Outgoing NLRB Chairman Leaves Her Mark With a Labor-Friendly FlourishBy Patrick Scully
The National Labor Relations Board (“NLRB” or “Board”) has spent the last several months revisiting and reversing rules and decisions that have stood since the Clinton, Carter, and even Johnson Administrations. On the occasion of Chairman Wilma Liebman’s departure (on August 27, 2011), the Obama Board got around to reversing some Bush Board decisions.
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Back and Forth With The NLRB on Social MediaBy Michael Grubbs and Patrick Scully
The National Labor Relations Board ("NLRB") recently stepped up its efforts to prohibit employers from taking action against workers based on the employees’ statements posted online. In the initial “social media” cases, the prosecutorial arm of the NLRB asserted that such employee statements are “protected, concerted activity” and that discipline for posting is unlawful retaliation. Several recent NLRB actions, however, indicate that the agency is retreating somewhat from its broad view of “protected, concerted activity” as it relates to employees’ social media posts.
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Medical Marijuana User's Entitlement to Colorado Unemployment Benefits is "Up in Smoke" By Glenn Schlabs Our last newsletter reported on the importance of proving in an unemployment compensation proceeding that a drug testing laboratory used by an employer is licensed or certified, when the employer is relying on positive test results to oppose a dismissed employee’s unemployment benefits claim. Indeed, a new decision from the Colorado Court of Appeals indicates that, with such evidence, a medical marijuana user who is fired for a positive test result is not eligible for such benefits. READ MORE TOP
Change of Feedback is "Direct" Evidence of Discrimination
By Ted Olsen
Few modern employment discrimination cases involve “direct” evidence of discrimination, i.e., statements by the decision-maker that clearly show, without inference or interpretation, that the employment decision was based on unlawful bias. But an Illinois federal court recently decided that a mere change of employer feedback to an employee – from praise to criticism – after she disclosed her disability was not only proof of discriminatory bias, but “direct” evidence of disability discrimination.
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Employer May Have Duty to Accommodate a Disabled Employee in Her Commute
By Ted Olsen
In a case that could make landmark law, the Second Circuit Court of Appeals recently ruled that an employer may, depending on the circumstances, be obligated to make reasonable accommodation for a disabled employee’s commute to and from work.
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Inaccurate Information Given in Post-Offer, Pre-Hire Exam May Not Be Basis for Employee's Later Discharge
By Ted Olsen
The Americans with Disabilities Act permits an employer to require an applicant to pass an employment entrance examination, if the applicant has received a conditional job offer, if the examination inquires into the ability of the applicant to perform job-related functions, if all such entering employees are required to undergo an examination, and if the information obtained is retained separate from other records and is treated as a confidential medical record. A physician who performs such a post-offer, pre-employment examination may not share information from an exam with the employer... READ MORE TOP
No Age Discrimination to Replace Employee with Computer SoftwareBy Ted Olsen
In a case showing that robotics may have an adverse effect on the employment rate of persons who perform non-repetitive tasks and exercise judgment, the Eleventh Circuit Court of Appeals has held that a dismissed employee whose functions were replaced by a new process and related computer software cannot present a prima facie case of discrimination.
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Applicant Cannot be Denied Employment Because Head Scarf Worn for Religious Reasons Conflicted with Employer's Marketing By Ted Olsen
A retail store denied employment to a well-qualified applicant because she wore a head scarf, and the scarf was deemed inconsistent with the chain’s prohibition of employees wearing “caps” and other head gear, as inconsistent with its “Look Policy.” The applicant wore the head scarf (which did not cover her face, neck or shoulders) for religious reasons, and had done so devoutly when in public or in the presence of male strangers since age 13 as a reminder of her religion and her faith. She conceded that her Islamic faith did not command her to wear the head scarf. She also conceded that she did not fully satisfy all of the formal requirements of her religion, such as praying five times daily. Nevertheless, insofar as the defendant did not enforce its “Look Policy” consistently and had made accommodations for others, permitting some employees to wear yarmulkes, for instance, the failure to make accommodation for the applicant violated Title VII. EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 09-CV-602-GKF-FHM (N.D. Okla. July 13, 2011).
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"Reverse Discrimination" May Be Found When White Supervisor Was Fired for Violating "Zero Tolerance" Policy, but Black Employees Who Violated Policy Were Not By Ted Olsen
Although “reverse discrimination” claims are not often asserted, and when asserted, are seldom successful, the Eleventh Circuit Court of Appeals recently ruled that such a claim might be viable, when a white supervisor was fired for sending a “Top Ten Reasons Why There are No Black NASCAR Drivers” joke e-mail to others, but two black employees who forwarded a “How to Dance Like a White Guy” video to others were not dismissed. READ MORE TOP
Is It Insubordination or Protected Opposition to an Illegal Directive?By Ted Olsen
A recent case from South Carolina, Patterson v. Gentiva Health Services, Inc., 2001 U.S. Dist. LEXIS 81043 (D.S.C. July 25, 2011), illustrates how an employee’s failure to follow an employer’s instructions – long understood to be insubordination, a strong basis for an employee’s dismissal – may be protected by public policy, such that the dismissal is a wrongful discharge.
READ MORE TOP Denver Voters to Decide Mandatory Paid Sick Leave Issue By Ted Olsen
This November’s ballot in Denver, Colorado will include an initiative to require employers in the city to provide paid “sick and safe time” for employees. If passed by the voters, as a general rule, employees of covered employers who work 40 or more hours in a year will be entitled to one hour of paid sick and safe time for every 30 hours worked by the employee, up to a maximum of 72 hours of sick and safe time. READ MORE TOP
Sherman & Howard Successes
Bernie Siebert and Heather Vickles recently persuaded the U.S. District Court in Colorado to reject the EEOC's proposal to include certain claims and damages in Phase I of a two phase proceeding. The EEOC alleged that the client engaged in a pattern or practice of religious discrimination and also discriminated against and harassed particular individuals on the basis of religion and requested that the case be bifurcated into two phases. The EEOC argued that if they were successful in Phase I there would be a legal presumption in favor of all the class members in their individualized claims against the company in Phase II. In a first of its kind ruling, the Court refused many of the EEOC's bifurcation requests and found that the consideration of punitive or compensatory damages in Phase I would be improper. In addition, the Court ruled that the EEOC’s pattern or practice harassment allegations were not appropriate for Phase I treatment because, among other things, there were too many individualized concerns, such as whether each plaintiff spoke enough English to understand the alleged harassment. This decision has considerable implications as the EEOC has publicly expressed its intent to focus more of its efforts on pattern or practice cases, and often these cases are split into phases due to the complexities of having numerous plaintiffs.
Bill Wright and Rose McCaffrey won summary judgment in a case in which a plaintiff claimed the company had been negligent in its reporting of Department of Transportation alcohol test results. The plaintiff sued the company for reporting the results of an initial alcohol test without regard to the confirmation test results. Following Bill’s and Rose's careful analysis of the applicable regulations and applicable state law, the federal court concluded that the plaintiff had not established the employer had a legal duty to provide accurate and complete information to other employers, and that the information our client had given was both accurate and protected by absolute and qualified privileges.
Tom Kennedy recently won a labor arbitration case for a client in Salem, New Hampshire. In dismissing the union's grievance, the arbitrator agreed with Tom’s contention that the employer’s discharge of a 17-year employee for insubordination, was for “cause” and did not violate the collective bargaining agreement.
Bill Wright, Patrick Scully and Sarah Peace met with various employers involved in the Vail Valley Partnership, in Vail, Colorado, to discuss “The Highs and Lows of Staffing Management.” Legal topics covered at the program included immigration law compliance, prohibitions against genetic information discrimination, labor union “salting” activity, working with a bilingual workforce, permissible and impermissible medical inquiries of applicants and employees, and light duty assignment programs.
Glenn Schlabs, on August 25, made a presentation on “Practicing Safe Hiring and Firing” in Loveland, Colorado, at a seminar sponsored by the Ewing-Leavitt Insurance Company. Glenn’s presentation covered the use of social networking sites in recruiting, concerted activity in the context of such sites, employee drug and alcohol testing, and employee use of medical marijuana.
On August 11, 2011, Tom Kennedy and Mike Grubbs gave a presentation to members of management at MediServe in Chandler, Arizona. The presentation focused on employment discrimination, harassment in the workplace, and employee termination mistakes.
Glenn Schlabs and Bill Wright were instructors at the Certificate in Employee Relations Law seminar in Seattle, Washington, for the Institute for Applied Management and Law.
Law Week Colorado, in its “Barrister’s Best” issue, on August 29, 2011, named Ted Olsen as the “People’s Choice” award winner for the category, “Best Employment Lawyer Defense.” All attorneys in the Denver, Colorado metropolitan area were free to nominate lawyers in various fields of law, and were then free to vote on the nominees. The “People’s Choice” award is based on the most votes in the category by voting attorneys.
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