James Denis – Page 2

April 9, 2010August 9, 2018

‘Kin Care’ Law and Uncapped Sick Leave

The Communications Workers of America entered into a collective bargaining agreement with SBC Communications Inc. that included a provision allowing employees with one year of service to be paid for “sickness absence” up to five consecutive days in a seven-day period, with that entitlement renewing each time the employee returns to work. The only limitation on the amount of paid sick leave is an attendance management policy that provides for progressive discipline for excessive absences. That collective bargaining agreement applied to certain employees based in California.

When two California-based SBC employees were not paid for time taken off to care for ill family members, they sued SBC, claiming a violation of the California Labor Code’s “kin care” provision. That law provides that an employer “shall permit an employee to use in any calendar year the employee’s accrued and available sick-leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee.”

The California Supreme Court held that the Labor Code’s “kin care” provision does not apply to sick-leave policies that provide an uncapped amount of paid leave, such as the one at issue here. The court held that because the “kin care” law permits employees to use “accrued and available” sick leave, the statute does not apply to all other forms of compensated sick leave, but only those “that provide a measurable, banked amount of sick leave.” The court held that in uncapped policies, it is impossible to determine how much paid sick leave an employee is entitled to in a six-month period and therefore how much paid leave the employee could use for kin care. McCarther v. Pac. Telesis Group, Cal., No. S164692 (2/18/10). Impact: Employers are advised to review applicable state law that may afford employees the opportunity to use sick leave and other benefits to care for family members.

Workforce Management, April 10, p. 8 — Subscribe Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

March 9, 2010August 10, 2018

Overtime Pay Exemption Considered

Lynore Reiseck worked for Universal Communications of Miami Inc. as regional director of advertising sales for the company’s magazine Elite Traveler. Reiseck received a base salary plus commissions but was never paid for overtime. Her job required that she sell advertising space to individual customers. In 2004, after she was fired, Reiseck filed a lawsuit alleging claims including denial of overtime pay.

The district court found that Reiseck was exempt, and not entitled to overtime pay compensation, because she was the “key executive responsible for generating advertising revenue” and exercised discretion and independent judgment with respect to matters of significance. It granted Universal’s summary-judgment motion and dismissed the case.

The New York-based 2nd U.S. Circuit Court of Appeals vacated the district court’s grant of summary judgment on the issue of whether Reiseck was entitled to overtime pay. The court reasoned that “an employee making specific sales to individual customers is a salesperson for the purposes of the [Fair Labor Standards Act], while an employee encouraging an increase in sales generally among all customers is an administrative employee for the purposes of the FLSA.”

The court said Reiseck was “a salesperson responsible for selling specific advertising space, and so seems to fit comfortably on the ‘sales’ side of the administrative/sales divide, and also ‘promoted sales’ in some sense, and thus seems to have performed administrative operations.” Since advertising sales were a critical source of revenue for the free magazine, “one could thus conclude that advertising space is Universal’s ‘product.’ ” Since Reiseck’s primary duty was the sale of that product, she may reasonably be considered a sales employee, rather than an administrative employee and was thus entitled to overtime pay. Reiseck v. Universal Communications of Miami Inc., 2d Cir. No. 09-1632 (1/11/10).

Impact: Careful review of job descriptions, together with review of applicable state and federal overtime exemptions, is necessary to make informed decisions about overtime pay obligations.

Workforce Management, March 2010, p. 8 — Subscribe Now!

February 18, 2010August 31, 2018

‘Me Too’ Evidence in Sex Harassment Claims

Thelma Alaniz, Noelia Galvan-Santiago, Mary Tipton and Angelica Zolis worked for a medical clinic owned and operated by Dr. Jorge Zamora-Quezada in McAllen, Texas. They alleged that Zamora sexually propositioned, kissed or attempted to kiss them, touched their thighs and hands, promised job security and advancement in exchange for sexual favors, and disciplined them when they did not give in to his advances.

A jury in the U.S. District Court for the Southern District of Texas returned a verdict in favor of the employees on all counts and awarded $51,286 in back-pay damages, $42,000 in compensatory damages and $164,000 in punitive damages, for a total of more than $257,000 in back pay and damages for harassment and retaliation. At trial, the court allowed the jury to consider “me too” evidence (that other employees not parties to the lawsuit experienced similar acts of harassment).

Saying the evidence did not prove a hostile work environment and that a new trial was required, Zamora appealed to the 5th U.S. Circuit Court of Appeals. The 5th Circuit affirmed the verdict on all counts but one, reversing judgment on Galvan-Santiago’s claim of quid pro quo harassment for insufficiency of evidence, noting: “We focus on the frequency and crudeness of the remarks, as well as the frequent inquiries about the plaintiff’s sexual activity, and determined that this conduct was sufficiently severe and pervasive to create a hostile work environment, even without evidence of propositioning or inappropriate touching.”

However, the court held that there was no need for a new trial on damages. With respect to Zamora’s other challenges, the court found no abuse of discretion by the trial court admission of the “me too” evidence and decision to merge each of the plaintiffs’ claims into a single trial. Alaniz v. Zamora-Quezada, 5th Cir., No. 07-40325 (12/21/09).

Impact: Business owners must always be on their best behavior toward employees and customers. It is recommended that employers consider policies and procedures to alert all managers of their obligations, and provide employees with an avenue for complaints.

Workforce Management, February 2010, p. 10 — Subscribe Now!

February 9, 2010August 31, 2018

Exam Request Lawful Due to Safety Concerns

Paul James operated an industrial mixer at Goodyear Tire & Rubber Co.’s tire manufacturing plants in Tennessee from 1987 until September 2004. During his employment, James suffered from progressive multiple sclerosis, but performed his duties without problems until 2003, when he could work only “with extreme difficulty.” He suffered weakness, weight gain and increased muscle spasms in his legs. His left-foot drag worsened and he had to sit for prolonged periods. After Goodyear management learned of his deteriorating condition, the company ordered him to undergo an evaluation test to determine his work capacity.

Rather than undergo the test, James decided to retire and receive temporary disability benefits. After accepting medical retirement, James complained that he had been singled out for testing based on his disability. James alleged that if he had taken the exam and failed it, Goodyear would have most likely terminated him.

James sued claiming violations of the Americans with Disabilities Act stemming from the company’s request that he undergo a functional capacity evaluation, and alleged that the test was an adverse employment action. The U.S. District Court for the Western District of Tennessee granted Goodyear’s motion for summary judgment on the grounds that the company’s safety concerns justified requiring James to submit to the test.

James appealed to the 6th U.S. Circuit Court of Appeals. The 6th Circuit affirmed the dismissal of James’ lawsuit and held that “a valid [functional capacity evaluation] demand cannot constitute an adverse employment action under the Americans with Disabilities Act.” Because Goodyear had legitimate concerns about James’ ability to work safely, the demand for an exam was lawful and could not be the basis of a claim for disability discrimination. James v. Goodyear Tire & Rubber Co., 6th Cir., No. 08-6332.

Impact: Functional capacity evaluations, prompted by legitimate safety concerns, are lawful.

Workforce Management, February 2010, p. 10 — Subscribe Now!

December 11, 2009August 31, 2018

Employee Genetic Information Is Protected

The Genetic Information Nondiscrimination Act of 2008, popularly known as GINA, prohibits discrimination on the basis of genetic information by employers and group health plans. The law, which applies to employers with 15 or more employees, employment agencies and unions, prohibits employers from discriminating against an employee or job applicant due to genetic information.

“Genetic information” includes information about the genetic testing of and manifestations of a disease or disorder affecting the employee, applicant or family members. Collection of an employee’s genetic information is permitted under limited circumstances, including when employees volunteer this information as a part of casual conversation, known as the water-cooler exception; during a wellness program; or in the process of completing certain medical-leave paperwork. Disclosure of such genetic information by an employer is also limited.

GINA prohibits retaliation against any individual who complains about violations of the act. The civil penalty for violating GINA ranges from $100 to $15,000. Individuals who believe their rights have been violated may also file a private lawsuit.

The employment provisions of GINA became effective November 21, 2009, and the EEOC’s regulations governing those provisions will be finalized and published in the near future. GINA was effective for group health plans beginning after May 21, 2009, or January 1, 2010, for calendar-year plans. Regulations applicable to health insurance plans were made public on October 1, 2009, and interim final regulations became effective on December 7, 2009. P.L. 110-233.

Impact: Employers and group health insurers should review personnel practices and information-gathering polices to ensure compliance with GINA. Post-offer, pre-employment health history policies and practices should be considered for review.

November 11, 2009June 27, 2018

Overtime Pay Plan for Flexible Workweek Approved

Louise Parth, an emergency room nurse at Pomona Valley Hospital Medical Center in Pomona, California, filed a class-action lawsuit against the hospital alleging that its alternative pay scheme to compensate nurses working four 12-hour shifts a week violated the overtime pay requirements of the Fair Labor Standards Act. Employees who agreed to work the 12-hour-per-day, four-day workweek received a lower base hourly rate (which exceeded the legal minimum wage) in exchange for the 12-hour schedule. Parth agreed to participate in the plan in 1993, and as a result her base hourly rate was reduced, from $22.93 to $19.57 an hour.

Under normal circumstances, the FLSA requires an employer to pay nonexempt employees who work more than 40 hours in a workweek one and a half times the employees’ “regular rate” of pay. In hospitals and health care facilities, however, there is an additional overtime requirement that employers pay time and a half for hours worked in excess of eight hours in any workday. [See: 29 U.S.C. § 207(j).]

The U.S. District Court dismissed the action on the grounds that the hospital’s pay plan did not violate the FLSA, and on appeal to the U.S. Court of Appeals for the 9th Circuit, that decision was affirmed. The 9th Circuit agreed that nothing in the FLSA “bars an employer from contracting with his employees to pay them the same wages they received previously, so long as the new rate equals or exceeds the minimum required by the [FLSA].” The court also found no evidence that the altered compensation schedule was adopted for the purpose of avoiding overtime payments. Parth v. Pomona Valley Hospital Medical Center, No. 08-55022 (10/22/09).

Impact: Employers may implement an alternative pay schedule so long as employees continue to earn approximately the same salary at an hourly rate that meets or exceeds the minimum requirements of the FLSA.

October 16, 2009August 31, 2018

$1.2 Million Judgment in Disability Case

Tammy Calef worked for FedEx as a service manager until February 2004, when, after having injured her hand, she was eventually told to go home, stay home and apply for short-term disability benefits. Before that instruction, however, Calef was scheduled by upper-level supervisors to drive a van and deliver packages, despite the hand injury. After two days, her hand got worse.

Despite the severity of Calef’s injury, FedEx continued to assign delivery duties to her. In early February 2004, Steve Hickman, the human resources manager, asked Calef if she was “sending out résumés.” Hickman offered her three months’ severance with medical benefits until the end of the year. Calef complained to manager Kyle Ryan, but for the next week Ryan sent daily notes to Hickman documenting problems with Calef’s performance unrelated to her hand injury. On February 13, 2004, Calef was assigned a delivery route consisting of more than 70 stops. She soon went back to Ryan and said, “My hand cannot do this.” Calef furnished doctors’ notes as requested and continued to work until she was told that she was to go home and told that she could not return to work until she presented a full release from her doctor.

Calef sued under the West Virginia Human Rights Act, alleging disability-based discrimination. A jury awarded Calef $1.2 million. FedEx appealed. The U.S. Court of Appeals for the 4th Circuit affirmed, finding that FedEx objectively treated Calef as disabled and that FedEx violated the company’s reasonable accommodation process by failing to explore with Calef whether she could remain on the job if provided with an accommodation, arbitrarily requiring her to take disability leave. Calef v. FedEx Ground Package Sys. Inc., 4th Cir., No. 08-2031, unpublished opinion (8/27/09).

Impact: Employers must always engage in an interactive process with employees seeking job accommodations. Employers should not assume that an employee is no longer able to perform the essential functions of her job with or without an accommodation, without speaking with the employee and receiving a doctor’s documentation of the impairment.

Workforce Management, October 19, 2009, p. 12 — Subscribe Now!

October 16, 2009August 31, 2018

Terminated Employee’s ‘Regarded As’ Claim Weighed

Erin Primmer was hired as a television producer for The Montel Williams Show in August 2005, during the show’s 15th season. Her contract, running from August 2006 through May 18, 2007, was renewed for the 16th season with a 6 percent salary increase. On March 29, 2007, Primmer had emergency surgery for a brain aneurysm and did not return to work for the remainder of the 16th television season. However, she was cleared by her doctor to return to work for the start of the 17th season.

In May 2007, prior to the start of that season, Primmer met with her supervising producer, Susan Henry, and discussed her condition. At that time, Henry said Primmer’s contract was not being renewed because the show “needed someone at the top of their game” who could “handle the pressure.”

Primmer filed suit in U.S. District Court in New York, alleging that the show violated the Americans with Disabilities Act because of her perceived disability. The district court denied the show’s motion to dismiss the action, finding that factual issues existed concerning when the show actually decided to terminate Primmer. Primmer was never advised before suffering her aneurysm that her job performance was unsatisfactory or that her continued employment was in jeopardy. Henry’s comment that the show needed someone “at the top of their game” would allow a jury to decide that the decision not to renew Primmer’s contact was at least in part motivated on her perceived disability, “especially given the close proximity between Primmer’s return [following the aneurysm] and her meeting with Henry,” the court found. Primmer v. CBS Studios Inc., S.D.N.Y., No. 08-9422 (9/8/09).

Impact: Employers must return to work employees who have been released by their doctors to work and who can perform essential job duties and responsibilities of their positions. Where requested or necessary, reasonable accommodations should be discussed with the employee.

Workforce Management, October 19, 2009, p. 12 — Subscribe Now!

September 3, 2009August 31, 2018

Recent Settlements Should Alert Employers

In Washington, a state judge has given final approval to a settlement between Wal-Mart and a class of more than 88,000 workers for working off the clock and during meal and rest breaks. Wal-Mart will pay up to $35 million to the class. In response to the litigation, Wal-Mart has implemented a clockout/lockout program which locks associates out of electronic devices, including computer terminals, if they are not clocked in for work on Wal-Mart’s time clock. This Washington case is one of 63 wage and hour suits across the country that Wal-Mart is in the process of settling. (Barnett v. Wal-Mart Stores, Inc., Wash. Super. Ct., No. 01-2-24553-8, 7/20/09)

In a second case, a federal district court in Maryland approved a $112,871 settlement and consent decree of an Equal Employment Opportunity Commission suit claiming that Medical Health Group violated the Americans with Disabilities Act by firing an employee, Barbara Metzger, who was undergoing breast cancer treatment one week before she was to return to work from an approved medical leave. Although Metzger told Medical Health that she planned to work full time, Medical Health presented her with a termination letter stating that she was too sick to return to work. Under a three-year consent decree, Medical Health is to provide equal employment opportunity training for its managers and human resources personnel and to post workplace notices in two locations informing employees of the settlement and stating its commitment to ADA compliance. (EEOC v. Med. Health Group Inc., D. Md., No. 09-cv-803, consent decree entered 7/20/09)

Impact: These two settlements provide examples of preventive measures that an employer should consider taking to avoid litigation. In addition to paying employees for all hours worked and making rest and meal breaks available where required by law, electronic tracking programs may provide for increased accuracy of time recording. Employers should also ensure that their employee handbooks and policies are updated regularly to comply with the law, and that employees, management and human resources personnel are aware of employee rights and responsibilities.

July 17, 2009August 31, 2018

Disparate Impact Versus Disparate Treatment

Pursuant to a collective bargaining agreement between the city of New Haven, Connecticut, and the New Haven Firefighters Union, promotions to captain and lieutenant were to be based on exams. After an extensive background investigation, the exams were created by an outside company. Under the city’s civil service rules, each opening for promotion was to be awarded to one of the top three scoring candidates.

Of the applicants who took the captain and lieutenant exams, no black applicants were eligible for promotion. Before the exam results could be used for promotion, the civil service board had to certify them. The city discouraged the board from certifying because doing so would “create a situation in which African Americans are excluded from promotional opportunity” and a “disparate impact” resulted. The board did not certify.

Several white firefighters and one Hispanic firefighter who took the exam filed suit in district court in Connecticut under Title VII of the Civil Rights Act of 1964, asserting that rejecting the results solely because the city wanted more minorities to qualify for promotion was discriminatory against non-blacks. The court found for the city, holding that the test results were presumptively discriminatory based on their disparate impact on the passage rate. The court of appeals affirmed.

The U.S. Supreme Court reversed in a 5-4 decision. The justices held that the city’s decision that “too many whites and not enough minorities would be promoted” was an express race-based decision that otherwise violates Title VII and that a simple good-faith concern over disparate impact liability is not a sufficient defense. Once a race-neutral process has been established by an employer and it makes clear its selection criteria, it can’t invalidate the results. Ricci v. DeStefano, 557 U.S.__ (2009).

Impact: Employers are advised that once a selection system is in place, it should be followed in the absence of evidence that the process violates the disparate-impact provisions of Title VII. Employers should consider adopting a fair system for awarding promotions, ensure the process is job-related and defensible, and evaluate alternative methods based on appropriateness and the impact on protected groups.