Boardman Law Firm

LEGAL AND LEGISLATIVE UPDATE ON EMPLOYMENT LAW

Bob Gregg
June, 2009

LEGISLATION

Proposed bill would lengthen Wisconsin FMLA statute of limitations. Currently, the Wisconsin law gives 30 days to file a complaint for violating the state FMLA and 300 days to file a retaliation complaint. Assembly Bill 231 would conform Wisconsin to the federal FMLA and give two years to file a case, three years for intentional violation.

LITIGATION

The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).

Contracts

Non-competition agreement upheld. In a change from a recent line of decisions, a Wisconsin court upheld enforcement of a non-competition agreement. The agreement prohibited an IT engineer from IT work with the company's customers in a 100-mile area, and also prohibited him from working with any customer he had personally served anywhere. The restriction was for a two-year period. The court upheld the agreement because it was for a limited time and did not prevent the ex-employee from IT work anywhere. He could still work for competing companies and service thousands of potential clients who were not customers of his former employer. The court also ruled that an unlimited timeframe non-disclosure section could be separated out without affecting enforceability of the non-compete provisions. Wille v. Techworks (Wis. Ct. App., 2009).

Discrimination

Liability Standard

Illinois law imposes strict liability for acts of ANY supervisor. Unlike federal law which usually requires one to complain internally, giving the employer a chance to correct prior to the filing of a hostile environment harassment case, some states (including Wisconsin) impose strict liability for the acts of supervisors. When the supervisor's behaviors amount to illegal harassment, the first knowledge the employer may have is via a complaint filed with the state EEO agency or court. Thus, there is no opportunity for Human Resources or higher management to know of and correct the situation. The aggrieved employee may be set to simply collect damages. Most of these state laws require the harassment be committed by a supervisor who had authority over the plaintiff. A court recently decided that the Illinois law is different. In Sangamon County Sheriff's Dept. vs. Ill. Human Rights Commission (Ill. S. Ct., 2009), the court found that the state's EEO law imposed strict liability upon an employer for the harassing acts of any supervisor, regardless of whether that supervisor had authority over the plaintiff or even worked anywhere near the plaintiff. In this case, the harassment consisted of what was intended as a "practical joke" by a sergeant in another part of the organization. He sent phony letters on Health Department letterhead implying that a female records clerk had a sexually communicable disease. [Employers in strict liability states should be aware that "supervisor" does not depend on a formal title. Lead workers, project leads and "back-up" supervisors are often included in the category if they have functional direction over the work of others. Employers should be pro-active in carefully selecting who is placed in these positions and train them in their duty of care to maintain a respectful workplace. For more information, see the articles Prevent Punitive Damages—Give Management Training and It Was Just a Joke here . Or request the Manager's Duty of Care for the Respectful Workplace program by Bob Gregg at rgregg@boardmanlawfirm.com.

Race

Telephone technician abused personal calls and then abused the court. In Gregg vs. SBC/Ameritech (6th Cir., 2009), an African American telephone technician was fired for excessive personal calls. He filed Title VII and 42 U.S. Code §1981 race discrimination cases. His pro se case was dismissed for insufficient evidence; and repeated filings and re-filings of motions deemed to be improper or irrelevant. He appealed on grounds that the employer had not shown proof of White employees' personal telephone call records and discipline and also appealed the denial of his various motions. The Court of Appeals ruled (1) the plaintiff, not the employer, has the burden of proving there are other "similarly situated" co-workers. Gregg had shown no other employee with a similar record; (2) Gregg's 118 personal calls immediately after a ten-day suspension for telephone abuse was ample non-discriminatory reason to justify the discharge; and (3) Gregg abused the litigation process. The Court sanctioned him with a fine and costs.

Sex

BFOQ not justified. The Michigan Department of Corrections could not show a Bona Fide Occupational Qualification (BFOQ) to justify restricting a position in a women's prison to only female employees. A BFOQ is to be closely scrutinized. In this case, the Department could show a valid need to have a majority of female corrections officers due to inmate privacy and pat-down searches. It could not show that all positions should be covered by a BFOQ. The rejected male plaintiff had been an officer at another female prison for seven years without any conflict between his work and the institution's privacy and security concerns. Reese vs. Michigan Department of Corrections (E.D. Mich., 2009).

Store failed to correct male sexual harassment for one employee, but did for another. A male employee of a department store complained that his male supervisor sexually exposed himself, made advances and touched him sexually. The store manager who received the complaint, disregarded it, and told the complainant he was "overreacting and hypersensitive." The manager then said the supervisor has worked here 14 years and "you have only worked here two weeks," then told the complainant to "get back to work." The supervisor's sexual touching continued, and the employee quit. When another new employee complained that the same supervisor exposed himself, the store manager finally reported the complaint to the District Manager. The supervisor was promptly fired.

The EEOC sued on behalf of both employees for sexual harassment. The court found in favor of the first. The store manager's failure to deal with the complaint or report it to the District Manager sealed the liability for a "constructive discharge." The second employee's case, however, was dismissed because the company did take prompt corrective action and fired the supervisor. [The supervisor himself could also be personally criminally liable for his overt sexual actions under state law.] EEOC vs. Dillards, Inc. (M.D. Fla., 2009).

Chili's restaurant wins case over broken romance. Two Chili's restaurant employees, a waitress and a cook, had an on-and-off "volatile" romance. When the romance finally ended, the cook continued to pursue the waitress and retaliate when she rejected his advances. He called her profane sexual names and sprayed her with hot water in the restaurant kitchen. Management disciplined the cook, then discharged him when the behavior continued. The waitress sued for sexual harassment under Title VII. The court found for Chili's. It had a clear anti-harassment policy signed by all employees. It trained managers on harassment. The store manager took prompt corrective action, discipline, then discharge to solve the problem. Forrest vs. Brinker International Payroll Co., d/b/a Chili's Bar & Grill (1st Cir., 2009).



Disability

Slow is not illegal. In Stofsky vs. Pawling Central School District (S.D., NY, 2009)an employee with bronchitis, asthma and multiple allergies requested modifications to her office due to temperature and dampness. She then sued under the ADA when the changes were not promptly made. The court found no refusal by the school district to make the changes, and no evidence that the modifications could have been made more quickly. The ADA requires good faith consideration and reasonable implementation of accommodation requests, not immediate solutions.

Employer could not justify no-work-from-home policy. An employee requested to work from home two days a week due to her disability restrictions. Management refused on the grounds that removing the documents she worked with created a security risk. However, at trial, the employee's supervisor testified that her daily presence in the office was not necessary as long as she had documents to work on. Further, the papers at issue were low level, had no security designation, and were not covered by any department security or safekeeping practices. The employer's reason for denial of work from home were without foundation. Freeman vs. Department of Homeland Security (D. NJ, 2009).

Fired while in hospital: Indefinite return date warrants termination. Reasonable accommodation for a disability includes a "reasonable leave of absence" for treatment or recuperation. Indefinite leave is not "reasonable." In Peyton vs. Fred's Stores of Arkansas, Inc. (8th Cir., 2009), an employee's cancer treatments and recuperation rendered her unable to work. She and her doctors "had no idea when, if ever" she would be able to return. Her manager called her in the hospital during treatment and told her the employment was terminated. The court ruled that though it could have been handled better, the discharge was legal. Holding a job open for a "no idea when, if ever" time period is not a reasonable accommodation.

Disability created by truck driver's own negligence does not give protection. A truck driver suffered a disabling injury when a load shifted and caused an accident. He admitted he used worn out securing straps rather than take a little extra time to get new ones. He had previously been warned about properly securing cargo. He was fired for failing to avoid a preventable accident. He sued, claiming the ADA prevented discharge because he was disabled. The court dismissed the claim. Disability does not protect one from discharge for valid performance infractions. Copeland vs. Ryder Services Corp. (9th Cir., 2009).

Religion

Police department can deny headscarf request. A Muslim police officer was denied her request to wear a headscarf on duty as a religious accommodation. She received a disciplinary suspension for wearing it anyway and sued under Title VII. The court ruled in favor of the police department. A uniformed police officer is different than a civilian-clothed job. There is a valid reason to not create an appearance of crossing the Constitution's Establishment Clause line in an official government uniform by allowing individual officers to add religious symbols. There is a compelling interest for police to "maintain a neutral appearance." Webb vs. Philadelphia (3rd Cir., 2009). [The courts have ruled differently regarding religious pins and dress on civilian- clothed detectives and other government employees who are not in uniform. For more information, see the article entitled Laws and Cases on Appearance by Bob Gregg at http://www.boardmanlawfirm.com and click on Reading Room.]

Family and Medical Leave Act

Poor performance discharge undercut by good evaluations. A school cook had her contract non-renewed after taking disability and FMLA leave. The school district claimed the cook had deficiencies in "character and job performance." However, all of the cook's performance evaluations were satisfactory, with no mention of the problem issues. The court viewed the school district's claims as "pretextual" and lacking credibility due to the lack of previous documentation. Kopp vs. Reardan/Eduall School District (E.D. Wash., 2009) [This case illustrates the importance of valid and truthful evaluations. It is far too common for a supervisor to complain year after year about an employee, yet continue to "gloss" the evaluation. When things get to a critical/discharge stage, there is no documented foundation for the firing. The same supervisor who failed to validly document now complains that HR won't take action. If the firing is approved, the result is often a finding of "pretext" and lack of supervisory credibility.]

Worker's Compensation

"Negligent parking" does not fit the "operating" exception. Worker's Compensation is the exclusive remedy for workplace injury, with a few exceptions. One exception is for injury caused by a co-worker who is operating a non-company vehicle. In Kuehl vs. Sentry Select Ins. Co. (Wis. App., 2009), a car dealership's service manager was injured when a car fell from a hoist because it was wrongfully placed by a mechanic. The manager sued for extra damages under the negligent driving exception. The court dismissed. The vehicle was not owned by the company, but the co-worker was not driving it at the time. Negligent parking or placement did not fit within the negligent "operation" exception.

Labor Relations

Elephants entitled to experience. An arbitrator ruled that a zoo could disregard the collective bargaining agreement's seniority posting requirement and hire from the outside for the position of elephant keeper. The union member who posted for the job had worked only as a kitchen worker and had no animal care experience. The zoo had valid animal care reasons to disregard the posting provisions and seek a person with experience. In re Zoological Society of Pittsburgh (2009).