Ross' Employment Law Blog

A blog for employment lawyers, human resources professionals, and union representatives.

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July 30, 2005

Diabetic was a direct threat to safety

An employer can refuse to hire a disabled person who poses a direct threat to safety. A diabetic who had a history of not taking care of his disease fit that description.

Brent Darnell was a Type I insulin-dependent diabetic who worked for Thermafiber as a temp for 10 months without a problem. Then he left, and returned and applied for full-time work. The company offer him a job contingent on passing a physical.

A doctor's exam consisted of a urine glucose test and an interview. From that the doctor decided Darnell's diabetes was not under control, and that he could not perform the physical aspects of the job. The doctor did not review Darnell's medical chart or conduct any other tests.

Is that enough of a medical exam for an employer to conclude that a person is a direct threat? Yes, says the 7th Circuit. Darnell v. Thermafiber (7th Cir 07/29/2005).

Darnell thought the medical exam was not an adequate "individualized assessment" required by the Americans with Disabilities Act (ADA). (See Chevron USA v. Echazabal, 535 US 73 (2002).

But the interview established that Darnell had a history of poor compliance and failure to seek medical attention, that his blood sugar levels were too high, that he hadn't checked in with a doctor in several months, and that he was disinterested in regulating his condition.

Based on that information, it was not necessary to conduct more tests or look into his prior medical history. Neither of these items would refute the fact that Darnell was not motivated to control his diabetes.

My view: The conclusion that Darnell was a direct threat was based on very little medical investigation. But, as the court pointed out, further medical investigation that might be necessary in many other cases was not needed here because of Darnell's noncompliance.

Posted July 30, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 28, 2005

Seniority can't control appointments

When the state constitution says appointments must be "based on merit," it means merit, not overall seniority in the state system.

The state and the union agreed on "post and bid" programs for permanent appointments and promotions for certain classifications of state civil service employees. Employees who bid for jobs must take a completive exam and meet other minimum requirements. The highest ranking bidders are placed on a certified eligibility list. At that point, the eligible bidder with the most seniority in state service must be selected. The agreements were approved by the state legislature and signed into law by the governor.

The California Supreme Court unanimously held that legislative approval of these agreements violated Article VII of the California Constitution, which requires that permanent appointment and promotion in the civil service "shall be made under a general system based on merit ascertained by competitive examination." California State Personnel Bd v. California State Employees Assoc (California 07/28/2005).

The court made three main points:

  • The appointment and promotion decisions themselves, not just the pre-appointment screening, must be based on merit.
  • Seniority may be an appropriate factor in evaluating merit.
  • Seniority in state service may or may not reflect fitness for a specific posted position.

My view: It's a rare event for a California Supreme Court opinion to be only 20 pages long. It must have been an easy decision to make.

Posted July 28, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 18, 2005

"Reverse" age discrimination unlawful in Minnesota

Federal law does not prohibit employers from preferring older workers over younger ones. State law can, and Minnesota law does prohibit older worker preferences.

A collective bargaining agreement required 1 out of every 5 electrical workers in a unionized shop to be 50 years of age or over. The employer let go two over-50 employees as part of a reduction in force. The union filed a grievance, which went to arbitration.

The arbitration panel ruled that the employer violated the agreement by not maintaining the 1-to-5 ratio, and awarded lost wages to the two employees.

The 8th Circuit held (2-1) that the arbitration award could not be enforced because it violated public policy - a rare outcome. The public policy was found in the Minnesota Human Rights Act. That statute, says the court, "prohibits using a person's age as a basis for a decision if the person is over the age of majority." Ace Electrical Contractors v. IBEW (8th Cir 07/14/2005).

The dissent would have upheld the arbitration award under the usual highly deferential rules for reviewing such awards, noting that "the law of Minnesota simply does not provide the clarity necessary to invoke the public policy exception.

My view:

  • A reminder that federal and state law can be quite different on important questions of employment discrimination law.
  • This case is an unusual example of a court refusing to uphold an arbitration award, on the ground that the award violated public policy.

Posted July 18, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 14, 2005

Jottings By An Employer's Lawyer

Three cheers for three years of blogging to Michael Fox, who writes Jottings By An Employer's Lawyer.

Michael began his blog in July 2002 at a time when hardly anybody knew what a blog was.

"Jottings By An Employer's Lawyer" is a model of professional blogging by an attorney. Here is why:

  • Michael faithfully keeps to the topic of employment law.
  • He writes about important court decisions immediately after they are decided.
  • He includes serious articles that are relevant to employment lawyers, human resources professionals, and union representatives.
  • He presents his information in a clear manner.
  • He has a thing about million dollar verdicts (MDVs), and reports on them faithfully.

Michael is a shareholder in the Austin, Texas office of Ogletree Deakins, a management-side employment law firm.

Happy Birthday, Michael.

Posted July 14, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 13, 2005

Restraining order isn't a COBRA "qualifying event"

Today's Employment Law Memo tells us that a protective order from a divorce court does not trigger COBRA's notice requirement.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) authorizes a qualified beneficiary of an employer's group health insurance plan to maintain coverage, when she might otherwise lose coverage, upon the occurrence of a "qualifying event."

A "qualifying event" requires the health plan administrator to notify the beneficiary that she may elect to continue health insurance coverage in return for premium payments. "Divorce or legal separation of the covered employee from the employee's spouse" constitutes a "qualifying event" under COBRA. 29 USC Section 1163(3).

After Zeda Simpson sued her husband for divorce, the divorce court entered three interlocutory protective orders requiring Zeda's husband to stay away from her and the marital residence. Her ERISA Plan administrator decided this was a "qualifying event," and sent her a COBRA notice. Zeda protested, but elected coverage.

Nobody paid Zeda's premiums, so the Plan cancelled the insurance.

Later, Zeda told the Plan she had a final divorce decree and wished to elect COBRA coverage, but the Plan told her that her COBRA rights had expired.

The 10th Circuit put the issue this way:

"whether an Oklahoma divorce court's interlocutory protective orders requiring a husband, a 'covered employee,' to stay away from his wife, a 'qualified beneficiary,' pending their divorce qualified as a 'legal separation,' thereby triggering COBRA's notice requirement and the wife's corresponding obligation to pay premiums in exchange for continued coverage."

The 10th Circuit answered "no." Simpson v. T.D. Williamson Inc (10th Cir 07/11/2005).

The court concluded that "'legal separation,' and thus a 'qualifying event,' occurs within the meaning of COBRA Sections 1161(a) and 1163(3) only upon entry of a final court decree adjudicating the parties legal rights and obligations but preserving the marriage bond."

My view: A correct reading of ERISA and COBRA. Any divorce lawyer will tell you that an order restraining one spouse from having contact with the other is not the same as a legal separation.

Posted July 13, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 12, 2005

Fetching a car is not FMLA-protected leave

The Family Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave to "care for" a family member with a serious health condition. So does that mean you actually have to "care for" the family member? The 9th Circuit says "Yes." Tellis v. Alaska Airlines (9th Cir 07/12/2005).

Charles Tellis' wife was having late-stage pregnancy difficulties. Then Charles' car broke down. Although he lived in Seattle, he had another car in Atlanta, so he flew there to drive the car back to Seattle. While he was gone he made several phone calls to his wife, and she gave birth.

Upon his return, Charles' employer discharged him for being absent without the required advance approval.

Charles claimed his absence was an FLMA-protected leave. The 9th Circuit disagreed.

According to Department of Labor regulations, "care for"

encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

Charles argued that retrieving the car gave his wife psychological support, and his phone calls provided moral support and psychological support.

The 9th Circuit said "care for" "involves some level of participation in ongoing treatment of [the family member's] condition." Said the court, "Instead of participating in his wife's ongoing treatment by staying with her, he left her for almost four days."

Posted July 12, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 11, 2005

ADA - Medical evidence not needed at summary judgment stage

You would think an ADA plaintiff would need to have some medical evidence. In the 9th Circuit it's not needed at the summary judgment stage. Head v. Glacier Northwest (9th Cir 07/06/2005).

Matthew Head sued his former employer under the Americans with Disabilities Act (ADA). The court came out with three items:

  • Medical evidence is not needed at the summary judgment stage. The court held that "Ninth Circuit precedent does not require comparative or medical evidence to establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage." The court noted that "our precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact." The court also noted, however, that "[w]e hasten to add that our holding in no way impugns our longstanding precedent that conclusory declarations are insufficient to raise a question of material fact .... an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment."
  • Reading is a major life activity. Noting that the 9th Circuit had not previously addressed the issue, the court held that "reading is a major life activity." Noting additionally that the 2nd Circuit has come to the same conclusion, the court reasoned "[t]he ability to read is necessary in many instances to perform major life activities such as caring for oneself, learning, and working."
  • "Motivating factor" adopted. The court held that the appropriate standard for establishing causation in ADA cases is provided by the "motivating factor" standard. Agreeing with seven other circuits, the court concluded that the "sole cause" standard is inapplicable under the ADA. The court reasoned that "a 'motivating factor' standard is most consistent with the plain language of the statute and the purposes of the ADA."

My view:

  • Going to court without medical evidence seems minimalist, if not dangerous. I would want to have some, especially at the trial stage where the jury will want to have something more tangible than the plaintiff's testimony.
  • Of course reading is a major life activity.
  • "Motivating factor" rather than sole cause is the right standard.

Posted July 11, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 10, 2005

Article: Prohibiting employee conversations

In both unionized and non-union workplaces employers may have work rules that forbid such things as:

- having "negative conversations" about managers

- making "false, vicious, profane or malicious statements toward or concerning [the employer] or any of its employees"

- using "abusive or profane language"

- "verbal, mental and physical abuse"

- "harassment . . . in any way"

No problem? Think again. These quotes were taken from actual NLRB decisions in which the employers were held to be in violation of the National Labor Relations Act.

It didn't matter whether the employers were unionized or non-union.

As this article points out:

There are numerous decisions by the NLRB holding that the mere maintenance of an overly broad work rule violates the law. The liberal members of the five-member NLRB, who were appointed by President Bill Clinton, penned many of these decisions. Despite the presence of a more conservative NLRB comprised of President George W. Bush's appointments, the decisions issued within the past year do not indicate an imminent change in the law.

The article: "National Labor Relations Board Holds That Union-Free and Unionized Employers Cannot Prohibit Employees From Having “Negative Conversations” About Their Managers"

The author: Alan Model, a principal at Grotta, Glassman & Hoffman, a management-side law firm.

My view: Many employers continue to believe they can ignore the NLRB. Sadly, some lawyers believe this also. Truth is, they can't. A significant percentage of NLRB decisions involve non-union employers. Alan Model's article focuses on work rules that restrict what employees can say about management and about other employees, but this is only one aspect of the workplace where the NLRB gets involved.


Policy on reviewing books and articles:

  • I will review books and article dealing with any aspect of labor or employment law, but I don't guarantee to review everything that comes in. [Contact information]
  • Books: I'll need to see the actual book.
  • Articles: I must be able to link to a no-charge digital source such as a web site.

Posted July 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 08, 2005

Same-actor inference

Logic dictates that if the individual who discharges an employee is the same person who did the hiring, then the decisionmaker probably is not biased against the employee. That's the "same-actor inference." The question then is whether that inference is to be applied (1) by a court on motion for summary judgment or (2) by the jury.

The 9th Circuit says the inference is for the court to apply at the summary judgment stage. Coughlan v. American Seafoods (9th Cir 07/07/2005). In some other circuits, this inference is just one more thing for the jury to work with.

My view:

  • The 9th Circuit, reputed to be "liberal" in such matters, really has taken a great deal of work away from the jury. I think that is wrong because I believe we are all better off if we let juries do their work. It is also wrong because the judges in the 9th Circuit are now in the business of weighing the evidence at the summary judgment stage.
  • The court still makes a big deal out of the difference between "direct" and "circumstantial" evidence. If the plaintiff relies on circumstantial evidence, the 9th Circuit requires that evidence to be "specific and substantial." I see no support for this in Title VII, the Federal Rules, or the decisions of the Supreme Court.
  • Add in the same-actor inference. The court says this is a strong inference that creates a "heightened burden" for the plaintiff in proving pretext. The court says the burden is "especially steep." I think this is something the lawyers ought to be addressing to the jurors - the ones who should be deciding what the facts are.

Posted July 08, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 06, 2005

Secret surveillance

An employer installed secret surveillance cameras to monitor employees, but didn't bother to tell the union or offer to bargain about it. The cameras caught employees doing drugs, and the employer discharged them.

This created two questions for the NLRB and the DC Circuit:

  • Is installing a secret camera a mandatory subject of collective bargaining? That is, must the employer first notify the union and offer to bargain about it? The NLRB said yes (2-1), and the DC Circuit agreed. This was a unilateral change in the terms and conditions of employment in violation of Section 8(a)(5).
  • If the employer must offer to bargain but did not, can the employer use the information gathered by the cameras to discharge employees? The NLRB said yes (2-1), relying on Section 10(c):

    No order of the Board shall require reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was discharged or suspended for cause.

    The Board distinguished two of its prior decisions: Taracorp Industries, 273 NLRB 221 (1984) and Great Western Produce, 299 NLRB 1004 (1990).

    The DC Circuit was not impressed, saying (2-1) that the Board failed to "adequately" distinguish its prior cases. So the Circuit Court sent the case back to the Board to take another look at the remedy. A dissenting judge thought the case was a slam-dunk due to the plain and unambiguous language of Section 10(c).

The decisions: Anheuser-Busch, Inc., 342 NLRB No. 49 (2004); Brewers and Maltsters Local 6 v. NLRB (DC Cir 07/05/2005).

My view:

  • It's within the Board's discretion to decide that installing cameras is a mandatory subject of bargaining, so a circuit court is required to uphold that part of the decision.
  • The remedy question is much more doubtful.

    • The Board did distinguish its prior cases, but simply not to the satisfaction of the court. I think the court is asking too much, and trying to micromanage the NLRB's policy-making.
    • Now the Board must once again distinguish its prior cases or overrule them. With only three Members, the Board won't do any overruling soon because of its unwritten rule that it takes three Members to do that, and we can be sure that the Democrat Member will not go along.

  • Sadly, the facts in this case arose in 1998, an ALJ rendered a decision in 1999, and here we are another six years later with only a dim light at the end of the long tunnel.

More commentary by Michael Fox at Jottings By An Employer's Lawyer.

Posted July 06, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

July 02, 2005

Book review: "Labor Relations Law"

A law school coursebook for the traditional labor law class: Labor Relations Law: Cases and Materials (11th ed 2005) by Theodore J. St. Antoine (Michigan), Charles B. Craver (George Washington), Marion G. Crain (North Carolina).

This book has been a classic, and the new 11th edition is no exception. The authors take a straightforward approach and do not hide the ball. Most of the book is organized the way I like it: "chronologically" from organizing to bargaining to contract enforcement.

It is fully up-to-date, including recent cases in which the Bush Board has reversed some policies established by the Clinton Board, and including mention of cases pending at the Board such as Dana Corp.

There is a series of chapters not seen in most books, focusing on critiques of the current system and proposals for reform. These chapters can be used for a seminar, or parts of them can be assigned for a basic course.

The teacher's manual is actually helpful, both for the beginning and experienced teacher. Lots of good questions, plus helpful (and accurate) warnings about which concepts students find especially troublesome. It includes the syllabi the authors use when they teach, and some useful negotiation exercises.

Policy on reviewing books and articles:

  • I will review books and article dealing with any aspect of labor or employment law, but I don't guarantee to review everything that comes in. [Contact information]
  • Books: I'll need to see the actual book.
  • Articles: I must be able to link to a no-charge digital source such as a web site.

Posted July 02, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

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