Posts Tagged ‘Employment Law’« Older Entries
March 7th, 2014
in Expert Guest Blog Entries |
The Third Circuit Court of Appeals in Louisiana Forestry Association Inc., et al v. Oates, et al affirmed the Department of Labor’s ability to set wages for foreign guest workers. The ruling allows the Department of Labor (“DOL”) to regulate the minimum wage a U.S. employer can offer a foreign worker as part of the H-2B visa program. This program allows U.S. employers to recruit and employ non-skilled, non-agricultural foreign workers to fill positions that cannot be filled by American workers.
Under the current setup, an employer must receive a temporary labor certification from the DOL, which verifies that that no qualified American workers will take the job in question and that American workers will not be adversely affected by the employment of foreign workers. As part of this determination, the DOL will calculate a prevailing wage for the area of intended employment. Once this certification is issued, the employer must then file an application for an H-2B visa with the Department of Homeland Security (“DHS”), who has the ultimate authority to either deny or grant the visa petition. The rule governing the prevailing wage calculation, the 2011 Wage Rule, was at the heart of this litigation.
The 2011 Wage Rule was challenged by a group of associations representing employers who recruited workers under the H-2B visa program. The group’s arguments rested primarily on the contention that the DHS unlawfully sub-delegated its authority to the DOL as it related to the H-2B program. The group challenged the DOL’s authority to issue a rule regulating the calculation of minimum wage, as well as the rule’s compliance with both the Administrative Procedure Act and the Immigration and Nationality Act. Their arguments were rejected by the District Court for the Eastern District of Pennsylvania, and they subsequently appealed.
The Third Circuit held that, because the DHS conditioned its own granting of an H-2B visa on the DOL’s grant of a temporary labor certification, the wage rule in question was therefore issued pursuant to this “conditioning.” Essentially, the DOL has the power to issue rules as they relate to the grant of the temporary labor certification, even though the ultimate determination of an H-2B visa still rests with the DHS. Therefore, there was no unlawful sub-delegation, and the court declined to address any further authority issues.
Employers who hire H-2B employees will have to continue complying with the wage requirements established by the DOL during the H-2B process, and that could mean future increases in wages for the guest workers. The ruling ensures that U.S. workers have equal opportunity to apply for these jobs, that employers who do not hire H-2B guest workers but rely on U.S. workforce will not be under-bid, and that H-2B guest workers who come to the United States to work in what are often very physically demanding jobs, are not exploited.
Under Ohio Workers’ Compensation law, an employee who voluntarily abandons his or her employment for reasons not related to the industrial injury cannot receive temporary total disability compensation. Although being fired is generally considered an involuntary separation from employment, when the discharge arises from the employee’s decision to engage in conduct that he or she knows will result in termination, it may be considered a voluntary abandonment. Employment discharge is a voluntary abandonment only when the discharge arises from a violation of a written work rule that (1) clearly defined the prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3) was known or should have been known to the employee. State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 403, 650 N.E.2d 469 (1995).
In State ex rel. Robinson v. Indus. Comm., Slip Opinion No. 2014-Ohio-546, decided February 20, 2014, the Ohio Supreme Court re-affirmed the three-part Louisiana-Pacific test used to determine whether an employment discharge constitutes a voluntary abandonment. The Appellant in Robinson, Shelby Robinson, had been employed as a nurse with the employer. When hired, she was given a written job description that set forth her job duties and responsibilities. She also received a copy of the employee handbook.
During her employment, Ms. Robinson was disciplined on several occasions. On January 18 and February 29, 2008, she was written up for violating work rules. On the February discipline form, Ms. Robinson acknowledged that she had been warned that any future violations would result in her termination.
On April 10, 2008, Ms. Robinson was injured at work. Her workers’ compensation claim was allowed for lumbar sprain, herniated disc L3-4, and herniated disc with free fragment at L5-S1 with right radiculopathy.
On April 15, 2008, the employer determined that Ms. Robinson failed to communicate a patient’s dietary order change and failed to check another patient’s feeding tube that was infusing faster than ordered by the physician. The following day, the director of nursing prepared the necessary paperwork to terminate Ms. Robinson.
Ms. Robinson was not scheduled to work on April 16 or 17, 2008. Her supervisor called her on each of those days and each time left a telephone message asking Ms. Robinson to call back. Ms. Robinson returned the calls on April 18, but refused her supervisor’s request for a personal meeting. On April 30, 2008, the employer sent Ms. Robinson a certified letter informing her that she had been terminated for cause effective April 16, 2008.
On April 21, 2008, after Ms. Robinson had talked with her supervisor, she visited a medical clinic. At this visit, the treating physician certified that Ms. Robinson was temporarily totally disabled from all employment beginning on the date of her injury, April 10, 2008. Ms. Robinson’s subsequent request for temporary total disability compensation was denied by the Industrial Commission upon a finding that Ms. Robinson had voluntarily abandoned her employment.
On appeal to the Ohio Supreme Court, Ms. Robinson argued that the employer did not satisfy the Louisiana-Pacific test because it did not identify a written work rule that clearly defined the prohibited conduct for which Ms. Robinson was terminated. The Court disagreed. The Court found that Ms. Robinson’s receipt of the company handbook and her job description, and Ms. Robinson’s acknowledgement on the February 29, 2008 discipline form that another violation of a workplace rule would result in termination, sufficiently informed Ms. Robinson that her actions of failing to communicate a patient’s dietary order change and failing to attend to a patient’s feeding tube would result in termination. Thus, the Court held that the Louisiana-Pacific test had been satisfied and that Ms. Robinson’s termination constituted a voluntary abandonment that rendered her ineligible for temporary total disability compensation.
The Court’s re-affirmance of the Louisiana-Pacific voluntary abandonment test in Robinson should impress upon employers the crucial necessity of having written workplace rules and policies that clearly define prohibited conduct that constitutes a dischargeable offense, and the necessity of making employees aware of those rules and policies.
Employment Law – the latest on Utah’s Supreme Court, OSHA’s final rule for FSMA whistleblower claims and more.
Ex-ABN Amro Lawyer Sues for Race Bias Over ‘Black Sheep’ Remarks by Kit Chellel Published on Bloomberg
ABN Amro Group NV’s former top lawyer in the U.K. sued the Dutch lender for race discrimination over her treatment by an executive who allegedly said “let’s talk about all things black” and claimed he couldn’t see her in a photograph… [ Read More ]
Utah Supreme Court “Repudiates” the Federal Multi-Employer Worksite Doctrine by Martin Banks Published on jdsupra
In an unapologetic rejection of a decades-old legal fiction hatched by the federal Occupational Safety and Health Administration (“OSHA”) and embraced by Utah Division of Occupational Safety and Health (“UOSH”), on January 31, 2014, the Utah Supreme Court repudiated the multi-employer worksite doctrine. Hughes General Contractors v. Utah Labor Commission, 2014 UT 3… [ Read More ]
OSHA Issues Interim Final Rule for FSMA Whistleblower Claims by Sarah Bouchard, Lauren Marzullo Published on jdsupra
The new rule contains important guidance regarding several aspects of the Food Safety Modernization Act’s whistleblower provision… [ Read More ]
Live Industry News
Join ACI’s Employment Law Professionals Group
For the complete list of all Employment & Benefits upcoming events: Click Here
To download past Employment & Benefits conference materials: Click Here
Waitresses’ Assignment to Areas with Lower Tip Potential Is Sufficiently Adverse to Support Discrimination and Retaliation Claims
Expert Guest Article by Emily Wilcheck
The United States Court of Appeals for the Seventh Circuit recently revived discrimination and retaliation claims asserted by two African-American cocktail waitresses under Title VII of the 1964 Civil Rights Act in Alexander v. Casino Queen, Inc., 7th Cir. Case No. 12-3696, 2014 WL 57947. The United States District Court for the Southern District of Illinois has dismissed such claims on the basis that the plaintiffs failed to show an “adverse action” necessary for a Title VII claim. The Seventh Circuit reversed that determination, finding that the lost tip potential alleged to have been suffered by the plaintiffs was sufficient to constitute an adverse action to support the discrimination and retaliation claims.
In Alexander, the plaintiffs were paid $7 to $8 an hour in salary, totaling approximately $60 per day. They also earned $40 to $160 per day in tips depending on their floor assignment. As such, tips compromised approximately 40% to 73% of the waitresses’ total compensation. Due to their seniority, the plaintiff waitresses were allowed to bid on assignments to areas of the casino known to generate higher tips. The plaintiffs alleged, however, that their supervisor would frequently reassign them to less lucrative areas, while Caucasian waitresses (often with less seniority) were reassigned to cover the more desirable areas. The plaintiffs alleged that these assignments occurred up to twice a week and cost them $50 per day.
To be actionable, an employment action must be a significant change in employment status (i.e. demotion or termination) or must cause a significant change in benefits. Here, the Seventh Circuit concluded that the floor reassignments constituted an adverse employment action sufficient to sustain the plaintiffs’ discrimination and retaliation claims because of the relative importance that tips had for these cocktail waitresses under their compensation structure. The Court reasoned as follows:
“Here, tips compromise anywhere from 40% to 73% of plaintiffs’ compensation. It is true that patrons pay these tips, not the employer; thus, the causal connection is not immediate. Nonetheless, Casino Queen’s alleged ‘decision caused a significant change in benefits’ through a clear causal relationship.”
The Seventh Circuit further rejected the lower court’s characterization of plaintiffs’ claims as speculative, finding instead that the plaintiffs were able to quantity the loss of tips based on their first-hand experience working at the Casino for 15 and 18 years respectively. While the plaintiffs’ losses were admittedly estimates, the Court concluded that such estimates were based on the valid grounds given the plaintiffs’ extensive experience. Accordingly, the Court concluded that the plaintiffs asserted sufficient evidence of an adverse action to get to the jury on their discrimination and retaliation claims.
Expert Guest Entry by Marcus Pringle
The Sixth Circuit Court of Appeals in Maurice Knox v. Skanska USA Building, Inc., 6th Cir Nos. 12-5967; 12-6236 (Dec 10, 2013), held that a defendant can be liable under the Joint-Employer Doctrine in a Title VII case.
In Knox, a general contractor, Skanska USA Building (“Skanska”), subcontracted with C-1, Inc. (“C-1”). C-1 went on to hire several hoist operators, including Maurice Knox, to work at a Memphis, Tennessee, construction site. While employed at the site, Knox was subjected to repeated acts of discrimination. He was called a “monkey”, “n—-r”, and other racial slurs. Racially charged graffiti was sprayed around the worksite. At one point, the contents of a porta-potty were thrown on him. Knox repeatedly complained to his supervisor, but was told that his complaints would need to be made directly to Skanska. Knox eventually left the worksite. The Equal Employment Opportunity Commission then sued Skanska under Title VII, alleging that Skanska subjected Knox to a hostile work environment and then retaliated against him for complaining about the harassment. The EEOC and Knox, assuming the Joint-Employer Doctrine applied, moved for partial summary judgment on the grounds that Skanska was the operators’ joint-employer and thus liable under Title VII. Skanska cross-moved for summary judgment under the same assumption. The district court denied the EEOC’s and Knox’s motions and granted Skanska’s motion.
In reviewing the case, the Sixth Circuit noted that it has previously assumed, in dicta, that a defendant can be liable under Title VII pursuant to the Joint-Employer Doctrine. The Court also went on to note that other circuits, notably the Third, Ninth, and Eleventh Circuits, have all applied the Doctrine to determine if an entity is liable under Title VII. Therefore, although neither party briefed the applicability, the Court firmly applied the Joint-Employer Doctrine to Title VII cases. In doing so, the Court found that Skanska exercised sufficient control over Knox to be considered a joint-employer, and reversed the district court’s judgment.
The Court’s decision in Knox is an important one for employers, as it provides a steadfast precedent for the imposition of the Joint-Employer Doctrine in Title VII cases, making it one more potential pitfall for employers to avoid.
Employment Law – the latest on Bright Petroleum’s violation, Kentucky Friend Chicke’s EEOC Religious Discrimination Lawsuit and more.
Kentucky Fried Chicken Franchise Pays $40,000 to Settle EEOC Religious Discrimination Lawsuit by U.S. Equal Employment Opportunity Commission (EEOC) Published on jdsupra.com
Scottish Food Systems, Inc. and Laurinburg KFC Take Home, Inc. will pay $40,000 and furnish other relief to resolve a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. Scottish Food Systems and Laurinburg KFC Take Home are based in Laurinburg, N.C. and jointly operate a chain of Kentucky Fried Chicken restaurants in North Carolina… [ Read More ]
More IRS Guidance on Cafeteria Plan, FSA, DCAP and HSA Administration Post-Windsor by Ann Fievet Published on jdsupra.com
n Notice 2014-1, the IRS has provided additional guidance for cafeteria plans (including health and dependent care flexible spending accounts) and Health Savings Accounts on compliance with the changes to treatment of same-sex married couples following the Supreme Court’s Windsor decision… [ Read More ]
Bright Petroleum Inc. Sued by EEOC for Retaliation by U.S. Equal Employment Opportunity Commission (EEOC) Published on jdsupra.com
Bright Petroleum Inc. d/b/a The Bright Market violated federal law by retaliating against a manager who filed and refused to drop a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC), the agency charged in a lawsuit it filed yesterday. The Bright Market is a food market and gas station located in Lawrenceburg, Ind… [ Read More ]
Live Industry News
Join ACI’s Employment Law Professionals Group
For the complete list of all Employment and Benefits upcoming events: Click Here
To download past Employment and Benefits conference materials: Click Here
A recent decision of the Sixth Circuit shows the importance of maintaining accurate, updated job descriptions for employees.In Henschel v. Clare County Road Commission, 6th Cir. No. 13-1528 (Dec. 13, 2013), the plaintiff was working as an excavator operator for a county road commission when he lost his leg in a motorcycle accident. When the plaintiff was not allowed to return to work, he filed suit alleging that the county discriminated against him because of his disability in violation of the Americans with Disabilities Act (“ADA”). The district court granted summary judgment in favor of the county, finding that hauling the excavator to the work site was an essential function of the position, and that the plaintiff was unable to do so because he could not drive a manual transmission semi-truck. The district court also held that reassigning the plaintiff to a different position was not a reasonable accommodation.
On appeal, the Sixth Circuit reversed the district court’s ruling that hauling the excavator was an essential function the plaintiff’s position. The key to the court’s ruling was that the county’s job description for the excavator operator position did not include hauling the excavator. Rather, this duty was listed on the job description for a different position (truck driver). The court also relied on testimony suggesting that hauling the excavator did not take much of the plaintiff’s time and other employees could have hauled the excavator without issue. However, the Sixth Circuit affirmed the district court’s ruling that reassigning the plaintiff to a different position was not a reasonable accommodation. The court noted that transferring the employee would have required the employee to violate the terms of his union’s collective bargaining agreement with the county or required the county to recreate a new position for the plaintiff. These scenarios were not “reasonable accommodations” under the ADA as a matter of law.
The takeaway for this case is that it is important for employers to keep accurate job descriptions for their employees. The descriptions should clearly and concisely state each of the employee’s responsibilities. It doesn’t need to read like War and Peace, but the job description should not leave any ambiguity regarding the employees’ essential functions. Further, revisit the description periodically and revise them if necessary. Doing so will be valuable in defending future ADA claims by employees.
Employment Law – the latest on EEOC annual performance, the Equal Employment Act and more.
Ownership of Business-Related Social Media Accounts by Anelia V. Delcheva and Aaron Rubin Published on jdsupra.com
Social media platforms have become an increasingly important means for companies to build and manage their brands and to interact with their customers, in many cases eclipsing companies’ traditional “.com” websites. Social media providers typically make their platforms available to users without charge, but companies nevertheless invest significant time and other resources to create and maintain their presences on those providers’ platforms. [ Read More ]
What Is The “Equal Employment for All Act?” by Richard B. Cohen Published on employmentdiscrimination.foxrothschild.com
We previously wrote about laws which would bar employers from requiring job applicants to disclose their credit history. We asked on May 12, 2013 “Is bad credit an accurate predictor of employee trustworthiness or reliability? Or is it discriminatory?” [ Read More ]
EEOC Annual Performance Report: Number Of Charges Filed Drops by Richard B. Cohen Published on employmentdiscrimination.foxrothschild.com
In its annual end-of-the-fiscal-year Performance Report, the EEOC has reported that it received 93,727 private sector discrimination charges of discrimination – down from the almost 100,000 reported last year. [ Read More ]
Live Industry News
Join ACI’s Employment Law Professionals Group
For a complete list of all Employment & Benefits upcoming events: Click Here
To download past Employment & Benefits conference materials: Click Here
Complimentary Presentation from ACI’s last Employment Practices Liability Insurance Conference
To download all presentations from this conference Click Here.