Naval Reservist Has Unqualified Right to Job, September 30, 2002
by Thomas A. Bowden
USERRA (the Uniform Services Employment and Reemployment Rights Act) provides an unqualified right of reemployment to members of the military, if they give proper notice and are away less than five years in military service.
In a recent case, a gasoline loader and filler gave proper notice and went on leave to fulfill his obligation in the U.S. Naval Reserve. Three weeks later he returned to work, but shortly thereafter he was fired. He sued under USERRA, and the employer said in its defense that the discharge was not motivated by the plaintiff's service in the military.
The motivation doesn't matter, the court ruled. There is an absolute right to reemployment, unless that would be unreasonable, impossible, or create an undue hardship. It's not necessary for a plaintiff to prove a discriminatory motive.
And by the way, the court said, don't imagine that your obligation to reemploy is satisfied by bringing the service member back for a day or two and then letting him go. That kind of treatment will be viewed as a failure to reemploy.
Jordan v. Air Products and Chemicals, Inc., C.D. Calif. No. 01-5471, Sept. 24, 2002.
Animal Worship Not a Religion, September 20, 2002
by Thomas A. Bowden
Courts are often forced to grapple with the question, "What is a religion?" in religious discrimination cases, especially in California, where new religions seem to sprout like vegetables.
In one recent case, a California computer worker was denied a job in a pharmaceuticals factory because he refused to take a mumps vaccine. Why did he refuse? Because the vaccine was grown in chicken embryos, and this offended him as a dedicated vegan.
He filed a charge under the California Fair Employment and Housing Act, alleging religious discrimination. Veganism, he argued, is a belief system as central to his life as religion is to a Christian or Jew. A State appellate court disagreed, saying veganism is not a religion but simply an ethical belief in the sanctity of animal life.
Because vegan beliefs do not address fundamental or ultimate questions about the meaning of human existence, and because veganism has no leaders, ceremonies, organization, articles of faith, or holidays, the court held that the worker could not proceed with his claim.
Friedman v. Southern Calif. Permanente Med. Group, Cal. Ct. App. No. B150017, Sept. 13, 2002.
OSHA Chief Promises More Inspections, September 19, 2002
John Henshaw, the Assistant Secretary of Labor in charge of OSHA, has announced that the agency intends to conduct 1,300 more inspections next year than the 36,400 conducted this year. This seems to contrast with OSHA's announcement (see September 5 quick clip) that it is reorganizing to provide more assistance to employers, rather than emphasize enforcement.
Henshaw also announced that despite great opposition to the ergonomic standards proposed by OSHA, he would use the General Duty Clause to cite employers for ergonomic problems. The General Duty Clause requires employers to provide workplaces free from recognized hazards likely to cause death or serious injury, even where there are no specific standards in place.
OSHA also added the nursing home industry to its list of targeted employers for increased inspections. The agency will look at exposure to infectious diseases, ergonomics involved with handling patients, tuberculosis exposure, and hazards relating to "slips, trips, and falls."
Laptop Computer - Not A Reasonable Medical Service, September 17, 2002
In 1997, 19-year old employee Walker Castle had a serious accident at work. He accidentally fell through a chute used to collect scrap cardboard and landed in a bailing machine that crushed his legs and lower body. Both legs were amputated at the hip. While recovering in a residential care facility, Castle asked for and received a laptop computer. When the hard drive failed, Castle requested another computer, this time, with adaptive devices for use while lying down.
Iowa code § 85.27 states that employers must provide injured employees with reasonable medical services and supplies, including "reasonable and necessary crutches, artificial members and appliances." Agency regulations define "appliance" as hearing aids, corrective lenses, orthopedic braces, or "any other artificial device used to provide function or for therapeutic purposes."
Castle argued that a computer with adaptive devices was necessary for his care, treatment and therapy, particularly with his occupational and rehabilitative therapy. The Iowa Appeals Court disagreed. It held that a computer does not qualify as an "appliance" under the medical care provisions of Iowa's workers' compensation law. "We acknowledge that, in rare circumstances, the Iowa Supreme Court has construed 'appliance' . . . to include something other than what would traditionally be considered a medical device," the court stated. However, it was not willing to broaden the definition in this case. Stone Container Corp. v. Castle, No. 2-159 (Iowa App. Ct., Sept. 11, 2002).
Perhaps workers' compensation was not the only alternative for this employee. Appealing to the company's conscience might result in a new laptop, no legal fees, and good feelings all around.
Unlimited Bathroom Breaks Touted As Victory, September 10, 2002
Ever see a co-worker take a newspaper into the stall next to you, only to emerge an hour later having read it cover to cover? How about a cigarette break in the bathroom? One cigarette can take at least ten minutes to smoke, not including clean-up time. In some businesses, the restroom is where employees gather to gossip. Imagine how much money this costs an employer. Perhaps this type of behavior is what Jim Beam Brands Company hoped to avoid by establishing a "bathroom break" policy.
For the past year, Jim Beam Brands had a strict policy for bottling-line employees at its Kentucky distillery. It limited employees to four restroom breaks per shift. Workers were reprimanded for taking extra trips to the bathroom, and six violations were grounds for termination. Only workers with medical exemptions could use the facilities as necessary. In one year, 42% of the line employees were reprimanded for violating the policy.
The bathroom policy was made public after the Kentucky Labor Cabinet issued a citation and the union filed an unfair labor practice charge with the state. Jim Beam Brands quickly found itself the subject of public pressure and voluntarily discontinued the policy.
While the workers' union touted the revocation as "a victory for working people all over the country," CEO Rick Reese defended the policy, stating that it was intended to manage excessive breaks. Reese said that the company will revisit the issue soon.
Female Wal-Mart Employees Challenge Company Contraceptive Policy, September 9, 2002
A class of female Wal-Mart employees was recently granted class-action status to challenge the company's policy of excluding contraceptive coverage in its health insurance plan. Plaintiffs characterize prescription contraception as "basic medical care for women who have the potential to become pregnant, but who wish to control that potential by reversible means," and claim that Wal-Mart has failed to cover prescription contraception medication for pregnancy-related conditions compared to medication for other conditions. Mauldin v. Wal-Mart Stores, Inc., No. 1-101-CV-2755 (N.D. Ga., Aug. 30, 2002).
Wal-Mart denied discriminating against any of its employees, stating that, their health insurance plan is oriented toward catastrophic coverage," with very little in the way of preventative benefits, regardless of gender. Wal-Mart is the largest private sector employer in the United States, employing over 1 million women at 3,200 facilities.
It is likely that a December 2000 EEOC policy statement was the impetus for this case. The statement provided that the pregnancy discrimination act amendments to Title VII require employers to provide the same insurance coverage for prescription contraceptives that they do for other drugs, devices, or services that are used to prevent the occurrence of medical conditions other than pregnancy. The EEOC's position was endorsed by a federal district court in Erickson v. Bartell Drug Co., 141 F.Supp.2d 1266 (W.D. Wash., 2001).
OSHA Reorganizes, Emphasizing Assistance to Employers, September 5, 2002
John Henshaw, the Assistant Secretary of Labor for Occupational Safety and Health, has announced a reorganization of OSHA. In particular, Henshaw has created a new Directorate of Cooperative and State Programs. This new directorate is designed to expand compliance, training, outreach, and education programs, Henshaw said. OSHA will also establish an Office of Small Business Assistance.
In the past, OSHA's emphasis has been enforcement of safety standards through citations containing monetary penalties. This reorganization may signal a shift in emphasis to assisting, rather than penalizing, employers. Of course, whether OSHA can change its ways remains to be seen. Henshaw did state that OSHA's Voluntary Protection Program, the "ultimate partnership for its success in saving lives and reducing injuries and illnesses," would be expanded.
Baby-Sitting Covered by FMLA, September 3, 2002
A federal trial judge has ruled that Family and Medical Leave Act leave must be provided to an employee to look after his healthy children while his wife attends to the needs of a seriously ill child. Briones v. Genuine Parts Co., No. 01-1792 (E.D. La., August 12, 2002). This case, unlike many others, seems to be a logical extension of the FMLA. If there is a seriously ill child to be cared for, it seems appropriate to provide leave to assist one of the parents to deal with the crisis.
Written Policy Doesn't Save Employer, September 3, 2002
An employee claiming sexual harassment is being permitted to go forward with her claims despite her failure to use the written anti-harassment policy of her employer. The employee showed that employees were "told" to lodge complaints with their supervisors, despite a section of the written policy that gave the employees other options. This discrepancy was enough to let the employee go forward with her claim that the employer "knew" of the harassment, even though there were no complaints under the written policy. Wallace v. Valentino's of Lincoln, No. 4:01 CV3262 (D. Neb, August 22, 2002).
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
