Supreme Court To Review Maryland FMLA Case, June 28, 2011
The Supreme Court has agreed to review a lawsuit brought against the State of Maryland based on alleged violations of the Family and Medical Leave Act, 29 U.S.C.A. §§ 2601-54. The Court of Appeals for the Fourth Circuit affirmed the dismissal of Daniel Coleman's claim that he was terminated after requesting sick leave pursuant to the FMLA's self-care provisions. At issue is whether Congress intended to abrogate a state’s Eleventh Amendment immunity from suit by virtue of the FMLA's self-care provisions. While the Supreme Court has ruled that the FMLA’s family-care provisions apply to a state, a number of federal courts have ruled that its self-care provisions do not.
EEOC Misinformation Saves Employee's Case, June 22, 2011
The statutory limitations periods for filing a charge of discrimination or lawsuit after receiving a notice of right to sue are strict. A plaintiff who fails to file a timely charge (within 300 days) with the EEOC or a lawsuit (within 90 days of receipt of the notice) in court should anticipate the claim will be dismissed. Unless, that is, the reason the claim was untimely is the EEOC's fault. There is a line of cases where courts refuse to punish an employee for the EEOC's mistakes. Following the doctrine of "equitable tolling" Maryland's Federal District Court recently denied an employer's motion to dismiss on the ground that the plaintiff had not filed a charge in 300 days because of the EEOC's misinformation to the employee about when she was required to file an actual charge of discrimination. Kiah v. American Sugar Ref. Inc., No. 10-2663 (D. Md. June 16, 2011).
Equitable tolling is available in "rare instances," where it would be unconscionable to enforce the limitations period against a party and gross injustice would result. In this case, Kiah was actively trying to get the EEOC's attention. She called and wrote the EEOC, and submitted an intake questionnaire within the 300 day period, but never got her calls returned. "It also seems that the EEOC continuously misinformed Kiah about its administrative process," said the court. Despite the fact that Kiah had been told that the EEOC would review her questionnaire and get back to her (and followed up without success), when she asked for a Right-to-Sue letter nearly two years later she was told that the EEOC was "still checking" for her questionnaire. The EEOC never told her she needed to have a perfected charge under oath. There was no indication, said the court, that Kiah "purposely declined to follow" EEOC's administrative procedures.
Nationwide, the EEOC suffers from overwork and lack of sufficient funding to handle the more than 100,000 new charges it receives every year. There are 13 investigators in the Baltimore District trying to handle over 3,300 pending charges. It makes Sisyphus's job look easy and is an unfortunate circumstance for all involved. Remember that the next time you deal with the EEOC and, despite an inclination to the contrary, try to be nice.
Supreme Court Saves [at] Wal-Mart, June 21, 2011
Reversing the Ninth Circuit, the Supreme Court, in a 5-4 decision, has held that the appellate court erred in permitting a nationwide sex discrimination class action by female Wal-Mart workers to proceed. Wal-Mart Stores Inc. v. Dukes, No. 10-277 (U.S. June 20, 2011). Justice Scalia, writing for the majority, said that the plaintiffs failed to show Wal-Mart's alleged corporate policy of giving local supervisors discretion regarding pay and promotion decisions produced common factual or legal issues best addressed in a class action rather than in individual suits. Rule 23(a) of the Federal Rules of Civil Procedure, he said, "does not set forth a mere pleading standard." In addition, the Court held, 9-0, that the plaintiffs' claims for back pay also were improperly certified under Rule 23(b)(2). While Court did not rule out back pay awards in every class action, it held that "where, as here, the monetary relief is not incidental to the injunctive or declaratory relief," lower courts cannot certify such claims under Rule 23(b)(2). The case has been the subject of much press and debate. With an estimated 1.5 million class members, the case alone would have cost Wal-Mart millions of dollars to defend, with the potential recovery in the billions of dollars. But, said the Court, the net cast by the lawsuit was just too broad: "In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction." Thus, said the Court, individual lawsuits, or smaller class actions, are the way to go.
How much time off do you get under the FMLA anyway? June 20, 2011
In Hearst v. Progressive Foam Techs. Inc., 2011 U.S. App. LEXIS 11569 (8th Cir. June 8, 2011), the Eighth Circuit was faced with the following facts: Jason Hearst had worked for Progressive Foam Technologies (PFT) for 10 months when he was in a motor vehicle accident outside of work that left him with significant pain. Hearst's doctor kept extending his anticipated return-to-work dates by weeks, and then months, due to repeated surgery and recovery periods. PFT mistakenly told Hearst that he was eligible for FMLA leave, even though he had not worked for the company for 12 months at the time of the accident, and Hearst benefitted from 10 weeks of leave before he was FMLA eligible. Under the DOL's 2009 regulations, the leave Hearst was afforded before his 12 months of employment would be "non FMLA leave." This was not a significant issue in here, however, because Hearst was absent from work well beyond 12 weeks, even if counted from his one year anniversary. Relying on Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002), the Eighth Circuit noted that under these facts Hearst could not establish any real impairment of his rights under the FMLA regardless of the date on which his FMLA leave started. As such, the court affirmed the entry of summary judgment in PFT's favor. The case serves as a reminder to employers, however, to be careful when reviewing FMLA eligibility to ensure that employees get the leave to which they are entitled and, if an employer gives more than that, it's not by mistake but the result of thoughtful deliberation.
Wisconsin Unions File New Lawsuit Challenging Collective Bargaining Law, June 16, 2011
by Eric Paltell
In a scene reminiscent of Glenn Close rising from the bath tub in “Fatal Attraction,” a coalition of unions filed a federal lawsuit against Wisconsin Governor Scott Walker just hours after the state Supreme Court upheld the legality of a new law limiting collective bargaining rights for most state workers. The lawsuit, Wisconsin Educ. Ass’n Council v. Walker, W.D. Wis No. 3:11 CVF 428 (filed 6/15/11), alleges that Governor Walker violated the Equal Protection Clause of the United States Constitution by eliminating most collective bargaining rights for public employees, while sparing public safety employees from these new limitations. The result, according to the lawsuit, was to unlawfully create a class of “disfavored” public employees.
Regardless of whether the suit has merit, it certainly signals that organized labor and it allies will not go down without a fight in the battle over public sector collective bargaining. In addition to legal challenges, legislators who supported the new legislation are being subjected to recall votes and businesses that will not post signs supporting labor are being boycotted. As a result, it is far from certain that the law will take effect June 29th, as is currently planned.
Claustrophobic Truck Driver Loses Disability Claim, June 14, 2011
by Eric Paltell
Having done this for 24 years, I have seen a lot of creative excuses used by employees trying to avoid a drug test. However, the one used by a Kentucky truck driver may take the cake. In the case of Gesegnet v. J.B. Hunt Transp. Inc., No. 3:09-CV-828-H (W.D. Ky 5/26/11), a federal court rejected a truck driver applicant’s claim of disability discrimination after the driver was not hired because he left a drug testing clinic before producing a specimen. According to the driver, he had good reason to walk out of the testing facility prematurely – he claimed he did not like being in small spaces with other people! Unfortunately for the driver-applicant, he needed to remain in the waiting area (to ensure that the collection process was observed), and his request that he be allowed to wait outside by himself was deemed unreasonable. We’re not sure where this unsuccessful plaintiff will look for work now that his lawsuit has been dismissed, but it’s a safe bet it will not be as a coal miner or an elevator operator!
New Hampshire Nixes Public Sector Card Checks, June 13, 2011
by Eric Paltell
In yet another sign of the way the tide has recently shifted against organized labor, New Hampshire repealed a four year old law that allowed public sector unions to organize using “card checks” instead of secret ballot elections. On June 9, 2011, the New Hampshire legislature overwhelmingly voted to repeal the law, effective August 8, 2011. The legislature’s action was a significant blow to labor, as unions had used card checks to organize employees in two-thirds of all certifications over the past four years.
As readers may recall, when President Obama took office in 2009, most practitioners of labor law predicted that the Employee Free Choice Act (“EFCA”) would quickly be signed into law, and that card check would become the primary means by which unions organized employees in both the private and public sector. Now, just two years later, EFCA is dead, and state legislatures across the country are taking action to curtail public sector benefits and limit collective bargaining rights for public sector employees. It will be very interesting to see what the next two years hold in store ….
Suicide Does Not Invalidate Settlement Agreement, June 13, 2011
Debra Lewis sued an Illinois school district, the superintendent, and members of the school board, alleging claims of breach of contract, defamation, intentional infliction of emotional distress and a violation of the FMLA. Lewis had been fired by the school district shortly after taking FMLA leave. In 2009, at a settlement conference, the parties reached an oral agreement in the presence of a federal magistrate judge. Thereafter, the parties began to memorialize the agreement in writing. Not long after the settlement conference, the superintendent committed suicide amid allegations that he molested a child. Lewis immediate sought withdraw the settlement, claiming that, because she was not made aware of the allegations against the superintendent, material facts were concealed from that reflected on the superintendents character and conduct. The trial court repeatedly ordered to sign the agreement, and , when she refused, it ultimately dismissed her claims with prejudice. The Seventh Circuit affirmed, holding that Lewis’ claim that she could have settled for a higher amount if she knew of the allegations did not change the fact that the allegations against the superintendent were immaterial to the claims in her case.
IHOP-e He’s Got A Good Lawyer, June 10, 2011
An Eastern District of Wisconsin judge issued a contempt order against the owner of several International House of Pancakes restaurants, and his management company, for resuing to post a notice in his restaurants advising employees of the results of a EEOC sexual harassment suit. In the original suit, a jury found that a manager at one of the restaurants sexually harassed two teenage servers. The jury returned a $105,000 verdict against the company. The original order to post was entered on August 31, 2010. The owner, however, refused to post. As a result of a hearing held in May, the Court held on May 31, 2011, that the owner of the company must post the sheet by June 2, 2011 in all his restaurants, or to incur a fine of $1,000 per day that the posting is not all his restaurants.
Donning and Doffing Your Chicken Gear is Compensable, June 10, 2011
In Perez v. Mountaire Farms Inc., No. 09-1917 (4th Cir. June 7, 2011), the Fourth Circuit affirmed a prior district Court ruling which held that time spent by chicken processing plant workers donning and doffing their protective gear was “work,” and therefore compensable, under the Fair Labor Standards Act. The case involved a suit by several workers against Moutainaire Farms to recover wages for time they spent before and after their shifts putting on, and taking off, the protective gear. The protective gear consisted of things such as gloves, smocks, glasses, boots, and ear plugs. Additionally, much of the gear had to be sanitized repeatedly throughout a shift, as employees took breaks for meals. The Fourth Circuit, applying for the first time the Supreme Court precedent in Steiner v. Mitchell, 350 U.S. 247 (1956), held that the donning and doffing of the protective gear was “integral and indispensable” part of the of the “poultry processing industry.” The Court held that these activities were necessary to the plants principal work, i.e. processing chickens and were required by federal regulations, and that the activities primarily benefitted the employer, by reducing injuries and ensuring product quality. Luckily for the employer, the Court declined to hold that its violation was willful, due to the lack of prior precedent in the Fourth Circuit.
Rats! June 2, 2011
Unions have long used inflatable rats in front of a business or jobsite to protest some union-related issue. What often happens is a contractor is involved with a union dispute and then an “uninvolved” business hires that contractor to perform work, and then finds itself the subject of a union secondary boycott, rat and all. There are rules governing what a union can and cannot do during one of these secondary boycotts. The NLRB just issued a decision in which it found that a union’s placement of a 16-foot inflatable rat balloon near a hospital that it was boycotting was legal. In this situation, the NLRB’s democratic majority noted that the union agents involved with the large rat display did not move, yell, impede access, or otherwise interfere with the hospital’s operation, and therefore, the rat was symbolic speech. The lone Republican NLRB member Brian Hayes disagreed, noting anyone passing in the shadow of this rat balloon, surrounded by union agents, could not miss the confrontational and coercive message. For now, the rat lives on.
Social Media Continues To Trend With the NLRB June 2, 2011
The NLRB has taken a heightened interest in employers who make employment decisions based on employees’ social media behavior. In just the last few weeks, the NLRB has issued complaints against two employers for firing employees based on their Facebook postings. In one case, five employees who worked for a social services non-profit organization engaged in a Facebook posting discussion that criticized the company’s working conditions, staffing and workload. All five employees were terminated because the company deemed the postings harassing of one employee referenced in the initial posting. In the other case, the NLRB issued a complaint against a car dealership that terminated a sales employee because he made Facebook postings that were critical of the dealership (he criticized the hot dog and water only offered at a customer dealership event; the employee explained he was concerned the food would affect his ability to make sales). In both cases, the NLRB maintains that these postings were protected concerted activity because employees were discussing conditions of employment. Time will tell whether the cases settle or go to hearing. Companies certainly have an interest in controlling negative commentary on social media websites. Companies also, however, need to be mindful that social media policies and/or related employment decisions do not prohibit employees from discussing working conditions. Remember that the NLRB can issue complaints against non-unionized employers for alleged protected concerted activity violations.
Need To Track Your Wages? There’s An App For That! June 1, 2011
Earlier this month, the DOL released its first app for smartphones that permits employees (who own iPhones and iPods) to track their hours worked. Those with Android and Blackberry based smartphones will have to wait. The DOL touts the app as an electronic timesheet to help employees track their hours worked and determine whether wages are owed. Employees are able, apparently, to track work hours, break time, and overtime hours, obtain contact information and materials about wage laws through links to the DOL’s Wage and Hour Division web pages, and even submit their tracked hours to the DOL as an attachment. This app will encourage employees to track their time worked, which will undoubtedly become relevant in the absence of an employer’s records on the same date. Employers need to be sure they are tracking employees’ hours of work, particularly for non-exempt employees.
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