Rat Balloon Is A Safety Hazard, November 25, 2011
On November 17 U.S. District Judge Michael R. Barrett rejected a request by Labors’ International Union, Local 534, for a temporary restraining order allowing the Union to display its giant rat balloon on a public sidewalk at Miami University of Ohio. The Union wanted to display the rat balloon because it was involved in a labor dispute with one of the contractor’s selected to perform renovation work for the University. Although the court agreed that the Union’s display of the rat balloon was form of constitutionally protected expression, it determined that the area the Union wanted to use is not a traditional public forum, because it is completely within boundaries of the University’s campus, and it is not adjacent to other public areas. Because the sidewalk area at issue is a limited public forum, the University was permitted to place certain restrictions and limitations on the use of the property. The University contended that displaying the rat balloon at the intended location would create a safety hazard for drivers and students.
Howard Considers Adding Gender Identity and Expression to Anti-Discrimination Law, November 21, 2011
On November 21, 2011 the Howard County Council will hold a public hearing on whether to add gender identity and expression to the list of characteristics protected by the county’s anti-discrimination law. Proposed legislation would prohibit discrimination against transgendered people in housing, employment, law enforcement practices and public accommodations in the county. If the measure is passed, Howard County will become the third local jurisdiction in Maryland (Baltimore City and Montgomery County are the others) to have such a law.
It’s Just Politics, November 17, 2011
Every pundit who opines that the Obama administration has not attained campaign goals does not keep up with events in the labor and employment field. Every week features at least one new victory for the agenda that swept President Obama into office. This week the Equal Employment Opportunity Commission, by a vote of 3 democratic party members to 2 republican party members proffered regulations under the Age Discrimination in Employment Act that impose a heavy burden on employers.
Serious Distress is a High Hurdle, November 15, 2011
A dental assistant who endured the ignominy of seeing her boss with his pants down masturbating in the hallway at work figured that she had a remedy for being exposed to extreme conduct. Sadly for her, the dental assistant, who said that she was shocked and suffered reduced sexual desire for a year, did not satisfy that court that she was distressed enough to warrant a trial. Her case was dismissed.
Fear Of Being Robbed Is Not A Disability, November 10, 2011
The Sonic drive-in restaurant in Winter Haven, Florida, was robbed four times during the course of a year. On at least two occasions, a robber showed up at closing time, with a handgun, and ordered employees to open the safe or suffer the consequences. Despite the threats, no employee was hurt.
The Sonic employees working the late shift, naturally, were rattled by these events. Several employees submitted a letter to Sonic management complaining that they were “afraid for their lives” and did not feel the restaurant’s safety measures were adequate. Four of the employees who signed on to the letter apparently felt this fear warranted a lawsuit, so they sued Sonic in state court alleging tort claims for negligent training and retention and negligent failure to provide a safe workplace. When they later added a claim of “regarded as” disability discrimination under the ADA, Sonic removed the lawsuit to federal court.
According to the plaintiffs, Sonic regarded them as disabled because they feared for their safety at work and fired them as a result. The court readily dismissed the ADA claim, even assuming for argument’s sake that the fear for their safety was a mental impairment for the purposes of the statute. To show that Sonic discriminated against the plaintiffs because it regarded them as disabled, the plaintiffs were required to prove that their perceived impairment was not “transitory or minor” or had an expected duration of more than six months. Because Plaintiffs could not show their fear would last more than six months, they were unable to prove that Sonic fired them for a perceived disability. Accordingly, the federal court dismissed the ADA claim and remanded the negligence claims back to state court. Wallner v. MHV Sonics Inc., Case No.: 8:10-cv-02039-JDW-EAJ (M.D. Fla. Nov. 4, 2011).
It’s All In The Family – Court Dismisses Brothers’ Matching FMLA Claims, November 9, 2011
The Poindexter brothers – Edward and Bobby – work as journeymen linemen for the Electric Department of the City of Sallisaw, Oklahoma. In March 2010, the brothers both requested paid leave to care for their mother who was scheduled for hip surgery. Pursuant to City policy, the brothers each were entitled to up to 10 days of paid sick leave for the care of an immediate family member. The paid leave runs concurrently with unpaid FMLA leave, and City policy requires employees to use up all available paid leave before taking unpaid FMLA leave. On March 10, the City granted the brothers’ dual requests for sick leave. The brothers did not request FMLA leave, nor did the City inform them of their FMLA rights at that time.
About nine months later, in December 2010, a position for lead lineman opened up in the Electric Department. The City did not promote either Poindexter into the supervisory job, as doing so would violate the City’s nepotism policy (which prohibits immediate family members from supervising each other).
Undoubtedly disappointed at this turn of events, the Poindexters then sued the City, alleging that (i) the City interfered with their FMLA rights by not informing them that their leave to care for their mother was FMLA-protected; and (ii) the City retaliated against them for exercising their FMLA rights by denying both brothers the promotion to lead lineman. The court quickly disposed of the Poindexter brothers’ lawsuit. First, the court found that even if the City violated the FMLA when it failed to inform the brothers of their FMLA rights, they still received all leave to which they were entitled and, therefore, suffered no prejudice. Second, the court dismissed the retaliation claim, finding no causal connection between the brothers’ leave in March and the denial of promotion in December. In addition, the brothers could not show that the City’s decision not to promote either of them, based on the nepotism policy, was a pretext for retaliation. Poindexter v. Sallisaw, Civil Action No.: 11-046 (E.D. Okla. Nov. 7, 2011).
DOL's Enforcement Efforts Criticized in Congress, November 4, 2011
Last December, I had the chance to participate in a conversation with the U.S. Solicitor of Labor Patricia Smith at a meeting of the Maryland Labor & Employment Section. Smith gave those of us present a sense of the DOL's plan for the coming couple of years: aggressive action in finding and penalizing employers the DOL determines have violated wage & hour laws. But simply recovering unpaid overtime for incorrectly classified employees is not enough, it appears. "Well placed criminal prosecutions make a point," said Smith, when discussing the role the reinvigorated solicitor's office will play in dealing with wage & hour issues, which are now referred to as "wage theft."
Now, some in Congress have called DOL to task for its approach. At a hearing before the House Subcommittee on Workforce Protections on November 3, subcommittee chair Michigan Rep. Tim Walberg, asked questions about the DOL's "punitive enforcement activities." A number of commentators have observed that the DOL is simply not interested in educating or helping employers to understand the FLSA, a 1920's law whose application fits imperfectly into the 21st century workplace.
EEOC Ordered to Pay Company's Legal Fees, November 3, 2011
It doesn't happen very often, but sometimes courts find that the EEOC has overreached so greatly in its prosecution of a claim that a win for the employer is not enough - the EEOC is required to pay the company's legal fees too. This just happened in EEOC v. TriCore Reference Labs., No. 09-CV-956 (D. New Mexico Oct. 26, 2011), where the court found that the EEOC's decision to continue pursuing an ADA reasonable accommodation case was "frivolous, unreasonable, or groundless" litigation under the Supreme Court's decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). As a result, the company is entitled to recover over $140,000 in fees expended to fight the EEOC's case, after the point at which the EEOC should have known the case was not provable.
On Herman Cain … November 2, 2011
by Eric Paltell
As a management side labor attorney and mediator, I feel compelled to express my outrage at the media feeding frenzy surrounding the sexual harassment allegations raised against Presidential candidate Herman Cain more than 15 years ago. From what I have been able to glean from the media reports, in 1996, two employees of the National Restaurant Association alleged that Mr. Cain engaged in conduct that may not have been overtly sexual, but nevertheless made them uncomfortable. Like tens of thousands of employers faced with similar allegations against a senior executive, the National Restaurant Association chose to settle these claims, paying a reported "five figure" settlement in exchange for a release of claims and a promise of confidentiality. Now that Mr. Cain has risen to the top of the polls, somebody has breached the confidentiality promise and spilled the story to the media, most likely in an effort to derail Mr. Cain's campaign.
Regardless of whether or not Herman Cain would make a good President, what really troubles me is the flagrant disregard of the confidentiality obligations imposed by a settlement agreement. If an executive has to fear that settling a claim does not really put it to rest, no matter how airtight the agreement and no matter how much money is paid, then it will be hard for me to advise my clients to settle pending claims. Likewise, as a professional mediator, I will have a hard time looking parties in the eye and assuring them that the settlement really will be confidential. The net result of the "high-tech lynching" (Mr. Cain's words, not mine) that we are seeing unfold before us is that fewer cases will settle. While that may be good for lawyers, it will further clog our judicial system, and further delay the point in time at which persons who truly are victims of discrimination can receive redress and move on with their lives.
Once again, I ask myself: why would any rational person choose to run for a high profile political office, where every piece of dirty laundry will be aired before the glare of the media lights?
Fourth Circuit Holds Gang Members = Employees, November 1, 2011
In United States v. Weaver, 2011 U.S. LEXIS 21485 (4th Cir. Oct. 24 2011), the Fourth Circuit held that the Federal law prohibiting a person "employed for" a convicted felon from carrying a firearm applies to gang members. Floyd Moore was the national vice president of the Pagans Motorcycle Club (PMC) and a convicted felon. Weaver and others were PMC members and took orders from Moore. As a convicted felon, Moore was prohibited from carrying a firearm so he ordered his subordinates, including Weaver, to carry when they accompanied Moore. But the law also prohibits a person "employed for" a convicted felon from carrying a firearm. The question was whether Weaver and the others were employed for Moore, even though there was no tangible compensation involved. The court answered "yes," noting that the law did not say an individual who is "an employee of" a convicted felon. The broader language of the statute ("employed for") brought Weaver and the other PMC subordinates within its scope. Gang membership can be rough. Maybe workers' comp and unemployment insurance coverage will be next?
No FMLA Claim for "Exacerbation" of Condition, November 1, 2011
Last month the Seventh Circuit - the most active appellate court interpreting the FMLA - dismissed a claim by an employee who claimed that his supervisor's conduct exacerbated his pre-existing serious health condition. Breneisen v. Motorola Inc., 2011 U.S. App. LEXIS 18301 (7th Cir. Sept. 2, 2011). This was a case of first impression for the court, but it followed the Sixth Circuit's reasoning in Edgar v. JAC Prods. Inc., 443 F.3d 501 (6th Cir. 2006) in noting that the court shared that court's "concerns about permitting recovery to an FMLA plaintiff on 'exacerbation' grounds and adopt its holding that exacerbation is not a valid theory of liability under the FMLA."
Breneisen claimed that alleged mistreatment by supervisor when Breneisen returned from his second FMLA leave exacerbated his pre-existing condition, requiring him to take a third leave, from which he never returned. This argument resembled the plaintiff's argument in Edgar, who claimed that she was unable to return to work after FMLA leave due to her employer's "persistent discriminatory and retaliatory conduct toward her, which exacerbated her condition."
Holding that the cause of the injury under the FMLA is not relevant, the court rejected Breneisen's claim. "When serious medical issues render an employee unable to work for longer than the twelve-week period contemplated under the statute, the FMLA no longer applies. This is true regardless of the cause of the infirmity," said the court.
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