Archive for August, 2013

EEOC: Company Didn’t Stop Manager From Salacious Videotaping of Female Employee

Certainly employers have the right to monitor their employees’ movements, but it crosses the line when such surveillance creates a hostile work environment.

According to the EEOC, that’s precisely what happened at Davis Typwriter Company, an office furniture and supply company in Minnesota.

In a lawsuit filed this week in the U.S. District Court for the District of Minnesota, the EEOC alleged that the company allowed a male operations manager to commandeer the security camera system to stream video of a female employee’s breasts and body into his office computer.

Following the female employee’s complaint about the surveillance, the company failed to take sufficient steps to halt this behavior or prevent it from happening again, the EEOC said.

If the evidence backs the EEOC’s assertions, the company is in big legal trouble, and it might want to consider settling.

Hear’s the EEOC’s announcement of the lawsuit.

Making Employee Wear “Ten Commandments” Badge Could Be Title VII Violation, Court Holds

Employers would do themselves a favor by not insisting that employees wear any uniform or ornament with religious writings or references on it. Otherwise they may wind up like a medical practice in Pennsylvania that insisted its employees wear a name badge listing office rules under the heading “Our Ten Commandments.”

A U.S. district court judge in Pennsylvania on August 15 gave the go-ahead to a Roman Catholic receptionist who objected to having to wear the badge.

The practice argued that the badge “had absolutely nothing to with religion” despite its phrasing. But the court said that it cannot question the validity of the receptionist’s beliefs.

She can proceed with her Title VII complaint on the premise that having to wear the badge violated her sincerely held religious beliefs, the court held.

The case is Ambrose v. Gabay Ent & Associates P.C.

Court: Sexist Remarks Enough to Keep Female Attorney’s Suit Going Against Evanston, Illinois

You might have thought that the era of making sexist comments about and demeaning women went out with the Man Men era. Think again. It’s still going on. And it has landed the city of Evanston, Illionois in court with a Title VII lawsuit on it hands.

A federal district court in Illinois last week declined the city’s motion to dismiss a female attorney’s Title VII sex discrimination claim. According to the attorney, her male supervisors told her she was “not that pretty” and that previous hires were “just gorgeous” and wore “tight sweaters” and “short skirts.”

That may have been just the tip of the legal iceberg. It’s not the remarks themselves that are the focal point of the lawsuit, but rather what they revealed about the workplace.

The crux of the female employee’s claim is that she was fired despite getting good performance reviews and never being disciplined prior to her discharge.

Essentially, the court held that the comments supported that claim because they suggest a sexually biased workplace.

Oy! I think the city needs to clean house in its legal department.

The case is Tober-Purze v. City of Evanston.

OSHA Proposes Rule Limiting Worker Exposure To Silica Dust

As many as 700 lives will be saved and 1,600 cases of silicosis prevented each year under a proposed rule to cut worker exposure to crystilline silica, estimates the Occupational Safety and Health Administration.

The workplace safety watchdog announced the new proposed standard last week. It would reduce worker exposure to the substance, which the government contends causes lung cancer, silicosis, chronic obstructive pulmonary disease and kidney disease.

Workers are exposed to airborne silica dust in operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products and in operations using sand products, such as in glass manufacturing, foundries and sand blasting.

The exposure standard was last updated 40 years ago.

“The proposed rule includes a new exposure limit for respirable crystalline silica and details widely used methods for controlling worker exposure, conducting medical surveillance, training workers about silica-related hazards and recordkeeping measures,” the agency’s announcement said.

Wedding Photographers Must Provide Service to Gay Couples, N.M. Supreme Court Holds

A wedding photography service violated the state’s human rights act by refusing to photograph a same-sex couple’s commitment ceremony, the New Mexico Supreme Court ruled last Thursday, August 22.

Elaine Photography conceded it is a public accommodation under the statute, but argued that it didn’t discriminate on the basis of sexual orientation but rather because it did not wish to endorse the same-sex couple’s wedding.

The judges said “Elane Photography’s argument is an attempt to distinguish between an individual’s status of being homosexual and his or her conduct in openly committing to a person of the same sex.”

The problem with that argument, the court said, is that “people may base their judgment about an
individual’s sexual orientation on the individual’s conduct. To allow discrimination based
on conduct so closely correlated with sexual orientation would severely undermine the purpose” of the human rights act.

The ruling is yet one more sign that the law is coming around to the reality that same-sex couples are entitled to the same rights as heterosexual couples. Gay marriag may not be that far behind.

Here’s the decision in Elaine Photography v. Willock.

Alaska: State Employees Might Get “Immediate Family” Benefits for Same-Sex Partners

Alaska does not permit same-sex marriage, but for same-sex partners of state employees it is considering allowing them to receive the same benefits as individuals in heterosexual relationships.

The state’s personnel board would achieve this through a re-definition of the term “immediate family” to include same-sex partners. If that re-definition takes place, state employees would be allowed to take leave because of a serious health condition of a same-sex partner.

Interestingly, the proposed change was prompted by the boards review of a 2005 Alaska Supreme Court ruling declaring that it is unconstitutional to offer valuable benefits to the spouses of public employees but not to same-sex domestic partners.

This is yet another example of where same-sex couples are inching toward equality of treatment separate and apart from whether the particular state in which they live allows them to marry.

What Brown Won’t Do For You: Insure Your Spouse if Another Employer Does

Nearly half of all employee spouses currently receiving health benefits under United Parcel Service policies will be dropped from the rolls starting on January 1 if they can get coverage elsewhere, the company announced this week.

The company said the change in policy will result in 15,000 of the 33,000 spouses it covers losing their coverage. Since the Patient Protection and Affordable Care Act requires employers to provide affordable coverage to their employees, UPS is betting on its workers’ spouses to find coverage for themselves through that avenue, and thus cut its own costs.

There isn’t exactly a stampede among U.S. companies to drop spousal coverage, but the trend is in that direction. One study by consulting firm Mercer found that in 2012, 6 percent of companies with 500 or more employees excluded spouses with other employer coverage. Towers Watson, another benefits consulting firm, found that 4 percent of companies already exclude spouses who can get coverage from another employer, with percent expecting to do so in 2014.

The other route is to charge employees more for covering their spouses, which 20 percent of employers do now and one third–33 percent–plan to do in 2014.

Employers, like the rest of us, are imitative sorts, so when a company like UPS takes this move, expect others to follow.

Circuit Court Trims MSPB’s Sails on “Non-Critical Sensitive” Jobs

Federal employees who work in “non-critical sensitive” jobs do not have appeal rights of adverse actions to the Merit Systems Protection Board, the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. ruled on Tuesday.

The ruling is a blow to perhaps upwards of hundreds of thousands of federal employees who fit that description.

Basically, a non-critical sensitive job is one that does not require access to classified information. Two low-level employees at the Department of Defense sought MSPB review of disciplinary actions taken against them. One worked in the accounting depertment, the other in the commissary.

The Office of Personnel Management brought the case to the appeals court, arguing that the MSPB should have to hear the employees’ cases because their jobs did not require access to classified information.

However, in a 7 to 3 ruling, the majority of the justices said that MSPB focused too narrowly on access to classified information but ignored “the impact employees without security clearances, in sensitive positions, can have.” For example, the majority said, a commissary worker could tip off the enemy to a military deployment after noticing a surge in inventory.

“It is naive to suppose that employees without direct access to classified information cannot affect national security,” the majority opinion said.

The dissent took issue with that declaration, saying that the majority’s opinion would deny MSPB review to hundreds of thousands of employees–a number likely to increase as more positions are designated as non-critical sensitive.”

Here’s the court’s opinionin Kaplan v. Conyers.

MSBP: Whistleblower Cannot Recover Damages for Violations Preceding Law’s Enactment

Sometimes timing is everything in the law, as an Air Force employee learned last week in her whistleblowing lawsuit against the agency.

The Merit Systems Protection Board ruled that the employee cannot recover compensatory damages for the retaliation she suffered due to her whistleblowing, because the conduct preceeded the availability of those damages under the law.

Those damages are available under a provision of the Whistleblower Protection Enhancement Act of 2012, which became law in October 2012, with an effective date one month later. The law was silent as to whether it applied retroactively or only going forward.

MSPB ruled that the statute cannot be applied retroactively, because to do so would “undeniably attach an important new legal burden to the agency’s past conduct that did not previously exist.”

So until and unless Congress changes the law to make clear that it does want it to be apply retroactively, damages will be allowed only for post-enactment conduct.

Here’s the MSPB’s ruling in the case.

Volunteer Firefighters Are “Employees” Under Family and Medical Leave Act, Sixth Circuit Holds

Whether an individual is an “employee” or an independent contract is frequently the difference between whether an employment lawsuit succeeds or fails. Employees have protections under employment laws; independent contractors do not.

A volunteer firefighter in the city of Gilbraltar, Michigan learned that distinction to his satisfaction last week in his awsuit against the city under the Family and Medical Leave Act. Firefighter Paul Mendel alleges that the city interfered with his exercise of his FMLA rights.

The city argued that it wasn’t covered by the FMLA because it did not employ 50 or more employees. Volunteer firefighters don’t count, the city asserted, so it really has only 41 employees.

Rejecting that argument, the appeals court said that Gilbraltar’s firefighters are employees under the FMLA because they are permitted to work for the city and receive substantial wages–$15 an hour–for their work.

The court said that even though the city did not control the firefighters, for example, by requiring them to respond to any emergency calls, the fact that it paid them substantial wages. And that was enough to make them employees for FMLA purposes, it held.

The FMLA specifically relies on the Fair Labor Standard Act’s defintions of the terms “employ” and “employee,” the appeals court said.

And that defintion, the wages paid the firefighters were compensation rather than a nominal fee, which is what makes them employees.

Here’s the court’s ruling.