KEY CASES

2ndCir: Carrying files to, from work did not make commuting time compensable

City fire alarm inspectors were not entitled to compensation for their commuting time merely because they were required to schlep heavy briefcases containing inspection documents to and from work, the Second Circuit ruled. The carrying of documents, without any other responsibilities, did not turn commuting time into work time, except to the extent such a burden increased the length of the commute. In this case, the added commute time was de minimis, and thus not compensable. To rule otherwise would impose "upon businesses across the country a liability to compensate employees anytime those employees must commute to work with important documents, tools, or communications devices," the appeals court noted (Singh v The City of New York, April 29, 2008).

2ndCir: Denying "materially more advantageous" job may be adverse employment action

A police detective who three times was denied transfers out of the serology section, which eventually closed due to outsourcing, to the more state-of-the-art, highly sought-after fingerprint section could proceed with her Title VII claim alleging she was denied the transfers because of her sex. Just as a transfer to a "materially less prestigious" position can be an adverse employment action under Title VII, so too is denial of a transfer to a "materially more advantageous" position, the Second Circuit held, provided the employee raises sufficient evidence that the desired position offers an "objective and significant improvement in the terms, conditions, or privileges of" employment. "Title VII gives employees the statutory right to compete on an equal basis without regard to gender for anything worth competing over," wrote the court (Beyer v County of Nassau, April 23, 2008).

7thCir: Employees suing under USERRA do not need to pay filing fees

Though in most instances employees must pay court filing fees to initiate cases under federal antidiscrimination laws, employees suing under the Uniform Services Employment and Reemployment Rights Act are not required to pay them. USERRA provides that "[n]o fees or court costs may be charged or taxed against any person claiming rights under this chapter," confirmed the Seventh Circuit, adding that USERRA's plain language should be construed "liberally in favor of veterans seeking its protections." Moreover, despite "the admittedly sparse case law," other courts, including the US Supreme Court, have "generally waived filing fees for veterans in employment discrimination suits" under USERRA. Thus, the district court erred in ruling the statute's bar against fees and costs did not include filing fees to initiate litigation. The appeals court revived the discharge claim of a Vietnam veteran and ordered a refund of the court fees he paid on appeal (Davis v Advocate Heath Ctr Patient Care Express, April 28, 2008).

10thCir: RIF spreadsheet with hidden age data cells not indicative of bias

To raise an age bias inference in a RIF case, a plaintiff must produce evidence suggesting a non-discharged comparator held a position the plaintiff was qualified to assume, not merely that they both had the same pay grade, ruled the Tenth Circuit. The court assumed a RIF-discharged, 49-year-old employee met that standard, but he failed to show his employer's justification was pretextual based on its use of a spreadsheet with password-protected cells containing age data. Though the spreadsheet came with instructions for use as a tool to identify potential candidates for displacement/selection, the evidence showed only that it was used after the RIF decisions were made to identify potential problems, including bias. All employees were evaluated by the same criteria, based on the same scale, using non-biased assessment terms. There was no evidence any decisionmaker actually accessed the hidden cells, or that any comparators were excluded from the spreadsheets (Hinds v Sprint/United Mgmt Co, April 22, 2008).

11thCir: Crude talk, offensive radio program created a hostile work environment

Daily exposure to crude office talk and radio programming that was particularly offensive to women but not targeted at the plaintiff was sufficient to satisfy the "based on" and "severe or pervasive" elements of a hostile work environment sexual harassment claim, the Eleventh Circuit ruled. The plaintiff, a sales rep, was the only female working in a workstation pod cubicle near other sales reps who were all men. The plaintiff alleged that on a daily basis for nearly three years, her male coworkers and direct supervisor used sexually derogatory and sexually explicit language and listened to morning radio programming featuring sexually explicit and offensive language on the stereo in the office, even after she complained to them several times. While the plaintiff was not the target of the language and male employees were equally exposed to it, the appeals court found it had a discriminatory effect because of its degrading nature. Thus, the environment was hostile to the plaintiff "based on" her sex, and the frequency and humiliating nature of the comments were severe and pervasive enough to create a hostile environment. "Though we have never explicitly held that such `sex specific' language satisfies the `based on' element in a sexual harassment hostile work environment case even when the language does not target the plaintiff, we do so today," the court wrote (Reeves v C.H. Robinson Worldwide, Inc, April 28, 2008).

11thCir: Egregious violations warrant bargaining order despite passage of time

An employer's failure to inform the NLRB of changes occurring during the nearly six years between an administrative law judge's finding of a widespread and unrelenting pattern of unlawful conduct culminating in an unlawful withdrawal of recognition and the NLRB's entry of an affirmative bargaining order was fatal to the employer's argument that the bargaining order should be denied or at least re-evaluated in light of employee turnover, technological and management changes, and private settlements with affected employees. The employer did not attempt to inform the Board of any changed circumstances until its motion for reconsideration of the Board's decision and to reopen the record to consider the additional evidence. Also significant was the nature of the unfair labor practices committed, including repeatedly telling employees prior to the election that it would not recognize or bargain with the union and following through on its threat despite the union's wide margin of victory. Although troubled by the long delay, the Eleventh Circuit refused to require the Board, merely because of the passage of time, to sua sponte solicit new evidence of which the employer had long been aware but had failed to present (NLRB v Goya Foods of Florida, April 24, 2008).

DDel: Grievance over changes to pension plan was arbitrable under union contract

An employer was required to arbitrate a union's grievance over unilateral changes to the pension and retirement plan pursuant to the broad arbitration clause of the bargaining agreement, the federal district court in Delaware ruled. The dispute arose when the employer announced that employees hired after 2007 would be ineligible for the retirement plan and that current employees would accrue benefits at a reduced level. Contrary to the employer's assertion, the dispute was not over an eligibility determination under the plan, which would be subject to the plan's dispute resolution procedures or a civil suit under ERISA; rather, the grievance was over whether, under the terms of the bargaining agreement, the employer had the authority to change the retirement plan. Thus, the dispute was arbitrable, and the union's motion to compel arbitration was granted (Steelworkers v E.I. DuPont de Nemours and Co, April 18, 2008).

STATE LAW CASES

MN: Temporary agreement not to sue is not a release of claims

A lower court erred in dismissing the state-law claims of an employee who had agreed to refrain from filing suit for a specified period of time while the parties pursued settlement negotiations, but then filed suit within that time frame after negotiations broke down. Unlike a perpetual covenant not to sue, an agreement not to file a lawsuit for a limited time period does not constitute a release of claims, a Minnesota appeals court ruled, in the case of an emergency room employee who had been sexually harassed by an ER doctor. Thus, the agreement should not be given the effect of a release and serve as a complete bar to pursuing a claim. Instead, the defendants were entitled to pursue other remedies to enforce their rights under the agreement in light of the employee's breach (Kunza v St. Mary's Regional Health Center, MinnCtApp, April 22, 2008).

NY: Building owner strictly liable for injury to worker, despite lack of control or notice

A Manhattan commercial building owner was liable for a violation of New York labor law that proximately caused the injury of an HVAC installer even though the building's tenant had contracted for the HVAC work without the property owner's knowledge and in breach of the lease agreement, which required the landlord's prior written consent before renovations or installations can be done on the premises. An out-of-possession owner who has no knowledge of the work being done on its premises is nonetheless an "employer" within the meaning of Labor Law §240, the state's "scaffold" law, New York's high court held, being a strict liability provision that imposes a nondelegable duty. This is true even where the job was performed by an independent contractor over which the owner exercised no supervision or control. The court declined to import a notice requirement into the statute or to create a "lack-of-notice" exception to owner liability. "We have made perfectly plain that even the lack of `any ability' on the owner's part to ensure compliance with the statute is legally irrelevant," the court wrote (Sanatass v Consolidated Investing Co, Inc, NYCtApp, April 24, 2008).

AGENCY DEVELOPMENTS

DHS: Groups submit comments on proposed "no-match" rules

The Department of Homeland Security has received more than 500 public comments on its proposed rulemaking on its "no-match" regulation, a provision which outlines how employers should respond when receiving no-match letters from the Social Security Administration indicating that an employee's name and social security number do not match the agency's records. Religious groups, labor unions and business coalitions were among the most vocal—all asking DHS to halt implementation.

EEOC: Jury award of over $1 million to Latina farm worker upheld

A jury verdict of more than $1 million in favor of the EEOC and a female, immigrant farm worker has been affirmed by the Ninth Circuit in a sexual harassment and reprisal suit against Coalinga, California-based Harris Farms, one of the largest integrated farming operations in the Central San Joaquin Valley. A jury found the employer liable for sexual harassment, retaliation and constructive discharge after the employee testified her supervisor raped her on several occasions, threatened her with a gun or a knife to ensure her compliance, and subjected her to repeated verbal sexual harassment and intimidation. The employee also described sexually offensive and threatening gossip from coworkers, as well as retaliation, culminating in conditions so intolerable that she was forced to resign.

DOL: Medical testing company owes more than $688,000 to misclassified workers

New Jersey-based Quest Diagnostics Inc, a medical diagnostic testing company, will pay 238 employees across the country a total of $688,772 in overtime back wages due under the FLSA following an investigation by the Wage and Hour Division. The agency found that employees working as client systems analysts and senior client systems analysts at the employer's Cambridge, Massachusetts location were misclassified as exempt from the FLSA's overtime requirements. The investigation also found this same misclassification existed at all of the company's facilities nationwide.

LEGISLATION

Genetic nondiscrimination bill heads to White House; President Bush expected to sign

A bill designed to protect personal genetic information from misuse by employers and insurance companies passed the House on May 1 by a vote of 414-1 and now heads to the White House, where President Bush is expected to sign the measure into law. "The Genetic Information Nondiscrimination Act," or GINA (H.R. 493), would prohibit employers from using individuals' genetic information when making hiring, firing, job placement or promotion decisions and also make it illegal for group health plans and health insurers to deny coverage to healthy individuals or charge them higher premiums based solely on a genetic predisposition to a disease.

New Jersey becomes third state to provide paid family leave

Legislation providing paid family leave benefits to employees caring for sick family members and newborn or newly adopted children was signed by Governor Jon S. Corzine on May 2, making New Jersey the third state in the nation to enact a family leave program.

Newark-based attorneys from the firm of Buchanan Ingersoll & Rooney offer a detailed look at the new measure.

Federal paid leave measure introduced in House

The "Family Leave Insurance Act of 2008," (H.R. 5873), a bill that would create a paid family and medical leave insurance program at the federal level, was introduced in the House on April 22. The measure would provide workers with 12 weeks of paid leave in order to care for a new child, a sick family member, recover from an illness, or because of an exigency arising from the deployment of a member of the armed services. The program would be paid for by a new trust fund financed equally by employers and employees, who will each contribute 0.2% of the employee's pay. "The Family and Medical Leave Act has been a tremendous success, but many workers cannot afford to take unpaid leave," said Rep. Pete Stark (D-Cal), the bill's sponsor. "To make the offer real, the US should take the next step by providing paid leave to all workers."

Arizona enacts revisions to state's employer sanctions law

Arizona has revised the employer provisions of its Legal Arizona Workers Act, with Governor Janet Napolitano signing a measure last week to clarify that employers will be sanctioned only for undocumented workers who are on their payrolls as of January 1, 2008 and thereafter. The bill also provides additional safeguards for employers who make good-faith efforts to comply with the law.

West Virginia adopts employment verification rules

West Virginia employers are required to verify the legal status or authorization to work of all employees and all prospective employees prior to their first day of employment, under a measure recently enacted in the state.

Republican bill would authorize civil penalties for LMRDA violations

The "Labor-Management Reporting and Disclosure Enforcement Act of 2008," (H.R. 5775), introduced in the House on April 10 by Rep. Pete Sessions (R-Tex), would provide for civil monetary penalties against labor unions that violate the Labor-Management Reporting and Disclosure Act of 1959. Currently, the LMRDA outlines significant labor union financial transparency and reporting requirements but sets no penalties for unions that violate the law. "My legislation will help defend the rights of union members by levying penalties on unions that violate the trust of members by denying member access to financial records, failing to comply with federal reporting laws, or misusing union members' hard-earned dues," Sessions said. A companion measure (S.2878) was introduced in the Senate on April 17 by Sen. John Cornyn (R-Tex).

IN OTHER NEWS

50 more plaintiffs join pregnancy bias class action against Bloomberg

More than 50 additional plaintiffs have joined a class action pregnancy discrimination suit against news and financial services company Bloomberg LP that was filed last September by the EEOC. The federal agency has charged Bloomberg with violating the Pregnancy Discrimination Act by discriminating against female employees who became pregnant and took maternity leave. Originally a four-member class, the EEOC disclosed in court last week that more Bloomberg employees have joined the suit. And the class is expected to continue to grow.

Workers file damages claims as a result of ICE raid of factory

More than 100 US citizens and lawful permanent residents filed damages claims alleging they were illegally detained and harassed during a large-scale raid conducted by US Immigration and Customs Enforcement at a Micro Solutions Enterprises factory in Van Nuys, California, in February. The claims, filed under the Federal Tort Claims Act, seek $5,000 in compensation for the alleged illegal detention that took place during the raid.

State courts vacate more arbitration awards for employees than employers, study finds

When it comes to the arbitration of employment disputes, state courts often vacate arbitration awards for employees, but not those awards favoring employers, according to a recent study by University of Illinois professor Michael H. LeRoy. For example, state appeals courts affirmed 86.7 percent of awards for employers, but only 56.4 percent of employee wins. LeRoy says state courts are deviating from the Federal Arbitration Act, allowing "court review to become an insurance program that protects employers from costly awards."

Current federal immigration policy threatens New York businesses, report claims

Political deadlock on the issue of immigration reform is hurting the American economy and negatively impacting New York City's global competitiveness, according to a report from a coalition of 200 CEOs from the city's top firms. The report found that whole functions of companies and professional service firms are being relocated overseas to places where there is easy and immediate access to world talent.

Most companies have emergency preparedness plans, but single certification standard does not exist

The majority of US companies have a formal, written plan for emergency preparedness, according to a report released by The Conference Board. But a widely adopted certification standard for such plans does not yet exist.

Employer's Guide to Union Organizing Campaigns

In this environment every employer may find themselves subject to organizing efforts. Aspen Publishers' ALL-NEW manual Employer's Guide to Union Organizing Campaigns helps you guide your company through every stage of union organizing campaigns, so that you can react quickly, effectively, and legally even before organizing begins.

State Employment Law Compare

Quickly & easily compare state employment laws side-by-side

This new innovative tool uses "Smart Chart" functionality to instantly compare multiple state laws, all at the same time on the same chart.

Editor

Lisa Milam-Perez, JD

About CCH WorkWeek

This weekly newsletter provides corporate counsel and law firm practitioners with need-to-know employment and labor law information in a timely, yet manageable manner. Benefit from news and information in a broader context, with deeper analysis of recent developments and corresponding trends. Delivered to you every Monday, CCH WorkWeek offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by CCH editors.