Author: James Hatch

Robert Washburn worked as a millwright for Columbia Forest Products at its Klamath Falls, Oregon, plant. Washburn was a medical marijuana recipient who regularly used the drug before going to bed to counteract leg spasms that otherwise would keep him awake. Though he used the marijuana at home, CFP had a policy prohibiting workers from coming to the plant with controlled substances in their systems.

    Washburn was fired after failing several drug tests. He sued, claiming his leg condition left him legally disabled and, therefore, CFP had failed to reasonably accommodate him in violation of Oregon statutes.

    According to the Oregon Supreme Court, Washburn’s leg spasms did not rise to the level of a disability under Oregon law because his previous regular prescription medications had successfully treated his spasms. Furthermore, even if Washburn was disabled under state law, CFP was not obligated to reasonably accommodate his use of medical marijuana because its possession is prohibited by federal law. This was so despite his doctor approving him for Oregon’s medical marijuana program.

    Therefore, the court affirmed the dismissal of Washburn’s lawsuit in favor of CFP. Washburn v. Columbia Forest Prods. Inc., Or. Supr. Ct., No. S52254 (5/4/06).

    Impact: Employers are cautioned that the medical use of marijuana will continue to be a contentious issue affecting employment policies and practices so long as federal and state laws continue to conflict.

Workforce Management, June 26, 2006, p. 8 — Subscribe Now!

May an employer impose a fine on exempt employees who damage or lose equipment used in performing their jobs, such as cellular telephones or laptop computers? That was a question answered in a recent U.S. Department of Labor wage and hour opinion letter.

    An employer can legally require deductions from the wages of its nonexempt employees for the cost of lost or damaged tools, as long as the deductions do not reduce the employees’ pay below the minimum wage.

    However, according to the Department of Labor, such deductions for exempt employees would violate the Fair Labor Standards Act regulation prohibiting salary reductions due to the quality of work performance. Because the employees would not be paid a guaranteed or fixed amount, violation of the salary basis rule would also jeopardize their exempt status.

    In a separate opinion letter, the DOL concluded that employers could insist that exempt employees work more than 40 hours per week and could discipline them for not fulfilling that work requirement. An employer may even require an exempt employee to do such things as record and track hours and work a specified schedule without affecting the employee’s exempt status. However, employers cannot impose a disciplinary suspension of one day or more for an infraction of these requirements because such rules must only relate to “conduct, not performance or attendance issues.” Wage and Hour Opinion Letters, FLSA Nos. 2006-6 and 2006-7 (3/10/06).

    Impact: Employers are cautioned that deductions from the salaries of overtime-exempt employees risk the loss of such exemption unless expressly authorized by FLSA, its regulations or applicable state law.

Workforce Management, June 26, 2006, p. 8 — Subscribe Now!

Twenty-four salaried employees at Detroit Edison claimed that they were not paid on a salary basis and, hence, were eligible for overtime pay. Eventually, 383 employees signed the complaint. The plaintiffs identified more than 40 occasions over six and a half years when some exempt employees did not receive one-twenty-sixth of their annual salary during a particular biweekly pay period.

    Detroit Edison’s exempt employees were guaranteed to receive one-twenty-sixth of their set annual salary each biweekly pay period, provided that they input at least 40 hours per week into the payroll system. They were allowed to report hours in excess of the hours they actually worked in order to input sufficient hours to generate their full predetermined amount each pay period. However, employees could receive less than their full salary if they accidentally reported less than 40 hours per week. Detroit Edison also had a system for correcting such errors.

    The trial court decided, and the appellate court agreed, that as long as employees regularly received one-twenty-sixth of their annual salary each biweekly pay period, and no deductions were made other than those expressly permitted by law, tracking or accounting of actual hours worked by exempt employees did not violate the salary basis test. Docking employees for a time-entry error did not call into the question the company’s intention to pay them on a salary basis. Hence, no overtime was owed. Acs v. Detroit Edison Co., 6th Cir., No. 05-1042 (4/14/06).

    Impact: Employers should know that so long as salaried employees receive the appropriate portion of their salary each pay period, requiring the accounting of actual hours worked does not affect their exempt status.

Workforce Management, May 22, 2006, p. 11 — Subscribe Now!

Weyerhaeuser Co. operated a paper mill in Oklahoma for which Kellogg, Brown & Root and Kenny Industrial provided contract maintenance employees. Weyerhaeuser policy barred employees from having firearms on company property and in employee parking areas. KBR and Kenny policies prohibited employee firearms anywhere on customers’ property and required compliance with customers’ policies.

   In October 2002, Weyerhaeuser used search dogs to identify vehicles that might contain drugs. A number of employees admitted having firearms in their vehicles and consented to a search of their cars. Weyerhaeuser, KBR and Kenny fired their employees found with firearms or drugs in their vehicles.

   Eight workers sued Weyerhaeuser, alleging violations of the Oklahoma state constitution, the state gun-possession law and various common-law claims. That state’s constitution provides that the “right of a citizen to keep and bear arms in defense of his home, person or property … shall never be prohibited.” The Oklahoma Self-Defense Act (OSDA) empowered employers, among others, “to control the possession of weapons on any property (they) owned,” but a 2004 amendment to that act permitted the storage of guns in locked vehicles.

   Upon appeal, the U.S. Court of Appeals for the 10th Circuit in Denver found that there was no violation of the employees’ rights under state law, in part because the OSDA 2004 amendment was not retroactive. Bastible v. Weyerhaeuser Co., 10th Cir., No. 05-7037 (2/13/06).

    Impact: Employers should carefully research current legal restrictions and employee rights, especially concerning privacy, before conducting any search of their employees, including private vehicles.

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.

Workforce Management, May 8, 2006, p. 8 — Subscribe Now!

Wal-Mart faces a Pennsylvania class-action lawsuit in which a court certified a class of 150,000 former and current employees at 130 stores in Pennsylvania. The employees allege that they were not paid for their breaks and lunch periods and were forced to work off the clock. The plaintiffs used Wal-Mart’s own computer records of employee time and activity to convince the court that class certification was proper.

    Those records recorded the “total hours worked” and “total breaks” for every employee for every shift worked. Wal-Mart records called a Time Clock Punch Exception Report listed missed or inadequate breaks. Plaintiffs used statisticians to review those records. Those statisticians reported that 64.6 percent of 23,919 individual shifts contained deficiencies in duration of rest and meal breaks.

    Wal-Mart defended, in part, by arguing that those records were inadequate. The court rejected Wal-Mart’s “unreliability” argument and certified a class. Braun v. Wal-Mart Stores Inc., 2005 Phila. Ct. Com. Pl. LEXIS 551 (Dec. 27, 2005).

    Impact: Whether employers want to maintain computerized records like Wal-Mart did is questionable. The court noted that Wal-Mart, after several other lawsuits, decided in 2001 that rest break data should no longer be maintained by computer record. Computer records can be helpful. If, however, they contain the wrong information, they can be used as a sword against, instead of a shield for, the company.

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.

Anna Jensen, a letter carrier for the U.S. Post Office, complained to her manager that a supervisor commented to her, “I want to make love to you all day long.” The supervisor was fired after investigation of the incident.

    Following that complaint, Jensen was subjected to insults by a co-worker who had sided with the supervisor. Additionally, obscenities were directed at her, co-workers made loud noises to scare her, other employees drove U-Carts directly at her at high speeds, and her car was vandalized in the post office parking lot. Although Jensen repeatedly complained to her manager about her co-workers’ behavior, the harassment continued for 19 months. It was only after Jensen complained to a new supervisor, and her co-workers were confronted, did the harassing behavior stop.

    Jensen filed suit for sex discrimination and retaliation under Title VII. She claimed that her co-workers’ harassment was an adverse employment action in violation of Title VII and in retaliation for her initial complaint.

    The U.S. Court of Appeals for the 3rd Circuit in Philadelphia agreed. In agreement with seven other circuit courts of appeals, the 3rd Circuit said that a retaliation claim could be predicated upon a hostile work environment. It reasoned that “retaliatory conduct other than discharge or refusal to hire violates Title VII when it alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities or adversely affects his or her status as an employee.” Jensen v. Potter, No. 04-4078 (3d Cir. January 31, 2006).

    Impact: Employers are advised to review and update their anti-harassment policy to ensure that retaliatory acts are grounds for termination; conduct periodic employee and management training; and, where specific complaints are lodged, be alert to retaliatory harassment.

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.

Larry Bellum worked for PCE Constructors Inc., managing its site in Fernwood, Mississippi. PCE had a staff of 14 at its Baton Rouge headquarters and 41 at the Fernwood site. Bellum drove each day between his home in Baton Rouge and Fernwood, a round trip of about 190 miles. The distance between PCE’s headquarters and Fernwood was between 66.5 and 69.5 miles “as the crow flies,” but 88.5 miles over public roadways.

    Bellum was granted a medical leave for open-heart surgery. Following his recovery from surgery, PCE terminated Bellum for lack of work.

    Bellum sued PCE under the Family and Medical Leave Act. The trial court found that Bellum was not an “eligible employee” for FMLA leave. That law covers employees at a work site of an employer that has at least 50 employees within a 75-mile distance of the work site. The trial court held that PCE employed fewer than 50 employees within 75 miles of the Fernwood work site and dismissed the claims. Bellum appealed.

    The U.S. Court of Appeals for the 5th Circuit in New Orleans affirmed. It relied upon FMLA’s regulations, which provide that the 75-mile distance should be “measured by surface miles, using surface transportation over public streets.” The 75-mile distance should only be measured as the crow flies when there is no “available surface transportation between work sites.” Because PCE’s headquarters, as measured over public roads, was more than 75 miles from the Fernwood work site, Bellum was not eligible for FMLA leave.

    The U.S. Supreme Court has declined to review the decision. Bellum v. PCE Constructors Inc., 407 F.3d 734 (5th Cir.), US, No. 05-640, cert. denied 1/17/06.

    Impact: Employers are cautioned that FMLA has technical requirements as to which employees are eligible for leave. Therefore, employers should exercise care in applying FMLA policy.

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.