FMLA - defining the term 'worksite', December 23, 2004
On December 13, 2004, the Court of Appeals for the Tenth Circuit ruled that the Department of Labor's regulation defining the term "worksite" in joint employment situations was arbitrary, capricious, and manifestly contrary to the purpose of the FMLA. Harbert v. Healthcare Services Group, Inc., 2004 WL 2850075 (10th Cir. (Colo.)).
In 1994, Nancy Harbert was hired as a housekeeping service employee at Sunset Manor, a nursing home in Brush, Colorado. In 1997, Healthcare Services Group, Inc. ("HSG"), which has regional offices in Golden Colorado, entered into an agreement to provide housekeeping and laundry services to Sunset Manor. As part of the deal, Harbert's employment was transferred to HSG, and she became the account manager for HSG's Sunset Manor account. Harbert continued to physically report to work in Brush, but she was supervised by HSG regional management in Golden. Only occasionally did she travel to Golden for meetings. Also, Sunset Manor's administrator continued to exercise supervision and control over Harbert, even after her employment was transferred to HSG.
In 1998, Harbert injured her hip in an automobile accident. HSG granted Harbert two 30-day periods of leave, but it refused her request for FMLA leave. When Harbert did not report to work following the expiration of the second 30-day period of leave, HSG terminated her employment. HSG denied Harbert's request for FMLA leave based on its conclusion that she was ineligible, because HSG did not employ 50 or more employees within 75 miles of Sunset Manor, which is where Plaintiff worked.
Harbert was considered jointly employed by Sunset Manor and HSG. In joint employment situations, the DOL's regulations provide that it is the primary employer who responsible for FMLA leave. According to 29 CFR § 825.111(a)(3), an employee's worksite is the primary employer's office from which the employee is assigned or reports. The trial court concluded HSG was Harbert's primary employer, and that HSG's regional office in Golden was Harbert's worksite under the applicable regulation. HSG employed at least 50 employees within 75 miles of Golden, so the trial court found HSG had improperly denied Harbert's request for FMLA leave.
The Court of Appeals for the Tenth Circuit reversed. It determined that 29 CFR § 825.111(a)(3) was invalid, at least as it applied to Harbert, who had a regular fixed location of employment in Brush. First, the court reasoned the regulation was contrary to the common meaning of the term worksite, which is where Harbert reported to work every day. Second, the court noted the legislative history supported a finding that the FMLA's 50/75 provision was intended "to remove the burden of providing FMLA leave from employers who did not have a supply of temporary replacements in close geographic proximity to the employee requesting leave." Therefore, to serve the underlying purpose of the 50/75 provision, an employee's worksite must be that employee's regular place of work, which in this case was located in Brush. Finally, the court determined the DOL's regulation creates an arbitrary distinction between sole employers and joint employers. In this regard, the regulation creates the possibility that a joint employer would be responsible for providing FMLA leave and a sole employer would not, even though neither employer has a supply of nearby employees to replace an employee out on leave.
One Medium Burger – Hold the Sauce, December 22, 2004
Fuddrucker's, Inc., prides itself on serving excellent burgers in a clean, friendly environment. When its facility in St. Louis Park, Minnesota, developed a poor public image as the result of unsanitary conditions, two managers were dispatched to turn things around. Shortly after arriving, they discovered that at least one of the problems was caused by an employee with a stutter who also suffered from "excess build-up of saliva." Fuddrucker's submitted several affidavits and deposition testimony describing the employee's tendency to drool in the food.
The former employee sued based upon a claim that she was terminated because of a disability – her stutter. Expecting to avoid trial, the employer moved for summary judgment, relying upon the excessive drool and sanitary problems as a sound reason for termination. The District Judge, however, felt that the issue should be tried to a jury, citing as evidence against them the good taste and courtesy shown by Fuddrucker's in not adding "excessive drool in the customers food," to the termination notice! The restaurant's motion was denied.
The Ignominy Of It All, December 17, 2004
California Pacific Medical Center enjoyed an experience recently that rivals that provided by their resident proctologists, compliments of the SEIU Union and a union-friendly arbitrator. Briefly, the Union, which represented some 800 employees already, tried to organize 500 more. The Hospital launched a campaign opposing the unionization, which the Union decried as not being "positive." Later, arbitrator Gerald R. McKay ruled that the Hospital not only would be saddled with expanded Union representation, it would pay for the privilege. McKay ruled that the hospital's efforts to remain "union free" were a violation of its contract. Mc Kay ordered the Hospital to pay the Union for its expenses in unionizing, and for the costs of attorneys.
My Tummy Hurts! December 15, 2004
Arbitration is a quick, procedurally relaxed way to get a final resolution of a problem. Part of the baggage that comes with arbitration is living with irrational decisions made by wrong-headed arbitrators whom one unwittingly draws. Electrolux Home Products, Inc., recently received first hand evidence of that sad reality.
Deborah Cook was fired for attendance violations. Her last absence was a one day incident when Cook left work because her stomach was hurting. A Physician's Assistant who saw her refused to certify Cook's absence as FMLA qualifying. After she was fired, five days after the absence, and without telling about her visit with the Physician's Assistant, Cook met with a nurse and coaxed her to say that the absence (for which the nurse had not been consulted) was the product of ongoing gastroenteritis. That case went before Arbitrator Neil N. Bernstein who (you see it coming) ordered Cook back to work with full back pay. That decision found that Cook should have been placed on FMLA leave despite the testimony of the Physician's Assistant, and the Nurse's acknowledgment that she had no first hand knowledge of the illness or the visit to the Physician's Assistant.
On appeal, the decision was upheld to afford finality in arbitrations. Kind of turns your stomach, doesn't it?
Who Cares About The Truth? December 14, 2004
A Justice of the New York Supreme Court recently reaffirmed that Labor Unions have a virtual free pass to defame and malign individuals and companies at will. During a labor dispute, a local union publicized defamatory claims that an employer "has violated US labor laws, rips off the consumers of New York and is a general bad neighbor for all of New York City." There was no doubt about the source – the assertions appeared prominently on the union's website. The employer sued the union and its officers for redress of the defamatory claim.
The case was dismissed because in order to prevail, the person defamed "must allege and prove that each individual union member authorized or ratified the alleged wrongful acts." That special rule for labor unions applies even if a controlling portion of the union, or all of its officers approved the defamation!
And so it goes.
Employer Decides Whether “Just Cause” Exists, December 6, 2004
by Thomas A. Bowden
A university administrator’s employment contract required that any firing must be “for cause,” and a list of acceptable causes was agreed upon. Sure enough, when the administrator was fired, he sued, claiming that none of the listed causes had occurred. A jury agreed with him and awarded almost a million dollars in damages.
But on appeal, the Maryland Court of Appeals said the jury exceeded its powers. Strange as it may seem, the jury was not authorized to examine the factual underpinning of the employer’s decision, to see whether just cause actually existed. Rather, all the jury could do was ask if the employer “acted in objective good faith” as a reasonable employer would do under the circumstances.
Message to employees: If you want to hold your Maryland employer to a strict standard for “just cause” firing, make sure the contract states that the employer is giving up its presumptive power to evaluate workplace performance.
Towson Univ. v. Conte, Maryland Court of Appeals, No. 55, Sept. Term 2003 (Nov. 17, 2004).
More Data, Less Information, December 6, 2004
by Thomas A. Bowden
OSHA recently increased the reporting burden on employers, requiring data on when accidents occur. Now, the Bureau of Labor Statistics has assembled the data and spit out the results.
Are you ready for this? The BLS says that half of all accidents on the job happen during the first four hours of the employee’s shift. Well, duh. What else would you expect? Gee, I’ll bet the other half of accidents occur during the remainder of the shift.
More scintillating findings:
Accidents were distributed pretty evenly from Monday to Friday. (Who’d a thunk it?)
Nurses, aides, and orderlies experienced 21% of their accidents from midnight to 8 a.m. (Hmmm....)
Truck drivers and janitors had about 20% of their accidents on Monday. (It’s just a guess, but I wonder if another 20% happened on Tuesday?)
The majority of all accidents happened during the day shift: 8 a.m. to 4 p.m.
Accidents happening to cooks increased from 8 to 10 p.m.
I ask you: With new findings like these, can a revolution in workplace safety be far behind?
(By the way, these findings are based on data from 2002; the analyses of 2003 accidents won’t be released until 2005).
Comcast Flunks Chemistry Test, December 6, 2004
by Thomas A. Bowden
During its hiring process, Comcast referred to the “on-air chemistry” between anchors. An unsuccessful candidate sued, claiming that the reference to “chemistry” was a code word for racial discrimination (the unhired broadcaster was black).
Comcast management had also discussed the fact that the candidate had previously sued QVC (a Comcast subsidiary) for race discrimination. The discussion simply affirmed that the earlier case should not have any impact on the decision making process. But the federal court held that a jury could see the conversation differently: as evidence of improper motives and racial bias.
So, Comcast will have to endure a trial, instead of escaping through summary judgment. Take heart, though, all you employers. There is one certain way to avoid discrimination suits: just close up shop.
Owens v. Comcast Corp., E.D. Pa., No. 02-1240 (Nov. 18, 2004).
First Amendment Prohibits Judicial Review Of Catholic School's Decision To Fire Teacher, December 2, 2004
In recent years, several federal courts have addressed the thorny issue of how, or if, Title VII applies to employees of religious institutions. They have had to balance the constitutional protections of freedom of religion against Title VII's guarantees of a workplace free from discrimination. In a recent example, the U.S. District Court for the District of Delaware dismissed a female teacher's Title VII claims of gender and pregnancy discrimination against her former employer, a Catholic girls' school. Curay-Cramer v. Ursuline Academy of Wilmington, Del., No. 03-1014-KAJ (D. Del. Nov. 16, 2004).
The teacher was fired after she allowed her name to be published in the local newspaper in an advertisement supporting abortion rights. She gave out her name because she wanted to convince the school to end its opposition to abortion. After her termination, the teacher sued, claiming that the school discriminated against her because of her gender, based on her support of abortion rights, and because of the church's prejudice against women.
The court found that considering the teacher's claims would raise constitutional questions, namely, the Catholic school's First Amendment right to make employment decisions based on its religious doctrine and free from governmental interference. The court's review of the school's decision to fire the teacher because of her public opposition to the school's faith-based policies would impinge on the school's free exercise of religion and would result in excessive government entanglement with religion. The court found that any judicial analysis of the school's reasons for firing the teacher would be "forbidden by the constitution."
Office Romance Not Protected Under Title VII, December 1, 2004
A female office manager alleging she was discharged after informing her employer of her office affair has no gender discrimination claim according to a federal court in Illinois. Hossack v. Floor Covering Assoc. of Joliet, No. 03-C-3067, 94 FEP Cases 1308 (Oct. 21, 2004). Vicki Hossack was the office manager for a floor covering store. She had a secret affair with the store's top salesperson and part-time general manager for over a year. After Hossack's husband discovered the affair, she informed the general manager of her relationship with the other employee and that her husband did not want her working with him anymore. The store manager said that they would work with Hossack to find a solution, including transferring the other employee. In the meantime, Hossack's husband called her paramour and threatened him.
Hossack had taken several days of vacation to resolve her personal issues. While still out, she called her manager to say that her husband no longer objected to her working with her former lover and that he would allow her to return to the office. The manager stated that he was "accepting her resignation" and that her presence at the office would be too disruptive. Hossack's boyfriend was not fired, but later transferred to another store.
Hossack claimed that she was terminated on the basis of her gender, pointing to the fact that her former boyfriend was not disciplined for the affair. A jury agreed, awarding her $250,000 in damages. The court, however, found that Hossack did not present sufficient evidence to show that she was fired because she was a woman and vacated the verdict. The court noted that there was no evidence to show that the employer fired Hossack because of her gender. Rather, all the evidence indicated that Hossack was fired because of concern about her husband's threat and overall reaction to her affair. The manager's comments that Hossack's presence would be too disruptive to the office showed only that she was fired because of concerns over how the troubles associated with the affair would affect the business, not because of any "outdated notion" that women in affairs should be punished while men may be excused for the same conduct. Following several similar decisions in other districts, the court found that "Title VII protects employees form discrimination based on sex, not discrimination based on sexual activity."
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