Author: James Denis

Steven Peters worked for pharmaceutical manufacturer Gilead Sciences Inc. as a therapeutic specialist. After Peters suffered work-related injuries to his neck and right shoulder, Gilead twice approved his requests for Family and Medical Leave Act leave. v

Gilead’s company handbook promised FMLA-like benefits of 12 weeks of leave for employees who had worked at least 1,250 hours during the previous 12 months. The handbook did not mention the FMLA requirement that employers have at least 50 employees within 75 miles of the work site, which Gilead did not satisfy.

One week before Peters was to return to work from FMLA leave, Gilead notified him that he was not entitled to his same job and offered him a job that would require him to move from Indiana to California. Peters did not respond and was fired.

Peters sued Gilead in U.S. District Court for the Southern District of Indiana under the FMLA, Title VII, the Americans With Disabilities Act and common-law claims including promissory estoppel. The court granted summary judgment to Gilead on all the claims.

    On appeal, the Chicago-based 7th Circuit Court of Appeals reversed, holding that employers can offer FMLA-like benefits using eligibility requirements less restrictive than those in the FMLA, which is what Gilead did. Peters’ ineligibility for FMLA leave was irrelevant to the contract-based theories of liability, such as promissory estoppel, because Gilead’s employee handbook contained a leave policy which did not require that Peters work in a facility where 50 or more employees worked within 75 miles of that work site. Peters v. Gilead Sciences, Inc., 7th Cir. No. 06-4290 (7/14/08).

    Impact: A company handbook can create a contractual relationship or, in the alternative, the enforcement of a promise made in the handbook that the employee has relied on to his detriment. As such, courts have barred employers from asserting the defense of FMLA ineligibility.

Workforce Management, August 11, 2008, p. 12 — Subscribe Now!

Jeff Quon worked as a police sergeant for the city of Ontario, California. During his employment the city issued him a two-way pager to text message for business use. The city had a policy of monitoring its e-mail system, but did not have an official policy regarding text messaging. Quon and other officers were told that text messages were considered the same as e-mail under the policy, but that text messages would not be monitored if employees agreed to pay the coverage charge for exceeding the amount of text messages allowed.

At its request, the city received from Arch Wireless, which provided the text messaging service, transcripts of text messages for certain police officers, and determined that many of Quon’s text messages were personal and sexually explicit. Quon sued Arch and the city in U.S. District Court in Los Angeles, alleging violations of the Stored Communications Act, the Fourth Amendment of the U.S. Constitution and the privacy provision of the California Constitution. The court rejected Quon’s claims, finding the disclosure permissible. Quon appealed.

The San Francisco-based 9th U.S. Circuit Court of Appeals reversed, holding that Arch violated the Stored Communications Act and Quon’s privacy rights under the U.S. Constitution and California law by reading his text messages without his consent. Arch was an electronic computing service and, as a result, could not disclose text message content without consent of a recipient. Thus, its disclosure to the city violated the Stored Communications Act. The 9th Circuit also held that Quon held a reasonable expectation of privacy because text messages were not monitored in most cases, including if personal use was paid for. Quon v. Arch Wireless Operating Co., 9th Cir. No. 07-55282 (6/18/08).

Impact: Employers wishing to access employees’ electronic communications need to verify that the access does not violate applicable statutes, and that the employee (and recipients of employee communications) do not have a reasonable expectation of privacy.

Workforce Management, August 11, 2008, p. 12 — Subscribe Now!

Aramark Facility Services is a nationwide company that employs 170,000 people. In early 2003, the Social Security Administration sent Aramark letters advising that Social Security numbers for 48 of its janitors did not match information in the agency’s database.

    In response, Aramark sent letters to the 48 janitors threatening termination if they did not provide documentation to confirm their correct Social Security numbers. The union representing the workers requested additional time for the employees to respond, but Aramark refused and fired 33 workers who were unable to provide documentation to confirm their correct Social Security numbers.

    The union filed a grievance alleging Aramark violated the collective bargaining agreement by firing the workers without just cause. The arbitrator decided in favor of the workers, finding no “convincing information” that any of the workers were undocumented. Aramark brought suit in U.S. District Court in California to overturn the arbitration award. The district court found in favor of Aramark, holding that the failure to provide documentation constituted constructive notice of ineligibility to work in the United States.

    The U.S Court of Appeals for the 9th Circuit in San Francisco disagreed with the district court’s decision, and held that “no-match” letters do not constitute constructive notice of ineligibility for employment in the U.S. because “the main purpose of the no-match letters is not immigration-related.” The court noted that the Social Security Administration, the IRS and the Department of Homeland Security have all issued guidance indicating that a Social Security number discrepancy alone does not automatically mean an employee lacks proper work authorization. The no-match letters received by Aramark were not intended to make a statement about the affected employees’ immigration status and, without more, did not provide Aramark with notice of any immigration violations. Aramark Facility Servs. v. Serv. Employees Int’l Union Local 1877, 9th Cir. No. 06-56662 (6/16/08).

    Impact: Because “no-match” letters are often the result of inaccurate or incomplete employer records, employers are advised that, upon receipt of a no-match letter, the employee should be given a reasonable time to investigate the discrepancy.

Workforce Management, July 14, 2008, p. 10 — Subscribe Now!

A group of employees over the age of 40 had their jobs eliminated in 1996 by Knolls Atomic Power Lab Inc., a subsidiary of Lockheed Martin Corp. Of the 31 employees laid off, 30 were more than 40 years old. The workforce as a whole was 60 percent over 40.

    Several laid-off employees sued under the Age Discrimination in Employment Act, using a “disparate impact” theory. A jury found in favor of the plaintiffs. The U.S. Court of Appeals for the 2nd Circuit in New York (by a 2-1 vote) vacated the district court judgment and remanded the case with instructions to enter judgment for the employer. The 2nd Circuit majority held that it is the plaintiffs’ burden to prove that the employer’s justification was unreasonable.

    On review by the U.S. Supreme Court, the justices emphasized (by a vote of 7-1) that employees alleging age discrimination must first isolate and identify the specific employment practices that allegedly discriminate against older employees. Congress placed the burden on employers to prove their decisions were ultimately motivated by reasonable factors other than age. The court acknowledged that “putting employers to the work of persuading fact-finders that their choices are reasonable makes it harder and costlier to defend” and that “this will sometimes affect the way employers do business with their employees.” Meacham v. Knolls Atomic Power Lab., 2008 U.S. LEXIS 5029.

    Impact: The high court makes it more difficult for employers to defend themselves against age discrimination suits, and employers—not plaintiffs—bear the burden of persuading a court that discriminatory employment decisions were based on “reasonable factors other than age

Workforce Management, July 14, 2008, p. 10 — Subscribe Now!

In 1997 Deborah Lewis became a bookkeeper for Freeburg (Illinois) Community School District No. 70. In 2004, school superintendent Rob Hawkins reduced Lewis’ hours and allowed her to occasionally work from home to care for her terminally ill mother. At an October 2004 school board meeting, Hawkins told the board that Lewis’ leave was an inconvenience to the school and that, while she had performance problems, the district could face Family and Medical Leave Act liability if she were terminated. At a November 2004 board meeting, members described the FMLA as “ludicrous,” and instructed Hawkins to build a case against Lewis.

   In March 2005, Lewis received a mixed performance review indicating issues with her job performance during the period she was working a reduced schedule. Later, Lewis received a letter giving her the option to resign or accept a demotion because she “missed too much work to meet the essential functions of [her] present assignment.”

   Lewis filed suit in the U.S. District Court for the Southern District of Illinois under the FMLA and state law. The court granted summary judgment in favor of the school district, finding insufficient evidence to state a claim. Lewis appealed.

   The U.S. Court of Appeals for the 7th Circuit reversed on Lewis’ FMLA claims, stating that she need only prove “protected conduct was a substantial or motivating factor” for her demotion. There was sufficient evidence to infer that “while fully cognizant of their obligations to Lewis under the FMLA, [the board] decided not to inform her of those rights” but instead build a case against her in order to justify her termination. Lewis v. School District #70, 7th Cir., No. 06-4435 (4/17/08).

    Impact: Adverse action against an employee for taking job-protected FMLA leave is unlawful. Employers are advised that eligible employees should be afforded FMLA leave, which may include a reduction to an employee’s workload.

Workforce Management, June 23, 2008, p. 12 — Subscribe Now!

Antonina Lonicki began working for Sutter Health Central in 1989, became a certified technician in 1993, and in 1999 began working part time at Kaiser Permanente in a similar position. After Lonicki obtained a doctor’s note for a one-month leave of absence, Sutter’s doctor determined that Lonicki was able to return without restriction. Lonicki was told to return to work by August 9, or she would be terminated.

She stated she would return on August 27 per her doctor and continued to see a psychologist through August. Sutter sent a letter stating it would give Lonicki paid time off until August 23. Lonicki’s psychologist wrote her a note stating that she was “disabled by major depression” and should not return until September 26.

Lonicki was terminated by Sutter, but she continued to work part time for Kaiser during her leave of absence. While Lonicki’s work at Kaiser was similar, it was “slower.”

Lonicki filed suit in the Sacramento County Superior Court against Sutter for violation of the California Family Rights Act. The court dismissed the case, stating that Lonicki’s part-time employment with Kaiser while on leave demonstrated that she was able to perform her job at Sutter. The California Court of Appeals affirmed. Lonicki appealed.

The California Supreme Court held that Lonicki’s employment with Kaiser was “strong evidence that she was capable of doing her full-time job. … But that evidence is not dispositive, as it is contradicted by [Lonicki’s] treating psychologist.” Lonicki v. Sutter Health Cent., Cal., No. S130839, (4/7/08).

Impact: Continued employment with another employer during medical leave may not foreclose employees from taking family leave under state or federal law. Employers are advised that they should defer to medical opinion, and request second opinions or clarification if necessary.

Workforce Management, June 9, 2008, p. 8 — Subscribe Now!