I. EMPLOYEE POLICIES

Handling Change In The Workplace. Changes are not always easy — either on the employer or employees. However, change is often necessary and can help to turn around a troubled company. Here are a couple of tips we've learned that can help make for a smoother and hopefully, lawsuit free, transition. One common change is when a company decides a supervisor or manager really is not getting the job done and needs to be replaced. Typically the manager has become a little lazy and has been working on "automatic pilot" and letting company rules and policies slide. This often includes not wanting to "make waves" and over-looking poor work habits of lower level employees, failure to discipline when needed and a tendency to rubber stamp all evaluations as at least good. Once the company decides it has to clean house and replace the manager, the next step should be to inform employees that changes are coming. Remind employees of the rules and policies and let them know regardless of how it was done in the past, policies are going to be followed. Additionally, employees need to be reminded they are not living in Lake Wobegon "where the women are strong, the men are good-looking and all the children are above average." In other words, evaluations are going to be more realistic and employees should expect to have to work for the excellent rating that may have just been given away under old management. Inevitably there will be employees who do not follow the policies, who fight you tooth and nail as you attempt to tighten up your procedures and who persist in believing they are entitled to a continuing free ride. This is precisely the case one of our clients faced not too long ago; and when the company made the decision to terminate such an employee after several warnings, he filed a charge with the EEOC. We responded and the EEOC dismissed the case, but the employee was determined to cause as much trouble as possible for the company, including using false documents and lying under oath in the course of pursing his lawsuit. We were able to prevail on summary judgment, but the employee still was not finished. He appealed to the Fifth Circuit, but our summary judgment decision was upheld. Congratulations to Linda Evans for her win. So, if you are facing similar changes, give us a call for additional tips on making it as smooth a transition as possible.

II. FLSA

It's The Donning Of A New Day. In a unanimous opinion, the Supreme Court held that the Fair Labor Standards Act (FLSA) requires that employees be paid wages for the time they spend walking to their work stations from the place where they put on required protective clothing. Employees also must be paid for the whole day, including time spent waiting to take off the clothing, and the day ends when they take off the protective clothing. However, there is no requirement that employees be paid for time spent waiting to put on the first piece of protective clothing.

In a decision that combined two previously separate suits, the plaintiffs were hourly wage employees at a meat processing facility in Washington and at a poultry processing plant in Maine. Workers at both plants were required to wear specialized sanitary and safety equipment such as goggles, gloves, liquid-repelling sleeves, and mesh metal garments when in the production areas. Neither company paid the workers for their pre-shift donning and doffing rituals. The Washington employees were paid from the time the first piece of meat passed onto the production line until the day's last piece of meat was processed. The Maine employees were paid from the time they "clocked in" after putting on their equipment until the time they "clocked out" before removing their equipment.

The Supreme Court's ruling, however, will alter these practices and require employers to begin compensating their employees the moment they begin donning their safety equipment up until the time they finish removing that equipment.

III. ADA

EEOC Approves "Estimated Return Dates." TEST — Presume for a moment that you have an employee who requests a medical leave to receive treatment for cancer. Upon her departure, she tells you she should return to work in approximately eight to ten weeks. However, she is unable to provide a definite date she will return to work. Does the ADA require employers to make an accommodation for her approximate return date?

Under established case law, employers are not required to grant an indefinite leave. Most courts agree that leave is a reasonable accommodation only when it enables a worker to return to the job, which indefinite leave does not accomplish. According to new EEOC guidelines, however, employers are required to allow for approximate return dates. Moreover, a number of courts have agreed with the EEOC's new position. The reasoning is simply that a reasonable estimate of a return date, even if provided in a range of dates, is very different from an indefinite period. Thus, granting leave in which the employee is only able to give you a range of dates for her return will likely be required as an accommodation by most, if not all, courts in the near future.

The Cure Lost The Claim. The store manager of a discount store was repeatedly demeaned, often yelled at, and even threatened by her district manager. Finally the store manager sought help from a psychiatrist and was diagnosed with major depression attributable to "a demanding, abusive and deteriorating relationship with her immediate supervisor." The store manager then took a medical leave of absence but at the end of the 12-week leave, her psychiatrist recommended that she stay off work until her treatment for depression was completed and the employee complied with the recommendation of her psychiatrist. The employer advised the employee she had used all leave time and that she was being terminated as a "voluntary quit." Not surprisingly, soon thereafter the employee sued. However, her depression may have deepened because the Rhode Island Supreme Court concluded that, while professionally diagnosed depression is a mental impairment, the plaintiff failed to establish she was disabled because she conceded that she could perform in her position as store manager if she was not required to report to the same district manager. The court observed that a person is not disabled even if a personality conflict created the impairment so long as the employee could still perform the job under a different supervisor. Further, the store manager was not a "qualified" individual with a disability because, according to her own psychiatrist, she could resume work as long as she did not seek reemployment with the same employer." Thus, there was no reasonable accommodation the employer could make which would allow her to return to work. All is not good for the employer however, because the Court concluded that her claim of hostile environment sexual harassment should proceed to trial.

Employee Fired Because He Wasn't Sleeping On The Job. Recently, a head custodian filed a lawsuit against his former employer alleging that his employment had been terminated because of his disability, narcolepsy.

According to the facts of the case, the employer reprimanded the employee on numerous occasions during his probationary period for falling asleep on the job. However, the employee brought in a doctor's note diagnosing the employee with narcolepsy, but assuring the employer that the employee could perform the essential functions of his job (we guess staying awake during a shift was not an essential function) so the employer allowed him to continue on with full-time employment. Over the next 12 months, the employee compiled a disciplinary record consisting of 19 offenses, none of which involved falling asleep at work. Finally, after the employee failed to respond to an electrical outlet (he was awake at the time) that had sparks flying from it, the employer terminated his employment for incompetence. In his response to the employer's motion for summary judgment, the employee's attorney argued that the employer compiled the disciplinary record because of the employee's narcolepsy and that most of the offenses were minor. However, the employer countered that it was fine with the employee sleeping on the job (note they hired him for full-time employment after disciplining him for sleeping on the job), it was his performance while he was awake that it had a problem with. The court agreed, holding that the employer had a legitimate reason for the termination, aside from the narcolepsy. This case, however, begs the question, if the employee were sleeping during the electrical incident, would he have been allowed to continue working? Moreover, if you have a job that does not require the employee to remain awake during his shift, you may consider eliminating the position and saving the money.

IV. COBRA

Say What You Mean. Do you know whether your COBRA plan documents provide a cut-off date for ex-employees to elect coverage? Most employers know they must allow a former employee at least 60 days to elect continued medical coverage under COBRA. However, most employers do not know that COBRA does not provide a maximum number of days in which an employee can elect coverage. Consequently, employers must state a maximum election period in its notification documentation, or risk having employees elect coverage well after the 60-day period. In fact, the Fifth Circuit recently ruled that when plan documents are silent about the maximum election period, an employee is free to elect coverage at any time within the COBRA coverage period. This means that employees are free to elect coverage months after the qualifying event (e.g., termination or discontinuation of coverage). This decision simply reiterates that employers must remain vigilant about how they communicate with their employees. If the employer's documentation had simply stated that the employee was required to elect coverage within 60 days, there would have been no issue.

V. TITLE VII

Once, Twice, Three Times With The Ladies. Two women employees of a prison complained that they had been discriminated against in violation of the California equivalent to Title VII in that they had been subjected to a hostile environment created by the warden of the facility engaging in affairs with three other female employees of the prison. The three female employees received promotions and favored treatment by the warden at the expense of other women employees and one of the warden's paramours retaliated against one of the women for having complained about the relationship between her and the warden. The warden conceded that he "could not control" his paramour because of the sexual relationship they had. The women con-tended that the open sexual affairs in which the warden engaged with three different female employees created an atmosphere that implied a woman employee must engage in a sexual affair with the warden in order to receive promotions or training for new positions. Most courts have concluded that the affording of favored treatment to an employee with whom the supervisor is engaged in an affair does not violate Title VII because the favored treatment is based upon the relationship, not sex, and male employees and female employees are equally adversely affected by the favored treatment afforded the paramour. However, the California Supreme Court concluded that evidence of three concurrent affairs is enough to overcome summary judgment because, based upon the number of affairs, the paramours taking adverse action against other female employees who complained about the favored treatment received by the paramours, and the widespread knowledge of the multiple affairs created a question of fact as to whether a hostile environment existed for women employees at the prison. The lesson learned is that in California, supervisors must restrict their affairs to one at a time or risk being perceived as having created a hostile environment for the employees with whom the supervisor does not engage in an affair.

Surprise—It's Sexual Harassment! Three female employees complained about their supervisor's behavior. The conduct included shouting, foul language, gestures and invading employees' personal space — not surprising that employees would be upset about such behavior. However, there were no sexual overtures, lewd comments, references to women in gender specific terms or gender-specific requirements imposed on female employees. The three female employees filed charges of sexual harassment and hostile environment with the EEOC. Surprise number one was that the EEOC could find this behavior to come under Title VII's prohibitions against sexual harassment. When the case went to the district court, however, it seems common sense prevailed with the court stating in order for the employees to make such a claim the behavior had to be either of a sexual nature or motivated by sexual animus. But, there was another surprise lurking on the horizon in the form of the Ninth Circuit (you knew it had to be the Ninth Circuit!). Surprise number two was the Ninth Circuit ruled the lower court got it wrong and held non-gender specific conduct can violate Title VII. The court believed that the main question was whether the supervisor's treatment of women differed sufficiently in quality and quantity from his treatment of men and went on to state that evidence of differences in subjective effects is also relevant. In other words, an employee's reaction to the supervisor's conduct can play a major part in determining if there was sexual harassment.

VI. FMLA

Who's Ya Daddy? The FMLA allows qualified employees who work for an employer covered by the FMLA (those with at least 50 employees in a 75- mile radius) to take an unpaid leave of absence for up to 12 weeks a year to care for an immediate family member with a serious health condition. "Immediate family member" typically has been defined as spouse, parent or child. However, the definition of "parent" may be expanded to include a person who has "stood in the place of parents." One employer recently discovered it's not always clear-cut as to who's your daddy — or at least who is a parent. In this case an employee was given a leave to visit her family in Jamaica. Once there she learned her grandmother had a small stroke and alternate living conditions had to be found for the grandmother. The employee then requested additional time off, but the employer did not grant it. However, because the employer had been well versed in the FMLA, it realized there might be an FMLA issue if the grandmother qualified as a parent. The employer questioned the employee repeatedly about the relationship of the employee with the grandmother and received various vague responses such as "I grew up with my grandmother" and "she played a major role in my upbringing." The employer determined the grandmother was not her "parent" and terminated the employee for being AWOL. Once the employee filed the lawsuit she provided additional information, including "my grandmother provided emotional and financial support." The court has determined there was a triable issue as to whether information provided to the employer showed the grandmother stood in the place of a parent. The outrageous part of this decision is that the court is allowing the additional information, which was produced in discovery AFTER the lawsuit was filed, to be used to help determine whether the employer violated the FMLA by denying the leave. Watch out for expanding family ties!

VII. ARBITRATION

Not Your Run-Of-The-Mill FMLA Claim. Should chronic diarrhea qualify as a "serious" medical condition under the FMLA? Well, one arbitrator certainly thinks so.

In a recent arbitration case, the grievant had a two- year history of taking excessive sick time and consistently arriving tardy for work. Around the time the company administered its second step in the disciplinary procedures, the grievant told the human resources manager that he was suffering from chronic diarrhea and that was the reason he was frequently running late. The HR manager then told him that if he would submit the proper FMLA paperwork, and it was approved, he would remove the second-step discipline. When the grievant's doctor was presented with the paperwork, however, she claimed she was unable to elaborate on the illness and would need to study it further before completion. The grievant's doctor then referred him to a specialist so that the paperwork could be completed. Curiously, the grievant did not keep the appointment with the specialist due to a conflict with a family vacation (presumably he was going to Mexico to actually drink the water). After several more late arrivals, not to mention finding out that the grievant broke his appointment to go on vacation, the company terminated his employment for violation of its absenteeism policy.

The arbitrator ruled that the company did not have just cause to terminate the employee because his chronic diarrhea qualified as a serious illness under the FMLA. In so finding, the arbitrator negated the company's second and third step discipline. Amazingly, the arbitrator made this ruling despite the fact there was no medical evidence that the grievant actually suffered from any diagnosed condition. Moreover, the arbitrator noted that the grievant sat through the lengthy arbitration without needing a break. The only medical proof of the condition was the grievant's testimony that he saw a doctor about the condition. Consequently, the arbitrator's reasoning doesn't pass the smell test.

VIII. NLRA

Subtraction by Addition. One of the more effective ways to lose a union is to add employees to an existing unit. In a recent National Labor Relations Board decision, an employer involved in the distribution and repair of forklifts bought a competitor engaged in the same type of business. At the time of purchase, the newly acquired facility had 14 non-union employees performing the same work as the purchaser/ employer. The employer decided to merge the two operations and brought the 14 unrepresented employees into one of its divisions that had 14 represented employees. After the consolidation, the company withdrew recognition of the existing union claiming it no longer had majority status of the new unit. The union then filed an unfair labor practice charge, claiming that it represented a substantial percentage of the unit following the merger and that there was otherwise a substantial continuity in the unit's operations. The employer argued that the union could no longer be the unit's representative because it no longer represented a majority of the workers in the unit. The NLRB agreed with the employer, holding that when an employer accretes (a term-of-art meaning add or merge) a group of employees with an existing unit, the union must represent a majority of the workers in the new unit, not just a substantial percentage. Consequently, the NLRB did not find the employer's withdrawal of recognition to be an unfair labor practice.

Knee-Jerk Reaction, Not HIPpa. The employer maintained an absentee point system in which points would be awarded if the employee failed to provide a satisfactory medical release for absences. Its union suspected the company was unevenly applying the medical release provision of its policy and orally requested that it provide it with all doctor releases provided to the company by employees during the previous six months. The company orally denied the request, stating that the union must provide it with a release from each employee before the company would provide any doctor slip provided by the employee. The union responded by making a written request for the same information but stated that any information on the slips "directly stating diagnosis, treatment or medication given should have said information blocked out." The company denied the request out of hand and the union filed a refusal to bargain charge with the NLRB. The NLRB first emphasized that the duty to bargain includes the duty to provide information to a union for the purpose of evaluating a pending grievance. The NLRB then determined that the employer had violated Sections 8(a) (1) and (5) of the National Labor Relations Act by refusing to provide the requested information because the union had limited its request to preserve the confidentiality of the individual's medical condition or treatment. The NLRB further limited the information which the company was required to provide by allowing the company to redact the name of the doctor and the doctor's speciality from the doctor's slips. The appellate court noted that the case arose because of the failure of the union and the company to discuss the matter but enforced the order of the NLRB, even though the NLRB had in effect concluded that the request for information was broader than what the company was required to provide. The HIPPA privacy provisions were not involved in this case but probably would not have altered the result as doctor slips provided by employees to return to work would most likely be deemed personnel records as opposed to "Protected Health Information (PHI)" under HIPPA.

IX. STATE COURT

Employer Liable For Employee's Drug Induced Shooting Spree. A recent Texas Court of Appeals' decision has sent shock waves through the Texas business community because the court held the employer liable for an employee's off-duty conduct. The case involved a crew member for a company engaged in the business of repairing railroad tracks throughout the country. The employee's crew traveled with a machine for about three months at a time, working 13 to 14 hour days, up to six or seven days per week. In order to keep up with such a demanding schedule, the employee, several other members of his crew and two leadmen would use "crystal meth." As the crew member's drug addiction worsened, he began engaging in violent confrontations with his wife (who traveled with him) and the wives of other crew members. On many of these occasions, other crew members would break up the incidents and report them to the leadmen. The leadmen also attempted to intervene between the husband and wife during some of their violent altercations.

One night the crew member finished a 12-hour shift and returned to the hotel where he was staying and began arguing with his wife. Eventually he took her outside and threatened her with a gun. A police officer happened to see the incident and subsequently approached the crew member. The crew member then shot the police officer, severely injuring him. The officer brought suit against the employer, claiming that it owed him a duty to control the behavior of its employees. The employer countered, stating it was not under a duty to control the off-duty conduct of its employees. The Court of Appeals disagreed, holding that the employer had a duty to control the off-duty conduct once the leadmen acted affirmatively to prevent the crew member from causing unreasonable risk of harm to others while he was off duty. The Court of Appeals (El Paso court, of course) found the employer owed such a duty because it (by the actions of its leadmen) had acted affirmatively in the past to prevent harm to others.

Unfortunately, the Court of Appeals seems to indicate that employers may have a greater duty towards third parties once they attempt to control the off-duty conduct of its employees. Following this reasoning to its logical extension, employers are better off ignoring employees' off-duty conduct, even if they know third parties could be in danger. Otherwise, they could be liable for failing to prevent any future harm that could come to third parties. The Supreme Court of Texas has granted certiorari, so employers should keep their fingers crossed that this decision is overruled. Stay tuned!

Union Organizational Activity Since Our Last Newsletter. Nine petitions for certification have been filed by unions since July 1. No petitions for decertification have been filed by management. Seven elections have been held, three of which have been won by management.

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The Quarterly Update is a newsletter providing recent items of interest to our clients in the various areas of employment law. While the Update is to alert you to potential new problem areas or changes in the law, it is not to be considered legal advice or a legal opinion. Such can only be given after careful consideration of the facts unique to any situation. The contents of this newsletter are copyrighted and may not be used without express written consent of Neel & Hooper, P.C.

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