By: Ogletree Deakins

As the number of states allowing weapons in the workplace increases (nine, at the present time), employers should be aware of court decisions related to those laws. Recently, the Supreme Court of Kentucky reversed a holding in which a lower court supported the firing of an anesthesia technician at the University of Kentucky Chandler Medical Center (UKCMC). The technician was fired for having a loaded semi-automatic weapon in his car in the University’s parking lot, which was a violation of the University’s policies. In a holding that reversed that decision, the Kentucky Supreme Court found that the UKCMC had violated public policy when it fired the technician for exercising a right allowed to him under the state law.  Mitchell v. University of Kentucky, Ky., No. 10-CI-00489, 4/26/12.

Michael Mitchell was employed on an at-will basis at UKMC while also attending the University as a graduate student. In 2009, Mitchell had a valid license to carry a concealed deadly weapon, pursuant to the applicable Kentucky state statute related to weapon licensing. In April of that year, certain co-workers of Mitchell’s became concerned that he may have had a firearm in his employee locker, and reported that suspicion to UKCMC management. The University’s police department was contacted and questioned Mitchell, who denied the allegation and gave permission for his locker to be searched. While no weapons were found in Mitchell’s locker, Mitchell also admitted that he had a firearm in his car, and tht the car was parked on University property. The University police escorted Mitchell to his car, where he showed to them the semiautomatic pistol, which was then confiscated by the officers pursuant to the University’s policy against possession of a deadly weapon on University property or while conducting University business. Mitchell’s employment was then terminated under the same policy.

Mitchell filed a lawsuit in Kentucky state court, alleging that his firing was in violation of public policy. While employment in Kentucky – as in most states – is “at-will,” there is a narrow “public policy” exception to that doctrine. That means that although an at-will employee may be fired for any reason or no reason, an employee cannot be fired if his or her firing would be contrary to a fundamental and well-defined public policy that is evidenced by an existing law or constitutional provision. In this case, Mitchell alleged that his firing was in contravention of Kentucky’s statute (KRS 527.020), one section of which states that “No person or organization, public or private, shall prohibit a person from keeping a firearm or ammunition, or both, or other deadly weapon in a glove compartment of a vehicle in accordance with the provisions of this [law].” Therefore, had Mitchell stored his gun in his car’s glove compartment, the University would have violated KRS 527.020(8) by firing Mitchell for that act.

However, as a further complication, Mitchell testified at his unemployment compensation hearing that his gun was stored in his car’s armrest, and not in the glove compartment, which would take him outside of KRS 527.020(8). To untangle this issue, the Kentucky Supreme Court then analyzed the case by factoring in KRS 237.110, which authorizes the issuance of “concealed carry” licenses. It also considered KRS 237.115, which specifically states that “Except as provided in KRS 527.020, nothing in KRS 237.110 shall be construed to limit, restrict, or prohibit in any manner the right of a college, university, or any postsecondary education facility . . . to control the possession of deadly weapons on any property owned or controlled by them . . . .”

In other words, a university typically would be allowed to limit the possession of firearms on campus. However, the court determined that this right is qualified by another section of KRS 527.020, at 527.020(4), which allows any person licensed to carry a concealed deadly weapon (as was Mitchell) to store such weapon, and ammunition “in his or her vehicle.” That section does not limit the protected storage area to the glove compartment. Therefore, KRS 527.020(4) forbids public and private organizations — including universities and hospitals — from prohibiting deadly weapons anywhere in a vehicle, if the weapon owner is licensed to carry a concealed weapon, as Mitchell was.

The Kentucky Supreme Court pointed out the circular nature of this group of statutes, each of which seems to refer back to another as controlling. To untangle this, it looked to the “strong public policy” expressed by the state’s General Assembly “in favor of exempting a person’s vehicle from restrictions on the possession of deadly weapons,” and found that UKCMC improperly prohibited Mitchell from keeping his gun in his car, based upon his license to carry a concealed weapon. The court therefore held that Mitchell’s termination was contrary to public policy.

Because this decision was based upon one court’s complicated and somewhat convoluted analysis of a group of possibly conflicting statutory provisions, it heightens the fact that employers must be knowledgeable about their particular state’s weapons laws and, when appropriate, should add their voices to bring legislators’ attention to possible conflicts between those statutes and issues of public safety, as in the circumstances of the university/hospital employer in this case.
 

The Equal Employment Opportunity Commission (EEOC) has issued an updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. That Guidance, which takes effect immediately, is a compilation of the past policy documents and prior court decisions regarding the EEOC’s position that employers’ reliance on arrest and conviction records may have a negative impact on individuals because of race or national origin. According to the Guidance, Title VII violations may occur during background checks in two ways: (1) “disparate treatment,” when employers treat applicants/employees differently, making distinctions between employees of different races based on the employer’s subjective judgment as to the relative severity of past convictions; and (2) “disparate impact,” when an employer’s neutral background check policy or practice disproportionately affects individuals in a protected category. The Guidance focuses largely on "disparate impact" type discrimination.

When viewing an employer’s decision for disparate impact, the EEOC first identifies the policy or practice causing the alleged disparate impact. The EEOC then has the burden of showing an actual disparate impact on a protected group, using statistical evidence. Employers should be prepared for increased requests from the EEOC for applicant and hiring data on this account. Once the EEOC has established the existence of a disparate impact, the employer may assert an affirmative defense stating that its background policy or practice is job related and consistent with business necessity. Importantly, the EEOC reiterates in the Guidance a position that it has put forth in numerous past cases, that an arrest, without more, can never be “job-related and consistent with business necessity” because an arrest does not establish that criminal conduct has occurred. Under our criminal justice system, individuals are presumed innocent until proven guilty, and an arrest does not necessarily lead to a conviction establishing guilt. Therefore, employers should not make hiring decisions based solely upon arrest records.

The EEOC identifies two circumstances in which an employer can establish the "job-related and consistent with business necessity" defense. The first requires a validation study or an analysis of criminal conduct as related to subsequent work performance or behaviors, an esoteric standard which most private employers will not readily be able to meet. The second, however, is more accessible, although more time consuming and effort intensive. It involves a “targeted screening process’ for all applicants that sets parameters for the nature and gravity of offenses or conduct; the amount of time that has passed since the offense, conduct, and/or completion of the sentence; and the nature of the job held/sought. Once a group of applicants has been screened using these factors, each of those applicants then should be allowed an individualized review of his or her specific criminal background issue. The Guidance establishes a de facto requirement for individualized screening of applicants and candidates by stressing that an employment screening process that does not include individualized assessments is more likely to violate Title VII.

In its general “Best Practice” summary, the EEOC lists only two points. The first, an instruction to “train managers, hiring officers, and decisionmakers about Title VII and its prohibition on employment discrimination” will be familiar to employers as something that HR and legal advisors typically suggest. The second point, however, a directive to “eliminate policies or practices that exclude people from employment based on any criminal record,” is more problematic. According to Jay Glunt, shareholder in Ogletree Deakins’ Pittsburgh office, this one-line directive is certain to raise some concern among employers, especially in light of recent developments in “Ban-the-Box” legislation in various states and municipalities. Without additional guidance and detail, this statement indicates that the EEOC will not look favorably on any exclusionary policies, whether or not legislatively precluded. Therefore, employers must assure that any exclusion of applicants on the basis of criminal background is clearly “job-related and consistent with business necessity” to avoid negative attention from the EEOC.

The EEOC has posted a Question & Answer summary of the Guidance for public view. 

Unless reversed or stayed before the end of the month, an April 13, 2012 ruling by a federal district court in South Carolina will block the implementation of a National Labor Relations Board (NLRB) rule that would require most U.S private-sector employers — including most of the 6 million small business in the U.S. — to post a written notice of employee rights regarding unionization. Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, and then further postponed until April 30, 2012. Now, the posting deadline is up in the air again.

A judge for the U.S. District Court for the District of South Carolina held that the National Labor Relations Act (NLRA) does not provide or support authority to the NLRB to promulgate such a rule. Although the judge specifically stated that he “does not discredit” the NLRB’s assertion that employees need additional information about their NLRA rights, he granted summary judgment to the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce, noting that “the NLRA does not require employers to post general notices of employee rights under the Act,” and that the NLRA primarily “places the Board in a reactive role” in dealing with labor complaints made by employees. According to the court, there is nothing in the NLRA that allows the Board to enlarge the authority specifically granted in the Act, and that promulgating the proposed rule would do just that. The judge’s footnote to Simon & Garfunkel lyrics — “And no one dared / disturb the sound of silence.” Simon & Garfunkel, The Sound of Silence (Columbia Records 1966) — was an effective illustration of the court’s point that “there is not a single trace of statutory text that indicates that Congress intended for the [NLRB] to proactively regulate employers in this manner.”

Earlier this year, in a case involving a similar challenge to the rule filed by the National Association of Manufacturers and other groups, the U.S. District Court for the District of Columbia conversely held that the NLRB did not exceed its statutory authority by requiring employers to post the required "Notification of Employee Rights under the National Labor Relations Act." In that case, the court concluded that the Board has the authority under the NLRA to promulgate a rule that requires all employers to post a notice, because there is nothing in the NLRA that indicates that “Congress unambiguously intended to preclude the Board from promulgating [such] a rule. . . .” National Assn. of Manufacturers v. NLRB, No. 11-1629 (ABJ), .D.D.C., 3/2/2012 (see detailed summary and a link to the opinion in the March 4, 2012 posting at www.employmentlawmatters.net). While that decision has been appealed, there had been no decision as of this date from the D.C. Circuit Court of Appeals on a request to stay the implementation of the rule.

In the more recent decision, the South Carolina court concluded that promulgation of the rule is unlawful, and granted summary judgment in favor of the plaintiffs/business groups, and against the NLRB and its members. That decision will effectively suspend the April 30 deadline, unless action is taken in the coming weeks to overturn the decision or stay its effects. Apparently, this “Dangling Conversation” will have to wait for an appellate court action to create some kind of “Bridge Over Troubled Water”. . . .
 

The anti-discrimination provisions of Title VII of the Civil Rights Act apply only to employees. The determination of whether an individual is an “employee” for purposes of that Act depends largely on whether a putative employer exercised control over the manner and means by which the individual performed a job. While most employers assume that an employee who is hired as an “independent contractor” does not work under such control, one federal appeals court recently determined that a hospital’s quality assurance program that led a physician, who was hired as an independent contractor, into its peer review process may have created an employment relationship, allowing the physician to move forward with claims under Title VII. Salamon v. Our Lady of Victory Hospital, W.D.N.Y., No. 1:99-cv-48, 4/3/12.

In 1999, Dr. Barbara Salamon, a board certified gastroenterologist and internist with medical staff privileges at Our Lady of Victory Hospital (“OVH”) in New York State, filed a lawsuit against that hospital and four individuals, claiming that she had been discriminated against on the basis of her gender. According to Salamon, one of the individual defendants sexually harassed her and made unwanted advances. When Salamon complained about that behavior, she allegedly received undeserved negative performance reviews. Salamon also claimed that the remaining defendants were complicit when they used the hospital’s peer review process to punish her for reporting the harassment.

The Defendants in the case moved for summary judgment in 2001. After discovery and arguments, a decision was issued by the lower court in 2006, and the motion was granted, based on the lack of an employee-employer relationship. In 2008, the 2d U.S. Circuit Court of Appeals vacated that judgment and remanded the case for further consideration. Salamon v. Our Lady of Victory Hospital, et al., 514 F.3d 217 (2d Cir. 2008). Specifically, the Second Circuit asked the lower court to again review the status of the relationship between Salamon and OVH to determine whether Salamon was an “employee” for purposes of Title VII.

The hospital did not pay a salary or other monetary compensation to Salamon; she billed patients and insurers directly for her services. In addition, however, Salamon’s clinical privileges extended to the use of the hospital’s facilities and equipment in the GI lab, both of which were vital to her practice. Importantly, Salamon was required to submit to the hospital’s “Staff Rules and Regulations.” One significant piece of hospital supervision over Salamon was a “quality assurance” process under which hospital practitioners, on a rotating basis, would review procedures conducted by various physicians at the hospital. Cases flagged as “problematic” under the process would be discussed further. Doctors whose cases were flagged would be subject to a peer review and, if appropriate, reported to the National Practitioners Data Bank (NPDB).

Salamon alleged that her relationship with the hospital changed and the level of review of her practice changed significantly after she complained of unwanted sexual attention. Her cases began to be reviewed regularly and criticized to an extent substantially greater than other (male) doctors’ cases. As a result of these reviews, Salamon was ordered to undergo a three-month “re-education” and mentoring program. Salamon was warned that her failure to complete the program would lead to a report to the NPDB.

In re-considering the facts of the case on remand, the district court’s primary focus was on whether Salamon was an independent contractor or an employee. To make that determination, the court looked to the U.S. Supreme Court’s decision in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). In that case, the Supreme Court set forth thirteen factors that should be considered: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities/tools; (4) the location of the work; (5) the duration of the relationship; (6) whether the hiring party can assign additional projects to the hired party; (7) the extend of the hired party’s discretion over when/how long to work; (8) the method of payment; (9) the hired party’s ability to hire/pay assistants; (10) whether the work id part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party. While no single factor is dispositive, the primary emphasis is put on the first factor – the extent to which the hiring party controls the manner and means by which the worker completes her tasks.

While policies that merely reflect professional and governmental regulatory standards may not create the level of control that establishes an employment relationship for purposes of Title VII, the evidence submitted by Salamon indicated that the policies imposed upon her, and the imposition of the peer review process on her cases to such a large degree, may have been motivated by the hospital’s goal of maximizing revenue, and/or in reaction to Salamon’s complaints of harassment. Because a reasonable fact finder could conclude that the hospital’s quality assurance standards extended beyond health and safety concerns or to Salamon’s specific medical qualifications, and because Salamon was subject to possible negative peer review for violation of those standards, Salamon was able to demonstrate a genuine factual conflict regarding the extent of control exercised by the hospital over her performance. Therefore, the lower court’s decision was reversed, allowing the Title VII and related state claims to go forward to a jury.

Employers — especially hospital and heath system entities — should be aware of this decision, and should become familiar with the 13 factors set forth by the Supreme Court for use in reviewing these circumstances. Primarily, employers must recognize that the degree of control exercised over the work performance of individuals, if not established for reasons related to the quality of the service provided, can re-categorize an independent contractor into an employee for purposes of Title VII liability.
 

The Federal Circuits currently are split on the issue of whether the ADA requires reassignment of disabled employees to vacant positions when a more qualified candidate exists, with the 10th Circuit and the District of Columbia Circuit holding that the ADA creates preferential treatment for disabled candidates, and the 7th and 8th Circuits holding that while such reassignment may be a reasonable accommodation, the ADA does not obligate employers to reassign a disabled individual if a better qualified applicant exists.

Recently, a panel of the 7th U.S. Circuit Court of Appeals again addressed the issue, and found that prior Seventh Circuit decisions obligated it to find that the ADA does not establish preferential treatment for disabled individuals. EEOC v. United Airlines Inc., 7th Cir., No.11-1774, 3/7/12. In that case, the Equal Employment Opportunity Commission sued United Airlines (UA), based upon UA’s Reasonable Accommodation Guidelines. Those guidelines specifically stated that while transfer to an equivalent or lower-level vacant position may be a reasonable accommodation, the transfer process was a competitive one, and that a disabled employee will not automatically be placed into a vacant position. Under the Guidelines, if a non-disabled individual was more qualified that a disabled applicant, the non-disabled person would be awarded the position. (The policy did state that a disabled employee could submit an unlimited number of transfer applications, and that he or she would be guaranteed an interview and would be given “priority consideration” over a similarly qualified candidate. However, the company reserved the right to hire the most qualified candidate for the position.)

The EEOC brought a lawsuit challenging those Guidelines, and arguing that the ADA requires that a disabled person be advanced over a more qualified nondisabled candidate, “provided that the disabled person is at least minimally qualified to do the job, unless the employer can show undue hardship.” However, the Seventh Circuit previously had rejected that assertion in the case of EEOC v. Humiston-Keeling in 2000, stating that the ADA “does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.”

Under the concept of stare decisis, judges are obliged to respect the precedents established by prior decisions of the same court. The Seventh Circuit panel hearing the United Airlines matter was bound by the Court’s earlier decision in the Humiston-Keeling case. In Humiston-Keeling, an individual could not perform a conveyor belt job, due to an injured arm. Although she applied for a number of clerical positions, the employee was not hired for any of them, because – according to the employer – better qualified candidates were chosen. In Humiston-Keeling, the Seventh Circuit rejected the EEOC’s argument and held that the ADA did not require preferential hiring if a more qualified applicant existed.

In an interesting twist, however, the panel urged full court review of the issue, stating that “the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive . . . .” Based upon that statement, it seems evident that the Seventh Circuit may be inclined to follow the 10th and D.C. Circuits in holding that an employer is obligated to reassign a disabled individual to a vacant position, so long as the individual is minimally qualified for the position, and there is no undue hardship created by that placement.

Because this is an unsettled issue, employers should be cautious when making decisions regarding the reassignment of disabled employees, and should fully document the reasons for such decisions to assure compliance with the ADA.
 

It is generally understood that employees can bring Title VII claims – and be awarded damages – for hostile environment, wrongful termination, and retaliation. What is less clearly understood is the extent of the economic damages for which a former employer may be liable in the situation in which a litigant claims to have lost a job opportunity because of a retaliatory action on the part of that former employer. The 5th U.S. Circuit Court of Appeals recently answered that question by quoting the wording of Title VII, and holding that the law “does not require that the employer liable for back pay be the same entity for whom the plaintiff would have worked had he not suffered unlawful retaliation.” Nassar v. Univ. of Texas Southwestern Medical Center at Dallas, 5th Cir., No. 11-10338, 3/8/12.

Naiel Nassar, a U.S. citizen since 1990, was born in Egypt and attended medical school there. He subsequently did a medical residency and a fellowship in infectious diseases at the University of California, Davis. In 2001, Nassar was hired by the University of Texas Southwestern Medical Center (UTSW) as an Assistant Professor of infectious disease medicine. Part of Nassar’s duties required that he provide patient care at Parkland Hospital’s Amelia Court clinic, an outpatient HIV/AIDS clinic affiliated with UTSW.

In 2004, UTSW hired Dr. Beth Levine as the chief of its infectious disease program. In that role, Levine directed that Nassar begin billing for the services he provided to the HIV clinic. Nassar objected to the directive, arguing that his salary for clinical services was fully funded by a federal grant, and stating that billing the patients therefore would be “double dipping.” Nassar claimed that Levine then began to “harass” him, making derogatory statement about his race and his Muslim religion, including one comment that “middle easterners were lazy.” His allegations were supported by a clinical supervisor, whose affidavit described a “disconnect between Dr. Levine’s [derogatory] statements and the reality of Dr. Nassar’s work.” Based on his concerns about Levine, Nassar ultimately applied for direct employment by Parkland Health & Hospital System in 2006. Parkland made preparations to hire Nassar, drafting a letter offering a staff physician job to Nassar. However, the offer was later withdrawn. Nassar contended – and testimony supported the claim – that UTSW retaliated against him by blocking the offer from Parkland because Nassar stated in his resignation letter that his primary reason for leaving UTSW was Levine’s harassment and discriminatory comments. Nassar ultimately accepted a job in a smaller clinic in Fresno, California, and filed a lawsuit against UTSW in federal court alleging discrimination/constructive discharge and retaliation.

At trial, the jury was presented with only two questions: (1) Whether Nassar was constructively discharged because of his race, national origin, or religious preference; and (2) Whether UTSW retaliated against Nassar by blocking or objecting to his employment by Parkland after Nassar complained about his treatment at UTSW. After one hour of deliberations, the jury answered “Yes” to both questions. Two days after the May 24, 2010 verdict, the same jury awarded $3.2 Million in compensatory damages and $438,000 in lost back pay to Nassar. The trial court reduced the compensatory damage award to $300,000 under the Title VII damage cap, but added nearly $500,000 in attorney fees and costs to Nassar’s award. Both sides appealed the awards.

Upon review, the Fifth Circuit reversed the verdict against UTSW on Nassar’s constructive discharge claim, holding that while the evidence that Nassar provided to the jury may have supported a claim of hostile environment, that evidence did not rise to the level of egregious conduct necessary to support a claim of constructive discharge. However, the Court upheld the jury’s verdict on the retaliation claim, and further upheld the method used by the jury to calculate Nassar’s lost income.

While UTSW argued that Nassar’s lost income should have been the difference between that which he was earning at UTSW ($166,395 as an Assistant Professor) and his subsequent compensation in California (which varied from $165,000 to $180,000 a year, including benefits), the district court allowed the jury to calculate the lost pay by comparing Nassar’s prospective income from Parkland ($240,500 a year, including benefits) to the amount that he was earning in California. Using that method, the jury awarded Nassar $436,167.66 in lost back pay. The Fifth Circuit upheld that award because it made Nassar whole by placing him in the position that he would have been in “but for” the retaliation.

This case is a strong reminder that unlawful retaliation can take the form of a former employer preventing an individual from getting a job with another employer. Under Title VII, lost income is payable by the employer responsible for the unlawful employment practice, and may be calculated as the difference between the individual’s former pay, and that which he would have earned had the retaliation not occurred.  If, as in this case, evidence indicates that the retaliation kept the individual from moving to a more highly lucrative position, the former employer risks being liable for the loss of a substantially higher wage.

In addition, employers – especially hospital and healthcare entities that are contemplating direct hiring of physicians – should understand that an employee, or former employee, can successfully prove retaliation without having successfully proven discrimination or a constructive discharge claim, and that damages for lost pay and benefits for highly compensated individuals can be substantial.
 

Title VII of the Civil Rights Act makes it an unlawful employment practice for an employer to discriminate against “any individual" on the basis of membership in a protected class. In a reminder to employers, the 4th U.S. Circuit Court of Appeals has reiterated the generally accepted interpretation that in this language, Title VII explicitly allows former employees, as well as current ones, to bring an action under that statute. Gerner v. County of Chesterfield, 4th Cir., No.11-1218, 3/16/12.

Karla Gerner was employed by Chesterfield County, Virginia, for over 25 years, with twelve of those years as the County’s Human Resources Director. In 2009, Gerner was informed that her job was being eliminated due to a reorganization of the department, and was told that she was entitled to three months of pay and benefits as a severance, if she would resign and sign a waiver of legal claims against the County. Gerner ultimately declined that offer and was fired, effective December 15, 2009.

Gerner filed a lawsuit, alleging that certain male counterparts – also former directors of County departments – had received “sweetheart” deals of up to six months of pay and benefits, or were placed into positions with less responsibility while continuing their prior pay, in order to allow them to “enhance their retirement benefits.” The district court granted the County’s motion to dismiss Gerner’s complaint, holding that the terms and conditions of the severance package did not constitute an adverse employment action. That court found that the County’s offer of a “less favorable severance package" did not constitute an adverse employment action for two reasons. First, the court held that severance benefits must be a "contractual entitlement" to provide the basis of an adverse employment action under Title VII; and second, the court held that because the offer of the severance package was made after Gerner had been terminated, it could not constitute an adverse employment action.

The Fourth Circuit reversed that decision on both grounds. First, it cited the U.S. Supreme Court’s holding in Hishon v. King & Spalding, 467 U.S. 69 (1984), which precludes the argument that an employment benefit must be a contractual right in order for its denial to provide the basis for a Title VII claim. In Hishon, the Supreme Court held that any "benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all." The Hishon Court clearly stated that benefits that an employer is under no obligation to furnish by any express or implied contract may qualify as a “privilege” of employment under Title VII, and may provide the basis for a Title VII claim, as long as the benefit is "part and parcel of the employment relationship." In Gerner’s situation, in which she did not voluntarily ask for removal from her position, but was offered the severance in return for resignation and a release of claims, the severance was deemed to be the required “part and parcel” of the relationship.

The Fourth Circuit addressed the district court’s holding that Gerner did not suffer an adverse action because she was terminated before being denied the severance, and found that rationale lacking, as well. The Court pointed to the language of Title VII, protecting “any individual,” and again cited to the Supreme Court’s opinion in Hishon (“A benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship") to support the fact that an employment benefit can constitute an adverse action, even if it related to a former employee. According to the fourth Circuit, to limit actionable adverse employment actions to those taken while an individual is currently employed would be inconsistent with Title VII’s “principal goal” of "eliminat[ing] discrimination in employment."

While most employers, if asked, would say that an individual’s severance is related to that person’s employment, and would recognize that denial of or unequal benefits could constitute an adverse employment action supporting a Title VII claim, the Fourth Circuit opinion leaves no room for doubt: former employees can bring a claim for issues related to their separation from employment, including a claim based upon the terms of any offer of severance.
 

On March 2, 2012, a federal trial judge in the D.C. Circuit Court of Appeals issued a highly-anticipated ruling on the National Labor Relations Board’s (NLRB) controversial notice posting rule. National Association of Manufacturers v. NLRB, No. 11-1629 (ABJ), U.S. District Court for the District of Columbia (March 2, 2012).

As most employers now are aware, private-sector employers whose workplaces fall under the jurisdiction of the National Labor Relations Act (NLRA) jurisdiction soon will be required to post a notice of employee rights regarding unionization, pursuant to the NLRB’s final rule related to the Notification of Employee Rights under the NLRA. That final rule, which becomes effective on April 30, 2012, requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011. However, that deadline was extended a number of times, most recently to allow a federal judge in the D.C. Circuit Court of Appeals to make a determination on legal challenges to that final rule.

Those legal challenges came about when, after the NLRB issued the proposed final rule on August 30, 2011, the National Association of Manufacturers (NAM) and National Right to Work Legal Defense and Education Foundation (NRTW) brought separate actions – later consolidated – against the NLRB, its members, and its General Counsel, seeking to invalidate the Rule. In addition to claiming a violation of First Amendment rights, the actions alleged that the NLRB lacked the authority: (1) to promulgate and enforce the notice posting rule; (2) to require employers to post a notice absent the filing of an unfair labor charge or union petition; (3) to deem the failure to post to be an unfair labor practice; and (4) to toll the statute of limitations for filing an unfair labor practice charge.

In the March 2 holding, the D.C. Circuit Court judge held that the NLRB did not exceed its statutory authority by requiring employers to post its "Notification of Employee Rights under the National Labor Relations Act." The court concluded that the Board has the authority under the NLRA to promulgate a rule that requires all employers to post a notice of employee rights, because there is nothing in the NLRA that indicates that “Congress unambiguously intended to preclude the Board from promulgating [such] a rule. . . .” The court further also declined to find that the NLRB’s promulgation of the notice posting provision was “arbitrary and capricious,” which could have invalidated the rule. In addressing the NLRB’s authority to penalize employers that failed to post the notice, the court held that "the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice." However, the court went on to say that the Board could make this determination on a case-by-case basis. Therefore, while the Board exceeded its authority under the NLRA when it promulgated a rule that failure to post the required notice would automatically be a violation of the NLRA, a determination of whether a particular failure to post would constitute such ULP still can be determined by courts on a case-by-case basis.

The court came to a similar conclusion with regard to Section 104.214(a) of the Rule, which extends the statute of limitations for unfair labor practice proceedings arising out of the failure to post, and which applies to all unfair labor practice actions against employers where the notice was not posted. The court found that the NLRA does not authorize the Board to enact a rule that permits it to automatically toll the statute of limitations in any future unfair labor practice action involving a job site where the notice was not posted. However, also the court opened a door in this instance for the NLRB to find that tolling is appropriate on a case-by-case basis where the notice is not posted.

Therefore, based on the March 2 court decision, employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions – depending on the facts of the specific circumstance – for an unfair labor practice under the NLRA and, an extended statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. Importantly, if an employer knowingly and willfully fails to post the notice, that failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

It should be noted that another challenge to the Rule, which was filed by the U.S. and South Carolina Chambers of Commerce, is still pending in U.S. District Court in Charleston, and has yet to be decided.
 

On February 28, 2012, the Equal Employment Opportunity Commission (EEOC) released two publications addressing the rights of military veterans with disabilities under the Americans with Disabilities Act (ADA), as part of its efforts to aid such veterans in the transition back into civilian employment.  According to government statistics, three million veterans have returned from military service over the past 10 years, and another 1 million veterans are expected to return to civilian life over the next five years.  The EEOC’s revised “guide for employers” explains how legal protections for veterans with disabilities compare between the ADA and the Uniformed Services Employment and Reemployment Rights Act (the USERRA) and how employers can prevent disability discrimination and provide reasonable accommodation for returning veterans. The guide includes information on organizations that can help employers to find qualified veterans for jobs, and aid in developing accommodations for veterans’ medical and psychological impairments.

The USERRA prohibits employers from discriminating against employees (or applicants) for employment on the basis of their military status or military obligations. It also protects reemployment rights for those employees who leave their civilian jobs to serve in the uniformed services, including service in the U.S. Reserve forces and National Guards, and attempt to return after completing that service. In addition, under the USERRA, employers must make "reasonable efforts" – including training and re-training – to help each returning veteran to become qualified to perform his or her employment duties. The USERRA applies to all veterans, not just those with service-connected disabilities, and to all employers regardless of size. Reemployment rights of returning veterans are spelled out on the Department of Labor’s website at www.dol.gov/vets. The EEOC’s recently released “guide for wounded veterans” answers questions regarding veterans with service-related disabilities and their legal rights when seeking to enter or re-enter the civilian labor force.

The EEOC’s publications update guides that originally were published in February 2008, prior to the amendments to the ADA which took place in January 2009 (the ADAAA), and reflect changes stemming from those amendments. The ADAAA makes it easier for veterans with a range of impairments – specifically including traumatic brain injuries and post-traumatic stress disorder – to obtain the reasonable accommodations that will allow them to return to work or successfully apply for work. In addition to efforts by governmental agencies like the EEOC, returning veterans with impairments are being aided by non-profits, including the Wounded Warrior Project, which work to raise public awareness to the needs of injured service members.

According to Jay Glunt, shareholder in the Pittsburgh Office of Ogletree Deakins, the recent EEOC publications indicate a focus by the Commission on employers’ efforts to meet the unique needs of veterans with disabilities in making the transition back to civilian work-life. Glunt recommends that knowledgeable employers develop and ensure training for both human resource personnel and company managers in identifying, addressing, and implementing reasonable accommodations for those unique needs, thereby assuring compliance with both the USERRA and the ADAAA while doing the right thing for individuals who have given their own efforts in military service.
 

The 4th U.S. Court of Appeals has dismissed an employee’s lawsuit, holding that the individual’s inability to work overtime hours was not a substantial limitation that would entitle him to the protections of the Americans with Disabilities Act (ADA). Boitnott v. Corning Incorporated, 4th Cir., No. 10-1769, February 10, 2012.

Michael Boitnott, an employee of Corning, was diagnosed with a form of leukemia while on a medical leave in 2003. Although no treatment was required for his illness, Boitnott advised Corning in 2004 that he would be unable to return to his regular work schedule as a maintenance engineer. That schedule consisted of 12-hour shifts, alternating two weeks of day shifts with two weeks of night shifts. According to Boitnott’s doctor, Boitnott was capable of working a normal 8-hour day and 40-hour week, but was unable to work overtime.

Because Boitnott could not return to his prior position, he applied for – and initially was granted – long term disability (LTD) benefits in May 2004, and then filed a charge of discrimination against Corning, alleging that the company failed to accommodate his disability. However, the carrier terminated Boitnott’s LTD benefits in October of 2004, based on the fact that Boitnott was capable of working a normal 40-hour workweek, and that certain maintenance positions existed at that point which did not require overtime.

In June 2005, one of Boitnott’s doctor’s indicated that Boitnott could return to work for up to 10 hours a day, four days a week, but did not mention overtime. One other doctor said that Boitnott could work the four 10-hour days with “moderate” overtime. However, at that point, none of the day shift maintenance positions were available. Corning then worked with the union to resolve the issue by creating a new maintenance position consisting of day shift work of 8 hours a day with limited overtime. Boitnott was allowed to apply for that position, in spite of the fact that he was not on active status. He was hired for the position, and has held the job since 2005.

An individual seeking the protections of the ADA must show that his impairment “substantially limits” a major life activity. If an individual cannot demonstrate that his impairment limits what is typically viewed as a major life activity (i.e., seeing, hearing, walking, etc.), courts can then consider whether the impairment limits his ability to work. To do so, the individual must show a significant restriction in his ability to perform either a “class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”

Federal appellate courts previously have addressed the question of whether the inability to work overtime is a substantial limitation on the major life activity of working. The First, Third, Fifth, Sixth, and Eighth Circuits all have held that an employee is not “substantially limited” if he or she can work a 40-hour workweek, but is unable to work overtime hours. The Fourth Circuit now joins that group. The Court based its holding on the fact that beginning as early as February 2004, Boitnott was cleared to work a full 40-hour workweek, and that his ability to work overtime did not significantly restrict his ability to perform a class of jobs or a broad range of job in various classes in his geographic area.

While this decision is consistent with decisions of its sister circuits, the Fourth Circuit was careful to make an individualized inquiry into the local labor market to assure that other jobs actually were available that were consistent with Boitnott’s restriction of “no overtime.” Employers should be aware of that fact, and should not assume that the inability to work overtime can never support a successful ADA claim.