Key Employment Issues Reach The Supreme Court In December 2012

January 23, 2013

In December 2012, the United States Supreme Court considered several cases of interest to all employers: On December 26, 2012, the Court rejected a request by Hobby Lobby Stores for temporary injunctive relief from a $1.3 million per day fine for not complying with the Patient Protection and Affordable Care Act (“the Act”) Hobby Lobby Stores, Inc. v. Sebelis, 133 S. Ct. 641 (Dec. 26, 2012). Under the Act, non-grandfathered group health plans must cover “all Food and Drug Administration…approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity…”  Hobby Lobby alleges that their constitutional rights and rights under the Religious Freedom Restoration Act of 1993 would be violated if they were required to provide coverage for drugs and devices that can cause abortions. The Supreme Court agreed with the lower courts’ decisions to deny the preliminary injunction, since Hobby Lobby had not proved the injunction was “[n]ecessary or appropriate in aid of [the court’s] jurisdiction” and that “the legal rights at issue are indisputably clear.”  This is one of many pending cases regarding the religious exemption aspects of the Act. The Court will review two decisions concerning the definition of marriage, which could affect federal and state employment law. In Hollingsworth v. Perry, No. 12-144, the Court will consider whether the Equal Protection Clause of the 14th Amendment prohibits the State of California from defining marriage as the union of a man and a woman. In 2008, California voters approved Proposition 8, the California Marriage Protection Act (“Prop. 8”), which prohibited same-sex marriage. In February 2012, the 9th Circuit held that Prop. 8 is unconstitutional.  Oral argument is scheduled for March 26, 2013. In United States v. Windsor, No. 12-307, the Court will consider whether Section 3 of the Defense of Marriage Act (DOMA) deprives same-sex couples, who are lawfully married under the laws of their states, of equal protection.  Read More

The Importance Of Well Crafted Policies

January 3, 2013

Background In A.D.P. v. ExxonMobil Research and Engineering Co., 54 A.3d 813 (N.J. Super. A.D. 2012), a 29-year employee disclosed that she was an alcoholic and that she intended to check into rehabilitation.  ExxonMobil had in place an Alcohol and Drug Use Policy (the “Policy”) which stated that “being unfit for work because of use of drugs or alcohol is strictly prohibited and is grounds for termination.”  However, the Policy also stated that “no employee with alcohol or drug dependency will be terminated due to the request for help…or because of involvement in a rehabilitation effort.” The employee returned to work after rehabilitation and signed an after-care contract, agreeing to: (1) maintain total abstinence from alcohol; (2) actively participate in treatment; (3) maintain acceptable work performance; and (4) be subjected to periodic and unannounced alcohol and drug testing.  She eventually failed a random breathalyzer test and was terminated. Decision The employee filed an action in state court alleging disability discrimination under the New Jersey Law Against Discrimination (“LAD”) and wrongful termination.  The trial court granted ExxonMobil’s Motion for Summary Judgment. On appeal, the New Jersey Appellate Division found direct evidence of discrimination by ExxonMobil – “[t]he Policy’s requirements of total abstinence and…random testing, were only imposed upon employees who identified as alcoholics, demonstrating ‘hostility toward members of the employee’s class.'”  Moreover, although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics, such as the plaintiff here, could be fired, therefore the court determined that the employer’s Policy was discriminatory on its face. Bottom Line Despite an Alcohol and Drug Use Policy which supported the employee’s attempt at rehabilitation and allowed her to return to work at the conclusion of this treatment, the Court ruled against the employer because the Policy subjected employees with substance abuse issues to requirements different than employees without substance abuse issues.  Read More

NLRB: Sexually Charged Comments Did Not Justify Firing

December 4, 2012

A New York company violated federal labor law by firing an employee who made vulgar and sexually offensive comments during the run-up to a union-decertification vote, the National Labor Relations Board (“NLRB”) has ruled. The decision, Fresenius USA Mfg., Inc. & Int’l Bhd. of Teamsters, Local 445, 358 NLRB No. 138 (Sept. 19, 2012), carries important implications for companies balancing their responsibilities under the National Labor Relations Act (“NLRA”) and civil-rights statutes, such as Title VII of the Civil Rights Act of 1964. Background Fresenius manufactures and distributes disposable dialysis products.  Starting in 2008, the Teamsters represented two bargaining units at the company’s Chester, N.Y. facility- a driver’s unit and a warehouse-worker’s unit.  When both units failed for more than a year to come up with collective-bargaining agreements with the company, a warehouse employee filed a decertification petition for the warehouse unit. During the decertification campaign, a pro-union driver, Kevin Grosso, anonymously scrawled the following three messages on union newsletters in the employee break room: “Dear Pussies, Please Read!”; “Hey Cat food lovers, how’s your income doing?”; and “Warehouse workers, RIP.” Several female warehouse workers complained to Fresenius officials that they found the statements vulgar, offensive and threatening.  The company, concerned about possible violations of federal civil-rights laws and internal company policies, investigated their complaints. Grosso initially denied involvement, but Fresenius later discovered that he was the source of the comments.  Fresenius then fired Grosso, both for making the offensive comments and for his dishonesty. An administrative law judge found that Fresenius did not violate the NLRA, either by investigating the complaints or by firing Grosso. The Decision The NLRB reversed.  Though the Board concurred that the company had a legitimate basis to investigate the warehouse workers’ complaints and question Grosso, it held that his firing violated the NLRA. The Board focused its decision on whether the profane and vulgar nature of Grosso’s comments caused him to lose the anti-retaliation protection of the NLRA.  Read More

Employers’ Heightened Obligation To Initiate Interactive Process With Employees

November 12, 2012

In its July 3, 2012 opinion, Thomas v. Bala Nursing & Retirement Center, 2012 WL 2581057 (E.D. Pa. 2012), the U.S. District Court for the Eastern District of Pennsylvania held that an employer must initiate an interactive process with an employee who informs the employer of a medical condition affecting his or her ability to perform their job, even when the employee does not explicitly request an accommodation. In Thomas, the Plaintiff, Aqila Thomas, was employed by the Defendant, Bala Nursing & Retirement Center (“Bala”), as a licensed nurse practitioner and charge nurse.  Thomas was qualified for her job, but often showed up late for her regularly scheduled shifts.  After several verbal and written warnings as well as a one day suspension, Bala fired Thomas citing her routine tardiness. Thomas filed suit alleging, among other things, failure to accommodate under the ADA.  Thomas claimed that her tardiness was a result of severe fatigue caused by her medically diagnosed iron deficiency anemia, of which her Bala superiors were aware.  In its motion for summary judgment, Bala asserted that even if Thomas was considered disabled under the ADA, she did not provide Bala with notice sufficient to trigger its obligations under the Act. Under the ADA, an employer discriminates against an employee if it does “not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an…employee, unless [it] can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”  The court explained that a reasonable accommodation can be as simple as an employer initiating an informal interactive process. The court first examined whether Thomas placed Bala on sufficient notice to trigger Bala’s obligation to initiate the interactive process.  Looking to the Third Circuit for guidance, the court quoted Taylor v. Read More

Critical Employment Issues Headline Supreme Court Agenda

October 23, 2012

The United States Supreme Court began its 2012-2013 term earlier this month.  There are several cases involving employment related issues before the Court: SCOPE OF SUPERVISOR LIABILITY UNDER TITLE VII: In Vance v. Ball State University, No. 11-556, Vance sued her employer for violation of Title VII alleging hostile work environment and retaliation among other claims.  The trial court granted the employer’s motion for summary judgment, and the Seventh Circuit affirmed.  The Seventh Circuit concluded that the employer conducted investigations of Vance’s complaints, demonstrating that there was no basis for employer liability on her hostile work environment claim.  As for conduct allegedly committed by a “supervisor,” the Seventh Circuit held, “we have not joined other circuits in holding that the authority to direct an employee’s daily activities establishes supervisory status under Title VII.” Thus, the Supreme Court will be reviewing a Seventh Circuit decision on an issue that divides various federal appellate courts.  The issue being whether an employer can be held vicariously liable for severe or pervasive workplace harassment by (a) supervisors who are generally authorized to oversee the victim’s daily work (Second, Fourth and Ninth Circuits support liability on this basis); or, (b) only those supervisors who have the specific power to hire, fire, demote, promote, transfer or discipline their victim (First, Seventh and Eighth Circuit limit such liability). The case is set for argument on November 26, 2012. MOOTNESS OF FLSA § 216(b) COLLECTIVE ACTION: In Genesis Healthcare Corp. v. Symczyk, No. 11-1059, the Supreme Court will be reviewing a Third Circuit (Philadelphia) decision that considers whether members of a FLSA putative class action “die on the vine” when the employer offers to satisfy all of the claims of the lead plaintiff. The Third Circuit held that an offer of judgment did not moot the plaintiff’s claim.  The focus will likely be whether or not federal courts maintain their jurisdiction over the other members’ FLSA claims when the lead plaintiff’s claims are satisfied through settlement.  Read More

2012 Pittsburgh Human Resources Association Annual Conference

October 10, 2012

Pam G. Cochenour will make a presentation at the 2012 Pittsburgh Human Resources Association Annual Conference held in Pittsburgh, PA. Read More

Security Officers’ Class Action Rejected By The Court

October 1, 2012

On August 17, 2012, the federal district court for the Western District of Pennsylvania denied a claim by two former security officers to certify a class action under the Fair Labor Standards Act (“FLSA”) against the firm’s client, Guardsmark, LLC.  In Hall and McCombs v. Guardsmark, No. 11-213, 2012 WL 3580086 (W.D. Pa. August 17, 2012), Judge Mitchell held the Plaintiffs failed to satisfy the “modest factual showing” standard necessary to obtain conditional certification of the proposed collective action.  The Plaintiffs claimed that they had been required to work “off the clock” without being paid, and that they were entitled to be paid for maintaining their uniforms. (Guardsmark had successfully convinced the Plaintiffs to withdraw an earlier claim regarding meal breaks.)  Because so many employers are facing FLSA suits, the reasoning from the Court’s decision will be helpful to other employers defending these claims. First, the Court ruled that Plaintiffs could not make a “modest factual” showing that they were similarly situated to other potential class members because the named Plaintiffs had been terminated more than three years before the motion to certify the class had even been filed.  One of the factors in determining whether the plaintiffs are similarly situated is whether the claimed discrimination occurred during different time periods and by different decision makers.  Hall and McCombs left their employment with Guardsmark in July, 2009.  Since notice would not have been sent until August, 2012, at the earliest, the proposed class would consist of security officers “asserting FLSA violations beginning August 2009 and thereafter.”  Stated slightly differently, the proposed class would not have included the named Plaintiffs.  Therefore, the court found any opt-ins would not be similarly situated because they were not within the same temporal time frame. Second, the Court found it significant, although not determinative, that the Plaintiffs had not submitted any affidavits from any other potential opt-in members.  Read More

2012 Pittsburgh Legal Administrators Association Education Conference

September 14, 2012

Pam G. Cochenour will make a presentation on HR Law at the 2012 Pittsburgh Legal Administrators Association Education Conference held in Pittsburgh, PA. Related Information: For more information on the program, please click here. Read More

Fourth Circuit Refuses To Apply Computer Fraud And Abuse Act To Employee’s Theft Of Trade Secrets

September 6, 2012

Recently, in WEC Carolina Energy Solutions LLC, v. Willie Miller, et al., the U.S. Court of Appeals for the Fourth Circuit held that an employee’s misappropriation of his employer’s trade secrets is not a violation of the federal Computer Fraud and Abuse Act (“CFAA”).  By adopting a narrow interpretation of the CFAA, the Court contributed to a deepening split among the federal appellate courts regarding the proper construction of the Act. The CFAA was passed by Congress in 1986 to address computer crime.  Today, it remains principally a criminal statute designed to combat computer hacking, although it does allow injured private parties to sue for compensatory damages and injunctive relief. The WEC case involved a civil action brought by WEC against its former employee and Project Director, Mike Miller.  When Miller worked at WEC, he was authorized to access confidential and trade secret documents stored on the company’s computer servers, including WEC’s price terms and technical capabilities.  According to WEC’s corporate policies, however, Miller was prohibited from downloading that confidential information to his personal computer or otherwise using the information without authorization. WEC alleged that, before resigning from WEC, Miller downloaded confidential documents to a personal computer.  WEC further claimed that Miller later used that confidential information when making a presentation to a potential WEC customer on behalf of a competitor.  After that customer awarded two projects to the competitor, WEC filed suit against Miller, asserting violations of several state statutes as well as the CFAA. After the trial court dismissed WEC’s CFAA claim, WEC appealed to the Fourth Circuit, which affirmed.  The Fourth Circuit first noted that while the CFAA permits a private party to bring a claim for violations of the Act, it is “primarily a criminal statute designed to combat hacking.”  The Court further observed that because the CFAA has both civil and criminal application, its interpretation of the statutory language would apply uniformly in both contexts.  Read More

Firm Newsletter, Summer 2012

August 1, 2012

Articles In This Issue: 1. Yours, Mine & Ours – Who Owns Social Media Information 2. When Does a University Own Rights to an Invention? 3. Mission “Impossible”: Recovering from Generic Prescription-Drug Manufacturers in the Wake of PLIVA, Inc. v. Mensing Related Information: Firm Newsletter, Summer 2012 Read More