Legal Comment

The author, R. Eddie Wayland, is TCA’s General Counsel, and a partner with the law firm of King & Ballow. Mr. Wayland frequently speaks and presents seminars throughout the U.S. on legal topics, including labor and employment issues. He also provides in-house training in these areas. He has twice been selected Chairman of the Labor and Employment Section of the Tennessee Bar Association and was founder and editor of the TBA Labor Letter. Among his publications, Mr. Wayland was co-author for Americans with Disabilities Act Compliance Guidebook, and was a contributing author for The Developing Labor Law.

By: R. Eddie Wayland, TCA Legal Counsel

While the facts of this case are somewhat unusual, the case is an important one because it involves a critical issue regarding the application of the Family and Medical Leave Act (FMLA). As this case demonstrates, the FMLA can apply even in situations where it is undisputed that neither the employee nor the employer ever mentioned the FMLA.

Background

The employee worked as an account manager for a company that makes custom reusable packaging. The employee started working for the company in 2002 as a full-time employee. In 2013, the employee transitioned to part-time employment with the company. The employee ultimately retired from the company in 2016.

The employee was eligible for a bonus while working for the company. In order to receive the bonus, the employee had to be employed during the “measurement period” as well as the “payment period.” The measurement period ran from January 1 through December 31 of the calendar year and the payment period ran from January 1 through March 31 of the following year. The employee received bonuses in 2013, 2014, and 2015.

In 2015, the employee was diagnosed with an aggressive form of brain cancer. The diagnosis was terminal. In August 2016, the employee met with the company’s chairman to discuss retirement. The two discussed a second surgery that the employee would be undergoing. The employee’s bonus was not discussed. In December 2016, the employee met with the company’s president and, according to the employee, discussed the employee using his accrued vacation time prior to retiring. The employee claims the president told him to simply retire on December 31st without using the vacation time so that “everything will be clean.” The president claimed that he did not make this statement and did not otherwise discourage the employee from using his vacation time prior to retiring.

The employee believed that he had approximately 200 days of vacation available to him at the time of his retirement. The company disputed this and indicated that the employee had no vacation time remaining. Part of the confusion apparently came from what the company described as a “clerical error” which occurred as a result of the company’s new payroll company. As a result of the alleged clerical error, the employee’s final paystub reflected that he had 120 days of vacation available to him.

Following his retirement, at some point in the spring of 2017, the employee realized he had not received his bonus payment for 2016. (The employee testified that his bonus for 2016 would have been at least $142,500.00.) The employee reviewed company policy relating to the bonus payment and realized that because he did not work during the payment period (i.e. January 1 through March 31, 2017) he was not eligible for the bonus payment. The employee emailed the chairman and the president and expressed that he felt “let down” by each man because they could have recommended that he stay employed through the first quarter of 2017 so that he could receive his bonus payment.

(It should be noted that in 2016, the employee trained another employee to take over his account manager position. The trainee allegedly performed the bulk of the actual workload. This trainee was allegedly paid the bonus the employee believed he was due.)

The employee filed a lawsuit alleging FMLA interference among other claims. After discovery, the company moved for summary judgment thereby seeking to prevail in the case without a trial. This article will focus on the Court’s summary judgment decision on the FMLA claim. The claim is somewhat unique because part of the basis for the damages is that if the FMLA had been permitted, the employee would have been employed past his December 31st retirement date and into 2017, thereby making him eligible for the bonus payment.

Applicable Law

The FMLA entitles qualifying employees to twelve weeks of unpaid leave each year if an employee has “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” An FMLA interference claim requires proof that the plaintiff (1) was an eligible employee under the FMLA; (2) the employer was a covered employer under the FMLA; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave the employer notice of his intention to take FMLA leave; and (5) the employer denied the required FMLA benefits.

Analysis

The only issue disputed by the parties on the FMLA interference claim was the fourth element of the claim, which is whether the employer gave the company notice of his intention to take FMLA leave. While the Court acknowledged that there was no evidence the employee mentioned the FMLA during his December 2016 conversation with the company president, the Court noted:

the eligible employee need not expressly mention the FMLA as the source of his right to request such leave. Rather, the critical test for substantively-sufficient notice is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee’s request to take leave for a serious health condition that rendered him unable to perform his job.

(emphasis supplied).

The employee’s estate (the employee died while the suit was pending) argued that the employee’s December 2016 conversation with the company president furnished the necessary information to the company that triggered the company’s obligations under the FMLA. The estate argued that the conversation alerted the company to the employee’s need to take leave for a serious health condition (as the employee had previously discussed his health with the company’s chairman), and that the company did not respond as the FMLA required.

The court ultimately concluded that based on the employee’s testimony regarding his meetings with the company’s officers, a jury could reasonably find for the employee on the issue of substantively-sufficient notice. Accordingly, the Court ruled that a trial was necessary to determine whether the company interfered with the employee’s FMLA rights.

Takeaway

While this decision is a somewhat unique example, employers should be mindful of the Court’s holding regarding the FMLA’s notice provision. Employers who are covered by the FMLA should consider the applicability of the FMLA whenever an employee brings up being out of work contemporaneous to a serious medical condition. While it may have been a difficult task for the company chairman or president to have identified the possible FMLA issue based on the facts of this case, employers need to be mindful of the obligations the FMLA creates for employers. As agents of the company, managers, supervisors, and other company representatives should be reminded that if a situation arises where an employee request for leave, coupled with a corresponding serious health condition, is presented, they should seek guidance as to the possible applicability of the FMLA. If questions arise, employers should consult with experienced employment counsel for guidance in this area.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

November 6, 2018

By:  R. Eddie Wayland, TCA Legal Counsel

A Florida federal trial court recently issued a decision involving the Faragher-Ellerth affirmative defense in a sexual harassment case. The court rejected the employer’s attempt to avoid a trial in the matter when it asserted this defense at the summary judgment stage of the lawsuit. The Faragher-Ellerth defense is an important tool for employers in defending against sexual harassment lawsuits, and employers would be wise to take note of this decision.

Background

The employee did field labor for the employer. The employer provided housing for the employee during her employment. The employee’s supervisor came to the employee’s employer-provided apartment under the guise of doing an “inspection” and allegedly raped the employee in her bedroom. The employee reported the rape to the employer then filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

The EEOC later brought a lawsuit against the employer for the rape. The lawsuit includes a claim for hostile work environment based on sex under Title VII. This claim will be the focus of this article.

After the close of the “discovery” stage of the lawsuit, the employer filed a motion for summary judgment. This motion sought an entry of judgment in the employer’s favor prior to any trial in the case. Where there is a genuine factual dispute between the parties on an issue, the summary judgment motion will be denied.

Applicable Law

One argument raised in the employer’s motion was that the employer should prevail because of the application of the Faragher-Ellerth affirmative defense. Generally speaking, an affirmative defense requires the defendant in a lawsuit to introduce evidence, which, if found to be credible, negates the defendant’s civil liability, even if the plaintiff in the lawsuit proves that the defendant committed the alleged acts which gave rise to the lawsuit.

The Faragher-Ellerth affirmative defense, which was named after the two United States Supreme Court cases that established the principle, applies in situations where a plaintiff is alleging sexual harassment via a hostile work environment which was created by a supervisor and where the employee suffered no adverse, tangible employment action. The defense provides that an employer may avoid liability for harassment if the employer can demonstrate that: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace; and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventive or corrective measures.

Decision of the Court

The court ruled that the employer failed to make out its Faragher-Ellerth affirmative defense in its summary judgment motion, and thus that the case would be more appropriately resolved by a jury trial. The court found that there were several disputed factual issues in the case. As an initial matter, the factual record did not establish that the employee ever received a copy of the employer’s anti-harassment policy. Next, the record showed that the employee only spoke Mixtec, an Oto-Manguean language spoken across the Mexican states of Oaxaca, Puebla, and Guerrero, as well as in California. Given that the policy was not translated into Mixtec, even if the employee did receive it, there was a factual question as to whether the employee could have understood the policy. Finally, there was information in the record which showed that the supervisor at issue in this case had been complained about previously with regard to sexual harassment.

Accordingly, the court found that the employer could not establish it had taken “reasonable steps to prevent and promptly correct sexual harassment in the workplace” for purposes of the employer’s summary judgment motion. The court noted that the employee promptly reported the alleged rape to the employer. Therefore, the employer could not prove the employee “unreasonably failed to take advantage of the employer’s preventive or corrective measures” at this stage of the proceedings. Accordingly, the employer’s motion was denied on this ground.

Takeaway

Employers should take affirmative steps to stay in good position to assert a Faragher-Ellerth defense where applicable. To this end, employers should (1) typically have solid anti-harassment policies, (2) ensure that all employees receive copies of these policies, (3) make sure that all employees are able to understand the policies, (4) make sure supervisors/managers know the policies and what they should do if a complaint is raised, and (5) make sure that prompt corrective action is taken following a harassment complaint where warranted. Employers should consult with experienced employment counsel in developing their written policies, policy-implementation procedures, training procedures, and complaint-response procedures.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

October 23, 2018

By:  R. Eddie Wayland, TCA Legal Counsel

In this case, a federal appeals court issued a ruling involving the “regarded as” prong of the definition of “disability” under the Americans with Disabilities Act (ADA). The regarded as theory of liability under the ADA is not as common as other theories of ADA liability, but nonetheless deserves attention from employers.

Background

The employee worked as a delivery driver for the employer. The employer buys, sells, and distributes food products for residential and commercial use. The employee’s job required lifting and carrying a minimum of 50 pounds among other physical tasks.

In 2013, the driver sought to transfer to a part-time warehouse job. The warehouse job required less physically demanding work. The employee and employer dispute the reason for this request. The driver claims the request was motivated by shoulder pain he began to experience, while the employer maintains the employee requested the transfer so that he could focus on his independent side-business.

On June 14, 2013, the driver claims he was told his transfer had been approved. On June 17, 2013, the driver disclosed his shoulder pain to his employer. On June 19, 2013, the driver’s supervisor told the driver the transfer was not approved and further told the driver that his last day of employment would be July 3, 2013. The driver claimed that his supervisor told him: “you gotta resign” because “your job no longer exists because of budget cuts.” Despite this statement and termination paperwork which indicated that the reason for the separation was that the “part-time position [was] not available,” the driver saw an ad for a part-time warehouseman position with the employer in the newspaper on June 26, 2013.

On June 20, 2013, the driver went to a doctor to have his shoulder examined. Then the driver filled out workers’ compensation paperwork. The paperwork provides that the cause of the injury to the driver’s shoulder was the cumulative effect of doing the delivery driver position for five years. The driver underwent an MRI on July 29, 2013 and was diagnosed with supraspinatus tendinitis/partial tear of the left shoulder. The injury was apparently healed by September 2014.

The driver filed a lawsuit in which he asserted he had been subjected to disability discrimination in violation of the ADA. The trial court ruled in the employer’s favor and the driver appealed. The appeals court’s decision is the subject of this article.

Applicable Law

To set forth a claim for disability discrimination, a plaintiff must show: (1) he is disabled within the meaning of the ADA; (2) he is qualified (i.e. able to perform the essential functions of the job with or without reasonable accommodation); and (3) the employer terminated or discriminated against him because of his disability. A “disability” is established in one of three ways under the ADA: (1) a physical or mental impairment that substantially limits one or more major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.

In order to demonstrate that the individual meets the requirement of “being regarded as having such an impairment,” the individual must establish that “he or she has been subjected to [prohibited action] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” An individual cannot be regarded as having a disability under the ADA if the impairment is both transitory (i.e. expected to last six months or less) and minor.

Decision of Appeals Court

The appeals court began by noting that the trial court had relied on outdated case law when reaching its decision in the employer’s favor. The appeals court determined that there was ample evidence presented to show that the employer forced the driver to resign because of the driver’s shoulder injury.

The appeals court also rejected the employer’s argument that the driver’s report of shoulder pain “would not be sufficient to convince a reasonable jury that [the driver] had a physical impairment expected to last six months or longer, or that [the employer] regarded him as such.” The appeals court noted that it was the employer’s obligation to put forward evidence that the injury was “transitory and minor” and the employer had failed to do so. Accordingly, the appeals court ruled that the trial court’s decision was incorrect with regard to the driver’s ADA claim. The appeals court ordered the trial court to conduct further proceedings in the case as a result.

Takeaway

The “regarded as” prong of the definition of disability under the ADA is not often discussed in disability discrimination cases. This theory of liability can be challenging for employers, however, because employees who may not actually be disabled under the statute are still protected under the statue. Generally, it is good policy for employers to keep employee health issues as confidential as possible. One benefit to this policy is that it helps protect against all manner of disability discrimination claims—it is difficult for an employer to be accused of acting with discriminatory animus when the employer’s decision maker indisputably did not know of any of the employee’s health issues. As this case instructs, employers should also remember to keep in mind the “regarded as” definition of disability when considering a situation where claimed adverse treatment because of health related issues is presented.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

October 9, 2018

By:  R. Eddie Wayland, TCA Legal Counsel

In this case, a federal appeals court illuminates what makes same-sex sexual harassment actionable. The court here explained how conduct rises beyond mere “sexual horseplay” and gets into the realm of actionable sexual harassment. Employers should pay close attention to this case to gain a better understanding of fundamentals of sexual harassment law, and, more broadly speaking, the fundamentals of employment discrimination law.

Factual Background

The employee worked as a butcher at a small grocery store on the south side of Chicago, where he was subjected to unwelcome conduct by his male coworkers. The employee’s coworkers would repeatedly grab his genitals and buttocks and mime oral and anal sex around him. The employee complained about the conduct several times to no avail. The employee then filed a charge of discrimination with the Equal Employment Opportunity Commission.

Following the filing of his charge of discrimination, the male coworkers acted threateningly around the employee. The coworkers “banged their cleavers menacingly” at the employee and his car was vandalized in the employee-only lot. As a result of these “intolerable” working conditions, the employee resigned from his job and filed a lawsuit.

Legal Proceedings

The employee’s case went to trial and the jury returned a verdict in his favor. The employer filed an appeal. This article will focus on the employee’s sexual harassment claim. With regard to that claim, the employer argued on appeal that the employee should not have prevailed because the employee failed to prove that his male coworkers discriminated against him because of his sex.

Background on the Applicable Law

Under federal law, one form of actionable sexual harassment occurs when a “hostile work environment” is created. A hostile work environment exists where an employee’s workplace is “so pervaded by discrimination that the terms and conditions of employment are altered.” In order to be actionable, however, the harassment must discriminate against the employee “because of such individual’s … sex.”

Court’s Analysis

The federal appeals court began its analysis by agreeing with the employer’s statement that “unwanted sexual behavior—including the touching of genitals and buttocks—is not necessarily actionable under Title VII.” The court quoted the following language from one of its prior decisions: “[w]e have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.”

The court continued, however, by pointing out that the employee did more than prove that the conduct in question was sexual in nature. Indeed, the employee provided the jury with sufficient evidence for them to reasonably conclude that the employee’s coworkers only harassed male coworkers, even though female coworkers were present in the workplace. The court therefore concluded that “[b]ecause men worked alongside women at [the employer’s place of business] and only men were harassed, a reasonable jury could conclude that [the employee’s] coworkers would not have tormented him if he had been female” and thus “the jury was free to conclude that these men discriminated against [the employee] on the basis of sex.”

Takeaway

This case highlights an important fundamental of employment discrimination law: in order to be actionable, the discrimination must occur because of the victim’s protected characteristic. Some readers may be surprised by the court’s statement that, even when the alleged harassment occurs between men and women, it is not automatically discrimination because of sex merely because the words used have sexual content or connotations. But this standard is a fluid one based on the specific factual circumstances and the legal jurisdictions (federal and state) in which the claim arises.

Also, in today’s times it is often best if the employer focuses on whether the conduct was “appropriate” in the workplace rather than only focusing on whether the conduct constituted “unlawful” harassment and discrimination. Employers should be conscious of these aspects of the law when evaluating complaints as proper understanding of these principles and application of an appropriate and reasoned approach will help put the employer in strong position to diffuse and to defend a possible future complaint.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

September 25, 2018

By:  R. Eddie Wayland, TCA Legal Counsel  

In this case, an employer’s failure to engage in the reasonable accommodation interactive process with a diabetic employee resulted in a total jury award of more than $700,000 to the employee. Despite a challenge by the employer on appeal, the award was upheld by the United States Court of Appeals for the Sixth Circuit, which is based in Cincinnati.

Factual Background

The employee, a sales associate at a retail store (who was later promoted to assistant manager), is a type II diabetic. When the employee suffers from low blood sugar, she must quickly consume glucose to avoid the risk of seizing or passing out. The employee asked her manager if she could keep orange juice at her cash register in case of a hypoglycemic (low blood sugar) episode. The manager denied the request, citing store policy which prohibited eating or drinking on the sales floor.

The employee later experienced two hypoglycemic episodes. She was working alone in the store in each instance and could not go to the break room because customers were present in the store at the time. During both episodes the employee went to the store cooler, took a container of orange juice, and consumed it. She paid for the drink later in the shift, and then reported the occurrences to her manager. These actions violated the retailer’s “grazing policy” which prohibits employees from consuming merchandise in the store prior to paying for it.

During an audit of the store that was performed by retailer’s loss prevention manager to “address employee-theft and other merchandise ‘shrinkage’ issues,” the employee admitted to these two violations of the grazing policy. The employee was terminated for violating the policy.

Legal Proceedings

The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC itself filed a lawsuit against the retailer after reviewing her claim. It claimed the retailer had failed to provide the employee with a reasonable accommodation and had discharged her because of her disability.  A jury trial was held and the employee prevailed at trial.  She was awarded $27,565 in back pay, $250,000 in compensatory damages, $445,322 in attorney’s fees, and $1,677 in expenses, for a total award of $724,564.

The retailer brought four challenges on appeal, one of which was the argument that the jury’s decision on the reasonable accommodation claim should be overturned because it is contrary to the law. This article will focus only on the appellate court’s response to that challenge.

Reasonable Accommodation

In general, a reasonable accommodation is a change to a job or work environment that enables an employee to do his or her job despite having a disability. Employers are required to provide reasonable accommodations to qualified employees with disabilities under the ADA, unless doing so would pose an undue hardship to the employer. Following a request for an accommodation, the employer and employee should engage in an interactive process to determine what, if any, accommodation should be provided. This means that the individual requesting the accommodation and the employer should communicate with each other about the accommodation request, the nature of the issue that is causing the request, how a disability is creating the need for an accommodation, and possible alternative accommodations.

The retailer argued that it had no duty to accommodate the employee because she could have treated her low blood sugar in other ways, including glucose tablets or gels, honey, candy, or peanut butter crackers. The appellate court concluded the existence of these other options did not make the jury’s verdict unreasonable. The employee’s request to keep juice at her register was a request for an accommodation under the ADA. The court noted that after the employee made that request, “the employer had a duty to explore the nature of the employee’s limitations, if and how those limitations affected her work, and what types of accommodations could be made.”

The court continued, if the retailer “followed this route, it might well have told [the employee] that she could consume glucose pills at the register and perhaps that would have resolved the matter.” However, as the court then emphasized, “that’s not what [the employer] did.” Instead the employee’s request was “categorically denied,” no alternatives were explored, and the matter was not relayed up the chain of command at the store. Plainly stated: the employer failed to engage the employee in the interactive process.

The court noted there may have been practical concerns with these late-suggested glucose alternatives. For example, the employee testified that the “glucose tablets were ‘useless’ because she would have to take four or five pills, each the size of an Alka-Seltzer, all while under duress.” Similarly, the employee testified that she could not “imagine doing her job while ‘cramming peanut butter crackers in [her] mouth.’”

The court added that these alternatives could also have been understood to violate company policy if the employee had consumed them while working on the sales floor. Ultimately, the court concluded that the jury had a legally sufficient basis and ample evidence to conclude that the retailer failed to provide the employee with reasonable alternatives to keeping orange juice at her register.

Takeaway

This case illustrates the need for employers to engage with employees in the interactive process to find reasonable accommodations where necessary. A critical error may have occurred here when the employer “categorically denied” the employee’s request to keep orange juice at her register to aid her in the event of a hypoglycemic episode. That is, the court appeared to be less concerned with what the outcome of the interactive process could have been or should have been and more focused on the fact that the interactive process itself never even occurred.

Employers should be vigilant in making sure they engage employees in the interactive process. Training supervisors plays a critical role in that process. Employers should train supervisors to recognize what could be construed as a request for reasonable accommodation. Here, the employee asked to keep orange juice at her register because of her diabetic condition. Her supervisor, most likely not recognizing this to be a request for reasonable accommodation, simply cited company policy and denied the request. With proper training, supervisors are more likely to avoid such errors and thereby save the company from verdicts such as this one.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

September 11, 2018

By: R. Eddie Wayland, TCA Legal Counsel

The First Circuit Court of Appeals, which is based in Boston, recently held that an employee who “voluntarily” accepted a job transfer to avoid a harassing supervisor had nonetheless been retaliated against because of misrepresentations made by the employer concerning the job transfer.

Factual Background

The employee worked as a professor at a university and was a member of the Exercise and Sport Performance (ESP) Department. The employee accused the chairman of the ESP Department, who was the employee’s supervisor, of sexually harassing her.

In an effort to avoid working under the supervisor, the employee requested that she be allowed to report to a “surrogate supervisor” instead of the chairman. This request was denied but the employee was told that she could move out of the ESP Department and thereby avoid the chairman. The employee stated that she would agree to the transfer but only if she got to keep teaching the same classes she was currently teaching and was allowed to “do her job.”

Although the university apparently agreed to this condition of acceptance, the employee was nonetheless removed from teaching her usual courses. The employee believed that the courses she was assigned to teach were “remedial” general education courses. Later, the employee was removed from her position as an advisor to the students in the ESP Department. Further, the employee’s profile was removed from the ESP Department’s website. This was problematic because external funders were previously able to find the employee through the website and thereby financially support her research efforts. After her name was removed from the website, she was not contacted by any other external funders.

The employee eventually became a member of the university’s Physical Therapy Department. However, because the employee was not a licensed physical therapist, she could not actually teach any of the physical therapy courses. Moreover, the employee was precluded from participating in certain department decisions, such as curriculum changes, because of her lack of expertise in physical therapy.

As a result of the aforementioned occurrences, the employee filed a complaint of retaliation with the Equal Employment Opportunity Commission and a related state agency. The retaliation claim eventually made its way to the federal court. There the court awarded judgment to the university prior to any trial in the matter. The court based its ruling on the fact that the employee stated that her transfer out of the ESP Department was “voluntary.” As such, the court reasoned that no adverse action had occurred and that without an adverse action, the employee could not make out a claim for retaliation. The employee then appealed.

Applicable Law

Title VII prohibits employers from retaliating against employees who report violations of that title. In order to give rise to a retaliation claim, an employer’s retaliatory act must constitute an “adverse action.” An action is adverse if it is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Courts have previously ruled that transfers are adverse where the transfer materially changes the aggrieved employee’s conditions of employment in a manner that is more disruptive than a mere inconvenience or an alteration of job responsibilities.

Appeals Court’s Analysis and Decision

The appeals court began its analysis by noting that the employee’s “transfer to a new department led to a change in her teaching assignments, her removal from the ESP Department website, and her removal as an advisor to ESP Department students.” The court found that a jury could conclude that the disparity in duties between her role while a member of the ESP Department and her role after her transfer rendered the transfer an adverse employment action.

The appeals court also found that the trial court’s reasoning in its decision was flawed. The court recounted that “[t]he district court held that the transfer was voluntary and so, in its view, the transfer could not be an adverse action.” The court stated that this reasoning “overlooked” one of the employee’s arguments: that the employee was induced to accept the offer to move out of the ESP Department based on misrepresentations made by the employer. Specifically, these misrepresentations concerned the employee being allowed to continue teaching the same courses and continue to “do her job,” which as outlined above did not happen.

The court concluded that a reasonable jury could find that the employee would not have accepted the transfer but for the misrepresentations and could reasonably infer that the misrepresentations were done in retaliation against the employee for reporting sexual harassment. Accordingly, the appeals court reversed the trial court’s decision in this respect and returned the case to the trial court for further proceedings.

Takeaway

For employers faced with sexual harassment complaints, a critical component of handling such complaints is making sure that the harassment quickly stops following the report. One possible way of stopping the harassment is separating the alleged victim from the alleged harasser. However, as this case makes clear, employers should pay special care to make sure that the alleged victim does not suffer an adverse employment action as a result of this separation. Navigating these issues can be very difficult. To even further complicate matters, taking adverse action against the alleged harasser can be problematic if it later becomes clear that the allegations were without merit. Employers should reach out to individuals experienced in these matters for guidance where necessary.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

August 28, 2018

By:  R. Eddie Wayland, TCA Legal Counsel

The Sixth Circuit Court of Appeals covers Ohio, Michigan, Tennessee, and Kentucky. This court recently held that an employer was required to show that a full-time work schedule was an essential function of an employee’s job in order to prevail on an Americans with Disabilities Act (ADA) claim where the employer argued that the employee was not “qualified” for the position.

Factual Background

The employee worked in the human resources department at a college in Ohio. The employee went out on maternity leave. When the employee exhausted the leave under the employer’s policies, the employee notified the employer that she was not able to come back to work because she was experiencing postpartum depression and separation anxiety.

The employee’s supervisor was reportedly sympathetic and understanding and the employee was provided additional leave. After another month of leave, the employee stated that she was ready to return to work on a part-time basis. The employee’s physician concurred, and the employee provided appropriate documentation.

The employee returned to work on a part-time basis and worked five half-days per week. The employee presented evidence that “she was able to do everything required of her position” despite only working a part-time schedule. The employee offered her own testimony on this point, the testimony of a co-worker, and showed that the employee received a positive employee evaluation while working the part-time schedule.

The employee’s supervisor testified that the employee’s modified work schedule put a strain on the supervisor and the rest of the department. The supervisor stated that she was “really overwhelmed and left without anyone in the office to help with responsibilities and tasks that came up.” The supervisor further stated that work in the department was left unfinished or ignored. When pressed to identify any specific responsibilities or assignments that were not completed, however, the supervisor failed to provide any concrete examples.

While the employee remained on her part-time schedule, the employer requested that the employee provide an updated medical certification from her physician by a date certain. That date came and went without the employee providing a certification. Shortly thereafter, the employee engaged in a series of discussions with her supervisor relating to her job. The parties disputed whether the supervisor made it clear to the employee that she was needed to work a full-time schedule.

Shortly thereafter, the employee offered to work additional hours beyond her part-time, half-day schedule, but she did not offer to return to full-time employment. The employee was then terminated. The employee subsequently filed a lawsuit which included a claim brought under the ADA. That claim is the focus of this article.

Upon the employer’s motion, the trial court entered judgment for the employer on the ground that the employee could not demonstrate that she was “qualified” for her position because she could not perform all of the “essential functions” of her position. More specifically, the trial court found that the employee failed to show she could perform the essential function of full-time work.

Background on the Law

Title I of the Americans with Disabilities Act prohibits private employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA imposes a duty on employers to provide reasonable accommodations to qualified individuals with disabilities who are employees, unless doing so would cause undue hardship on the employer. An individual is “disabled” under the ADA when he or she suffers from “a physical or mental impairment that substantially limits one or more major life activities.”

A disabled individual is “qualified” if he or she can, with or without reasonable accommodation, perform the essential functions of the position. Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. Factors to consider in determining if a function is essential include: whether the reason the position exists is to perform that function, the number of other employees available to perform the function or among whom the performance of the function can be distributed, and the degree of expertise or skill required to perform the function.

Court’s Analysis and Decision

The appeals court rejected the trial court’s decision. The appeals court found that while full-time work may often be an essential function of an employee’s position, in this case, the employer failed to demonstrate why full-time employment was an essential function of the employee’s position. Indeed, the appeals court cited the evidence in the record that showed the employee was able to complete all her job duties while working on a part-time basis. The court noted that a “fact-intensive analysis” is required on this issue.

Takeaway

This case is important because it highlights that a full-time work schedule may not necessarily be an essential function of a job position. While a full-time schedule may indeed be an essential function of most jobs, employers should be prepared to demonstrate why this is true for each position in their employ.

Moreover, this case demonstrates why proper documentation is critical. Here, the employee’s supervisor testified that work was not being completed because of the employee’s part-time schedule. However, the supervisor was unable to provide specifics. If the supervisor had properly documented this insufficiency, it is likely the supervisor could have articulated why a full-time schedule was needed.

As noted by the court, ADA cases require fact-intensive analyses. If necessary, employers should carefully consider all of the facts and circumstances based on knowledge and informed judgment. This may result in consulting experienced and knowledgeable outside consultants or counsel if necessary.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

August 14, 2018

By:  R. Eddie Wayland, TCA Legal Counsel

The federal Third Circuit Court of Appeals, which is based in Philadelphia and covers Pennsylvania, Delaware, New Jersey and the Virgin Islands, recently issued a decision finding that a former secretary’s sexual harassment claims should be presented to a jury for resolution. The decision is employee-friendly and will likely be relied upon by future plaintiffs.

Factual Background

The employee worked as a part-time secretary for the county department of Veterans Affairs. On Fridays, the employee worked in a secluded area with her supervisor. The employee alleged that shortly after she started her job in 2009, her supervisor began harassing her. The employee alleged that her supervisor attempted to kiss her on the lips, embrace her from behind, massage her shoulders, called her at home and asked personal questions, sent her sexually explicit emails, and also behaved unpredictably.

The supervisor reported to the chief county clerk. On two separate occasions, the chief county clerk became aware of the supervisor’s inappropriate behavior towards other women and orally reprimanded him. No follow-up on the oral reprimands occurred, and no notations or reports were placed in the supervisor’s personnel file. There was other evidence of the supervisor’s inappropriate conduct in the record including: attempting to kiss numerous co-workers (including the employee) under mistletoe during the holiday season, hugging another secretary, and even attempting to embrace the chief county clerk. The chief county clerk prevented the supervisor from embracing her and reportedly told him to “[g]et away from me.”

While the employer did maintain an anti-harassment policy, the employee did not utilize the policy to report the supervisor’s conduct. First, she testified that she feared reporting the conduct because the supervisor had warned her not to trust the chief county clerk or her superiors and frequently told her to appear to be busy when they were around or else they would terminate her position. The secretary testified that her young daughter had cancer and that the secretary relied on her job to pay her daughter’s medical expenses. Moreover, the secretary was aware of the past reports made against the supervisor and had observed that they were ineffective.

In April 2013, the employee revealed the harassment and the corresponding emotional toll it was taking on her to her physician. The employee’s physician encouraged her to document the situation via an email to the supervisor. The employee drafted the email and sent it to her supervisor. At the same time, the employee confided in her friend and co-worker concerning the harassment. The co-worker discussed the incident with yet another employee and the co-worker’s supervisor overheard the conversation. The co-worker’s supervisor alerted the chief county clerk to the situation.

The supervisor was interviewed by the chief county clerk the next day. The supervisor admitted to the alleged conduct, was immediately placed on paid administrative leave, and later terminated. The employee subsequently quit her job because: (1) she was uncomfortable in her role following her former-supervisor’s termination; (2) her workload increased; and (3) “because of inquiries from her new supervisor asking about what had transpired with [her former supervisor] and who else she had caused to be fired.”

The Trial Court’s Decision

The employee filed a lawsuit naming both the county and her former supervisor as defendants. The claims against the county were gender discrimination, sexual harassment through a hostile work environment, and quid pro quo sexual harassment under Title VII of the Civil Rights Act, as well as gender discrimination under the Pennsylvania Human Relations Act and negligent hiring and retention under Pennsylvania state law. The claims against the supervisor arose under state law and were for gender discrimination (this claim was later withdrawn), intentional infliction of emotional distress, and assault.

The trial court granted the county’s motion to dismiss the intentional infliction of emotional distress claim and later granted the county’s motion for summary judgment, which effectively resolved the entire case in the employer’s favor prior to any trial on the merits of the case.

The employee timely appealed the trial court’s decision. The decision on appeal, which is the focus of this article, dealt with the trial court’s finding that the employer satisfied both elements of the Faragher-Ellerth affirmative defense.

Applicable Law

The Faragher-Ellerth affirmative defense gets its name from companion cases decided by the United States Supreme Court in 1998. In these cases, the Supreme Court established standards for when an employee who was harassed in the workplace by a supervisor may impute liability to the employer. If, as in the present case, the employee suffered no tangible employment action (i.e. firing, demotion, etc.), the employer can avoid liability by showing that it (1) exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The Court’s Analysis and Decision

The appeals court began its analysis under the first element of the Faragher-Ellerth affirmative defense by noting that the county maintained a written anti-harassment policy which the employee was asked to read and sign on her first day of work. The appeals court, disagreeing with the trial court’s decision, found that the first element of the affirmative defense was not conclusively decided as a matter of law simply based on the anti-harassment policy’s existence and the county’s responses to the various allegations of harassment.

Instead, the appeals court questioned, “[k]nowing of his behavior, and knowing that [the employee] worked alone with [the supervisor] every Friday, should someone have ensured that she was not being victimized? Was his termination not so much a reflection of the policy’s effectiveness, but rather, did it evidence the County’s exasperation, much like the straw that broke the camel’s back?” The court continued, “[w]e do not answer these questions, but conclude that there exists enough of a dispute of material fact, and thus a jury should judge all of the facts as to whether the County ‘exercised reasonable care to prevent and correct promptly any sexually harassing behavior . . . .” Accordingly, the court ruled that whether the first element of the Faragher-Ellerth affirmative defense had been satisfied was a question for a jury to decide.

Turning to the second element of the affirmative defense, regarding the reasonableness of the employee’s failure to her report her supervisor’s behavior, the appeals court similarly found that question, too, should be decided by a jury. The court started by stating, “[a]lthough we have often found that a plaintiff’s outright failure to report persistent sexual harassment is unreasonable as a matter of law, particularly when the opportunity to make such complaints exists, we write to clarify that a mere failure to report one’s harassment is not per se unreasonable.” The court went on to note that “the reasonableness of a plaintiff’s actions is a paradigmatic question for the jury, in certain cases.”

The court accordingly ruled that if a plaintiff genuinely believes retaliation could result from reporting her harassment and if a jury could find the belief to be objectively reasonable, the trial court should allow the jury to determine if the defendant has proven the second Faragher-Ellerth affirmative defense. After reviewing the record, the court found that the employee “produced several pieces of evidence of her fear that sounding the alarm on her harasser would aggravate her work environment or result in her termination.” Accordingly, the appeals court vacated the trial court’s decision and put the case back on the path to a jury trial on the merits.

Takeaway

This case should make employers sit up and take notice. Here, the employer maintained an anti-harassment policy and terminated the supervisor when it learned of his ongoing harassing conduct. Moreover, the employer took this action without the employee making any report under the anti-harassment policy. And yet the employer still did not prevail on the Faragher-Ellerth affirmative defense at the summary judgment stage. Employers should be extremely careful when allegations of sexual harassment come to light, either through direct reporting, through observation, or otherwise. Employers should be proactive in making sure that any past harassing conduct has been corrected, and does not reoccur, including being diligent in monitoring their workplaces for such conduct.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

July 31, 2018

By: R. Eddie Wayland, TCA Legal Counsel

 The Fifth Circuit Court of Appeals, which is based in New Orleans and covers Louisiana, Texas, and Mississippi, issued a decision involving the Motor Carrier Act Exemption (MCA exemption) to the Fair Labor Standards Act (FLSA). The decision also features the SAFETEA-LU Technical Corrections Act’s (Corrections Act) “small vehicle exception” to the MCA exemption. Employers that rely on the MCA exemption when determining whether the FLSA is applicable to their employees should pay close attention to this case, especially if they are unfamiliar with the small vehicle exception.

Factual Background

The employer provides downhole cementing and pump down services for oil wells. The employees worked as cementers and used Ford F-350 vehicles for their jobs. The employees alleged that although they were permitted, and sometimes required, to work more than forty hours in a given week, they were not paid overtime for work done in excess of forty hours. The employees further alleged that the employer misclassified them as exempt from the FLSA’s overtime requirements (presumably under the MCA exemption, although this was not specified in the Complaint). The employees accordingly filed a class action claim under the FLSA alleging that the employer failed to adequately compensate them for overtime work.

Applicable Law

The FLSA requires employers to pay overtime compensation to employees working more than forty hours a week. There are, however, certain statutory exemptions to this requirement. One such exemption is the MCA exemption. The MCA exemption provides that employees subject to Secretary of Transportation standards are exempt from overtime compensation.

In June 2008, the Corrections Act went into effect. The Corrections Act designates a class of “covered employees” to which the MCA exemption does not apply. A “covered employee” under the Corrections Act exception (i.e., employees who do not qualify for the MCA exemption) is defined as any individual “employed by a motor carrier or motor private carrier” whose duties, in whole or in part, are defined as a “driver, driver’s helper, loader, or mechanic . . . affecting the safety of operation of motor vehicles . . . in interstate or foreign commerce . . . who performs duties on motor vehicles weighing 10,000 pounds or less.” This is sometimes referred to as the “small vehicle exception.”

(While not applicable to this case, note that employees performing duties on vehicles designed or used to transport: (1) more than eight passengers for compensation; (2) more than fifteen passengers not for compensation; or (3) material found by the Secretary of Transportation to be hazardous as defined by federal law are excluded from the Correction Act’s definition of “covered employee.”)

Court’s Analysis and Decision

The employer argued that the employees were not owed overtime because they were covered by the MCA exemption. The employees countered by the arguing the Corrections Act rendered the MCA inapplicable to them and their case.

An initial issue the court had to resolve was to determine which party had the burden of proving whether the vehicles in question weighed 10,000 pounds or less under the Corrections Act. The court noted that the employees had the burden of proving the FLSA violation, and the employer had the burden of showing the MCA exemption applied to the case. The court then decided that the employees should have the burden of proving the weight of the vehicles under the Corrections Act based on reasoning the court applied in previous decisions.

While the employer presented evidence that the Ford F-350 vehicles used by the employees each had a gross vehicle weight rating (GVWR) of 11,500 pounds, the employees did not offer evidence of the GVWR of the vehicles. Rather, the employees argued that instead of using GVWR to determine “weight” under the Corrections Act, the proper measure of weight was simply the actual, unloaded weight of the vehicles. The employees argued that if this measure of weight was used, the vehicles would fall under the Correction Act’s 10,000 pound threshold. The court disagreed and found that the GVWR was the proper measure of weight.

Further, the court reviewed the record in the case and determined that the employees had not presented any “legally cognizable evidence of GVWR.” Without any such evidence, the employees failed to carry their burden in showing the Corrections Act applied to render the MCA exemption to the FLSA inapplicable. As such, the MCA exemption applied. Accordingly, the court found that judgment in the case should enter for the employer.

Takeaway

This decision demonstrates the interplay between the FLSA, MCA exemption, and Correction Act’s small vehicle exception. The decision also decides which party to a lawsuit carries the burden under the small vehicle exception, and that a vehicle’s GVWR is used to determine a vehicle’s weight under the small vehicle exception. While this decision is only controlling law in the Fifth Circuit’s jurisdiction (i.e. federal lawsuits in Louisiana, Texas, and Mississippi), the decision provides a good basis of understanding for employers to which these various overlapping statutes may apply. Employers should contact experienced counsel with any questions, particularly with regard to the status of the law in other jurisdictions.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

July 17, 2018

By:  R. Eddie Wayland, TCA Legal Counsel

The Supreme Court of the United States recently issued a decision holding that the Securities and Exchange Commission (SEC) unconstitutionally appointed an Administrative Law Judge (ALJ). This decision has important implications in the employment context because numerous federal agencies, such as the National Labor Relations Board, Occupational Safety and Health Review Commission, Department of Transportation, National Transportation Safety Board, and Department of Labor, rely on the use of ALJs. Accordingly, the appointment procedures utilized by these agencies may be called into question by this decision.

Factual Background

The SEC accused an investment advisor of using a misleading slideshow presentation to deceive prospective clients. The SEC charged the investment advisor under the Investment Advisers Act (IAA), and assigned an ALJ to hear the case. The ALJ heard nine days of testimony and argument in the matter and then concluded the investment advisor had violated the IAA. The ALJ imposed sanctions against the investment advisor in the form of $300,000 in civil penalties, and a lifetime bar from the investment industry.

The investment advisor appealed the ALJ’s decision directly to the SEC, which regularly considers appeals from ALJ decisions and issues appropriate orders enforcing them. On appeal, the investment advisor argued that the ALJ’s decision was invalid because the ALJ was unconstitutionally appointed. The SEC rejected this argument. The investment advisor then appealed to the Court of Appeals for the D.C. Circuit. First, a three-judge panel of the D.C. Circuit rejected the investment advisor’s argument. Then, in a re-hearing before the full D.C. Circuit, that court split evenly among its 10 members. This “tie” resulted in the original panel decision being affirmed without a written opinion from the full court. The investment advisor then appealed to the U.S. Supreme Court.

Applicable Law

The Appointments Clause of the U.S. Constitution provides how “Officers of the United States” may be properly appointed. Only the President, a court of law, or a head of a department can appoint “Officers of the United States.” The purpose of the clause is to maintain clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones.

Court’s Analysis

The Court noted at the outset of its analysis that the sole question before it was whether the SEC’s ALJs are “Officers of the United States” or, instead, “simply employees of the Federal Government.” The Court also noted that it was undisputed that neither the President, a court of law, nor a head of department had appointed the SEC ALJ at issue. Rather, “SEC staff members gave him an ALJ slot.” Therefore, if the ALJ was an “Officer of the United States,” then his appointment would be unconstitutional.

The Court then looked to two of its previous decisions to determine the requirements for “Officers of the United States.” First, the “individual must occupy a ‘continuing’ position established by law to qualify as an officer.” Second, the individual must exercise “significant authority pursuant to the laws of the United States.”

Progressing in its analysis, the Court concluded that a third previous decision involving Special Trial Judges (STJs) of the U.S. Tax Court featured application of these requirements under very similar circumstances, and thus controlled the resolution of the instant case. In the previous decision, the Court ruled the STJs held a continuing office established by law because their service was ongoing rather than temporary or episodic. The Court concluded the STJs exercised significant authority because they “take testimony, conduct trials, rule on the admissibility of evidence, and have power to enforce compliance with discovery orders.”

The Court concluded that this previous decision directed the result of the investment advisor’s case. First, the ALJs hold a continuing office established by law. This point was undisputed among the parties. Second, the Court found that the ALJs exercised significant authority because, like the STJs, “[b]oth sets of officials have all the authority needed to ensure fair and orderly adversarial hearings—indeed, nearly all the tools of federal trial judges.” The Court observed that like the STJs, the ALJs take testimony, conduct trials, rule of the admissibility of evidence, and have power to enforce compliance with discovery orders, but whereas the STJs always had to have their opinions reviewed by regular Tax Court judges in major cases, here, the SEC can decline to review an ALJ’s decision, thus rendering it final. This greater amount of autonomy enjoyed by the ALJs confirmed they indeed exercise significant authority.

Accordingly, the Court held in the investment advisor’s favor and ruled that a different, properly appointed ALJ had to rehear the investment advisor’s case.

Takeaway

This decision is important because any federal agency appointing ALJs may be violating the U.S. Constitution’s Appointments Clause if they are appointing ALJs in a fashion similar to how the SEC was appointing its ALJs. Employers encounter federal agencies with ALJs frequently, including those listed at the beginning of this article. The decision also highlights the fact that creative or outside-the-box thinking can, at times, be rewarding when litigating before an agency. In this case, the investment advisor was able to secure a new hearing before a different ALJ based solely on an issue that was separate from the merits of his case, but fundamental to the structure of the federal government.

Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

July 3, 2018

By:  R. Eddie Wayland, TCA Legal Counsel
The Supreme Court of the United States has issued 2018’s most important case so far in the area of employment law. In the case, the Supreme Court ruled that the National Labor Relations Act (NLRA) does not give employees the absolute right to purse class action lawsuits. Thus, employers may enter into agreements with employees where the employees agree to waive the right to file suit and instead resolve disputes in arbitration. Employers can also require that such arbitration proceed on an individual basis, rather than on a class-wide basis.
Factual Background
The Supreme Court actually resolved three separate cases—all factually akin—via the same written decision. The basic facts of one of the cases are as follows. The employee enters into an employment agreement with the employer.
The employment agreement includes a provision requiring the arbitration of any disputes that arise between the employee and the employer. The agreement also specifies individualized arbitration.
Then, following the end of the employee’s employment, the employee brings a lawsuit against the employer in federal court. More specifically, the employee files a collective action lawsuit under the Fair Labor Standards Act (FLSA) claiming that the employer misclassified the employee’s position and failed to pay the employee overtime. The employer then moves to compel arbitration pursuant to the employment agreement.
Applicable Law
The Federal Arbitration Act (FAA) was enacted in 1925. The Supreme Court has previously found that the FAA establishes “a liberal federal policy favoring arbitration agreements.” Under the FAA, courts should respect and enforce agreements to arbitrate. Moreover, courts should respect and enforce the parties’ chosen arbitration procedures. As stated by the Supreme Court, the FAA requires courts “rigorously” to “enforce arbitration agreements according to their terms, including terms that specify with whom the parties choose to arbitrate their disputes and the rules under which that arbitration will be conducted.”
The FAA also contains what is known as a “savings clause.” The saving clause allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract.” In addition to the FAA, the NLRA is critical to this decision. Section 7 of the NLRA guarantees workers “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board and several appellate courts have held that class action waivers in arbitration agreements violate the NLRA.
The Court’s Analysis
The employees argued that the savings clause of the FAA renders the class and collective action waivers they signed in their employment agreements illegal because, as stated by the Supreme Court, according to the employees, “illegality under the NLRA is a ‘ground’ that ‘exists at law . . . for the revocation’ of their arbitration agreements, at least to the extent those agreements prohibit class or collective action proceedings.”
The Court rejected this argument, noting that the saving clause recognizes only defenses that apply to “any” contract and “offers no refuge for ‘defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.’” The Court went on to note that the FAA and NLRA do not conflict on the issue of arbitration. The Court stated that the NLRA does “not express approval or disapproval of arbitration” and further that “[i]t does not mention class or collective action procedures” and does not “even hint at a wish to displace the [FAA].” Accordingly, the Court held that the arbitration agreements at issue were enforceable.
Takeaway
This is a good decision for employers. Based on this decision, employers should feel more secure about incorporating and enforcing arbitration agreements with employees that include mandatory class action waivers. Employers should note, however, that traditional contract defenses, as well as state laws, may still impact the enforceability of these agreements. But given this decision, employers may want to reconsider their position on having arbitration agreements with their employees if they have not done so previously. Also, employers who have implemented arbitration agreements with their employees may want to review and revisit those agreements to ensure enforceability and to consider adding a class action waiver provision if one is not already included.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
June 4, 2018

By: R. Eddie Wayland, TCA Legal Counsel

A federal appeals court in California recently made an important decision involving the Equal Pay Act (EPA). Employers should pay careful attention to this case dealing with an often-overlooked, but critically important, federal statute.

Background

The female employee was hired by the employer. The employer maintained a policy where a new hire’s salary was calculated by taking the new hire’s prior salary and increasing it by 5%. After approximately three years working for the employer, the female employee discovered that male colleagues had been subsequently hired by the employer at higher starting salaries for the same position. The employee then sued the employer under the EPA.

Law

The EPA was enacted in 1963 to ensure equal pay for equal work regardless of sex. To state a claim under the EPA, a plaintiff must show that her employer has paid male and female employees different wages for substantially equal work. However, there are four exceptions to the EPA; the exceptions are for wage disparities arising under 1) a seniority system, 2) a merit system, 3) a system based on either quantity or quality of production, or 4) “a differential based on any other factor other than sex.”

Trial Court Ruling

The employer moved for a judgment prior to a trial in the matter. The employer argued that its policy of basing an employee’s starting salary on the employee’s prior salary fell under the fourth exception because it was “a differential based on [a] factor other than sex.” The trial court rejected this argument and wrote that the employer’s policy “necessarily and unavoidably conflicts with the EPA” because “a pay structure based exclusively on prior wages is so inherently fraught with the risk—indeed, here, the virtual certainty—that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand.” The employer appealed the decision.

Appeals Court Ruling

A three-judge panel ruled in the employer’s favor on appeal. The panel looked to a prior decision for guidance. In that decision, the employer policy in question considered prior salary along with other factors such as ability, education, and experience. The court there noted that, as a practical matter, the employer only considered prior salary. Accordingly, the three-judge panel in the instant case ruled in the employer’s favor on the basis of the prior decision.

The employee then requested that the full appeals court—some eleven members—consider the case. While a three-judge panel is constrained by the court’s prior rulings, the full appeals court can overrule its own prior decisions. The case was reheard, and the full appeals court agreed with the trial court’s opinion in the employee’s favor.

In its decision, the appeals court found that prior salary does not fit within the EPA’s “differential based on [a] factor other than sex” exception. The court found that while prior history “may bear a rough relationship to legitimate factors other than sex, such as training, education, ability, or experience … the relationship is attenuated.” As noted by the court, the use of prior salary to justify a wage disparity between male employees and female employees doing the same job “may well operate to perpetuate the wage disparities prohibited under the [EPA].” The court thus found in the employee’s favor.

Takeaway

Employers who use prior salary as the sole basis for determining a new hire’s starting salary should pay close attention to this case. While this case only controls federal law in California, Washington, Nevada, Arizona, Oregon, Alaska, Hawaii, Idaho, and Montana, several other federal appeals courts have issued similar decisions on this issue. Employers who believe they may have potential issues in this regard may want to consider reviewing the same with experienced employment counsel in a privileged context, including a possible audit of payroll practices. Such a process may help to determine whether potential wage discrepancies exist and, if so, whether they are justified by a permissible basis, as well as consider whether other possible appropriate proactive measures may be warranted.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

May 22, 2018

By: R. Eddie Wayland, TCA Legal Counsel

In a landmark decision, the Supreme Court of California recently adopted a new standard for determining whether workers are employees or independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and basic working conditions of California employees. This decision should be closely scrutinized by any business utilizing independent contractors that is subject to California wage and hour law.

Factual Background

This case involved a nationwide package and document delivery company that operated several business centers in California. Prior to 2004, the company considered its California drivers to be employees and thus compensated them in accordance with California’s wage and hour laws. In 2004, in an effort to generate economic savings, the company converted all of its California drivers to independent contractors. As independent contractors, the drivers were then required to provide their own vehicles and pay for their fuel, tolls, vehicle maintenance, vehicle liability insurance, taxes, and workers’ compensation insurance.

The company obtained the customers, set the rates to be charged to the customers, and negotiated the drivers’ pay on an individualized basis. The company assigned some drivers to a dedicated fleet or scheduled route, while others were characterized as “on-demand” drivers. The regular drivers were paid either a flat fee or a percentage of the delivery fee paid to the employer. On-demand drivers received a percentage of the customer fee on a “per delivery” basis or a flat fee basis per item.
While drivers were able to set their own schedules, they were required to notify the company of the days they intended to work. On-demand drivers were required to provide their own Nextel cell phone to maintain contact with the company. On-demand drivers were assigned deliveries by the company’s dispatchers. Drivers did not have to make all assigned deliveries but had to promptly notify the company before rejecting an assigned delivery. Failure to promptly notify the company of a rejected delivery rendered the drivers liable for any loss suffered by the company.

Drivers were also required to wear the company’s shirts and badges when making deliveries and were required to purchase those items from the company. Some of the company’s customers required the drivers to wear the company’s decals on the drivers’ trucks when making deliveries to that customer.

Subject to customer requirements regarding delivery times, drivers were free to choose the sequence in which they made their deliveries as long as all assigned deliveries were completed. Drivers had the ability to hire their own employees to make deliveries to the company’s customers, and when not making deliveries for the company, the drivers could make deliveries for other delivery companies. The company possessed the authority to terminate any driver without cause on three days’ notice.

The Lawsuit in the Trial Court

Two of the company’s delivery drivers sued the company on behalf of themselves and a class of allegedly similarly situated drivers. The drivers alleged that the company misclassified its delivery drivers as independent contractors rather than employees. In other words, the drivers claimed that even though the company referred to the drivers as independent contractors, it treated them like employees and should therefore be required to assume the fiscal and other responsibilities and burdens that an employer owes to its employees. The drivers brought five claims against the company: two counts of unfair and unlawful business practices in violation of the California Business and Professions Code, and three counts of California Labor Code violations based on the company’s failure to pay overtime compensation, to properly provide itemized wage statements, and to compensate the drivers for business expenses.

In 2011, the trial court issued an order certifying the class of plaintiffs. The class consisted only of individual drivers who had returned complete and timely questionnaires and who personally performed delivery services for the company but did not employ other drivers or perform delivery services for another delivery company or for the driver’s own delivery business. The proposed class consisted of some 184 drivers. As will be discussed further, this 2011 order was at issue before the Supreme Court of California.

In order for a class action to be maintained, the proposed class must satisfy the prerequisites of ascertainability, numerosity, typicality, commonality, and adequacy of class representatives and counsel. The trial court addressed these issues in the 2011 order and ultimately concluded that the prerequisites were satisfied. The commonality requirement involves whether common issues of law or fact predominate over a given class, thereby making a class action advantageous to the judicial process and to the litigants. In examining whether common issues of law or fact predominate, a court must consider the legal theory on which the plaintiffs’ claim is based and the relevant facts that bear on that legal theory.

In this case, the trial court noted that all of the plaintiffs’ causes of action rested on the contention that the company misclassified the drivers as independent contractors when they should have been classified as employees. The court found that “[c]ommon questions predominate the inquiry into whether an employment relationship exists between [the company] and the drivers.” The trial court observed that the parties disagreed about the proper legal standard that is applicable in determining whether a worker is an employee or an independent contractor for purposes of the plaintiffs’ claims. The California Supreme Court granted review of this case in order to determine that legal standard.

The California Supreme Court’s Ruling

On appeal, the California Supreme Court adopted a new test for determining whether an individual is an employee or an independent contractor. First and foremost, workers are presumed to be employees, and the hiring entity has the burden to establish that the worker in question is an independent contractor who was not intended to be included within California wage order coverage. To meet this burden, the hiring entity must “establish each of the three factors embodied in the ABC test—namely (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.” Failure to prove even one of these elements means that the worker will remain an employee rather than an independent contractor.

While the California Supreme Court found that the standard actually used by the trial court was too broad, it ultimately agreed with the result reached by the trial court in deciding that the proposed class of drivers should be certified. The case will now proceed in the trial court to ultimately determine whether the drivers were independent contractors or employees based on this new standard.

Takeaway

Companies subject to California wage and hour law must pay close attention to this case. As outlined above, the burden is on the hiring entity to establish that the worker in question is an independent contractor, and to establish all three factors embodied in the “ABC test” in order to do so. Companies utilizing independent contractors should closely scrutinize their operations against the backdrop of this new standard. Companies should consider the assistance of experienced employment counsel if questions arise.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

May 8, 2018

By: R. Eddie Wayland, TCA Legal Counsel

A federal court in Ohio recently found that an employee, who refused to consider non-opiate alternatives to treating his pain issues, did not cooperate in the interactive process mandated by the Americans with Disabilities Act (ADA) following his request for a reasonable accommodation. The court therefore concluded the employer did not violate the ADA when it subsequently discharged the employee.

Background

The employer manufactures labels and uses heavy machinery to do so. The employee worked for the employer for approximately seven years as a production manager. While the employee claimed he was fired from his job with the employer, the employer maintained that the employee abandoned his job.

A portion of the employee’s workday was spent using the heavy machinery, which was very dangerous. The employee himself admitted, “[i]f you’re not careful, those presses will kill you.” Given this danger, the employer’s employee handbook required all employees to notify management if they were taking nonprescription or prescription medication.

Prior to working for the employer, the employee suffered from back and neck pain. Starting the year before he was hired, up until the date of his termination, the employee took prescription morphine for his pain. The worker admitted that, at least on one occasion, he abused his prescription morphine at work. The employee never disclosed that he was taking morphine to his employer. Additionally, the employee admitted to taking non-prescribed Vicodin while at work on at least two occasions.

Approximately two weeks before the employee was terminated, a co-worker allegedly told the employee’s immediate supervisor that the employee had requested Vicodin from the co-worker a few weeks earlier. The supervisor consulted with the employer’s president. The president immediately removed the employee from the manufacturing floor and sent him for a drug test. The employee voluntarily took the drug test. The results came back positive for hydrocodone, the opiate found in Vicodin.

As a result, the employee was sent to the employer’s Employee Assistance Program (EAP). The EAP coordinator requested that the employee produce the following information from his physician: whether the employee could do his job given his medical condition, whether treatment of his medical condition limited his ability to work, a list of his current medications, and whether any of the medications could impact the employee’s ability to concentrate on the job. The employee was placed on leave pending receipt of the information from his physician.

In February, 2014, the employee’s pain management physician faxed a document to the EAP coordinator which stated: “This letter is regarding [the employee] working as production manager on MS Contin, MSIR, and Relafen. He is able to work full time without any restrictions.” (MS Contin and MSIR are forms of morphine.)

In response, the employer’s president asked the employee to consult with his doctor to determine if there were any alternative medications or treatments for his pain condition that did not include opiates. Although the employee attempted to call his physician, he was unable to speak with him. The employee then decided that he needed “to stay on [his] medication” and told the employer’s president that he “wouldn’t stop taking [his medication].” The employer’s president testified that he “tried to work with [the employee] and . . . was expecting some cooperation from him, but [the president] got zero in regards to checking with his doctor.” Accordingly, from the president’s perspective, the employee “chose drugs over his job.” The employee was then terminated.

The employee filed a lawsuit in 2016, which included a claim for disability discrimination under the ADA.

The Court’s Ruling

In analyzing the employee’s ADA claim, the court noted that the ADA only applies to “qualified” individuals, and that under the ADA, “[a] qualified individual is one ‘who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.’” The court also noted that “[a] disabled person is not qualified for an employment position . . . if he or she poses a ‘direct threat’ to the health or safety of others which cannot be eliminated by reasonable accommodation.” The court defined the term “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

The court found that the employer’s two medical inquiries, (1) requesting information from his treating physician and (2) asking whether his pain could be treated by non-opiate alternatives, were appropriate. The court also rejected the employee’s argument that the employer discriminated against him by terminating his employment without properly determining that he posed a “direct threat” while under the influence of morphine. The court found that this argument overlooked the employer’s “main point,” that the employee’s “employment ended not because [the employer] concluded he was a direct threat to himself or others, but because [the employee] impeded its ability to investigate the extent of his disability and determine whether his disabling pain required use of prescription morphine, or whether a non-opiate medication could reasonably accommodate his disability.”

The court found that because the employee impeded the employer’s ability to investigate, the employee refused to participate in the interactive process between employer and employee following the employee’s request for reasonable accommodation under the ADA. The court quoted a prior ruling, which held that an “employer need not take the employee’s word for it that the employee has an illness that may require special accommodation” and, “[i]nstead, the employer has the ability to confirm or disprove the employee’s statement.” The court thus ruled in the employer’s favor on this claim.

Takeaway

Today employers face a barrage of issues created by the ADA. Two such issues that are featured in this case—medical inquiries of employees and requests for reasonable accommodations—are among the most common. That the request for reasonable accommodation here involved “direct threat” concerns further complicated the case. The employer in this case was placed into a difficult position. On the one hand, the employer had to be mindful of the employee’s rights under the ADA. On the other hand, the employer had to consider its business operation and safety concerns raised by an employee operating under the influence of opiates.

As this case demonstrates, however, by thoughtfully and appropriately exercising its rights under the ADA, the employer was able to successfully navigate these potential pitfalls without incurring liability. The considerations involved in cases like these are nuanced and highly fact-sensitive. Employers attempting to navigate such waters should be sure of their understanding and implementation of their rights under the ADA. When in doubt, seeking the aid of experienced counsel or consultants can be valuable.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

April 24, 2018

By: R. Eddie Wayland, TCA Legal Counsel

A federal court based in New York found that a construction management company had to participate in a sexual harassment lawsuit brought by an ironworker against the company, the general contractor, and the subcontractor. The construction management company argued that it should be dismissed from the lawsuit because it was not the ironworker’s “employer” for purposes of Title VII of the Civil Rights Act, and because it took all reasonable steps it could to address the ironworker’s complaints. The court rejected both of these arguments.

Background

The ironworker was hired in 2016. While it is unclear from the court filings which company actually hired the ironworker, she was presumably hired by the subcontractor. The general contractor hired the subcontractor and the construction management company for a project located on Staten Island, New York. In the subcontracting agreement, all of the work done by the subcontractor’s employees was to “be performed pursuant to the instructions of” the general contractor’s “jobsite supervisor/representative including” the construction management company.

The ironworker alleged that a coworker began harassing her shortly after she started working at the jobsite. The ironworker alleged that the coworker made sexually explicit comments to her. The ironworker also alleged that after banging on the door of a porta-john (the door of which the ironworker had to physically brace herself against to hold closed because the lock was broken), the coworker stuck his cell phone through a vent on the porta-john and took pictures of the ironworker. The ironworker alleged that the coworker attempted to blackmail her with the pictures.

The ironworker reported her coworker for this misconduct. A meeting was allegedly called by the construction management company’s employee. During the meeting, the ironworker was promised a safe and secure bathroom facility and was told that her coworker would be terminated. Supervisors from the jobsite, as well as one of the construction management company’s senior superintendents, met with the ironworker’s coworker. The coworker was not terminated and continued to work at the jobsite.

Shortly thereafter, the ironworker was terminated, allegedly for performance reasons. The ironworker filed a lawsuit claiming sexual harassment and that she was discharged in retaliation for reporting her coworker’s harassment. The ironworker named the general contractor, the subcontractor, and the construction management company as defendants in her lawsuit.

Less than a month after the ironworker’s complaint was filed, the construction management company moved to dismiss the case. The company argued that even if everything alleged in the ironworker’s complaint was taken as true, the ironworker had no claim against the construction management company because it was not her “employer” and because the company had addressed the ironworker’s complaints as best it could.

The Court’s Ruling

The court noted at the outset of its analysis that the term “employer” includes “persons who are not employers in conventional terms, but who nevertheless control some aspect of an employee’s compensation or terms, conditions, or privileges of employment.” The court continued: “Persons or entities who exercise control over an employee are potentially liable as ‘joint employers.’” The court then set forth five factors to consider when analyzing whether a person or business is a joint employer.

These factors include whether the alleged joint employer (1) did the hiring and firing, (2) directly administered any disciplinary procedures, (3) maintained records of
hours, handled the payroll, or provided insurance, (4) directly supervised employees, and (5) participated in the collective bargaining process.

In applying the factors to the facts of the case before it, the court determined that the terms of the subcontractor agreement—as well as the construction management company’s involvement in meeting with the ironworker to discuss her complaints about her coworker—indicated that the construction management company was an employer of the ironworker. The construction management company had authority to supervise the ironworker and the company’s personnel actually called the meeting to discuss the ironworker’s complaints. Therefore, the court ruled that the construction management company was required to participate in the case and defend itself against the ironworker’s claims.

Takeaway

Employers must be mindful of joint employer liability. Plaintiff’s attorneys are often eager to include as many “employers” into a lawsuit as possible to improve the size and odds of any recovery. Employers should pay close attention in any situation where the employer is directing the performance of any individual not directly employed by the employer. In the trucking industry, this situation can arise when temporary workers are being utilized or where two commonly owned and managed entities share or supervise employees. Employers should take care to maintain separation and should consult with experienced counsel where questions arise.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

April 10, 2018

By: R. Eddie Wayland, TCA General Counsel

The United States District Court for the Eastern District of Pennsylvania recently considered whether an applicant denied employment based on the results of a pre-employment background check had standing to sue the employer on behalf of herself and similarly situated individuals for violations of the Fair Credit Reporting Act (FCRA).

Background

The applicant was provided a conditional offer of employment with the employer pending the result of a background check. The employer, as part of its procedure for conducting background checks on potential employees, contracted with a background check database company whose services monitored several relevant databases. The employer provided the background check database company with a scoring matrix to be used in grading the applicants based on the specific results of the background check.

After running a search on the applicant’s background, the database company uncovered a report from a previous employer which accused the applicant of theft. Due to this report, and the criteria set forth by the employer, the background check database company labeled the applicant as being ineligible for hire. Per the background check database company’ procedure, any employment candidate labeled ineligible was automatically mailed a “Pre-Adverse Action Notice” in an effort to comply with the FCRA. This notice stated that the applicant had five business days from the date of receipt of the notice to contest or explain the results of the background check.

Upon contact from the applicant, the employer had the ability to alter the ineligibility rating if warranted.

The applicant contacted the employer within five days of receiving the background check database company’ notice and supplied additional information regarding the incident on the background report. Subsequent to these conversations, and exactly five business days from the date the Pre-Adverse Action Notice was mailed, the background check database company mailed an Adverse Action Notice to the applicant stating that she had not been hired for the position.

The Applicant’s Class Action Complaint

The applicant brought a Class Action Complaint against the employer and the background check database company setting forth one count against the employer, on behalf of a putative class, for violation of 15 U.S.C. § 1681(b)(3) of the FCRA, which governs the adverse action procedure requirements, and four counts against the background check database company for violations of its duties as a credit reporting agency as set forth in the FCRA.

Shortly after filing the suit, the applicant settled her claims against the background check database company and provided the background check database company with a full release and discharge from any current or potential legal liability “including but not limited to, all claims resulting from or arising out of, or in any way connected to this litigation or its underlying subject matter.” After this settlement, the applicant amended her class action complaint naming the employer as the sole defendant. The amended complaint now alleged that the employer, through its agent the background check database company, violated the FCRA by not giving proper

Pre-Adverse Notice and by failing to provide a clear and conspicuous written disclosure, prior to obtaining and using any background reports, stating that the employer could obtain the applicant’s background report for employment purposes.

Defendant’s Motion to Dismiss and Motion for Summary Judgment

The employer sought to have the case dismissed, and argued: (1) the applicant did not have standing to challenge the employer’s technical violation of the Pre-Adverse Notice requirements as the applicant was able to substantively discuss her background report with the employer; and (2) the applicant did not have standing to sue the employer based on the behavior of the background check database company because the applicant had released the background check database company which also, in turn, released the employer. At approximately the same time, the applicant moved for class certification.

The Court’s Ruling

After reviewing the record, the Court found the employer’s arguments to be meritorious. Pursuant to Article III of the U.S. Constitution, every applicant must have “standing” in order for a federal court to have jurisdiction over the claim. To have standing, the applicant must show that the she suffered an actual, non-hypothetical, concrete injury; that there is a connection between the injury and the complained of conduct; and that a favorable decision would likely compensate for the injury.

Under this standard, the Court noted that while the employer did commit a technical violation of the FCRA by mailing the Adverse Action Notice before the expiration of the five days referenced in the Pre-Action Notice, the applicant did not suffer “concrete harm” as a result of this action. One of the purposes of the FCRA is to protect a consumer’s right to a reasonable opportunity to dispute or supplement a background report prior to an adverse action. The applicant was given such an opportunity to discuss the matter with the employer who in turn re-evaluated her application.

Having heard the applicant’s explanation, it was not a violation for the employer to make a final adverse employment decision before the five-day period expired. Therefore, the Court found that the applicant had not suffered a concrete harm to her rights under the FCRA. As to the employer’s second theory of defense, the Court found that, under Pennsylvania Law, since the applicant had released the employer’s agent, the background check database company, the applicant had in turn released the employer from vicarious liability due to the action of its agent.

When a named plaintiff is unable to establish the requisite Article III standing, dismissal of the class action is required. Since, as described above, the applicant did not have standing, the applicant’s Motion for Class Certification was also denied.

Takeaway

Discovery can be an effective tool to challenge standing in pre-adverse action claims brought under the FCRA. As can be seen in the current action, although the Defendant technically violated sections of the FCRA, discovery revealed that the Defendant had also engaged in an interactive process with the applicant and as a result, the applicant did not suffer any concrete injury within the meaning of the FCRA.

The FCRA can present difficult situations for an employer trying to comply with all of the statute’s procedural and timing requirements. When confronted with such potential problems, trucking industry employers should seek the assistance of someone knowledgeable with the FCRA’s requirements and potential pitfalls to provide guidance.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

March 27, 2018

By: R. Eddie Wayland, TCA General Counsel

This past summer, we discussed a decision by the Court of Appeals for the Seventh Circuit, which held that sexual orientation discrimination constitutes discrimination on the basis of a person’s sex for purposes of Title VII of the Civil Rights Act of 1964 (Title VII). Up till that decision, the general rule across the country was that sexual orientation discrimination was not protected by Title VII (although the Equal Employment Opportunity Commission has taken a contrary view).

In December, the United States Supreme Court declined to hear a case dealing with this issue. In that case, a security guard, who alleged she was harassed at work and forced from her job because she is a lesbian, sued her former employer. A divided Court of Appeals for the Eleventh Circuit found that Title VII’s prohibition against discrimination “because of sex” does not include discrimination based on sexual orientation.

This past month, the Court of Appeals for the Second Circuit joined the fray. After previously ruling that the Title VII does not cover sexual orientation discrimination, the Second Circuit revisited its decision and reached a contrary result.

Background

A gay skydiving instructor alleged he was fired from his job because of his sexual orientation, and filed a lawsuit against his former employer. The trial court ruled in the employer’s favor before any trial in the matter. The skydiving instructor appealed, and the Second Circuit appeals court agreed with the trial court’s decision. While the full Second Circuit consists of some twenty-two active and senior judges, a panel of only three judges heard and decided the case in the first instance (as is the common practice across the country).

Despite its initial decision by the three-judge panel, the Second Circuit agreed to the skydiving instructor’s request to have the full court reconsider the case.

Decision of the Full Court of Appeals

On reconsideration, the full Second Circuit held that sexual orientation discrimination constitutes a form of discrimination “because of sex” in violation of Title VII. In so ruling, the court explicitly overturned its prior decisions to the contrary.

In its decision, the court framed the issue before it as: “whether an employee’s sex is necessarily a motivating factor in discrimination based on sexual orientation.” In answering this question, the court found that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

While the court’s holding is straightforward, its written decision is not. The decision is 163 pages long and features several concurring and dissenting opinions by a number of judges.

Takeaway

While the majority of jurisdictions still hold that sexual orientation is not a protected classification under Title VII, this case changes the federal law on that issue in Connecticut, New York, and Vermont (the states within the Second Circuit’s jurisdiction). These states join Illinois, Indiana, and Wisconsin (the states within the Seventh Circuit’s jurisdiction). This case may be reviewed by the United States Supreme Court, so stayed tuned for future updates.

In the meantime, as previously advised, employers would be wise to carefully consider their position on how sexual orientation is treated in making employment decisions. Not only has this case found sexual orientation to be protected, but the EEOC also has taken the position that sexual orientation is a protected classification.

Further, numerous state laws treat sexual orientation as a protected classification. While other federal courts have stopped short of saying that sexual orientation discrimination is prohibited sex discrimination, as happened here, they have found discrimination on the basis of sex-stereotyping or other rationales.

Pending further clarification by the Supreme Court or Congress, the issue of whether sexual orientation in the context of the workplace is a protected criterion will continue to be fertile ground for litigation under federal law. Thoughtful consideration of a company’s policies and position on this issue is warranted and consistent application of such policy decisions, once finalized, is prudent. Experienced counsel well-versed in the area of discrimination law may provide useful guidance and assistance in this regard.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

March 13, 2018

By: R. Eddie Wayland, TCA Legal Counsel

Safety is a primary concern in the trucking industry. When a carrier discovers that one of its drivers may be unsafe, action is typically required. Knowingly allowing an unsafe driver to operate a vehicle can have catastrophic consequences for a carrier.

In this case, a third-party yard management service provider claimed that one of its drivers who worked as a yard jockey could not safely operate a tractor because of his Post Traumatic Stress Disorder (PTSD) and terminated the driver. This decision by the service provider employer resulted in a decision by the Commonwealth Court of Pennsylvania that requires the yard management service provider to pay the driver over $100,000 in damages and almost $11,000 more for costs incurred in pursuing his lawsuit against the company. This case warrants close attention from anyone employing truck drivers—especially motor carriers.

Background

The driver was hired in 2011. At that point, the driver had yet to be diagnosed with PTSD. First, the driver worked at a customer’s site as a yard jockey, moving trailers from a ready-line to the customer’s dock and back. This site required drivers to drive Ottawa tractors and trailers a short distance off-site to turn around. After approximately five months at this site, the driver requested transfer to a different customer’s site.

The driver was transferred in early 2012. At the new site, the driver strictly moved trailers with an Ottawa tractor from a ready-line to the customer’s dock and back within a fenced area. The driver performed well at both sites, and there were no safety concerns relating to him.

The third-party yard management service provider discussed cross-training the driver so that he could work at other sites. The driver stated that he could not work at a site that required him to “shuttle” product from one warehouse to another with an 18-wheeled tractor-trailer due to PTSD. The driver said he was not able to drive the tractor-trailers on public roads because of his PTSD. The driver’s PTSD appears to have stemmed from his experiences in Iraq, where he did some truck driving for a government contractor. The yard management service provider’s regional manager told the driver that his issue was not a problem and that the company would be able to work with him.

Less than a year later, the company changed its position and told the driver he would have to drive 18-wheeled tractor-trailers over public roads or be terminated. Despite explaining his situation to the company’s general counsel, the driver was nonetheless terminated. Following this conversation, but prior to the driver’s termination, the company’s general counsel expressed concern that if the driver did not feel safe driving on public roads because of his PTSD, then he might be unfit to drive anywhere—including in the customer’s enclosed yard.

The driver filed a complaint with the Pennsylvania Human Rights Commission (PHRC) alleging he had been discriminated against because of his PTSD and that this constituted disability discrimination under Pennsylvania state law. The PHRC agreed with the driver and awarded him $104,364.23 plus additional interest of 6% per annum and reimbursement of $10,880.00 for costs incurred pursuing his claim. The PHRC also ordered that the third-party yard management company offer to reinstate the driver as a yard jockey. The company appealed to the Commonwealth Court.

Court’s Decision

The court affirmed the decision of the PHRC. First, the court found that the driver’s PTSD substantially limited him in the major life activity of working because his inability to drive on public roads disqualified him from a “broad spectrum of trucking industry jobs.” It bears mention that while this analysis technically was undertaken under Pennsylvania state disability discrimination law, the court noted that courts in Pennsylvania typically construe the state law as co-extensive with federal disability discrimination law, i.e. the Americans with Disabilities Act as amended by the ADA Amendments Act of 2008.

The company argued, in part, that no accommodation was required because the driver had a Class A CDL and DOT medical card that permitted him to drive 18-wheelers without accommodation. The court rejected this argument and stated: the driver’s “mere possession of those items does not signify that he can drive an 18-wheeled tractor-trailer on a public roadway.” The court also highlighted the fact that the company’s safety concerns regarding the driver operating trucks inside the customer’s enclosed yard only arose upon the driver’s refusal to drive on the public roads, and that the driver had successfully been accommodated initially. The court also emphasized that the company did not undertake any research or study to determine if the driver’s condition created an actual safety risk. Accordingly, the court ruled in the driver’s favor.

Takeaway

On its face, the company’s position here might appear reasonable: if a driver states he cannot drive on public roads, there might be safety concerns with driving in enclosed yards. When faced with this concern, the carrier could have consulted with industry safety experts to better understand the risks involved. Additionally, the carrier could have attempted to gain a better understanding of the driver’s condition and what his actual limitations were. No such efforts appear to have been taken. All of this could have transpired in the context of an individualized assessment and consideration of possible reasonable accommodations, which also did not occur. There is no guarantee that these efforts would have avoided liability in this case, but these are strategies the carrier could have considered (and perhaps did consider).

Reasonable accommodation requests commonly involve complicated, fact-intensive considerations that sometimes place the carrier between the proverbial rock and a hard place. Carriers would be wise to engage in an individualized inquiry and assessment of possible reasonable accommodations when faced with a disability-related situation. Also, consulting with experienced counsel when considering such requests if any questions arise may also be a good idea.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

March 27, 2018

By: R. Eddie Wayland, TCA Legal Counsel

In recent articles, significant year-end decisions of the National Labor Relations Board (NLRB) were discussed. Specifically, one article concerned the NLRB’s return to the legal standard for the joint-employer analysis that was in place prior to the Browning-Ferris decision.

As discussed in that article, under the “new” legal standard, two or more entities will be deemed joint employers under the National Labor Relations Act (NLRA) only if there is proof that one entity has actually exercised control over essential employment terms of another entity’s employees and has done so directly and immediately in a manner that is not limited and routine.

In the other recent article, the NLRB’s decision changing the standard for determining whether an employer’s handbook violated Section 7 of the NLRA was covered. As noted, the NLRB put in place a new standard aimed at providing more of a balanced approach to determining whether a policy runs afoul of the NLRA. Two additional NLRB developments should be mentioned.

Recent Development #1: “Micro Units”

The first recent development involves so-called “micro units.” During the Obama Administration, the NLRB ruled that employers challenging “micro units” (i.e. a small group of employees that unionizes, but does not represent a majority of the employer’s total workforce) must demonstrate that workers excluded from a proposed unit shared an “overwhelming” community of interest with the petitioned-for group. This past December, the NLRB abandoned that standard and returned to the “traditional” community-of-interest standard.

Recent Development #2: “Quickie Election Rule”

The second NLRB development involves the “quickie election rule.” Under that Obama-Era rule, the union election campaign timeframe was shortened, thereby leading to “quickie” elections. This shortened timeframe was problematic for employers for several reasons, including less time to inform employees of the detriments of union representation, and less time to train supervisors on how to handle union activity. This past December, the NLRB announced that it is seeking public comment on the underlying regulations that compose the quickie election rule. Accordingly, employers can expect to see a change in that rule at some point in the future.

Other Recent Developments

Beyond recent decisions from the NLRB, other developments have occurred as well. On November 17, 2017, Peter B. Robb was sworn in as General Counsel for the National Labor Relations Board. In his role as General Counsel, Mr. Robb is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.

On December 1, 2017, Mr. Robb issued Memorandum GC 18-02. This memorandum instructs NLRB regional directors on which types of charges to submit to Mr. Robb’s office for advice and rescinds policy memoranda issued by the former General Counsel. This is an indication that a number of the more controversial decisions issued during the prior administration will be receiving further review.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

February 12, 2018

By: R. Eddie Wayland, TCA Legal Counsel

Last month, the Chicago-based United States Court of Appeals for the Seventh Circuit affirmed a federal trial court’s decision which held that an employer did not violate the Americans with Disabilities Act (ADA) when it required an employee to undergo mental health examinations.

Background

The employee worked for a state department of transportation as an Office Administrator. The employee’s co-workers complained about her rude and aggressive behavior. The department put her on paid administrative leave and required her to submit to a fitness-for-duty examination.

An occupational-medicine specialist examined the employee. The specialist concluded the employee could perform the essential functions of her job without posing a threat to herself or others, but noted that she “displayed some hypomania” and “could be bipolar.” Thus, the specialist recommended reevaluation in 45 days. Following the reevaluation, the specialist deferred making any fitness-for-duty recommendation until the employee could be seen by a mental health professional. The employee was referred to a psychologist and the employee met with this doctor. No report was ever furnished by this psychologist, however, because the employee retained the psychologist for treatment.

Although she still lacked a fitness-for-duty certification, the employee was returned to work in light of a union grievance. The employee was transferred to a different division in the department upon her return to work. The employee’s disruptive behavior continued, however. The employee kept a detailed log of her new coworkers’ conversations and other actions, sent numerous emails to her new supervisor, and generally behaved in a manner that purportedly caused her coworkers to fear her.

As a result of this conduct, the employee was again placed on paid administrative leave. In addition, the department’s fitness-for-duty coordinator retained a psychiatrist to evaluate the employee’s mental health. Although the psychiatrist noted that the employee might suffer from a personality disorder, the psychiatrist nonetheless concluded the employee was fit for duty.

The employee returned to work and complaints about her conduct persisted. The employee was reprimanded for being argumentative and for speaking to her coworkers in an unprofessional tone. The department’s fitness-for-duty coordinator requested that the psychiatrist reexamine the employee, and the employee was once again placed on paid administrative leave. The psychiatrist declared the employee unfit for duty because of her “paranoid thinking and the highly disruptive behavior which results from her paranoia.”

The employee then filed a lawsuit claiming that the department violated the ADA by forcing her to attend unnecessary medical examinations. The employee eventually limited her claim to be based solely on the two examinations by the psychiatrist, thus not contesting the legality of the other examinations conducted. The trial court ruled in the department’s favor prior to any trial in the case, and reasoned that the only conclusion a jury reasonably could draw is that the department’s “actions were based on legitimate concerns and its employees reasonably responded to the situation which they encountered.” The employee then filed an appeal.

Appeals Court Decision

The appeals court noted at the outset of its analysis that “[e]mployers bear the ‘quite high’ burden of establishing that compelled medical examinations are consistent with business necessity.” The court noted that, according to the Equal Employment Opportunity Commission, “a medical examination is job related and consistent with business necessity if the employer has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition.” The court then looked to its own past decisions and stated that, as it had previously ruled, “[p]reventing employees from endangering their coworkers is a business necessity ….”

The court concluded that a reasonable jury would have to find that the two examinations by the psychiatrist were job related and consistent with business necessity because they were based on concerns involving the employee’s interactions with her co-workers. The first examination came after the employee was transferred to a different division, yet still generated co-worker complaints. Similarly, the second examination occurred after the employee was reprimanded for interacting with her coworkers unprofessionally.

In conjunction with both examinations, the psychiatrist reviewed actual complaints from the employee’s coworkers. The court concluded that both examinations were based on the employer’s reasonable concern for the safety of its employees and thus did not violate the ADA. Accordingly, the appeals court affirmed the trial court’s decision in the department’s favor.

Takeaway

This case provides employers with an example of compelled employee medical examinations that were found to be permissible under the ADA. Employers should be mindful, however, of the court’s statement that employers must satisfy a “quite high” burden in order to demonstrate that compelled medical examinations are consistent with business necessity. Forcing an employee to undergo a medical examination is a serious action that, while sometimes necessary and lawful, can carry significant consequences if done prematurely, without a firm factual basis, or otherwise improperly. Employers should consult with experienced counsel if any questions arise when considering such a serious action.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

January 30, 2018

By: R. Eddie Wayland, TCA Legal Counsel

A current “hot” topic in employment discrimination law is whether sexual orientation discrimination is protected by Title VII. The Equal Employment Opportunity Commission (EEOC) has taken the position that sexual orientation discrimination falls under the ambit of Title VII’s protection against discrimination based on sex. There is emerging disagreement among federal appeals courts across the country on this issue. As previously covered by this column, the Chicago-based United States Court of Appeals for the Seventh Circuit issued a decision earlier this year agreeing with the EEOC’s position on sexual orientation discrimination.

In contrast, just prior to the Seventh Circuit’s decision, the Atlanta-based Eleventh Circuit issued a decision holding that sexual orientation discrimination is not protected by Title VII. Unlike the Seventh Circuit’s decision, the Eleventh Circuit’s decision was presented to the United States Supreme Court but that Court declined to hear the case. To further complicate matters, there is a decision on the way from the New York City-based Second Circuit that will likely address this issue as well.

Amid this backdrop, a federal district court based in Pennsylvania (and thus under the jurisdiction of the Philadelphia-based Third Circuit) entered a judgment in a former employee’s favor for $55,500 against his former employer for sexual orientation discrimination. That decision is the subject of this article.

Facts of the Case

The employee worked for the employer as a telemarketer for less than one month in the summer of 2013. During his time working for the employer, the male employee was “subjected to sex-based harassment in the form of anti-gay slurs and comments directed at him by his supervisor … including being repeatedly referred to as ‘fa****’ and having to endure offensive questioning about his sex life and relationships.” The employee reported this conduct to the company’s owner but the owner refused to take any action and instead stated that the employee’s supervisor “was just doing his job.” The harassment continued following the employee’s report to the company’s owner and the employee therefore decided to quit his job. The EEOC filed a lawsuit on the employee’s behalf in federal court.

Federal Lawsuit

Early on in the case, the employer filed a motion to dismiss the lawsuit. A motion to dismiss argues that even if everything the plaintiff says happened, in fact, did happen, the defendant should still prevail based on the applicable law. In this case, the employer argued, in part, that even if the employee was discriminated against as alleged, the employer should still prevail because sexual orientation discrimination is not protected by Title VII. Despite Third Circuit case law cited by the employer that appears to clearly indicate sexual orientation discrimination is not protected by Title VII, the court found that “the singular question” presented by the case was, “but for the [employee’s] sex, would he have been subjected to this discrimination or harassment.” The court found that “[t]he answer, based on these allegations, is no.” Accordingly, the court denied the employer’s motion to dismiss.

In an unusual turn of events, the employer’s attorney then withdrew from the case and indicated that the employer did not intend to hire another attorney to defend it in the matter. Thus, the court entered a “default judgment” against the employer and then set out to determine what damages the employer owed its former employee. First, the court awarded the former employer $5,500.43 in back pay. Next, the court found that the former employee was entitled to compensatory damages in the amount of $50,000, which is the statutory maximum. The court found the employee was so entitled because he had shown he suffered significant emotional distress including depression, anxiety, social isolation, changes to sleeping patterns, and significant weight gain.

Further, the court found that the employer corporation, “acting through an alter ego or proxy of the corporation, tolerated and ratified the Title VII violation in this case, affirmatively allowing a manager to create and perpetuate a sexually hostile working environment in the face of its obligation to prevent and correct such an environment.” Thus, the court found that an award of punitive damages in the amount of $75,000 would be appropriate in the case. However, the court did not impose this punitive damages award because it noted that “by operation of the statutory damages cap the aggregate amount awarded for compensatory damages for emotional distress and punitive damages combined cannot exceed $50,000.”

Takeaway

This case is notable because the EEOC prevailed on a claim for sexual orientation discrimination despite Third Circuit cases holding sexual orientation discrimination is not protected by Title VII. Beyond the protections provided by Title VII (as recognized in some jurisdictions), employers must be mindful that sexual orientation discrimination is prohibited by state and local laws in many instances throughout the country. As always, employers should be mindful of all employment laws to which they are subject.

Finally, this case serves as a clear example of what not to do when confronted with a complaint of harassment. Here, the employee reported his supervisor’s harassment to the owner of the company. Instead of taking action, the owner stated that the supervisor was “just doing his job.” As noted by the court in this case, this response is not an acceptable one in today’s workplace. Employers should treat all complaints of harassment seriously and should immediately take steps to investigate the complaints and do what is necessary to promptly correct the situation if warranted.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

January 23, 2018

By: R. Eddie Wayland, TCA Legal Counsel

This past month, the National Labor Relations Board (NLRB) voted in a 3-2 decision to change a component of the test it uses to determine whether an employer’s policies in the workplace violate federal labor law. The decision is one of several recent actions reversing or revising rulings from the Obama era that affect employers, as Republican appointees now hold a majority on the NLRB for the first time since the George W. Bush administration.

The NLRB applied this new rule to a dispute between an aerospace company and a union that represents many of its engineer employees. Ultimately, the NLRB reversed the decision of an administrative law judge, who had followed the prior Obama-era precedent and found that the employer’s policy restricting the use of cameras in the workplace violated the National Labor Relations Act (NLRA).

Background

Section 7 of the NLRA protects certain kinds of union activity and “other concerted activity for mutual aid and protection.” If a union or group of employees believes that an employer’s workplace policies infringe on these protected activities, it can challenge them by bringing an administrative action before the NLRB. The NLRB, which is tasked with enforcing the NLRA, has the power to review these challenges and determine whether the employer’s policies violate federal law.

The NLRB had previously used a two-step approach when evaluating the legality of employers’ workplace rules under Section 7. First, if the policy at issue explicitly restricts activity protected by Section 7, the NLRB will strike it down as unlawful. Second, if the policy does not explicitly restrict Section 7 activity, a claimant may still prevail by showing one of three things: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule is being applied to restrict the exercise of Section 7 rights.

Changing the Standard

This case concerns the first of the above three factors. After thirteen years of struggling with inconsistent application, the NLRB concluded that the “reasonably construe” standard was “too simplistic” and yet “at the same time . . . too difficult to apply.” The NLRB noted that the standard had been used in the past to strike down innocuous employer policies advising employees to “work harmoniously” or conduct themselves in a “positive and professional manner.” In other cases, rules were struck down simply because they were too ambiguous. The NLRB found that “employees are disadvantaged when they are denied general guidance regarding what standards of conduct are required and what type of treatment they can reasonably expect from coworkers.” The NLRB also observed that the standard did not provide enough room to differentiate between different industries and workplace settings.

To replace the “reasonably construe” standard, the NLRB created a balancing test, in which a workplace policy is to be evaluated based on (1) “the nature and extent of potential impact on NLRA rights” and (2) “legitimate justifications associated with the rule.” This test effectively weighs the strength of two competing interests against each other. The NLRB explained that, under this standard, some rules may be upheld even if they infringe on Section 7 activity if the justifications for the rule are sufficiently compelling. Conversely, other rules may be struck down if the justifications do not outweigh the restrictions on NLRA-protected conduct. Between these two extremes, the NLRB anticipated that some close cases will “warrant individualized scrutiny.”

Using this new standard, the NLRB evaluated the aerospace company’s policy prohibiting certain “camera-enabled” devices on company property, including smartphones. First, the NLRB observed that the company had numerous, weighty justifications for the policy, including protecting proprietary information, performing its required security-related duties as a federal contractor, and preventing a terrorist attack. The NLRB then found that any adverse impact by the “no-camera” rule on protected Section 7 rights is “comparatively slight” when weighed against these “substantial and important justifications.” Accordingly, the NLRB reversed the decision of the administrative law judge and found that the policy did not violate the NLRA.

Takeaway

This case highlights the importance of administrative agencies, both as policymaking bodies and as adjudicators, in the modern legal landscape. The NLRB is empowered by Congress to make rules that employers must follow, if the employer is subject to the NLRA. While these rules carry the binding force of law, they are also more easily subject to change—as an agency may interpret and enforce a statute differently depending on which party controls the White House. Because Republicans recently took control of the NLRB, we have seen several significant changes in recent months and we can probably expect to see more changes in the coming months to policies and procedures instituted during the Obama administration.

Additionally, administrative agencies play an important “quasi-judicial” role, adjudicating particular disputes like the one in this case. In many instances, employees and other plaintiffs are required to exhaust their remedies before an agency in order to bring suit in court, and the agency’s decision can have lasting ramifications on later litigation. Retention of knowledgeable counsel early in the lifespan of legal issues or disputes involving the NLRA and NLRB is critical in helping to ensure that an employer’s rights are fully protected and vindicated, both at the agency level and in court.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

January 2, 2018