Yeah, Uh, It Was My Wife What Done It, March 30, 2005
Weyerhaeuser Company negotiated a termination rule with its union: "Being on the Company mill site, including the parking lot, with any firearm, explosives, or weapons of any kind." One of its employees was found to have a loaded .22 caliber pistol in his pickup truck at work, and was terminated. Seems pretty straightforward, right? Not to arbitrator James P. O'Grady.
The grievant's story was that after a romantic his and her hunting trip, his wife made a big mistake. According to the employee, he "was not aware that his wife did not remove her gun from his truck when he removed his bow and rifle from his truck." Somehow that made a lot of sense to O'Grady. In fact it was so obviously true to O'Grady that he chastised the Company for "act[ing] short of having all the credible facts," in putting the poor victim of circumstance back to work with full back pay.
Living In The Right Place, March 29, 2005
Think the court one is in does not matter? Try this pair of opinions published on the same day last week from different courts.
A 14-year old girl worked as a server of food at a home for retired priests. One of the retired priests touched her thigh on some 10 occasions. The girl complained to the governing Bishop after which she was confronted, and intimidated by the retired priest about her complaints. The Bishop then strongly suggested that she resign after causing such a ruckus.
Elsewhere, three African-American lifeguards were inappropriately called n**ggers on one occasion. The employee who hurled the epithet once was fired, and an apology was issued immediately by the employer. There was no evidence that the employer condoned or accepted such conduct in any way.
The girl's case was dismissed. The lifeguards received $167,000.00 each. And, so it goes.
Professor's Outlandish Proposal for "Members-Only" Unions, March 21, 2005
by Thomas A. Bowden
When a majority of employees in a bargaining unit votes to be represented by a labor union, the employer must bargain collectively through that union. But what about workplaces where no majority has yet elected a collective bargaining representative by majority vote? Can groups of employees comprising less than a majority force employers to bargain with their unions?
Yes they can, said noted Law Professor Charles J. Morris in a recent speech. A group of employees consisting of less than a majority in a bargaining unit can select a union to negotiate with the employer, and the employer is obligated by Sec. 8(a)(5) to bargain with that union. This practice was commonplace in the steel and auto industries in 1935, when the National Labor Relations Act was passed, Prof. Morris said. It fell by the wayside once unions started to win majorities in large bargaining units.
But though it's forgotten, it's still perfectly legal, said Prof. Morris, and it's "now ready for revival." One or more groups of employees may form "members-only" unions without holding elections and without any one group having a majority in the bargaining unit. These unions are subject to displacement when and if a majority in the bargaining unit designates another representative.
"Cold Shoulder" Not Sexual Harassment, March 21, 2005
by Thomas A. Bowden
Britta Sundberg worked in the admissions office of a career college. Her supervisor was Elizabeth Beseke. The two women often discussed their personal lives. One day, the supervisor asked Sundberg: "So what's up, do you like guys or girls?" When Sundberg didn't answer, Beseke assured her "It's okay if you're gay." A few days later, Sundberg told Beseke that the previous conversation made her uncomfortable and that Beseke's comments were a "lawyer's dream case." Beseke became angry, and the two women agreed they would never discuss their personal lives again. They never did.
Sundberg sued for sexual harassment under the Minnesota Human Rights Act. A federal judge threw out the claim. Sexual harassment requires "severe and pervasive" sexually oriented conduct. Where you have a "brief unpleasantness" followed by the "cold shoulder" treatment, and where there's no clear adverse action (such as discharge, demotion, or discipline), there's just not enough evidence to sustain a sex harassment claim.
Sundberg v. High-Tech Institute, Inc., 2005 WL 174841 (D. Minn., Jan. 26, 2005).
Where's My 5% Raise? March 21, 2005
by Thomas A. Bowden
Thalia Gillis was a probation officer in Georgia. She sued for race discrimination (she's black) under Title VII. However, the federal trial court refused to hear her case because she had not suffered an adverse action. She had not been fired, or demoted, or disciplined, or had her pay cut. In fact, she received a pay raise of 3%, based on a performance review showing she "met expectations."
Gillis appealed that decision. The federal appeals court sent her case back to the trial court for further proceedings. There actually was an adverse action, the appellate court ruled. It consisted of denying Gillis a bigger raise, the 5% raise she would have received if her performance rating had showed she "exceeded expectations."
Lesson for employers: You cannot prevent discrimination suits by keeping everyone employed and giving them raises. If there's any chance that the bigger raises are being held back on discriminatory grounds, a lawsuit is possible.
Gillis v. Georgia Dept of Corrections, 2005 WL 388280 (11th Cir., Feb. 18, 2005).
Department Of Labor Focused On Unemployment Insurance Reform, March 17, 2005
The U.S. Department of Labor has turned its attention to the nation's unemployment insurance system, which is implemented, for the most part, by the states with support from the federal government. The agency has initiated a five-year study into the economic impact of the unemployment insurance program, as well as information regarding recipients of unemployment insurance benefits and other related issues.
The labor department has also drafted a legislative proposal geared towards reforming the system, along with its 2006 budget request for $2.6 billion for state administration of the benefits. The proposal includes an increase in funding for state grants to monitor and crack down on identity theft in unemployment benefits claims. According to the department, the number of incidents involving false claims for benefits using employees' stolen identities is on the rise in recent years – in one case amounting to over $8 million in fraudulent claims.
In an effort to cut down on other abuses of the system, the agency also seeks additional funding to assist states in making sure that unemployment recipients are regularly looking for work, as they are required to do. The Department of Labor's proposal is currently before the House Ways and Means Committee.
Is Employer Liable For Injuries Suffered By Employee On Her Way To Work? March 16, 2005
Employers have the obligation to take reasonable measures to keep their employees safe at the workplace. Does that mean that an employer is responsible for their employees' safety while on their way to work? The answer is an emphatic "no" – according to one Florida court.
In Hernandez v. Tallahassee Med. Ctr. Inc., No. 1D04-0458 (Fla. Dist. Ct. App. Feb. 23, 2005), a nurse who suffered injuries as a result of an epileptic seizure which occurred on her way to work sued her employer for negligence and intentional infliction of emotional distress. She alleged that her supervisor required her to come into work "right away" while she was on-call, knowing that she had epilepsy and would have to drive in against medical advice. When she suffered a seizure during the drive into work, which resulted in permanent injuries, she sued her employer, claiming that her employment relationship with the hospital obligated it to protect her from harm during her commute.
The court disagreed, dismissing her claim. The employer had no liability to the nurse for her injuries suffered during her drive to work, even though the supervisor knew she should not drive, because the employer's conduct – merely requesting her to come into work – did not create the risk of harm. Even though there may be a "special relationship" between employer and employee at the workplace, that relationship does not extend the employer's duty to keep employees safe outside the scope of employment – including their commute to work. The court also held that the plaintiff had no intentional infliction of emotional distress claim because requiring her to report to work while she was on-call did not equate to "outrageous" or "extreme" conduct required for the claim.
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