Wyatt Employment Law Report


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NLRB Contemplates Major Change in Elections at Long-Term Care Facilities

By George Miller

On December 22, 2010, the National Labor Relations Board issued a news release inviting interested parties to file briefs on the issue of the appropriate composition of bargaining units in long-term care facilities.  The briefs would be filed in a pending election case in Mobile, Alabama in which the United Steelworkers petitioned for an election to represent certified nursing assistants at a nursing home in Mobile.  The employer in that case, Specialty Healthcare and Rehabilitation Center of Mobile, contends that, under current Board law, the unit must include all nonprofessional service and maintenance employees, such as dietary aides, cooks, and clerks. The NLRB Regional Director found the unit requested by the union was appropriate, and the employer has appealed that decision to the Board.
 


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Look For Increase in Audits For Independent Contractors

By Kim Koratsky

The employee/independent contractor question is often a thorny issue for employers, but in the next year, it could be an even bigger problem.  According to an article in Crain’s Cleveland Business, “[o]ver the past two years, the Wage and Hour Division of the U.S. Department of Labor has hired more than 350 investigators to uncover employment violations, including misclassification, and President Obama has requested $25 million in the fiscal 2011 budget to target the issue further.”  In addition to the government crackdown, class action lawsuits brought against employers accused of misclassifying employees have increased significantly in recent years.

It is much easier to solve these problems with an internal audit than to wait for an official audit by the Department of Labor (DOL).  DOL audits can be devastating to a small business.  The DOL audit process, and appeals if pursued, are long and expensive, even if companies end up not owing back pay, penalties and interest.  While the DOL seems to be looking at all businesses, sectors that are drawing particular scrutiny include trucking, construction, manufacturing, information technology, and home health care. 

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A Room with a View – The Costly Consequences of Ignoring a Small Request for Accommodation

By Debra H. Dawahare

As everyone knows by now, the Americans with Disabilities Act requires covered employers to offer reasonable accommodations to employees with conditions that substantially limit major life activities.  During the statute’s early history, the courts tended to interpret the definition of “disability” narrowly.  Congress responded with the ADAAA, scolding the courts for their narrow interpretations and requiring employers to assume that almost anyone requesting an accommodation is disabled.

 In a recent federal case, a school district in Wisconsin chose to contest an employee’s claim of disability, and ended up with an adverse trial verdict of almost $2M.  In Ekstran v. School District of Somerset (WI) the complainant was a kindergarten teacher with Seasonal Affective Disorder (“SAD”), whose assignment to a windowless classroom exacerbated her condition. The symptoms of SAD include depression, fatigue, and panic attacks.

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Court Allows Discovery of Social Networking Postings in Discrimination Case

By Debra H. Dawahare 

The United States District Court for the Eastern District of Indiana has recently ruled that complainants in a discrimination case must produce information posted on their MySpace and Facebook pages, in response to the defendant company’s discovery requests.  

In Equal Employment Opportunity Commission v Simply Storage Mgmt. LLC, et.al., 2010 WL 3446105 (S.D. Ind. May 11, 2010), the EEOC objected to these discovery requests: 

REQUEST NO. 1:  All photographs or videos posted by [complainant] or anyone on her behalf on Facebook or MySpace from April 23, 2007 through the present.

REQUEST NO. 2:  Electronic copies of [complainant’s] complete profile on Facebook and MySpace (including all updates, changes or modifications to [complainant’s] profile) and all status, updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including but not limited to “How well do you know me” and the “Naughty Application”) for the period from April 23, 2007 to the present.  To the extent electronic copies are not available, please provide the documents in hard copy form.

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EEOC: Obesity is a Disability

By Kim Koratsky

According to a press release from the Equal Employment Opportunity Commission (EEOC), it has filed suit in New Orleans, LA, against Resources for Human Development, Inc. (RHD), for firing an employee (Lisa Harrison) because of her obesity, in violation of the Americans with Disabilities Act.  According to the EEOC’s suit, Harrison began working for RHD in 1999, counseling mothers of children undergoing treatment for addiction.  The EEOC alleges that, as a result of her obesity, Harrison was perceived as being substantially limited in a number of major life activities, including walking.  The suit stems from a Charge filed by Harrison in which she claimed that RHD fired her because of her disability.  Before the suit was filed, Harrison died and her interests will be represented by her estate.

In a statement, Keith Hill, field director of the EEOC’s New Orleans office said, “this is a classic case of disability bias, based on myths and stereotypes.”  A non-profit organization, RHD is based on Pennsylvania, has facilities in 14 states, and more than 4,000 employees.


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Employment Cases Pepper U.S. Supreme Court Docket

By Kim Koratsky

            As the first Monday in October looms on the horizon, we ponder what the new U.S. Supreme Court term means for employers.  Labor & employment cases are certainly the majority of cases on federal dockets nation-wide.  Likewise, the U.S. Supreme Court will be considering a number of employment-related cases this term.  Among those cases are:

  • Kasten v. Saint-Gobain Performance Plastics Corp.:  Testing whether oral complaints to a supervisor are protected under the anti-retaliation provisions of the Fair Labor Standards Act.
  • Thompson v. Northern American Stainless L.P.:  Whether Title VII creates a cause of action for third party retaliation for persons who did not themselves engage in protected activity.
  • Staub v. Proctor Hospital:  Can employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision (cat’s paw theory)?
  • AT&T Mobility v. Concepcion:  Whether Federal Arbitration Act preempts state unconscionability law
  • Chamber of Commerce of the United States v. Whiting:  Preemption of Arizona statute that imposes sanctions on employers who hire unauthorized aliens.
  • (Cert. Pending) Wal-Mart Stores v. Dukes:  Whether certification of a huge class action was proper.


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Wyatt Blog Referenced in ALI-ABA Webcast

Wyatt’s Employment Law Blog was mentioned in a September 21, 2010, video webcast entitled, Employment Law Update: Fall 2010, by Robert B. Fitzpatrick.   We would like to thank Mr. Fitzpatrick for the mention.  Unless we get commentary or feedback, we do not necessarily know who is reading our Blog, but it is always nice to know that folks do.