Truck Driver's Post Termination Surgery Too Late For Fmla Protection, March 25, 2004
by Eric Paltell
The Family and Medical Leave Act ("FMLA") prohibits employers from terminating employees because of a "serious health condition." A serious health condition is defined as an injury or illness involving inpatient care in a hospital or "continuing treatment" by a healthcare provider.
In the case of Merritt v. E. F. Transit Inc., a delivery truck driver for a beer and wine distributor was fired for excessive absenteeism. The employee claimed his repeated absences were taken because of a shoulder injury he suffered while lifting cases of beer and wine. The injury - a torn rotator cuff - was so severe he ultimately qualified for temporary total disability benefits under the state worker's compensation law.
Nevertheless, the shoulder injury did not qualify as a "serious health condition" under the FMLA because, at the time the driver was fired, he was not hospitalized, he was not receiving treatment from his doctor, and he was not taking any medication. Although the shoulder condition ultimately led to disabling surgery, the surgery did not take place until weeks after his termination.
The Merritt decision demonstrates that, in order for an employee to be protected by the FMLA, the employee must be undergoing inpatient care or continuing treatment at the time of the adverse employment action. The mere fact that the employee was experiencing symptoms which eventually led to inpatient care or continuing treatment will not suffice to protect the employee from discipline.
Court Rejects Harassment Claim Based On Buttocks Slap, March 25, 2004
by Eric Paltell
The United States Court of Appeals for the Seventh Circuit has rejected a sexual harassment claim based upon an alleged slap on the buttocks. In the case, Perez v. Norwegian American Hospital, Inc., the court ruled that a hospital supervisor failed to establish sexual harassment by claiming that a co-worker slapped her buttocks with a notebook and that co- workers gossiped about her and ostracized her after she complained about the slap.
The court acknowledged that a slap on the buttocks could, in come cases, be sexually based, but found that was not the case here. The Court found no evidence that the employee was gossiped about because of her sex, or that the man who had slapped her did so in a sexual way. Rather, when the court looked at the evidence, the case appeared to be one of an unpopular employee who was "ganged up upon" by her supervisors and coworkers.
This case illustrates the fine and often murky line between illegal conduct based upon sex, which can be sexual harassment, as opposed to permissible workplace horseplay. Although touching and grabbing co-workers, especially in private areas, may be unprofessional and offensive, it is not illegal sexual harassment unless an employee can prove the conduct is severe, pervasive, and based upon gender.
Federal Appeals Court Finds Employer Did Not Recognize Union, March 17, 2004
The conventional wisdom is that nonunion employers should not meet with unions trying to organize their workers. There is too great a risk that the employer will be found to have recognized the union, and consequently not be entitled to a secret ballot election among its employees on the unionization issue. We caution employers never to examine authorization cards, whether at a meeting or some other forum.
A federal appeals court, however, has ruled that two meeting between an employer and a union, plus some form of card examination, was too informal to result in voluntary recognition of the union. International Union of Operating Engineers v. NLRB, No. 03-3054 (7th Cir., March 16, 2004). The court recognized that (1) employers and unions should be able to have preliminary discussions about representation without drastic consequences, and (2) the employer in this case "looked at" authorization cards, but did not examine them to confirm that the union had majority status.
We still caution non-union employers not to meet with union officials for the purpose of discussing representation. If you do, however, please do not even "look at" authorization cards, despite the recent court ruling.
Sheepherders Have Rights, Too, March 17, 2004
Seriously, an appeals court in Washington State has sent a case back to the trial court to determine if two Chilean sheepherders were entitled to compensation for on-call hours. Both were required to live on the sheep ranch, though they were not always on active duty. The court told the trial court to determine whether the on-call time was actually active duty. Berrocal v. Fernandez, No. 22011-7-III (Wash. Ct. App., March 11, 2004.
Wage and hour laws are complicated. If you have employees on-call, or employees who are not paid for all hours worked, you should periodically confirm that they are not entitled to compensation under federal or state wage and hour laws.
Senate Still Fighting Over DOL Overtime Proposal, March 15, 2004
The Department of Labor, one year ago this month, proposed sweeping changes to the nation's overtime laws. The proposed regulation, which redefined the exemptions for executive, administrative, and professional employees, as well as outsides salespeople and computer employees, met with a great deal of opposition. While the DOL speculated that only 600,000 employees would lose overtime pay, others have predicted that over 8 million employees now receiving overtime will lose that benefit.
Senators are attempting to block the proposed rule by attaching amendments to a tax bill, similar to a move taken last year. No one can predict when a final rule will be issued by the Department of Labor, if ever. When it does, check this website for details.
Currently, it is difficult to decide whether this proposed rule is pro-employer or pro-employee. There is plenty to love and hate about it, which is perhaps a sign of these partisan times.
“Hitman” Loses Bid For Workers’ Compensation Benefits, March 11, 2004
Professional wrestler Bret “The Hitman” Hart is a resident of Canada. Hart’s employer, Word Championship Wrestling (WCW), is headquartered in Georgia. In 1997, Hart entered into a five year contract with WCW. The contract was signed in Georgia, and Hart agreed that disputes under the contract would be governed by and resolved under the laws of Georgia. In accordance with its obligations under the contract, WCW provided workers’ compensation insurance for Hart under Georgia law.
In 1999 Hart suffered a career ending head injury during a match at the MCI Center in Washington, D.C. He subsequently filed a claim for workers’ compensation benefits under the laws of the District of Columbia. It was undisputed that WCW’s insurance covered Hart while he was performing in the District. WCW opposed Hart’s claim by arguing that Hart was not covered by the District’s workers’ compensation law, because he worked only "temporarily or intermittently" in the District and his claim was governed by the law of another state.1 The Department of Employment Services (DOES) agreed with WCW and denied Hart's claim for workers’ compensation benefits.
Although he seldom worked in the District, Hart claimed that he maintained a continuous "economic and virtual presence" sufficient to bring him within the jurisdiction of the District’s workers’ compensation law. Hart argued that he maintained this virtual presence through numerous television appearances and the sales of merchandise, including the “Hitman” action figure. The D.C. Court of Appeals disagreed, finding that the Hitman’s “virtual” presence in the District was not enough to trigger coverage. An employee’s actual physical presence is required. Therefore, Hart’s single wrestling match in 1999 constituted only temporary or intermittent work, and his claim for benefits was properly denied.
- 1 D.C.Code § 32-1503(a-3) provides as follows:
(a-3): An employee and his employer who are not residents of the District of Columbia and whose contract of hire is entered into in another state shall be exempted from the provisions of this chapter while such employee is temporarily or intermittently within the District of Columbia doing work for such nonresident employer, if such employer has furnished workers' compensation insurance coverage under the workers' compensation or similar laws of such other state, so as to cover such employee's employment while in the District of Columbia. The benefits under this chapter or similar laws of such other state shall be the exclusive remedy against such employer for any injury, whether resulting in death or not, received by such employee while working for such employer in the District of Columbia.
Employee Legally Fired After Accusing Supervisor Of Sexual Harassment, March 9, 2004
Thomas Mattson was employed by Caterpillar, Inc. in one of its manufacturing facilities. He worked in a noisy area where employees are required to wear earplugs and must stand very close to one another. One of Mattson's supervisors was Beth Cone. After Cone was critical of his performance, including reporting him for sleeping on the job, Mattson filed a sexual harassment complaint against her with Caterpillar's EEO Coordinator. Mattson was allegedly concerned about inappropriate physical contact. Specifically, Mattson complained about Cone's breast touching his arm on one occasion and about one time when she reached around him to get a clipboard but did not touch him.
Mattson was interviewed as part of Caterpillar's internal investigation. Mattson said he did not know whether Cone had touched him in a suggestive way and that the contact may have been inadvertent. Caterpillar determined that Mattson's complaint was without merit, and it issued him a letter warning that making false accusations of sexual harassment could lead to disciplinary action, including termination. Caterpillar also counseled Cone to be careful of how closely she stood to people.
Mattson then filed a complaint with the EEOC based on the same alleged incidents. Caterpillar conducted another investigation. This time one of Mattson's coworkers came forward with additional information, including that Mattson had told his coworkers that it was goal to get Cone "out of here any way possible." Caterpillar determined that Mattson's charges against Cone were made in bad faith and then terminated his employment.
Mattson sued claiming that he was protected from discharge by Title VII's anti-retaliation provisions, even if his charges against Cone were unreasonable, false, and defamatory. Mattson attempted to draw a distinction between the opposition clause and participation clause of Title VII, claiming that the participation clause did not require his complaint to be reasonable. The Court did not agree. Regardless of whether conduct is protected by the opposition clause or participation clause, utterly baseless claims filed in bad faith do not trigger anti-retaliation protections under Title VII.
Mattson v. Caterpillar, Inc., No. 03-2495, 7th Cir. (March 4, 2004)
Boss to employees: "You want overtime? Chicken Feathers!", March 5, 2004
Whiting Farms runs a business growing chickens for the sole purpose of harvesting their feathers for fishing lure manufacturers. Two chicken feather processors demanded that they be paid overtime after 40 hours in a work week, and Whiting refused. Because it is a "farm," Whiting reasoned, it is entitled to be exempt from paying overtime under an agricultural products exception. A federal appeals court sided with Whiting, dismissing the suit and requiring the indigent plaintiffs to pay costs of $3,128.18.
Impaired Firefighters Protected In Arizona, March 4, 2004
According to the Arizona Supreme Court, the City Of Mesa had no right to test on-duty firefighters for impairment by drugs or alcohol. Although the United States Supreme Court permitted testing of school children involved in extracurricular activities, the decision reasoned, that does not permit the City to implement a drug-free workplace for firefighters. Interestingly, some people were not aware that it is more important to monitor impairment within the public high school chess club than among the local employees charged with public safety before that judicial clarification.
Stealing twice in two years? What's the big deal! March 2, 2004
A bartender at the Frenchman's Reef Lobby Bar was visited by an undercover investigator who purchased two drinks. He paid cash and watched the bartender scan a coupon for free drinks before placing it in the register and pocketing the cash. The bartender had been caught by another undercover agent pulling the same trick a year earlier, but the discipline that time was administered too late to meet the contractual time limit.
Presented with these facts in a termination case, Arbitrator Louis V. Imundo, Jr., put the bartender back to work. His reasoning speaks for itself: "In the Arbitrator's opinion, while what [the bartender] did was serious it was not as serious as if he did not record the sale at all and simply pocketed the money. That would have been a clear case of stealing and embezzlement. In this instance [the bartender] substituted one form of payment for another. The complimentary drink coupon had a value that was equivalent to, or even greater than the cost of the vodka/cranberry."
Priceless evidence that arbitration sometimes produces results that are stranger than fiction.
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