June 2009 5-29-09.pmd

C LABOR LAW
PREGNANCY DISCRIMINATION
o Two federal appeals courts considered, In a controversial decision, the U.S. Su- in separate cases, the issue of whether de- cisions by the current National Labor Re- and enforceable but reached different con- employee to recover for pre-PDA discrimi- m clusions. The NLRB consists of five mem- nation in the calculation of pension benefits.
bers and groups of three review and decide The Court held an employer’s differential real question of whether they have the au- discriminatory at the time; thus, it could not m thority to act at all. The stakes are rather form the basis of a claim even though the significant: if the NLRB has no authority to pension benefits were actually paid out af- act, none of its decisions have any force.
Quorum requirements
employer utilized a pension calculation plan e Most groups of officials – city councils, based on seniority which treated pregnancy commissions, the United States Senate, must have a “quorum” of members present in seniority system was calculated using years order to act. At the NLRB, the quorum for of service and excluded un-credited leave time, including some, if not all, time spent n as three members. However, the statute by female employees on pregnancy leave.
see “divided,” page 2 see “benefits,” page 2 RETALIATION
T Increased scrutiny may lead to liability proximity between the employee’s filing of for over 30 years. The employee claimed a cient to support a claim for retaliatory dis- employee at his jobsite. The employee was In this issue: Page
Appeals for the 6th Circuit. In so ruling, terminated, but the union intervened and en- the court rejected the employer’s argument it had not engaged in retaliatory action be- agreed to comply with all company rules or prior to the termination by not terminating be subject to immediate termination for the him when it had the opportunity to do so.
The court refused to adopt such a “favor- One year later, the employee was involved able treatment” argument because an em- ployer could then insulate itself by staging direct order. Again, the union stepped in and prevented the employee’s termination.
Bruce Buchanan
see “scrutiny,” page 3 from “divided,” page 1 also stated the NLRB could delegate its powers to a group sult. It looked at precisely the same language in the stat- of three members and two members of a group of three, ute but determined that since there had been a lawful to which power had been delegated, constituted a quo- delegation of Board authority to three members, the re- rum. This allows the NLRB to review cases in groups of maining two members were a quorum and had the au- three and still render a valid decision if one of the three thority to act. The 7th Circuit court also noted this view members disagreed with the decision of the other two.
was in line with two similar cases, one from the 1st Cir- Members of the Board are appointed by the president, cuit challenging precisely the same issue, and one 27 years and confirmed by the Senate, and only remain on the ago from the 9th Circuit, which had upheld a NLRB deci- Board for their term. On December 16, 2007, the sion even though one of the three members, who had de- Chairman’s appointment expired, leaving four members cided the case, before he had left the Board (but the Board on the Board. With the appointments of two other mem- still had more than two members total).
bers set to expire, the Board delegated all their authorityto a three-member group –clearly permitted by law – with What’s next?
the theory that the two members remaining after Decem- Given the decisions reported herein, whether a NLRB ber 2007 would constitute a quorum of the three-member decision against a company (or a union) would be upheld group and would be able to issue decisions. Since Janu- depends entirely on to which court the NLRB decision ary 2008, the NLRB has been operating with just two was appealed: in the 1st and 7th Circuits, the NLRB deci- sion would be enforced; in the D.C. Circuit, it would not.
Following the decisions, the NLRB issued a statement A tale of two cases
praising the decisions of the 1st and 7th Circuits, pointing The appellate court in Washington D.C. ruled a two- out the same issue was before virtually every other fed- member NLRB decision was without force. Its decision eral appeals court, and stating they had asked the D.C.
was based on a lengthy examination and linguistic analy- Circuit to reconsider it ruling. The Board also strongly sis of the law establishing the NLRB, particular a portion implied it would take the issue to the Supreme Court, if that read, “…three members of the Board shall, at all times, constitute a quorum of the Board…” The court Even if the D.C. Circuit decision stands, it does not ruled the words “at all times” indicated the “default” Board necessarily indicate a free-for-all on labor law violations.
quorum requirement, having 3 members, must be satis- President Obama has already indicated two people he fied at all times. Therefore, any time there were less intends to nominate to the Board, though he has yet to do than three members of the Board, the NLRB had no statu- so. Once the Board has at least three members, it can tory authority to act and any decisions issued are without eliminate any question about the enforceability of its prior decisions by simply retroactively reaffirming them.„ The other court considering the issue, the U.S. Court of Appeals for the 7th Circuit, reached the opposite re- from “benefits,” page 1 This system resulted in less pension credit for women for The Supreme Court looked to the statutory language pregnancy absences than for other medical leave.
of Title VII and noted seniority systems receive special In 1976, the Supreme Court held this type of differen- treatment. Under the statute, different benefit standards tial treatment was lawful and did not constitute sex-based resulting from a bona fide seniority system are permis- discrimination within the meaning of Title VII. Thereaf- sible as long as there is not an intent to discriminate. Here, ter, Congress passed the PDA to specifically prohibit this because the different standard for pregnancy leave was treatment and require employers to treat pregnancy-re- lawful and non-discriminatory under the law at the time, lated conditions the same as other medical conditions.
and because the PDA did not apply retroactively, the se- On the effective date of the PDA, the employer niority system did not violate Title VII.
amended its pension system to treat pregnancy absences Additionally, the Court concluded, the Lilly Ledbetter like other temporary disabilities under its seniority sys- Fair Pay Act did not provide the women any relief be- tem; however, it did not alter the credit given for pre- cause there was not a discriminatory compensation deci- PDA pregnancy leave. Accordingly, females, who had sion. Under the Fair Pay Act, an unlawful employment pregnancy absences prior to the PDA, received a smaller practice occurs whenever an individual is affected by the pension benefit due to the un-credited leave time.
application of a discriminatory compensation decision.
Four women filed a lawsuit in federal court claiming Here, the Court held the compensation decision at issue discrimination under the PDA. The District Court, as was the decision to award seniority credit, and was not well as the 9th Circuit Court of Appeals, held a violation discriminatory because it occurred prior to the PDA.„ from “scrutiny,” page 1 However, the employee was suspended for 30 days.
The district court dismissed the case, finding the em- While he was on suspension, he filed an age discrimina- ployee could not establish retaliatory discharge because the increased scrutiny was reasonable under the circum- When the employee returned to work, he claimed his stances. The appellate court, however, disagreed. The supervisors greatly increased their scrutiny of his perfor- appellate court found the increased scrutiny, combined mance and harassed him more than before he had filed with the three-month temporal proximity to the his charge. The employer claimed the employee’s per- employee’s filing of an EEOC charge, were sufficient to formance was deficient and conducted a meeting with establish a prima facie case.
the employee and the union representative to discuss the In addition, the court noted the circumstances in which issue. The employer claimed it could have fired the em- the employee alleged the employer was making fun of ployee at that time, but decided to give him a reprieve his charge as further evidence of retaliatory action. The again. At that time, the employee also claimed he over- court also rejected the employer’s favorable treatment heard his supervisors making light of his EEOC charge.
argument. The court concluded establishing such a pre- Less than a month later, the employee was terminated, cedent could inappropriately insulate employers from li- yet again. The employer claimed he had disobeyed a ability because employer’s could stage an incident, then direct order from a supervisor and cursed at the supervi- wait for a fortuitous chance to materialize. Accordingly, sor when the supervisor demanded he be escorted from the court expressly held an intervening act of favorable the building. However, the employee claimed he had com- treatment did not preclude an employee’s claim of retal- plied with the supervisor’s order and not engaged in in- WAGE AND HOUR
California labor code does not bar mandatory tip-pooling Tip-pooling, a practice where tips left by customers at agent shall collect, take, or receive any gratuity or a part restaurants are shared among certain employees, is not thereof that is paid, given to or left for an employee by a illegal under the California Labor Code, according to a patron, or deduct any amount from wages due an em- California Court of Appeals. The court found the lan- ployee on account of a gratuity, or require an employee guage of the Labor Code and public policy considerations to credit the amount, or any part thereof, of a gratuity merited the finding that tip-pooling is legal.
against and as a part of the wages due the employeefrom the employer.” Moreover, the statute says, “ev- Restaurant chain has mandatory tip-pooling policy
ery gratuity is hereby declared to be the sole property of The class action representatives were employed by the the employee or employees to whom it was paid, given, company as servers and filed a class action on behalf of all persons who are, or had been, employed as servers The court discussed prior cases that held tip-pooling during the four years prior to the filing of the complaint.
was not prohibited by the labor code. The first case The company had a mandatory tip-pooling policy by which involved a tip-pooling system where servers were re- its servers were required to contribute a portion of their quired to share their tips with bussers. The court in that tips to bussers, kitchen staff, bartenders, and dishwash- case found the labor code was silent as to the issue of ers. The employees did not contest the sharing of the tip tip-pooling and if the legislature wanted to bar the prac- pool with bussers. The employees alleged this policy was tice, it could have easily done so. It further reasoned in violation of California Labor Code because the statute restaurant industry’s custom and practice had long ac- prohibited tip-pooling benefiting employees who do not commodated the tip-pooling practice. In discussing the deliver direct table service. The trial court dismissed the policy rationale behind this practice, the court reasoned lawsuit. The employees subsequently appealed.
the customers did not consciously indicate who the tipwas to go to, where multiple employees provided ser- Language of statute and policy allow tip-pooling
vices to the customer. Further, an employer-mandated Under the mandatory tip-pooling policy, some of the tip-pooling policy, as long as it is fairly determined in ad- tips received by a tipped employee were shared with other vance as to who gets what share, encourages all em- employees at the business. However, this raises the ques- ployees to give the best possible service as they will share tion of which other employees may participate in a tip pool. California Labor Code provides “no employer or see “tip-pooling,” page 4 LABOR LAW
Failure to show up to work caused termination The National Labor Relations Board (NLRB) upheld The ALJ concluded this warning violated the National an Administrative Law Judge’s (ALJ) ruling upholding Labor Relations Act (NLRA), because it infringed upon the termination of an emergency medical services dis- the employee’s rights to engage in union activity. The patcher, despite the dispatcher’s claim she had been ter- ambulance service was ordered to expunge the warning minated because of anti-union animus.
The dispatcher had worked for an ambulance service since 2001, and had been an excellent employee for much Discharge, however, was permissible
of that time. Eventually, the dispatcher joined a union Not long after the conversation at work, the employee representing the ambulance service’s employees. More- missed a shift, causing an inadequately trained co-worker over, she became the union’s recording secretary. How- to have to cover the emergency medical response line.
ever, in the next few months, there were two incidents The dispatcher claimed to have overslept, misplaced her at work leading to the dispatcher’s termination.
keys, and forgotten to charge her telephone. She wasterminated for lying about the events the day she missed First disciplinary incident violates the NLRA
a shift. No one believed her account – not the ambulance First, the dispatcher got into a conversation with an- other dispatcher, who was also involved with the union, The ALJ stated the earlier warning combined with the during a shift change. The two talked about the ongoing termination was enough to permit an inquiry into whether union negotiations, and this led to the dispatcher signing the termination was also a violation of the NLRA. How- out from work late. Their conversation was overheard ever, he concluded, and the NLRB agreed, the ambu- by another employee, who was not represented by the lance service rebutted the charges by demonstrating it union, and that employee complained. When the supervi- would have discharged her even in the absence of any sor addressed the complaint, he warned the dispatcher protected activity. The implausibility of her story, and the about the conversation, explaining that talking about sen- dangers posed by inadequate staffing of the dispatch ser- sitive subjects, such as the union, was the same as sexual vice, were more than adequate to justify the ambulance harassment and was against federal law.
service’s reluctance to retain the dispatcher.„ from “tip-pooling,” page 3 On July 24, 2009, the federal minimum wage will in- The employees argued the prior cases use of the term crease to $7.25 an hour. Illinois and Kentucky are in- “direct table service” limited tip-pooling to servers and creasing their state minimum wage to $8.00 and $7.25, bussers. However, the court stated such a reading is too narrow an interpretation of the previous case. The courtfound so long as the employee was a busser, server, cook,dishwasher or bartender, and participated in the chain ofservice, such an employee was providing a service tothe customer. As a result, those employees may receivetheir fair share of the tip. So long as the tip-pooling policyexcluded employers and management, the policy was “Bringing Home the Bacon”- There is an Old English custom whereby married couples who were willing to swear upon a Biblethat they hadn’t fought in a year were rewarded a side of bacon for Conclusion
their feat. Yet, whether that custom gave us our current meaning for The court’s decision that tip pooling is authorized by bringing home the bacon is doubtful. Most will tell you that “bringing statute is consistent with restaurant industry practice.
home the bacon” is American in origin, and that it dates back to thegreased pig contests of old county fairs. As the catcher was the Furthermore, given the fact that many employees, who keeper, the expression speaks for itself. participate in the provision of services to customers, wouldnot otherwise receive tips, the court’s ruling is a one of Reprinted with permission of Scribner, an imprint of Adult Publishing Group from I DIDN’T KNOW THAT by Karlen Evins. Visit www.karlenevins.com.
EMPLOYEE POLYGRAPH PROTECTION ACT
Employee’s rights not waived by agreement to arbitration An employee sued his former employer alleging a vio- The employer argued the employee had agreed to sub- lation of the Employee Polygraph Protection Act (EPPA), mit any legal claims stemming from his employment for because the employee claimed the employer required him private mediation and/or arbitration. This arbitration to take a polygraph test. The EPPA provides it is unlaw- agreement, the employer maintained, operated as a con- ful for an employer to require, request, suggest, or cause tractual waiver of the employee’s right to bring suit on any employee or prospective employee, to take a lie de- tector test. In addition, an employer may not use, accept, The court held the EPPA grants the right of affected refer to, or inquire concerning the results of an employee’s persons to bring suit in federal court for an alleged viola- polygraph test, or discharge any employee on the basis tion of the statute. The rights and procedures provided of the results of any lie detector test. Exceptions to the by the EPPA may not be waived by contract or other- EPPA permit a polygraph examination under limited cir- wise, since the statute expressly prohibits the waiver of cumstances provided certain statutory procedures are the procedural right to bring suit in federal court for an The terminated employee provided sparse details sur- The court reasoned even if the right to sue under the rounding the polygraph test and dismissal. It is sufficient EPPA could be waived by an otherwise valid arbitration to state a claim under the EPPA to allege the employee agreement, dismissal of the claim would not be the proper was required to take a polygraph test, and the employer remedy. The Federal Arbitration Act requires a district referenced the results of the polygraph exam and used court, on the application of one of the parties, to stay any the results as the basis for termination. In addition, the action subject to arbitration until the arbitration has oc- employee alleged the employer failed to provide him with curred in accordance with the terms of the agreement.
relevant documents necessary to take advantage of cer- Since such action to stay did not occur, the court held the tain exceptions to the EPPA’s prohibitions.
WORKERS’ COMPENSATION
The Tennessee Supreme Court held an injury that oc- At the time of the last incident, neither the employer curs at work does not, in and of itself, dictate the injury nor the driver filed a workers’ compensation claim, but is compensable. In an effort to bring uniformity and clari- upon returning to work, the driver asked for a workers’ fication to the workers’ compensation case law, the court compensation claim to be filed. The employer refused to affirmed an aggravation of a pre-existing condition re- file the claim because it believed the injury was not work- sulting in increased pain, but not an anatomical change, related. Thereafter, the driver sued the employer for The employee was a delivery truck driver for a food The trial court denied the driver’s claim, finding the distributor and had several non-disabling accidents at driver did not present any evidence showing the injury work. The first accident occurred in September 2002 was “work related.” In addition, the trial court noted none when a tray from his truck slid off a rack and struck him of the six doctors who examined the driver could tie his in the head. The driver did not suffer a permanent injury injury to his work in anyway other than time. Thereaf- as a result of this accident and did not seek workers’ compensation benefits. The second injury occurred in The appellate court upheld the trial court’s decision January 2003, when the employee slipped off the bumper finding the timing of the driver’s injury alone does not of his truck and fell on his left side. As a result of this lead to compensability. The court then reiterated an injury, the driver required surgery for three hernias. The increase in pain alone does not present compensable evi- employee received workers’ compensation benefits for dence of a work-related injury. A compensable injury the second injury. Several months later, the driver was must be accompanied by an anatomical change. Here, making a delivery to a grocery store and, while stocking the driver could not present evidence that his head pain the shelves, felt an intense pain on the right side of his was accompanied by an anatomical change. Thus, the head, his ears rang and felt dizzy. The driver was taken trial court’s decision to deny workers’ compensation ben- to the hospital, where several physicians examined the driver, but could not make a specific diagnosis.
NON-COMPETE
Non-compete provisions require all or nothing An employer’s attempt to selectively enforce a non- could work for a competitor. The company refused to compete provision against one competitor was rejected release him and subsequently engaged in litigation over by the U.S. Court of Appeals for the 8th Circuit, where the competitor’s hiring of several of the company’s em- the language did not provide for partial enforcement.
ployees. As part of a settlement agreement, the com-petitor agreed, consistent with the non-compete provisions The non-compete agreement
of the employee’s and others’ agreements, not to hire A development director at an international packaging employees of the company for 18 months.
company entered into a confidentiality and non-competi- The company then offered to release the employee tion agreement with the company. The non-compete with a $40,000 severance package and an agreement not agreement prohibited the employee from working for any to enforce the non-compete provisions against any com- of the company’s competitors for 18 months after his petitor except the one whom the employee had asked to termination from the company. If the employee was un- work for – also the one subject to the settlement agree- able to find employment “consistent with his abilities and ment. The employee declined the offer and was termi- education solely because of the non-compete agreement”, nated a month later, in January 2005.
he would be bound by the provisions of the agreement The next month, the employee requested payment from only so long as the company made payments to him the company based on his inability to find work due solely equivalent to his base salary at the time of his termina- to the non-compete agreement. In support of his request, tion. As a condition of the payments, however, the em- the employee sent the company a jobs contact list and a ployee had to provide the company with a detailed letter from the competitor stating the competitor wished accounting of his “good faith and aggressive efforts” to to extend him an offer but was barred by the non-com- obtain employment and a sworn statement testifying that pete provisions. The company responded it would not despite his efforts, the non-compete agreement was the honor the requests because the competitor had a sepa- sole reason he could not find new work.
rate agreement under the settlement which prevented theemployee’s hiring. Thus, according to the company, it Employee wants to work for competitor
Several years later, the employee requested the com- pany release him from the non-compete provisions so he see “all or nothing,” page 7 SARBANES-OXLEY ACT
Ruling has preclusive effect on claim by terminated employee An employee brought an action under the Sarbanes- sexual harassment claim. Instead of detailing specific Oxley Act (SOX) after she was terminated. She claimed facts indicating age or sex discrimination, the employee salespeople falsified reports under corporate pressure argued she was fired for reporting the SOX violations based upon the unrealistic goals set by her manager. Her while unidentified younger and male employees were not employer indicated she had been terminated for falsify- ing sales calls, not for reporting her actions in falsifying The U.S. Court of Appeals for the 3rd Circuit upheld the sales call reports. Because the terminated employee the decision of the federal district court, which rejected failed to establish the justification for termination prof- the employee’s argument that Title VII and ADEA claims fered was pretextual, the employee’s SOX claim was were not adjudicated in the SOX proceeding and should rejected by the Administrative Law Judge (ALJ).
be considered as new claims. Although the employeecould arguably establish a case for age and sex discrimi- Employee pursued claims under Title VII
nation, the court granted judgment in favor of the com- Once the ALJ ruled against her, the employee had a pany because the ALJ’s ruling precluded the employee statutory right to appeal the final agency decision to a from challenging the company’s legitimate, non-pretextual U.S. Court of Appeals. The employee did not appeal the reason for firing her. The court agreed with the lower ALJ’s decision but pursued claims under Title VII of the court and held the explicit language in SOX precluded Civil Rights Act (Title VII) and Age Discrimination in consideration of age and sex discrimination claims aris- Employment Act (ADEA), arguing she was fired because ing from the same facts arising from reporting the SOX of her age and gender. In support of these claims, the terminated employee alleged her manager was motivated to retaliate against her because she had filed a previous BANKRUPTCY AND DISCRIMINATION
Sexual harassment claims dismissed in bankruptcy Employers should know an employee’s failure to dis- position either as a preliminary or a final matter. The close potential claims in a bankruptcy proceeding may be employer argued the employee’s statement in her bank- grounds for dismissing those claims. A Tennessee fed- ruptcy petition that she did not have any pending or po- eral judge dismissed an employee’s lawsuit for failing to tential claims was a contrary position to her later list her claims against her former employer as assets in In response, the employee immediately filed an The employee alleged she had been sexually harassed amended bankruptcy petition listing her claims and ar- by another employee while she was employed at the gued she did not take a contrary position, and, if she did, employer’s office. She filed a charge with the Equal it was inadvertent error. The employee’s attorney also Employment Opportunity Commission. Thereafter, she re- argued judicial estoppel should not apply because he was not involved in her bankruptcy case.
The employee filed for bankruptcy with a different at- The court rejected the plaintiff’s arguments and dis- torney. The bankruptcy petition did not list her EEOC missed her entire case as barred by her contrary position claims or her potential lawsuit against her employer as in her bankruptcy proceeding. The court noted the pur- required. The employee signed the petition and all sup- pose of judicial estoppel is to preserve the integrity of the porting documents under penalty of perjury.
courts and prevent parties from abusing the judicial pro- The bankruptcy court preliminarily accepted the cess through gamesmanship. The court looked to the tim- plaintiff’s bankruptcy petition, as well as the schedule of ing of the events, as well as the fact the employee had payments she proposed, and scheduled a bankruptcy sworn her bankruptcy filings were true and correct un- hearing. The day after the bankruptcy hearing, the em- der the penalty of perjury, and found no exceptions for ployee filed a lawsuit against her employer based on the inadvertence or mistake were available.
same claims she had asserted in her EEOC charge. The Finally, the court found the employee had failed to take next day, the employee belatedly filed an application with the requisite affirmative efforts to inform the bankruptcy the bankruptcy court to employ counsel for her lawsuit.
court of her error as required by controlling case law.
A month later, the employer moved to dismiss the Her belated amendment and her application to employ employee’s claims on the basis of judicial estoppel. Judi- counsel simply did not rise to the level necessary to over- cial estoppel prohibits a party from asserting a position come the application of judicial estoppel.„ contrary to one that the party has asserted under oath in a prior proceeding, where the court adopted the contrary from “all or nothing,” page 6 was the settlement agreement, not the non-compete pro- competitor. The court found the non-compete agree- visions, which barred his employment.
ment did not provide for partial release, and the company The employee accepted a position with another com- therefore could not choose to enforce the provisions petitor in October 2005. He then filed a claim for breach against only some of the competitors.
of contract against the company demanding payment for The company made several arguments that the em- the preceding nine months. The district court found in ployee did not fulfill his obligations even if the company favor of the employee, and the employer appealed.
was responsible for payments. Among these, the com-pany contended the employee was entitled to only one Agreement requires enforcement or none at all
month’s salary because he had submitted the necessary The appellate court upheld the district court’s finding documentation to prove his efforts to find work for only that the provisions were clear and unambiguous: the com- the first month. The court, however, found the company pany either chose to enforce the provisions or not, and if breached the agreement first by electing to enforce the it did, and the employee completed his conditions of at- non-compete provisions but refusing to pay pursuant to tempted employment, the company was responsible to those provisions. Once the company breached its duty pay the employee. Since the company said the employee to pay, the employee was no longer bound to comply with was not to pursue employment with the competitor, it the provisions either. He was, however, still due the was attempting to partially enforce the non-compete pro- visions. The settlement agreement was only consistent with this position – the reason he could not work for the LABOR LAW
Reputation harm must meet First Amendment standard First Amendment standard applies to all claims
In addressing the union’s request, the federal court looked to defamation law first. For defamation claims against “public figures” (which would include the em- ployer here), there must be proof that the challenged statements were false and the defendant made the statements knowing they were false or recklessly dis- regarding whether they were false. Although this case did not involve a claim for defamation, the Supreme Court has ruled when a company seeks damages re- sulting from speech covered by the First Amendment, ness. Because unions sometimes use illicit means in the the same proof standard applies even if the claim is course of corporate campaigns, employers will often re- spond with litigation to defend their rights. These law- Although the federal court acknowledged the rule was suits have led courts to examine the First Amendment “fraught with practical difficulty,” it stated any changes implications of corporate campaigns.
would have to come from the Supreme Court or Con-gress. In the meantime, anyone seeking to recover for Corporate campaign puts pressure on employer
damages caused to their reputation from another’s In a case before a federal court in Virginia, the judge speech would have to meet the higher burden associ- ruled the employer must show evidence of legal “mal- ice” in order to recover for harm to its reputation. The In this case, the employer complained about a tar- employer ran a pork processing plant, which employed nished brand name and about customers and potential over 4,500 hourly employees. A union had been trying customers becoming convinced the employer operated for over a decade to organize the plant’s employees an unsafe workplace, mistreated its workers and vio- without success. The union began a corporate campaign lated the law. In sum, the employer complained about in 2006, and shortly thereafter the employer filed a law- a loss of goodwill or a claim for reputational harm.
suit against the union claiming union wrongdoing as part The federal court ordered the parties to present evi- dence regarding the union’s knowledge about the ve- In large part, the employer’s lawsuit claimed the racity of the statements in its campaign. Thus, any union’s alleged wrongdoing, including deceptive trade damages in this case will have to wait until that issue practices and interference with business prospects, harmed the employer’s reputation, leading to lost prof-its. The union asked the court to bar those claims undera First Amendment theory.
Craig K. Agule is an attorney in the Litigation Section of King & Ballow. Mr. Agule received his law degree from the University Virginia School of Law. He earned his undergraduate degree from the University of Virginia, with a major ineconomics. Before coming to King & Ballow, Mr. Agule served as a Staff Attorney with the Fifth Circuit Court of Appealsin New Orleans, Louisiana. He is admitted to practice in Tennessee.
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EMPLOYMENT LAW
Statements made to unemployment agency is protected speech Statements made by an employer to the state unem- tunity to amend her complaint. After the employee ployment agency regarding an inmate’s suicide at a county missed the deadline to amend her complaint, the employer jail, constituted protected speech under the California filed motions to dismiss the defamation and Anti-SLAPP Anti-Strategic Lawsuit Against Public Participation stat- statute claims, which were granted. The employee ap- ute (SLAPP), according to a California Court of Appeals.
Inmate under supervision commits suicide
California’s Anti-SLAPP statute
The employee in this case was a psychotherapist whose California’s Anti-SLAPP statute is designed to pro- employer provided psychiatric services to a local jail.
tect people from lawsuits filed against them because they While working as a counselor, an inmate, over whom the exercised their right to petition the government or speak employee had some responsibility, committed suicide. Sub- out on public issues. Section 425.16 requires the court sequent to the inmate’s suicide, a dispute arose between to engage in a two-step process in order to determine the employee and management over who was respon- whether to grant a motion made pursuant to that statute.
sible for the inmate’s suicide. The employee argued cer- First, the defendant must have made a threshold show- tain managerial and institutional problems led to the ing that the challenged cause of action is one arising from employee’s suicide, as opposed to her conduct. When a protected activity – acts were taken in furtherance of the employee was terminated, she alleged she was told defendant’s right of petition or free speech under the her negligence had resulted in the inmate’s death. She U.S. or California state constitution. If the court finds further alleged such statements were communicated to a such showing has been made, it determines whether the state agency when she filed a claim for unemployment.
plaintiff has demonstrated a probability of prevailing on The employee subsequently filed a suit alleging defa- mation and other causes of action. She alleged her em- Section 425.16 defines “protected activity” to include: ployer defamed her by advising the unemployment agency (1) any written or oral statement or writing made before that she was responsible for the inmate’s death. The a legislative, executive, or judicial proceeding, or any employer moved to dismiss the complaint. The court other official proceeding authorized by law; (2) any writ- granted the motion, but allowed the employee the oppor- see “protected,” page 10 SEXUAL HARASSMENT
Employers can be strictly liable for any supervisor harassment The Illinois Supreme Court ruled under the state’s Hu- department investigated and discovered the supervisor man Rights Act, an employer can now be strictly liable had written the fraudulent letter himself. After the su- for sexual harassment by any of its supervisors, even if pervisor explained he meant the letter as a joke, the the harasser does not supervise the victim. This ruling is sheriff’s department suspended him without pay for four in contrast to court decisions under Title VII for hostile days, and urged the clerk not to take the matter any fur- environment harassment, which hinge on the harasser’s status as supervisor or co-employee of the victim. It is Despite the department’s urging, the clerk filed sexual also a significant departure from prior state court rulings harassment and retaliation claims against the sheriff’s which imposed strict liability on employers only for sexual department and the supervisor. Following a hearing, the harassment by an employee’s direct supervisor or a su- Illinois Human Rights Commission concluded the clerk pervisor in the employee’s chain of command.
had established sexual harassment based on hostile en- The employee was a sheriff’s department records clerk, vironment under state law. The Commission further found who complained a department supervisor, pressed him- the department was strictly liable for the supervisor’s self on her and kissed her, and asked her a month later if harassment because he was a supervisory employee, she would go with him to a motel for the night. This regardless of whether he had supervisory authority over ssupervisor did not supervise the clerk. Two months af- ter that, the clerk received a letter on official state public The department appealed, and the Illinois Appellate health department stationary stating she might have been Court reversed the Commission’s findings, based on the recently exposed to a communicable or sexually trans- fact that the supervisor was not the clerk’s supervisor.
mitted disease. Frantic, the clerk reported the letter to a see “liable,” page 10 friend in management at the department. Thereafter, the from “protected,” page 9 ten or oral statement made in connection with an issue lems at the county jail were clearly matters of public under consideration or review by a legislative, executive policy, and as such, covered by this statute.
or judicial body, or any other official proceeding autho- The employee also argued the statements to the state rized by law; (3) any written or oral statement or writing agency, in effect, required her to re-publish the state- made in a place open to the public or a public forum in ments whenever she applied for new employment. The connection with an issue of public interest; and (4) or any court stated a defamation action simply does not exist other conduct in furtherance of the exercise of the consti- for a statement that one might make in the future. To tutional right of petition or the constitutional right of free establish a claim of defamation, a plaintiff must estab- speech in connection with a public issue or an issue of lish there was a false and unprivileged publication and a communication to some third person who understandsthe defamatory meaning of the statement. The normal Employer contests unemployment benefits
rule in defamation cases is the defamed person who vol- The employee alleged the employer made a false and untarily discloses cannot recover, except in circumstances defamatory statement to the state unemployment benefits where the defamed person would have had a strong com- agency which stated or implied she was responsible for pulsion to disclose. However, the court noted Califor- the death of the inmate. The employee further claimed nia cases involving a compelled disclosure uniformly dealt she received a call from the agency that the employer with an actual, as opposed to a hypothetical publication, was contesting her unemployment benefits and had stated as was the case here. The court stated creating a wider she was responsible for the inmate’s death. The court exception for claimants who have not republished the found such statements proved the alleged statements were defamatory statement where such republication was fore- part of an “official proceeding” based on the broad con- seeable would require courts to engage in considerable The employee claimed the employer’s statements were motivated by a desire not only to prevent the employee Conclusion
from receiving unemployment benefits, but the statements For employers facing defamation lawsuits, this case were also intended to deflect responsibility from the insti- shows the effectiveness of the California Anti-SLAPP tution regarding the inmate’s death. The court found, un- statute in dealing with such claims where the statements der the statute, the motivation of the communicator did not matter. Furthermore, even if true, institutional prob- from “liable,” page 9 The Illinois Supreme Court reversed the Court of Ap- peals, holding the language of the Human Rights Act was As has been previously reported, the federal govern- unambiguous, and an employer is strictly liable for the ment has promulgated rules requiring certain federal hostile environment harassment of any of its supervisory contractors and subcontractors to utilize E-Verify for employees, even when the harassing supervisor has no work authorization of new hires and current employees supervisory authority over the harassed employee. The on a federal project. Its effective date has been de- Court explained where the harasser is a “non-employee” layed again until September 8, 2009. Stay tuned for or “non-managerial or non-supervisory employee,” an employer is responsible for the harassment only if it wasaware of the conduct and failed to take reasonable mea-sures to correct it. The sheriff’s department supervisor, Employment Law Comment is published monthly by the the court held, was neither a “nonemployee” nor a “non- law firm of King & Ballow, Nashville, Tennessee, and LaJolla, California. The materials contained herein have been managerial or nonsupervisory” employee; thus, the abridged from laws, court decisions and administrative rul- sheriff’s department was strictly liable for harassing the ings and should not be construed as legal advice on spe- clerk. The Court, refusing to follow federal law inter- preting Title VII, explained it was not bound by the deci- Additions and/or deletions to King & Ballow’s e-mail- sions or reasoning of the federal courts, but rather by the ing list should be e-mailed to brooks@kingballow.com.
Log onto www.kingballow.com for professional educa- tional courses for CLE credit, information on upcoming semi-nars and more! SEX DISCRIMINATION
Transsexual awarded over $490,000 for stereotype claim A federal judge in the District of Columbia has awarded “given the circumstances that they spoke of” the appli- a transgender applicant the maximum award allowable cant would not be a “good fit” for the position and re- for discrimination. The employer’s refusal to hire an ap- plicant after she revealed her intent to change genderscost the company $491,190 in damages and backpay.
Transexuality is not a bar
Thereafter, the applicant filed a complaint alleging sex Applied as a male
discrimination under Title VII. The CRS moved to dis- In this case, a 25-year Special Forces veteran and a miss the complaint because the statute does not prohibit biological male, applied for a position as a terrorism re- discrimination on the basis of transsexualism or gender search analyst with the Congressional Research Service identity. The applicant argued Title VII did cover her claim (CRS). The applicant applied and interviewed for the because the CRS did not hire her because she looked position as a male. She dressed in masculine attire and like a man in women’s clothing, rather than what the CRS presented herself under her former male name. The CRS believed she should look like. The court found the offered the applicant the position and the applicant ac- applicant’s argument amounted to a sex stereotype claim.
The court stated it was well-established the legal con- After accepting the position, the applicant met a CRS cept of “sex” as used in Title VII refers to much more supervisor for lunch to discuss the details of her new than which chromosomes a person has. The court elabo- employment, including start date. At this meeting, the rated by explaining the concept of “sex” encompasses applicant revealed she was under a doctor’s care for both biological differences between men and women, and gender dysphoria. The applicant explained she had gender discrimination, which includes discrimination based reached the point in her treatment where she would be- on an individual’s failure to conform to stereotypical gen- gin to present herself as a woman. Therefore, the appli- cant would change her name and begin to dress in femaleattire. To lay to rest any fears the CRS supervisor may Court’s holding
have about the applicant’s professionalism during this In conclusion, the court found the CRS violated Title transition period, the applicant presented photographs of VII by discriminating against the applicant. The court herself in female attire. As they concluded their meal, awarded the applicant $183,653 in back pay, $300,000 the CRS supervisor said the applicant had “really given for emotional pain and suffering, and $7,537 for expenses, her something to think about.” The next day, the CRS which included the cost of her therapy.„ supervisor called the applicant and informed her that FAMILY AND MEDICAL LEAVE ACT
Mistakes under the Family and Medical Leave Act give them to patients in order to get a patient started on can be costly. The U.S. Court of Appeals for the 4th the drug for which the doctor will then write a prescrip- Circuit upheld a jury verdict against a pharmaceutical company for over $1 million after it terminated an em- After returning from his second trip to Russia with his ployee shortly after he returned from an adoption trip to adopted child, the employee was terminated. The com- pany based its decision on the fact that the use of the The employee had been with the company for approxi- starters could be viewed as prohibited quid pro quo with mately 15 years. At the time of his termination, he was a the Russian orphanage. In other words, the situation could regional account manager. He informed the company be viewed as giving the orphanage antibiotics in exchange that he needed to make two trips to Russia to adopt a child. The company granted his request for leave. How- The employee sued, claiming the company interfered ever, it told the manager that his leave was not protected with his rights under the FMLA and retaliated against him after taking protected leave to adopt his child. The As part of the adoption process, the employee was company defended the lawsuit, claiming the employee expected to bring gifts to the Russian orphanage. The never requested FMLA leave and, moreover, it had a employee decided to obtain a case of starters of the an- legitimate reason for terminating the employee. How- tibiotic Zithromax to take to the orphanage as a gift. Sales ever, the employee claimed he provided the company with representatives provide starters to doctors, in turn, who see “mistake,” page 12 from “mistake,” page 11 enough information that it knew the leave was protected requested leave in advance of his trips and was granted under the FMLA and the company’s stated reason was the leave, even though the company mistakenly told him pretext for retaliation because the company knew about the leave did not qualify under the FMLA.
his intended use of the starters and did not attempt to Additionally, even though the FMLA states intermit- stop him from giving them to the orphanage.
tent leave for adoption of a child requires the company’s The jury agreed with the employee. It awarded the approval, the company approved the leave. It was not employee $1,876 on his FMLA interference claim and necessary for the employee to specifically state he $331,429 on his FMLA retaliation claim. It also awarded needed intermittent leave to qualify. As for the the employee $333,305 in liquidated damages, plus company’s reason for termination, the employee’s direct $389,000 in attorneys’ fees and costs.
supervisor, a member of the executive group that fired The company appealed the decision and the appeals the employee, knew about his intended starter donation court upheld the verdict. The FMLA does not require an and did nothing to stop him. Moreover, the company did employee to specifically state he/she needs “FMLA” not discipline other employees who were directly involved leave. Instead, it only requires the employee provide in the employee obtaining the starters. In sum, the enough information that the company knows the leave is company’s reasons were not supported by the evidence covered under the FMLA. In this case, the employee LABOR LAW
At-will employees deemed permanent replacements A federal appeals court upheld a National Labor Rela- In July 2002, the Union, on the strikers’ behalf, of- tions Board (NLRB) order finding an employer demon- fered to return to work without any conditions. The strated permanent status with respect to replacement employer advised the Union it had a full unit of perma- workers hired during a strike. The court therefore agreed nent replacements and would not immediately reinstate with the NLRB that the employer did not violate the Na- any striker; rather the strikers would be placed on a pref- tional Labor Relations Act (NLRA) by refusing to imme- diately reinstate the strikers following their Union’s The Union filed an unfair labor practice charge, alleg- unconditional offer to return to work.
ing the refusal to immediately reinstate the economic strik- This decision is comment-worthy because it deals with ers following the unconditional return-to-work offer a tension between federal labor law’s concept of perma- violated the NLRA. The NLRB dismissed the charge nent replacement status and the doctrine of employment- because it found the employer had satisfied its burden of at-will. According to the court, the two statutes can showing the replacements were permanent. The Union coexist because an employee may have the dual status challenged this decision before the federal appeals court.
of being “permanent” under federal labor law and “at-will” under state contract law. As noted below, how- Court reconciles permanent replacement status
ever, employers should not interpret this recognition of The appeals court concluded the NLRB’s finding that potential dual status as granting unlimited discretion to the employer had shown permanent status was supported keep “all options open” when structuring relationships with by substantial evidence. This evidence included the forms’ use of the word “permanent”; testimony of threereplacements, who considered themselves to be full-time, An illusory expectation of permanency?
permanent employees; testimony that the company hu- In March 2002, following the start of an economic strike man resources manager had told one of the replacements at a Tennessee plant, the employer began hiring replace- he was permanent; and the employer’s consistent repre- ment workers. In addition to a standard employment ap- sentation to the Union that its replacements were per- plication, the first 53 replacements signed a form containing language stating the replacement “hereby ac- Before making this finding, the court considered sev- cepts employment with the employer as a permanent re- eral important issues of law.Initially, the court noted, placement for [name of striker] who is presently on under the NLRA, employers generally must immediately strike,” but that the replacement also understands his em- reinstate workers returning from an economic strike un- ployment with the employer may be terminated at any conditionally unless there are legitimate and substantial time, with or without cause, including as a result of a business justifications for refusing to do so. One such strike settlement or by order of the NLRB. The remain- justification is the hiring of “permanent” replacements ing 33 replacements, who were hired after some initial when necessary to continue the employer’s business.
replacements quit, signed similar forms stating they were Employers bear the burden of showing such replacements see “permanent,” page 13 from “permanent,” page 12 are permanent, but if the burden is discharged, the NLRA its options open and then exercise its discretion in the will not be deemed violated if an employer refuses im- reinstatement context arbitrarily and for impermissible mediately to reinstate a striking worker after an uncondi- reasons. The court reasoned important checks exist to curb an employer’s temptation to abuse its discretion in The question here was whether an employer can sat- this fashion by, for example, reinstating only those strik- isfy this burden when the replacements are expressly ers who had become anti-union. As the court explained, characterized as “at-will” employees whose employment such conduct would be powerful evidence that a replace- generally may be terminated at any time. The Union ment displaced by an anti-union striker was not in fact made several arguments as to why this was impossible, “permanent”; could subject the employer to potential li- ability in tort or for breach of contract in litigation brought First, the court approved of the NLRB’s longstanding by displaced replacements in state courts; and most likely use of a “totality of the circumstances” approach to the would constitute an unfair labor practice under the question of permanency. Under that approach, the key NLRA. Finally, the court agreed with the NLRB that a inquiry is whether there is a mutual understanding be- totality of circumstances approach to the question of per- tween the employer and a replacement worker that the manency was better than the Union’s rigid proposal that conclusion of the strike will not terminate the relation- employers be required expressly to advise replacements ship. In the NLRB’s view, as long as the circumstances that a conclusion of the strike will not result in displace- as a whole indicate the existence of this mutual under- standing, the employer may impose other conditions on As one concurring judge noted, this decision should the continuation of a replacement’s employment—such not be interpreted by employers as granting unlimited free- as a strike settlement, a NLRB order of reinstatement, dom to call replacements “permanent” one day and “at- or the employer’s residual discretion under the employ- will” on another day and in a different context. Although ment-at-will doctrine—without rendering the replacement the court recognized at-will status does not automatically “temporary” under federal labor law.
render a replacement “temporary” under federal labor Second, the court rejected the Union’s contention that law, the court’s lengthy discussion of the various checks Supreme Court case law implied a requirement that an on employers’ discretion in this context makes it clear, in employer offer replacements express, enforceable con- order to take advantage of the permanent replacement tracts stipulating the conclusion of a strike will not termi- exception to the general rule of reinstatement, there must nate the employment relationship. Third, the court be a mutual understanding on the part of both the em- disagreed with the Union’s complaint that an understand- ployer and the replacement worker that conclusion of ing of permanency is “illusory” when dealing with an at- the strike will not automatically result in displacement.„ will employee because it allows an employer to keep all Appeals court reverses jury verdict in favor of Reservist The Uniformed Services Employment and Reemploy- and awarded the employee $57,640. The jury found the ment Act (USERRA) protect members of the armed neutral decisionmaker’s decision to terminate an employee forces from adverse actions by employers because of was singularly influenced by a non-decisionmaker em- their military status. To prove a violation of the USERRA, ployee, who was biased against the employee because of an employee must show the decisionmaker of their em- his military service. The appellate court reversed the ployer took the adverse action because of the employee’s jury’s verdict because there was not enough evidence for the judge to have allowed the jury to consider this The U.S. Court of Appeals for the 7th Circuit, how- ever, ruled if an employee can show a neutral decisionmaker relied on a non-decisionmaker’s input in taking Mandatory drills for Reserve unit
the adverse action, they still may prove a violation. This The employee was employed at a Peoria, Illinois, hos- is known as the “imputed decisionmaker theory.” The pital as an angio tech. The employee had worked for the court, however, has subjected this rule to the caveat that hospital for 10 years and was a member of the Army the decisionmaker must rely on the input from the non- Reserve for the entire time. His direct supervisor, began decisionmaker, rather than simply consider it. A jury de- to prepare work schedules. Before she took over sched- cided a case in favor of an employee under this theory see “verdict,” page 14 from “verdict ,” page 13 uling, the reservist always had weekends off. As the reservist. The department head was not satisfied with reservist’s mandatory drill with his Reserve unit occurred the reservist’s explanation about leaving a voicemail and on weekends, this worked to his advantage. But when instead asked the reservist to accompany him to the hu- she took over scheduling, the assistant manager placed man resources department. Beforehand, when the de- him in the weekend rotation, which caused immediate partment head could not locate the reservist, he had told conflicts for the reservist. When the employee tried to the human resources manager, who decided to fire the speak with the assistant manager about it, she threw him reservist. When the reservist went to this office, the out of the office and said she “didn’t want to deal with it.” The employee continued to be scheduled to work on At trial, it was clear the human resources manager weekends, so he spoke to the department head. How- did not harbor animus toward the reservist because of ever, it was to no avail, which forced the reservist to ask his military service, while the assistant manager did. Thus, for volunteers to replace him on the one weekend a month the judge instructed the jury on the “imputed decision maker theory.” The jury found in favor for the reservist In 2003, the reservist was activated for a 92-day tour.
and found the human resources manager, the neutral During this time, the assistant manager told a new em- decisionmaker, had relied solely on negative input about ployee that the reservist’s “military duty had been a strain the reservist from the assistant manager in making the on the department” and “she did not like him as an em- ployee.” The assistant manager asked the new employee The appeals court held before judges instruct juries to “help her get rid of” the reservist. The new employee on the “imputed decisionmaker” theory, they should first refused. Also, witnesses testified whenever the reservist determine whether there is sufficient evidence that the approached the assistant manager about his military du- neutral decision maker relied solely on an inappropri- ties, she would “roll her eyes and sigh.” ately biased non-decision maker in taking the adverse However, the reservist had a series of disciplinary is- action. In this case, the appeals court decided there was sues at the hospital for several years for being disrespectful insufficient evidence for the judge to allow this theory to and disappearing from his post. As a result, the head of be considered by the jury. The appeals court reasoned the department required him to check in with him, or the although the human resources manager did listen to in- assistant manager, if he was leaving the department for put from the assistant manager, who harbored illegal any reason, including lunch. On the day he was fired in animus, the human resources manager conducted her 2003, the reservist wanted to leave the department to go own investigation. Moreover, she based her decision on to lunch. Neither the assistant manager, nor the head of the results of this investigation, which included the the department, were in their offices, so the reservist left reservist’s past disciplinary issues, rather than solely the a voicemail stating he was going to the hospital cafeteria input from his supervisor. Accordingly, the appeals court felt there was insufficient evidence of the “imputed de- While he was eating lunch, the department head ap- peared and said he had been “looking all over for” the RELIGIOUS DISCRIMINATION
New Jersey court finds policeman was harassed The New Jersey Supreme Court held, in the first case Jew,” and on one occasion asked him where his “big applying New Jersey’s antidiscrimination law to religious Jew nose” was. A lieutenant, also the employee’s su- harassment, the standard for religious harassment is the perior, made comments, such as “Jews were good with same as for racial and sexual harassment. Thus, the court money” and asked why the employee had not gone “into upheld a jury’s finding that the workplace comments at the family business.” The employee considered com- issue, taken together, amounted to a claim of religious plaining about these events but did not do so, fearing in harassment, based on an employee’s Jewish religion and the small police department, he would be ostracized and Comments from superiors
The police officer’s “last straw”
The employee, a Jewish police officer, was employed The employee finally filed a complaint after one par- by a city police department, where his superiors would ticularly memorable event. While watching a training make derogatory remarks about “Jews.” For example, the video on diplomatic immunity in preparation for a local Chief of Police often referred to the employee as “the see “harassed,” page 15 from “harassed,” page 14 Jewish cultural event, a fellow patrolman blurted out, sidered together in determining whether “severe or per- “those dirty Jews.” A few days later, the employee filed a written complaint, and an internal investigation recom- The New Jersey Supreme Court concluded the com- mended issuing a “letter of counseling” to the patrolman.
ments and other events occurred because of the Several months later, the patrolman stated his com- employee’s Jewish ancestry, noting they were “not acci- ment was intended as a joke and apologized. As a wit- dents” and the individuals were well aware the employee ness in an unrelated disciplinary hearing, the patrolman was Jewish. Thus, the court found, the comments were described his comment as “let’s get rid of all those dirty made with the intent of demeaning and insulting the em- Jews.” The employee became extremely upset, viewing ployee and showed ongoing hostility aimed at Jewish the patrolman’s comment as threatening and an advo- people. The court also concluded the incidents, when cacy of genocide. Thereafter, the employee filed a law- considered together and keeping in mind supervisors were involved, could certainly lead a reasonable person to be- Harassing conduct is typically not defined by a bright- lieve he was not on a level playing field and altered his line test, but rather with a flexible standard as conduct workplace environment. Moreover, it demonstrated “anti- motivated by a protected characteristic (such as race, Semitic bigotry” that the court stated had no place in the gender or religion) that is “severe or pervasive” enough workplace. The court concluded the conduct was suffi- to make a reasonable person feel the working environ- ciently severe to constitute harassment under New Jer- ment is hostile or abusive. Multiple events can be con- AMERICANS WITH DISABILITIES ACT
Firing for not enrolling in treatment not discrimination A county employee was appointed to a multi-duty po- tended the meeting and discussed the need for treatment, sition, which primarily focused on working for veterans’ but the Board concluded he still needed to enroll in in- issues. The employee, a veteran himself, suffered from patient treatment and set another date by which he had post-traumatic stress disorder (PTSD), but from all ap- pearances, did not let it affect his work. One night, how- Before that date arrived, the employee obtained a let- ever, the employee was very inebriated and upon ter from another VA doctor, who said the employee did returning home, he killed several family pets with a gun not need in-patient treatment, but this opinion was based and threatened his wife. The police responded to the upon the mistaken belief that the employee had already incident and pursued criminal charges, including making completed an outpatient program for substance abuse.
terroristic threats and using a firearm to commit a felony.
The letter did not alter the Board’s requirement of in-patient treatment, and when the employee did not enroll Treatment before returning to the job
in such a program by the deadline, he was terminated for Based upon this incident, the County Board (Board) failing to “follow the treatment recommendation.” and the employee agreed the employee would get psy- The employee sued the Board under the Americans chological and substance abuse evaluations. A doctor with Disabilities Act (ADA), asserting he was disabled from the Veterans Administration (VA) evaluated the because of his PTSD and they regarded him as disabled.
employee, recommended he complete in-patient alcohol He also raised a claim of a First Amendment right to treatment, and arranged for him to be treated at the VA’s speak on matters of public concern about veterans’ is- residential rehabilitation center. The employee, however, sues. The district court granted judgment in favor of the told the Board that he would pursue treatment at another county on all counts, and the employee appealed to the facility, which recommended outpatient treatment and U.S. Court of Appeals for the 8th Circuit.
attendance at Alcoholics Anonymous meetings.
To establish a claim under the ADA, the employee had The Board, however, insisted the employee follow the to show he: (1) was a disabled person under the meaning VA doctor’s recommended treatment plan and gave the of the ADA; (2) was qualified to perform the essential employee a date by which to notify the Board that he functions of the job; and (3) suffered an adverse employ- had enrolled in an in-patient facility. When the Board ment action in a manner suggesting unlawful discrimina- did not receive the notice, and the employee did not en- tion. To qualify as having a disability under the ADA, he roll, the Board sent another letter threatening to termi- had to: (a) have a physical or mental impairment that sub- nate his employment and inviting him to a closed meeting stantially limits one or more of his major life activities; to discuss his continued employment. The employee at- see “treatment,” page 16 from “treatment,” page 15 (b) have a record of such impairment; or (c) be regarded which harmed the disabled or perceived disabled. In this case, however, the appeals court found the Board’s in- The employee claimed disability status for two rea- sistence on in-house treatment was based upon a very sons: (1) his PTSD, and (b) the county regarded him as serious incident which resulted in criminal charges, and an alcoholic - a disability. The appeals court rejected the upon a licensed mental health therapist’s recommenda- disability claim based on PTSD because there was no tions. The later recommendation from another VA doc- evidence that the condition impaired his major life activi- tor, which was based upon erroneous facts, did not matter.
ties. Additionally, while no one disputed he had PTSD, Because the Board’s order to complete the in-patient there was no evidence that the county knew of the treatment before returning to a public position was well- employee’s condition. The employee himself testified he founded, its termination of the employee did not violate kept it to himself and did not tell his supervisors about his the ADA’s prohibition on regarding employees as dis- PTSD. It followed if the county did not know of his condition, it could not have discriminated against him on A public employee alleging a violation of the right to the basis of the condition. Finally, the appeals court said free speech must show that the speech in question is that even if the Board had known of his condition, the entitled to protection under the First Amendment because Board articulated a legitimate non-discriminatory basis it addresses a matter of public concern. The First for firing him – his refusal to pursue the treatment.
Amendment does not, however, protect expressions madeas part of the employee’s job duties. The employee ar- Regarded as disabled
gued he engaged in protected speech when he requested As for the allegation that the Board regarded the em- more funding for veterans’ issues and sought to make his ployee as an alcoholic, the appeals court said the Board’s position full-time. The appeals court found these com- regard was well-founded. Generally, the ADA prohibits munications were made pursuant to his job duties, even if discrimination when an employee is regarded as having the speech were protected, it did not relate to his a condition because the employer has mistakenly per- ceived the employee’s ailments limit his ability to work.
The prohibition was meant to combat misconceptions FAMILY AND MEDICAL LEAVE ACT
Employee must notify employer of delayed return date An employee sued her employer under the Family and not intend to return to work until seven weeks postpar- Medical Leave Act (FMLA) after she was terminated tum. It was irrelevant that the employee produced evi- as a “voluntary quit.” She had returned from maternity dence that her treating physician cleared the employee leave one week after her designated return date without to return to work seven weeks after the birth of her child, extending the disability period or notifying the employer because the employee failed to communicate this infor- of the extension of her leave. Under the company’s hand- mation to the company and notify them of her proposed book attendance policy, she was required to follow the absence from her position for an additional week.
written procedures to extend her disability period.
The court found once an employee is on leave, an The employee maintained the FMLA leave for an ex- employer may require such employee to report periodi- pected birth had been met because she provided the em- cally on the employee’s status and intent to return to work.
ployer with notice not less than 30 days before her If an employee finds he or she needs to take more leave delivery. The terminated employee insisted the employer than originally anticipated, the employer may require the should have reassessed her return date because it was employee provide the employer reasonable notice of the originally designated as “six weeks postpartum.” changed circumstances when foreseeable.
This employee did not meet the requirements of the Returning from FMLA leave
employer, and failed to meet the requirements of FMLA.
A federal court in Ohio reviewed the company hand- She did not contact the employer after six weeks, nor did book, which required the employee to provide a return she submit a new disability slip extending her FMLA leave date and follow procedures for extending disability peri- beyond the six weeks postpartum. Therefore, the court ods. The employee was aware of the handbook proce- dismissed her claim for interference with the FMLA.„ dures; yet, she did not notify the employer that she did

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