Shifting Reasons for Termination Helps Plaintiff's Discrimination Claim Survive, November 25, 2002
When an employer terminates an employee, it is always better if the reason given for the firing does not change later if the discharge is challenged. The Fourth Circuit recently overturned summary judgment for an employer when it found that the company had proffered a false reason for the termination, later providing the "real" reason. In shifting its stated reason for over time, the employer lost credibility with the court, and the case was returned for a jury trial. Siraj v. Hermitage in Northern Virginia, No. 01-1675 (4th Cir. Nov. 15, 2002)(unpublished opinion).
Siraj was a nursing home employee who was assigned to the personnel department. She was responsible for departmental records on employee background checks and job descriptions to comply with state law. One department head did not submit his records for new employees, although Siraj repeatedly reminded him and notified her boss of the failure. In preparation for an inspection by the Virginia social services department, Siraj took the relevant personnel files to her boss. She noted the omissions on a yellow sticker and told him that the paperwork was incomplete. After the inspection, Siraj's boss told her that the inspectors found the files incomplete and fired her. He gave her a document stating that she was being fired for poor performance.
Siraj, who was originally from Ethiopia, complained that her discharge was discriminatory. After she sued in Federal Court, the company claimed that she had been fired because she "because she deliberately sought to sabotage its performance in the Social Services Department's 1996 inspection by choosing incomplete files for the inspectors to review."
Reversing the trial court's decision for the company on summary judgment, the Fourth Circuit found that the shift in the stated reason for Siraj's termination was sufficient to create a credibility dispute that a jury should resolve. The court remanded the case for trial.
Can Employers Control Use of Company Email for Union Activities? November 22, 2002
by Thomas A. Bowden
The National Labor Relations Board is considering how far employers can go in regulating employees' use of company email for union activities.
In one case under review, the employer included in its proposed collective bargaining agreement a clause prohibiting the use of email for union purposes. The administrative law judge declared this to be an illegal topic of bargaining, because such a prohibition discriminates against unions in violation of Section 8(a)(5).
In the other case, the company's "overly broad" email policy was struck down as interfering with the employees' right to organize.
An employers' group has asked the NLRB to take the rare step of entertaining oral argument on the issue, a request that the AFL-CIO opposes.
Federal Appeals Court Finds Required Training Not Compensable Under FLSA, November 20, 2002
Under the Fair Labor Standards Act, an employer must compensate employees for training programs unless: attendance is outside normal work hours, attendance is voluntary, the training is not directly related to the employee's job, and the employee does not perform productive work during the training. A federal appeals court was asked to decide whether training could be voluntary where completion of the training was a condition of employment disclosed before hire.
The training involved was a 10-hour OSHA certified construction class. The court decided that the training was voluntary and therefore not compensable. Chao v. Tradesmen Int'l Inc. No. 00- 4434 (6th Cir. November 15, 2002). The court found that even though the employees had already been allowed to work on a probationary basis, completion was a requirement of the job known to the employees at the time of hire.
Employer Cannot Deny Performance-Based Payments to Salesman Who Quit, November 15, 2002
by Thomas A. Bowden
Maryland's highest court has ruled that even if a written employment contract sets continued employment as a condition for receiving performance-based incentive payments, the employer cannot refuse to pay just because the salesman quit before the money was payable.
Timothy McCabe worked for Medex, a medical supplies manufacturer, as a sales representative, earning a yearly salary of $49,000. Both the employment handbook and the incentive plan stated that payment would be conditioned upon the salesman still being employed at the time of actual payment.
Medex's incentive payment plan was tied to meeting certain sales goals. In other words, the payments were compensation for the employee's good performance. McCabe would have received $32,850.73 under the plan on March 31, 2000, but he resigned on February 4. Relying on the continued-employment condition, Medex refused to pay the money. McCabe sued under Maryland's Wage Payment and Collection Act, under which an employee who is denied his wages can sue for treble damages ($98,552.19 in McCabe's case) plus his attorney fees.
Maryland's highest court allowed McCabe's case to go forward despite the contractual clauses seeming to limit his recovery. Such contract language is against public policy, the court ruled. Employees must be paid what they earn by their performance. The court also ruled that a jury, not a judge, must be permitted to decide whether McCabe is awarded treble damages.
Two judges dissented, pointing out that other Maryland cases permit bonuses and other incentive payments in exchange for continued employment.
One message is clear: Employers with continued-employment clauses in their incentive or bonus plans should revisit those contracts, with the help of their legal advisors, to maximize their enforceability. Medex v. McCabe, Md. Ct. of App., Nov. 14, 2002.
No Protection from Discharge Before Filing for Bankruptcy, November 15, 2002
An employee who owes your company a large amount tells his manager that he is about to file for bankruptcy, thereby leaving you holding the bag. Can you fire him for that reason? You can, if you do so before he files, according to the Ninth Circuit. In the first appellate court decision on the issue, the court held that the employee is not protected by the bankruptcy code section that makes it illegal for employers to fire workers solely because they file for bankruptcy. Leonard v. St. Rose Dominican Hosp., No. 01-15544 (9th Cir. Nov.13, 2002).
Working for another employer, Norman Majewski was injured and amassed a $10,000 medical bill at St. Rose Hospital. He started working at the Hospital, and there were discussions about how he was going to pay the outstanding amount. During these discussions, Majewski told the Hospital that he intended to file for bankruptcy. The Hospital then fired him before he filed a formal petition.
After Majewski filed his bankruptcy petition, he claimed that the Hospital violated the law by discriminating against him because of his bankruptcy status. The Bankruptcy Code provides that a private employer cannot fire an employee "solely because such debtor or bankrupt . . . is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act . . ." The bankruptcy court dismissed the claim, holding that the law does not protect employees who have not yet filed for bankruptcy. Nevada's federal district court agreed.
On appeal, in an 2-1 decision, the Ninth Circuit held that the lower courts got it right. "Bankruptcy's fresh start comes at the cost of actually filing a bankruptcy petition, turning one's assets over to the court and repaying debts that can be paid," said the court. "One is not entitled to the law's protections, including employment security and the automatic stay of litigation, before being bound by its other consequences." The dissent argued that the court adopted an "unnaturally rigid" construction of the Bankruptcy Code.
The dissent had a point. Retaliation provisions of most anti-discrimination statutes are interpreted broadly by courts. Employers cannot legally fire someone because he has complained to management of discrimination or harassment, but who has not yet filed an EEOC charge. Majewski's case differed, said the Ninth Circuit, because "while we encourage reporting of statutory violations, we do not wish to encourage persons to file for bankruptcy or to threaten bankruptcy. We wish only to protect those persons who have invoked the bankruptcy law's protections to obtain a fresh start."
Federal Appeals Court Finds Transfer Not "Adverse Action" Because New Job is More Demanding, November 15, 2002
To sustain a discrimination action, employees must normally demonstrate that they were the victims of an adverse employment action. Discharge and other discipline are classic examples of adverse action. Transfer to another department doing similar work is normally not.
A female laborer who complained of sexual harassment was transferred to another job that was more physically demanding. She complained that because the new job was harder, her transfer was an adverse action in retaliation for her complaints. A jury agreed to the tune of $43,000.
Reversing the jury verdict, a split federal appeals court ruled that the differences in job duties were not enough to find adverse action. White v. Burlington N. & Santa Fe Ry. Co., No. 00- 6780 (6th Cir., November 13, 2002). Besides, her job description made it clear that physical labor was part of her job.
Federal Judge Allows Challenge to Prohibition Against Noncitizen Airport Screeners Stand, November 15, 2002
The next time you are asked to get undressed at Gate B-23 by an airport screener, feel comforted that at least one judge in Los Angeles thinks the Constitution may require that screener to be a citizen of Saudi Arabia. While the judge did not actually find the ban unconstitutional, he was unwilling to dismiss the lawsuit challenging the ban at an early stage. Let's hope the government lawyers defending the suit can later convince him that the Constitution, which requires the president to be a natural born citizen, allows the government to consider citizenship in airport security situations. Gebin v. Mineta, No. CV 02-0493-RMT (CD Cal. November 12, 2002).
Severe Hemorrhoids Aren't Disability, November 14, 2002
Hemorrhoids are a pain, but not a disability under the ADA. A federal district court in Alabama recently held that a store manager who claimed she was terminated, not for poor performance, but because of her acute hemorrhoid condition did not have an ADA claim. Granting summary judgment for the employer, the judge stressed that "To characterize such a common malady as hemorrhoids, even severe hemorrhoids, as a disability would thwart the purpose of the ADA." Davis v. BellSouth Mobility, LLC, No. CV-01-AR-0986-S (N.D. Ala. Nov. 1, 2002).
Charlotte Davis worked her way up from temporary clerical employee to store manager at BellSouth. Unfortunately, Davis suffered from hemorrhoids and had three surgeries that kept her off work for periods of time. She was on short term disability and returned to work without restrictions, other than her doctor's request that she get additional time in the bathroom
Davis claimed that, after she returned to work, her supervisor started gathering evidence to fire her. The Company countered that her performance had been poor and that it followed a progressive discipline process. After she was fired, Davis sued claiming that her acute hemorrhoid condition affected her bowel control and made it necessary for her to return home to change her clothes.
The court granted summary judgment because "Davis has not proven that she is 'substantially' limited in any life function," said the judge. "The record evidence indicates that Davis was not and is not severely restricted or preventing from doing any activity that is of central importance to most people's lives." Most significant was Davis's own doctor, who testified that he expected Davis to make a full recovery and had placed no restrictions or limitations on her job. Ouch.
American Arbitration Association Announces Fee Change, November 6, 2002
The American Arbitration Association ("AAA") does not work for free. When a demand for arbitration is made, a filing fee normally needs to accompany the demand. In commercial cases, it is a percentage of the amount in dispute.
Noting that courts are more amenable to the arbitration of employment disputes, AAA has announced that it will cap the employee portion of the fee to $125.00. The balance, which can be between $250 and $1,250 dollars depending on the number of arbitrators, must be paid by the employer.
Narcolepsy May Prevent Termination for Sleeping on the Job, November 6, 2002
A federal trial court has allowed an employee discharge for sleeping on the job to go forward with his claim of disability discrimination under the ADA. The employee, who fell asleep several times a day, was still in the diagnosis phase. The court, however, find that there was enough evidence to put the employer on notice that the sleep condition needed an accommodation under the ADA. Sanzo v. Uniondale Union Free Sch. District, No. 02-CV-893 (EDNY, November 1, 2002).
Discrimination in Assignment of Police Officers, November 6, 2002
A federal appeals court has ruled that the New York City Police Department violated the federal equal protection clause when it transferred black and Hispanic officers, on an emergency basis, to a precinct where white officers had beaten a Haitian prisoner. Patrolmen's Benevolent Ass'n of New York City Inc. v. New York City, 90 FEP Cases 1 (2d Cir., October 17, 2002). The transfers, based on the race of the officers, were not found to be so necessary as to allow a violation of the officers' right not to be selected based on race.
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