Issues in Employment Law
August 2001
An employer should thoroughly document ANY termination decision, especially when the employee in question has previously made a complaint alleging harassment or discrimination. However, the employer can be less rigorous in this regard if the previous complaint was made more than 12 months before the termination decision.
The timing of an employee's termination can, and sometimes does, act as evidence of retaliatory motive, if the employee has recently lodged a complaint for discrimination or harassment. However, in Paluck v. Gooding Rubber Company, 221 F.3d, 1003, (7th Cir. 2001), the Federal Appeals Court which decides federal law in Illinois, Indiana, and Wisconsin, asserted that the passage of more than one year from the date of the Complaint to the termination, standing alone, was too long for the timing of the employee's termination to raise the inference of a retaliatory motive for the termination. Further, the Court held that an employee's filing of a discrimination complaint does not prevent an employer from issuing written charges against the employee when his or her conduct warrants disciplinary action.
Employers are free to proceed as they would in circumstances absent a previously filed complaint, but should do so with caution. We are always ready to render appropriate advice, should you encounter this issue.
Until the United States Supreme Court rules on this issue, which will be in the next term, we advise employers to provide written notice to ALL employees who are taking leave as to whether they are eligible for the leave to be protected by the Family and Medical Leave Act, and whether the employer intends to treat this leave as FMLA leave.
Whether an employee's leave will be deemed FMLA leave is important for employers as employees have rights under FMLA which they wouldn't have under a normal leave scenario, such as a requirement under FMLA that the employer preserve the employee's job during the period of the leave. The Department of Labor had issued a regulation that provided that an employee would be deemed to be taking FMLA leave, if the employer failed to advise the employee of his eligibility for FMLA treatment prior to the commencement of the leave. Several Circuits have found that the Department of Labor Regulation is a fair implementation of the Act, while at least two Circuits have found the regulation to be beyond the scope of the Act, and therefore invalid. For example, in Dormeyer v. Comerica Bank-Illinois, et al., 223 F.3d 579, (7th Cir. 2001), the Federal Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, rejected the Department of Labor regulation as invalid because it would permit FMLA treatment of leave, even when the employee was completely ineligible for such leave under the Act, i.e. prior to the employee having worked for the employer for the preceding 12 months.
The United States Supreme Court has recently granted certiorari to one of these cases, and will decide this issue in the next term, which commences in October. Until a ruling is rendered, we advise employers to conform to the regulation, and provide notice upon the commencement of any employee's leave whether the leave will be governed by and treated as FMLA leave.
An employer's legitimate request that an employee submit to a drug test will not subject the employer to liability for discrimination, so long as the drug test is not conducted in a manner that harasses or humiliates the employee, says a Federal Appeals Court.
In Stockett v. Muncie Indiana Transit System, 221 F.3d 997 (1st Cir. 2001), a black employee was required to submit to drug testing after his trainers observed that he appeared to be under the influence of intoxicants. The employee was dismissed after a positive drug test, but claimed that he was targeted for the drug test because of his race. The 1st Circuit Court of Appeals, which covers Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico, decided that the requirement of submission to a drug test is not an adverse employment action which would permit an employee to make a discrimination claim, provided that the drug test itself was conducted in a routine fashion following the regular and legitimate practices of the employer. Further, the black employee couldn't demonstrate that he was treated differently than a similarly situated white employee who was permitted to enter a diversion drug treatment program instead of being terminated. The Court noted that the white employee asked to enter a program before he submitted to the drug test, where the black employee only asked to enter a program after a positive test was returned. Since the employee couldn't demonstrate that he had suffered an adverse action based upon his race, his claim of discrimination fails.
A Federal Appeals Court decided that in a mandatory, pre-dispute, arbitration clause in an employment contract, even in a Collective Bargaining Agreement, the agreement must set out, specifically, which statutory rights and claims will be subject to the arbitration provision.
A majority of federal circuits have held that a Union is not empowered to waive the statutory rights of its member employees in a Collective Bargaining Agreement. The notable exception if the 4th Circuit, which decides federal law in Virginia, West Virginia, North Carolina, South Carolina, and Maryland, which allows a Union to waive these rights on behalf of its employees. This was recognized by the 2nd Circuit Court of Appeals, which covers Connecticut, Vermont, and New York, in Rogers v. New York University, 220 F.3d 73 (2nd Cir. 2001). Additionally, the Court found that the waiver of the employees' rights to a federal forum for discrimination claims needs to be clear and unmistakable and that the waiver in this particular Collective Bargaining Agreement was not sufficiently clear and unmistakable. The clause in this case was a general statement that all disputes which arise under the agreement would be arbitrated. The Court required that there be a specific statement of waiver, and which statutory claims would be included in the waiver.
Again, in the uncertain world of employee arbitration clauses, we urge employers who choose to use such a clause to review the clauses which you use, and seek our advice as to its effectiveness and enforceability.
Employers should seek to reasonably accommodate any employee with a disability, notwithstanding the fact that the employee had made a claim for benefits of an employer's disability plan for being "totally disabled."
One might think that if an employee seeks full disability benefits from an employers plan that the employee would be unable to perform the "essential functions of the job," thereby making himself ineligible to make an ADA claim. However, the US Court of Appeals for the 7th Circuit, which covers Illinois, Indiana, and Wisconsin, found otherwise in Pals v. Schepel Buick & GMC Trucks, Inc. 220 F.3d 495, (7th Cir. 2001). In that case, a sales manager for a used car dealer was injured in an automobile accident, and was unable to walk for a period of time thereafter. He underwent extensive physical therapy and was eventually released to return to work, with some limitations. During his rehabilitation, the employee sought the benefits of the employer's disability plan. When the employer failed to permit him to return to working on any basis, the employee sued under the ADA. In order for an employee to qualify under the ADA, he must be a "qualified individual with a disability" who can perform all of the essential functions of the job, with or without accommodation. The Court held that at the time of his release to return to work, the employee was a "qualified individual" and that his limitations did not effect the "essential functions" of the sales manager job, and that the disability claim itself was not fraudulent of otherwise false. His claims of being "totally disabled" were accurate at the time they we made, but not presently. Thus, the employee was permitted to proceed with his ADA claim.
