Inability To Drive Not Covered By ADA, February 25, 2002
Charlotte Chenoweth, a nurse for Hillsborough County, Florida, was diagnosed with epilepsy in 1997. Her doctor advised her not to drive until she could endure six months without a seizure. During the time she could not drive, her ability to perform her nursing duties were not affected. When Chenoweth requested an accommodation to work from her home two days a week to accommodate her transportation needs, the county refused, stating that driving was not a major life activity under the ADA. Chenoweth sued.
The Eleventh Circuit agreed with the county's position, stating that, unlike walking, seeing , hearing, speaking, breathing, learning, and working, it would be an oddity that a major life activity should require a license from the state, revocable for a variety of reasons including failure to insure. See Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329 (11th Cir. 2001). The court continued, "millions of Americans do not drive, millions are passengers to work, and deprivation of being self-driven to work cannot be sensibly compared to inability to see or to learn." Id. at 1330. The Supreme Court denied Chenoweth's petition for certiorari. Chenoweth v. Hillsborough County, - - - S. Ct. - - - , No. 01-841, 2002 WL 232981 (U.S. Feb. 19, 2002).
Release of Claims Upon Termination Bars Later Suit for Sex Harassment, February 21, 2002
Bruce M. Luchansky
In today's litigious climate, every employer who lays off or discharges an employee worries about being sued for doing so. In situations where the employer intends to pay severance or other termination benefits to the employee, the employer should consider obtaining a release of claims from the employee in return.
As demonstrated in a recent case decided by the First Circuit Court of Appeals, such releases are enforceable, as long as they are found to have been signed by the employee "knowingly and voluntarily." In Melanson v. Browning-Ferris Industries Inc., Case No. 01-1914 (1st Cir. February 19, 2002 ), an employee who was discharged during a reduction in force and received a $1,600 severance package signed a release. Later, she tried to sue the company for a past incident of alleged sexual harassment. The employee attacked the release, claiming that when she signed it, she was under financial stress, was a young single mother with a limited education, received no independent advice, and lacked business acumen to negotiate the terms of the release. She also argued that the release was unclear, the consideration was inadequate, and that she suffered a history of depression and bulemia.
The Court nevertheless found that the employee's assent to the release was knowing and voluntary, and therefore binding. The Court noted that the employee was a high school graduate, she was paid consideration for the release, she was given time to read the release and to consult with an attorney, and the release was written in language that a layman could understand. Employers should use the Court's findings as a road map for obtaining enforceable releases under appropriate circumstances.
Employee's Treatment at Pork Processing Plant Not Kosher, February 16, 2001
April Landers' experience at Quality Pork Processors, Inc. was less than desirable. She was hired in December 1998 to work the second shift in the "skinning room" of the slaughterhouse. One month into her employment, two co-workers began making daily derogatory comments about Landers' boyfriend. Landers, who is white, was dating a black man at the time. The co-workers referred to her boyfriend as a "nigger" and laughed when she asked them to stop. Landers complained to her supervisor, who responded by saying that they were "just boys."
Around the same time, Landers missed a day of work after working overtime the night before. She was reprimanded by her supervisor who precluded her from working future overtime and yelled at her in front of other employees.
One week later, Landers met with the company's human resources director to complain about her supervisor's behavior. She also told the director that two co-workers had been using racial epithets in reference to her boyfriend. Three days later, Landers was transferred to the newly created position of "fecal contaminant inspector" which required that she remove extraneous fecal matter from each slab of pork as it traveled down the assembly line. Although her job changed, her pay and benefits stayed the same. Landers viewed this new assignment as retaliatory for bringing the complaint to management's attention.
Landers filed charges of harassment and retaliation with the EEOC, which sued the company on her behalf. The U.S. District Court for the District of Minnesota granted summary judgment to the employer on the issue of retaliation, stating that neither her hours, nor her salary or benefits were decreased as a result of the transfer, even though the job was less desirable. Therefore, it concluded, no adverse employment action occurred.
The court denied summary judgment to the employer on the racial harassment claim, stating that the co-workers' repeated use of highly offensive racial remarks and the company's delay in investigating and disciplining the remarks was sufficient to send the Title VII racial harassment charge to a jury. The court concluded that "While the racially derogatory term may not have been used in reference to Landers, the language was intentionally directed at her. Furthermore, the racist epithet used in this case is irredeemably offensive and cannot be characterized, as a matter of law, as being either harmless or casual."
Federal Government Cites Itself Under OSHA, February 14, 2002
OSHA has the power to cite federal agencies for safety violations, but it cannot impose fines on governmental units. Last July, the U.S. Forest Service had four firefighters perish fighting a blaze in the Cascade mountains. The Forest Service itself concluded that the deaths were caused by firefighters not taking enough rest, not taking enough precautions to have an escape route, and generally doing the kind of selfless acts that cause us to think of these people as heroes. OSHA has issued citations against the Forest Service for violating its own safety guidelines. Incredibly, OSHA characterized the safety violations as "willful," which could have resulted in huge fines for private fire companies, as well as criminal liability.
I have held the opinion for a long time that OSHA ignores the reality of the workplace and is more interested in technical compliance with safety rules than actual safety. Citing the Forest Service with willful violations is tantamount to accusing the Service of killing those firefighters, who certainly knew the danger of their jobs and their actions fighting that fire. It makes little sense to cite this "employer" six months later for the heroic actions of its employees.
Company Laptop Not Protected from Search, February 11, 2002
The constitution protects people from illegal search and seizures – by the government. The constitution, however, does not protect employees from searches conducted by their employers, especially property provided by the employer.
A federal appeals court has ruled that an employer did nothing wrong when it seized a company laptop computer from an employee and gave it to the government to investigate child pornography charges. Muick v. Glenayre Electronics, No. 00-3299 (7th Cir., February 6, 2002). The employee had no right of privacy in the company-owned computer.
While the federal constitution does not apply to most non-governmental workplaces, there are some state laws that provide certain rights. Employers need to familiarize themselves with unusual state laws that may provide more protection than the federal constitution.
Union Organizers Can Lie on Their Employment Applications, February 11, 2002
by Thomas A. Bowden
"Salting" occurs when a union inserts its organizers (called "salts") into an employer's workforce in the hope that they will be able to organize it. In this case, a salt named Starnes wanted to infiltrate an Indiana heating and air conditioning contractor without anyone knowing about his union affiliation. So, he lied on his employment application, stating that he had been laid off from his previous job when in fact he had taken a leave of absence to participate in union organizing efforts.
When the company found out about Starnes' false statement, it fired him, relying on an Indiana law that makes telling such falsehoods a crime. But that discharge was an unfair labor practice, a federal appeals court said, since it is illegal to make an employment decision based on union affiliation or "salt" status. In other words, even though Starnes lied, the lie didn't matter -- even if the company had known the truth, it could not have let that truth influence its employment decisions.
Starnes won an award of back pay, but only for the few hours between the time of the illegal discharge and the time that the company discovered a legal reason for firing Starnes. It seems that he also lied about his driving record -- he had two speeding tickets, not just the one he had mentioned, and the insurance company rejected him. Discharging Starnes on that basis was legal, the court said, since the decision was made according to a company policy that was applied across the board, without regard to union status.
Hartman Brothers Heating & Air Conditioning, Inc. v. NLRB, Nos. 01-1321 and 01-1549 (7th Cir., Feb. 6, 2002).
EEOC Sues Target For Discrimination, February 11, 2002
On Friday, February 8, 2002, the EEOC filed a lawsuit against Target Corp. in Wisconsin Federal Court alleging discrimination against Black job applicants at eleven Wisconsin stores. The EEOC complaint alleged that Target employees routinely destroyed the job applications of Black individuals who attended job fairs at Marquette University and the University of Wisconsin. It also alleges that Black college graduates were not granted interviews when their white counterparts were interviewed and hired for management jobs.
Here, Taste This, February 6, 2002
An assistant manager at Walmart, who fancied himself an Iron Chef, was fired by the company for stealing. What did he steal? Expired meat from Walmart's waste barrel to make "carne asada" for himself and some of the crew. As Tom Smothers has said: "Red meat is not bad for you. Now, blue meat. That's bad for you."
It turned out to be bad for Walmart, who was ordered to pay the assistant manager $167,000 for wrongful discharge under California law. A federal appeals court upheld the verdict. Janes v. Wal-Mart, No. 00-55611 (9th Cir. February 4, 2002). It seems that firing an employee chef for finding ingredients in the trash can left a bad taste in the mouths of the jurors.
While California has some of the most liberal employment laws, this case illustrates the need to evaluate employee termination with some common sense. If a termination decision potentially "smells or tastes bad," spend a few minutes thinking about it before you fire the employee. It could save you $167,000.
Workers' Comp Covers Injury On Day Off, February 5, 2002
On her day off, Paula Wright went into the Beverly Fabrics store where she worked to sign a condolence card and to aid a co-worker organizing some merchandise. While in the store, she was injured by a collapsing shelf of store merchandise. She brought a suit for negligence as a result of her injuries in California state court, arguing that she was not limited to recovery under the workers' compensation remedy because she was on her employer's premises to engage in a voluntary social activity. A jury awarded her a half-million dollars.
The California Court of Appeal reversed the jury verdict, finding that her assistance in the store that day was "in furtherance of her employer's business" and she "was not engaged in a recreational or social activity at the time of her injury", therefore, workers' compensation was her only remedy. Wright v. Beverly Fabrics Inc., No. F035445 (Cal. Ct. App. Jan. 17, 2002).
Actual Notice Not Required Under COBRA, February 1, 2002
COBRA (not the snake, the Consolidated Omnibus Budget Reconciliation Act) requires employers to advise former employees of their right to continue health insurance coverage at their own expense. A federal appeals court in Louisiana has ruled that only a good faith attempt, not actual notice, is required. Degruise v. Sprint Corp., No. 00-31320 (5th Cir. January 28, 2002).
The case is interesting because it involved a certified letter that the former employee apparently refused (or failed) to pick up. The court noted that if the employer had also sent the letter by first class mail, the employee would have received it. While the court did not require first class mail under COBRA, this firm recommends that all certified letters be sent first class mail as well. While a certified mail green card proves that someone received the letter, return of the certified letter proves that the person did not receive the letter. In most instances, if first class mail is not returned, there is a legal presumption of delivery.
Worker's Comp Laws May Not Protect Company Officials, February 1, 2002
The Worker's Compensation Laws provide employers with immunity against being sued for negligence resulting in the accidental injury of an employee. While worker's comp premiums may seem burdensome, the benefit to the employer is immeasurable. If an employee is injured or killed, filing a worker's comp claim is their sole remedy against the company. Well, maybe.
A court in Missouri has reaffirmed the notion that an employer who deliberately puts an employee in harms' way may be sued for violating his personal duty of care to his employees. Logsdon v. Killinger, No. 24396 (Mo. Ct. App., January 17, 2002). The president of the company in that case knew he was ordering the employee to operate a defective forklift. The forklift overturned and killed the employee. The court said that while worker's compensation laws could protect employers from being sued for failing to provide a safe workplace, an act that increases the danger can give rise to a separate lawsuit.
Then again, a court in Alabama ruled that an employer was immune from a lawsuit under the worker's comp laws for injuries sustained by an employee right after she was fired. Cook v. AFC Enter. Inc., No. 2000917, (Ala. Civ. App., January 18, 2002). This case again illustrates the benefits to the employer of these laws, which employers frequently overlook.
Employee Claiming Harassment for His Effeminate Demeanor Can Sue, February 1, 2002
Title VII of the Civil Rights Act does not cover sexual preference. A gay man working for the postal service, however, can proceed with a sex discrimination case based on harassment arising out of his effeminate demeanor. Centola v. Potter, CA No. 99-12662-NG, (D. Mass., January 29, 2002). Sexual stereotyping, not sexual preference, was involved here, so the court found Title VII to apply.
Some of the harassment included taping pictures of Richard Simmons around the workplace, calling him a "sword swallower," questioning him about AIDS, and posting cartoons at his work station. His complaints to management were ineffective.
In Maryland, sexual preference discrimination is not permitted under state law. This Massachusetts case, however, raises the prospect that Title VII lawsuits may be permissible for gay men or women harassed by coworkers because of their appearance or demeanor.
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