Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

The EEOC has been a busy bee this week. (It stings!)

Posted in Americans with Disabilities Act, Class actions, Discrimination, Employment Law Blog Carnival, Genetic Information Non-Discrimination Act, GINA, Harassment, Pregnancy, Settlements

The Equal Employment Opportunity Commission has been on a tear this week, suing employers right and left, and getting some “wins” including a couple of big settlements . . .

Muhammad Ali.Stango

The EEOC “floats like a butterfly, stings like a bee . . .”

Train-wreck boss. The U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, and Texas) vacated a summary judgment decision for a Tex-Mex restaurant franchisor that had been sued by the EEOC because its franchisee was sexually harassing two employees. (Robin always says “allegedly” – why didn’t she say “allegedly” this time?) According to the court’s decision, the franchisee admitted that his restaurant was a “grab-assy place,” that he patted one employee so hard on her bottom that she got a bruise, that he hit her, too, that he asked the other employee “to go out of town with him,” and asked her “to have a child with him, but not in a ‘meaningful’ way,” that he sent her an invitation that said, “Pants okay, but not necessary,” and that he posted a sign at his restaurant “to lighten the mood” that said “Notice: sexual harassment in this area will not be reported. However, it will be graded.”

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Yes, employers, you can win a transgender discrimination suit

Posted in Discrimination, Gender Identity Discrimination

A recent decision from a federal court in Georgia provides an excellent illustration about how employers can win summary judgment (dismissal before a jury trial) even in cases as sensitive as those alleging discrimination based on gender identity.

Plaintiff Jennifer Chavez was hired as a mechanic by Credit Nation Auto Sales in Austell, Georgia (a suburb of Atlanta), when she was Luis Chavez, a man. After a little more than a year on the job, then-Mr. Chavez told management that he intended to undergo gender reassignment. (At this point, we will refer to the Plaintiff as “Ms. Chavez.”) According to Ms. Chavez, management and her co-workers were extremely supportive . . . for about two weeks. During that two-week period, Ms. Chavez even sent an email to a reporter from the Atlanta Journal-Constitution, going on and on about how supportive her co-workers had been, “even the crotchety old southern guys who I thought were set in their ways.” Ms. Chavez also said that, after the co-workers were informed, the owner sent an email reminding them of Credit Nation’s policy against harassment.

(We could not find an article about Ms. Chavez in the Journal-Constitution, but we did find some other articles about Ms. Chavez here and here.)

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Off-duty domestic violence — what’s an employer to do?

Posted in Domestic Violence, Violence

Commissioner Roger Goodell at the 2009 NFL draft.

As NFL Commissioner Roger Goodell can tell you, it isn’t easy for an employer to handle off-duty domestic violence situations.

Sometimes your employee is the victim. If so, you may have someone who is distracted, scared, upset, or frequently absent because of physical injury or psychological trauma, or court appearances. She (or he – men can be victims, too) might be spending too much time commiserating with coworkers and not working. And you always have to worry about the possibility that the abuser will show up, causing this “private matter” to spill over into your workplace. Because of these risks, it isn’t unheard of for an employer to terminate the victim because her abuser’s presence is creating too much disruption in the workplace, or putting customers or students at risk.

Sometimes your employee is the perpetrator. But maybe he (or she) behaves like a choirboy at work, and is great at his (or her) job. If you fire for off-duty conduct that has no noticeable impact on your workplace, could the employee assert a claim against you for discrimination or some other type of wrongful termination?

In this legal environment? Do I really have to ask?

In short, there are no easy answers for employers in these situations. But here are a few ideas.

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Which drug-testing law applies? Who knows?

Posted in Drug Testing

This drug-testing case would make a great law school final exam.

Shawn Olson of Minnesota was offered a job in West Virginia by Push, Inc., a company based in Wisconsin. Mr. Olson was asked to complete a pre-hire drug test, which was originally going to be performed in Push’s state of Wisconsin. However, for Mr. Olson’s convenience, the company allowed Mr. Olson to be tested in Minnesota.


Was this a Wisconsin badger drug test? After all, the employer was based in Wisconsin.

The Minnesota Drug and Alcohol Testing in the Workplace Act prohibits employers from terminating employees or refusing to hire based on an initial drug screen unless the initial screen is confirmed by a second test. West Virginia and Wisconsin do not require a confirmation test.

You guessed it. Mr. Olson took the test in Minnesota, and while the results were pending, he started work for Push in West Virginia. (Big mistake here. Employers should never allow new hires to start work before they have the drug test results back.) After he had already started work, Mr. Olson’s test results came back as too “diluted.” Some employers treat “dilute” samples as worse than a “positive” – they treat it as dishonesty – an attempt to falsify or tamper with the test results. Push wasn’t that tough, but it treated a “dilute” sample as a positive result, which still resulted in Mr. Olson’s termination.


. . . or was it a West Virginia Mountaineer drug test?

Mr. Olson sued Push under the Minnesota DATWA. Push removed the lawsuit from Minnesota state court to federal court, and moved to dismiss. The issue was whether Minnesota law applied to a drug test that was performed in Minnesota, when both the employer and the job were in other states. Mr. Olson argued that, under Minnesota law, the employer was “doing business” in Minnesota and therefore was subject to Minnesota drug testing laws.

If a urine sample is too dilute, the drug test may not detect sufficient amounts of an illegal drug in the individual’s system. It is possible to dilute a urine sample by drinking a large amount of water before the test.

A federal judge in Minnesota disagreed. Although she did not decide which state’s laws did apply to this test, she found that Minnesota law did not. First, she found that the Minnesota statute did not apply to employment relationships outside Minnesota. She also found that the approach advocated by Mr. Olson would probably violate the Commerce Clause of the U.S. Constitution because of the chaos that could result if “not one, but many or every, State adopted similar legislation” that applied to testing in other states.


Whatever law applies, it isn’t Minnesota law!

So, when push came to shove, Push won. But here are some preventive steps that may help employers avoid even the hassle of eventually winning in federal court:

*Be nice, but don’t be too nice. Make sure you fully understand the laws in other states before you allow new hires (not to mention employees) to take significant actions in those other states. That includes, but is not limited to, drug testing. I wonder if Push will ever let another employee be tested in his home state for convenience instead of coming to Wisconsin. It’s too bad that Mr. Olson had to ruin it for everybody.

*Don’t let a new hire start work until after you receive the drug test result. You never know, but if Push had just withdrawn its offer of hire rather than firing Mr. Olson after he’d started work, maybe Mr. Olson would not have become angry enough to sue.

On a more positive note, Push did a lot that was right. Push was smart to check for “diluteness” and to take appropriate action because this is a well-recognized method for cheating on a drug test. The company was also smart to have removed the case to federal court, where the judges are more likely to see the Constitutional implications of extraterritorial application of state laws.

Employers, don’t commit these 5 firing faux pas!

Posted in Americans with Disabilities Act, Discrimination, Employment at Will, Family and Medical Leave Act, Pregnancy

Do you think you have that employee termination all buttoned up, and no one will be able to challenge you? Defending that EEOC charge will be a slam dunk? No plaintiff’s lawyer in his right mind would represent your soon-to-be-ex employee?

Are you sure about that? Can we talk?tp-shoe

Don’t commit these five firing faux pas*.**

*This is not an all-inclusive list. There are probably more than five.

**I realize that a “faux pas” is a social blunder, and these are actually employer misconceptions. But I started thinking about the late Joan Rivers, and one thing led to another . . . language people, I apologize!

Faux Pas 1: “Our case is air-tight. She had documented performance problems.” Documented performance problems are certainly a good start toward defending a termination, but they may not be enough. Were the standards communicated clearly in advance? In what way? Were they applied the same way to all similarly situated employees (for example, to all employees in the same job, or reporting to the same supervisor)? Did you warn this employee of any deficiencies and give her a chance to improve before you started talking about pulling the plug? Are all of those prior warnings and the employee’s failure to shape up also documented? Are you sure that none of the decision makers had motivations that might have unfairly affected their perceptions of the employee’s performance?

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BREAKING: 6th Circuit will rehear Ford telecommuting/reasonable accommodation case

Posted in Americans with Disabilities Act, Telecommuting

Law 360 reports this morning that the U.S. Court of Appeals for the Sixth Circuit has agreed to rehear the EEOC v. Ford Motor Co. case, which I reported on (and disagreed with) in April. The original decision, holding that Ford should have allowed an employee with severe and unpredictable irritable bowel syndrome to telecommute as a reasonable accommodation under the Americans with Disabilities Act, was issued by a three-judge panel of the Sixth Circuit.

(My problem was not with telecommuting as a reasonable accommodation in general, but with the fact that the panel was mandating it in a job that required significant “face time” and entailed other obstacles to performing the duties remotely.)

The panel decision has been vacated, and the appeal will be reheard en banc (that is, by all of the Sixth Circuit judges). This is very encouraging news for Ford, and we will keep you informed as this case progresses.

Some Labor Day eye candy

Posted in Labor Relations

Last spring, I was in the Detroit area for a deposition. I’m originally from that area, so I stayed over the weekend to visit family, and we made a trip to the Detroit Institute of Arts. In honor of Labor Day, here are some photos I took of Diego Rivera’s Detroit Industry murals. If you’ve never seen these in person, you really should – the scale and detail is much more than I can capture.

The murals were commissioned by Edsel Ford, and include depictions of Edsel as well as his father, Henry. (You can enlarge these by clicking on the photos.) Enjoy, and happy Labor Day!


This the South Wall of the Rivera Court at the museum.

And a detail from that wall:


Here is the North wall:


The “small” pictures in this mural are gems, too.


Workers eating lunch.


Henry Ford talking to his engineers.


Henry Ford at his desk.


A worker at his desk – maybe the union shop steward?


End of shift.


Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so.

Posted in Americans with Disabilities Act

Last week, the Equal Employment Opportunity Commission filed suit against Wisconsin-based Orion Energy Systems, Inc., over its wellness program and its treatment of ex-employee Wendy Schobert, who was not a fan of the program. The lawsuit contends that the program’s health risk assessment is an unlawful “medical examination” and that the company retaliated against Ms. Schobert for failing to have a positive attitude about it. Both the medical examination and the retaliation, says the EEOC, violate the Americans with Disabilities Act.

thumbs-down1 Commodius

“Your wellness program has been weighed in the balance and found wanting.”

If you’ve been keeping an eye on this wellness/ADA issue — as I have here, here, here, and here — you know that the EEOC has not been as forthcoming with guidance as we’d ideally like, although in May it promised that we’d be getting something soon. That having been said, if the EEOC’s allegations in this lawsuit are correct,* then Orion may have a problem.

*All we have now is the lawsuit and the EEOC’s press release. We have not heard Orion’s side of the story.

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Transportation employers, can you survive the federal audit “tag team”?

Posted in Retaliation, Safety, Transportation Industry

David Smith of Constangy’s OSHA practice group is co-author of this post.

The federal Occupational Safety and Health Administration and the Federal Motor Carrier Safety Administration are tag-teaming transportation employers. They’ve signed a Memorandum of Understanding in which they agree to share information about allegations of safety, coercion, and retaliation.

Tag Team-ROH_Wrestling's_Greatest_Tag_Team

The FMCSA auditor is on the left.

And last week, OSHA ordered a Michigan asphalt company to pay almost $1 million to a foreman and two drivers who claimed that they were fired in violation of the Surface Transportation Assistance Act for engaging in protected activity related to driver hours of service.

It’s a mistake for trucking employers to breathe a sigh of relief when the FMSCA auditor drives away – because the OSHA inspector may be right behind. Here are some areas you should look at before any auditor or inspector arrives:

*Forklift Compliance. Are forklifts in good working order, with legible data plates and functioning seatbelts that are consistently used? Are attachments approved by the manufacturer? Do you regularly conduct required pre-shift inspections? Have all operators been trained and evaluated, and then re-evaluated every three years?

*Loading Docks. Do you regularly review procedures and check equipment used to prevent trailers from mistakenly pulling away while being loaded? And, if any loading dock is 4 feet high or higher, to prevent forklifts or employees from falling off the dock?

*Terminal shop and fuel islands. These are considered “low-hanging fruit” for OSHA inspectors, who frequently find unguarded or unanchored grinders and drills, use of compressed air without safety nozzles, lack of eyewash facilities, trailer top repair work without fall protection, and unlabeled containers of oil, antifreeze, or even window washer fluid.

Fruit tree

Watch out for that low-hanging fruit!

*Safety shoes. OSHA inspectors have even been known to cite employers for not requiring dock employees to wear safety shoes with protective toes.

*FMSCA compliance. The OSHA inspector may tell you in the closing conference that employees alleged FMCSA violations, such as exceeding hours of service, falsification of logs, or improper maintenance of tractors and trailers. The OSHA inspector may also notice and refer visible FMCSA compliance issues, such as improperly loaded trailers, missing or erroneous hazardous material placards, or hazardous cargo that is improperly packaged and leaking, or missing the required labels.

*Whistleblowers. Of course, because the primary focus of the MOU is whistleblower protection, either an FMCSA auditor or an OSHA compliance officer would quickly refer any claim of safety-related retaliation. Those complaints would be referred to OSHA’s Whistleblower Protection Programs division for investigation. All trucking employers should already have in place an effective whistleblower protection policy, with training for managers, supervisors, and employees.

With a good safety and whistleblower policy in place, you should be ready for the FMCSA-OSHA “tag team.”