The Best Evidence, July 29, 2008
Mullican Lumber & Manufacturing Company withdrew recognition from the United Mine Workers based on unsolicited statements from employees and a statement from a woker that a decertification petition had been filed. The Union filed a charge but during the proceedings would not tell Mullican how many union members had signed the decertification letter. The Court held that the statements from the employees and the letter from the employee who filed the decertification petition were the best types of evidence the employer could have presented about the loss of majority support in light of the Board's policies prohibiting an employer's involvement in decertification efforts. The decertification was upheld.
Family Matters, July 28, 2008
The EEOC brought retaliation charges against Walmart for failing to hire a brother and sister because their mother filed a discrimination claim against Walmart. The EEOC included a retaliation claim for the mother as well, stating that Walmart didn't hire the mother's children because of her protected activity, which would prevent other parents from exercising their rights in the future. The Court held that the children had not engaged in a protected activity and so they had no claims for retaliation. The children's cases were dismissed but the mother's case was allowed to proceed.
The Comfort Mission Rule and Workers’ Compensation Claims, July 25, 2008
by Meg Gallucci
Oklahoma’s highest court has ruled that a night watchman who was shot while off the premises of the store where he worked was eligible for workers’ compensation because the terms of his employment necessitated his leaving the premises for food and bathroom breaks. In reaching the decision, the court stated, “It would be unreasonable for an employer to expect an employee to go without food or drink and without a bathroom break during a seven-hour shift.”
The injured employee was a merchandise stocker for K-Mart in Tulsa, Oklahoma. He agreed to return to work after the end of his regular shift to guard merchandise placed outside the store for a sale. The employee was to remain in his car outside the store and guard the merchandise from 11:00 p.m. to 6:00 a.m. The K-Mart was locked for the night. The night manager told the employee to use a local convenience store for food and restroom breaks.
At 3:15 a.m., the employee drove to the convenience store, but it was closed for the night. He then drove to a local McDonald’s. A man hiding near the drive-through window approached the employer and demanded his car. The carjacker then shot the K-Mart employee in the face.
The employee filed a workers’ compensation claim. The claim was denied because the employee was off the business site performing a “special task” when he was shot. Despite the directive of the night manager, K-mart argued that the employee’s injuries did not arise out of and in the course of employment, and therefore he was not entitled to workers’ compensation.
The case wound in and out of the Oklahoma courts, but the Oklahoma Supreme Court ultimately found for the employee in stating, “An employee is in the course of employment if carrying out the employer’s purpose of advancing, either directly or indirectly, the employer’s interests.” The court then added, “An employee’s ministration to personal comfort and needs is an incident to the employment because it provides an indirect benefit to the employer.” The court allowed for recovery under the comfort mission rule which permits recovery for an employee who is injured while off the employment premises while ministering to his personal needs during working hours.
The case is K-Mart Corp. v. Herring, Oklahoma, decided on July 1, 2008.
EEOC Files Same Sex Harassment Suit, July 25, 2008
by Meg Gallucci
The Equal Employment Opportunity Commission recently filed a lawsuit in the U.S. District Court for the District of Arizona alleging that a class of male employees at a Cheesecake Factory restaurant in Arizona was subjected to a sexually hostile work environment by other male co-workers. The alleged hostility included repeated, aggressive sexual assaults by males who would physically grab or intentionally bump into their male co-workers in a sexual way while making offensive suggestive remarks. The conduct dated back to November of 2004 and continued for several years.
The plaintiffs complained about the harassment and contend that the employer ignored their complaints. One of the plaintiffs alleged constructive discharge because he quit when the employer did not act on his complaint to stop the assaults. The case underscores the importance of prompt employer investigation of all harassment claims and also illustrates that same sex harassment is an important issue in the workplace.
The case is EEOC v. Cheesecake Factory, Inc., D. Ariz., filed on July 10, 2008.
Promotional Work Is No Sale under the Fair Labor Standards Act, July 23, 2008
by Meg Gallucci
If a salesman cannot close the deal, he is not really a salesman under the Fair Labor Standards Act. For this reason, the Tenth Circuit recently found that civilians working as military recruiters for a private Army contractor did not qualify for the outside sales exemption pursuant to federal overtime law. While the civilians were responsible for finding recruits, they did not have the power to sign them up for military service. No firm commitment meant no sale.
Two salaried military recruiters sued their employer, Serco Inc., for non-payment of overtime. Their jobs consisted of cold-calling individuals to inform them about opportunities in the military, making on-site presentations about Army service and distributing information to potential recruits. The employees also interviewed and screened interested parties. If a potential recruit satisfied preliminary requirements, the employees often drove them to the military processing center where the Army interviewed them and gave them a physical. The recruits could then enlist at the processing center. The employees had no power to enlist recruits, and the power to make the “final sale” rested solely with the Army.
The two employees who filed suit had worked 480 overtime hours and 597 overtime hours respectively but were paid no overtime. The Court held that they were owed time and one-half for these hours because the hours were worked in excess of 40 hours per week. According to the Tenth Circuit, although the recruiters may have sold potential recruits on the idea of joining the Army, “[t]he touchstone for making a sale, under the Federal Regulations, is obtaining a commitment.”
The case is Clements v. Serco Inc., 10th Circuit, decided on July 1, 2008.
Disability Determination by the Social Security Administration Does Not Qualify Under the Americans with Disabilities Act, July 22, 2008
by Meg Gallucci
To prevail in a lawsuit under the Americans with Disabilities Act, a plaintiff must have a physical or mental impairment that substantially limits a major life activity and then show that the defendant discriminated against the plaintiff employee because of the impairment. The disability must substantially limit a major life activity, such as eating or sleeping, and the limitation must rise above a more minor complaint to be substantial. A plaintiff filing suit under the ADA cannot prevail without meeting the threshold substantial limitation standard.
The Sixth Circuit recently stated that a disability determination by the Social Security Administration does not necessarily meet the substantial limitation standard unless the plaintiff shows that the disability substantially limits a major life activity. The ADA standard is relatively high and not easily satisfied in many cases, even with a substantiated Social Security Administration determination of a disability.
The Court made the statement in the context of a plaintiff’s appeal of a summary judgment award granted a defendant employer. The statement disqualifying a determination of a disability by the Social Security Administration as necessarily meeting the ADA standard was a minor point in the decision but should be noted by employers and employees alike.
The case is Thornton v. Federal Express Corporation, 6th Circuit, decided on June 24, 2008.
Anxiety Caused By Wrongful Denial Of Leave Supports Damages For Lost Wagess, July 21, 2008
by Meg Gallucci
The Ninth Circuit recently held that an employee in Oregon could recover damages under the Family Medical Leave Act for work absences caused by an emotional condition that resulted from the employer’s wrongful denial of leave under the Act. Confused? Here is how the case transpired.
The employee worked as a bus driver. He had numerous health problems and in September of 2003, he requested FMLA leave. The company denied his request for leave. The employee suffered additional stress because of the denial and was thereafter diagnosed with anxiety, depression and an adjustment disorder in addition to his other health problems. He was unable to work, and his doctor ordered him to take time off.
The employee sued for wrongful denial of leave. A jury found that the company had wrongfully denied the employee leave under the Act which caused him to miss additional days of work. The jury awarded the employee $1,110.00 in lost wages.
The company appealed, admitting the FMLA violation but arguing that the jury awarded damages to the employee for emotional distress or psychic damages. The company further argued that Congress did not intend the FMLA to permit recovery for such damages. The Court, however, quoted the Act which holds employers liable for “any wages . . . lost by reason of the violation” and characterized the jury award as being for days that the employee missed and not for emotional distress. As such, the damages were easily quantifiable and awarded on the basis of what the employee would have earned on the days he lost because of the violation.
The case is Farrell v. Tri-County Metropolitan Transportation District Of Oregon, 9th Circuit, decided on June 27, 2008.
Do Not Alter Time Records, July 17, 2008
A federal appeals court has ruled that an employee seeking unpaid overtime compensation does not have to submit specific evidence of hours worked where the employer has altered the employee's time records. Brown v. Family Dollar Stores of Ind. LP, No. 06-3529 (7th Cir., July 15, 2008). If the employer has altered records to make it impossible to reconstruct the number of hours actually worked, the court will allow a jury to "infer" from the evidence how much time was worked. Therefore, the employee could actually be awarded more than he would be entitled to receive if the time records kept by the employer had been accurate.
Recording Employee Conversations, July 16, 2008
Under Maryland law, it is unlawful to record the conversation of any person who has not given his consent. It is permissible to videotape, but not capture audio. There is also a federal wiretap law that is less restrictive, permitting recording in many instances where one of the parties has consented. The more restrictive Maryland law, however, is enforceable in the state.
A federal court in Oklahoma has allowed a former employee to pursue invasion of privacy claims, as well as claims under federal wiretapping laws, against her former employer, who recorded her conversations with clients of a weight loss center. While the court did not allow the employee to pursue wrongful termination claims, it did hold that the employee could sue for the tape recording if it violated federal law. Smith v. NWM-Oklahoma, LLC, Inc. , No. 07- 328 (W.D. Ok., July 8, 2008).
In Maryland, employees may have their conversations recorded if they are told, beforehand, that such recordings will take place. That constitutes consent. Recording conversations between employees and customers, however, is illegal unless the customer is also aware that the conversation is being recorded.
Rap Music Is Not Welcome In The Workplace, July 9, 2008
The EEOC and Novellus Systems, Inc. recently settled a lawsuit in which the EEOC alleged that Novellus fired a black employee after he complained about a coworker who played rap music featuring racial epithets. According to the EEOC, the employee complained to supervisors and made it clear that he found the rap lyrics offensive, but Novellus did not take corrective action. Novellus agreed to pay $168,000 and will take a variety of actions designed to beef up its anti-discrimination policies. These measures include adopting a zero tolerance policy for harassment that specifically refers to music played in the workplace. Novellus denied the EEOC allegations. The consent decree provides that Novellus does not admit liability.
New Disney "Riding" Attraction? July 2, 2008
Several people who drive the Segway brand motorized transportation machine have sued Walt Disney World for the right to tool down Main Street U.S.A. on their devices. The plaintiffs filed a class action lawsuit in federal court alleging that they are disabled and that Disney is required by law to accommodate them by permitting Segway traffic throughout all of the Disney theme parks. The lawsuit has survived a motion to dismiss is moving into the discovery phase of litigation.
Immigration Discombobulation, July 1, 2008
Employers who hire and retain illegal immigrants are becoming splashy newspaper headliners. Aramark tried to establish its commitment to comply with the law by checking social security numbers and requiring those employees whom the government reported as unverified to establish their right to work in the United States or get fired. When the government reported that several employees were unverified, Aramark allowed those identified as out of compliance some time to straighten the problem, then fired them if they failed to do so. Their loyal union, SEIU, dutifully filed a grievance and proceeded to arbitration where the arbitrator ruled that employees with invalid social security numbers cannot be fired even if they do not rectify the problem. That decision was upheld by the federal courts. Consistent government? Who needs it.
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