Postal Worker's Stated Threat to Kill Boss Not Conclusive as to Her Race, Sex and Retaliation ClaimsBy Ted Olsen
Even the strongest business justification in the world for firing an employee may be unlawful, if the business justification is applied in a discriminatory manner. Such was the reminder in Coleman v. Donahoe,* a recent case where a black female Postal Service employee was permitted to go forward with race and sex discrimination and retaliation claims regarding her discharge, when she had been fired because she told her psychiatrist that she had thoughts about killing her supervisor and she was considered a threat to fellow employees.
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Employer's Practice of Requiring Medical Reasons for Absence in Doctor's Statements Violates ADABy Ted Olsen
An employee (we’ll call her Ms. Jones) who missed three days of work presents to you the following doctor’s note: “Ms. Jones off work three days, will return next Monday.” Do you have to accept this “because I said so” explanation? Is an employer entitled to more information before excusing such an absence under its sick leave policy? Even if a medical diagnosis is not required, can the employer require the doctor to provide a description of Ms. Jones’ condition? Can the employer require that the note say something more general, to help verify that the employee’s absence was at least health-related? Perhaps something like, “Ms. Jones was seen by me today. I prescribed some medication, but it will take a few days for the medication to work. She will return to work next Monday.”?
In a case defying real world logic, the U.S. District Court for the Southern District of California held that the first doctor’s note (above) is legally sufficient, and that the other possibilities mentioned above would be unlawful medical inquiries under the Americans with Disabilities Act. EEOC v. Dillard’s, Inc.*
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Non-Disabled Employee Who Was Dismissed for Excessive Absences Stated ADA Associational Discrimination and Other Claims
By Mike Grubbs
Employers know that the Americans with Disabilities Act (“ADA”) protects qualified applicants and employees with disabilities from employment discrimination. However, some may not be sensitive to the fact that, under certain circumstances, the ADA, as well as the Employee Retirement Income Security Act (“ERISA”) and the Family and Medical Leave Act (“FMLA”) also protect non-disabled employees from discrimination and retaliation. When an employer terminates an employee who merely has a relationship or association with an individual with a disability, one or more of these statutes may be triggered. A recent Arizona case demonstrates the overlap of these statutes. McPhail v. Cox Com, Inc.*READ MORE TOP
Same-Sex Relationship Is Insufficient for ADA Associational Discrimination and FMLA Protections
By Ted Olsen
With increasing frequency, courts are being called upon to extend “associational discrimination” protections under the Americans with Disabilities Act and retaliation and interference prohibitions under the Family and Medical Leave Act, to persons in same-sex romantic and sexual relationships. Most courts have rejected such efforts to extend the law. The most recent example of this is Copeland v. Mid-Michigan Reg. Med. Center.*
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Department of Labor Invites Comments on Proposed FMLA Regulations
By Andy Volin
In 2009, the President signed into law two sets of amendments to the Family and Medical Leave Act. One set created two types of leave applicable to military service. The second set of amendments were specific as to FMLA eligibility for airline flight crews. On February 15, 2012, the Department of Labor published proposed regulations concerning these amendments. Some of the key proposed regulations are summarized here. The DOL website has links to the fact sheets and further explanations about the proposed regulations and how they would change FMLA law. The comment period will run through mid-April, 2012.
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FMLA Protects from Retaliation and Interference an Employee Who, at Time of Request for Leave of Absence, Did Not Qualify for FMLA Leave
By Ted Olsen
To be eligible for a 12-week leave of absence under the Family and Medical Leave Act, an employee typically must have been employed for at least 12 months and for at least 1,250 hours of service in that period.* However, in a case of first impression, the Eleventh Circuit has held that an employee who requests an FMLA leave of absence and is fired before having met these eligibility requirements is protected from unlawful retaliation and interference under the federal law if they would have met the eligibility standards before the leave of absence that was requested. Pereda v. Brookdale Senior Living Communities, Inc.** READ MORE TOP
Free Counsel Appointed to Plaintiffs Alleging Juror RetaliationBy Ted Olsen
It may be coincidence, but within the last month, two federal courts in different districts have granted free legal representation to plaintiffs who allege that they were discharged from their employment because of their federal jury service. In re Reddick* and In re Henders.** Such court-appointed counsel is rare in employment cases.
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First Court of Appeals to Face Question Rules that Employee of Private Contractor of Publicly-Traded Company is Not Protected by Section 806 of Sarbanes-Oxley Act By Ted Olsen
Section 806 of the Sarbanes-Oxley Act (“SOX”)* provides that companies with a class of securities registered under Section 12 of the Exchange Act or that are required to file reports under Section 15(d) of the Exchange Act, may not discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee because the employee gives any information regarding a violation of Securities and Exchange Commission rules or regulations or participates in an SEC investigation of shareholder fraud. The prohibition also states that no “officer, employee, contractor, subcontractor, or any agent of such company,” may engage in any of the prohibited actions. The “contractor, subcontractor” language has raised the question of whether employees of contractors and subcontractors of public companies are protected by Section 806. In the first court of appeals case to face the issue, the First Circuit (by a 2-1 vote) recently ruled they are not protected. Lawson v. FMR LLC.** The Court’s majority held that SOX’s protection is limited to employees of public companies – those with a class of securities registered under Section 12 or those required to file reports under Section 15(d) – and does not extend to employees of private companies contract or subcontract with those public companies. READ MORE TOP
California Court of Appeal Rejects "Statistical Sampling" Method of Proving Wage and Hour Violations By Ted Olsen
In a landmark decision, the California Court of Appeal has ruled that a trial court erred when it decided that a class of 260 employees with state wage and hour law claims could present their case of class-wide liability based on the evidence relating to two named plaintiffs and 19 randomly-chosen so-called Representative Witness Group members (“RWGs”). Based on this approach, and in disregard of sworn statements from 78 class members declaring that they had not been misclassified as exempt by the employer, the trial court had awarded $15 million in damages and $18 million in attorney fees. At the time of trial, it was not uncommon in California for class-wide liability in class actions to be proven with evidence relating to a so-called “statistical sampling” of individuals. The Court of Appeal held that, not only was liability not proven, but the class should not have been certified due to variations in the facts for the assorted class members. Duran v. U.S. Bank Nat’l Ass’n.* READ MORE TOP
Foreign Recruits: April 1, 2012 is Date to File H-1B "Professional" Visa PetitionsBy Carol Hildebrand
Any employer recruiting a foreign professional or otherwise needing H-1B “professional” work authorization for a foreign professional will want to prepare its H-1B petition on behalf of the individual for filing with the U.S. Citizenship and Immigration Services on April 1, 2012.
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Patrick Scully, a member of our Denver, Colorado office, in late February 2012, upon invitation, spoke in Key West, Florida, at the 2012 Midwinter Meeting of the ABA’s Committee on the Development of the Law under the National Labor Relations Act. This was a highly prestigious and scholarly event, with all five members of the National Labor Relations Board and management and union attorneys from across the country in attendance. Patrick’s topic was the issue of whether the NLRB has the authority to award back pay relief when those injured by an unfair labor practice are not authorized to work in the United States -- “Routine Remedy or Radical Departure? – Is Backpay for Unlawful Immigrants Beyond the Scope of the Board’s Remedial Processes?” The written materials distributed by Patrick were co-written by Karla Sanchez, one of our Department’s associates in the Denver office.
It pays to have lawyers who know the rules. John Doran and Mike Grubbs, of our Phoenix, Arizona office, recently obtained from the Arizona federal district court the dismissal of a Title VII/Section 1981 lawsuit against our client, because of the plaintiffs’ repeated failure to properly serve our client. Instead of accomplishing service of process on the client, the plaintiffs – at first, not represented by counsel, and later, represented by a lawyer – repeatedly served our client’s parent corporation, despite being given by the Court numerous opportunities to correct their error. When the plaintiffs’ lawyer ultimately fixed that deficiency, she missed a small piece of the service rule and then failed to timely respond to John’s special appearance/motion to dismiss for several months. When she eventually responded, she asserted “no harm, no foul,” that our client was not prejudiced by the lack of service of process as our client knew about the lawsuit from its inception. The plaintiffs’ attorney also argued that John had not properly served the plaintiffs with his motion to dismiss. The Court rejected the arguments, and dismissed the case.
In January 2012, Ted Olsen, of our Denver office, persuaded an administrative law judge in D.C. to grant our client summary judgment in an immigration-related unfair employment practice case before the U.S. Justice Department’s Office of the Chief Administrative Hearing Officer (“OCAHO”). In the case, the complainant and her attorney argued that, after 11 years of successful employment with our client, she was unlawfully required by the company (acting on the advice of a consultant) to provide new and different records than she had produced upon the commencement of her employment, to re-verify her eligibility to work in the United States, in violation of the Immigration Reform & Control Act, 8 U.S.C. § 1324b (2006). When she could not produce new documents satisfactory to our client, her employment was terminated, and the complainant contended that her dismissal was unlawfully discriminatory. Ted, however, successfully argued that the entire complaint should be dismissed as it was filed more than 180 days after the termination of the complainant’s employment. He also persuaded the ALJ that the complainant’s alleged health problems during the 180-day period – including deep depression and suicidal ideation purportedly resulting from her discharge, and colitis and a renal mass – were legally insufficient to justify the equitable tolling of the limitations period.
Ray Deeny and Elizabeth Chilcoat, of our Denver office, obtained summary judgment for a client who was accused of interfering with an employee's rights under the Family and Medical Leave Act. The U.S. District Court for the District of Colorado accepted the legal argument that the plaintiff employee had no claim because he was not covered by the FMLA at the time when he requested leave. Specifically, at the time he requested FMLA leave, our client, due to its seasonal nature, employed fewer than 50 individuals within 75 miles of the plaintiff’s worksite, and therefore, was outside the coverage of the FMLA.
Tom Kennedy, of our Scottsdale, Arizona office, recently won an arbitration for a rural electric cooperative in Arizona, in a dispute with the IBEW over an employee’s demotion. Specifically, an area representative who reported directly to the co-op's general manager was demoted to a journeyman lineman position when he falsified his meal reimbursement receipt. The Union contended that demotion is not intended to be a disciplinary measure, but rather, is a remedial tool designed to address situations where an employee is found not competent for a given position. The arbitrator adopted Tom’s argument that the employee had violated the trust confided in him by his fraudulent act. Further, the arbitrator reasoned that demotion, as opposed to termination, was an acceptable and appropriate level of discipline, considering the circumstances and the employee’s 18 years of service.
Andy Volin and Stephen Hess, members of our Denver and Colorado Springs, Colorado offices, respectively, won an arbitration proceeding on behalf of a national amateur sports organization. One of our client’s coaches asserted claims for breach of contract, and denial of his right to participate, after the sports organization reacted to a poor team performance by removing his coaching responsibilities. The arbitrator agreed with the organization's position that it had a reasonable good faith belief that the team's performance justified the coach’s removal.
Ray Deeny and Ed Butler, of our Colorado Springs office, won an appeal of the dismissal of a case in which a surgical nurse raised claims of First Amendment free speech retaliation and sexual harassment. She alleged that she was sexually harassed when a surgeon threw a piece of human tissue toward her, flicked her on the back of the head and used rough language during surgery. She also claimed that she was retaliated against after she complained about the alleged harassment. The appeals court found that the harassment was not sufficiently serious to be actionable. The court also found that the nurse had no free speech retaliation claim because the speech was not the kind protected by the First Amendment.
John Doran was hired by a competitive law firm, Ogletree Deakins, in its heavily-publicized dispute with Maricopa County, Arizona, which has refused to pay the firm fully for its services. In one lawsuit, the County is suing Ogletree to audit Ogletree’s billing practices on County matters. In another lawsuit, under the Arizona Public Records Law, John and Ogletree have sued to obtain pertinent documents withheld by the County. In the latter action, the County recently moved for summary judgment, asking for dismissal of the case. John successfully defeated the motion. The Court ruled that John and Ogletree were entitled to discovery with respect to (1) whether the County provided all documents responsive to Ogletree's requests; (2) whether the County's redactions from documents it did produce were necessary and proper; and (3) whether the County deliberately delayed production of documents in response to Ogletree's public records requests to gain a tactical advantage in the companion lawsuit.
On February 29, 2012, Mike Grubbs spoke at the 10th Annual Labor and Employment Law update presented by Sterling Education Services in Phoenix, Arizona. Mike discussed "The NLRB's Expanding Agenda: Reinventing itself under the Obama Administration."
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