The U.S. Court of Appeals for the Fifth Circuit affirmed a grant of summary judgment finding that an employer did not violate the Americans with Disabilities Act (“ADA”) by discharging an employee after participating in an interactive process seeking reasonable accommodation. Dillard v. City of Austin, No. 15-50779 (5th Cir. Sept. 16, 2016).

Following an accident which prevented the employee from working as a manual laborer, the employer offered transfer to an administrative assistant position. The employee accepted the position, despite expressing reservations about whether he could do the job.  The employer provided the employee with training and had the employee shadow another colleague as a means of providing further training. However, plaintiff failed to participate in additional training, repeatedly missed work without notice, and came late and left early.  Despite those deficiencies and subpar reviews, the employer did not discharge the employee.  Instead, it sought other assignments to accommodate the worker’s impairments, but could not identify one.  The employee then was terminated due to poor performance.

The Fifth Circuit found the employee offered no evidence that the employer’s reliance on his history of misconduct and poor performance was pretextual or discriminatory. The Fifth Circuit held that once the employee accepted the administrative position, it was up to him to make an effort to learn and perform the required duties.  The evidence of employee misconduct demonstrates a failure to fill the role in good faith.  Under these circumstances, the obligation does not shift to the employer to continue the interactive process by offering him alternative placement.

This decision serves as a reminder that employers must engage in an interactive process under the ADA when faced with employees who require reasonable accommodations. However, the obligation is mutual and employees also are required to participate and engage in the process in good faith.  Moreover, documentation of poor performance prior to discharge is critical as ever.

 

 

 

The U.S. District Court for the Southern District of New York recently granted an employer’s motion for summary judgment dismissing wrongful termination claims. Cruz v. Wyckoff Heights Med. Ctr., No. 13 Civ. 8355 (S.D.N.Y. Sept. 23, 2016).  In Cruz,  plaintiff used intermittent leave under the Family and Medical Leave Act (“FMLA”) for ulcerative colitis from 2004 to 2012.  Plaintiff was disciplined for multiple reasons.  First, he received disciplinary warnings for over-using sick days.  Second, he  failed to obtain necessary recertification documentation to extend his leave which led the employer to suspend him on multiple occasions.  Third, plaintiff was disciplined four times for his behavior towards coworkers.  Finally, he was implicated in misconduct involving two particular coworkers.  Notwithstanding that disciplinary history, plaintiff brought suit alleging retaliation under the FMLA, Americans with Disabilities Act (“ADA”), New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”)

The claims were dismissed by the District Court, which reiterated that employers can mandate reasonable recertification requests under the FMLA.  Following plaintiff’s failure to turn in employer-requested recertification paperwork, the employer properly denied the request.   The District Court noted the record contained a plethora of evidence that the plaintiff’s requests for FMLA leave were repeatedly granted, and the denial of his FMLA leave in August 2012 was too remote from his discharge in November to establish an inference of retaliation.  The employer provided an extensive disciplinary history with coworker complaints, which showed the employer’s reason for termination was not pretextual.

This case reminds employers that an employee’s failure to cooperate in the FMLA process can result in denial of leave and ultimately termination. In addition, employees are not free to engage in inappropriate behavior simply because they may otherwise be covered by the FMLA.

 

The specific facts presented to the jury will determine whether an award of “garden variety” emotional distress damages is reasonable, the New Jersey Supreme Court has held in an employment discrimination case brought under the New Jersey Law Against Discrimination (“LAD”).  Read more.

On September 22, 2016, the Equal Employment Opportunity Commission (EEOC) announced that it settled a federal sex-based pay discrimination lawsuit with oil company Santmyer Oil operating as SOCI Petroleum, Inc. (“SOCI”) for $50,000.  The EEOC had filed the lawsuit in September 2015 on behalf of Lori Bowersock alleging that the company violated the Equal Pay Act (EPA) and Title VII by paying her less than her male predecessor for performing substantially equal work.

Bowersock was hired in 2006 to perform human resources work.  At the time, a male was functioning as the company’s HR Manager. However, when his employment ended in 2009, Bowersock assumed his position and began performing, allegedly, the same HR management level work as him but was paid less. The lawsuit further alleged that SOCI tolerated use of derogatory sex-based remarks to refer to female employees and devalued their accomplishments and capacity, as compared to male employees.

In addition to the monetary award of $50,000, the parties entered into a consent decree which provides for training for all SOCI employees and supervisory, management and human resources personnel regarding employee rights and employer obligations under the EPA and Title VII. The company will be required to post a notice about the settlement at all of its facilities.  The decree further requires the creation and implementation of a policy prohibiting sex-based discrimination in compensation, record-keeping relating to employee pay and complaints of discrimination, and regular reporting to the EEOC during the decree’s two-year term.

The EEOC’s focus on enforcing equal pay laws and targeting compensation systems and practices that discriminate based on gender is apparent in its pursuit of even this single plaintiff litigation.  Employers should assess whether their compensation practices provide for equal pay for performing substantially equal work and be prepared to address and correct discrepancies.

We are writing to alert you to yet another source of wage-hour and wage-payment claims.  EO 13706 mandates that government contractors and sub-contractors provide paid sick days in addition to any other PTO requirement (such as the vacation pay requirement contained in the Service Contract Act).  Failure to make payments could result in liability to the affected workers and also the risk of debarment proceedings.  While most employers focus upon their FLSA and state law obligations, those that perform work under federal government contracts have additional obligations and exposures.

The U.S. Department of Labor today released the final regulations implementing President Barack Obama’s Executive Order 13706, requiring up to seven days of paid sick leave for workers on federal contracts. We are analyzing the final Rule and will be providing future updates, but below are some of the key requirements.

Effective Date and Contracts Covered:

The paid sick leave requirements apply to the following types of contracts, and subcontracts, that result from solicitations issued on or after January 1, 2017:

(1) procurement contracts for construction covered by the Davis-Bacon Act (DBA);

(2) contracts for services covered by the Service Contract Act (SCA);

(3) contracts for concessions, including any concessions contract excluded from coverage  under the SCA; and,

(4) contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

Employees Covered:

The paid sick leave requirements apply to any worker engaged in performing work on, or in connection with, a covered contract whose wages under the contract are governed by the SCA, DBA, or Fair Labor Standards Act (FLSA), including employees who are exempt under the FLSA.

Required Accrual of Paid Sick Leave

The final Rule allows employees to accrue 1 hour of paid sick leave for every 30 hours worked on, or in connection with, a covered federal contract, up to 56 hours (7 days) in a year or at any point in time.  The regulations provide requirements and guidance on leave carryover, use of sick leave, and the interplay between existing PTO policies, collective bargaining agreements, and state and local sick leave laws.

A U.S. District Court in Maryland recently denied an employer’s motion for summary judgment allowing the EEOC to pursue its allegation that an employer engaged in discriminatory practices regarding a promotion.  EEOC v. Dimensions Healthcare Sys., No. 15-2342 (D. Md. Sept. 2, 2016).   

The employer’s Associate Vice President (“AVP”) is alleged to have advised a female promotional candidate that a male applicant received the position because he had a management background, whereas the female plaintiff had taken “maternity leave for a while.”   This statement purportedly was made close in time to the announcement of the promotion decision.  During the course of her deposition, the AVP purportedly stated that she purposely waited to demote a different employee when that person returned from maternity leave because she didn’t want to touch the employee “with a ten foot pole” while she was still pregnant and on leave.  Although the AVP denied making the remarks regarding the promotion, her denial did not defeat summary judgment and instead created an issue of fact for a jury.  Such statements, if made, reasonably could be direct evidence of discrimination in violation of Title VII.

Employers should review their anti-discrimination training programs, and where necessary, provide regular refresher courses to their management employees so as to avoid similar outcomes.  

 

The New Jersey State Assembly is considering a bill (A-4119) that would amend the New Jersey Law Against Discrimination (“LAD”) to prohibit an employer from seeking compensation information on a candidate. If passed, the legislation will affect the hiring process in New Jersey, including requiring changes to application materials, interview questions, and negotiations over compensation.    For more information click here. 

 

Addressing an unsettled evolving area of law, the U.S. District Court for the Eastern District of Michigan ruled, on August 18th , that a Michigan funeral home did not violate Title VII of the Civil Rights Act of 1964 by requiring a transgender male employee to wear a man’s suit to work.  EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., (E.D. Mich., No. 14-13710, 8/18/16).  According to the Court, the funeral home was entitled to a religious exemption under the Religious Freedom Restoration Act (RFRA).  The RFRA prohibits the government from substantially burdening a person’s exercise of religion.  The funeral home, a for-profit closely held corporation, qualified as a “person” and the Equal Employment Opportunity Commission (EEOC) qualified as a government agency. 

Specifically, the EEOC argued that the funeral home violated Title VII by firing a transgender employee, who was transitioning from male to female, for refusal to wear a man’s suit  and, thus, to conform with masculine gender stereotypes.  In addition, the EEOC argued that Congress’s mandate to eliminate discrimination in the workplace was a compelling government interest that warranted impinging on the funeral home’s religious beliefs.  The funeral home argued that allowing the employee to wear a female uniform would substantially burden its free exercise of religion because doing so conflicted with its sincerely held religious beliefs.  The court agreed. 

In coming to its decision, the District Court determined that the EEOC failed to establish how the burden on the employer’s religious exercise was the least restrictive means of eliminating unlawful gender stereotypes.  The Court stated that it “fails to see why the EEOC couldn’t propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here.”  According to the Court, “if the compelling governmental interest is truly in removing or eliminating gender stereotypes in the workplace in terms of clothing (i.e., making gender “irrelevant”), the EEOC’s chosen manner of enforcement in this action does not accomplish that goal.”

Too often weak claims of employment discrimination gain strength when employers fail to properly document and support with documentation the legitimate, non-discriminatory reasons for an employee’s termination.  While the burden of proof never leaves the claimant, and there is no explicit legal obligation to document the basis for personnel decisions, jurors may develop a negative perception from the lack of effective management.  A recent decision by the United States Court of Appeals for the Tenth Circuit shows that employers who are diligent in documenting the reasons for personnel actions and presenting clearly the basis for a discharge, can succeed in obtaining summary judgment, thus saving the time, risks and expenses of a trial.  In Olson v. Penske Logistics, LLC, No. 15-1380, 2016 U.S. App. LEXIS 15780 (10th Cir. 8/26/16), the Court upheld the trial court’s summary judgment ruling dismissing a former warehouse operations manager’s claim that he was discharged for using FMLA leave rather than for poor performance.  The plaintiff claimed he could have defended all of his alleged performance shortcomings had he not been out on leave.  In rejecting plaintiff’s position, the Court cited to the employer’s consistent and well documented reasons for the plaintiff’s performance issues, noting that “the record shows step by step how [the plaintiff’s] conduct was discovered” and  “[t]here were no holes, no conflicting statements, simply nothing that indicates inaccuracies in [the employer’s] story.” In addition, the company’s investigation, which resulted in written reports, revealed that the Plaintiff had failed to train his team on basic inventory procedures, failed to enforce employee attendance policies and did not return damaged items as required.

This case serves as a reminder to employers of the importance of consistent and accurate recordkeeping, as well as prompt and appropriate investigations into potential wrongdoing or other performance issues.