Genetic Makeup Discrimination? July 23, 2004
It appears that an attempt to add "genetic makeup" discrimination to the Civil Rights Act will fail, at least for now. It is being reported that following a hearing on the bill in the House of Representatives, lawmakers are stating that the bill is unlikely to reach a vote. The bill appears to be the result of concern that employers will use the results of sophisticated genetic testing to screen out applicants/employees with health risks.
Homeless For Hire Dot Com, July 22, 2004
The Department of Labor on July 21 launched a new website, http://www.dol.gov/dol/audience/
aud-homeless.htm, designed to help homeless people find jobs. One might wonder if the DOL also intends to install wireless networks in shelters, hand out IBM Thinkpads, and offer 1600 hours of AOL to the people in need of such a website. The DOL, however, contends that many "transition centers" for the homeless have computers.
Insurance Adjusters Not Exempt From New Overtime Regulations, July 20, 2004
In what is likely one of the first cases interpreting the newly-revised FLSA overtime regulations (taking effect on August 23, 2004), a federal court in Washington, D.C. ruled that insurance adjusters employed by GEICO are not exempt from the regulations and are entitled to overtime pay. See Robinson-Smith v. Gov't Employees Ins. Co., No. 01-1340 PLF (D.D.C. July 1, 2004). Prior to the court's decision, the insurance company considered the adjusters to be covered by the administrative exemption to the overtime rules, because their salaries far exceeded the statutory threshold and because their duties fit within the exemption's requirements. More than 280 current and former adjusters disagreed, suing for millions of dollars in unpaid overtime compensation and other damages.
The adjusters draft damage estimates, relying heavily on the company's computer software program. To be considered exempt employees, they must meet both a salary test (requiring them to earn at least $455 per week under the revised rules) and a duties test. Because he made $41,000 annually, the lead plaintiff easily met the salary test. The duties test for the administrative exemption, requires the adjusters to perform work (1) that is directly related to the management policies or general business operations of the employer, and (2) requires the exercise of discretion and independent judgment. The court, relying on the description of the administrative exemption in the new regulations, found that the adjusters do not exercise sufficient judgment and discretion to meet the requirements of the exemption. Because the majority of their work does not involve more than the use of their skills and training in "well-established techniques, procedures or specific standards" set forth by their employer to assess the amount of vehicle damage, the adjusters are not exempt.
Employers Fined $325,000 for Violations of Fair Credit Reporting Act, July 19, 2004
An employer that runs two casinos has agreed to pay a fine for using credit reports to screen applicants for jobs involving the handling of money. While the Fair Credit Reporting Act allows employers to use credit reports, the Act also requires that employers inform employees of their rights and furnish copies of any reports used to deny employment.
Under the Act, employers are required to get proper authorization from job applicants to run credit reports and to provide an explanation of their rights. If the applicant is turned down, or a current employee is discharged, the Act and the Federal Trade Commission require employers to provide a copy of the credit report and the following information, among other things:
-
Identity of the credit bureau.
A statement that the credit bureau did not take the adverse employment action.
An explanation of the person's right to get a copy of the report.
Notice of the individual's right to dispute information in the report.
United States v. Imperial Palace Inc., No. CV-S-04-0963-RLH-PAL (D. Nev, 7/13/04).
If you use credit reports, please make sure you are complying with the Fair Credit Reporting Act.
Trangendered Employee Has Title VII Claim, July 8, 2004
Any employment lawyer who has practiced for more than a decade probably assumes that Title VII of the Civil Rights Act of 1964 does not cover transsexuals, transvestites or other transgendered individuals. It’s simple: lots of cases have held that “sex” discrimination does not extend beyond traditional notions of “male” and “female.” Besides, sexual orientation is not a protected class under federal law, so why should the transgendered be protected?
Such an assumption appears to be no longer valid. There is a growing trend in the federal courts to recognize a cause of action for sex discrimination when a transgendered employee suffers an adverse employment action. This development is grounded in the Supreme Court’s decision in Price Waterhouse v. Hopkins, the case that found sex stereotyping can violate Title VII. Recently, in Smith v. Salem, Ohio, 369 F.3d 912 (6th Cir. 2004), the Court of Appeals for the Sixth Circuit used the Price Waterhouse analysis to hold that a transitioning pre-operative transsexual could proceed with his claim of sex discrimination both because of sex stereotyping and because transgendered individuals are covered under the Act.
Pro Se Employee Gets to Take Case to Trial, July 7, 2004
Courts often bend over backwards to ensure that a workers who sue their employer without a lawyer get the benefit of the doubt. A recent Ninth Circuit decision reinforces this fact. In Fonseca v. Sysco Food Services of Arizona Inc., No. 03-15193 (9th Cir. July 6, 2004) the court held that a trial court had been too hasty in dismissing a Hispanic warehouse employee’s claim of discriminatory discipline and overtime violations.
Fonseca was disciplined, he believed unfairly, for violations of company policy and also denied overtime opportunities. Fonseca filed an internal grievance and the matters were resolved in his favor. Dissatisfied with this positive result, he then sued -- without the help of a lawyer. Sysco argued that because the claims had been resolved in Fonseca’s favor through the grievance procedure, he had no claims to pursue in court.
Reversing the trial court’s dismissal of Fonseca’s claim, the Ninth Circuit held that “it is an adverse employment action when an employer knows its employees are entitled to certain opportunities, but forces only employees of a certain race to use the grievance procedure to obtain them.” As a result, successfully grieving an adverse action “does not preclude an employee from pursuing a claim of discrimination.”
But the court went further. When it ruled in Sysco’s favor, the trial court had rejected Fonseca’s only evidence of disparate treatment as inadmissible hearsay and sanctioned Fonseca for his failure to disclose the witness who provided this testimony until after discovery had ended. If a lawyer had “hidden the ball” in this way, you can bet that sanctions would have been forthcoming.
The Ninth Circuit took issue with the trial court’s decisions here, however, because of Fonseca's Pro Se status. Holding the lower court had failed to give Fonseca proper notice “regarding the complex procedural issues involved in summary judgment proceedings” before issuing sanctions, the appellate court considered Fonseca’s late notice of his one supporting witness “harmless” and “substantially justified.” It reversed the dismissal and sent the matter back for a trial.
The moral: lawyers representing employers in Pro Se situations should bend over backwards to ensure that the Pro Se plaintiff understands his rights and responsibilities as a party. Otherwise the court will do it for you.
Fmla Rule Changes Postponed Until March 2005, July 6, 2004
The DOL announced last week that its proposed revisions to Family and Medical Leave Act Regulations will have to wait until March 2005. The DOL first planned to unveil the revisions in January 2003, but it has repeatedly extended the time frame, partly because the agency was busy finalizing its changes to the Fair Labor Standards Act.
The planned FMLA changes are necessary as a result of the Supreme Court’s 2002 decision in Ragsdale v. Wolverine Worldwide Inc., 535 U.S. 81, (2002) and will address that decision as well as issues raised in other recent cases. In Ragsdale, the Court tossed out the DOL Reg that provided FMLA leave does not begin running until an employer notifies and employee the time off will count as leave under the law. A number of other requirements have also faced challenge as impermissibly expanding the scope of the Act beyond that intended by Congress.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 2008 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.tm
