December 2008 Quick Clips

Holiday Brownies, Anybody? December 31, 2008

A school bus driver in Washington County, Alabama, when notified that she was scheduled for a regular drug test, scurried to the restroom with some students before she presented a sample. The test was negative, but the circumstances caused the school system to demand a more closely monitored retest less than 2 weeks later. The school bus driver's urine proved positive for marijuana upon the second test.

After being caught, the bus driver claimed that she had accidently eaten a marijuana brownie at a party. Understandably, the school system found the belated excuse, and the surrounding circumstances, too much to bear. The test results, and the connected deceit, caused the school system to terminate the bus driver's employment. Dutifully, the Alabama Education Association challenged the decision to arbitration.

Enter arbitrator Joann T. Donovan, who employed standards of proof that no court would ever impose. According to the arbitrator, all the bus driver had to do was say that she ate a brownie without more – "She is not required to prove her innocence." Perhaps more amazing reasoning by the arbitrator, one person testified that he heard someone at the party say that "somebody had put marijuana in some of the brownies." Although his testimony may be biased it is not impossible that it is a true statement.

So, if one person claims he heard an unidentified person say that another unidentified person said that there was marijuana in some brownies, impossibility is negated. Therefore the arbitrator ruled, there is no proof of the offense and no cause for the discharge. To complete the triangle of confusion, the arbitrator ordered reinstatement and back pay, while directing the exonerated employee "to complete a program of rehabilitation in order to be reinstated to her safety sensitive position as a bus driver . . . ."

Free Choice, Indeed, December 30, 2008

by Peter S. Saucier

At the earliest opportunity to do so, President Obama will fulfill a vow to organized labor to sign any version of the so-called Employee Free Choice Act that reaches his desk. That means many employers will find their workforce unionized with neither an opportunity to explain or discuss unions, nor a representation vote by employees. Some change-minded employers, riding the wave of optimism, do not understand how that can be a problem, particularly those employers who pay well and have good benefits. Perhaps one example of an unintended consequence provides food for thought.

New York City's Education Department employs parent support officers and parent coordinators. Naturally, those employees meet with parents when they are available, which often is before or after regular school hours. The Education Department and many of those workers agreed to use compensatory time off to balance the early or late hours, a procedure permitted under wage and hour laws. BUT, the union representing employees did not like the idea of the employer working flexibly with employees to meet a common goal. Dutifully, a Court ruled that those persons may not independently agree to work cooperatively with the employer because they are represented by a union. One wonders how that whole "free choice" euphemism fits the parent support officers and coordinators.

CIS Changes I-9 Process, December 23, 2008

by Clifford B. Geiger

The Immigration and Nationality Act requires that employers complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The Department of Homeland Security’s Citizenship and Immigration Services (CIS) recently published an interim final rule that changes the list of documents that may be accepted to verify an employee’s eligibility to work. CIS says the purpose of the new rule is improve the integrity of the employment verification process so that individuals who are unauthorized to work are prevented from obtaining employment in the United States.

Under the interim final rule, which is effective February 2, 2009, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. This includes several forms of identification and work authorization cards that CIS no longer issues. Certain foreign passports with specially marked, machine-readable visas were added to the list of acceptable documents. The rule also makes several technical corrections and updates to the Form I-9. The current Form I-9 will no longer be valid. Employers will be required to use the revised Form I-9, which will be available from the CIS website.

Obama Announces Working Families Task Force, December 23, 2008

by Clifford B. Geiger

On December 21, President-elect Barack Obama announced that he will form a "White House Task Force on Working Families," which will be chaired by Vice President-elect Joe Biden. Among the goals for the task force, which will be charged with developing legislation on issues of key importance to “working families,” is improving the balance between work and family. Based on campaign pledges, it is anticipated that legislative initiatives related to work and family balance will include: (1) expanding the scope and coverage of Family and Medical Leave Act; (2) requiring employers with fifteen or more employees to provide full time employees with at least seven paid sick days per year; and (3) creating federal incentives to encourage flexible work schedules and telecommuting. Employers should be aware these changes are coming.

How NOT to Handle a Sexual Harassment Complaint, December 9, 2008

by Darrell R. VanDeusen

A jury in Kentucky recently awarded, and the court upheld, a $1.2 million verdict to a woman who was sexually harassed at and constructively discharged from a chicken processing plant. West v. Tyson Foods Inc., No. 4:05-cv-183M (W.D. Ky. December 3, 2008). After Amanda West started working at Tyson, her mostly Hispanic co-workers began to engage in unquestionably harassing behavior on a very regular basis. She complained to a supervisor, who initially replied, "You have to understand that's how [Hispanics] treat their women" and that West should expect attention because "you are hot." The supervisor told West not to contact human resources, that he would "get to the bottom of it," and that he would move her away from one of the offending co-workers. But then the behavior got worse, escalating to involve unwanted touchings as well. West quit.

In finding the jury verdict sustainable, the court wrote that "West presented significant evidence that the co-worker harassment was objectively and subjectively severe or pervasive. She testified to unwanted physical, sexual contact by [co-workers] and other Hispanic male employees as well as wolf whistles, stares, gestures, and offensive sexual comments. . . According to West, the sum total of these incidents was somewhere between 250 and 375 over the course of five weeks of work. Moreover, West offered evidence that at least one other female employee experienced similar comments, winks, and whistles every shift. In light of the frequency of these incidents, and the aggressive, physical nature of several of the attacks against West, the court finds that the jury could reasonably conclude that the harassment was sufficiently severe or pervasive to create a hostile work environment."

One moral to this story: if you are a supervisor, make sure you notify Human Resources of any concerns regarding harassment or discrimination. Telling an employee to NOT go to human resources is NEVER the right thing to do.

Supreme Court will Decide ADEA Mixed-Motive Case, December 8, 2008

by Darrell R. VanDeusen

One problem with taking a decision from one law and applying it to another law is that things get confusing. Take, for example, the notion of the mixed-motive claim under Title VII. The Supreme Court started it all with Price Waterhouse v. Hopkins. But Congress - while enamored with the theory - thought the Price Waterhouse holding to be wrong headed and in the 1991 Civil Rights Act amended Title VII to codify the mixed-motive analysis. And then, in Desert Palace v. Costa, the Court held that direct evidence is not necessary in a Title VII mixed motive case, based upon the language added by Congress in 1991. But what happens in ADA or ADEA cases (or even FMLA cases, where at least one court has applied the mixed motive analysis)? It’s probably not correct to use the statutory language of Title VII under other laws, so do you instead use the Price Waterhouse decision to analyze the case, while rejecting the Price Waterhouse result?

Maybe we’ll find out now. The Supreme Court has agreed to hear Gross v. FBL Fin. Servs. Inc., No. 08-441 (cert. granted Dec. 5, 2008) and decide whether a plaintiff requesting a mixed-motive jury instruction in an ADEA lawsuit must present direct evidence that age played a substantial role in the adverse employment action. In Gross, the Eighth Circuit held that Price Waterhouse "continues to govern mixed motive instructions in ADEA cases" (526 F.3d 356 (8th Cir. 2008)).

Lie Detector Law Has Teeth, Honest! December 8, 2008

by Darrell R. VanDeusen

The Federal Employee Polygraph Protection Act (EPPA) does not get litigated often, so it’s news when a court provides interpretation of the Act. Recently, the Fourth Circuit held that a former employee could pursue an EPPA claim against SunTrust Banks, Inc., even though the employee’s termination did not violate the Act. Worden v. SunTrust Banks Inc., No. 07-1354 (4th Cir. November 24, 2008).

Daniel Worden claimed that he had been kidnaped by bank robbers, held overnight at gunpoint in his home to get him to help them rob the bank. When their scheme didn’t work, Worden claimed the kidnapers abandoned him in a wooded area. The County police were skeptical of the story and told Worden that they suspected him of planning the robbery. The police then secured Worden’s consent to undergo a polygraph examination. No one from SunTrust requested or participated in the examination. After Worden was fired, however, he claimed that the Bank violated the EPPA by relying on and referring to the polygraphs. The Fourth Circuit held that, assuming the bank was influenced by reports that Worden failed the lie detector tests "the record unequivocally shows that Sun Trust would have terminated Worden even if it had not known the results." But, the court found that Worden could pursue his claim that the bank violated the EPPA's prohibitions on using or referring to polygraph results, finding that the district court incorrectly assumed those allegations could not be pursued in the absence of an unlawful firing.

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