LEGAL AND LEGISLATIVE UPDATE ON EMPLOYMENT LAW
Bob Gregg
phone: (608) 283-1751
fax: (608) 283-1709
rgregg@boardmanlawfirm.com
Bob Gregg
December, 2011
LEGISLATIVE AND ADMINISTRATION ACTION
Fair wages under Americans With Disabilities Act would eliminate special pay certifications. An act introduced by Representatives Cliff Sterns (R-FL) and Tim Bishop (D-NY) would end the special sub-minimum wage programs for disabled workers. Currently, employers who apply for special certification can pay certain disabled workers less. The sponsors of the Act state that it is no longer valid to presume that the disabled workers are less productive and warrant unequal pay.
IRS may grant amnesty for employers' improper use of independent contractors. The IRS has been aggressively auditing employers' use of independent contractors, and assessing millions in employment tax liability. A new program may allow employers to voluntarily classify previous independent contractors as employees and waive liability for past employment taxes. The employer must apply to the IRS (Form 8952). The employer must have previously filed all required 1099s for the independent contractors, and not currently be the subject of an IRS audit or any Department of Labor or state agency contest of its independent contractor practices.
California transparency in supply chain act targets human trafficking and slavery. A new California law focuses on the fact that slavery is increasing. Much of the human trafficking and forced labor is generated by prison-camp-like sweat shops in third world countries, producing cheap goods for U.S. and European consumers. Even in the United States, authorities are uncovering a growing number of such operations in agriculture and manufacturing settings. The California law requires retailers and manufacturers with over $100 million in gross receipts to certify that all materials in their products were produced in compliance with U.S. human trafficking, slavery and indentured servitude laws, and to certify that their subcontractors are also in compliance. Though this is a state law, California is such a huge market that these requirements will impact most large retailers and manufacturers doing business in the United States.
LITIGATION
The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state's court decision, may not quite be "the law" in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana).
Constitution
Speech
Employee's Facebook posting was protected speech, County Clerk personally liable for improper discharge. A newly-elected County Clerk fired all of the Clerk Office employees who supported his opponent in the election. One of those who was not fired made an off-duty Facebook posting expressing her sympathy: "my heart goes out to those who were fired. It's so sad." This generated a number of responses from the 1,300 Facebook friends and those they also informed, including members of the press. The new County Clerk then fired the employee who posted the message because "I now have constituents calling me with concerns about the comments you have made." The fired employee then sued under 42 U.S. Code §1983 for violation of her Constitutional rights. The court found the Clerk could be liable in both his official and his personal capacity for violating a clearly established right of a citizen (off duty employee) to comment on public affairs. "It is clearly established that a public employer may not fire an employee for speech relating to a matter of public concern when that speech causes no disruption to the workplace." It appeared that the office continued to function well; the only "disruption" was to the Clerk's "public image" in having to take political heat for his actions. Mattingly v. Milligan, (E.D. Ark., 2011).
Privacy
Deputy Chief Sheriff's video of disrobed officer at hospital violated privacy rights. A female officer had to go through a decontamination process at a hospital, following a job-related exposure. While she was nude in the decontamination booth, with a female nurse, the male Deputy Chief and another male supervisor opened the door a few inches and videotaped the decontamination process. Later that day, the Deputy Chief showed the video to a group of other officers he called into his office, and made comments about the tattoos on the officer's body. The tape was then placed in a public computer folder which could be viewed by anyone with access to the county network. The officer filed a 42 U.S. Code §1983 case for violation of Constitutional rights. The Department tried to defend by claiming the tape had been made for later "training" purposes. The court did not accept this explanation. It appeared to be a gratuitous invasion of the officer's Constitutional privacy protection. The court found that there could be liability for the County and for the Deputy Chief in his personal capacity. Doe v. Luzerne Co., et al. (3rd Cir., 2011).
Child Labor
First child labor enhancement penalty. The Child Labor Enhancement Program became effective in 2011. Matford Progressive Protein LLC (Department of Labor, Sept. 2011) became the first instance of enforcement. An extra $100,000 penalty was assessed against a company which knowingly used a 17-year-old to operate equipment listed as prohibited for anyone under 18. The 17-year-old died when the forklift he was operating turned over.
Discrimination
Age
Seventy-year-old employee fired for allegedly attacking 65-year-old supervisor. An employee was fired after 57 years of employment. He claimed in his ADEA case that he was subjected to age discriminatory comments by his co-workers prior to the discharge; they called him "old sick man," said he was "too old for the job" and told him he should retire. However, there was no evidence the co-worker comments had any effect on management's decisions. Instead, the court believed the company had a valid reason for termination. The employee had an argument with his supervisor and struck or attempted to strike the supervisor. Further, there was no indication the company had any age bias--the supervisor was over age 60. Igaravidez v. International Shipping Corp. (1st Cir., 2011).Disability
Uniform application and OSHA approval do not save overbroad medical inquiry. In response to a serious workplace accident, an employer created a mandatory certification process for all equipment drivers. This included a medical questionnaire form. One driver objected to the invasiveness of the questions. (Among other things, it asked for identification of "any past illness or accidents, date of onset, all medications, etc.) He was fired for refusing to submit the form. In the following ADA case, the company defended by claiming that (1) all drivers, whether disabled or non-disabled, were uniformly required to submit the form; and (2) OSHA had approved the questionnaire. Both defenses failed. The medical inquiry sections of the ADA apply to every employee or applicant, not just to those with disabilities. A "uniform application" of an illegal form is still illegal. OSHA is not the agency with authority over the ADA. Any non-expert agency's approval, whether OSHA, DOT or the IRS means nothing regarding whether the form meets ADA requirements. Just as an expert plumber cannot certify a building's electrical system, OSHA cannot certify anything for ADA compliance. The company may still present evidence to show the medical questionnaire was not overbroad and was consistent with business safety necessity. Miller v. Whirlpool Corp. (N.D. Ohio, 2011).
Walmart manager's unreasonable conditions for diabetic employee violated ADA. A Walmart meat department employee with diabetes had always kept her testing kit close by at her desk in the work area. A manager ordered her to remove it to her locker, at a far end of the store. (There was no apparent significant reason for this direction.) The employee protested that she needed to frequently test her blood sugar, and she could not get to the locker soon enough to test and control her condition. Nonetheless, she was ordered to remove the test kit. Then she was told that if she left her work station to go to her locker, she would be fired. She could only test her blood sugar on breaks or lunch. Unable to effectively test and control, the employee soon had a major diabetic reaction while in the store's meat cooler. She had a seizure, was hospitalized and unable to resume work at Walmart. Walmart defended by claiming she was not actually disabled because she had always been able to perform all essential functions of her job. The court rejected this defense. The plaintiff had been able to do all functions until the manager's direction and withdrawal of any accommodation made it impossible for her to successfully function. Berard v. Walmart Stores East LP (M.D. Fla,, 2011).
Employer should have waited a little longer. A route salesman experienced dizziness, memory loss and pain due to a heart condition. His doctor stated that he should not drive. Thus, he could not perform his job of driving the route. He took a leave under the company's six-month short-term disability program, and others covered the route. The doctor had not provided any estimate of ability to return to work. The company sent a notice of inability to hold the job open indefinitely and its intent to have a replacement (as allowed under the ADA for an "indeterminate leave"). However, the employee promptly replied that he expected to be cleared for work in 30 days. The company replaced the driver. In 30 days he was cleared for return, but the job was now filled. He sued under the ADA. The court found the company had acted too quickly. Once the employee claimed a 30-day return possibility, the leave was no longer "indefinite." The company should have continued the leave and engaged in the interactive process regarding the reasonability of holding the job for another 30 days. Hutchinson v. Ecolab (D. Conn., 2011).
Fair Labor Standards Act
Chef could not require servers to share tips. A chef who had authority to schedule, hire and fire was a "supervisor" under federal law. Thus, it was a violation of the FLSA to require the wait staff to share tips with him. This practice voided the restaurant's use of the "tip credit" method of setting off tips against the minimum wage requirement. An employer is not allowed to retain any of the tips, and a supervisor counts as "the employer." Any tips going from the servers to the chef/supervisor constituted illegal retention. The court did allow the restaurant's practice of keeping 3.85% of credit card tips to cover the credit card processing fee. Widjaja v. Kang Yue USA Corp. (E.D. NY, 2011).
Company president personally liable for off-the-clock work practices. An employer ordered food service workers to work up to three hours per day "off the clock" in order to have the pay record show only 40-hour weeks and avoid the time-and-a-half overtime pay. The workers received lesser amounts in cash for the non-recorded time. The plan was implemented with the knowledge of the company president. One employee eventually challenged the practice, resulting in a case on behalf of all affected workers. The court found liability for 1,368 hours of unpaid overtime. It then doubled the award due to intentional violation. Finally, it used the FLSA's personal liability provisions to hold the company president personally liable for those doubled damages, plus all costs and attorney fees. Lyles v. Burt's Butters Shoppe & Eatery, Inc. (M.D. GA, 2011).
