Suits In The WorkPlace

Sidley Update

    I've already posted about the Sidley Austin age discrimination case pending here in Chicago, where the EEOC is suing Sidley's over its force-out of a number of older partners.  The case continues to go badly for the law firm, which has already lost its attempt to characterize the terminated partners as true "partners," as well as a number of discovery motions.  The case has now moved into an even more contentious phase with the Commission seeking documentation of the alleged complaints that Sidley used as justification for demoting 31 partners in 1999. 

   The Commission asked Sidley to turn over all complaints filed by its clients between 1995 and 1999.  Alternatively, the EEOC has asked the court to prevent Sidley from arguing that it demoted the subject partners in response to complaints if Sidley refuses to provide the information.

   The EEOC is simply doing what any plaintiff would do in a similar case -- determining whether the non-discriminatory reason provided by the employer was a pretext for illegal discrimination.  For its part, Sidley is delaying the day of reckoning with an odd "meet and confer" argument that the EEOC's own regulations supposedly require, although my understanding of that requirement is that it applies to prelitigation efforts.

   On a related note, many firms have a mandatory retirement policy for partners reaching a certain age, and these policies are coming under attack as the workforce ages.  The New York State Bar Association recently criticized mandatory retirement programs for older attorneys, saying that the requirements effectively cheat the public out of competent counselors with a wide body of experience.

   This case has been pending for two years now and there does not appear to be an end in sight.  But the conventional wisdom seems to be running against the law firm, and the Commission has every incentive to push this through to its conclusion.  Stay tuned.

Apprentice Bids No Trump

    Reality television has generated some litigation and the latest involves the popular show The Apprentice.  Early in January, a rejected Apprentice applicant sued the Trump organization for age discrimination in the way contestants are selected for the show.  The case, filed in federal court in Massachusetts, is a potential class action and alleges a pattern of age discrimination over six seasons for the NBC series.

     Hmmm. I've certainly noted that the people who are “apprentices” on the program are not an inclusive cross-section of America.  For one thing, they all seem to be really, really telegenic.  They all have great hair, great teeth and great physiques.  In fact, the suit alleges that over 100,000 people have applied for the show and exactly two selected participants have been over the age of 40.  That accounts for a lot of the telegenicity, I imagine.

     But at the same time, no one really believes that applying to work for Donald Trump by getting on a television program is really just a standard job application process.  These people are not competing for a job, they're auditioning for television.  I could see a fairly straightforward bona fide occupational qualification defense raised by NBC to the effect that “we are looking for people who will star in these ‘roles’, as opposed to being simply job applicants”.  And, ladies and gentlemen, putting good looking people (let me make that good looking, young people) into "roles" is a pretty well established entertainment industry job requirement.

     It will be interesting to see how the district court applies the ADEA in this kind of a situation.  But I think the first line of defense will be that auditioning for a television show does not allow you to use the same analytical legal model as interviewing for a job at The Office.

     The case is No.1:07-cv-10007 (D. Mass.)

Mandatory Health Care Law Defeated

The Fourth Circuit Court of Appeals ruled yesterday that a Maryland law requiring large employers to provide a certain level of health care coverage was preempted by ERISA.  In Retail Industry Leaders Association v. Fielder (No. 06-1840), January 17, 2007, the Court considered the fate of the Fair Share Health Care Fund Act, passed by the Maryland General Assembly on January 12, 2006.  The Act had been targeted at employers with more than 10,000 employees which, in Maryland, basically meant Wal-Mart.  (There are three other employees in the state that meet the threshhold, but there's little question that Wal-Mart was the lightning rod in that storm.)  It was, in fact, the result of a larger campaign against the retailer to raise the level of benefits for its employees.  The law required covered employers to spend at least 8% of their payrolls on employee health insurance programs, and came in the midst of a great deal of press about the alleged poor quality of health insurance benefits provided to Wal-Mart employees.  In fact, the bill was vetoed by the state's Republican governer, and was the target of a filibuster in the State Senate, but both measures were ultimately defeated and the law passed.

Not surprisingly, Wal-Mart, through the Retail Industry Leaders Association, sued, arguing that the law was pre-empted by the federal Employee Retirement Income Security Act of 1974.  The District Court agreed with the retailer, and Maryland appealed.  The Fourth Circuit, citing prior authority, recognized that ERISA "does not mandate that employers provide specific employee benefits but leaves them free, 'for any reason at any time, to adopt, modify, or terminate welfare plans.'"  In analyzing the requirements of the Maryland law, the Court then concluded that it "directly regulates employers' provision of health care benefits" and is therefore preempted by ERISA.

Many other states have enacted or are considering enacting similar laws.  This decision, therefore, may have a far-reaching effect on these efforts, and may slow this somewhat paternalistic movement.  It's nice to see a glimmer of capitalism shine through every once in a while, isn't it?

Reachback on a Continuing Violation

In National Railroad Passenger Corp. v. Morgan, the U.S. Supreme Court found that plaintiffs pursuing a hostile work environment claim could reach back and establish liability for actions that occurred well outside the 300 days allowed for discrete employment actions, such as a failure to promote or termination.  In Pruitt, et al. v. City of Chicago, the Seventh Circuit (Judge Easterbrook wrote the opinion) applied Morgan to provide employers with at least some limitation on how far back an employee can reach for liability purposes in alleging a hostile work environment. 

The plaintiffs in this case were black and Hispanic maintenance workers at O’Hare Airport who claimed that they had been subject to a hostile work environment for more than twenty years as a result of the actions of their foreman.  The case was ultimately dismissed by the trial judge as time barred.  The plaintiffs’ appealed, arguing first that the District Court should have certified a class of individuals as potential victims and second that the Court should have considered the entire twenty year history of their supervisor’s conduct to be actionable, although acts of discipline and promotion were not. 

I enjoy Judge Easterbrook’s Seventh Circuit opinions almost as much as I enjoy reading his brother’s football commentary on ESPN.  Both write with a clarity and to-the-point analysis that makes reading them a pleasure.  With regard to the class action claim, Judge Easterbrook noted that because the case was disposed of on the merits, the issue becomes whether the plaintiffs want to take all other employees down in flames with them, or if plaintiffs just don’t care about the risk   Either way, he wrote, the plaintiffs demonstrate inadequacy as representatives for others in the class.  He also stated that there is no indication in record that joinder of employees interested in participating as class members would be impractical. 

Then the Court shifts fire to the main issue, namely, what defense is available to a defendant when the plaintiff waits twenty years to file a claim but alleges a hostile work environment. 

The Supreme Court in Morgan noted that treating a hostile work environment claim as a single, continuing prohibited employment practice had the potential of litigating old news.  The Supremes allowed an employer to raise a laches defense, barring a plaintiff from maintaining the action if she unreasonably delays in filing suit and as a result harms the defendant. 

Applying the law to the facts, Judge Easterbrook notes that the plaintiffs’ allege fairly serious misconduct by their supervisor dating back twenty years.  Under the circumstances alleged, it should have been clear to the plaintiffs that they had a cause of action for race and national origin discrimination sometime in the 1980s. 

Not only were the plaintiffs not diligent—the Court readily identified prejudice that resulted from the delay.  Judge Easterbrook noted that the supervisor in question had retired and moved out of the Court’s jurisdiction, and also suffered a stroke, causing significant memory problems.  The supervisor’s next in command retired, and ultimately died during the period.  The Court also found that the vast majority of the records maintained by the employer relative to the events alleged had been destroyed as a result of the passage of time, not to mention the normal memory loss and inability to recall key events that could be expected among the witnesses that were available.  Once this prejudice was established, the Court stated that the laches defense could be readily applied.

Judge Easterbrook wrote that the laches defense should probably be applied to cut off liability only for events that are too remote or where the employer can demonstrate clear prejudice as a result of the plaintiffs’ delay.  The Court said that dismissing the entire suit because some of the alleged wrongs occurred too far in the past is not acceptable. 

This is a great opinion and provides some very useful tools for employers defending hostile work environment claims.  Employment lawyers should note that laches is an affirmative defense that needs to be pleaded early.  Moreover, it is probably a good idea for the defendant to be prepared to advise the Court where a reasonable cut off of liability should occur.  An employer may not be able to get rid of the entire claim because of a plaintiff’s lack of diligence, but it can cut off those parts of the claim against which it would be most difficult to defend.

Alice in San Francisco

     San Francisco's new Sick Leave Ordinance (Chapter 12W of the San Francisco Administrative Code) becomes effective in about a month and it's not good news for anyone with employees working in the city or the county.  California has long been a kind of Alice in Wonderland for employment law, and this statute pushes the state's reputation further down a rabbit hole. 

     The Ordinance applies to all employees, full time, part time and temporary.  It also applies to all employers with people in San Francisco or who control wages, hours and working conditions.  The term "employer" also includes anyone hiring employees through a temporary services or staffing agency. 

     The broad sweep of these definitions arguably means that employers can be held liable for the failure of their staffing agencies to comply with the Ordinance.  It also means that individual corporate officers and executives may be held liable, even when they reside out of state, as long as they are considered to "exercise control" over an employee's wages, hours and working conditions. 

     Now that I have your attention, the substantive terms of the ordinance are equally distressing.  The ordinance requires employers to provide every employee with one hour of paid sick leave for every 30 hours worked, up to a total accrual of 72 hours of paid leave for employers with ten or more employees (companies with 9 or less employees can limit the accrual to 40 hours).  Employees must be allowed to carry over accrued sick leave from year to year, but are not entitled to pay out of accrued but unused sick leave upon termination of employment. 

     In keeping with the "nanny state" theme of the Ordinance, employees may use sick leave not only for their own purposes, but to aid in the care of children, parents, guardians, wards, siblings, grandparents, grandchildren, spouses, registered domestic partners under any state or local law, or another "designated person" of the employee's choice.  An employee gets to name a "designated person" within ten days after becoming eligible for sick leave, and then can amend the designation annually, which will come in handy for those on-again-off-again types of relationships.

     In order to keep employers from asking too many embarrassing questions about exactly what an employee is using leave time for, the ordinance limits the employer's ability to verify that the employee's use is lawful to "reasonable measures."  "Reasonable measures" is undefined, which means that an employer who, for example, makes a phone call to an employee's house to see if he is really there taking care of his "designated person," is at the whim of the local investigator from the Office of Labor Standards Enforcement, or a judge, or the city attorney, or a jury as to whether the phone call was "reasonable."

     Finally, the Ordinance contains a retaliation provision, which creates a presumption of retaliation whenever adverse action is taken against a person within 90 days of her filing a complaint, cooperating in an investigation of a complaint, informing any other person of an alleged violation of the ordinance, informing someone of her rights under the ordinance, or breathing.  Okay, breathing is not part of this presumption, but it might as well be.

     Given the fact that individual corporate officers who have never set foot in San Francisco might be held personally liable under the Ordinance for a front line supervisor's violation, it would make sense for companies to get out in front on setting policies and programs to comply.  Or, companies could simply move out of San Francisco County and avoid the whole mess altogether.

QB versus T-Rac at LP

    I have more than a passing interest in pro football (get it--passing / pro football?) and a case filed in Tennessee and removed to federal court recently is simply too good to ignore for commentary. 

     Pro football players are always getting hurt.  In fact, one of the reasons the average career length in the NFL is only 3.2 years is the fact that a large number of players suffer career-ending or limiting injuries.  Almost all of those injuries occur either at practice or on the field of play during games as a result of collisions with other football players or sideline personnel, or are self-inflicted.  I think it's safe to say that most players do not expect to be injured by mascots, especially mascots in the form of racoons driving ATV derivatives.

     But that's what happened to quarterback Adrian McPherson of the New Orleans Saints in a pre-season game in August 2006.  McPherson was on the field (Nashville’s L.P. Field) warming up when T-Rac, the driving challenged mascot of the Tennessee Titans, ran over him with a motorized cart.  Blindsided by both the timing of the hit (quarterbacks in warm ups usually are not knocked down, although I took down Joe Kapp pre-game when he was with the Vikings in 1969) and its ferocity (who thought the mascot would be mechanized?), McPherson was injured badly enough so that he could not play for the rest of the season.  He filed suit in state court alleging a basic negligence tort against the Titans for failure to train its mascot to operate a motorized vehicle properly, at least with regard to players "of the opposite team."  Presumably, had T-Rac run over a Titan, his conduct would be somehow excused.

     This case moves into the labor realm with the Titans' removal of the action to federal court.  Specifically, the Titans are claiming that being run over by a mascot is an injury arising out of McPherson's "performance as a professional football player in the NFL."  If this is true, the NFL collective bargaining agreement requires McPherson to file a grievance, rather than take his case to court.  Here's a link to a fairly damning picture of the offender, along with commentary from Gods of Sport.

    This could have some interesting ramifications -- it is clear that McPherson was injured on the field, although being run over by a reckless mascot hardly seems to be an injury relating to performance as a football player.  What would happen if a fan ran down onto the field and clubbed him with a frozen lemonade?  In any event, this case will sit in federal court, where the Titans are no doubt hoping the judge is a season ticket holder.

Blogger Liability

     There was a fair amount of discussion about a year ago over blogs generated by employees concerning what happened at work, or about their employers.  Some of these cases made it to litigation, although not with the kind of salacious details of a case now surfacing in Washington, D.C. Federal Court. 

     A mail clerk for an Ohio Republican Senator wrote a blog about her sexual activities and conquests in D.C., including her juggling sexual relationships with six different men (at least one of them a co-worker) simultaneously.  All of this was detailed in her blog and when I say "detailed", I mean there were lots of "details," including admissions that she was paid for sex by at least one of her paramours, that her current favorite was into spanking and other comments that provided sufficient identification that when the story went public, people got fired.  Now, one of the affected individuals is suing not only his coworker for her invasion of his privacy and infliction of emotional distress, but also the publisher of a D.C. blog that picked up the coworker's story originally and gave it wide publication.

     Yet another reason not to establish romantic liaisons in the workplace -- you never know where those fetishes will end up being published. 

Liability in Lansing

Further reinforcing its reputation as a place where you don't want to be an employer, the Lansing, Michigan City Council passed an ordinance prohibiting employment discrimination on the basis of irrelevant factors such as race, age, height, weight, political affiliation, sexual orientation, and gender identity.  This should open up some heretofore unexplored areas of employment discrimination litigation.  Firmly cementing its reputation as a place slightly to the political left of Lenin, city officials also indicated that they plan to fight enactment of a ban on affirmative action in employment that was approved in a statewide referendum in November.  I can't quite square the pro-affirmative action policy with the city ordinance ban on discriminating on the basis of race and other protected factors, but that's what makes democracy so interesting.  I also suspect none of the big-box employers are planning on opening a store in Lansing anytime soon.

More FMLA Madness

     The notice requirements of the Family and Medical Leave Act continue to be a burden for employers as court decisions expand the concept.  In a recent Seventh Circuit decision, the Court considered the case of an employee who, over a period of four months, provided his employer with information that the court says should have tipped off the employer that there was a potential FMLA problem at work. 

     The employee was developing prostate cancer during the last four months of his employment.  Over this period, the employee communicated that:  he was suffering from a weak bladder (which was a reason for the employee not accepting a transfer of assignment), his frequency of medical visits in testing was increasing, he had an elevated PSA (an indicator of prostate cancer), he recently had a prostate biopsy and he requested help in his work duties as a result.  He repeatedly stated that he "felt sick", and he told his supervisor that he was afraid of getting prostate cancer and might commit suicide if he ended up bedridden.

     At no point, however, did the employee provide his employer with a specific diagnosis, or a request for medical leave.

     The court noted that the FMLA imposes a duty on the employer to conduct further investigation and inquiry to determine whether the medical condition is FMLA-qualifying once an employee informs his employer of his "probable need" for medical leave.  Note in this case that the "probable need" for medical leave consisted of  single statement that the employee was "sick" and "wanted to go home."  The court noted that this single statement, made when the employee was already being subjected to disciplinary review, should have been considered in the "context" of the previous four months of medical activity.  In other words, the employer should have connected the dots between what it knew about the employee's medical tests and visits, and his vague claim that he was ill and wanted to leave work that day.

     This is fairly disturbing, given the pace with which things happen in a workplace, and the number of other actual job-related pieces of information a supervisor is expected to keep in her head at one time.  Taken in isolation, the court makes a reasonable analysis, i.e., the supervisor was aware that the employee was having health problems and should have been alerted to the fact that this most recent claim of illness was probably related to the previous complaints.  However, I think it's asking a little much for a supervisor on her own to keep a list of these kinds of data on an employee.  Isn't that what human resources is for?  There ought to be at least a requirement that the employee alert someone whose job it is to actually track his medical problems to the fact that he was having long-term medical issues.  The court here, at least, seems to be imposing a requirement that supervisors keep a running log in their heads about various health problems of subordinates, so that they can immediately assess an FMLA issue when the employee ultimately gives them a relatively vague request for time off.  To top things off, the court also found that the employee's vague and continuing complaints about his health were sufficient to give the employer notice for a retaliation claim. 

     The court did sustain the grant of summary judgment on an ADA claim in the same case because the court found that the disabling condition was not sufficient to prevent the employee from holding a wide range of jobs. 

     So this case has several lessons -- don't ignore continuing health complaints by your employees because you'll be held accountable for linking those to any subsequent medical problems for FMLA purposes; similarly, taking adverse action against someone who has presented you with a litany of various aches and pains over the course of several months may be an FMLA retaliation claim in the making; and disability for ADA purposes does not equal serious health condition for FMLA purposes.