Significant or Severe? Toyota Standard Applied, April 24, 2004
In 2002, the Supreme Court gave clarification on what a "substantially limit" on a major life activity would be under the Americans with Disabilities Act. In Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the court established a high threshold for the statute - one must not be significantly limited in performing a major life activity but rather severely limited.
This standard was recently applied to a Sears sales associate. Judith Keane suffered from nerve damage which caused numbness in her legs. She was given a note by her doctor which read "Walking - avoid prolonged periods of walking and long distances." She was given certain accommodations including being allowed to eat lunch in the stock room, a parking space immediately outside the door to her department, and permission to use a short-cut through the Shoe Department.
Keane's job in the Intimate Apparel Department of Sears required that she be on the sales floor, assisting customers, sizing racks and handling purchases. She testified that she had no difficulty standing for the five or six hours of her shift. She walked with a cane from the parking lot to the Department but did not use the cane while at work. She could walk to other departments of the store without difficulty and would go shopping after her shift. When at home, she did not use the cane except to go up and down stairs. She did not use the cane to go from her house to her car in the attached garage.
Keane offered no "definite, competent evidence" to indicate that she was severely limited in walking; indeed, her own admissions "strongly indicated the contrary." The court held that since Keane could not show that she was severely limited in walking, she did not qualify as disabled under the Act and granted summary judgment for the employer. EEOC v. Sears, Roebuck and Company, Inc., No. 97 C 3971, (N.D. Ill. 2004).
New Overtime Regulations Published by DOL, April 21, 2004
On April 20, the U.S. Department of Labor published its final rules on changes to the FLSA’s overtime regulations. These changes go into effect in 120 days. Some highlights:
- The new rules require overtime for employees earning less than $455 a week or $23,660 annually.
- The new rules replace the “long” and “short” duties tests with a standard duties test to determine whether employees earning between $23,660 and $100,000 are exempt.
- The new rules establish a separate test for employees earning more than $100,000 a year, who, despite their compensation level, may still be entitled to overtime.
- The new rules contain provisions regarding employees in certain occupations – public safety officials and licensed practical nurses, for example – are entitled to overtime. Language in the new rules also makes clear that "blue collar" workers are entitled to overtime and that veterans' rights to overtime are protected.
- the new rules revise the duties tests used to determine whether an employee falls within the "white-collar exemptions" to the FLSA’s overtime requirements. The tests vary depending upon whether an individual is categorized as a bona fide executive, professional, or administrative employee.
DOL fact sheets on these and other changes can be found at the DOL's new "Fair Pay" Web page.
"Less-than-ideal" Management is not Discrimination under the ADEA, April 19, 2004
After receiving complaints about Carol Jones, a sixty-two year old kindergarten teacher, the School Superintendent transferred Jones to a fifth grade teaching position. Before actually teaching fifth grade, Jones retired. Parents had complained that Jones was not up-to-date on teaching methods, the needs of individual students, and was "stagnant," doing the same activities and projects year after year. Parents requested that their children not be placed in Jones' class. At the same time that these complaints were being received, a new Montessori school was opening in the area. There was a concern that parents would be motivated to seek an alternative education option, resulting in decreased enrollment in the public schools.
Jones, although licensed to teach kindergarten through sixth grades, had taught only kindergarten for thirty-three years. Jones claimed that the transfer to the fifth grade teaching job was an adverse action because it would require her to spend hours throughout the summer preparing and learning an entirely different curriculum - a "significant change in working conditions." The Court agreed. Even though her pay, status, seniority, and benefits would remain the same, she would have faced an increased work load in the unfamiliar and more challenging curriculum required in the fifth grade.
Despite the adverse action, Jones could not prove her prima facie case for a violation of the ADEA. The Court stated, "Although the adjective 'outdated' inherently relates to age, it does not necessary [sic] evoke an age-based stereotype. The alleged failure to update and redevelop a curriculum could apply to a teacher of any age, particularly in a field such as education where methods and materials are constantly evolving."
Without proof of age discrimination, the school superintendent's decision to address the enrollment issue by transferring Jones was a legitimate one. It may not have been "the wisest or most logical choice, [but] represents a valid exercise of administrative discretion. . . . Employer decisions which are handled in a less-than-ideal manner are not prohibited by the ADEA." The Court granted Summary Judgment in favor of the School District. EEOC v. La Crescent-Hokah Public Schools, No. Civ. 02-1219 (D.Minn. April 8, 2004).
Are You Following Your State’s New Hire Reporting Requirements? April 15, 2004
Quick Check: Are you reporting your newly hired or rehired employees to the State? Federal and State laws require that all employers to report newly hired and re-hired employees to a state directory within 20 days of their hire date. Although these requirements have been in effect since 1997, some employers are still not aware of them.
New hire reporting speeds up the child support income withholding order process, expedites collection of child support from parents who change jobs frequently, and quickly locates alleged fathers/non-custodial parents to help in establishing paternity and child support orders. New hire reporting helps children receive the support they deserve. Employers are a key partner in ensuring financial stability for many children and families and should take pride in their role.
In accordance with Federal legislation, the State of Maryland asks for the following information:
- Employer Federal Employer Identification Number (FEIN)
- Employer State of Maryland Unemployment Insurance Number (SUI)
- Employer Name
- Employer Address
- Employee Social Security Number (SSN)
- Employee Name
- Employee Address
- Employee First Day of Work
- Employee Availability of Medical Benefits
- Employee Salary and Pay Frequency
Optional data elements include the employee’s date of birth and gender. The State of Maryland provides for electronic filing. For more information, go to the State’s website.
What’s Up With the Proposed Changes to Overtime? April 8, 2004
Everyone seems to be asking “what’s going on with the Department of Labor’s proposed changes to the overtime rules of the Fair Labor Standard’s Act?" Well, it’s politics as usual in Washington: there’s a lot of wheel spinning going on and nothing to show for it.
Most recently, Senate Democrats blocked for a second time a procedural motion on pending export tax legislation that would bar votes on amendments addressing, among other things, the overtime rule. Senate Republicans fell short of the 60 votes needed to invoke cloture, with a vote of 49-48 on a motion to cut off debate.
The proposed overtime amendment offered by Sen. Harkin (D-Iowa) as a part of the tax bill would withhold funding from the DOL for any rulemaking action that would cause workers to lose their eligibility for overtime. Anticipating the DOL’s final rule on overtime, the Harkin amendment would rescind any parts of a final rule that would cause workers who currently are eligible to receive overtime from losing that eligibility.
The Office of Management and Budget is now reviewing the final rule on overtime, which it received from DOL on March 26. Because the rule is “economically significant,” OMB must conclude the review within 90 days. So, something should happen by the end of June. Stay tuned for further developments.
Supreme Court Lets Weingarten Ruling Stand, April 6, 2004
Under the "Weingarten" rule, unionized employees have the right to have a union representative present during investigatory interviews that could lead to disciplinary action. In applying that rule, the question as to whom may represent the employee at an investigatory interview frequently arises. In a recent case, Anheuser-Busch claimed that a unionized employee could not insist on having a particular union representative present at an investigatory interview because the representative was on his lunch break. The National Labor Relations Board ("NLRB") found the denial to be an unfair labor practice essentially because waiting an additional 15 minutes for the representative to finish his lunch break was no big deal. On appeal, the Fourth Circuit affirmed. Yesterday, the Supreme Court declined to hear the case. Anheuser-Busch, Inc. v. NLRB, No. 03-949.
Reminder: the NLRB has ruled that the Weingarten rule applies to all "employees" (non-supervisors), including those who are not unionized.
Disparate Impact in Age Cases: The Supreme Court Takes Another Look, April 5, 2004
Two years ago the Supreme Court granted certiorari on the question of whether the theory of disparate (or adverse) impact can be applied in age discrimination cases. Following oral argument in Adams v. Florida Power Corp., the Court dismissed the cert. petition as improvidently granted. Now, the Court has revisited the question, granting certiorari in Smith v. Jackson, No. 03-1160.
Police officers and dispatchers in the Jackson, Mississippi police department, all over 40 years old, challenged a new performance pay plan that granted substantially larger salary increases to younger employees, specifically those with five years or less of tenure. The Fifth Circuit rejected that claim, holding that the ADEA does not permit claims of disparate impact.
Federal appellate courts are split on the subject. In Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), the Court “we have never decided whether a disparate impact theory of liability is available under the ADEA . . . and we need not do so here.” Since Biggins, the First, Fifth, Seventh, Tenth, and Eleventh Circuits have refused to recognize disparate impact claims in age cases, while the Second, Eighth, and Ninth Circuits accepted claims under the theory.
Supreme Court Tackles Constructive Discharge in Sex Harassment Case, April 5, 2004
Is there a defense available to an employer when an employee quits in the wake of alleged sexual harassment? The Supreme Court considered this issue last week in Pennsylvania State Police v. Suders, No. 03-95 (oral argument held March 31, 2004). The question is whether a “constructive discharge” is a tangible adverse job action that blocks an employer’s access to the affirmative defense created by the Court’s decisions in rulings in Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 77 FEP Cases 14 (1998).
Suders claimed that she was subject to sexual harassment that created such an intolerable workplace that she had no choice but to quit. Under Faragher and Ellerth, an employer is automatically liable for sexual harassment by a supervisor that results in a tangible employment action – a demotion, pay cut, or termination, for example. Where the harassment does not rise to the level of a tangible job action, however, an employer can provide an affirmative defense when it can show that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of the remedial opportunities or to otherwise avoid harm.
Federal courts are split on the issue of whether a constructive discharge can amount to the tangible job action contemplated in Faragher and Ellerth. A decision is expected from the Court by June.
Supervisor's Badgering Not Harassment, April 2, 2004
Yet another federal court has ruled that Title VII does not create civility code for the workplace. See Hesse v. Avis Rent a Car System, Inc., No. 02-CV-3653 (D. Minn. March 3, 2004). Sharon Hesse worked as a clerical employee for a rental car company in the Minneapolis airport. In 1999, she got into an altercation with her supervisor, who pushed her chair. Later she claimed that her supervisor harassed her by badgering her at work, knocking on her office window, making loud noises, and repeatedly questioning her. The supervisor attended management classes, and no other incidents occurred until a year later, when the two had another argument about Hesse spreading rumors about the supervisor. Hesse complained that her supervisor continued to make noises at her.
After September 11, 2001, the company's business declined, and Hesse and 13 other male employees were terminated. Hesse then sued her employer claiming harassment and sex discrimination based upon her supervisor's prior badgering and noise-making. The court granted summary judgment in favor of Avis, finding that the supervisor's loudness and badgering were directed at both male and female employees and, therefore, not directed at Hesse because of her gender. The supervisor's "boorish behavior" may have created a "toxic work atmosphere" for everyone, but it was not equivalent to discrimination.
Walking Tall?? Town Marshal Fired For Stalking, April 1, 2004
The Montana Supreme Court has ruled that a town marshal, who was fired for stalking, had no wrongful discharge claim against the town employer. The town of Ennis, Montana hired the marshal in August 2000, with a standard six-month probationary period. During the probationary period, the marshal was arrested for stalking a former girlfriend. The mayor immediately terminated his employment because of the stalking charge and because he had received numerous citizen complaints about the marshal's excessive ticket writing.
Not content to leave with any amount of dignity, the former marshal sued the town for wrongful discharge. He claimed that he was terminated for refusing to violate Montana public policy when, after being instructed to not write so many tickets, he continued to do so, rather than issue warnings. The town claimed it had discretion to fire the marshal because he was still in his probationary period pursuant to the state statute governing police officer employment. Both the trial and appellate courts agreed, finding that the mayor was well within his discretion to fire the marshal and that the wrongful discharge law in Montana did not trump his statutory prerogative.
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