, the company’s disclaimer states that it “will not be liable or responsible for any false information that you tell CareerExcuse.com about your past employment history.”  The company also expressly disclaims any and all express or implied warranties with respect to its services and materials or products.  But the company does not just stop at fake references and work histories – it offers a wide variety of other services, including fake doctor’s notes, college degrees and transcripts, landlord references, and even funeral excuses!

Loparex LLC owns multiple production facilities scattered across the country where it manufactures polycoated and silicone-coated papers and films.  Among its locations, Loparex owns and operates a small manufacturing plant in Hammond, Wisconsin.  When a handful of the 200 employees working at the plant began to drum up interest in unionizing the workforce, Loparex pushed back by placing a number of restrictions on organizing activity at the workplace.  Then, when the company announced several controversial employment policies a small group of employees renewed their efforts to unionize the plant..

Loparex imposed several limitations on union organizing at work. After union supporters posted material on company bulletin boards in March 2007, Loparex issued a policy statement that required employees to obtain approval before placing any material on the boards. A few months later, several employees attempted to distribute prounion flyers in Loparex’s parking lot, but they were stopped by company officials.  Around the same time, employees passed out union buttons in the plant and left some of them near a time clock for other employees to pick up.  When company officials learned of this activity, they quickly called a meeting and told the union advocates that they had violated company policy.  Management also discouraged employees from talking about the union during working hours.  Then, in June or July 2007, Loparex informed all of the shift leaders working at the Hammond plant that they qualified as supervisors under the NLRA and were thus prohibited from participating in union activities.  Following these events, Teamsters Local 662 filed three separate unfair labor practice charges. 

Loparex’s actions were brought to the attention of the NLRB, which concluded that Loparex had engaged in a number of unfair labor practices in violation of the National Labor Relations Act,§ 8(a)(1), 29 U.S.C. § 158(a)(1). The Board ordered Loparex to cease and desist and to take several affirmative steps to remedy its past violations. The ALJ, in November 2008 found that Loparex had violated the Act in several ways:  (1) by promulgating its bulletin board policy because of antiunion animus; (2) by announcing unlawfully broad constraints on employee communications relating to unionization; and (3) by treating shift leaders as though they were supervisors under the Act.  Loparex eventually petitioned the court to set aside the Board’s decision. 

Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Loparex generally permitted employees to use bulletin boards for a variety of non-work purposes but shut off access in response to union organizing activity.  Accorining to the Court, the critical question was whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings (for example, those related directly to work rules). Discriminatory interference with union organizers’ access to bulletin boards is forbidden.  Here the ALJ and Court of Appeals found that while the policy itself was facially neutral, Loperex failed to provide evidence that it was not implemented in response to the organizing efforts.  The same thinking led the Court to find that the constraints on employee communications were unlawful.  By purporting to restrict distribution in non-work areas, during break times, Loparex stepped over the line.  “[A] rule is presumptively invalid if it prohibits distribution on the employees’ own time.”

Finally, Loparex, in the midst of the union organizing activities, decided to re-classify its shift leaders as “supervisors” within the meaning of the Act and thus prohibited from engaging in union activities.  To prove that employees qualify as statutory supervisors, an employer has the burden to prove: “(1) [the employees] hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their ‘exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,’ and (3) their authority is held ‘in the interest of the employer.”  Loparex argued that shift leaders qualified as supervisors because they had the authority to responsibly direct employees and assign them work.  The Court did not agree.  The shift leaders’ method of assignment was routine and clerical in nature; therefore, the Board acted within its authority when it concluded that Loparex’s shift leaders did not exercise the requisite independent judgment to qualify as supervisors under the Act.

Loparex v. NLRB, Case Nos. 09-2187, 09-2289, U.S. Court of Appeals for the Seventh Circuit, December 31, 2009.

Contributed by Michael Wilson Stoker