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EMPLOYMENT LAW UPDATE

 

December 2012

                                                         

by

Bob Gregg

rgregg@boardmanclark.com

 

Boardman & Clark Law Firm

www.boardmanclark.com

 

 

LEGISLATION AND ADMINISTRATIVE ACTION

 

Educational benefit off the cliff? The impending "fiscal cliff" impacts more than income tax rates and cuts to federal budgets. Elapse of current tax laws will also end provisions related to employer reimbursement for education (currently up to $5,250 per year). Also ending is the "qualified adoption assistance" exclusion and the 40% Work Opportunity Credit employers can take for hiring qualified veterans. Since employees are currently registering for 2013 classes, the failure of Congress to deal with these issues may have effects on their ability to afford those courses.

 

E-verify reauthorized. Congress has passed an extension of the e-verify program for three more years. The program could have expired at the end of 2012.

 

A revised I-9. A revised I-9 may be implemented in 2013. The form is not yet final, but may double the number of pages and increase verification and recordkeeping requirements, and place more burdens on HR systems.

 

Fair Credit Reporting Act changes residence. Responsibility for enforcement of the FCRA has moved to the new Consumer Financial Protection Bureau from the Federal Trade Commission. New forms are required on January 1, 2013. Employers and reporting agencies will be required to use new FCRA forms for Notice, Summary of Rights, etc. The form and requirement changes are not significant. Most changes just reflect the change in agency jurisdiction and where to file complaints.

 

LITIGATION

 

The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).

 

Privacy

 

Health care network charged with improperly using its own medical records to discriminate against job applicant. A hospital may have confused the boundaries between its roles as a caregiver and an employer and perhaps compromised patient privacy rights and ADA pre-employment inquiry rules. The ADA prohibits any pre-offer inquiry into a job applicant's health or medical history. The EEOC has filed a case against a large health care network alleging that it regularly has done pre-offer review of the medical records of job applicants who have been previous patients at its 15 hospitals or 185 clinics. The EEOC's two principal plaintiffs allegedly were rejected for employment because the patient records review showed one was taking medication to control MS; the other had a prior carpel tunnel surgery. The case charges violation of the ADA and patient medical privacy rights. EEOC v. Aurora Health Care (E.D. Wis., 2012).

 

Employer's investigator violated Illinois intrusion upon seclusion tort. The Illinois Supreme Court recognized a new tort cause of action for invasion of privacy -- intrusion upon seclusion -- in a case involving an employer's investigation of an ex-employee's suspected violation of a non-compete agreement. The company hired a private investigator who used deceptive representations to obtain the ex-employee's personal phone records from her telephone carriers without her permission. Tort cases do not have damage caps. Juries can potentially award an unlimited amount of money for economic harm, pain and suffering, punitive damages, etc. Lawlor v. N. American Corp. of Illinois (Ill. S.Ct., 2012).

 

Overbroad discovery cannot "rummage" through social media. In its defense of a sexual harassment suit, an employer made a discovery request for access to all of the plaintiff's electronic information in all forms, personal computer, all social media accounts and connections, all of her user names, IDs and passwords. The employer reasoned that these were relevant to her credibility, and her claims about her damages and emotional harm. The court found the request overbroad. The request "would gain defendant access to all the information in the private sections of her social media accounts regardless of relevancy. . . . The fact that information may be in a file does not give them the right to rummage through the entire file cabinet." The employer was ordered to tailor its requests to specifically identified relevant information. Howell v. Buckeye Ranch, Inc. (S.D., OK, 2012).

Fair Labor Standards Act

 

$1.3 million award for abuse of disabled worker sub-minimum wage rule at turkey farm. The FLSA allows payment of a special sub-minimum wage for certain disabled workers. However, it is still supposed to be an hourly wage. In EEOC v. Hill Country
Farms, Inc. d/b/a Henry's Turkey Services
(S.D., Iowa, 2012), the court found abuse of the FLSA rule and disability discrimination. While other employees were paid $12 per hour, the intellectually impaired special wage employees received $65 per month for often over 40 hours per week. The company had also previously had a $1.7 million judgment in 2011 for other sorts of wage and overtime violations in its general employment practices.

 

Automatic 30-minute lunch deduction is valid. A federal court rejected a union's class action challenge to a hospital's use of an automatic 30-minute pay deduction for meal breaks, regardless of whether or not the employee clocked out. The court ruled that such a practice is valid under the law, if done correctly. In this case, the policy was in print. All employees knew of it and had signed off. All employees understood they were to report any instance of not taking 30 minutes and they would be paid, and were consistently paid. Frye v. Baptist Memorial Hospital (6th Cir., 2012).

 

DISCRIMINATION

 

Scope of Authority

 

EEOC limited to only one department of Samoan government--fishing expedition was improper. A 59-year-old employee filed an age discrimination charge against the Department of Human Resources (DHR) of the Territory of American Samoa. The EEOC demanded extensive information about all units of all departments of the Samoan government. The EEOC then attempted to enforce its discovery requests. The court found this to be overreaching. The DHR, which had been accused of discrimination, had 45 employees; the Territorial government had 5,000. There was no accusation of systemic discrimination and no valid reason to subject the employer to such a massive overkill for the scope of the original complaint. The court held the EEOC's discovery to be an improper fishing expedition and limited the action to the DHR only. EEOC v. American Samoa Government (D. Hawaii, 2012).

 

Age

 

 Higher pension contributions by older workers violated ADEA. A county discriminated when it required employees over age 40 to make a higher percentage contribution to the pension plan, regardless of the fact that younger workers may have the same number of remaining years for retirement eligibility. Though requiring higher rates for some employees may be justified in some situations, it was not in this case. The county had added an "early retirement" provision to its plan. It considered years of service regardless of age. Therefore, much younger employees could retire much sooner than later-hired older workers. So age was no longer directly tied to retirement vesting, and there was no valid reason for charging more to the older workers. EEOC v. Baltimore County (D. Md., 2012).

 

Profit, not age. A hospital rejected a 67-year-old cardiac surgeon and hired a much younger doctor with fewer years of experience. In the ensuing ADEA case, the court found the hospital had a valid non-age reason. The older doctor had a considerably less profitable practice than did the successful applicant. Economic viability is an important consideration for any for-profit business. The plaintiff's practice level would have barely met expenses, where the other doctor could bring a much more profitable level of business to the organization. Oury v. Rapid City Regional Hospital, Inc. (D. S.D., 2012).

 

Disability

 

Undue hardship defense precluded by lack of interactive process. A medical employee was not allowed to return to work as a phlebotomist after a shoulder injury. The employer argued that due to her restricted arm mobility and hour limitations, she was no longer a "qualified" person for the job, and there were no possible accommodations which would be reasonable. The court, however, found that the employer reached this decision without engaging in the appropriate interactive communication and consideration process with the employee. An employer must at least communicate and consider the employee's accommodation ideas before reaching a conclusion. The employer skipped this required step, and this made any undue hardship defense invalid. Lemean v. DCI Plasma Center, LLC (D. Minnesota, 2012).

 

Sex

 

Hospital is liable for harassment by its contracted surgeons. Doctors often have practice privileges at a hospital but are not employees. They maintain a strict contract relationship to allow them to do separate billing under their own name or private medical practice. However, the affiliation can still make the hospital liable for the environment. In this case, an employee alleged that two private doctors with staff privileges subjected her to overt sexual comments, propositions and sexual rubbing. She complained to hospital management, but the behaviors continued. The court found the employer can be liable for failure to correct known harassment by independent medical professionals to whom it grants practice privileges. Santos v. Puerto Rico Children's Hospital (D. PR, 2012).

 

 

Court permanently bans ex-manager from entering store; owner reacted to complaints by crying. A jury found a grocery store liable for allowing a manager to engage in years of harassing young adult and teenage female employees. The harassment included overt verbal propositions and touching. The manager was the live-in boyfriend of the store owner and father of the owner's child. When complaints were made about the harassment, the owner's reaction was to burst into tears and accuse the complainants of making unfounded accusations. The harassing manager was then allowed to fire employees who complained. A jury awarded $1.25 million. Then the EEOC requested an injunction. The facts showed that when the manager was eventually placed on suspension, he continued to come into the store and approach employees on a regular basis. Due to his relationship with the owner, it was unlikely that he would be controlled, and employees would not be effectively protected without a permanent court order banning him from the property and imposing penalties for violation. The court agreed. EEOC v. Karen Kim, Inc. (2nd Cir., 2012).

 

Time in service is a valid reason for city to have pay difference. The court dismissed the equal pay case of a new city zoning official who claimed she was paid less than two male zoning employees for identical work. In 2006, she was hired for the position, having previously been a secretary in the zoning office. She was paid $7,000 less than one man and $13,000 less than the man she replaced. The court looked at the fact that the retired man had worked on the job since 1979; the other man since 1989, while she was brand new with no prior experience. This was a "factor other than gender" which is a valid difference to an equal pay claim. The seniority/time in grade reason for pay difference was made even clearer by the fact that there was also a $6,000 disparity between the two men, based on one having ten years more service. Hill v. Pine Bluff (8th Cir., 2012).

 

National Origin and Sex

 

Anti-harassment policy is ineffective when harasser is principal interpreter. A potato wholesale company's policies, including the anti-harassment policy, were in English only. A large percentage of employees were not English literate. Ten female Hispanic employees alleged prolonged and overt sexual harassment by a male supervisor, including ongoing propositions, exposure and pressing against them and touching of private areas. The company defended by claiming the employees had not effectively used the anti-harassment policy to inform management of the situation. The court found otherwise. A primary factor was that the harasser was also the bilingual person entrusted to explain the harassment policy and deal with questions or concerns about it from Spanish-speaking employees. Further, the company had prior complaints about the supervisor, but did nothing because he denied each allegation. This rendered the policy ineffective for the ten non-English literate employees when he was left in charge of interpreting the policy. EEOC v. The Spud Seller, Inc. (D.C. Colorado, 2012).

 

Race

 

$2 million for retaliation against white police officer. A white officer complained that the city treated African American officers better in assignment, discipline and evaluation than White officers. He also alleged that female officers received preferential treatment in assignments. The court did not find any significant evidence to prove these conjectures; they may have been sincere, but appear to have been unfounded personal opinion. However, the officer was retaliated against after raising the discrimination allegations. He was passed over for several promotions, denied training which was then provided to minority officers, given unfavorable assignments, accused of being "untrustworthy," subjected to a special investigation of his work and prior work history, and disciplined without any of the standard process accorded to all other officers. The suit was under 42 U.S. Code §1981, which covers racial discrimination, retaliation and the New York State Civil Rights Act. The jury awarded $2 million against the City and two named individual defendants. Miller v. Ithica, et al. (N.D. NY, 2012). [One does not have to be correct when alleging wrongs in order to be engaged in "protected activity;" all that is required is a "good faith" belief. Then there is a protection from retaliation. For more information, request the article Retaliation from rgregg@boardmanclark.com.]

 

Rant sets up situation for discharge. A discharged county employee sued under Title VII, claiming he was fired in retaliation for having made a written complaint of racial discrimination. He had sent an 81-page angry letter complaining of racial discrimination. The letter had phrases which were of concern to the employer such as "the tidal wave is impending . . . I shall deal with this matter." In context with other parts of the letter, the county manager was concerned about whether there was a potential for violence. Therefore, the employee was asked to have a fitness for duty evaluation to determine whether there was a threat to others and placed on paid leave pending the results. The employee cancelled the evaluation and did not reschedule. He was non-responsive to repeated efforts to contact and to a letter informing him he would be discharged if he did not reschedule and complete the evaluation. The court ruled that the county had a valid concern about possible violence. The discharge was not due to having made a complaint, but rather to his continued unresponsiveness and refusal to follow a reasonable request for evaluation. Bess v. Cumberland County (E.D. NC, 2012).

 

Must be at full performance level before expecting full pay. An African American employee was promoted to fill the job of a White Junior Accountant. However, the new incumbent received a lower pay grade and lesser title. This resulted in a discrimination case. The court found the employer had a valid defense and dismissed the case. The new worker had not yet assumed all duties and not yet been in the job long enough to be given the full title. In fact, the plaintiff 's own deposition testimony showed that she "could not even describe the substance of some of the duties" the Junior Accountant was supposed to perform. The plaintiff was premature in bringing the case. Gray v. Jacksonville (11th Cir., 2012).

 

Family & Medical Leave Act

and National Labor Relations Act

 

Speedway is not a medical facility. An employee called in, claiming to be too ill to work, requesting FMLA to go to the doctor. At mid-day, he was seen by another, off-duty, employee attending time trials for the Indy 500 at the Indianapolis Motor Speedway. When this was reported to HR, the employee was fired for falsifying leave. An arbitrator upheld the discharge, finding "intent to defraud the employer." In re: SFC Manufacturing, Inc. and United Steelworkers AFL-CIO-CLC # 1999 (2012).
 
Posted 12/20/12

 
  EMPLOYMENT LAW UPDATE

November 2012

                                                                

by

Bob Gregg

rgregg@boardmanclark.com

 

Boardman & Clark Law Firm

Wisconsin SHRM Legislative Sponsor

http://www.boardmanclark.com

 
VOTE   --   VOTE   ---   VOTE   ---   VOTE

 

TIME OFF TO VOTE LAWS

The election is upon us! Twenty-seven states have laws which give employees rights to have time off from work to vote. Some states require paid leave. Some allow deductions from pay for the time off. Some require that the employees give advance notice. You should check your state's law. The states which have time off to vote laws are Alaska, Alabama, Arizona, California, Colorado, Georgia, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin and Wyoming. 

LITIGATION

The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).

Liability for Off-Duty Acts

Liability for employee's off-duty use of company van for pizza delivery job.  An employee had a company van. He engaged in unauthorized use of the van for a second job as a pizza delivery driver. He had a wreck. The other party sued everyone for damages, including the company which owned the van. The company defended, claiming no responsibility. It had specifically prohibited any non-job use of company vehicles. The court agreed. It found the company and its insurer were not liable for any injuries or damages. The company's clear policies and warnings against unauthorized use overcame any "implied consent" theory of liability. Lang v. Lowe and Unlimited, Inc. (Wis. Ct. App., 2012). An issue not decided by this case was whether the company's insurer had any obligation to cover the damage to the van when the accident was due to unauthorized use not in the scope of company business. [For more information on similar issues, request the article or seminar "Off the Clock but Still on the Hook: Your Liability for Employees' Off-the-Job Behaviors" by Boardman & Clark.]

Fair Labor Standards Act

Hot goods enforcement. The usual DOL enforcement action for wage and hour violations is to demand that the employer pay the proper back pay, overtime, etc., plus often attorney fees and penalties. These can be significant. DOL has recently been renewing the use of the Hot Goods authority to also prohibit the employer from shipping or selling the products which were grown or manufactured in the facilities where the wage violations occurred. The Hot Goods provision, 29 U.S. Code 215(a)(1), was passed to "attempt to eliminate any competitive advantage that goods produced in substandard labor conditions might have over products produced in compliance with federal regulations." Some employers, especially producers of perishable goods, are complaining that this is a coercive practice done to force "quick cave-in" and payment before the goods spoil. On the other hand, the Hot Goods provision was strongly lobbied for by other businesses which wanted to be protected from being undercut by others who use illegal workers, unfair wages and other improper practices. 

Fired employee defends charge of wrongful payments by claiming she was improperly classified and was simply paying overtime she was due. A village treasurer was fired for having wrongfully taken $160,000 of municipal funds. She defended and filed an FLSA case, claiming she had been wrongfully classified as exempt and was, in fact, due all of the money for several years of overtime pay. She had only been writing checks to herself to pay this overtime. The court disagreed. The court found the village had properly classified her as an exempt executive and documented this in the job description, assuring she supervised others and had a broad executive scope of authority and discretion. "No rational trier of fact could conclude otherwise." Further, the checks she wrote to herself were not payroll checks:  no taxes were withheld, and nothing was reported on the village payroll records. She clearly knew about these requirements, since the treasurer was in charge of payroll. Her claims did not have credibility. Krumholz v. Northport (E.D. NY, 2012). 

DISCRIMINATION

Religion/ National Origin

Offensive mannequin and one comment were not enough to create harassment case. A Jewish hospital employee of Mexican origin filed a case on religious/national origin harassment and for retaliatory discharge after he complained about the harassment. The harassment consisted of three incidents. There were mannequins in one area of the hospital. The supervisor noticed that one had a "Hitler-style mustache" and thought it would be funny to position the arm in a Nazi salute. The Jewish-Mexican employee saw this, was offended and put the arm back down before the end of the day. He then called the internal complaint hot line about the offensive incident. During the call he also stated that he heard that the same supervisor had previously referred to the hospital's cleaning crew as "those Mexicans," allegedly in a negative tone. The employee then transferred to another location. At that location he was critiqued for performance issues and complaints by patients about his work. This critique eventually led to discharge. He filed a Title VII case on religion, national origin and retaliation. In the case, he added the evidence that the supervisor who posed the mannequin had also once noticed the large Star of David necklace worn by the employee and said, "That's gaudy!" This was further evidence of anti-Semitic animosity. 

The court granted summary judgment, dismissing the case. The incidents were not sufficiently severe or pervasive to constitute illegal harassment. Neither the mannequin pose nor the Mexican comment were directed at the employee. Though insensitive, there was no indication the less-than-a-day mannequin pose was intended to be anti-Semitic. Not every Hitler reference or parody has such an intent. The jewelry comment had no religious reference attached. It was a large piece of jewelry, and the court would not interpret a religious meaning to an otherwise neutral comment. Finally, the performance critique and discharge were by a different supervisor, in a different location. The evidence was that this supervisor had no knowledge of the employee's prior hot line complaint and so could not have acted in retaliation. De La Rosa v. Hanger Prosthetics and Orthotics, Inc. (D. Ariz., 2012). 

National Origin

Deputy sheriff can maintain retaliation case for investigation of her citizenship statusA 13-year veteran deputy sheriff of Mexican descent made an internal written complaint about alleged improper treatment of and derogatory and discriminatory comments made to and about Mexican inmates in the county jail. The following day, she was suspended pending an investigation of her own status - was she a U.S. citizen or legal resident? The deputy was able to produce the evidence of citizenship and was reinstated. However, the court validated her ensuing suit for retaliation under 42 U.S. Code § 1983, against the county, the sheriff and two other personally named defendants. The judge found a substantial foundation that the reason for the sudden investigation of the deputy's legal status was her complaint about improper treatment and national origin discrimination, a matter of public concern. Garcia v. Arapahoe Co. Sheriff's Office, et al. (C.D. Col., 2012).

Disability

Failure to confer with coach/guardian can violate interactive process. Some disabilities render the person less capable of communicating without assistance. This may be true for visual and hearing conditions and is often the case with intellectual disabilities. A kitchen worker with an intellectual disability was capable of doing the job if his supervisor was reasonably sensitive to his understanding abilities and manner of direction. His accommodation plan included a request to consult with a third-party job coach or his guardian regarding accommodation requests and before any tangible employment decisions. The employee did make requests for accommodation, which seem to have been ignored. There was no communication to the designated third party. He was then fired, again with no consultation with the designated third party. This violated the established accommodation plan and the ADA required interactive process. The company agreed to settle the ensuing case for $255,000 plus a series of compliance requirements. EEOC v. Bannes Health (Administrative Settlement, 2012). 

State employee cannot sue under ADA-Title II. The U.S. Supreme Court has ruled that state agencies are immune from suit under the ADA's Title I employment sections due to the 11th Amendment's "sovereign immunity" clause. (Employees can file cases under the Rehabilitation Act, if the agency takes federal funds for a program they work under.) Title II of the ADA, however, specifically applies to state and all other government agencies. Title II prohibits discrimination by any public entity "in any public services, benefits or activities." A university employee alleged she was discharged due to failure to accommodate her spinal conditions. She sued under Title II, claiming the language covered any discrimination, including employment actions, by an entity which provided public services. The court disagreed. It ruled that Title I and II are mutually exclusive. Title II is limited to those who are recipients or participants of the public services and not the employees of those services. Ewell v. Bd. of Regents of the U. of Oklahoma (10th Cir., 2011). This is the fourth court to make this finding (also the 3rd, 6th and 9th Circuits). However, the 11th Circuit has allowed a Title II employment case. So other cases may be brought to test the waters in other circuits.

History of drug use vs. current drug useThe ADA does not protect an employee from the consequences of current drug use. However, there is a "safe harbor" for those who have a "history" of use, have completed a treatment program and are no longer using. Where is the transition point? In Shirley v. Precision Castparts Corp. (S.D. Tex. 2012), an employee was abusing prescription painkillers at work. Instead of discharging him, as it could have, the company allowed a leave for treatment with the condition that he complete treatment. After two days, the employee checked out of the program, against the doctor's advice. He was fired. He sued under the ADA, claiming he had a protected disability as a "former user." The court disagreed, finding "current use" means "recent use." The employer could infer the use was current, especially since the person failed to complete treatment and checked out after only two days. There must be a "sufficient time" after the last use to qualify for the "safe harbor" protection. 

 

One year is enough time, and college perceived employee as drug dependent and disabledA mailroom supervisor at a private college became dependent on prescription pain medication following a series of back surgeries. He tested positive for an "excessive amount" of opiates. He entered and completed a treatment program for addiction. He continued to take a different prescription medication for his continuing surgeries and pain, monitored by his physician, along with opiate-blocking medications. A year after the completion of the drug treatment program, the college again ordered a drug test. It again showed the presence of prescription pain medication. The college fired the employee. In this case, the employee did qualify under the ADA's "safe harbor" as a person with a record of past treatment. Further, the college did not establish that the prescription medication level was "excessive." It did not ascertain that he was taking the medication under his doctor's monitoring and treatment advice. Thus, the termination violated the ADA, based on the employer's perception of drug addiction, instead of a valid foundation. The jury awarded $300,000, plus attorney fees and costs. Fowler v. Westminster College (D. Utah, 2012).

Sex

Food company settles OFCCP charges adverse impact hiring discrimination. A national food distributor has agreed to pay approximately $200,000 and change its hiring practices. The OFCCP charged that the company's hiring practices discriminated against women. In a nine-month period, the company hired only six out of 90 qualified female applicants (6.6%) for "order selector" positions at one of its facilities. Out of the male applicants, the company hired 40 of 150 qualified applicants (26.6%). The OFCCP considered this disparity too great to be random and too great to avoid a conclusion of gender discrimination. The situation was heightened by evidence that a number of the rejected female applicants had experience and credentials which were equal to and greater than the men who were hired. The settlement monies will go to women who were not hired, and a number of those will also be offered jobs. This was a no-fault settlement because it was reached in a conciliation process, before the OFCCP proceeded to the enforcement stage. OFCCP v. Nash Finch Co. (Administrative Settlement, 2012). 

For additional information, see www.boardmanclark.com. The Reading Room has past issues of the Employment Law Update. Other publications on the website are the Employment Benefits Newsletter, the Municipal Law Newsletter and the School Law Newsletter

 
 
Posted 11/13/12

EMPLOYMENT LAW UPDATE

October 2012

by

Bob Gregg

rgregg@boardmanclark.com 

Boardman & Clark Law Firm

Wisconsin SHRM Legislative Sponsor

www.boardmanclark.com 


LEGISLATIVE AND ADMINISTRATIVE ACTION

Department of Labor issues new guide to FMLA. The DOT has published a 16-page guide to FMLA, entitled "Need Time," to make the law easier to understand for employees. It is available at the DOL website. The guide contains flowcharts intended to illustrate the various types of leave and eligibility. 

LITIGATION

The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state's court decision, may not quite
be "the law" in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).

Jurisdiction

Seventh Circuit adopts new standard -- allows §1983 suit for age discrimination! All federal courts have ruled that the Age Discrimination in Employment Act is the only remedy for age discrimination. Courts allow plaintiffs to bring other forms of discrimination cases (race, sex, religion, origin, etc.) under multiple laws (Title VII, IX, IV, §1981, and §1983 for public employees).   The wording of the ADEA was held to limit age cases to only that one law. Now the Seventh Circuit has ruled that nothing in the law's language prevents a fired assistant state attorney from bringing an Equal Protection case under 42 U.S. Code §1983 for age discrimination. Levin v. Madigan (7th Cir., 2012). This sets the Seventh Circuit at odds with all other courts. Some others may adopt the new interpretation. It is likely that the issue will eventually reach the U.S. Supreme Court to settle the split of opinions. 

Discrimination damages are not a "golden parachute" -- bank's defense lacked foundation. A discharged bank executive sued for sex discrimination. The bank moved to dismiss the case because it had taken federal TARP "bailout" funds. TARP prohibits recipients of funds under the program from making severance or other payments amounting to a "golden parachute" to departing executive officers. The bank argued that any award of damages in a discrimination case would fit this definition and were prohibited under the TARP rules. The court soundly rejected this defense. In TARP, Congress did not intend to squelch the rights of wrongfully terminated employees. TARP was not intended to shield banks from having to pay for their wrongful or illegal acts. A "golden parachute" is an extra enrichment or reward for an executive, wherein damages are not "extra" -- they are to make a person whole for what they have suffered due to wrongful acts. Sterling Savings Bank v. Stanley (E.D. Wash., 2012). 

Physician cannot sue medical group. A "partner" is not an employee. A partner is an owner and cannot sue for employment discrimination. However, recently the courts have modified this rule by recognizing that some partners do not really have enough control to qualify as full partners. Junior partners, associate partners and even "senior" partners who have been "put aside in the management process" because they are "too old," have all been allowed to bring suit because their authority and treatment is more like an employee than an owner. In Bowers v. Ophthalmology Group LLP (W.D. Ky., 2012), a partner-doctor was expelled from the partnership. She filed a sex discrimination case, alleging that she was not a "full partner" and should be allowed to sue as an employee. Her argument was that she had no real management power or control since she was constantly outvoted by the male partners. The court found this unpersuasive. She indeed had a full vote like all other full partners. "[O]ne's status does not change from partner to employee simply because the partner is out-numbered and finds herself in a minority position among the other partners." The court dismissed the case for lack of jurisdiction. 

Labor Arbitration

 Off-duty officer pulled over wrong driver. A police officer installed red and blue flashing lights in his personal car and engaged in traffic stops of motorists in his off-duty time. He was ordered to stop, to remove the police lights from his private vehicle and to not engage in playing cop while off duty unless requested to respond to an emergency. Instead, he kept the lights and shifted his off-duty activities to outside of his local jurisdiction. He made an off-duty stop on a motorist who happened to be an off-duty State Patrol officer. She was suspicious of the seeming unofficial car and light set-up, did a check and found out he was off duty and outside his territory -- a violation of police ethics and state laws. She reported the incident, and the officer was fired for gross misconduct. The officer grieved and lost at arbitration due to having violated the order to desist. In re City of Greenacres, FL (2012). 

Discrimination

National Origin

Car dealership settles case on harassment of Afghan employees and retaliation against sales manager who stood up for them. An auto dealership will pay a half million dollars. Salesmen of Afghan origin alleged ongoing harassment. Other employees called them "terrorists," threatened to "blow them up with a grenade," and yelled and swore at them because of their national origin. The sales manager allegedly tried to address the harassment and tried to get the dealership management to take action. He was fired. The dealership settled the resulting suits. In addition to monetary damages, the dealership entered a three-year consent decree which includes annual training of all employees and close monitoring of all employment processes. EEOC v. Fremont Auto Dealership LLC (N.D. Cal., 2012). 

National origin/religion/sexual orientation/$3.5 million award -- employer made "meager effort" to stop harassment of Cuban-Jewish-gay worker. An employer's failure over three years to stop harassment of a worker resulted in a $3.5 million jury award, mostly in punitive damages. The worker, a pipefitter in an automotive plant, was subject to harassment on national origin, religion and sexual orientation. The harassment included over 50 death threats sprayed on walls or put on his tool chest; his tires were slashed; sugar poured in his gas tank; and dead birds dressed in little KKK costumes were put in his lunch box. The company's response to complaints was not prompt and did not adequately attempt to discover who was responsible for the harassment. The court found the employer's response "was shockingly thin." The harassed worker sued under Title VII and 42 U.S. Code §1981. May v. Chrysler Group LLC (7th Cir., 2012). 

Disability

One-handed school bus driver may be a "qualified person". A school bus driver trainee had no left hand. She obtained waivers from the Ohio Department of Education to enter a school bus driver training program. She alleged she was harassed in the program because of her disability, with constant negative comments about her left arm and stereotypes and presumptions of her inability without any actual foundation, and finally angry outbursts by a trainer that "parents will not be happy with you as a driver," because of only one hand. There were no documented deficiencies in her training efforts, but she was denied the ability to take the final certification test. She then sued. The court ruled that she was a "qualified person with a disability" for the trainee position. She should have been allowed to take the test. Rosebrough v. Buckeye Valley High School Dist. (6th Cir., 2012). 
 
Counseling requirement was a medical examination. An Emergency Medical Technician had arguments with a male co-worker she was dating. The Ambulance Authority received complaints that she was screaming at her boyfriend on her cell phone while driving the ambulance, transporting a patient. The employer required the EMT to get psychological counseling in order to keep her job. She refused, and the employment ended. She then sued, claiming the discharge was due to refusal to engage in medical evaluation prohibited by the ADA. The court agreed that psychiatric counseling would reveal information regarding mental conditions and was a form of medical evaluation. Unless the employer had applied the proper ADA standards for requiring such an evaluation, it could be illegal in this situation. The EMT's case was allowed to proceed. Kroll v. White Lake Ambulance Authority (6th Cir., 2012). [Employers can require "coaching" on a wide variety of performance and behaviors issues. For example, sending employees who engaged in arguments to EAP "dispute resolution counseling" was not deemed to be a medical exam or process. Jenkins v. Med. Labs of E. Iowa (N.D. Iowa, 2012). However, when an employee is ordered to go to a medical professional for counseling, evaluation or treatment, the ADA process must be carefully followed. For more information on these standards, click on the following hyperlink to read the article "American's With Disabilities and Reasonable Accommodation in Employment"  by Boardman & Clark LLP; or click on the following link to log onto our website to read the article: http://www.boardmanclark.com/reading-room/americans-with-disabilities-and-reasonable-accommodation-in-employment/.

Race

Company and its subcontractor jointly liable for harassment of employees. Two African American carpenters were placed on a job site. They were racially harassed by both their own company's employees and employees of the prime contractor which controlled the construction site. They were called numerous racial names and a noose was hung at the worksite. When they complained, they were simply transferred to another location, and no investigation was undertaken regarding the harassment. Both terminated employment soon after and sued under Title VII. The court found that their subcontractor employer could be liable and also the prime contractor, since it controlled the overall work environment. Hull v. Walsh Construction Co. (N.D. Ill., 2012). 

 Sex

$750,000 settlements due to mayor's drunken advances. Two ex-city employees will receive settlements of their sexual harassment case. A receptionist and an administrative assistant alleged that the mayor drank on the job and made ongoing sexual advances to them and to other women. When they complained, one was told to "find another job" if she did not like the behavior, and was promptly given a 30% pay cut. She then left employment due to the behaviors. The other employee was discharged after complaining. The behaviors finally resulted in a county prosecutor investigating and bringing criminal charges against the mayor. The mayor was recalled by the voters, and the case settlements approved by his successor. Thompson v. Brooklyn (Ohio Ct. of Civ. Pro., 2012). 

Rough work and dirty jobs are no excuse for abusive language. A female apprentice pipefitter had an appropriate work environment until a new supervisor was appointed. She then experienced ongoing verbal sexual harassment, including yelling, overt profanity and repeated use of the "B-word," the "F-word" and the "C-word." When she complained, the Project Manager stated that she "should expect that kind of language in this line of work." She then brought a Title VII harassment claim. The court found more than sufficient evidence for a viable case. The "type of work" is no excuse for abusive behavior. Schoendorf v. RTH Mech. Contractors, Inc. (D. Maine, 2012). [The Project Manager's statement illustrates a too common and very dangerous stereotype of workers in construction, factories or other rough or dirty jobs as being some sort of sub-humans who are not capable of adult behavior. This is an insult to millions of American workers. This stereotype has been used by some employers to excuse their failure to correct unacceptable behaviors and establish a respectful workplace. This approach has also resulted in millions of dollars in liability for those employers. For more information, consider the Respectful Workplace training by Bob Gregg of Boardman & Clark. Bob's email address is rgregg@boardmanclark.com.]

Title VII does not cover sexual orientation, but more decisions are moving toward de facto coverage. Title VII protects against sex/gender discrimination but not sexual orientation discrimination. Gender discrimination, however, includes "sexual stereotyping," which means "failing to conform to traditional gender norms." Originally, this protected women who took traditionally "male jobs" or men harassed because of working in "female jobs." Now this concept is expanding Title VII to cover LGBT discrimination. In Koren v. Ohio Bell Telephone Co. (N.D. Ohio, 2012), a male employee in a same-sex marriage took his husband's name. His supervisor refused to recognize the marriage or name change, refusing to change records or call him by the new name. The company then discharged him for poor attendance without following its usual process and for only half the absences the policy specified for a discharge. Heterosexual men had been treated far better under the rules. He sued under Title VII. The court ruled that homosexual men by definition do not conform to traditional gender norms when changing their names upon marriage. Therefore, a Title VII suit could proceed under the gender stereotyping theory. 

Family and Medical Leave Act

You have to actually see your mother while on FMLA. An employee took FMLA to help provide care for his mother in a nursing home. He was discharged for absenteeism. He sued, claiming retaliation for having taken FMLA leave. However, the evidence showed he never actually visited the nursing home. The employer had fired him for the unauthorized absence. The court dismissed the case, finding the employer had a valid belief the employee had misused the leave policy. Scruggs v. Carrier Corp. (7th Cir., 2012). 

Twelve weeks means twelve weeks for block use of FMLA. A trucking company employee used 12 straight weeks of FMLA. He could not return to work and was terminated. He sued, claiming that he was a "rotational" employee and only worked every other week. So the six weeks he would have been off duty should not have counted, and he was terminated early in violation of the FMLA. The court ruled against him. His argument would have been valid for intermittent FMLA, taken a bit at a time. However, leave taken in blocks of time is under a different section of the Act and allows counting every week taken even if the employee would have been on vacation, reduced schedule or a "rotational" schedule. Murphy v. John Christner Trucking LLC (N.D. Oklahoma, 2012). 

For additional information, see www.boardmanclark.com. The Reading Room has past issues of the Employment Law Update. Other publications on the website are the Employment Benefits Newsletter, the Municipal Law Newsletter and the School Law Newsletter.

 Posted 10/24/12  


EMPLOYMENT LAW UPDATE

September 2012

by Bob Gregg
 
Boardman & Clark Law Firm
 

http://www.boardmanclark.com/

LEGISLATIVE AND ADMINISTRATIVE ACTION
 
New Illinois law bans employers from requesting social network passwords. A new law makes it illegal for an employer to request an employee's or job candidate's private social network account information, user name, password, etc., in order to gain access to their account or profile. The law takes effect on January 1, 2013. Governor Quinn stated: "Members of the workforce should not be punished for information their employers don't legally have the right to have. As use of social media continues to expand, this new law will protect workers and their right to personal privacy." The law does not cover looking at a person's public social media presence, which anyone in the public can view without any special access required. 

Wage and overtime changes proposed. A series of "pre-election" bills on wages and hours have been proposed in Congress. They have little chance of getting out of the committee process and little chance of other action before the election, when a new Congress may change the game again. However, they all make good campaign PR. Twelve Republicans have proposed continuing an already existing exemption from minimum wage and overtime for in-home companion care workers and to block any Department of Labor rules to alter the exemption. This would seem to gain favor with the elderly and home care service employers. Democrats have introduced bills to make changes to how tipped employees are paid to "bring the standard from 1968 to 2012." (Many FLSA rules are still based on industry as it existed when the law was passed in 1938.) A House bill would raise minimum wage from $7.25 to $10.00 per hour; a Senate version would raise it to $9.80 over two years. These seem aimed at gaining favor with lower wage workers and unions. None are likely to have much effect, except as public relations for the election. 

LITIGATION
 
The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).
 
Theme of the Month
 
An Appetite for Liability -- Food Industry Cases
 
There seem to be an unusual number of recent food industry-related cases. They are under different laws but all have that common denominator: food. 

 One pro-union button is enough "bling" at Starbucks. Some companies encourage "bling" -- employees wearing multiple buttons, badges, flashing paraphernalia promoting the company products. In an organizing campaign some Starbucks employees peppered themselves with pro-union buttons. The company imposed a one union button rule, and the union filed an unfair labor charge. The NLRB ruled in favor of the union, but the appeals court reversed. It found that Starbucks complied with the law by allowing employees to show support of the union, and one button was enough. More buttons "diluted" the legitimate advertising and product promotion purpose of the other multiple buttons employees were encouraged to wear. NLRB v. Starbucks Corp. (2nd Cir., 2012). 

Fish company owner nets liability. In Rasmussen, et al. v. Two Harbors Fish Co. d/b/a Lou's Fish House (Minn. Ct. of App., 2012), the court found ample evidence that the company owner sexually harassed at least three female employees. He engaged in highly overt conduct, including touching private parts, explicit descriptions of his fantasies, questioning them about their sexual behaviors, gross sexual language and propositions, and asking them to solicit other women for him. All repeatedly asked him to stop. One of the employees lasted only six days due to the ongoing unwelcome conduct. Another had children, no other income and could quit only when there was other employment available. The third called her parents from work, distraught. They came and took her from the workplace, directly to the police department to file a complaint. The owner denied some of the behavior, but the court found his testimony not credible. Even if his denials were believed, the remaining conduct was clearly severe and pervasive. The court granted summary judgment to the three plaintiffs, with punitive, compensatory and economic damages plus attorney fees to be determined by a further proceeding under the Minnesota Human Rights Act. 

Restaurant chain settles harassment case for $1 million plus compliance conditions. A fast food franchise has agreed to pay $1 million to ten former female employees allegedly subjected to ongoing overt verbal and physical sexual harassment and/or fired in retaliation for complaining about harassment. The company will also enter a four-year remediation program, including establishing new employee complaint procedures and hotlines, evaluating supervisors on compliance with EEO laws, comprehensive training, and filing ongoing reports with the EEOC. EEOC v. Missoula Mac Inc. (W.D. Wis., 2012). 

Mozzarella maker melts. A mozzarella cheese company with federal contracts has agreed to pay over a half million dollar settlement. An OFCCP investigation concluded that the company's pre-employment tests had an adverse impact on Asian, Hispanic and African American applicants for labor positions. The OFCCP alleged the math and "location skills" test had no sufficient relationships to the actual job duties to be valid under the Uniform Guidelines on Employee Selection Procedures. The test was not "job related and consistent with business necessity." The evidence did not support the Validity of the test. In addition to the payments, the company will hire a number of the rejected applicants and adopt new hiring practices. OFCCP v. Leprino Foods Co. (Consent Decree, 2012). 

Beer bottle maker liable for FMLA retaliation.  A production manager at a beer bottle plant was awarded $206,500 plus attorney fees when she was fired only two days after requesting a second period of FMLA in a 12-month period. The company claimed that she was discharged for performance problems, and especially for allowing a beer bottle machine to run "flat line" for an extended period. However, the court found this unpersuasive. First, the timing was suspect, immediately after the FMLA request. Second, there was evidence of selective attention. Several other supervisors had also flat lined machines without discipline. The only consequence for those others was a verbal warning to "keep an eye on your equipment." The court found the employer's defense to be pretext. Marez v. Saint-Gebain Containers, Inc. (8th Cir., 2012). 

Immunity

There are a number of factors which make some employers immune from suits. Indian tribes are "Sovereign Nations" under the treaties they signed to give away America and be confined to reservations. As Sovereign Nations, tribal organizations are immune from most employment laws. Religious organizations are also exempt from many suits due to the First Amendment's "Establishment Clause" prohibiting the government or its employment laws from interfering with religion-based organizations. However, there are exceptions to immunity and to people's attempts to cloak themselves in the immunity. 

Chiropractic clinic was not a tribal business. Even though all stock was owned by the Cherokee Nation, a chiropractic clinic was incorporated under the state laws of Oklahoma. It operated off of the reservation, contracted to serve a U.S. Army base. It was open to business for all of the service members and civilians on the base and others, overwhelmingly non-Cherokees. A fired technician filed age discrimination and Title VII suits. The clinic moved for dismissal claiming Sovereign immunity. The court denied the motion: A "separate legal entity" status incorporated under Oklahoma law precluded it from sharing in the Cherokee Nation's sovereign immunity. Somerbolt v. Cherokee Nation Distributors (10th Cir., 2012). 

Salvation Army waved immunity when it took federal money. Many organizations have a legal or constitutional exclusion from suit, but when you take the money, you take the rules which come with the contract. Even though the Salvation Army is clearly a religious organization and immune from many employment laws, it can be sued by a rejected disabled job applicant.  It took federal money to provide social services. The Rehabilitation Act applies to all contractors who receive federal funds. Taking the money was a voluntary waiver of any immunity from suits under that act. Doe v. Salvation Army (6th Cir., 2012). 

Discrimination
Age

Lack of evidence and supervisor's comments show discrimination. In Marsh v. Skateland 132nd Street, Inc. (D. Neb., 2012), the court found ample evidence for an age discrimination case. A 63-year old bookkeeper was discharged due to alleged poor performance and cost-savings reasons. She was replaced by a 26 year old, paid $4.00 less per hour. The problem was that the employer's stated reasons for the discharge kept changing. There was no documentation of any poor performance. The issue of poor performance was not raised at all until after the suit was filed. The supervisor had made prior comments that the older employee should retire so he could get someone cheaper. 

Race

Fire department defends adverse impact test case and wins. A pre-employment test with an adverse impact (greater rejections for "particular EEO categories than others) creates a presumption of discrimination. The employer then has to prove the test was "job related and consistent with business necessity" and show the elements of "validity." This can be a tough burden of proof. In MOCHA Society, Inc. v. City of Buffalo, NY (2nd Cir., 2012), the pre-employment test for Fire Lieutenant had an adverse impact against African American candidates. Several unsuccessful applicants and their fraternal association sued. The department defended by introducing the history of the test development, studies used to ascertain job relatedness, expert witnesses from the state who had been involved in the test development, statistical data related to job performance, etc. The court found that though the test "indisputably had an adverse impact," the test was sufficiently valid and job related to satisfy the Title VII nondiscrimination requirements. 

Sex

Exposure to affectionate behavior is not sexual harassment. In Kummerle v. EMJ Corp. (N.D. Tex., 2012), the court dismissed the case of an employee who sued over having to observe affection between her supervisor and another employee. The supervisor and employee had a consensual romantic relationship off the job, but expressed affection at work. Several times a day he would stroke her back, touch her neck and "engage in intimate conversation." The plaintiff alleged that this "created an offensive sexually charged atmosphere" that she and other employees, male and female, had to endure. She also alleged that a reasonable woman would find having to observe this behavior to be offensive "based on the long history of subjugation of women in the workplace and the implication that a female has to subject herself to such behaviors to succeed in the workplace, even if such subjection . . . is consensual." The court declined to base any decision upon the "nuanced interpretation" of historic social dynamics, and declined to apply that generic interpretation to a specific workplace. Further, the plaintiff, herself, was not the object of any behaviors or attention. Also, both men and women were exposed to the affectionate behavior and male witnesses also stated that it was inappropriate. There was no more effect on one gender than upon the other. Finally, the behavior itself did not rise to the level generally necessary for a sexual harassment case. Title VII is not a code of decorum. The standard requires "more egregious" and more sexually focused behavior than overt affection between a consenting couple. 

Gulf spillover: BP will pay $5.4 million due to discrimination by its subcontractors.  The EEOC and BP Exploration and Production have entered into a settlement agreement. An EEOC complaint investigation concluded that a number of BP's subcontractors for the Gulf oil spill cleanup had refused to hire women for the physical cleaning work in Louisiana, Texas, Mississippi, Alabama and Florida. The EEOC held BP to have overall responsibility for an alleged pattern and practice of its subcontractors. BP will create a $5.4 million settlement fund while admitting no liability. The settlement appears to be amicable. The EEOC statement on the event included the following: "We applaud BP's willingness to aggressively combat sex discrimination in the workplace by sharing its experiences and best practices with its peers, requiring its contractors to comply with federal employment laws, and making a settlement fund available to qualified women who sought employment with BP's contractors as part of the 2010 spill cleanup effort."

Disability

Dental fillings lead to loss of ability to speak, and "proper form" was not required for interactive process. Numerous dental fillings created mercury toxicity causing severe damage to a nurse's throat and vocal chords. She lost her voice and had to use an electro-larynx device to speak. Her employer, the Department of Veterans Affairs, gave her a choice of disability retirement or medical termination. She claimed she had the ability to continue working, with accommodation. She was then medically terminated. In the ensuing case, the employer claimed that the nurse never submitted the proper reasonable accommodation request form, therefore it had no obligation to discuss accommodation with her. The court found the employer had failed its obligation to engage in the required "interactive process" before forcing the employee out of the job. No special form is required. The employee had made numerous communications to management regarding her condition and accommodation requests; the employer clearly knew or should have known. The court ruled: "A written request is not required. An employee may ask for an accommodation in plain English and need not mention the ADA or the Rehabilitation Act or even use the phrase 'reasonable accommodation.' . . . The notice merely 'must make clear that the employee wants assistance for his or her disability.'" Pierce-Mato v. Shinseki (W.D. Pa., 2012). 

National Origin

Illegal "alienage" is not the same as national origin. A bank manager married an illegal immigrant. Her spouse operated a business. She used her bank position to help him set up business accounts and a tax ID number, knowing of his illegal status and the improper nature of her actions. When this was discovered, she was fired. She sued, claiming national origin discrimination, due to being fired for her "association with" a person of another nationality. The court dismissed the case. She was not fired because of her husband's nationality. She was fired because she violated her duties to the bank and used her position to further an illegal activity. It was not because of her husband's particular national origin. It made no difference which nation he had come from. Illegal is illegal regardless of the origin. Cortezano v. Salin Bank & Trust Co. (7th Cir., 2012). 

 Uniform Services Employment and Reemployment Rights Act

USERRA job restoration must be without any pre-conditions and can expand to "moonlighting" jobs as well. A police patrol sergeant was called to active Army Reserve duty in Iraq. Prior to this, he had also moonlighted as a security guard. On return, the police department asked him to fill out its standard return from leave form, which included the question, "Were you arrested, charged, detained or suspect in any criminal action while on leave?" He answered "yes" but declined to provide information. (He had been charged for making wine in the barracks, in violation of military rules and subject to a disciplinary action.) The department refused to reinstate him, pending its own investigation. During this, it assigned him to a lower level, phone answering job. The department also denied permission for him to resume his outside security guard job. He sued. The court ruled that USERRA requires job restoration without pre-conditions. It precludes most "regular" return to work procedures. If the department wished to do a misconduct investigation, it could do so after restoration, but could not have a pre-condition. Similarly, a right to restoration can include any other job rights of the returning service member, including "moonlighting." Since the department had control to grant or deny outside employment, its action denied the sergeant restoration to that other work as well. The court ordered full restoration and $120,116 in damages. Petty v. Metro Govt. of Nashville and Davidson County (6th Cir., 2012). [Some other laws, such as FMLA, have similar provisions on return from leave. The employer cannot delay return, but must wait until after the person has returned to work to pursue other issues of concern.]
For additional information, see http://www.boardmanclark.com. Other publications on the website are the Employment Benefits Newsletter, the Municipal Law Newsletter and the School Law Newsletter.

Posted 9/11/12
 

EMPLOYMENT LAW UPDATE

August 2012

by Bob Gregg
rgregg@boardmanclark.com
Boardman & Clark Law Firm
www.boardmanclark.com


LEGISLATIVE AND ADMINISTRATIVE ACTION


EEOC commissioner advises shift of focus for position descriptions under the ADAEEOC Commissioner Chia Feldblum advises employers to focus job descriptions on outcomes instead of tasks.  In order to meet the accommodation requirements of the ADA, the employer should consider what the job is supposed to achieve instead of "how the job has usually been done."  Just because a position has always had certain tasks does not mean it can't be restructured and still meet the outcomes.  Perhaps position descriptions should focus less on listings of "essential physical tasks" and more on "essential achievements" or "essential outcomes."  This is "advice" from the Commission; it is not guidelines or a regulatory requirement.

Connecticut expands medical marijuana law--prohibits discharge for use or positive test.  Under a new law, Connecticut employers are prohibited from refusing to hire, discharging or taking other adverse action against those who use medically prescribed marijuana.  Therefore, a positive pre-employment or post-employment test for marijuana cannot be grounds for any action.  The law has supposed "safeguards" prohibiting use of marijuana on the job or during the standard work shift or being under the influence while working.  One could wonder how effective this safeguard might be since it is often difficult to tell if a person is under the influence except by testing.  Further, a positive test will not show whether a person used the drug in the actual work shift or just sometime in the previous several days or weeks. 

LITIGATION

The Legal Update includes new developments and matters of interest throughout the United States.  Be aware that our various federal circuit courts reach somewhat differing conclusions.  So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction.  Some courts lead the way; others lag behind.  The Legal Update lets you see the overall trends and compare them with your jurisdiction.  Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).
 
Trends:  Sanctions for Violating the Duty to Preserve Evidence
 

Company will pay $100,000 fine and have its defenses precluded due to hiding evidence.  In what is becoming a regular occurrence, a federal court imposed sanctions against a defendant for destruction of evidence.  After being sued for sexual harassment and retaliation, the company destroyed computer hard drives and either hid or destroyed the notes taken during its internal investigation of the original harassment complaint.  The evidence would have shown prior sexual harassment complaints by other employees against the accused manager; that the complaint made to central office was sent back to the local store for "investigation" by the alleged harasser's direct manager and best buddy; and that the "buddy" who investigated also had been the subject of prior complaints of sexual harassment.  When the destruction and withholding of evidence came to light, the court found the acts to be "unfair, unwarranted, unprincipled" and "the integrity of the judicial process has been compromised."  It also reasoned that there may be other concealed evidence which could come to light, or would have, if not destroyed.  In addition to the fine, the court will prevent the defendant from being able to present its affirmative defenses, and ordered that parts of the plaintiff's evidence will be admitted as uncontestable.  EEOC v. Fry's Elecs., Inc. (W.D. Wash., 2012). 

 

The discovery rules require parties to immediately preserve and reveal all relevant electronic and paper documents.  Any deletions are suspect and will be met with sanctions.  All organizations should have policies and practices to avoid this situation.  [For more information, request the article The Importance of Creating and Maintaining an Electronic Records Management Process from rgregg@boardmanclark.com or click here to read the article on the Boardman & Clark website.] 

 

Worker's Compensation


Off-duty push-ups in basement get Worker's Compensation
.  An off-duty police officer was exercising in his basement at home.  He injured his shoulder while doing push-ups.  He filed for Worker's Compensation, claiming that he was preparing for the police department's annual physical fitness test, and push-ups were a required part of the test.  Passing the test results in a cash bonus and an extra retirement fund premium.  Failing the test results in disciplinary action.  He was awarded the WC payments.  The award was upheld by the Labor Industry Review Commission, Circuit Court and the Court of Appeals.  Under the Wisconsin WC rules, any study, training or preparation activities directly related to mandatory job requirements such as keeping one's job or avoiding discipline are job related.  If the city required its police officers to maintain ongoing fitness and did not give paid time to work out, it should then anticipate the officers would devote off-duty time to meeting the city's mandatory requirement.  The push-ups were not "voluntary" personal activity; they were in furtherance of a job requirement, and thus the injury was covered by Worker's Compensation.  City of Appleton Police Dept. v. LIRC (Wis. Ct. App., 2012). 
 
Discrimination

Age


71-year-old lifeguard should not have been let go
.  A county will pay $65,000 in back pay and revise its practices in settlement of an age discrimination case by a 71-year-old employee with 50 years of lifeguard service.  Lifeguards are required to take an annual two-part swim test (50 yards and 200 yards).  The lifeguard did not pass and was allowed to retest.  He was suspended for the failure.  He passed the 50-yard swim, but was suffering an injury that day.  He wanted to do the 200-yard swim.  He was told no, but that he could do it a week later if he had a doctor's note that he was OK to swim.  He was kept on unpaid suspension.  Then before the week was over, he received a discharge notice for being unqualified due to failing the test.   He presented a doctor's fitness note, but was not allowed to take the 200-yard test because he was already terminated.  The EEOC sued on his behalf.  The evidence showed that young lifeguards failed the test more than once.  However, they were not suspended.  They were allowed to complete both retests and were allowed to continue to work as they continued to retake the test until they passed.  EEOC v. Naseau County Dept. of Parks (E.D. NY, 2012). 
 

Sleeping on safety-sensitive job overcomes age discrimination case.  An employee, over the age of 40, responsible for the operation and safety of a VA hospital's gas and electric heating operations was found sleeping on the job, unresponsive.  (He claimed he was "relaxing" and not actually asleep when the manager entered the area.)  He was fired.  He filed an age discrimination case, alleging the manager had made a prior statement about wishing several older workers would retire, and thus, the discharge must have been motivated by age.  The court ruled that the manager's statement was a "stray remark," unconnected in time or context with the sleeping incident.  Even if the comments had been more serious, the employee's dereliction of duty in a safety sensitive position which could harm the safety of patients was ample ground to warrant a discharge.  The employee's actions outweighed any prior age related comments.  Vasbinder v. Security of Veterans Affairs (3rd Cir., 2012). 

 
 

Race/National Origin

 

Too many obstacles to showing pay discrimination.  A university professor alleged discrimination in pay based on race and national origin, Black and Nigerian.  He was the lowest paid professor in the Department.  It was true that all White professors were paid

more.  Since he had the lowest pay, all others were paid more, including African Americans.  The Department Chair who set the pay was Black and from Ghana.  This is why the plaintiff alleged national origin discrimination as well.  However, there were two other Black Nigerian professors in the Department who were paid higher than the plaintiff and higher than some of the White professors.  The plaintiff could show no pattern or basis of race or national origin discrimination.  He then argued that the other two Nigerian professors were not of his Ibo tribe but of different tribal groups.  Thus, the national origin claim should still be viable.  The court declined to interpret Title VII national origin as including regional or ethnic groups within a foreign country (just as courts have refused to consider cases based on regional/cultural differences within the U.S.).  Onyiah v. St. Cloud State University (8th Cir., 2012).  [Courts have allowed Title VII national origin cases where members of one Native American tribe have sued businesses owned or managed by members of another tribe.  This is because federal law and treaties specifically define these tribes as "sovereign nations."]

 

Sex

 

Pregnant firefighters entitled to equal treatment.  A municipality has settled a discrimination case brought by the Justice Department.  The fire department policy denied pregnant firefighters' requests for light duty during the first trimester.  However, it routinely granted light duty requests of male firefighters who had non-job-related injuries or short-term medical conditions.  Then the Department policy required pregnant firefighters to leave duty in the second trimester, whether or not they could physically and medically continue to do the job.  In settling the case, the Department will change its policies and agree that "decisions about how and when to restrict a pregnant woman's work duties should be made by the woman and her doctor, and pregnant women should be treated the same as other people who are similarly able or unable to work."  United States v. Davie, Florida (S.D. Fla., 2012). 

 

Prison system's physical fitness test invalid.  The Massachusetts correction department will pay nearly a million dollars, hire and award retroactive seniority to 30 women who were denied prison guard jobs due to an invalid pre-employment physical fitness test.  The test had an adverse impact:  96% of men passed but only 55% of women.  Adverse impact is not automatically illegal; it is "suspect."  Once there is an adverse impact in an employment selection process, the employer then has the burden of proof to show "validity" that the test actually measures necessary skills for the job, at a job-related level, and there are not valid alternatives to measure the same skills which do not have such an adverse impact.  The state decided to settle rather than to attempt to show validity of the test.  United States v. Massachusetts (D. Mass., 2012). 

 

Disability

 

Wrong test results in liability for construction company and its client.  A construction company had a project at a power plant.  The power company insisted that all of the construction company's equipment operators pass the U.S. Department of Transportation physical examination in order to work on its property.  An end loader operator who had previously worked successfully for the construction company could not pass the DOT test and was not offered a job.  He had epilepsy but had been seizure-free for many years.  However, the DOT standards automatically reject anyone who is taking epilepsy medication regardless of their actual seizure-free history.  The resulting case was not a challenge of the DOT rules; federal rules are "the rules."  However, DOT certification is not required for end loader operators.  The DOT rules do not cover this sort of operation.  So the power company was imposing an invalid requirement, the wrong test, for the job.  The construction company was liable because it bought into its client's requirement to use an invalid, wrong test to control its own hiring process.  Both companies were liable and agreed to settle, paying $50,000 and other relief to the equipment operator.  EEOC v. Garney Construction Co. and Georgia Power Co. (N.D. Ga., 2012). 

 

DOT rules prevail; company not required to downgrade truck to accommodate driver who could not pass federal requirements.  A major Sarah Lee distributor upgraded its delivery fleet to larger trucks which were covered by the federal DOT rules.  A driver had a prior seizure and heart condition.  He had an implanted defibrillator which would start his heart if it happened to stop again.  He successfully drove the smaller trucks until the company replaced them all.  The DOT would not grant him a license for the larger trucks due to his medical condition and defibrillator.  He asked for the accommodation to drive a smaller non-DOT qualifying truck.  The company stated it no longer had such trucks and terminated the employment.  The driver sued.  The court found his request was not reasonable because it would require the company to repurchase a truck it no longer needed and to retrograde to a less effective, more expensive delivery system which it had replaced.  The company could not ignore the DOT rules.  Unable to be licensed, the driver was not a "qualified person with a disability."  He was ineligible for the position.  Thompson v. Heiners Bakery (W.D. Va., 2012). 

 

Montana rules that obesity is a disability.  In another of a small but growing number of cases, the Montana Supreme Court has found that obesity, without any underlying medical or other factor, is in itself a disability under the State Human Rights Act.  This prohibits discrimination and requires reasonable accommodations.  Though this was not a federal case, the Montana Court indicated that it considered the ADA Amendments Act and the EEOC Guidelines in its decision.  BNSF Railway Co. v. Felt (Mont. S.Ct., 2012).
 

Family and Medical Leave Act

 

Filling prescriptions is not medical treatment.  Employees who are late or take time off from work to fill a prescription or to pick up a prescription refill at their clinic are not protected by the FMLA.  This is not "medical treatment" and can be done at any time, outside of work hours.  An employee with multiple non-FMLA attendance issues was fired when his last unexcused absence was to get a prescription refill.  He sued under the FMLA, and the court dismissed the case.  Jones v. C&D Techs, Inc. (7th Cir., 2012). 

 

Unemployment Compensation


Refusal to sign acknowledgment of letter of discipline is valid grounds for discharge--or not
.  An employee was issued a written warning for poor performance.  He was asked to sign under a "I have read and received a copy of this form" line.  There was also an area for "employee's statement" of any disagreements.  He refused to sign.  He was told a signature did not mean agreement, only receipt.  He still refused.  He was told refusal was insubordination and grounds for discharge.  He was then fired for further refusal.  He was then denied Unemployment Compensation.  The UC examiner and the appeals court held that the discharge was for intentional acts, violation of a valid direct order.  In fact, the opinion was that he voluntarily chose to terminate his employment when he turned a minor warning into a major refusal to follow clear orders.  Kierstead v. LIRC (Wis. Ct.App., 2012).  Be aware that simple refusal to sign is not enough.  The court warned that the employer has to clearly (in this case in writing) inform the person that signature means only receipt; it does not mean admission or agreement with the charges.  The employer should inform the employee of the right to disagree and have a written disagreement and employee's version of the situation placed into the personnel file. 

 

 

 

[For additional information, see www.boardmanclark.com.  The Reading Room has the article The Importance of Creating and Maintaining an Electronic Records Management Process.  Other publications on the website are the Employment Benefits Newsletter, the Municipal Law Newsletter and the School Law Newsletter.]

 
Posted 8/10/12

EMPLOYMENT LAW UPDATE

July 2012

by Bob Gregg

rgregg@boardmanclark.com 
Boardman & Clark Law Firm
www.boardmanclark.com

 

LEGISLATIVE AND ADMINISTRATIVE ACTION

Department of Labor abandons rules on farm child laborDOL has announced its intent to cease development of new rules limiting the agricultural work which can be done by those under age 16. The rules would have limited the "parental permission exemption" and was intended to reduce agricultural injuries among minors. The proposed rules were met with such an onslaught of opposition from the agriculture and farm industries that the effort has been abandoned. DOL states that it will work with the Department of Agriculture to create an educational program on farm safety for minors instead. 

Pregnant Workers Fairness Act introduced. Democrats in the U.S. Congress have introduced HR-5647 which would require reasonable accommodations of pregnant employees. The current Title VII pregnancy provisions prohibit discrimination, treating pregnant employees differently or stereotypically. The proposed law would require employers to additionally provide accommodations to enable employees to continue working if the pregnancy created restrictions or difficulties in job performance. This is one of several "pro-women" bills being introduced by Democrats during the pre-election period to ostensibly force Republicans to have to make a "pro" or "anti" women's rights vote. 

Congress Gives and Takes Away

Protecting Older Workers Against Discrimination Act proposed. In a bipartisan effort, Senator Kohl (D-Wis) and Senator Grassley (R-Ia) are co-sponsoring the POWAD Act (Bill S-2189). The senators find that the long-term unemployment rate for those 55+ who are actively seeking employment is more than double the rate of other Americans. The proposed bill would alter the tougher burden of proof imposed by the Supreme Court in Gross v. FBL Financial Services (2009). The Act would bring age discrimination cases in line with the Title VII proof standards and make it easier for plaintiffs to show discrimination. 

 House to kill funding for EEOC's age discrimination rules. Republicans have voted to prohibit any funding for the EEOC to implement its new ADEA rules. The rules are designed to conform to the U.S. Supreme Court's Smith v. Jackson and Meacham v. Knowls Atomic Power decisions which placed a burden on employers to prove "reasonable factors other than age" (RFOA). The Representatives expressed the view that the rules will create more expense in the EEOC process for businesses. Of course, whether the EEOC uses the rules or not, the Supreme Court decisions do not change. The ultimate burden of proof is the same. So, defunding the rules simply delays the issue; the employer will still have to follow the RFOA standard when litigation is commenced. 

LITIGATION

The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).

U.S. Supreme Court - Affordable Care Act

National Federation of Independent Business, et al v. Sebelius. The U.S. Supreme Court ruled on challenges to the constitutionality of the Affordable Care Act. It generally upheld the law, finding the individual mandate was constitutional. The requirement that states would lose all Medicaid funding for failure to comply with the law was limited. For a copy of the opinion, see http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf. The opinion leaves the law intact. Employers should monitor guidance and ensure that their health plans comply with the Affordable Care Act and the requirements which continue to phase in over the next years. This decision keeps the Affordable Care Act and its eventual outcome center stage in election year politics. Election ads and distortions are already appearing. [For more accurate information, request the Boardman & Clark Employment Law Newsletter by Attorney Cindy Van Bogaert or contact Attorney Van Bogaert at cvanbogaert@boardmanclark.com.] 

Family and Medical Leave Act

After-the-fact remedy and liability. A truck driver applied for FMLA but was denied due to being five hours short of the required annual hours to qualify. He was terminated while on medical leave due to not having FMLA. Prior to this, the driver had received a suspension, which he grieved. The suspension grievance proceeded, even though he was terminated. The arbitrator ruled that the suspension had been improper and restored the suspension days and pay. Then the arbitrator ruled that those days should count as hours worked. So now the driver was eligible for FMLA, retroactive to the time of his original request. Therefore, his termination was also without proper foundation. He was awarded all FMLA remedies of reinstatement, full back pay, etc. A grievance over a small suspension turned into a major liability. Sysco Food Services-Chicago & Teamsters Local 710 (2012). 

Fair Labor Standards Act

Mall sweep for child labor: first of a new enforcement program. Usually the enforcement agencies investigate a specific business. Recently, though, the Department of Labor targeted the entire Jersey Garden Shopping Mall for a child labor investigation. It came in and inspected every store. It assessed several thousands of dollars in penalties. The biggest violations were for allowing 16 and 17 year olds to operate the mall trash compactor. This is a prohibited, unsafe activity for non-adult employees. In announcing the findings, DOL stated that it will be conducting other "concentrated enforcement" efforts focused on shopping malls and other child labor intensive venues around the country. 

Walmart pays $5.3 million to settle misclassification claim. The Department of Labor determined that over 4,500 vision center managers and asset protection coordinators were misclassified as salaried exempt when their duties were actually hourly non-exempt. The "managers" did not meet the management criteria, and the asset protection employees did not meet the administrative exemption criteria. The settlement included $4.83 million in back overtime wage payments to the employees and $463,815 in penalties paid to the DOL (out-of-court settlement). 

Discrimination

Conviction Records

Turn-a-bout is fair play: EEOC sues employer, then must defend its own practices. In EEOC v. Kaplan Higher Education (N.D., Ohio), the U.S. Equal Opportunity Employment Commission sued an employer alleging its practice of credit checking certain job applicants had a discriminatory impact on certain minority applicants. Then in the discovery process, Kaplan demanded that EEOC produce all information on its own credit check practices, all positions it checked and the standards it uses to determine which jobs warrant a check. The EEOC objected, claiming that what the federal government does is irrelevant to the case at hand. The court ruled for Kaplan. It found that the EEOC's own internal standards are directly relevant as to what is and is not a valid, non-discriminatory reason for credit checks on applicants. If the EEOC itself credit checks job applicants, it should not be able to hold companies to any higher standard than it applies to itself. The defendant company is entitled to have information to show whether or not its practices are any better or worse than the EEOC's.  

Disability 

Long-term light duty should not have been changed.  A Walgreen's beauty department employee's spinal stenosis musculoskeletal disorder limited her ability to lift over five pounds, and limited pulling, bending or stooping. Other employees chipped in to help when this work was necessary. For over seven years the employee received excellent evaluations for her overall performance. Then a new manager arrived. Upon learning of her limitations, he stated that she was "obviously disabled" and would be a liability. He took her off the schedule for not being able to do the essential physical duties of the job, thus forcing her into retirement. In the ensuing ADA case, Walgreen's presented evidence that lifting, bending, stooping, etc., were essential job functions. However, in this particular situation, the evidence showed that years of accommodation had enabled excellent function without hardship on others or on the overall operation. So, Walgreen's "essential functions" arguments were not compelling when measured against a long-term successful accommodation. Barlow v. Walgreen's (MD, Fla., 2012).  

Race/Disability 

Race discrimination leads to disability case. An African American Electronic Tech was allegedly subjected to a period of racial harassment, discriminatory treatment and then retaliation after he complained. As a result, he developed a stress and anxiety disorder. His doctor advised that he could not return to work in the environment which produced the disorder. The Technician requested a transfer to an open position in another location but was denied. He sued under the ADA for failure to accommodate. The court found sufficient evidence for a disability discrimination case. Transfer to an open position is a well recognized form of reasonable accommodation, and the employee could have accomplished the functions of his position at another location "where he could escape the racially offensive-environment" and not exacerbate his stress and anxiety disorder. Lucas v. City of Philadelphia (E.D. Pa., 2012). This case is a good illustration of how bullying or discriminatory harassment can create additional areas of liability. This case was not about the original racial discrimination; instead it was about the resulting disability. In fact, the bullying or harassment constructive discharge case may be harder to prove, while an ADA case has a lower standard required for the plaintiff. 

Religion 

Perceived as Jewish, plus harassing supervisors change story when caught on video. In Cowher v. Carson & Roberts (N.J. Superior Ct., 2012), a non-Jewish truck driver's religious harassment case, because he was perceived to be Jewish, was found valid. He alleged a pattern of highly offensive anti-Semitic remarks, overt and highly profane slurs directed at him and anti-Jewish jeers in general. He alleged that he protested to higher management and informed the harassers he was not Jewish. They did not believe him, and the company took no action to stop the harassment; in fact, it got worse. The two supervisors involved adamantly denied any such behavior. They claimed the employee was fabricating the issue. However, they had to change their stories when the trial discovery process revealed video/audio tapes of them engaging in the behavior. They had to admit they were untruthful in their denials -- they had engaged in the anti-Semitic behaviors. [For more information on religious discrimination or "perceived as" discrimination, see the article Religion in the Workplace at BoardmanClark.com Reading Room.]

Muslim convert wins $5 million -- state gets a windfall -- company had no one in charge. An employee converted to Islam. Thereafter, she was subjected to mockery of her head covering, negative emails on Islam, repeated Bible quotes and Christian literature being forced upon her by those upset by her conversion, and a supervisor pulling the scarf from her head in meetings. Her complaints to HR, located out of state, went unanswered. She sued in state court and won $5.12 million. Only $120,000 was in actual pay damages. $5 million was in punitive damages. The court faulted the company because, "There was really no one in charge of the rule-breaking harassers. The company has human resource people located in different cities, and an investigator in Texas, and it was just a recipe for disaster." Under Missouri law, one-half of all punitive damages goes to the state treasury. The employer's failure to act may balance the state's budget. Bashir v. S.W. Bell Telephone Co. (Mo. Cir. Ct., 2012). 

Sex

Unequal severance can be sex discrimination. An HR manager's position was eliminated after 25 years of service. She was offered a three-month pay and benefits Severance and Release. She objected that male managers received "sweetheart" severance deals with much larger payouts. When her severance was not increased, she rejected the offer, was laid off without separation pay, and then sued under Title VII. The court found that though severance is not a guaranteed form of compensation, it does qualify as an employment action under Title VII. A disparity in separation packages based on gender can be actionable discrimination, and the plaintiff can sue for the greater amounts given to the laid off male managers, plus her attorney fees and other compensatory damages allowed under Title VII (similar actions could be maintained under any of the other discrimination laws). Gerner v. County of Chesterfield (4th Cir., 2012). 

Sexual Orientation 

Gay worker fired for minor email violation can sue state of Kentucky. A gay state employee and a heterosexual employee both violated their department's Internet usage policy; he in a minor way; she in a major way. He was fired; she was not. The gay employee engaged in email referring to his gay partner, used some mild homosexual slang, and exchanged in what the court found to be friendly banter. The content was mild, non-overt, about being gay. The heterosexual employee circulated a series of email photos entitled "Pampered Chef" which showed nude male models holding kitchen utensils. Management was aware of both infractions, but chose to launch a full scale investigation of only the gay man's violations. The court found this "inexplicable" since the heterosexual woman's emails "easily surpassed in indecency" anything the fired employee had done. There was a clear prima facie case of discrimination. Stroder v. Commonwealth of Kentucky Cabinet for Health and Family Services (W.D. Ky., 2012).  

National Labor Relations Act - Arbitration 

Not just joking -- banter in front of residents warranted discharge. Two aides at a nursing facility turned a discussion of a work issue into banter. They had a several-minute exchange with humorously caustic or sharp remarks in the presence of the unit's residents.  One remark included profanity and an obscenity. The obscene aide was fired. The arbitrator upheld the discharge. Obscene, offensive language violated the facility's handbook policies, and such language in the presence of the residents was a serious disregard for their welfare. Communicare Health Services & SEIU #199, Health Care & Social Services Union (2012).  

"Thinking about" is not enough. A medical technician was under stress due to her role as a union steward. She met with a supervisor, stated that she had rough-drafted a resignation letter and was thinking about quitting to escape the stress. She wanted to discuss her situation and thoughts. The supervisor kept the letter. The next day the technician was informed that her resignation was accepted, and she was promptly ushered out of the workplace, against her objections. An arbitrator ordered reinstatement and pay. An undated, unsigned draft letter does not constitute a resignation. U. Mass. Memorial Medical Center & United Food and Commercial Workers #1445 (2012).  

[For additional information, see www.BoardmanClark.com. The Reading Room has the article Employer Regulation of Social Networking. Other publications on the website are the Employment Benefits Newsletter and the Municipal Law Newsletter.] 

REV 07/24/2012
 
 
 
 
     
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