Legal Updates

HOTTEST LEGISLATIVE, REGULATORY AND
LEGAL ISSUES FOR AUGUST 2010

LEGISLATIVE AND REGULARY DEVELOPMENTS

  

Legislative and Regulatory Developments

 

• FMLA Protects Parents in Non-Traditional Families

A June 22, 2010 interpretation of the FMLA by the DOL concludes that an employee who assumes the role of caring for a child is eligible for leave under the FMLA to care for that child even if there is no legal or biological relationship.  This is intended to cover non-traditional families, including unmarried partners and gay/lesbian couples.  Employers may require an employee to provide reasonable documentation, including a statement of the family relationship, to establish eligibility: “A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”

 

• DOL Reverses Direction on Donning and Doffing of Protective Equipment

The DOL has reverted to opinion letters issued in 1997, 1998 and 2001, and rejected conflicting opinion letters issued in 2002 and 2007 relative to whether the donning and doffing of protective gear in food processing plants count as hours worked under the FLSA.  In Administrator’s Interpretation No. 2010-2 (June 6, 2010), the DOL has opined that time spent putting on and taking off protective gear in this industry is to be counted as hours worked under the FLSA.  See, however, the FLSA case discussed below relative to police officers.

 

• Final DOL Poster for Federal Contractors and Subcontractors Issued

The poster describing employees’ rights to join unions that federal contractors and subcontractors must post was issued on May 20, 2010.  It can be found at the DOL’s website, www.dol.gov.

 

Recent Cases of Interest

 

• Supreme Court Extends Time for Filing of Disparate Impact Claims

In Lewis v City of Chicago, 130 S. Ct. 2191 (2010), the Supreme Court held unanimously that where an employer has used a promotional testing procedure claimed to have a disparate impact for a number of years, the plaintiffs may sue for discrimination occurring more than 300 days before the filing of their Charge of discrimination where there is a possible continuing violation of Title VII.  The difference between this case and the Ledbetter decision is that Ledbetter was a disparate treatment case, where the potential damages for intentional discrimination are greater.  The court felt that the limitations periods should be more tightly applied in such cases, but not in disparate impact cases.

 

• Supreme Court Decides 2-Member NLRB Board Could Not Issue Valid Decisions

On June 17, 2010, the Supreme Court ruled that in a 27 month period ending March 27, 2010, during which only 2 of the 5 NLRB seats were filled, the Board lacked a quorum to issue decisions.  Thus, the nearly 600 decisions issued during that time are invalid and the Board must determine how to address this situation.  New Process Steel v NLRB, 2010 WL 2400089.

• Employer’s Search of Police Officer’s Text Messages on City-owned Pager Legal

A city provided its police officers with pagers for work-related purposes.  It also had a written policy limiting the use of electronic communications devices to work-related matters, and stating that emails were not confidential.  Officers were required to pay the city for “overages” in the use of the pagers.  Plaintiff repeatedly had overages.  The Police Chief directed that Plaintiff’s text messages be reviewed to determine if the overages were due to personal use, or whether they were due to work functions, in order to decide if the level of permitted use should be increased.  This search revealed significant personal usage, much of it containing explicit sexual messages. 

The Court, in City of Ontario v Quon, 2010 WL 2400087, found the search to be reasonable and legal: “When conducted for a non-investigatory, work-related purpose or for the investigation of work-related misconduct, a government employer’s warrantless search is reasonable if it is justified at its inception and if the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search.”  These standards were met here.

 

• Failure to Promote Due to Subjective Reasons Is Non-discriminatory – Or Not

Four white firefighters sued their employer, alleging race discrimination.  The Fire Chief claimed that he rejected these applicants for a variety of reasons: (1) one had a negative attitude and would undermine management; (2) another had declared that he wanted the Chief’s job and told “a blatant lie” about the Chief; (3) another was not perceived as supporting the department and “did a lot of complaining”; and (4) the Chief understood, erroneously as it turned out, that the fourth plaintiff was planning to retire soon.  These were found by the court to be legitimate, non-discriminatory reasons for the promotional decisions, and the plaintiffs failed to prove that any of these reasons were a pretext for illegal discrimination.  Stockwell v City of Harvey, 597 F3d 895 (7th Cir 3/12/10).

Going in the opposite direction was the decision in Torgerson v Rochester, 605 F3d 584 (8th Cir 2010).  The promotional process included an interview with a selection panel.  The scores from the interview were added to written test scores and the score from a fitness test.  A Native American male and white female challenged the process as being discriminatory.  The Eighth Circuit reversed a lower court ruling that there was no evidence of discrimination.  It found that the subjective nature of the interview process could enable a reasonable jury to find discrimination.

 

• Not Getting Along with Co-workers a Legitimate Reason for Not Rehiring an Individual

An employer was able to establish that an individual applying for re-hire after a RIF had had substantial conflicts with co-workers when originally employed by the company.  The individual sued for age discrimination after he was not re-hired, even though he admitted the prior conflicts.  The Sixth Circuit Court of Appeals in Viergutz v Lucent Technologies, Inc. (No. 08-3626, 4/23/10) held that this was a legitimate, non-discriminatory reason for the decision.

• Changed Reason for Employment Action Is Evidence of Pretext

In defending against an age discrimination lawsuit, an employer’s explanation for why it didn’t promote the plaintiff was different than the explanation it gave in its position statement to the EEOC in defending against plaintiff’s Charge of Discrimination to that agency.  The court found that this changing reason for the failure to promote was evidence that the reason given for the employment decision was a pretext for age discrimination.  Jones v National American University (8th Cir. 6/23/10).

• No Duty to Accommodate with Reassignment to Position Held by Temporary Workers

A duty to accommodate a disability under the ADA may include a transfer to a vacant position the employee is qualified to perform.  In Duvall v Georgia-Pacific Consumer Products (10th Cir. 6/9/10), a disabled worker requested a transfer to a position held by temporary workers in another department.  These temporary position were not available to similarly situated non-disabled regular employees.  For this reason, the court held that the plaintiff was not entitled to the requested transfer under the ADA’s accommodation provision.

• Discovery of Performance Problems during FMLA Leave Justifies Action Against Employee

While an employee was on FMLA leave, her employer discovered a number of examples of poor work performance before the leave.  Accordingly, when she returned from the leave, the employer demoted her.  She sued for FMLA retaliation.  Her case was dismissed in Schaaf v SmithKline Beecham Corp., 602 F3d 1236 (11th Cir 2010) because the FMLA is not designed to “aid an employee in covering up her work-related inefficiencies.”

• Police Officers’ FLSA Claims Dismissed

A group of police officers claimed they should have been compensated for the time spent putting on and taking off their uniforms and protective gear each day.  The Ninth Circuit Court of Appeals dismissed their lawsuit in Bamonte v City of Mesa, 2010 WL 1729868.  The decision was based largely on a 2006 DOL memorandum that stated that “employees are not entitled to compensation when they are not required by the employer to don and doff uniforms and gear at the employer’s premises, and have the option and ability to don and doff at home.”

• Public Policy Case Dismissed Where Employee Was Not Asked to Perform Illegal Act

 

An employee at a nursing home was discharged for not following an order as to how to dispense medication to a patient.  She claimed the order was illegal and sued, claiming a public policy violation.  Her case was dismissed in Bonds v Laurel Health Care (Mich App No. 2907709, 4/22/10).  The court determined, based on a determination of the applicable state agency, that the order was not illegal, so the employee was not discharged in violation of public policy by refusing to obey an unlawful order.

 

• Grievance Notes Not Part of Personnel Record under Bullard-Plawecki

An employee grieved a disciplinary suspension.  In the course of a 5-step disciplinary procedure, notes were taken by management personnel.  Eventually, the employee requested a copy of his personnel file, including notes from the grievance proceedings.  The Michigan Court of Appeals, in Wright v Kellogg Company, decided that these notes were exempt from disclosure under the section of the Act stating “records limited to grievance investigations which are kept separately and not used for the purposes of [an employee’s qualifications for employment, promotion, transfer, compensation or disciplinary action].”  Because these notes were related to an appeal of the disciplinary action and were not used in imposing the discipline, they were exempted from disclosure.

For additional information on these developments, please contact Kevin McCarthy at mccarthy@mccarthysmithlaw.com or by phone at (269) 488-6330.