The Authority Of Weight, April 23, 2010
Operations Lieutenant Terry Rouse of the Michigan State Police was forced into retirement after 30 years of employment. Lt. Rouse weighed 300 lbs. when he was forced into termination following hip replacement surgery. Lt. Rouse could not qualify to shoot his rifle from a kneeling position, and was generally out of breath. An independent medical examiner found Rouse "unfit for duty and morbidly obese."
Following his termination, Lt. Rouse sued the Michigan State Police on a variety of theories, including disability discrimination and discrimination on the basis of weight. The federal court considering the matter refused to dismiss the case because Lt. Rouse "presented a contrary medical certification from his physician that he was capable of performing the essential duties of his position." The court concluded that Lt. Rouse's claims should be submitted to trial. Apparently, the weight of authority is on his side.
Everybody Wants a Doctor Who Can Read and Write, April 21, 2010
Dr. Frank Shin was discharged from a medical intern position because he had "extremely poor organizational skills and major knowledge deficits." According to doctors who supervised Shin, he had "difficulty putting it all together," and "needed complete supervision." Perhaps the most telling appraisal was an observation by one supervisor that Shin "doesn't know what he doesn't know."
After he had been terminated, Dr. Shin sued the University of Maryland Medical System and others associated with them under the Americans with Disabilities Act and other laws. In particular, Dr. Shin contended that because he had Attention Deficit Disorder, he should have been allowed to complete a medical internship despite his incapacities and inabilities. Fortunately, his case was dismissed by the federal court system.
Urine Trouble, April 19, 2010
Captain Joseph Kinneary, who piloted a sludge boat for the City of New York, fell within the jurisdiction of the United States Coast Guard for drug testing. In particular, the Coast Guard requires that Captains provide urine samples for testing on a regular basis. It turned out that Captain Kinneary has "shy bladder syndrome." Stated simply, he is unable to pee on command, even if that takes hours.
Captain Kinneary's problem did not allow him to urinate within three hours of command, as required by the Coast Guard. Captain Kinneary always was able to pass drug tests by giving saliva, blood, and hair samples. In fact, those samples were tested over the course of years and always showed him negative for drugs. Still, he could not necessarily urinate within three hours. The Coast Guard determined that Captain Kinneary's inability to provide a urine sample meant that he could not continue to captain a sludge boat. As a result, Captain Kinneary was terminated because "his inability to perform the duties of [his] title of 'Captain'" rendered him "incompetent."
Captain Kinneary sued his employer under the Americans with Disabilities Act. Essentially, Captain Kinneary contended that he could perform the essential functions of a sludge boat captain, even passing drug tests taken through saliva, blood and hair samples. The federal courts ruled against Captain Kinneary, and in favor of the employer, because it was the Coast Guard that removed Captain Kinneary's license to drive a sludge boat. Because Captain Kinneary was not Coast Guard certified, the employer could not be held responsible.
Coincidentally, the federal government that ruled Captain Kinneary unfit to pilot a sludge boat was assuming responsibility to operate health care for all Americans at the same time that Captain Kinneary was losing his battle.
Mail Carrier Who Lost Master Key Should Have Been Fired, April 15, 2010
Imelda Hernandez was hired as a probationary mail carrier in Albuquerque. During her probationary period, she lost a master key that opens every customer mailbox on her route. Hernandez was supposed to have the key attached to her clothing and return it at the end of each day. She failed to turn it in one day, admitting that she did not attach it to her clothing, and after a customer brought the key in two days later, Hernandez was fired. Because she was still in probation, Hernandez was considered an at-will employee and had no due process rights before termination.
Refusing to acknowledge her very obvious mistake, Hernandez sued the Postal Service alleging that her termination was based on a variety of discriminatory motives – gender, age, national origin, and disability. All of her claims were dismissed. She had no age discrimination claim because she was 36 years old and not protected under the ADEA. Hernandez had no disability claim because she never raised it in her EEOC charge and because even if she had hearing loss, as she alleged, she never asked for any accommodation or alerted her employer. In support of her gender and national origin claims, Hernandez tried to show that her supervisors "wanted her out of the way" because her actions reflected poorly on the station's management. In dismissing the rest of Hernandez's lawsuit, the court found that even if the supervisors fired her because they wanted to "hide their mismanagement," that is not illegal discrimination. Hernandez v. Potter, No. 09-2202 (10th Cir. Mar. 31, 2010).
"Your Career Is Dead" Is Not Evidence Of Retaliation? April 15, 2010
Catherine Gaujacq is a French citizen who ran the North American operations for a French energy corporation, EDF Inc., under a three-year "expatriate contract." Gaujacq was terminated at the end of her contract and replaced by a male executive. She sued the company and her successor, claiming sex discrimination and retaliation under Title VII and the District of Columbia Human Rights Act, as well as other claims. Gaujacq claimed that her boss, the company's COO in France, told her that "her career is dead if you file the claim."
Ordinarily, that sort of threatening comment would be strong evidence of unlawful retaliation. In this case, however, the court found that put in context, it was not reasonable to interpret the COO's remark as a threat of retaliation, in light of Gaujacq's "obstructionist behavior" and "ongoing antics." It turns out that Gaujacq did not want to leave the US after the end of her contract and repeatedly tried to negotiate a longer contract term. EDF allowed her a one year extension, but no more. Rather than fire her at that point, however, the company tried to find ways to keep her in the US, eventually creating a vice president position for her so she could continue working in the Washington, DC area. After Gaujacq made clear that she would not cooperate with her successor, EDF offered her a transfer to a high level position back in France. She was fired only after she refused that new job.
When Gaujacq called the COO in France to complain yet again about her situation, he made the alleged threat that her career was dead. Even in the light most favorable to Gaujacq, however, the court viewed the remark not as a threat, but as "an expression of exasperation" over Gaujacq's ridiculous behavior. Given the company's efforts to accommodate Gaujacq, the court found no reasonable employee would consider the COO's comment to be unlawful retaliation. The court then granted summary judgment to the company on all of Gaujacq's claims. Gaujacq v. EDF Inc., No. 08-7097 (D.C. Cir. April 9, 2010).
First Amendment Prohibits Judicial Review Of Wage Claim Against Archdiocese, April 14, 2010
In recent years, federal courts have considered the thorny issue of how, or if, Title VII applies to employees of religious institutions. They have had to balance constitutional protections of freedom of religion against Title VII's guarantees of a workplace free from discrimination.
Many courts now recognize the "ministerial exception" to Title VII, which precludes judicial review of a religious organization's personnel decisions. Discrimination claims in violation of Title VII are usually dismissed because they raise constitutional questions, namely, the religious employer's First Amendment right to make employment decisions based on its religious doctrine and free from governmental interference.
Recently, the Ninth Circuit extended the ministerial exception to bar a priest's claims for violations of state wage laws against the Catholic Archdiocese in Seattle. Cesar Rosas participated in a ministry training program at a Catholic church outside of Seattle as part of his ordination into the priesthood. While serving as a priest-in-training, Rosas performed pastoral duties, as well as maintenance work for the church. In 2005, he and a fellow trainee brought several claims against the Archdiocese, including one for failure to pay overtime as required by the Washington Minimum Wage Act.
In upholding the trial court's dismissal of the case, the Ninth Circuit held that the ministerial exception barred any claim, whether based on federal or state statute, that interferes with the "church-minister relationship." Requiring the Catholic Church to pay overtime to one of its trainee priests, the court determined, would interfere with the Church's employment decisions and impinge upon its free exercise of religion under the First Amendment. See Rosas v. Corp. of the Catholic Archbishop of Seattle, No. 09-35003 (9th Cir. Mar. 16, 2010).
Avoid Problems with Unpaid Interns this Summer , April 7, 2010
The U.S. Department of Labor (DOL) has developed six rules to evaluate whether someone is a “trainee” (and therefore can be an unpaid intern) or an employee (and therefore must be paid) for purposes of the FLSA. Wage and Hour laws treat internships as training programs. The fact that a student is getting educational credit for the internship, while significant and very helpful in this analysis, is not the end of the inquiry. A student who expects to learn computer animation while interning, for example, had best not be relegated to the mail room for the internship period. Here are the DOL’s rules:
- The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction (this is where getting credit comes in handy);
- The training is for the benefit of the trainee, not the employer (that is, it is not designed to save the employer money; getting educational credit shows this);
- The trainee does not displace a regular employee, but works under an employee’s close observation;
- The employer that provides the training gets no immediate advantage from the activities of the trainee, and on occasion the employer’s operations may actually be impeded (e.g., employee time spent on helping the trainee learn things takes away from the employee’s main duties);
- The trainee is not necessarily entitled to a job at the conclusion of the training period; and
- The employer and the trainee both understand that the trainee is not entitled to wages for the time spent in training. This is best established through the existence of a written understanding, and it is helpful if the written understanding includes (or even comes from) the institution that will provide the student intern with the educational credit.
Checking personal email on Company Computer Illegal in New Jersey, April 7, 2010
Employers often believe, and most often are correct in believing, that information contained on a company computer is owned by the company. There’s generally nothing wrong with reviewing an employee’s emails on the company’s server. But what about the employee’s yahoo or gmail account that is accessed while at work? The New Jersey Supreme Court ruled in Stengart v. Loving Care Agency Inc., No. A-16-09 (March 30, 2010) that an employee who used a company laptop to exchange messages with her attorney on a personal password- protected e-mail account had a reasonable expectation of privacy that was violated when her employer retrieved and read the messages from the computer's hard drive. Although the employee handbook contained a policy regarding privacy expectations, it was not entirely clear. But the court stressed that “even a more clearly written company manual” would have not justified the company's intrusion into the employee’s communications with her lawyer.
Codifying “Union Rights” to Maryland Family Childcare Providers, April 6, 2010
By the end of this session, the General Assembly may have codified the intent of a 2007 Executive Order signed by Governor O’Malley “permitting” Maryland family daycare providers to join a union. Since the providers are small independent businesses - really employers and not employees - they are not covered under the National Labor Relations Act. Yes, you read that right: small employers in Maryland get to unionize.
Bills in both houses (SB 284 and HB 465) would provide “collective bargaining rights for specified family child care providers who participate in the Maryland Child Care Subsidy Program; authorize providers to designate an exclusive representative; require specified procedures to be governed by provisions of collective bargaining law for State employees; and require collective bargaining to include negotiations that result in the establishment of a specified fund to protect specified family child care providers under specified circumstances.”
The Governor’s executive order did this, and the Service Employees union - SEIU Local 500 (a huge contributor to the O’Malley campaign) - was, not surprisingly, the designated beneficiary of this largess. The law, like the executive order, enables a union to negotiate with the State for monies to be set aside for family day care providers enrolled in the Maryland Child Care Subsidy Program. If enacted, it appears that the SEIU - which already represents the family childcare providers under the executive order - would continue to benefit from the dues received from the providers. And, nothing prevents negotiation of a requirement that a family childcare provider must pay dues to the union in order to participate in the Subsidy Program.
There is significant opposition to this legislation, but it may not be sufficient to overcome passage.
No Overtime for Pole Dancing? April 5, 2010
Minimum wage and overtime laws - both federal and state - apply to all sorts of businesses. Some former exotic dancers at the Prince George’s County “Hangar Club” have sued in federal court for alleged violations of federal and state wage laws. The complaint in Smart v. Bucks-Up, Inc., 8:10-cv-00699 (filed March 31, 2010) claims that the dancers (and other staff) were paid $6.00/hour instead of the minimum wage of $7.25/hour; were not paid for dancing overtime; and that the dancers had to spend their own money on the jukebox to provide musical accompaniment to their stage shows. Classy.
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