Showing 89 posts from 2011.

Terminated Employee Denied Accommodations has Triable ADA Claims

August 1, 2011 by Hinshaw & Culbertson LLP

An employee was on a flexible work schedule for a number of years to accommodate her disability, chronic fatigue syndrome (CFS). After being assigned to a new supervisor, the employee was served with written reprimands for attendance and deprived of other accommodations that eased her symptoms, including a flexible work schedule. The employee took medical leave from her job because of the stress caused by her supervisor’s actions and was subsequently terminated. The employee claimed that her employer had violated the American with Disabilities Act (ADA) when it failed to provide her with reasonable accommodations for her disabilities and that it retaliated against her by terminating her employment. The U.S. Court of Appeals for the First Circuit held that although attendance is an essential function of any job, whether a reasonable accommodation, such as a flexible work schedule, will allow an employee to maintain good attendance must be considered by the employer. With the recent implementation of new regulations addressing the ADA, employers must carefully consider whether reasonable accommodations are available that will aid employees in performing the essential functions of their job, including accommodations that will adequately address employee attendance.

NLRB may Delegate Power to its General Counsel to seek Injunctive Relief from District Courts

August 1, 2011 by Hinshaw & Culbertson LLP

In 2002, a union local began to organize employees at a hotel. Following failed bargaining between the union and the hotel, the union filed numerous unfair labor practice charges with the regional director of the National Labor Relations Board (NLRB). The regional director investigated the claims and issued an unfair labor practices complaint. After a 13-day hearing, an administrative law judge determined that the hotel had violated numerous sections of the National Labor Relations Act (NLRA) and recommended that the NLRB order the hotel to cease and desist from the unfair labor practices and take other remedial actions. The hotel filed extensive objections to the ruling. As the case remained pending before the Board, the regional director filed a petition with the district court for injunctive relief under Section 10(j) of the NLRA. The hotel opposed the petition, claiming that the district court lacked subject-matter jurisdiction because the regional director had failed to obtain the Board’s approval to file the Section 10(j) petition. The U.S. Court of Appeals for the Ninth Circuit held that although the Board may reserve the ultimate decision of whether to petition for Section 10(j) relief in individual cases for itself, it may also exercise its power to petition for such relief by authorizing the general counsel to decide in which case to seek relief on the NLRB’s behalf. The Ninth Circuit determined that as far as delegation to subordinates is concerned, express statutory authority for delegation was not required. As such, the general counsel is the NLRB’s subordinate insofar as Section 3(d) of the NLRA requires the general counsel to perform “such other duties as the Board may prescribe.”

Employer Precluded from Making Unilateral Change to Retirees’ Benefits

August 1, 2011 by Hinshaw & Culbertson LLP

An employer entered into a collective bargaining agreement (CBA) with a group of unionized employees. The CBA provided for retiree health coverage for retired union employees for the CBA’s duration. It also required the employer to create a voluntary employee benefit association (VEBA) trust and provided that upon the exhaustion of the funds in the VEBA, the employer could charge the retirees the cost of their retiree health coverage. Upon the CBA’s expiration, the employer unilaterally changed the retiree health coverage previously regulated under the expired CBA. The union, on behalf of a class of several hundred retirees, sued under Section 502(a) of the Employee Retirement Income Security Act (ERISA) and Section 301 of the Labor Management Relations Act (LMRA), seeking a permanent injunction preventing the employer from making any unilateral changes to retiree health coverage and an award for benefits that would have been received without the employer’s changes. The U.S. Court of Appeals for the Fourth Circuit found that it was the joint intent of the employer and the union that retiree health insurance benefits could not be unilaterally changed by the employer after the governing CBA’s expiration. The Fourth Circuit interpreted the CBA as a whole to find that the inclusion of both the VEBA provision and a provision governing the exhaustion of the funds in the VEBA (which was not projected to occur until six years after the expiration of the three-year CBA) demonstrated the parties’ joint intent to continue to impose the obligation to provide retiree health benefits. The lack of durational limit of coverage was also noted. Employers entering into CBAs covering retiree health benefits should ensure that the language governing the duration of coverage of retiree health is clear and concise when read in conjunction with the entire CBA.

NLRB sets Aside Decertification vote Where Union Promised to Waive Unpaid Dues

August 1, 2011 by Hinshaw & Culbertson LLP

An employer was required under its union contract to deduct monthly union dues from employees’ paychecks. The employer failed to deduct the dues for several consecutive months. Realizing the mistake, the union sent an e-mail to the employer, and the employer immediately resumed the deductions without collecting the back dues. The union neither attempted to collect the delinquent dues nor notified members about the error. Six months later, a new employer took over the union contract and filed a petition to decertify the union. During the decertification campaign, the union distributed a flyer notifying employees about the delinquent dues and promising that the dues would never be collected if the employees voted to retain the union. The employees subsequently voted in favor of the union. The employer objected to the outcome, arguing that the union’s promise to waive dues violated the National Labor Relations Act (NLRA). Under the NLRA, neither a union nor an employer may make or promise to make a “gift of tangible economic value” as an inducement to win support during a decertification campaign. The National Labor Relations Board reasoned that employees reasonably would infer under the circumstances that the purpose of the union’s promise was to induce them to support the union, and that the promise therefore “constituted an objectionable grant of a tangible financial benefit.” As a result, the Board ordered that the election should be set aside and a second election held. Employers should keep a close watch during decertification campaigns to ensure that unions do not promise any financial benefit to union members, but must also remain aware that employers themselves are subject to the same requirement.

Waiver Language Sufficiently Clear to Satisfy Requirements of the OWBPA

August 1, 2011 by Hinshaw & Culbertson LLP

Upon his termination, a 62-year-old photo editor was provided with a severance package including 20 weeks’ salary and other benefits. In exchange for it, he signed a separation agreement, which contained a provision stating that he waived and released any and all claims against the employer including claims under the Age Discrimination in Employment Act (ADEA). The separation agreement further provided that nothing in it restricted the employee’s right under the ADEA to challenge the agreement’s validity. It also stated that the waiver and release do not apply to any ADEA claims that might arise after the date that the employee signed the separation agreement. Two years later, the employee sued the employer, alleging that his termination was a pretext for age discrimination in violation of the ADEA because his position remained extant and was filled by a younger employee. The employer argued that the employee’s claim was precluded by the separation agreement’s waiver provision. The employee countered that the waiver provision was not enforceable because it was unduly lengthy and confusing in violation of the requirements of the Older Workers Benefit Protection Act (OWBPA). The U.S. Court of Appeals for the Second Circuit held that the employer had satisfied the OWBPA’s requirements because the waiver provision was written in a manner calculated to be understood by its relevant employees. To ensure that waiver provisions are enforceable under the OWBPA, they must be drafted so that employees can understand what the waiver’s effect will be.

No “Cat’s Paw” Claim Where Supervisor was Terminated for Violating Policy

August 1, 2011 by Hinshaw & Culbertson LLP

A supervisor helped an injured employee obtain from the company nurse a work restriction that limited the number of hours the employee could work. However, the supervisor required the employee to work more hours than the restriction allowed. The supervisor alleged that at an intermediate-supervisor’s direction he denied the employee the breaks that the employee was entitled to. The employer discovered that the supervisor had failed to honor the injured employee’s restriction and terminated the supervisor. The supervisor, in turn, sued under the Iowa Civil Rights Act, claiming that he was retaliated against for seeking accommodation for the disabled subordinate employee. Using the “cat’s paw” theory, the supervisor argued that the intermediate-supervisor, who lacked decision-making power, used a manager as a dupe in a deliberate scheme to get the manager to fire him. The U.S. Court of Appeals for the Eighth Circuit rejected the employee’s claim because the intermediate-supervisor neither reported the supervisor’s violation of the work restriction to the manager nor recommended that the supervisor be disciplined. Nor did the manager rely on anything from the intermediate-supervisor in deciding to fire the supervisor. Instead, the manager fired the supervisor because he had admitted violating company policy by forcing the employee to work in violation of his restriction. This case is significant because of the Court’s recognition that the supervisor was required but failed to prove that the manager’s decision was actually influenced by the intermediate-supervisor. Employers must ensure that decision-makers do not make employment decisions based on their own desire, or the desire of a subordinate, to retaliate against an employee for engaging in any kind of protected activity.

EEOC Holds Public Hearing on Leave as a Reasonable Accommodation

July 11, 2011 by Hinshaw & Culbertson LLP

On June 8, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) considered the use of leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) by assembling a diverse panel of experts to voice their opinions. Under the ADA, an employer must provide a disabled employee with reasonable accommodations that will allow him or her to perform the essential functions of the job. However, an employer does not need to provide accommodations that subject it to an undue hardship. When disabled employees request a leave of absence as a reasonable accommodation, employers are faced with the question of how much leave they must provide in order to comply with the ADA. That question often arises when a disabled employee exhausts all available leave time and is still not able to return to work. At the June 8 hearing, representatives for employers expressed their view that attendance itself can be an “essential function of the job” and that unplanned or extended absences are difficult for employers to manage. Employee representatives responded that leave is a critical accommodation that allows many disabled employees to stay in the workforce, and that the “entire purpose of the leave is vitiated if the employee recovers but is terminated or otherwise barred from returning to work.” The EEOC’s dominant message was that employers need to be flexible when applying their leave policies to disabled employees and that employers which enforce a bright line rule requiring a disabled employee to return to work or be terminated when his/her available leave is exhausted could be exposing themselves to liability under the ADA. Employers should instead analyze whether extended leave is a reasonable accommodation in the same way that they would analyze any other request for accommodation — by performing a individualized analysis to determine whether the accommodation is required by the ADA (i.e., whether the extended leave will allow the employee to perform the essential functions of the job without subjecting the employer to an undue hardship). The EEOC plans to issue updated guidance on when extended leave is warranted under the ADA, potentially by the end of this summer.

Seventh Circuit Rejects Nurses’ Racial Discrimination Lawsuit Based on Monkey References

July 11, 2011 by Hinshaw & Culbertson LLP

Four African-American nurses worked at a jail facility and asserted that they experienced racial discrimination that caused them to resign. The nurses alleged that: (1) there were excerpts from the book, The One Minute Manager Meets the Monkey, with notes in the margins, found in a former administrator’s office; (2) comments about “monkeys” were made over the jail intercom; (3) a jail employee wore a t-shirt depicting a confederate flag; (4) a jail doctor referred to an inmate named Cole as “black as coal” or “black ass coal”; and (5) their shifts were rotated on a monthly basis. Fed up with the alleged discriminatory treatment, the nurses quit and sued the jail, claiming that they were subject to a hostile work environment. The U.S. Court of Appeals for the Seventh Circuit held that the alleged conduct did not create actionable discrimination. In so doing, the court explained that to establish a “hostile work environment,” the nurses needed to show that their work environment was both objectively and subjectively offensive. The court determined that excerpts from the book found in the administrator’s office were not something that a reasonable person would find offensive, as the book was plainly directed at management concerns and the metaphor was unlikely to cause confusion. Further, the court found no evidence that the alleged references to monkeys over the intercom were directed at nurses or a subset of them. The court determined that the observance of an employee wearing a shirt that contained a confederate flag as well as the doctor’s “black as coal” and “black ass coal” remarks were isolated incidents that were insufficiently severe to support a hostile work environment claim. The court further found that the jail’s policy of rotating nurse shifts constituted a legitimate response to the tension between employees in different shifts. While this case demonstrates that not all conduct an employee finds offensive will support a hostile work environment claim, employers should enforce comprehensive policies that prohibit all forms of discrimination and harassment to ensure that their employees are treated respectfully.

Unlicensed Accountants may be Exempt From Overtime Pay Requirements

July 11, 2011 by Hinshaw & Culbertson LLP

Unlicensed junior accounts who performed audits and provided other accounting services for their employer’s clients brought a wage-and-hour class action against the employer for overtime pay they were allegedly owed. The employer argued that the accountants were exempt from the wage-and-hour law’s overtime provisions under the “professional” exemption. Under California law, to claim the “professional” exemption, the employer must show that the employees were: (1) licensed or certified by the State of California and primarily engaged in law, medicine, dentistry, or accounting; or (2) primarily engaged in an occupation commonly recognized as a learned or artistic profession. The U.S. Court of Appeals for the Ninth Circuit held that the accountants could be exempt if their job duties indicated that they were engaged in a “learned profession,” even though they did not have CPA licenses. The court emphasized that when determining whether an unlicensed accountant is exempt or non-exempt, a “fact-specific inquiry” is required. This case serves as a reminder that whether an employee is exempt or non-exempt should not be determined categorically, but should be determined according to the job duties the employee actually performs.

Seventh Circuit Emphasizes that Prompt Investigation is key to Eliminating Employer Liability for Co-Worker Harassment Under Title VII

July 11, 2011 by Hinshaw & Culbertson LLP

An African-American employee was involved in a personal feud with several co-workers, leading her to file 10 complaints of racial harassment within a two-year period. The employer promptly investigated each of the complaints, determining in only one case that the alleged harassment had occurred and that discipline was appropriate. Where the evidence was inconclusive, the employer counseled all parties involved to treat one another with respect. The employee was unsatisfied with those responses, however, and sued the employer. He alleged that the employer had allowed its employees to create a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended. An employer is liable under Title VII for an employee’s harassment when it fails to take reasonable steps to discover and remedy the harassment. The U.S. Court of Appeals for the Seventh Circuit found no basis for employer liability because the employer had investigated each of the employee’s complaints with vigor and had taken appropriate corrective action when necessary. The court concluded: “As we have said before, prompt investigation is the hallmark of reasonable corrective action.” Employers should remember that when they become aware of a potential complaint of harassment, it is imperative to immediately investigate and respond accordingly; by doing so, the employer will avoid liability for employee’s misconduct.

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