April 2, 2014

United States Supreme Court Expands Protections For Employee Whistleblowers in Lawson v. FMR

Last month, the United States Supreme Court issued a ruling that provided for more protection for whistleblowers that work for private contractors of public companies in Lawson v. FMR. The six to three decision expanded the protections of the federal Sarbanes-Oxley Act of 2002, which was established to promote accountability from publicly traded companies following a wave of scandals around that time.

whistle-718988-m.jpgIn Lawson, Jackie Hosang Lawson was employed as a Senior Director of Finance for Fidelity Brokerage Services, LLC. Fidelity Brokerage was related to the mutual fund corporation, Fidelity. Lawson eventually objected to the financial reporting practices of FMR, LLC, which was a Fidelity mutual fund advisor. In a whistleblower filing that she submitted to the Occupational Safety and Health Administration, which reviews Sarbanes-Oxley claims, Lawson argued that due to her objections, she suffered retaliation and was forced to resign. The case eventually went before the First Circuit, where Fidelity argued that Sarbanes-Oxley's protections were meant to apply only to the employees of public companies, not their private contractors. The First Circuit agreed, in a divided opinion, and Lawson petitioned the Supreme Court.

The Sarbanes-Oxley Act states that "[n]o public company... or any... contractor of such company may [retaliate] against an employee... because of [a Sarbanes-Oxley protected activity]." However, a decision issued later by the Department of Labor's Administrative Review Board (ARB) found that the employee of a contractor who acted as a whistleblower against a public company also received protection under the Act. The problem was that "employee" under the Act had no definition. In reading the rest of the Act, it was possible to come up with two definitions: one that applied just to employees of public companies, and another that applied to employees of contractors and agents.

Continue reading "United States Supreme Court Expands Protections For Employee Whistleblowers in Lawson v. FMR" »

March 26, 2014

Sixth Circuit Affirms and Reverses Lower Court Ruling on Title VII Claim in Laster v. City of Kalamazoo

Recently, the Sixth Circuit Court of Appeals affirmed a federal district court's ruling dismissing an Ohio safety officer's claims that he was forced to resign from the Kalamazoo Department of Public Safety in 2010 due to racial discrimination.

ready-to-roll-542939-m.jpgIn Laster v. City of Kalamazoo, Mark Laster, an African American man, had worked for the Kalamazoo Department of Public Safety for more than 23 years. During his employment, he claimed that he was treated less favorably than other employees in similar situations. For example, Laster believed that he was subjected to greater scrutiny, that policies were selectively enforced against him, and that his employer stood back and permitted individual employees to discriminate against or harass Laster. Laster believed that at least part of his treatment was due to his race. After reporting many instances of harassment to his employers, he eventually filed a claim with the Equal Employment Opportunity Commission, then Title VII discrimination and retaliation claims against his former employer.

The district court found in favor of the City of Kalamazoo and Laster appealed. The Sixth Circuit applied strict scrutiny to the circumstances of his case, which is required for racial discrimination cases involving government bodies. For a government body to pass strict scrutiny, it must be shown that it had a compelling government interest, that the law or policy was narrowly tailored to achieve that interest, and that the law or policy was the least restrictive means for achieving that interest. Strict scrutiny is used for race, national origin, or alienage situations, compared to intermediate scrutiny for gender and rational basis (the lowest scrutiny) for nearly everything else.

Continue reading "Sixth Circuit Affirms and Reverses Lower Court Ruling on Title VII Claim in Laster v. City of Kalamazoo" »

March 19, 2014

New Medical Marijuana Laws Threaten to Clash With Employer Zero Tolerance Drug Policies

A recent problem in Illinois with employment and medical marijuana could foreshadow problems for Kentucky, which has its own medical marijuana legislation pending.

dutch-weed-2-jpg-1206038-m.jpgIllinois's new medical marijuana law, which took effect this past January, protects patients from being arrested or prosecuted for using marijuana for medical purposes. However, it does not prohibit employers with zero tolerance policies from terminating employees found to use medical marijuana.

It is unknown how many employees could be affected, but one concern is that in states with medical marijuana laws that are less restrictive -- such as California, Oregon, and Washington -- the courts have sided with employers when employees have sued over the law. While Illinois's new law protects employees from being disciplined by employers solely for acknowledging that they have a medical marijuana card, it offers no protection against other strict measures. Companies with government contracts are even more likely to have zero tolerance policies than other companies because the federal government requires such policies.

Continue reading "New Medical Marijuana Laws Threaten to Clash With Employer Zero Tolerance Drug Policies" »

March 12, 2014

Seventh Circuit Finds That Employee Who Traveled to Las Vegas Was Covered By the FMLA in Ballard v. Chicago Park District

Not long ago, the Seventh Circuit Court of Appeals found that a woman's trip to Las Vegas during her Family and Medical Leave Act (FMLA) time off from work did not violate the requirements of the law.

las-vegas-nights-3-753037-m.jpgThe FMLA permits a "qualified" employee to take up to 12 weeks of unpaid leave for medical reasons, in order to care for a sick family member, or in the case of pregnancy or adoption. Qualified employees are those who work at companies with 50 or more employees and have worked more than 1,250 hours within the preceding 12 months.

In Ballard v. Chicago Park District, Beverly Ballard was a Chicago municipal employee who was the primary caregiver of her mother, who suffered from end-stage congestive heart failure. Ballard lived with her mother while she began to receive hospice support through Horizon Hospice and Palliative Care. Ballard's care of her mother included cooking meals, administering insulin and other medications, draining fluid from her heart, bathing and dressing her, and helping her go to bed. In 2007, Ballard's mother informed Horizon that one of her end-life goals was to go on a trip to Las Vegas. The trip was funded through the Fairygodmother Foundation and was expected to last six days in January 2008.

Continue reading "Seventh Circuit Finds That Employee Who Traveled to Las Vegas Was Covered By the FMLA in Ballard v. Chicago Park District" »

March 5, 2014

Sixth Circuit Reverses Lower Court's Judgment in FMLA Case Clements v. Prudential Protective Services, LLC

The Sixth Circuit Court of Appeals recently reversed a lower court decision in favor of the employer on an issue involving rights under the Family and Medical Leave Act (FMLA). In Clements v Prudential Protective Services, LLC, the Court found that the employer's failure to inform a pregnant employee of her FMLA rights, and to reinstate her to either her former position or to an equivalent position after her leave, wrongfully interfered with her rights under the FMLA.

guard-1063331-m.jpgTelitha Clements was hired by Prudential Protective Services as a security guard in 2006, and worked at the New Center, Fisher and Kahn buildings in Detroit, Michigan. Throughout her employment, she had one supervisor, Lamont Lively. In 2008, Clements became pregnant with her second child, whom she gave birth to in June 2009. She gave Lively notice of her pregnancy, and her last day at work before her leave was May 23, 2009. Lively told Clements to contact him when she was ready to return to work, and he would put her back on schedule. Although Lively later claimed that Clements needed to contact the main office to properly schedule her maternity leave, neither Clements nor Lively contacted the main office. Neither Clements nor Lively filled out any paperwork, either. Clements was not paid for any part of her time off.

Clements tried several times to contact Lively in early July 2009, an estimated six weeks after her maternity leave began, to request to be returned to the schedule. She could not reach him due to his leave of absence to deal with a personal matter. Instead, a woman named "Sabrina" relayed messages between Clements and Lively. Lively told Sabrina to inform Clements that the number of hours scheduled for security guards at the complex had been scaled back due to a lack of business and that Lively could not return Clements to the schedule at that time. While Lively claimed later that he directed Clements to report to the main office for an assignment at another site, Clements stated that she never received the information.

Continue reading "Sixth Circuit Reverses Lower Court's Judgment in FMLA Case Clements v. Prudential Protective Services, LLC" »

February 28, 2014

President Obama Issues Executive Order Raising the Minimum Wage of Certain Federal Contract Employees

This month, President Obama issued an executive order that would increase the minimum wage for federal contract employees from the current $7.25 per hour to $10.10 per hour beginning next year. While the number of employees affected is small, the gesture could have wider implications across the United States, including in Kentucky and Indiana.

million-buck-cheque-1-531970-m.jpgPresident Obama first announced the executive order during his State of the Union address in January. When he signed the order, he did so surrounded by employees who could possibly benefit. Even so, both the President and supporters of the executive order acknowledged that the number of employees it would help was just a drop in the bucket compared to the number of employees who were not earning sufficient income despite working full time. The executive order would apply only to a small percentage of the two million federal contractors across the country.

However, both President Obama and supporters of the executive order hope that it creates momentum both in the states and in Congress to raise the minimum wage. President Obama pressed Congress to pass legislation that would raise the minimum wage for all workers, calling it "the right thing to do." That said, Congress has shown little willingness to pass minimum wage legislation, though the President and allies are working on strategies to convince both houses.

Continue reading "President Obama Issues Executive Order Raising the Minimum Wage of Certain Federal Contract Employees" »

February 21, 2014

United States Supreme Court Declines to Hear Racial Discrimination Case, Baker & McKenzie LLP

The United States Supreme Court recently declined an attempt to revive a race bias retaliation lawsuit against the law firm, Baker & McKenzie LLP, leaving in place the Seventh Circuit's ruling that her discrimination claims were time barred and her retaliation claim was speculative.

u-s--supreme-court-1-1038827-m.jpgThe events of Swanson v. Baker & McKenzie LLP began in 1995, when Gloria Swanson, a black woman, worked as a secretary for one of the law firm partners. She did not get along with him and requested a transfer. After her request was denied, Swanson decided to resign from the job, where she had worked for five years. She refused to sign a release that would have prohibited her from filing a lawsuit, believing that white secretaries in her position had received transfers in the past. Swanson was eventually able to negotiate a more favorable arrangement.

Swanson then obtained similar positions at other Chicago law firms, including one where she worked for 14 years before being laid off in 2011. After a stint of unemployment, during which time she was rejected at the final stage for many positions, Swanson hired a reference check company. The company contacted Baker & McKenzie in July 2012 and learned that the Human Resources Manager could not find her in its system, and thus could neither confirm nor deny her employment at the firm. The department claimed that the payroll records had recently changed, but that they would try to obtain access to the old records. Swanson found the explanation to be suspicious because the department was able to confirm the employment of a partner who died in 2007 and had worked for the firm for 50 years.

Continue reading "United States Supreme Court Declines to Hear Racial Discrimination Case, Baker & McKenzie LLP" »

February 14, 2014

Sixth Circuit Finds Involuntary Transfer to Be an Adverse Employment Action in Deleon v. Kalamazoo County Road Commission

Not long ago, the Sixth Circuit Court of Appeals determined in Deleon v. Kalamazoo County Road Commission that a job transfer could be considered an adverse employment action, even if it was to a position that the employee initially wanted.

industrial-park-1372192-m.jpgThe case involved a 53-year old man of Mexican descent, Robert Deleon, who had worked for the Kalamazoo County Road Commission for 28 years. In 1995, Deleon served as an Area Superintendent who supervised road maintenance activities, road crews, and road repairs. Although he received positive reviews for his work, Deleon also claimed to have experienced a pervasive atmosphere of racial insensitivity and hostility.

In 2008, a vacancy opened up for the Equipment and Facilities Superintendent position. The description stated that the work took place primarily in an office and in a garage where there would be exposure to loud noises and diesel fumes. Deleon applied for the position, viewing it as a good opportunity to advance in his career. Had he been offered the position, Deleon claimed that he would have requested a $10,000 increase in salary.

Continue reading "Sixth Circuit Finds Involuntary Transfer to Be an Adverse Employment Action in Deleon v. Kalamazoo County Road Commission" »

February 7, 2014

U.S. Supreme Court Rules That Indiana Steel Mill Employees Cannot Be Paid for Time Spent Donning and Doffing Equipment in Sandifer v. U.S. Steel

Indiana steel workers were on the losing end of a recent United States Supreme Court decision in the case Sandifer v. U.S. Steel. In a unanimous decision, the Supreme Court ruled that employers were not required to pay for time the employees spent "donning and doffing" -- or putting on and removing -- their workplace outfits if the union representing them had already bargained away the right for such pay. The ruling affects 800 steel workers who were part of a class action lawsuit, and promises to make it harder for unionized workers in general to seek compensation for work not addressed during labor negotiations.

protection-helmet-203723-m.jpgDonning and doffing provisions typically refer to putting on and removing workplace clothing. However, the 800 steel workers at U.S. Steel's plant in Gary, Indiana had argued that the protective gear that they were forced to put on each day for their jobs -- which included flame-retardant jackets and pants, work gloves, hard hats, safety glasses, and respirators -- were not clothing, but "personal protective equipment."

Justice Scalia, who wrote the opinion for the court, disagreed. He stated that time spent putting on such gear was not markedly different from time spent changing clothes, and that pants, leggings, and hardhats would typically be considered articles of dress. He did concede that items such as safety glasses, respirators, and earplugs were not examples of clothing, but stated that a ruling that separated those items from the rest would create problems for the lower court judges who dealt with similar cases in the future.

Continue reading "U.S. Supreme Court Rules That Indiana Steel Mill Employees Cannot Be Paid for Time Spent Donning and Doffing Equipment in Sandifer v. U.S. Steel" »

January 24, 2014

National Labor Relations Board Files Its Largest Complaint Ever Against Wal-Mart

Back in December, this blog discussed how the National Labor Relations Board (NLRB) found Wal-Mart's employee intimidation practices illegal. This includes firing and harassing employees who spoke against its exploitation and went on strike. As a result, the NLRB planned to go ahead and prosecute the company's actions, which affected 117 workers across the country.

immigration-rally-1-520992-m.jpgRecently the NLRB took further action, issuing a complaint against Wal-Mart in 14 states for violating labor laws by taking actions against workers who went on strike. Wal-Mart representatives reportedly appeared on television and other media, threatening retaliation for the workers' actions, and then disciplining or firing workers for striking, despite it being a legally protected activity. The complaint specifically cites more than 60 Wal-Mart supervisors, as well as a corporate officer.

The complaint was filed after an initial NLRB investigation found that the charges against Wal-Mart had merit. The parties involved attempted a settlement, but it fell apart, prompting one of the NLRB's regional directors to file. The states involved in the complaint include Kentucky, as well as California, Texas, and Washington.

Continue reading "National Labor Relations Board Files Its Largest Complaint Ever Against Wal-Mart" »

January 17, 2014

Seventh Circuit Determines That the EEOC Conciliation Process Is Not Reviewable in EEOC v. Mach Mining, LLC

The Seventh Circuit Court of Appeals recently became the first federal Court of Appeal to deny employers an affirmative defense that they have often used in lawsuits involving the Equal Employment Opportunity Commission (EEOC): the EEOC failed to conciliate prior to the lawsuit.

handshake-671413-m.jpgIn EEOC v. Mach Mining, LLC, a case discussed a few months ago on this blog, female applicants to a mine located in Johnston City, Illinois claimed that they had not been hired solely because of their gender. They filed a charge of discrimination with the EEOC in 2008, and in late 2010, the EEOC informed Mach Mining that it intended to start the informal conciliation process. The parties discussed a resolution, but failed to make an agreement. The EEOC later told Mach Mining that the conciliation process had been unsuccessful, and proceeded to file a complaint in district court two weeks later. In Mach Mining's answer, it cited several affirmative defenses, including that the EEOC failed to conciliate in good faith. The EEOC sought summary judgment on the matter, claiming that the conciliation process was not subject to judicial review. The district court denied summary judgment, claiming that conciliation efforts are subject to some level of judicial scrutiny, at least to see whether good faith efforts were made. The EEOC then appealed its case to the Seventh Circuit.

The Seventh Circuit ultimately reversed the district court's summary judgment ruling. In doing so, the court looked at the following: whether language in Title VII allowed EEOC conciliation efforts to be reviewable; whether a statutory standard for the conciliation process existed; whether judicial review would undermine the conciliation process; and whether it was proper for employers to shift the focus from their actions to the pre-litigation practices of the EEOC.

Continue reading "Seventh Circuit Determines That the EEOC Conciliation Process Is Not Reviewable in EEOC v. Mach Mining, LLC" »

January 10, 2014

Indiana Attorney General Submits Written Arguments to State Supreme Court Regarding "Right-to-Work" Law

Indiana's Attorney General Greg Zoeller has requested that the Indiana Supreme Court reverse a trial court decision that nullified part of the state's right-to-work law. Zoeller also requested that the Indiana Supreme Court affirm the Lake County Superior Court's rulings on three other grounds that did not involve constitutional questions.

immigration-rally-1-520992-m.jpg"Right-to-work" does not refer to whether all able-bodied people have the right to a job. Instead, "right-to-work" laws allow employees who are not part of unions to be able to enjoy the benefits that union employees won through collective bargaining -- without having to pay union dues or be bound by the collective bargaining agreement like union employees. "Right-to-work" laws are typically meant to weaken unions' power, on the basis that fewer employees will want to join a union if they can get the same benefits without any sacrifices. Twenty-four states have enacted "right-to-work" legislation, including Indiana in February 2012.

However, in September 2013, a Lake County Superior Court judge found that the "right-to-work" law was unconstitutional. The case began in February 2013, when it was filed on behalf of members of the International Union of Operating Engineers Local 150 AFL-CIO. The case had originally been brought in federal court, with the instigators claiming that the "right-to-work" law violated the United States Constitution and the state constitution. The federal court dismissed it on the grounds that the case should be brought in state court. After the case was filed in state court, the Lake County Superior Court judge found the law to be unconstitutional because the Indiana constitution called for just compensation for services, and permitting non-union members to enjoy the benefits of union victories was not just compensation.

Continue reading "Indiana Attorney General Submits Written Arguments to State Supreme Court Regarding "Right-to-Work" Law" »

January 3, 2014

Kentucky Court of Appeals Reinstates Gender Discrimination Case at Northern Kentucky University

Recently, the Kentucky Court of Appeals reinstated a gender discrimination case that had previously been dismissed by a lower court judge without trial.

gavel-5-1409595-m.jpgThe case involved a situation at Northern Kentucky University's College of Business back in the early 2000s, where a female assistant professor sought to gain a promotion with tenure. Andrea Weickgenannt began as an accounting instructor at the university, before becoming a tenure-track assistant professor two years later. At the time, she was supposedly hired due to her valuable practical experience, which included employment at a major accounting firm and doing independent consulting, as opposed to her scholarship. Weickgenannt did not have a Ph.D.

The university's Reappointment, Promotion and Tenure Committee recommended promotion with tenure, finding that the articles Weickgenannt had penned for scholarship were sufficient to meet the guidelines. Yet the dean and provost did not agree, finding that Weickgenannt's scholarship work was not up to standard. After an unsuccessful appeal within the university structure, Weickgenannt then sued the university for gender discrimination. In doing so, she identified a male colleague in the Management Department who had been promoted with tenure the previous year, who had the same amount of peer-reviewed, co-authored articles as she did. Nonetheless, the lower court dismissed her claim.

Continue reading "Kentucky Court of Appeals Reinstates Gender Discrimination Case at Northern Kentucky University" »

December 27, 2013

Sixth Circuit Confirms That Smaller Employment Units Can Be Separate Bargaining Units in Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB

A Sixth Circuit Court of Appeals decision represents a victory for employees looking to unionize in Kentucky and other states in its jurisdiction.

nurseii-4-1158337-m.jpgIn Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB, the Sixth Circuit upheld a National Labor Relations Board decision allowing unions to organize in small units of employees. This is significant because if individual units of employees can be recognized as unionized, it will be easier to unionize a workplace than if all employees were required to vote.

Kindred Nursing Centers East, LLC operated a nursing home in Mobile, Alabama, which had no history of employee collective bargaining. The employees worked in eight separate departments, including nursing, nutritional services, resident activity, administration medical records, maintenance, central supply, and social services. In the nursing department were 53 Certified Nursing Assistants (CNAs), as well as Registered Nurses (RNs) and Licensed Practical Nurses (LPNs).

Continue reading "Sixth Circuit Confirms That Smaller Employment Units Can Be Separate Bargaining Units in Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB" »

December 17, 2013

Fast Food Workers Go On Strike in Indiana and Across the Nation

Workers across the country, including in Kentucky and Indiana, organized to go on strike, this time to protest the low wages paid at fast food restaurants. The strikes come during a time when studies have shown that more than half of fast food workers make so little money that they use public assistance.

burger-1097100-m.jpgAlthough in Indiana the percentage of fast food workers on public assistance is less than 50% -- 45% to be exact -- the result still costs the state an estimated $131 million each year. Many workers hope to change that, such as Nicholas Williams, a cook at a McDonalds in Indianapolis. He notes that while McDonalds makes $6.5 billion each year, he makes only $7.35 an hour and cannot afford many basic things. He and others hope to see the minimum wage raised to $15 per hour.

Supporters state that when fast food workers make so little, it hurts their entire family, because the parents then need to work two or three jobs to support their families and are never home. Furthermore, these jobs typically lack health care that would benefit the family if someone got sick. In fact, forcing fast food workers to work all the time to make ends meet prevents them from participating in the community at large.

Continue reading "Fast Food Workers Go On Strike in Indiana and Across the Nation" »