Working Hard For Working People

Supreme Court Rules that State Employees Cannot Sue their Employer for FMLA Violations

The Supreme Court issued its decision in Coleman v. Maryland Court of Appeals on March 21, 2012, holding that state employees could not sue their employer for violations of the Family Medical Leave Act. The FMLA allows employees (subject to a minimum hours/minimum employees criteria) up to twelve weeks of unpaid leave for the birth or adoption of a child, or for their own serious health condition or that of a family member. The leave provision has extended to state employers in the past. At issue in the Coleman case was an employee who was terminated after asking for 10 days of leave for his own serious medical condition. The State of Maryland argued that it could not be sued by Coleman for damages relating to the termination under the doctrine of sovereign immunity established by the 11^th Amendment and the Court agreed, at least with respect to the self-care provision, by a vote of 5-4. Part of the majority’s rationale in so holding was that because there is no "widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave." The dissent in the Coleman decision raised significant concerns and pointedly noted that the FMLA, in its entirety, "is directed at sex discrimination," and was "originally envisioned as a way to guarantee -- without singling out women or pregnancy -- that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim." 

The holding in Coleman seems contrary to a 2003 Supreme Court decision involving FMLA and the State of Nevada, which held that state employees can sue under the FMLA provision related to care for ill family members. In that decision, the Court wrote that Congress had the authority to override states' immunity to "protect the right to be free from gender-based discrimination in the workplace" by eliminating "the pervasive sex-role stereotype that caring for family members is women's work."

Previant Legal Show: Sexual Harassment

On August 22, 2011, Attorney Marianne Robbins discussed sexual harassment on the Previant Legal Show (on WTMJ AM 620).  She discussed what conduct constitutes actionable harassment, and what to do if you are the victim of harassment:

Sexual Harassment - Part I

Sexual Harassment - Part II

 

 

 

Supreme Court Dismisses Large Scale Discrimination Claim Against Wal-Mart

On June 20, 2011, the U.S. Supreme Court reversed the Ninth Circuit Court of Appeals’ decision in Dukes v. Wal-Mart, which certified one of the largest class actions in history encompassing approximately 1.5 million current and former female Wal-Mart employees who alleged the retailer discriminated against them in hiring and promotion decisions on the basis of sex in violation of Title VII.

The named plaintiffs in the case sought judgment against Wal-Mart for injunctive and declaratory relief, punitive damages and back pay on behalf of themselves and a nationwide class of women claiming that Wal-Mart’s local managers’ discretionary decisions regarding pay increases and promotions disproportionately favored men and had an unlawful disparate impact on women.  The lower court granted the plaintiffs’ motion for class certification and the Ninth Circuit affirmed concluding that the purported class met Fed R. Civ. P. 23(a)’s commonality requirement and their back pay claims could be certified because the claims did not predominate over the requests for declaratory and injunctive relief.

In an opinion written by Justice Scalia, the Supreme Court dealt a significant blow to class action discrimination litigation and overruled the Ninth Circuit’s decision upholding class certification, finding that the plaintiffs failed to satisfy the commonality requirement of Rule 23(a)(2) which requires that a plaintiff show “there are questions of law or fact common to the class.”  The Court held that in order to show a question of law or fact common to the class to justify certification, the plaintiffs had the burden to prove that the employer operated under a general policy of discrimination related to wages and promotion.  The only policy the plaintiffs’ evidence demonstrated according to the Court, however, established Wal-Mart’s policy of allowing local managers discretion over employment matters—a policy which was the opposite of a uniform employment practice.

The majority also rejected the plaintiffs’ statistical and anecdotal evidence establishing discrimination by local managers, finding that the evidence was insufficient to demonstrate a common mode of exercising discretion that pervades the entire company.  Even though the evidence established that Wal-Mart’s policy of discretion produced an overall sex-based disparity in pay and promotions, the Court held that that showing was insufficient to establish a “specific employment practice” tying all 1.5 million class members’ claims together.

U.S. Supreme Court Rules on Public Employees' First Amendment Rights

On June 20^th, the U.S. Supreme Court issued another blow for public employees in the case of Borough of Duryea v. Guarnieri.  In the case, the Court held that a public employer’s retaliatory actions against an employee for filing grievances do not violate the employees’ first amendment rights unless the employee’s grievances  relates to a matter of public concern.

It has long been established that the free speech clause of the First Amendment protects the speech of public employees from retaliation by their employers, only if the speech concerns a matter of public concern.  Connick v. Meyers, 461 U.S. 138 (1983).   The Third Circuit historically applied the rule that the petition clause of the First Amendment should be treated differently, so that the public employee is protected from employer retaliation when he petitions his employer on a matter of private concern.   The Supreme Court considered, and unanimously overturned the Third Circuit’s. 

The Court held that there is no basis for distinguishing between free speech by a public employee, and the filing of a petition by a public employee, because both may equally interfere with the efficient and effective operation of government, and inviting judicial interference with either speech or petitioning the government has equal potential to intrude into the internal operations of the executive branch of government.  The Court further held that the legislature was free to enact anti-retaliation statutes, and that the petition clause should not be read as a general catch-all anti retaliation statute.  The concurrence opinions go even further, in suggesting that a lawsuit filed by a public employee may not be a petition within the meaning of the First Amendment at all.

The majority opinion specifically suggested an analogy between a lawsuit filed by a public employee and a grievance filed by a public employee, thus suggesting that when a public employee files a grievance concerning an everyday employment dispute, the First Amendment’s petition clause, just like the free speech clause, does not protect him from retaliation from his employer.   The employee may still be able to rely upon contractual protections (such as a requirement of just cause for termination) or state law protections to protect himself from retaliation by his employer.

Judge Strikes Down Walker Collective Bargaining Bill!

Thursday, May 26, 2011, Judge Maryann Sumi ruled that the hotly-contested and so-called collective bargaining bill passed by the Senate on March 9, 2011, was null and void. Specifically, Sumi held that the hastily-convened Legislature’s Joint Committee of Conference meeting on March 9, 2011—the meeting convened by Republican leadership for the purpose of stripping away all budget components of the “budget” bill so that the Senate would have quorum without the absent Democratic senators presence, and therefore allowing them to vote the bill—was convened in violation of the open meeting requirements of Wisconsin law, which requires 24 hours notice of public meetings. She noted that the individuals who convened the meeting failed to provide even two-hours notice, as would be permitted if they could have shown good cause for a shortened notice period. Therefore, because the legislature’s own rules require the Committee’s action, and because the Committee’s actions violate the law, the Judge concluded that the bill was not properly enacted and therefore has no force and effect.

The Judge’s Order may be appealed to the Court of Appeals or Supreme Court. Alternatively, the Republican-controlled legislature may take action to re-vote the bill, this time adhering to state law and the legislature’s own rules.

Facebook At Work: Part II

On May 21st, Attorney Jill Hartley discussed limitations on the use of Facebook at work on the Previant Legal Show on WTMJ AM 620. In part two of her interview, Jill discusses when  employers can create rules for use of email, internet, and Facebook:­­  

052111_Facebook_At_Work.mp3

EEOC Issues Final Rules for Interpretation of ADA Amendments Act of 2008.

On March 25, 2011, the EEOC issued new rules that make provide interpretive guidance and explain the 2008 Amendments that were enacted to make it easier for individuals seeking protection under the Americans with Disabilities Act to receive that protection. Among other things, the rules expand coverage of the Act’s protections to those who have an “actual disability,” a “record of” a disability or who are “regarded as” disabled, while making clear that more than one of these categories may apply to an individual.

The Rules also make clear that the 2008 Amendments lower the threshold with respect to what constitutes a “substantial impairment” of a “major life activity,” specifically noting that the standard applied by the Supreme Court in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), for determining whether an activity qualifies as a major life activity for purposes of being a “disability” and protected under the ADA no longer applies. The Toyota standard, that the activity a person is unable to perform or engage in be of “central importance to most people's daily lives,” was expanded by the legislation and now includes a non-exhaustive list of activities that may constitute a major life activity. The Regulations will also clarify the meaning of “substantially limits” by  the final regulations by providing nine rules of construction that must be applied in determining whether an impairment substantially limits (or substantially limited) a major life activity.

The overall import of the regulations is that they lower the burden on employees seeking protection under the ADA and the new regulations establish specific tests and explicit criteria to define and expand the scope of protection.

Court of Appeals Upholds Milwaukee Sick Pay Ordinance

On March 24, 2011, the Wisconsin Court of Appeals (District) upheld the Milwaukee Sick Pay Ordinance.  The City of Milwaukee Paid Sick Days referendum was placed on the ballot in the November 2008 election, asking “Shall the City of Milwaukee adopt Common Council File 080420, begin a substitute ordinance requiring employers within the City to provide paid sick leave to employees?” Nearly 70% of the City’s voters in that election voted in favor of the referendum and the ordinance was initially to have become effective upon its publication, November 12, 2008. The enactment of the ordinance was enjoined when the Metropolitan Milwaukee Association of Commerce filed a lawsuit alleging that the PSD referendum was illegal, preempted by state and federal law and unconstitutional. The circuit court granted summary judgment in favor of MMAC and enjoined the enactment of the ordinance after “concluding that the ballot statement did not comply with [statutory requirements] and that certain provisions of the ordinance were not rationally related to the City’s police powers and were not severable from the rest of the ordinance.”

 9to5 appealed the lower court ruling to the Court of Appeals. The Court of Appeals did not immediately decide the case, but after argument and briefing, certified the case to send it to the Wisconsin Supreme Court. The Supreme Court chose not to take up the matter upon certification and sent the case back to the Court of Appeals. After the legal wrangling concluded,  the Court of Appeals ruled that the Milwaukee Paid Sick days referendum was appropriately conducted and that the ordinance, which would require that employers provide their employees with five (5) or nine (9) paid sick days, depending on the business’s size, ran afoul of no legal limitations or provisions. Specifically, the Court held that the referendum ballot complied with the requisite Wisconsin balloting statutes; that the ordinance did not violate Milwaukee businesses’ substantive due process rights; that the ordinance is not preempted by state statutes, the National Labor Relations Act or Labor Management Relations Act and that the ordinance is not prohibited by state or federal constitutional limitations. In so finding, the Court reversed a lower court ruling that enjoined the implementation of the Paid Sick Days ordinance on the grounds that the ordinance was preempted, unconstitutional and otherwise illegal.

The MMAC has not yet appealed the Paid Sick Days ruling, but an appeal is anticipated, at least until the Governor’s biennial budget bill is taken up and passed. Governor Walker’s proposed 2011-2013 budget bill contains a provision that prohibits municipalities from enacting paid sick day or other similar worker protection ordinances.

Employees Who Make Oral Complaints About Wages Are Protected From Employer Retaliation

In an opinion released March 22, 2011, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics Corp. to extend protection from employer retaliation to workers who filed oral complaints under the FLSA. The Fair Labor Standards Act provides basic protections for workers ranging from minimum wage to overtime pay rules. The Act also provides protection for employees who file complaints from retaliation by their employer.

Kasten an employee of Saint Gobain, had given several oral complaints to the employer that it was failing to pay the employees for their time of putting on and taking off protective work gear at the job site as required under the Act. Kasten claimed that the employer then discharged him for making these complaints. When Kasten filed a suit in District Court alleging illegal retaliation under the Act the District Court ruled for the employer. The District Court held that the Act only protected employees who had filed a written complaint. As a result, Kasten’s multiple oral complaints to Saint Globan were ruled to provide him no protection from retaliation. Upon appeal, the 7^th Circuit Court of Appeals upheld the ruling.

In reviewing the decision, the Supreme Court voted 6 to 2 to overturn the decision and extend protection from retaliation to those who had filed oral complaints. In its published opinion, the Court argued that limiting the retaliation provision to only written complaints would undermine the Act’s basic objectives. The Court also found that Congress hand intended the Act to protect all workers including the illiterate, less educated, and overworked who were unable to commit their complaints to writing. Finally, the Court found that protecting only those who filed written complaints would ultimately undermine the Government’s ability to enforce it though means such as complaint hotlines.

Radio Show Update: What Notice Does an Employee Need to Give to An Employer in order to take FMLA Leave?

This week on the Previant Legal Show, Attorney Jill Hartley discussed what type of notice employees need to give their employers in order to take leave under the Family and Medical Leave Act (FMLA).  She also discussed how requests for FMLA interact with the Health Insurance Portability and Accountability Act (HIPAA).

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The Previant Legal Show is heard on most Saturdays at Noon on WTMJ, AM 620 in Milwaukee.