KEY CASES

6thCir: Employer's return-to-work procedures cannot be imposed on returning service member

A police department violated USERRA's reemployment provisions when it failed to return a service member to his previous position because it suspected he was dishonest about the nature of his military discharge during the police department's return-to-work process, the Sixth Circuit held. "Prompt reemployment" is required under USERRA notwithstanding any concerns the employer may have harbored regarding the officer's truthfulness. The department was not entitled to require the officer to undergo its return-to-work procedures anyhow, since USERRA supersedes any employer policy or plan that reduces any right or benefit provided by the Act, including imposing such "additional prerequisites." Thus, any alleged dishonesty during that process could not be a basis for delaying or limiting the officer's reemployment. The appeals court added, however, that to the extent a disciplinary matter during his military service may have left the service member unfit to serve as a police officer, USERRA would permit a "for cause" termination after his reemployment. Moreover, while the department's denial of the officer's request to resume his off-duty security guard job was not a violation of the officer's reemployment rights, the denial may have violated USERRA's antidiscrimination provision (Petty v Metro Gov't of Nashville-Davidson County, August 18, 2008).

6thCir: FMLA prohibits retaliation against employee who takes qualifying leave

Dollar General's repeated assertion that the FMLA does not prohibit retaliation against an employee's exercise of FMLA leave has no merit, the Sixth Circuit ruled, affirming a federal district court's decision. A trial jury had awarded $73,942.68, plus liquidated damages, to a senior programmer analyst with Type II diabetes, high blood pressure and a heart condition who claimed she was fired in retaliation for her exercise of leave guaranteed by the FMLA. Despite the employer's contention on appeal that the relevant statutory text pertains only to situations in which an employee has "oppos[ed] any practice made unlawful" by the FMLA, the Sixth Circuit based its determination on the overwhelming consensus of case law, the nature of the statutory scheme and the FMLA's legislative history. Interpreting this statutory language in a manner that would permit employers to terminate employees for taking qualifying medical leave is fundamentally inconsistent with the clear and unambiguous purpose of the FMLA, the appeals court concluded (Bryant v Dollar General Corp, August 15, 2008).

8thCir: Employee failed to take advantage of employer's anti-harassment policy

An employer was not vicariously liable for a male supervisor's alleged sexual harassment under Title VII because a female employee who maintained that she was harassed for over two and half years failed to take advantage of her employer's anti-harassment policy, held the Eighth Circuit. And, when she finally did file a complaint against the supervisor through her employer's sexual harassment hotline, he was fired two days later. Availing itself of the Faragher/Ellerth defense, the employer proved that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of the employer's corrective or preventive opportunities. The employee claimed the anti-harassment policy was not reasonably enforced because in practice the employer required a witness to corroborate the harassment. However, the appeals court found "nothing objectionable in the [employer] requiring some kind of confirmation of sexual harassment before taking action against alleged harassers." The court also disagreed that the employer had constructive notice of the supervisor's alleged harassment, concluding that where, as here, a company developed and promulgated a comprehensive anti-sexual harassment policy, disseminated the information contained in the policy, and demonstrated a commitment to adhering to the policy, it fulfilled its obligation to make reasonably diligent efforts "to 'know what [was] going on' within the company." (Adams v O'Reilly Auto, Inc, August 15, 2008).

10thCir: Disclosure of medical records was protected, but nurse's aid was properly fired

Even though a 49-year-old African-American nurse's aid engaged in protected activity under Title VII's anti-retaliation provision when she sent copies of a patient's unredacted, private medical records to the EEOC in order to substantiate her disparate treatment claims, the Tenth Circuit affirmed summary judgment to the employer on alternative grounds, holding that the aid violated her employer's policy regarding confidentiality when she provided the medical records to the federal agency. The aid alleged she was disciplined based on her age and race for "making errors with respect to a patient's medical records, while a younger, white employee was not disciplined for making the same errors." To show the disparity, the aid provided the EEOC with "medication sheets" supposedly containing errors by the other employee similar to those for which she had been disciplined. After the employer learned the aid disclosed the records, she was fired. Disclosing the medical records to the EEOC constituted protected activity under the participation clause, the appeals court held, rejecting the district court's belief that the participation clause places an "obligation to resort only to honest and loyal conduct in advancing a claim unless the employee proves that it is necessary to resort to other means." Nonetheless, the employer's discharge was supported by legitimate, non-retaliatory reasons: In addition to violating the company's policy regarding confidentiality of medical records, and perhaps Oklahoma law, the employee may have violated HIPAA (Vaughn v Epworth Villa, August 19, 2008).

EDWash: African-American who wore Muslim headdress could proceed with bias claims

The EEOC and an intervening African-American Muslim former employee who wore a religious headdress presented enough direct evidence of race and religious bias to survive summary judgment, concluded a district court in Washington. The employee, who was a waitress during breakfast and lunch shifts, repeatedly sought a promotion to more lucrative dinner and cocktail shifts that she periodically worked, filling in for coworkers. Though her direct supervisor viewed her as qualified, the general manager (GM) said she preferred 'hot white girls,' and that her headdress and being Muslim was not what she wanted in the bar. While these comments were not made in front of the employee, when she confronted the GM, the GM said it wasn't about her race, it was more about her 'scarf thing,' that people in the area would not want to see 'a girl like that on the cocktailing shift' and that it was a business decision. A jury could conclude the GM's alleged comments, if believed, "prove discriminatory animus without inference or presumption," wrote the court. There was also a jury question as to whether the employee, who resigned, was constructively discharged. The court noted the GM's "after-the-fact promotion offer was disingenuous, a mere Potemkin village designed to mask (the GM's) disparaging comments and appearance of impropriety." In the small work environment where the GM remained a supervisor, a reasonable worker in the employee's position could "feel trapped in an intolerable environment and feel compelled to leave," the court said (EEOC v Starlight LLC, August 4, 2008).

SDNY: Regional Director is granted 10(j) injunction against nursing home

In the face of allegations "touching upon the fundamental precepts of federal labor law," a NLRB Regional Director was granted a Section 10(j) injunction against a nursing home employer pending final disposition of unfair labor practice proceedings. The factual record presented a reasonable cause to believe the employer committed such "particularly flagrant unfair labor practices" as videotaping union activity, denying union officials' access to the facility, threatening to discharge employees who engaged in a strike, "reimbursing" union dues to discourage union support, offering "yellow dog" contracts requiring workers to renounce union membership, and refusing to bargain. Moreover, given the allegation that the employer failed to make timely contributions to employees' health benefits fund, where such conduct directly led to the termination of employees' health coverage, "the threat of irreparable harm to the Employees is tragically obvious," a federal district court in New York held. And, since most terms of the proposed injunction merely require the employer to cease and desist from engaging in clear violations of the Act, such injunctive relief is clearly "proper," the court found (Mattina v Kingsbridge Heights Rehab and Care Center, August 14, 2008).

STATE LAW CASES

CA: TV writers' class age bias suit settles for $4.5 million after discovery ruling

The Writers Guild must provide demographic information about its members, over member objections, pursuant to a subpoena in an ongoing age discrimination class action suit brought by TV writers, a California appeals court ruled. The court found the third-party data was essential to proving the plaintiffs' claims, and thus the need for the information trumped the members' privacy rights. The ruling cleared the way for a class of 10,000 television writers, days later, to reach a $4.5 million settlement in separate age bias litigation against International Creative Management (Alch v Superior Court, CalCtApp, August 14, 2008).

CA: Federal court defines parameters of temp agency wage payment law

In one of the first judicial decisions to define the parameters of a California law covering temporary employers, a federal district court held a temp worker failed to prove that a staffing company did not pay her on a timely basis, granting summary judgment to the staffing company. The plaintiff argued that the end of every temporary assignment constitutes a discharge which, under the California Labor Code, means she should have immediately been paid earned wages that were unpaid at the time of discharge. However, the court found the temporary employee was not in fact discharged. A discharge occurs when an employer "formally releases the employee and ends the employment relationship." Here, the employer took no action to end the relationship. The nature of temp work is such that there will be intermittent periods where there are no work assignments, but the employment relationship is ongoing nonetheless. In addition, the employer did not violate the state labor code by failing to provide required information, including her EIN number and the employer's own information on her wage statements; the employer's self-identification on the wage statements was sufficient to satisfy the law's requirement (Elliot v Spherion Pacific Work, LLC, CDCal, August 13, 2008).

CT: Workers' comp benefits could be reduced by amount of damage caused by smoking

A worker's lung damage due to smoking is separable from the respiratory problems he suffered as a result of exposure to asbestos on the job, the Connecticut Supreme Court ruled, holding that a workers' compensation award could thus be reduced proportionately. The state high court remanded the case to give the employer an opportunity to show that the employee's current disability resulted from "the combination of two concurrently developing disease processes," one occupational, one not work-related, and that the employee's work conditions had no affect on the nonoccupational disease (Deschenes v Transco, ConnSCt, August 12, 2008).

MT: Even in Montana, obscenities directed at boss can justify discharge

Even in Montana, which does not recognize the principle of at-will employment, an employer has just cause to discharge an employee who calls his supervisor a "pr$ck" and tells him to "kiss my *ss," the Montana Supreme Court ruled. (A factual dispute over whether the employee had also used "the 'F word'" was irrelevant, the court found.) There was no evidence to support the employee's contention that his use of foul language was a pretextual reason for his termination. And the use of such language was cause enough. While the employee noted that obscenities were common at the workplace and the environment was "not that of `a ladies' tea party,'" the state high court found that directing profanity at one's supervisor is "much more egregious" than the use of such language in the course of an ordinary workday (Becker v Rosebud Operating Services, Inc, MontSCt, August 12, 2008).

OH: Telling coworker he was being discriminatorily denied benefits led to employee's retaliatory discharge

An office manager who was fired shortly after telling an employer's only African-American worker that he was not getting health care benefits like other workers established a retaliation claim, an Ohio appeals court ruled, affirming summary judgment to the employee. The manager showed that he was engaged in protected activity: He told an African-American worker about his lack of health insurance and gave names of workers with insurance; he said he would testify on the worker's behalf; he was named as a witness in the worker's claim; and he told his employer that it should provide the worker with health insurance. Further, there was reliable, probative evidence that the employer knew of the manager's protected activity and that the employer engaged in retaliatory conduct by changing his job duties and reducing his pay. Finally, there was substantial evidence showing a causal link between the protected activity and the adverse action, particularly where the protected activity involved health insurance and as part of its adverse action, the employer eliminated the manager's duties related to benefits administration (HLS Bonding v Ohio Civ Rights Comm, OhioCtApp, August 14, 2008).

OR: Gastric bypass surgery must be covered by workers comp

A workers' compensation insurer was required to pay for the gastric bypass surgery of a morbidly obese employee, an Oregon appeals court held, because the surgery was essential in order to treat an on-the-job knee injury that originally occurred in 1976 and was reinjured in 1999. The employee had to lose weight so his knee condition could be successfully treated by a knee replacement procedure; thus, treatment of the worker's obesity was a necessary prerequisite to treatment of the knee condition. While the insurer contended the surgery was not covered because the employee's obesity was not the result of his on-the-job injury, the injured knee was nonetheless a minor cause of the need for the gastric bypass (in addition to the obesity), and so it was compensable. The workers' compensation board did not need to consider whether the obesity was caused in part by the earlier knee injury, the court held (SAIF Corp v Sprague and US Bakery, OreCtApp, July 30, 2008).

AGENCY DEVELOPMENTS

NLRB: Memorandum of Understanding did not bar decertification petition

The NLRB has reinstated a decertification petition filed by a Coca-Cola employee in New York, reversing a Regional Director. The issue concerned the effect of a Memorandum of Understanding (MOU) amending a long-term contract after the end of the first three years of that contract, but prior to the filing of the petition. Chairman Schaumber and Member Liebman ruled that the parties did not intend for the MOU to be a new agreement embodying new terms and conditions. Rather, the union's notes of the parties' first meeting refer to the MOU as an "Addendum." Well-settled Board law provides that without clear effective or expiration dates, an MOU cannot serve as a bar to a petition because third parties would be unable to determine the appropriate time for filing a petition. Moreover, even if the MOU incorporated the dates of the original contract, it still would not be a bar to the petition because the original contract was for five years, too long a period to bar a petition for its full term (Coca-Cola Enterprises, Inc, Eastern Great Lakes Division, August 14, 2008).

NLRB: Hospital's relief clinical coordinator was not a statutory supervisor

Evidence was insufficient to sustain a hospital's burden of proving that a relief clinical coordinator exercised independent judgment in assigning nursing staff, the NLRB ruled. The hospital presented evidence that was "devoid of any examples or details of circumstances showing that a coordinator, in assigning nursing staff, actually `weighs the individualized condition and needs of a patient against the skills or special training of available nursing personnel.'" Specifically in the healthcare setting, if an individual weighs the individualized condition and needs of a patient against the skills or special training of the available nursing staff, the resulting assignment involves the exercise of independent judgment. The fact that one factor included on a registered nurses' evaluation form is how they perform "the role of clinical coordinator as needed" was insufficient, noted the Board (Barstow Community Hospital, August 18, 2008).

EEOC: Federal law does not require same questions, screening process for all applicants

Employers do not violate federal equal employment opportunity laws by asking different questions of candidates applying for the same job at the same time, or by routing the applicants through different employment screening processes, according to an EEOC informal discussion letter.

OSHA proposed rule clarifies personal protective equipment requirements

OSHA has proposed a rule to clarify the individualized nature of the requirement to provide personal protective equipment (PPE) and training for workers. The agency seeks to amend its regulations to add language clarifying that noncompliance with PPE and training requirements may expose the employer to liability on a per-employee basis. The proposal affects PPE and training in general industry, maritime, and construction.

DOL proposes occupational health risk assessment protocol for OSHA, MSHA

Washington has been abuzz for the past month over allegations that the Department of Labor has attempted to secretly implement a rule by submitting to the Office of Budget and Management, on July 7, a proposed internal rule entitled, "Requirements for DOL Agencies' Assessment of Occupational Health Risks." The rule addresses an occupational health risk assessment protocol for OSHA and the Mine Safety and Health Administration to follow in formulating standards governing worker exposure to toxic substances and hazardous chemicals. And it's drawn fire from Congressional Democrats.

CONFERENCE COVERAGE

OFCCP using "new robust approach" to Internet Applicant enforcement

The Office of Federal Contract Compliance Programs is utilizing a "new robust approach" to enforcing its Internet Applicant tracking regulations, according to attorneys Mickey Silberman and Matthew J. Camardella of Jackson Lewis LLP's affirmative action practice group. In an August 14th webinar, the attorneys discussed this new approach as well as other timely compliance topics, including E-Verify and systemic discrimination enforcement initiatives.

HEALTHCARE PROFESSIONALS

HHS rule would protect health care providers' right of conscience

A proposed Health and Human Services regulation published on August 21 is intended to increase awareness of, and compliance with, three separate laws protecting federally funded health care providers' right of conscience, according to the agency. "This proposed regulation is about the legal right of a health care professional to practice according to their conscience," HHS Secretary Mike Leavitt stated in an agency release. "These regulations are a transparent attempt to impose one set of religious and moral views on all of us," the National Partnership reacted, in a statement meant to rally the troops in opposition to the measure—with only a 30-day comment period in which to respond. A Washington Post account shed further light on the controversy.

Free exercise clause does not trump state sexual orientation nondiscrimination law

The constitutional rights of religious freedom and free speech do not exempt a medical clinic's physicians from complying with a state-law prohibition against discrimination based on sexual orientation, ruled a unanimous California Supreme Court, addressing the hot-button social issue in the healthcare context in the case of a clinic physician who refused to artificially inseminate a lesbian patient based on religious objections. California's Unruh Civil Rights Act is "a valid and neutral law of generally applicability," thus the physicians are required to conform their conduct to its antidiscrimination requirements "even if compliance poses an incidental conflict" with their religious beliefs, the state high court held (North Coast Women's Care Medical Group v San Diego County Superior Ct, CalSCt, August 18, 2008).

IN OTHER NEWS

Ohio governor to oppose state's paid sick leave measure

More bad news for proponents of paid sick leave legislation: Ohio Gov. Ted Strickland last week announced he would oppose a mandatory sick leave measure being proposed for inclusion on the November ballot. Noting the business community and organized labor could not reach a workable compromise on the issue, the governor released a statement announcing his opposition to Issue 4. "While we would hope that all Ohio businesses would make paid sick days available to their employees whenever possible, we believe that this initiative is unworkable, unwieldy and would be detrimental to Ohio's economy, and we will be opposing it and asking Ohioans to oppose it as a result." Strickland's announcement comes on the heels of a failed bid for a similar paid leave bill in California, where legislation was scrapped in committee.

Madison Square Garden faces race bias suit over use of background checks

Madison Square Garden discriminates against African-American job applicants by illegally using criminal history reports in making hiring decisions, according to an EEOC complaint filed last week by New York plaintiffs' firm Outten & Golden. The plaintiff alleges the Garden's use of criminal histories in making hiring and other employment decisions has a disparate impact on African-Americans.

Quebec workers secure first union contract with Wal-Mart in North America

Members of Canada's United Food and Commercial Workers Local 486 made history recently by becoming the only Wal-Mart employees in North America to secure a union contract. On August 15, a Quebec Labour Relations Board arbitrator imposed a collective bargaining agreement on the employer, covering eight workers at a Wal-Mart Tire and Lube Express location in Gatineau, Quebec.

Workplace fatalities down, OSHA reports

A total of 5,488 fatal work injuries were recorded in the US in 2007, a decrease of 6 percent from the revised total of 5,840 fatal work injuries reported for 2006, OSHA reported last week. The figure represents the smallest annual preliminary total since the Census of Fatal Occupational Injuries program was first conducted in 1992. Based on the early counts, the rate of fatal injury in 2007 was 3.7 fatal work injuries per 100,000 workers, down from the final rate of 4.0 per 100,000 workers in 2006.

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