Archive for March, 2011

Ohio Governor Poised to Sign Bill Limiting Public Employee Bargaining Rights

Just as protest movements seem to pop up across the Middle East every day, efforts to restrict public employee bargaining rights are making their way across the Midwest – the U.S. Midwest, that is.

The Ohio legislature on Wednesday put the finishing touches on a bill to restrict the right of public employees to bargain collectively to improve their situation. This bill goes even further than Wisconsin’s, which had an exception for police officers and firefighters.

The Ohio law has no such exceptions. The Republican-led House approved the bill on a 53-44 vote and the state Senate followed suit, passing the measure 17 to 16. If just one Republican senator had defected, the outcome might have been very different.

Gov. John Kasich (R), who lobbied for the bill, will surely sign it. He says it is needed to help close his state’s budget deficit.

Interestingly, far fewer citizens in Ohio protested this new law than did citizens in Wisconsin their new law.

We’ll see if this contagion spreads throughout other Midwestern states.

Bayer Is Latest Large Employer to Face Gender Discrimination Class Action

Major corporations may need to establish a support group so they can commiserate over being named defendants in gender discrimination lawsuits.

There’s been a spate of gender discrimination class action lawsuits filed in recent months. Yesterday, I reported on the oral argument in Wal Mart. The outcome there will most certainly have a ripple effect on other pending lawsuits. It may even cause some of them to collapse or shed some plaintiffs. But for now, at least, the class action remains a potent weapon for plaintiffs’ attorneys seeking large awards on behalf of alleged victims of discrimination from the same employment policies. 

In the latest action, six former and current employees of a U.S. unit of Bayer AG filed a class-action lawsuit against the company on Monday, alleging gender discrimination in pay, promotions and the treatment of pregnant women and mothers.

The lawsuit, filed against Bayer HealthCare Pharmaceuticals in New Jersey federal court, seeks $100 million in lost pay and benefits as well as compensatory and punitive damages.

The plaintiffs, women who served at the associate-director level or higher, blamed a male-dominated management team for fostering an environment that was hostile to women. According to the complaint, internal company communications stated a preference for men in leadership roles and described women as ”loose cannons” prone to “mood swings,” “indecision,” and ”backstabbing.”

The complaint also cited examples of overt hostility toward motherhood and pregnancy, including the denial of promotions for women who took maternity leave and a senior manager’s alleged statement that he “needed to stop hiring women of reproductive age.”

The company denied all allegations of gender discrimination and said it would vigorously defend itself against the charges. The company is committed to nondiscrimination and equal treatment for all employees, it said in a statement.

The lawsuit filed by Sanford Wittels & Heisler is the firm’s latest against large corporations on behalf of female employees. On March 3, the firm filed a suit against health insurer Cigna Corp. for allegedly blocking women from promotions and higher-paying jobs. The same firm sued Publicis Groupe on Feb. 24, describing the multinational advertising conglomerate’s glass ceiling as a “cement wall.”

The flurry of suits is a symptom of the bad economy, said Katherine Kimpel, the plaintiffs’ lawyer in the case against Bayer HealthCare Pharmaceuticals. “Companies have felt emboldened in the past few years to begin to be more open and more blatant in their discrimination against women in the workplace on the assumption that they can use the excuse of a bad market to disguise a multitude of sins,” she said.

Kimpel recently served as lead counsel in a gender-discrimination lawsuit against Novartis AG, winning a $253 million verdict against the pharmaceutical company last May.

Whether these suits have merit or not, it certainly behooves employers to treat their female employees fairly and to purge any overt or latent discrimination from their employment practices.

Oral Argument in Wal Mart Class Action Case Again Puts Spotlight on Justice Kennedy

Can female employees of Wal Mart sue the retailer as a class claiming both that the corporate culture harbors female bias yet that individual store managers have discretion to make personnel decisions as they see fit?

That is the heart of the question in today’s oral argument before the U.S. Supreme Court on whether the plaintiffs in the case have met the requirements for class certification–and may determine the outcome. Under federal rules, a class can be certified only if the would-be class members have common questions of law or fact.

The only issue before the justices today was whether class certification requirements have been met. Whether the women can prove sex discrimination against Wal Mart will have to await trial.  If the women are allowed to proceed as a class, the damages for Wal Mart might far exceed anything an employer has ever paid, because the class could be upwards of 500,000 women.

Justice Anthony Kennedy, often the swing vote in close cases, was troubled by the seeming contradiction in the plaintiffs’ argument.

He told Joseph Sellers, the plaintiffs’ lead attorney:

“it’s not clear to me: what is the unlawful policy that Wal-Mart has adopted, under your theory of the case?” is not clear to me what is unlawful about the policy.”  Store managers, the attorney replied, have been given “unchecked discretion,” and they use it to discriminate.

But, Kennedy said, “It’s hard for me to see…Your complaint faces in two directions.  Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on.  Then in the next breath, you say, well, now these supervisors have too much discretion.  it seems to me there’s an inconsisency there, and I’m just not sure what the unlawful policy is.”

Sellers chose in reply to dwell on the breadth of the store managers’ discretion, saying “There’s no guidance whatsoever about how to make those decisions.”   The discretion, he added,  is then used within “a very strong corporate culture” that leads managers to be “informed by the values the company provides.”

Justice Antonin Scalia chimed in: “I’m getting whipsawed here.  On the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is a strong corporate culture that guides all of this.  Well, which is it?  It’s either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.”

Sellers sought to reconcile the two assertions by noting that, when would-be store manager are trained at the company’s “Sam Walton Institute,” they are told to take sex into account as a stereotype about generic characteristics, that women get more promotions when they are “aggressive,” like men who get promotions.  Scalia, perhaps half in derisive jest, suggested that the message could be “If you have an aggressive women, promote her!”   Sellers tried to end the exchange by saying that the questions were ones that Wal-Mart could address when the case went to trial.”

It won’t surprise many observers if Justice Scalia votes against class certification.  It’s not hard to image the remainder of the court split along the traditional liberal-conservative lines.

That leaves Justice Kennedy again as the pivotal deciding vote.

Appeals Court Gives Hospital Go-Ahead to Ban Smoking Without Union’s Consent

Employers looking to ban smoking without having to get the approval of the union that represents their employees got a boost recently from the U.S. Court of Appeals for the Third Circuit in Philadelphia, which ruled that a Pennsylvania hospital could ban smoking without negotiations under the applicable collective bargaining agreement (Armstrong County Memorial Hosp. v. United Steel, 3rd Cir., No. 10-2495 (March 14, 2011)).

Even more interesting is that the court overruled the arbitrator in the case, who ruled that smoking had become a “protected local working condition” because the hospital had permitted it from 2002 to 2008 in designated smoking areas and employees’ personal vehicles.

In 2008, the hospital concluded that allowing smoking created a significant health risk to patients, volunteers and visitors. Accordingly, it notified the union of its intent to adopt a new policy barring all smoking on the property.

The union challenged the new policy in arbitration. The union argued that the policy was “unreasonable,” and that the hospital should have raised the proposed change during earlier negotiations over the collective bargaining agreement (CBA)––an agreement that had taken effect in June 2008.

In a rare reversal of an arbitrator’s ruling, the Third Circuit held that the CBA allowed the hospital to “establish, revise and administer reasonable policies and procedures” without being “limited by existing or ‘prior practices’ or ‘side agreements’ which existed prior to the [CBA].

So the moral of the case is make sure you put language in your CBA that your right to change work rules is not limited by existing or prior practices.

EEOC Issues Final ADA Amendments Regulations

The Equal Employment Opportunity Commission’s (EEOC) on Friday published final regulations to implement the ADA Amendments Act (ADAAA).

In an announcement on the EEOC’s website, the commission said “Like the law they implement, the regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA).”

The ADAAA went into effect on Jan. 1, 2009. In the ADAAA, Congress directed the EEOC to revise its regulations to conform to changes made by the Act, and expressly authorized the EEOC to do so. The EEOC issued a Notice of Proposed Rulemaking seeking comment on proposed implementing regulations on September 23, 2009, and received well over 600 public comments in response. The final regulations reflect the feedback the EEOC received from a broad spectrum of stakeholders.

The ADAAA overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes or epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The ADAAA and the final regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.

But the law made significant changes in how those terms are interpreted, and the regulations implement those changes.

Based on the statutory requirements, the regulations set forth a list of principles to guide the determination of whether a person has a disability. For example, the principles provide:

  • that an impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability;
  • whether an impairment is a disability should be construed broadly, to the maximum extent allowable under the law;
  • with one exception (ordinary eyeglasses or contact lenses), “mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability;
  • impairments that are episodic (such as epilepsy) or in remission (such as cancer) are disabilities if they would be substantially limiting when active.

The regulations clarify that the term “major life activities” includes “major bodily functions,” such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions. The regulations also make clear that, as under the old ADA, not every impairment will constitute a disability. The regulations include examples of impairments that should easily be concluded to be disabilities, such as HIV infection, diabetes, epilepsy, and bipolar disorder.

Following the dictates of the ADAAA, the regulations also make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.”

Establishing such coverage used to pose significant hurdles, but under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment.

The Commission has released two Question-and-Answer documents about the regulations to aid the public and employers – including small business – in understanding the law and new regulations. The ADAAA regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website at

The text of the final rules is available on the Federal Register website.

Attorney Jon Hyman distills the rules’ most interesting points down to 5.

GSA Raises Per Diem Travel Rates for New York, San Francisco

Federal employees traveling on official business will be able to spend more on the government’s dime starting next month in New York and San Francisco among other locations.

For travel to New York City, the per diem rate will go up to $212 a day on hotels, from the current $192. The rate will climb to $224 in June and $295 in September.

The per-diem for San Francisco is slightly less generous. Now, it’s $142 a day. In April it will be $150 a day and in September $180 a day. 

New per-diems will also apply to travel to Harrisburg, Pa., Bowling Green, Va., and parts of Texas and Mississippi.

Standard daily travel reimbursement rates are set by the General Services Administration. The typical reimbusement rate is $123 ($77 for lodging and $46 for meals and incidentals). About 400 “Non-Standard Areas”–mostly major metropolitan cities and counties–have higher rates based on a formula, which GSA generates in consltation with the lodging industry, that accounts for rental values, time of year and property values.

GSA has a helpful chart that tracks the various rates for cities and counties across the U.S. at

Muslim Teacher Who Wanted Three-week Pilgrimage Leave Has Ally in U.S. Justice Department

Must a school district accommodate a Muslim teacher who has been on the job for only 9 months and then requests three weeks off for a pilgrimage to Mecca?

That’s the issue raised by a suit the U.S. Justice of Department filed against the Berkeley, Illinois school district after it turned down a Muslim math lab instructor’s request for leave during the critical end-of-semester marking period. The instructor resigned and made the trip anyway.

The Obama Administration took up Safoorah Khan’s cause, arguing that the district violated Title VII ofthe 1964 Civil Rights Act by refusing to accommodate Khan’s religious beliefs. The government argues that by compelling Khan to choose between her job and religion, it forced her discharge. The administration is requesting she be reinstated with back pay and damages and that the district find ways to accommodate religious practices.

No trial date has been set. If the case makes it to trial, the key question will be whether granting Khan’s request would have imposed an undue hardship on the school district. Under U.S. Supreme Court rulings, employers have to grant leave for religious observance only if it would have a minimal burden on them.

The request for three weeks puts the case on a different plane than requests for the occasional holiday observance or even the Sabbath.

Some critics of the lawsuit see it as an effort to placate Muslims. 

But I think we can count on the courts to review the allegations solely on their merits. It will be interesting to see how the case plays out and whether it has any ramifications beyond its particular circumstances.

Pilot Program Established for Job Applicants To Correct Errors Through E-Verify

In a move that may help employers, the federal government this week announced a pilot program that will give job applicants the opportunity to clean up errors in their paperwork that might otherwise cause problems when presented as proof of eligibility to work in the United States.

Under the program, the credit rating agency Equifax will doublecheck applicants’ records who request it, allowing for clean up of spelling mistakes and other common errors.

The pilot program–which will be tried out in the District of Columbia, Virginia, Arizona, Colorado, Idaho and Mississippi–will also “help the small number of legally authorized immigrants and U.S. citizens who encounter problems each year when an employer runs their Social Security numbers through the E-Verify system,” a story in the Washington Post said. 

The government plans to use the initiative to evaluate how the third-party verification system works, with a view to making the tool available to employers,  said Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services.

Here’s the government’s announcement of the program.

FLSA Forbids Retaliation for Filing Oral Complaints Too, U.S. Supreme Court Holds

Score another victory for employees from the U.S. Supreme Court, which hasn’t handed them many favorable decisions in recent years.
The Fair Labor Standard Act’s protections against retaliation extends to oral as well as verbal complaints, the high court ruled today.
The 6-2 ruling clears the way for Kevin Kasten to sue his employer, Saint-Gobain Performance Plastics, for allegedly firing him because he complained orally to company officials that its timeclocks were in a location that prevented workers from receiving credit for time spent putting on and taking off work-related protective gear.  A federal district court had found earlier that this placement violated the Act.
The FLSA forbids retaliation against any employee who has “filed any complaint.” Courts across the United States have struggled with the meaning of that three-word phrase, issuing conflicting decisions.

The Supreme Court cleared up the confusion today.  It held that even though the statute provides no definitive interpreetation of what those three words mean, “several functional considerations” lead to the conclusion that it means oral as well as written complaints.

For example, the court pointed out that the FLSA relies for its substantive enforcement on information and complaints received from employees. “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting the use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing,” the court asked, “particulary the illiterate, less educated, overworked workers who were most in need of the Act’s help at the time of passage?”

Another functional consideration: Limiting the provision’s scope to written complaints could prevent government agencies from using hotlines, interviews, and other oral methods to receive complaints. And insofar as the provision covers complaints made to employers, a limited reading would discourage using informal workplace grievance procedures to secure compliance.

Finally, the court deferred to the U.S. Department of Labor, which has consistently held that “filed any complaint” covers both oral and written complaints. This view is reasonable and consistent with the statute, the court concluded.

Here’s the full decision.  And here’s leading labor lawyer Jon Hyman’s analysis of the decision’s impact for employers.