Tuesday, September 9, 2014

Massachusetts Enacts Domestic Violence Leave for Employees

In the wake of the Ray and Janay Rice incident sweeping the news across the country, Massachusetts Governor Deval Patrick has enacted emergency legislation entitled “An Act relative to domestic violence.”  The new law is effective immediately and mandates that all employers with 50 or more employees permit an employee to take up to 15 days of leave from work in any 12-month period if the employee, or a family member (defined below) of the employee, is a victim of abusive behavior and the employee is using the leave from work to:
  • Seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; attend child custody proceedings; or address other issues directly related to the abusive behavior against the employee or family member of the employee; and
  • The employee is not the perpetrator of the abusive behavior against such employee’s family member.
The new law has several important definitions:

"Family members" include:
  • Persons who are married to one another;
  • Persons in a substantive dating or engagement relationship and who reside together;
  • Persons having a child in common regardless of whether they have ever married or resided together
  • A parent, step-parent, child, step-child, sibling, grandparent or grandchild; or
  • Persons in a guardianship relationship.
The Act defines “abusive behavior” as:
  • Domestic violence, defined as abuse by a person with whom the individual is in a relationship
  • Stalking
  • Sexual assault
  • Kidnapping
There are several other nuances of the law but because this does not help or affect Wisconsin, I will not delve into those here in this post.  For more information on the new law, click here.

There is currently no such law at the federal level, though Rep. Lynn Woolsey (D-CA) has attempted several times over the years to get such legislation passed in Congress, which I have written about before here.

Wednesday, September 3, 2014

Recent NLRB Decision Holds Weingarten Rights Extend to Workplace Drug and Alcohol Testing

In a rather ground-breaking decision from the National Labor Relations Board ("NLRB"), in Ralph's Grocery Co., 361 NLRB No. 9 (2014), the Board held that an employee's Weingarten Rights extends to employees who request representation after an employer refers them for a workplace drug and alcohol test.  Weingarten Rights come out of a 1975 Supreme Court case whereby it was held that unionized employees have the right to have union representation at any interview or meeting that could lead to disciplinary action against you.  Thus, because the results of a drug and alcohol test could lead Weingarten Rights would extend to these situations and consider them "investigatory interviews."

The employee, Vittorio Razi, was ordered by his employer to take a drug and alcohol test.  Razi refused  and requested union representation, which he was denied.  After Razi refused to submit to the drug and alcohol testing, he was suspended and subsequently terminated.  The Board held that "[t]he drug and alcohol test, ordered as part of the Respondent’s investigation into Razi’s conduct, triggered Razi’s right to a Weingarten representative."  

In agreeing with the administrative law judge, the Board held:
We agree with the judge that the Respondent violated Section 8(a)(1) by requiring Vittorio Razi to submit to a drug and alcohol test notwithstanding his request for representation, and by suspending and discharging Razi for his refusal to take the test without representation.  Because the reason for Razi’s suspension and discharge is inextricably linked to his assertion of Weingarten rights, with which the Respondent unlawfully interfered, we find that the judge’s make-whole remedy is appropriate. 

There was discussion about Board Member Harry Johnson's dissenting opinion who believed the employer "had a legitimate interest in conducting its investigation and taking action without delay, particularly given the time-sensitive nature of sobriety tests."  However, given the facts of this case, the Board held that "although the investigation was triggered by the Respondent’s observations of Razi’s behavior, the Respondent did not take disciplinary action based “on the information it already had,” because the employer made no mention to Razi being under the influence in deciding to suspend and terminate his employment.  Thus, perhaps this case comes out differently if Razi was clearly under the influence and a safety hazard to himself and his coworkers, but even this scenario depends on very specific facts as such an observation can be highly subjective.  However, the only way to be sure of whether someone is under the influence is through a positive test result.

It is important to note that these cases are highly fact-specific and Razi prevailed in this matter specifically because he requested union representation before submitting to the drug and alcohol test.  If an employee refuses a drug and alcohol test and doesn't request union representation, there would not be a finding of violation of Weingarten Rights, unless the collective bargaining agreement ("CBA") requires such.

Wednesday, August 27, 2014

7th Circuit Rules Plaintiff Does Not Need Expert Testimony to Show Incapacitation in FMLA Claim

In a case originating out of Wisconsin, the Court of Appeals for the Seventh Circuit reversed a district court's grant of summary judgment holding that the law does not require a plaintiff to present expert testimony as to show that his serious health condition rendered him unable to work, which is one of the elements of a claim under the Family and Medical Leave Act ("FMLA").

FMLA

The FMLA provides that an eligible employee may take up to 12 weeks of leave during any 12-month period if he is unable to perform the functions of his position because of a serious health condition.  29 U.S.C. sec. 2612(a)(1)(D).

An employee is entitled to leave under the FMLA if (1) she is inflicted with a "serious health condition," and (2) that condition renders her unable to perform the functions of her job.  Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 669 (7th Cir. 2011) (quoting Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 590 (7th Cir. 2008)).  A "serious health condition" is defined in part as "an illness, ... impairment, or ... mental condition that involves ... continuing treatment by a health care provider," 29 U.S.C. sec. 2611(11)(B), and a "period of incapacity," 29 C.F.R. 825.115 (2009).  "Incapacity" means the "inability to work ... or perform other regular daily activities due to the serious health condition."  29 C.F.R. sec. 825.113(b).  Because "incapacity" means the employee is unable to work "due to the serious health condition," a finding of incapacitation goes toward the second prong of the court's analysis as to when an employee is entitled to leave.  See Ames, 629 F.3d at 669.  Note, "incapacity" and "serious health condition" are interrelated, but are not interchangeable terms.

Facts

The plaintiff in this case, James Hansen, suffered from depression and sought regular medical attention for his condition.  The defendant-employer, Fincantieri Marine Group, LLC ("FMG"), has an attendance policy whereby an employee is terminated if they accumulate 10 or more points in a year for absences.  When Hansen reached 9 points and his job was in jeopardy, he requested FMLA leave for his serious health condition.  Hansen's physician then provided FMG with certification saying that his condition would cause episodic flare-ups that would prevent him from performing his job functions and that the frequency was four (4) episodes every six (6) months with a duration of the related incapacity of two to five days.

Apparently there was some confusion and mix-ups with Hansen's FMLA leave requests and he ended up incurring 13 points, which led to his termination for violation of FMG's attendance policy.  Hansen then sued FMG for FMLA interference and retaliation.  FMG moved for summary judgment, arguing that Hansen was not entitled to FMLA leave for his July 2011 absences because he significantly exceeded the estimated frequency of his physician's medical certification.  The district court denied FMG's motion, noting that it appeared Hansen was taking off more time than was medically necessary, but it was not so clear as to justify summary judgment.  However, shortly before trial, FMG sought reconsideration, arguing Hansen needed expert medical testimony to establish that he was incapacitated due to his serious health condition during the July 2011 absences and that he had none.  The district court agreed, concluding that expert medical testimony was required to prove that Hansen's serious health condition rendered him unable to perform the functions of his position during the absences for which he sought FMLA leave, and, therefore, granted summary judgment in favor of FMG on all claims.

7th Circuit's Discussion

For Hansen to prevail on his FMLA interference claim, the 7th Circuit held that he must show, inter alia, that he was entitled to take leave under the FMLA for his July 2011 absences, which was the focus of the appeal.  Parting of showing that he was entitled to leave meant showing a "serious health condition," which, as part of its definition, means showing incapacitation.

Hanse's physician was not used as an expert witness and was only used as a fact witness.  Hansen had no expert witness for trial.  FMG attempted to use prior 7th Circuit precedent for their position that Hansen needed expert witness testimony to show incapacitation but the 7th Circuit held the cases cited do not support such an argument.  (Those cases were Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 591 (7th Cir. 1999) and Haefling v. United Parcel Serv., Inc., 169 F.3d 494 (7th Cir. 1999)).  The court found that these cases merely stood for the proposition that a plaintiff needs "some medical evidence to establish a serious health condition."  The Court further found that Haefling supports Hansen's argument that he doesn't need expert testimony to establish incapacity and other circuits have held that lay testimony combined with medical testimony raises a genuine issue of material fact as to incapacity while two other circuits have held that lay testimony alone is sufficient to create a genuine issue as to incapacity.

Delving even further, the Court noted that the regulations addressing "continuing treatment" and "intermittent leave or reduced leave schedules" anticipate that the determination whether an employee is unable to work due to a serious health condition would not necessarily be made by a medical professional.  For example, an employee with asthma may be unable to report to work due to the onset of an asthma attack but may not necessarily seek treatment from a health care provider which means a health care provider would not have any personal knowledge about an employee's claimed incapacity for a particular day, as FMG wanted the Court to require Hansen to do for his absences in July 2011.

The Court held that Hansen presented medical documentation--his certification from his doctor--on the question of incapacity. 

The Court also discussion, in detail, the fact medical certifications only ask for "estimates" of an employee's incapacitation.  Hansen was denied FMLA leave when he exceeded the estimated number of frequencies of his incapacitation and the Court held that it is merely an estimate and that there are issues of material fact as to whether his July 2011 absences should have been covered by FMLA leave (though the court stated Hansen does not seem to have "an abundance of evidence" toward this end, but enough to raise a material issue of fact). 

The case is James G. Hansen v. Fincantieri Marine Group, LLC, et al., No. 13-3391 (7th Cir. August 18, 2014) and has been reversed and remanded to the district court.



Thursday, August 21, 2014

August Edition of the Employment Law Blog Carnival is Live!

The August 2014 Edition of Employment Law Blog Carnival is live, as hosted by Attorney Eric B. Meyer of The Employer Handbook.  It's the Instagram Edition.  #ELBC

Monday, August 18, 2014

San Francisco Latest City to Ban Employers from Asking Applicants About Criminal History in Initial Application

Effective August 13, 2014, San Francisco’s “Fair Chance Ordinance” prohibits San Francisco employers from asking applicants about their criminal history on the initial employment application.  Like other areas of the country with similar laws, it is only unlawful to inquire in the initial application.  After a "live interview" has been conducted, an employer may then ask about an applicant's criminal history ("except as to matters that are off limits").  As many people are aware, Wisconsin, under the Wisconsin Fair Employment Act (WFEA), allows employers to ask questions about an applicant's conviction record during the initial application, which does lead to a lot of litigation in and of itself, as issues surrounding the truthfulness of an applicant's information is often litigated.

For those curious about the new San Francisco ordinance, a FAQ can be found here, and the Notice Posting can be found here

Wednesday, August 6, 2014

7th Circuit Affirms Summary Judgment in Disability Discrimination and Failure to Accommodate Claim under the ADA After Employee with Down Syndrome Has Verbal Outburst at Coworker

In a very short opinion affirming a district court's grant of summary judgment in a disability discrimination and failure-to-accommodate case under the Americans with Disabilities Act ("ADA"), the Court of Appeals for the 7th Circuit held that an employee with Down Syndrome, Sean Reeves, could not show that his employer, Jewel, failed to accommodate his down syndrome or discriminated against him on the basis of his disability (Down Syndrome), after he was fired for a verbal outburst whereby he told a coworker, "fuck you, you stupid blonde."

Jewel is a supermarket chain and Reeves worked for Jewel as a bagger from June 1997 until his termination in April 2005.  Reeves has Down Syndrome, which is a genetic disorder which varies in severity, but causes lifelong intellectual disability and developmental delays.  As the 7th Circuit noted, because of his disability, Jewel gave Reeves, "an array of vocational tutoring early in his tenure," and "also instituted supervision policies that applied only to Reeves."  For example, at the end of each day, Reeve's supervisor would complete an evaluation form that either approved or disapproved of Reeve's performance in five job categories.  The form would then be sent to Reeve's parents, per their request.  Reeves was also exempted from collecting shopping carts from the parking lot following an incident where Reeves was found directing customers how to park their cars.

Reeves also, from time-to-time, had trouble complying with Jewel's workplace rules, but was never fired even though on at least one occasion, he engaged in theft of store merchandise, which, under Jewel's policy, is cause for immediate termination.  It was not until Reeves cursed at another coworker on April 11, 2005 that Jewel finally terminated his employment.  Reeves then filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), which found that there was reasonable cause to believe both that Jewel discriminated against Reeves because of his disability and that Jewel engaged in a pattern or practice of denying reasonable accommodations to a class of disabled employees.  A Right to Sue letter was eventually issued and Reeves' parents sued Jewel on his behalf.

The district court dismissed Reeves' failure-to-accommodate claim finding it was waived by not having been properly plead in the Complaint but the 7th Circuit found that Reeves did, in his Complaint, allege a claim for discrimination under the ADA and that ADA discrimination includes a failure to accommodate under 42 U.S.C. sec. 12112(b)(5)(A).  The 7th Circuit also held Reeves, "pled a number of facts relevant to his failure-to-accommodate claim in his complaint.  This was sufficient to preserve the argument."  However, finding that Reeves did not waive this claim, the 7th Circuit still ultimately held that this claim still failed on the merits.

The 7th Circuit held that Reeves' mother, Diana Reeves, did not make "reasonable efforts to help the other party decide what reasonable accommodations are necessary."  The 7th Circuit further held that there was never discussion of accommodations to prevent Reeves from cursing in front of customers.  Thus, summary judgment was affirmed.

The case is Sean Reeves, by his parents and next friends, John and Diana Reeves v. Jewel Food Stores, Inc., No. 13-3782 (7th Circuit, July 17, 2014)

Tuesday, August 5, 2014

7th Circuit Affirms Summary Judgment in Favor of Wal-Mart in FMLA Retaliation and Sex Discrimination Case

In a case straight out of Wisconsin, the Court of Appeals for the Seventh Circuit granted summary judgment in favor of retailer Wal-Mart on all of plaintiff Erika Lagenbach's claims:  FMLA retaliation, and Title VII failure-to-promote and disparate pay.  It was fairly easy to see how this case was going to be decided from the first few pages of the decision as they are spent describing, in detail, Lagenbach's sub-par performance issues and Wal-Mart's documentation of their efforts to assist Lagenbach in improving her performance, to no avail.

Essentially, to become an Assistant Manager at a Wal-Mart store, an employee had to meet one of the following minimum requirements:  (1) one year retail experience and one year supervisor experience, (2) two years general work experience and one year supervisor experience, or (3) completion of two or more years of college.  Lagenbach began working for Wal-Mart in 1998.  In 2001 she was promoted to Jewelry Department Sales Coordinator.  In 2006 or 2007, Lagenbach then began seeking an Assistant Manager position, applying to Wal-Mart's Management-In-Training program several times without success.  She was finally admitted to the program in February 2008.

Upon completion of the training program, Lagenbach began work as an Assistant Manager at Wal-Mart's West Bend, Wisconsin location, initially to the day shift and later to the night shift (such a change-of-shift was found consistent with her job description which matters as the court found this not to be an adverse action).  In 2009, Lagenbach received her first annual evaluation as an Asst. Manager and was given an overall, "Solid Performer" rating.  However, management noted, "a number of deficiencies she needed to work on, including her assertiveness and time management skills."  Later that same year, Lagenbach was placed on her first Performance Improvement Plan ("PIP").  A PIP at Wal-Mart, like in most every workplace, is used to improve sub-par performance.  The 2009 PIP described several problems with Lagenbach's performance including a lack of leadership, a tendency to push decisions off on associates, spending too much time in the office rather than on the sales floor, not following appropriate overnight shift procedures, and professionalism issues.

Around January 2010, Lagenbach returned to the day shift and on January 21, 2010, Wal-Mart filed a written discipline comment concerned Lagenbach.  Lagenbach's annual review took place in April 2010.  The store manager prepared the review, which gave Lagenbach a competency score of 2.63 out of 5 and a rating of "Development Needed."  The review also noted that Wal-Mart needed to see a "complete turn around" from Lagenbach and a renewed sense of "urgency and time management."  It also described specific issues with Lagenbach.

Later that month in April 2010, Lagenbach discovered that she needed surgery to remove fibroid tumors in her uterus.  In July 2010, she submitted a written request for continuous leave under the FMLA from July 30, 2010 until August 26, 2010, which was approved.  Lagenbach needed a slight extension of her leave, which was also approved, and she also provided a return to work certification from her doctor which indicated she could return to work without restrictions on September 13, 2010.  Upon her return, Lagenbach was assigned to the overnight shift, which could be more physically demanding than the day shift, but the Court found she could have delegated the heavy lifting to associates.  Lagenbach did discuss concerns she had with her health with her supervisor when she was informed she could request accommodation under the Americans with Disabilities Act.  Lagenbach never followed up on this conversation.

Lagenbach then had a mid-year evaluation, which was prepared before she went on leave in July.  This evaluation was also poor and Wal-Mart placed her on another PIP.  A follow-up session was scheduled for November 2010 where her progress was rated as "Below Expectations" and the decision to fire Lagenabach was made.  Lagenbach then sued Wal-Mart under the FMLA and Title VII.

The 7th Circuit easily affirmed the district court's grant of summary judgment finding that Lagenbach simply was not meeting the Wal-Mart's legitimate expectations, under the indirect method, and that she could not establish a casual nexus between her termination and her FMLA leave, under the direct method of proving discrimination.  In affirming summary judgment on Lagenbach's Title VII claims, the Court held that Lagenbach's failure-to-promote claims failed because she admitted she was not qualified for a promotion and she never even applied for any higher position.  On her disparate pay claim, the court again applied the indirect and direct methods and held that there were no similarly-situated employees presented under the indirect method and that under the direct method, she lacked direct evidence and had no circumstantial evidence given the only two male comparators were not similarly-situated.

The case is Lagenbach v. Wal-Mart Stores, Inc., (7th Cir., Aug. 4, 2014) No. 14-1022.

Tuesday, July 22, 2014

President Obama Signs Executive Banning Discrimination Based on Sexual Orientation and Gender Identity by Federal Contractors

Yesterday President Barack Obama signed an Executive Order further amending Executive Orders 11478 and 11246.  Executive Order 11478 requires the federal government to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, and to promote equal employment opportunity through a continuing affirmative program in each executive department and agency.  Executive Order 11246 prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do over $10,000 in government business in one year, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.  The amendment now prohibits federal contractors from discriminating against employees based on gender identity and sexual orientation.

It is unclear whether this new Executive Order will impose new affirmative action requirements on federal contractors.  The Secretary of Labor is required to prepare regulations implementing the provisions of the Executive Order within 90 days, which will provide further guidance on the obligations imposed by the Order.

So that there's no confusion, this Executive Order only applies to federal contractors and subcontractors who have covered federal contracts.  The Order does not apply to private employers, as there still remains no federal prohibition against discrimination in the workplace based on sexual orientation or gender identity.  Luckily for Wisconsin residents, the Wisconsin Fa

July Edition of the Employment Law Blog Carnival is Live!

The July edition of the wonderful Employment Law Blog Carnival, titled, "The Child of the 90s Edition," is up over at the Ohio Employer's Law Blog, as written by Attorney Jon Hyman.  Check it out now! #ELBC

EEOC's Enforcement Guidance on Pregnancy Discrimination

The Equal Employment Opportunity Commission (EEOC) recently released its Enforcement Guidance on Pregnancy Discrimination and Related Issues (the Guidance), which is essentially a guide for employers and employees on the EEOC's understanding of the law and how it will seek to enforce it, but also attempts to expand the law to provide greatly enhanced protections to pregnant employees.  As most practitioners are aware, the EEOC's enforcement guides aren't law, nor do they create law, but they have considerable implications as they are the agency that upholds the nation's federal anti-discrimination laws.  This Guidance is also important and has received a lot of attention because pregnancy discrimination continues to be a big problem, yet there has not been new legislation to provide further protection for pregnant employees in many, many years.

As was expected by this new Guidance, the EEOC has taken an expansive view of the protections to be afforded pregnant employees.  The Guidance also covered most of the federal workplace laws touching on pregnancy and related conditions, including the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Affordable Care Act (ACA), the Family and Medical Leave Act (FMLA), and Executive Order 13152 (which prohibits discrimination in federal employment based on parental status).  Perhaps the biggest feature of the Guidance is the EEOC's stance that the PDA and the ADA entitle pregnant employees to accommodation.

Specifically, the Guidance states:
The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA.

Recognizing that this is not a position taken by some courts, the EEOC finds any analysis to the contrary "flawed."  The Sixth Circuit, in Latowski v. Northwoods Nursing Ctr. (6th Cir. December 23, 2013), recently took the position that denying a pregnant employee light duty pursuant to a facially neutral policy limiting light duty to employees injured on the job violates the PDA, suggesting a potential shift in courts' analysis of this issue. 

With respect to the ADA and pregnancy as a "disability,"  the Guidance stated that, "[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities. . . even though they are only temporary."

So what does this mean for the public?  EEOC Enforcement Guides are more critical to employers because it puts more restrictions on their behavior if they want to avoid potential lawsuits against them by the EEOC or the EEOC finding probable cause that an employee was discriminated against on the basis of their pregnancy.  It is still important for employees to be aware of the EEOC's stance on these laws because it can be used as bargaining power in seeking an accommodation during their pregnancy if an employer currently has policies that seem to run afoul of this new Guidance.