August 2010 Quick Clips

Ninth Circuit Reinterprets Title VII’s Exception For Religious Organizations, August 31, 2010

Title VII prohibits employers from terminating employees based on their religious beliefs. But this prohibition does not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.”

World Vision, Inc. describes itself as “a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.” Upon hire all employees are required to submit personal statements describing their “relationship with Jesus Christ” and acknowledge their “agreement and compliance “with World Vision's Statement of Faith, Core Values, and Mission Statement. In 2006, World Vision learned that two of its employees, one a warehouse worker and the other an administrative assistant, disavowed a belief in the Trinity, which is the Christian concept that God the Father, Jesus Christ, and the Holy Spirit are one in the same. World Vision fired the employees for their beliefs.

The court had to determine whether World Vision, a billion dollar nonprofit corporation, fit within Title VII’s exception for religious corporations. The majority of a three judge panel determined that World View qualified for the exception and was permitted to fire the employees. However, the three judge panel formulated three different tests for determining whether the exception applied.

To qualify for the exception under the most expansive test, an entity is required to show only that it (a) exists for a self-identified religious purpose, (b) performs activities in furtherance of that purpose, and (c) holds itself out to the public as religious. Another judge would factor in whether the entity has a financial motive by determining “whether the entity engaged primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” Under either of these tests, formulated by a majority of the court, World Vision qualified for the exception from Title VII’s prohibition on making employment decisions based on religion.

The dissenting judge had a much more restrictive view of the exception. This judge looked at the nature of the activities performed by World Vision. The judge determined that these activities are primarily secular, and can be performed by individuals of any faith. The facts showed that World View is not affiliated with any particular church or faith, and works with many different churches and organizations to provide humanitarian relief. Therefore, according to the dissenting judge, World Vision does not qualify for the exception.

Given that three different tests were used by the same panel, it would not be surprising for the Ninth Circuit to have another hearing before the entire court.

Spencer v. World Vision, Inc., - F.3d (9th Cir. August 23, 2010)

Va-Va-Va-Voom, August 28, 2010

by Peter S. Saucier

Roy Dreshman spent years fronting as a dancer for "New York Hot Bodies." In plain words, Dreshman was a stripper who allowed women to place paper money in his g-string as he gyrated for their entertainment. Indeed, he was a star on the poster advertizing his group of hunks. Meanwhile, in the words of the Court, "At some point, he obtained his nursing degree from Community College." Dreshman obtained a nursing job, but his secret was soon out – co- workers sought posters from Dreshman (which he provided), and performances of his act (which he did not provide). Dreshman was nicknamed "Sweet Cheeks" by other employees. After Dreshman was fired for a rule violation, he sued for harassment and for retaliation (he had whined about his notoriety to management). The harassment count has been dismissed, but the retaliation complaint continues.

Pushing and Shoving Among Enemies, August 25, 2010

by Peter S. Saucier

A pair of employees with an intense dislike for each other (a man and a woman) became embroiled in a shoving match that netted each a stern warning about their misbehavior. Within four months, the man was seen by supervisors intentionally crowding the woman in a narrow passage. What is more, the run-in was caught on a surveillance camera. The employer investigated the event then gave the pushy man a one-day suspension. The dispute was appealed to arbitration where the selected "neutral" vacated the discipline. He "reasoned" that the Company was wrong for trying to control its workforce by "enforc[ing] a rule that one employee performing work is to move out of the way of an approaching employee if both are in the same crowded aisle, where such a rule has not been published to the bargaining unit . . . ."

OSHA Continues To Push Forward On Intrusive New Measures, August 20, 2010

by Kelly C. Hoelzer

OSHA's current director, David Michaels, has made a proposed new rule establishing injury and illness prevention programs a top priority of his regulatory agenda. The agency has held numerous meetings to discuss how to implement such a rule and what the programs should cover. Most recently, OSHA published a notice in the Federal Register asking for public comment on a proposed survey of more than 14,000 employers, 85 case studies, and 50 worksite visits as part of the agency's efforts to gather more data for developing its so-called injury and illness prevention programs. 75 Fed. Reg. 48,992 (Aug. 12, 2010).

OSHA officials downplay charges that the agency seeks to develop a rule on every conceivable workplace hazard. The stated goal of the proposed surveys and worksite visits, however, is to "develop industry-specific, statistically accurate estimates of the current prevalence of a variety of baseline safety and health practices that may be elements of injury and illness prevention programs among establishments." Id. In other words, OSHA is looking for possible hazards in various industries (not already heavily regulated by OSHA) and for ways to burden employers with expansive and ill-conceived programs to prevent them. Concerned employers can submit public comments on OSHA's proposed data gathering initiative by October 12, 2010, to the OSHA Docket Office, US Department of Labor, Occupational Safety and Health Administration, Room –2625, 200 Constitution Avenue, NW, Washington, DC 20210. See 75 Fed. Reg. 48,992 for more information.

School Bus Driver Fired For Taking McDonald's Break, August 20, 2010

by Kelly C. Hoelzer

The job of a school bus driver is not too complicated – basically he must pick up and deliver children on a predetermined route to and from school. It does not seem that drivers would have much difficulty in remembering their responsibility to deliver all children on the bus to their respective homes. Yet, one 19-year veteran driver employed by the Sylvania City, Ohio, school system did just that. At midday on October 7, 2009, the driver picked up 18 kindergarten students at school and started her route. Her second stop was to drop off a six year old girl, but when no one was home to greet the child, the driver decided to finish her route before trying again. After she dropped off the other 17 children, however, the driver forgot about the girl and instead drove to the local McDonald's Restaurant for a cup of tea. While in the restaurant for more than five minutes, the driver left the child in the bus, with the engine running and the door open, in an area with heavy traffic. The driver finally remembered to take the girl home after receiving a call from her dispatcher, who had just gotten an anxious call from the girl's mother. Not surprisingly, the child was hysterical by the time she got home.

The driver never reported the incident to her supervisor, but was ultimately fired when the supervisor learned of her egregious conduct. The driver grieved her termination, claiming that the discipline was too harsh. The union even tried to explain that the child was upset only because the driver failed to bring her anything from McDonald's. The arbitrator hearing the grievance had little to say in upholding her termination – though the driver had a good work record for 19 years, her breach of the "principle of reliable and responsible behavior," as well as her disregard of plain common sense, was sufficient reason to fire her. Sylvania City School District, 127 LA 1382 (BNA) (Skulina, 6/15/10).

REMINDER: Civil Air Patrol Leave Law Takes Effect October 1st, August 9, 2010

by Darrell R. VanDeusen

On October 1, 2010, Maryland employers with more than 15 employees are required to provide employees with no less than 15 days per calendar year of unpaid leave in order to respond to an emergency mission of the Maryland Wing of the Civil Air Patrol. Employees are to give their employers as much notice as possible of the intended beginning and end of such leaves.

Employers may require verification of an employee's eligibility to take such leave. Employees returning from leave are to be restored to the same position held when the leave began or to a position with equivalent seniority status, benefits, pay and conditions of employment. An employer and employee may negotiate for the employer to pay for the benefits of the employee during the leave.

Moreover, an employer cannot fire an employee for participation in an activity of a civil air patrol, civil defense, volunteer fire department, or volunteer rescue squad if the activity is in response to an emergency declared by the governor and the employee provides written proof that his or her participation was required.

Employers with 15 or more employees cannot fire or discriminate against an employee who has been employed for a minimum of 90 days and is a member of the Civil Air Patrol. Employers may not hinder or prevent an employee who has been employed for a minimum of 90 days from performing service as part of the Maryland Wing of the Civil Air Patrol during an emergency mission if the member is otherwise entitled to such leave.

REMINDER: Maryland’s Meal and Rest Periods Law, August 9, 2010

by Darrell R. VanDeusen

There is still time to prepare, but beginning on March 1, 2011, Maryland retail employers with 50 or more employees are required to provide employees with break periods. Employers will be required to provide a 15-minute shift break to an employee who works a consecutive four-to six-hour shift. Employees working more than 6 hours must be given a 30-minute non-working break. For a work shift of eight consecutive hours, employees must be provided with an additional 15-minute break for each additional four hours of work on that shift.

If the employee’s shift does not exceed six consecutive hours, the 15-minute break may be waived by written agreement. Employees may be allowed to take a “working shift break” if mutually agreed to in writing and if the type of work prevents the employee from being relieved of his or her job or the employee is allowed to consume a meal while working and the break is counted towards the total hours worked.

Employers who violate the law may be subject to a civil penalty of up to $300 for each affected employee and up to $600 for each affected employee for subsequent violations that occur within three years, plus additional penalties and civil relief for violations that occur after an order to enforce the law is issued.

Coverage Under the DC Human Rights Act, August 9, 2010

by Darrell R. VanDeusen

Employers who have multiple locations sometimes forget that different jurisdictions often cover protected classes beyond those covered under federal law or the law of the state where the company has its main headquarters. For example, it appears to some that the District of Columbia has yet to meet a classification that doesn’t need protecting.

Under the DC Human Rights Act, employers are prohibited from discriminating “on the grounds of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business.”

You’re Fired ... and Wash Your Mouth Out with Soap Too, August 9, 2010

by Darrell R. VanDeusen

Affirming the entry of summary judgment for J.P. Morgan Chase & Co. the Eleventh Circuit held that an account executive who was fired for using a “very strong expletive” about a client – who overheard the remark – was not discriminated against because of her sex or marital status. Gossard v. J.P. Morgan Chase & Co., No. 09-14260 (11th Cir. July 27, 2010) (unpublished)

When a fellow employee telephoned Ms. Gossard to report that a client had been trying to reach Gossard without success, Gossard replied that the client could “f*** off.” The problem was, the client was sitting there with the co-worker at the time. When the client told the bank what happened and said she would no longer work with Gossard, the bank fired Gossard (but later allowed her to resign).

While Gossard claimed she didn't intentionally direct profanity at the client, the Eleventh Circuit said she presented nothing that created a genuine dispute about the bank's belief that she in fact did so, and no evidence that the bank tolerated comparable acts by other employees.

That’s Not What Applicant Tracking Means, August 9, 2010

by Darrell R. VanDeusen

The EEOC announced in late July that a temp agency in Ohio settled a class action lawsuit by the Commission that alleged it used code words to identify the race and sex of job applicants. The $650,000 settlement claimed that the company, Area Temps, profiled its applicants using terms like “chocolate cupcake” to identify young African-American women, “hockey player” for young white males, and “small hands” for women. One wonders if the identifier “incredibly stupid” was considered.

http://www.eeoc.gov/eeoc/newsroom/release/7-27-10.cfm

Federal Court Enjoins Pennsylvania Executive from Working for Competitor, August 6, 2010

by Eric Paltell

As many employers know, it can be difficult to get a court to issue an injunction against an employee who appears to have violated a non-disclosure agreement. Nevertheless, as shown by the recent case of Bimbo Bakeries USA, Inc. v. Botticella, No. 10-1510 (3d Cir. 7/27/10), when the competing employee is sufficiently nefarious in the way he or she change employers, courts will issue an injunction.

The events giving rise to the lawsuit occurred in March 2009, when Chris Botticella, Bimbo’s Vice President of Operations, signed a confidentiality, non-solicitation, and invention assignment agreement in which he agreed not to compete directly with Bimbo during his employment with the company, not to use or disclose any of the company’s confidential information, and to return all company documents after ceasing employment. In October 2009, just a few months after signing the agreement, Botticella accepted a similar position for Hostess Brands, a competing baked goods corporation. However, Boticella did not intend to begin employment until January 18, 2010, and did not inform Bimbo of his planned departure until January 4, 2010. Bimbo did not even learn that Boticella planned to work for a competitor until Hostess announced his hiring on January 12, 2010.

When Bimbo learned that Boticella was going to work for Hostess, the company fired him. Within minutes of learning that he was about to be fired, Botticella accessed 12 confidential documents within 13 seconds. Experts who reviewed his computer found that he had accessed similar sensitive files in the weeks preceding his termination.

When Bimbo learned of Botticella’s behavior, it filed suit, alleging that his activity constituted “threatened misappropriation of a trade secret” in violation of the Pennsylvania Uniform Trade Secrets Act. The trial court found that Botticella was “substantially likely” to use his knowledge of Bimbo’s trade secrets at Hostess, and granted an injunction which prevented Botticella from working for Hostess. Botticella appealed, but the United States Court of Appeals for the Third Circuit affirmed the trial court’s decision.

In deciding to uphold the injunction, the appellate court found that it was likely that Botticella’s duties at Hostess would be “substantially similar” to the duties he held at Bimbo. Moreover, the court found that Botticella’s repeated access of confidential files prior to his termination created a “solid evidentiary basis” for the court to find that Botticella was likely to use confidential information at his new job.

This decision underscores how fact-intensive non-compete and trade secret litigation can be. In our experience, when the departing employee is “dirty” the way Mr. Botticella was, a court is much more likely to grant an injunction. For this reason, it is imperative that employers seeking to enforce non-competition and non-disclosure agreements immediately gain access to employee computer files to determine whether the departing employee accessed confidential information the way Mr. Botticella did.

Court Throws Out Discrimination Claim Brought By Cursing Bank Executive, August 2, 2010

by Eric Paltell

After practicing management side employment law for 23 years, it takes a lot to surprise me. Nevertheless, a recent lawsuit brought by a fired JP Morgan executive really did make me wonder if some attorneys have any standards as to what kind of cases they will take.

The case, Gossard v. JP Morgan Chase & Company, No. 09-14260 (11th Cir. 7/27/10), involved a discrimination claim brought by a fired account executive, Sonya Gossard. On March 20, 2007, a co-worker telephoned Ms. Gossard to let her know that client Marsha Williamson was trying to reach her. Ms. Gossard replied that Williamson could “f--k off.” Unfortunately for Ms. Gossard, Williamson was sitting in on the phone call and overheard Ms. Gossard’s comment. Not surprisingly, Williamson told JP Morgan she would no longer do business with Ms. Gossard. JP Morgan responded by firing Ms. Gossard, although she was ultimately allowed to resign in lieu of termination.

Apparently. Ms. Gossard lives in a world where cursing out clients is a commonplace as saying “good morning.” Rather than accepting blame for her foul-mouthed treatment of a client, she responded by filing a lawsuit, alleging that she was fired because of her gender and because she is a single parent. The trial court dismissed her case, and the United States Court of Appeals for the Eleventh Circuit affirmed its decision. The appellate court described her comments to client Williamson as a “whammy” that gave JP Morgan a legitimate, non-discriminatory reason to fire her. The court was not impressed by Gossard’s claim that she did not intentionally direct profanity at Ms. Williamson, and also noted that there was no evidence that JP Morgan had ever tolerated such behavior from any other employee.

One can only imagine the choice words Ms. Gossard had for the United States Court of Appeals when her lawyer made her aware of its decision!

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