Showing 11 posts from December 2014.

Eighth Circuit: Custodian Failed to Establish Constructive Discharge Following Wife's Public Comments

A school custodian's hours and work assignments were changed six days after his wife spoke about eliminating the superintendent's position at a school board meeting about budgetary issues. The custodian's reassignment happened four days after the school district eliminated two part-time custodial positions that previously handled the work. The custodian resigned effective on the date his schedule was to change. He claimed that his working conditions were "uniquely intolerable," in part because his new assignment required outdoor work and he was severely allergic to bee stings, although his doctor never recommended excusing the custodian from performing any outdoor duties. More ›

Justice Department Extends Title VII Protection to Transgender Government Employees

In a surprising reversal, on December 18, 2014, Attorney General Eric Holder announced that the United States Department of Justice ("DOJ") will now interpret Title VII of the Civil Rights Act of 1964 ("Title VII") as extending to protect discrimination claims based on gender identity, including transgender status. Although this is a noteworthy change of position by the Department, the Employment Litigation Section of the DOJ enforces Title VII against state and local governments only, and private employers, therefore,will not be affected by this expansion.   More ›

ALJ Finds Employer's Pizza Party, Cash and Gift Card Bonuses Interfered with Union Election

SBM Management Services, Inc. provides custodial services for certain commercial facilities. After the company took over the custodial contract at a particular facility, it had regular employee meetings on Fridays. At the meeting six days before a union election, SBM provided pizza for employees and certain employees were given bonus checks or gift cards, neither of which were common or regular occurrences. The election was conducted and only eight votes were cast in favor of the union, which then filed objections to SBM's conduct as allegedly affecting the results of the election.  The matter proceeded to an unfair labor practice proceeding to determine whether SBM violated section 8(a)(1) of the National Labor Relations Act such that the results of the election should be set aside. More ›

Seventh Circuit Finds no ADA Liability for Employer not Involved in Decisionmaking

Joyce Whitaker began working for Milwaukee County as a corrections officer in 2001. In 2005, she sustained a work-related back injury and subsequently was diagnosed with several related medical conditions. As a result, her physician imposed permanent work restrictions and limitations in a number of basic tasks, including sitting, standing and walking. After receiving the restrictions, the County transferred Whitaker to a new position to accommodate her disability. More ›

NLRB Reverses Course, Finds that Employees have Right to use Employers’ Email for Union Organizing

In a decision made public on December 12, the National Labor Relations Board have ruled that employees have a presumptive right to use employers’ email systems on nonworking time for union organizing and other purposes that are protected by the National Labor Relations Act. In other words, if an employer provides its employees with access to a company email system, the employer must then allow employees to use that email system to discuss terms and conditions of employment and to organize. The Board, overruling its own 2007 Register Guard decision, found that it could no longer “[close its] eyes to the importance of electronic means of communication to employees’ exercise of their rights under the Act.” “[E]mail has become such a significant conduit for employees’ communications with one another,” the Board found “that it is effectively a new ‘natural gathering place’.”  More ›

U.S. Supreme Court Denies Employees' Security Screening Compensation Claims

In a decision impacting businesses across the country, the United States Supreme Court has ruled that time spent by warehouse employees waiting to leave work through a security screening checkpoint is not compensable. The employees were working at a retail warehouse for a temporary staffing services company, Integrity Staffing Solutions, Inc., and filed a class action lawsuit alleging that they should be compensated for the time they were required to go through an anti-theft security checkpoint after their shift ended. The employees alleged that the waiting "postliminary" activity time was up to twenty five minutes and involved removing belts, keys and phones as well as passing through a metal detector. More ›

Eighth Circuit Holds that Supervisor's Bizarre Conduct does not Constitute Discrimination

In Rickard v. Swedish Match North America, Inc., the Eighth Circuit held that a supervisor's allegedly inappropriate behavior did not rise to the level of actionable discrimination based on age and sex. The case reminds us that an employment discrimination plaintiff must do more than simply allege offensive conduct. The alleged actions must be sufficiently serious as to affect the "terms, conditions or privileges" of employment. More ›

Legitimate Business Reasons Support Termination, Despite Employee's Recent Complaints of Discrimination

Employers often feel forced to walk on eggshells around employees who have made informal or formal complaints of discrimination, and often go so far as excusing otherwise inappropriate conduct for fear of a retaliation claim if any adverse action is taken. A recent case out of the Ninth Circuit provides some hope for employers in this regard. More ›

Employer's "Super Policy" Against Harassment Requires Employer to Protect Employee Beyond that Which is Required by Law

A Costco employee suffered from Tourette's syndrome and made complaints to management about the way his supervisors and others were treating him. He later filed charges with the Connecticut Human Rights Organization as well as suit in federal district court, claiming that he was subjected to a hostile work environment and retaliation in violation of the Americans with Disabilities Act and corresponding state statutes. He also claimed breach of contract and promissory estoppel.  More ›

California Employers Beware: cell Phones Present Another area for Class Action Potential

In August 2014, the California State Court of Appeals (2nd Circuit, Division 2) decided in Cochran v. Schawan's Home Service that employers were responsible for reimbursing employees for the business use of personal cell phones. Most cell phone users have unlimited minute plans so the question before the court was whether reimbursement was warranted even if the employee did not incur an extra expense. The answer: reimbursement is always required. The California Supreme Court has denied a petition to review this case so this holding stands. Employers with employees in the state of California should be mindful of this decision and take steps to implement policies which comply with the law (e.g., provide company cell phones, provide for reimbursement of actual cell phone usage for business-related calls, or provide a flat amount of reimbursement per month per employee).

Hinshaw attorneys are available to assist employers implement and enforce such policies.