ADD Not a Disability, But Requesting Accommodation is Protected, December 30, 2003
A federal appeals court has upheld a trial court ruling that an employee's attention deficit disorder was not a disability under the Americans with Disabilities Act. It held, however, that an employee with ADD could sue for retaliation under the Act if he was the victim of retaliation for asking his employer to accommodate the condition. In other words, the employer had no obligation to accommodate the condition, but it could not punish the employee for asking for the accommodation. Wright v. CompUSA Inc., No. 03-1099 (1st Cir., December 19, 2003).
Worker with Cerebral Palsy and Physical Deformities is Not Disabled, December 18, 2003
The U.S. District Court for the District of Delaware recently held that a Delaware pharmaceutical company maintenance worker with cerebral palsy is not disabled under the Americans with Disabilities Act. Emory v. AstraZeneca Pharm., No. 02-1466 JJF (D.Del. December 3, 2003).
Alvin Emory, was born with cerebral palsy and paralysis on his right side. His right arm, hand, and leg are partially deformed and he has problems manipulating objects, gripping, reaching overhead, walking, or carrying objects for long periods of time. He walks with a slight limp and has some learning impairments. He also reads and speaks slowly as a result of his impairments. Emory was employed at AstraZeneca for 26 years in a variety of positions and in 2001 applied for a promotion to shift coordinator, but was not selected. He alleges that this failure to promote was an act of disability discrimination.
In granting summary judgment to the employer, the Court found that while there was evidence on the record that Emory was physically and mentally impaired, and that there was a record of such impairment, there was no evidence that these impairments substantially limited Emory's ability to perform any major life activities. The father of two, Emory is "able to drive a car, engage in marital relations, raise his children, operate his cleaning business, perform as a clown, counsel families as a mediator, and assist his community as a firefighter. . . . While Mr. Emory may accomplish some of his daily activities in an unconventional manner as a result of his impairments, he is not substantially limited in his ability to perform those activities." The court decided that none of these limitations were disabilities within the meaning of the ADA.
What is a Right-to-Work State? December 17, 2003
The Oklahoma Supreme Court recently upheld the state's new right-to-work legislation. Unless you live in Oklahoma, that's hardly exciting news. Many people, however, do not have a clear understanding of what a right-to-work state is. Read on.
Under the National Labor Relations Act, an employer and union may agree to what is called a "union shop." That means that employees and new hires have 30 days to join the union as a condition of employment or be fired. Employees do not actually have to join the union, but they have to pay initiation fees, dues, and assessments just like union members. Most employees join.
The National Labor Relations Act also has a "right-to-work" provision giving state legislatures the power to make union shops illegal in their states. If they do, employees in those states cannot be compelled to join the union to keep their jobs. Union membership is voluntary, even though the union represents all employees covered by the collective bargaining agreement.
In right-to-work states, union membership can still be high. Remember, there is still peer pressure and other methods of "encouraging" employees to join.
Right-to-work has no other meaning. Employees in right-to-work states have no greater or lesser rights than employees in other states, except the right to decide whether they want to join a union.
Do Not Rehire Rule Upheld, December 15, 2003
The Supreme Court has reversed a lower court decision that it is a violation of the Americans with Disabilities Act to refuse to rehire a recovering drug addict fired previously for violation of the company's drug policy. Raytheon Co. V. Hernandez, No. 02-749 (USSCt., December 2, 2003). The Court held that a neutral policy against rehiring employees who had violated workplace rules was proper, even if it had the effect of disproportionately affecting recovering drug addicts protected by the ADA. The Court, however, left open the possibility that the rule against rehire could be attacked if it was not enforced uniformly.
DOL Handling Large Number Of Sarbanes-Oxley Whistleblower Claims, December 10, 2003
The United States Department of Labor ("DOL") recently reported that since July 2002, it has received 169 whistleblower charges regarding corporate securities and financial practices under the Sarbanes-Oxley Act. OSHA investigators conducted 79 investigations of these claims, 77 of which were resolved in favor of the employer. OSHA found merit in the employees' whistleblowing charges in only two of the investigations, but also reports that 16 complaints were resolved by settlement before the investigations were completed.
The Sarbanes-Oxley Act prohibits an employer from discharging, demoting, suspending, harassing or discriminating against an employee for providing information or participating in an investigation of conduct that the employee reasonably believes is a securities violation or securities fraud. Employees can bring a whistleblower claim with the DOL within 90 days of the alleged violation. If the DOL fails to issue a final decision within 180 days, the employee can sue in federal court.
Derogatory Comments About Former Supervisors Posted On Internet Are Defamatory, December 9, 2003
Two former employees of a medical equipment manufacturer must pay over $770,000 in damages to their former employer and two supervisors after waging a four-year campaign of disparaging them in postings on various internet chat rooms. See Varian Medical Systems Inc. v. Delfino, 20 IER Cases 977, No. H024214 (Cal. Ct. App. Nov. 13, 2003). In 1998, the employer terminated one defendant, Michelangelo Delfino, for harassing and disruptive behavior; the other defendant, Mary Day, resigned her employment in sympathy two months later. Delfino and Day immediately began to post derogatory messages about their supervisors and about Varian itself on various internet chat rooms. The messages stated, among other things, that the supervisors were incompetent; that one supervisor only kept her job because she granted sexual favors; that the supervisors were having a sexual relationship; that one supervisor was an alcoholic and/or mentally ill; that the company unlawfully discriminated against employees; and more. Even after the plaintiffs filed suit against Delfino and Day, they continued to post the messages – over 13,000 by the time of trial – and vowed to continue until they died.
Varian and the two individual supervisors sued for defamation, invasion of privacy, breach of contract, and conspiracy. A jury found that the statements posted about the plaintiffs on the internet were defamatory per se and ultimately awarded them $425,000 in general damages and $350,000 in punitive damages. The defendants appealed, claiming that their messages constituted statements of opinion and that the statements, standing alone, did not carry a defamatory meaning. The appellate court disagreed, finding that the over 500 messages entered into evidence contained remarks that clearly tended to injure the reputation of the individuals and the company and were defamatory. The court rejected the defendants argument that the statements were not defamatory because they contained hyperbole and exaggeration typical of internet communications, finding instead that the messages were "especially vituperative personal attacks."
Arbitration Award Did Not Bar Employee's Retaliation Claim In Court, December 4, 2003
A California court held that an employee could sue his former employer for retaliatory discharge in court even after he already arbitrated the claim pursuant to a collective bargaining agreement between the employee's union and the employer. Taylor v. Lockheed Martin Corp., No. B102846 (Cal. Ct. App. Nov. 17, 2003). After an altercation with other employees, the employee was terminated when he refused to get counseling as a condition of continued employment. A few months prior to his termination, the employee had complained to the state OSHA department about exposure to chemicals on the job-site.
The employee filed suit in state court alleging retaliatory discharge and other claims. At the same time, the employee filed a grievance challenging his termination. After a hearing on the grievance, a labor arbitrator found that the employer had "just cause" to fire the employee. The employer then obtained summary judgment in the state court litigation on the grounds that the arbitrator's findings of "just cause" precluding the employee from asserting that he was fired in retaliation for making his complaint to Cal/OSHA.
The appellate court disagreed, finding that the arbitrator's determination of "just cause" did not bar the employee's retaliation claim. Following recent United States Supreme Court decisions, the court ruled that unless the union contract contained a clear and unmistakable waiver of the employee's rights to sue for the statutory retaliation claim, the arbitrator's findings had no preclusive effect. Because the court had no evidence of such a waiver, the employee was entitled to proceed with his claim.
No Workers' Comp Benefits for Flight Attendant Not on Flight, December 1, 2003
So much for counting her lucky stars. Flight attendant Kim Stroka was scheduled to work on the United Airlines Flight 93 that was attacked and crashed in Shanksville, Pennsylvania on September 11, 2001. Instead, she took the day off to care for her daughter. After the crash, Stroka, who knew three of the flight attendants on the plane, developed post traumatic stress symptom (PTSS). She applied for workers' compensation benefits, which the New Jersey Division of Workers' Compensation approved. Reversing this decision, a New Jersey appeals court held that Stroka was not eligible for workers' compensation because the PTSS was not triggered while she was working. Stroka v. United Airlines, No. a4274-01 (N.J. Super. Ct. App. Div., November 26, 2003)(unpublished opinion). "If we were to accept [Stroka's] argument," said the court, "off-duty police officers, firefighters, and others whose jobs are inherently risky could seek compensation benefits when a fellow employee was injured or killed while taking the employee's place. No authority exists to support that position."
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