Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

Leave a comment

Filed under ADAAAA, civil rights, courts, Disability, discrimination, employment, federal, labor, legal decision, technology, Title VII

E-Mails and NRLB: Do Employees Have Rights?

On April 30, 2014, the NLRB announced that it is considering overturning Register Guard, 351 NLRB 110 (2007), enfd. in relevant part and remanded sub nom, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).

The issue resolves around the current existing law that states:

Employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.

The NLRB is requesting amici briefs that address the following questions:

  1. Should the Board reconsider the conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communication systems) for Section 7 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communication systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to the be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
  5. Identify any other technological issues concerning email or other electronic communication systems that the Board should reconsider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

 

The briefs are due on or before June 16, 2014 and cannot exceed 25 pages.

Leave a comment

Filed under attorneys, briefs, civil rights, electronic discovery, employment, federal, labor, legal decision, NLRA, NLRB, rules, Section 7, union

SCOTUS considers whether union neutrality agreements violate Labor Law

The U.S. Supreme Court considered whether “neutrality agreements” between unions and employers violate federal labor law.  Neutrality agreements are contracts between labor unions and employers under which the employers agree to support a union’s attempt to organize its workforce.

In Unite Here Local 355 v. Muhall, the Supreme Court will decide whether these agreements are a “thing of value.”  This definition matters because under Labor Law the exchange of things of value between a labor union and an employer are a felony.  Further, it is a crime for a union to request, demand, receive or accept or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by the statute.

Under the agreements, businesses help labor unions in organization efforts in exchange for labor peace, the New York Times reports. The Washington Post offers some examples: An employer might grant access to employee lists or agree to remain neutral in exchange for union concessions, such as giving up the right to strike.

The 11th Circuit Court of Appeals held that it was a “thing of value” because it includes tangibles and intangibles.  In other words, while the employer and the union can agree on the ground rules, the assistance in this case would constitute payment.

The assistance the 11th Circuit Court of Appeals referred to was as follows.  The casino (employer) agreed to allow union access to worker information and casino grounds, and to allow a unionization vote by cards collected from workers, rather than a secret ballot. The union agreed to refrain from picketing or striking during the union drive.

It is important to note that the 11th Circuit Court of Appeals failed to take into consideration whether there was monetary value.

What is mind boggling is the fact that neutrality agreements are not only common, but they help avoid conflict and encourages the practice and procedure of collective bargaining.  The preamble of the National Labor Relations Act supports labor peace and the encouragement of the practice and procedure of collective bargaining.

The outcome of this contentious and heavily litigated case remains unknown.  The Supreme Court, specifically Justice Roberts, focused on the card-check portion of the neutrality agreement.  Justice Kagan focused on how the benefits bargained by the union benefit employees and unions.

via SCOTUS considers whether union neutrality agreements are improper ‘thing of value’.

Leave a comment

Filed under Appellate, civil rights, courts, discrimination, employment, federal, labor, legal decision, NLRB, union

Filibuster Changes

I heard about this vote a while back and it will be interesting to see how it plays out.  You hear about this all the time.  The majority party (regardless of whether they are Democrat or Republican) wants to change filibuster rules.

This year the number of bills passed has been the lowest since Congress was formed.  NBC calls it “Do-Nothing” Congress. USA Today describes the 2011-12 period as the “least productive year on record” and 2013 as being on track as the “least productive single year in modern history.”

The question is then, do we need filibuster reform?  The answer is yes.  To what extent?  This is heavily contested.

The Senate approved the most fundamental alteration of its rules by ending the minority’s party ability to filibuster most presidential nominees in response to the partisan gridlock that has plagued Congress.  (NY Times article).

Under the change, the Senate will be able to cut off debate on executive and judicial branch nominees with a simple majority rather than rounding up a supermajority of 60 votes.  This does not apply to all nominees, such as Supreme Court nominees.

via In Landmark Vote, Senate Limits Use of the Filibuster – NYTimes.com.

Leave a comment

Filed under federal, rules

Vets discharged under Don’t Ask Don’t Tell

The ABA is supporting legislation to allow veterans who were discharged under the Don’t Ask Don’t Tell to request a change in their military records.

“Restore Honor to Service Members Act,” H.R. 2839, will ensure that veterans who were discharged solely because of their sexual orientation and did not receive an “honorable” characterization of service can have the opportunity to request their characterization be upgraded. In addition, those who did receive an honorable discharge would be able to remove any reference to sexual orientation from their records by requesting a review.

This bill was introduced on July 25, 2013 and was referred to committee.  Since July 25, 2013 there has been no movement.  The ABA President’s letter, dated November 21, urges the subcommittee to take action.

via Vets discharged under Dont Ask, Dont Tell should be allowed to seek change in records, ABA says.

Leave a comment

Filed under Pending Legislation, civil rights, employment, discrimination, federal

Follow up: Rulings Against Sheriff Arpaio

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles.  (One story here).  This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office.  The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

In Manuel de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS (D. Ariz. Oct. 2, 2013), U.S. District Court Judge Snow granted an injunction and listed reforms in which Arpaio and the Maricopa Sheriff’s Office must comply with.  This list includes, for example:

  • Supervisors shall provide effective supervision necessary to direct and guide Deputies.  Some of these include, for example: Respond to certain arrests; confirm the accuracy and completeness of Deputies’ daily reports;and hold Deputies accountable.
  • Supervisors enforcing Immigration-Related laws will directly supervise law enforcement activities.
  • Appointment of a federal independent monitor;
  • Hiring a Community Liaison Officer who is a sworn Deputy fluent in English and Spanish; and
  • Video recorder in every patrol car to record every traffic stop.

In We are America v. Maricopa County Bd. of Supervisors, No. CIV 06-2816-PHX-RCB (Sept. 27, 2013), U.S. District Court Judge Broomfield enjoined Arizona’s Maricopa Migrant Conspiracy Policy.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

via Courthouse News Service.

Leave a comment

Filed under civil rights, courts, discrimination, federal, immigration, legal decision, state

Rule 68 does not moot case

In Emily Diaz v. First Am. Home Buyers Protection Corp., No. 11-57239 (9th Cir. Oct. 4, 2013), the 9th Circuit Court of Appeals ruled that an offer of judgment (Rule 68) did not make a plaintiff’s case moot.  This is an important case because it provides guidance when considering when to file summary judgment when a Rule 68 offer has been made.

Rule 68 is when a party offers opposing party a judgment for full satisfaction that the opposing party could recover at trial.  In this case, First American offered $7,019.32 plus costs.  Diaz, the plaintiff, declined this offer.  Thereby the issue was whether offering the money made the lawsuit moot.

The 9th Circuit Court of Appeals held that the First American’s offer, even if it fully satisfied the plaintiff’s claim, did not make the case moot.  When reaching this conclusion the 9th Circuit cited Kagan’s dissent in Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528-29 (2013).

‘[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’ By those measures, an unaccepted offer of judgment cannot moot a case.   When a plaintiff rejects such an offer – however good the terms – her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer – like any unaccepted contract offer – is a legal nullity, with no operative effect.”

Id. at 1536 (citation omitted).

via Courthouse News Service.

Leave a comment

Filed under courts, federal, legal decision, rules, Supreme Court

Follow up on Arizona S.B. 1070

You might remember the very controversial legislation against unauthorized aliens in Arizona.  Arizona Governor Jan Brewer was launched into the spotlight when she signed this bill.  The ruling of the 9th Circuit is important because it points to the exclusive control of the federal government of immigration.

In Valle Del Sol v. Whiting., No. 12-17152 (9th Cir. Oct. 8, 2013), the 9th Circuit Court of Appeals ruled that S.B. 1070 was void because it is vague and incomprehensible to a person of ordinary intelligence; and (2) it is preempted by federal law.

Setting aside the vagueness and incomprehensible nature of the law, the Court explained preemption.  The 9th Circuit focused on three main arguments: (1) federal government’s exclusive control over immigration policy; and (2) how Arizona’s law conflicted with federal’s laws.

The 9th Circuit first commented on why the federal government has this control.

Federal control over immigration policy is integral to the federal government’s ability to manage foreign relations:

“Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.  Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

Then, the Court explained why the federal government has exclusive control over immigration and not the states. The Court stated:

Congress did not, however, grant states the authority to prosecute [section] 1324 violations, but instead vested that power exclusively in the federal authorities.  Thus, “the inference from these enactments is that the role of the states is limited to arrest for violations of federal law.”

(citations omitted).

Lastly, the 9th Circuit pointed to the conflict of laws of Arizona and federal statutes as follows:

  1. First, Arizona’s statute provided “additional and different state penalties.”
  2. Second, Arizona “conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration priorities.”
  3. Third, Arizona “criminaliz[ed] conduct not covered by the federal harboring provision.” Arizona also “criminalizes encouraging or inducing an alien to come to or reside in Arizona.”

 

As a side note, if you are interested in standing and organizational standing, the 9th Circuit Court of Appeals discussed the standard and explained how plaintiffs had standing.

via Courthouse News Service.

1 Comment

Filed under civil rights, courts, federal, immigration, legal decision

Government Shut Down and the NLRB

When the shut down occurred, the NLRB closed its doors.  What is interesting is that the NLRB’s website is also down.

There are several notes that need to be pointed down.  Even though the NLRB is shut down, unfair labor practice charges’ statute of limitations of 6 months keeps running.  The statute of limitations is the time that a person/organization/company has to enforce their rights.  After that period, they may lose their right to do so.

The federal register provides:

Extensions for time of filing cannot apply to the 6-month period provided by Section 10(b) of the Act for filing charges, 29 U.S.C. 169(b), or to Applications for awards of fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. 504.

….

(emphasis added).

The federal register also cautions persons to file the charge via fax and to serve the charges themselves.  The federal register states:

Notwithstanding the foregoing, persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operation is uncertain.

Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.

…..

Moreover, persons filing a charge are reminded that it is their responsibility… to serve a copy of the charge upon the person against whom the charge is made.  While Regional Directors ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy, they do not assume responsibility for such service, and it is unlikely that the Agency will be able to serve the charges during any period of shutdown due to a lapse in appropriated funds.

(emphasis added).

In summary, you must do as follows:

  1. Serve the unfair labor practice charge and the applications of fees and other expenses via fax.
  2. Serve the papers to the person against whom the charge is made.

Regarding other issues, the federal register explains that they are postponed.  These include hearings in front of Administrative Law Judges, pre and post election hearings, and filing or serving of documents (including briefs and appeals).

via NLRB |.

Leave a comment

Filed under federal, labor, Minnesota, NLRB, Pending Legislation, rules, union

Discrimination for being “unmanly”

The Fifth Circuit Court of Appeals (en banc) ruled that an iron worker who was subjected to gay slurs and simulated sex because he failed to conform to the employer’s male stereotypes was discriminated against under Title VII.

In EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013), the  court reviewed the jury’s findings and awarded damages.  The Fifth Circuit found that taking the case as a whole, a jury could have found that the employee was harassed because he did not fall under the “manly-man stereotype.”

This case arose when a worker, Kerry Woods, was subjected to sex harassment.  Woods was often sexual derogatory terms regarding Woods’ sexuality.  In addition, the superintendent also exposed himself when Woods was going to the bathroom, and made sexual innuendo comments to Woods.  When these actions were brought to the employer, the superintendent told the general superintendent that he didn’t care for Woods because he was “different” and “didn’t fit in.”

After trial the jury found that this verbal and physical harassment occurred daily.  The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages.

via Harassed for being unmanly? En banc court sees Title VII violation; dissent sees clean-talk enforcer.

Leave a comment

Filed under Appellate, civil rights, discrimination, District Court, employment, federal, legal decision