The Last Year s Developments In Labor and Employment Law

Transcription

1 The Last Year s Developments In Labor and Employment Law 2007 IPMA-HR Eastern Region Conference Saratoga Springs, New York May 14, 2007 Kenneth S. Weinstock, Esq. Kainen, Escalera & McHale, P.C. Hartford, CT

2 INTRODUCTION Buffalo, horses and skunks OH MY!

3 DISCRIMINATION SUPREME COURT DOCKET Can a plaintiff claiming disparate pay challenge pay decisions that occurred outside of Title VII s 180-day statute of limitations period? Ledbetter v. Goodyear Tire and Rubber Co., U.S. No , cert. granted June 26, 2006, appealing 421 F.3d 1169 (11th Cir. August 25, 2005); (oral argument November 27, 2006)

4 DISCRIMINATION SUPREME COURT DOCKET Cat s Paw /Rubber Stamping Discrimination Is an employer liable for discrimination where the decision-maker did not know the race of the terminated employee, but relied on the recommendation of the immediate supervisor who had discriminatory animus? BCI Coca-Cola Bottling Co. v. EEOC, 450 F.3d 476 (10 th Cir. 2006), U.S. No , cert. granted Jan. 5, 2007 (oral argument April 18, 2007)

5 DISCRIMINATION Former employer may have breached discrimination settlement agreement where former employee hired testers to pose as prospective employers and the testers were not directed to the HR department as required by the settlement agreement America v. Preston, No (PLF) (D.D.C. December 27, 2006)

6 RACE DISCRIMINATION Postal employee who was demoted for selling Mary Kay products on work time loses race discrimination claim Roland v. U.S. Postal Service, 2006 U.S. App. LEXIS (11th Cir. October 11, 2006) unpublished opinion

7 NATIONAL ORIGIN DISCRIMINATION Hispanic Administrative Law Judge demoted after having an office affair with subordinate employee cannot show national origin discrimination Martinez v. Barnhart, 444 F.3d 1201 (10th Cir. April 25, 2006)

8 DISABILITY DISCRIMINATION Individual supervisors are not liable under the ADA for disability harassment and the State is immune from damages Walsh v. Nevada Dep't of Human Resources, No , F.3d (9th Cir. December 18, 2006)

9 AGE DISCRIMINATION Age Discrimination or Not? Did a city engage in age discrimination by denying an employee s request to use a sick leave bank because the employee s age qualifies him for retirement under the city s pension plan? EEOC v. Independence, Mo., 471 F.3d 891 (8th Cir. December 22, 2006)

10 SEXUAL HARASSMENT Manager's groping, stalking and verbal harassment was bad enough to cause employee s constructive discharge such that employee did not have to first seek corrective action through employer s harassment policy Patton v. Keystone RV Co., 455 F.3d. 812 (7th Cir. August 1, 2006)

11 SEX DISCRIMINATION Female employee fired for admittedly engaging in sexually-based antics and physically suggestive behavior with the owner of the company, has no claim against him, the company or the owner s wife who was a co-owner of the company Tenge v. Phillips Modern Ag Co., 446 F.3d 903 (8th Cir. April 28, 2006)

12 RELIGIOUS DISCRIMINATION A neo-pagan fired from his job as a health care worker after a co-worker discovered his Book of Spells in a common area used by young patients can pursue a claim of religious discrimination Benz v. Rogers Memorial Hospital Inc., No. 04-C-1079 (E.D. Wis. February 9, 2006)

13 RETALIATION Unanimous United States Supreme Court establishes standard for determining what constitutes Title VII retaliation Burlington Northern & Santa Fe Railway v. White, U.S., 126 S. Ct (June 22, 2006)

14 RETALIATION Evidence of being set up by management is limited circumstantial evidence of retaliation, but sufficient enough to meet the burden of proof Sylvester v. SOS Children s Villages, 453 F.3d. 900 (7th Cir. July 12, 2006)

15 FAMILY AND MEDICAL LEAVE Employer did not violate the FMLA when it terminated an employee who feigned a knee injury so that he could vacation with his fiancé in Las Vegas Crouch v. Whirlpool Corp., 447 F.3d 984 (7th Cir. April 20, 2006)

16 FAMILY AND MEDICAL LEAVE FMLA Liability or Not? Can a collective bargaining agreement require stricter return-to-work restrictions than the return to work restrictions in the FMLA? Harrell v. U.S. Postal Service, 445 F.3d 913 (7th Cir. May 4, 2006) cert. denied U.S. No (December 11, 2006)

17 FAMILY AND MEDICAL LEAVE An employee in his seventh month of reemployment with an employer, after previously working for the employer for five years, was an eligible employee for FMLA Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, 471 F.3d 6 (1st Cir. December 18, 2006)

18 WAGE AND HOUR Firefighter scheduled to work overtime, who swaps with another firefighter to cover his shift, is entitled to overtime pay for the shift he swapped even though the employee did not actually perform overtime work Senger v. City of Aberdeen, F.3d, No , 2006 U.S. App. LEXIS (8th Cir. September 29, 2006)

19 FREE SPEECH A public hospital did not violate the First Amendment by prohibiting an employee from wearing a union button on his uniform stating "Union Yes." CWA v. Ector County Hospital District, No , F.3d, 2006 WL (5th Cir. October 5, 2006)

20 Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d 1342 (11th Cir. May 26, 2006) FREE SPEECH Two off-duty sheriff s deputies who were terminated after being paid for participating in pornographic photographs and videos shown on an Internet website were not participating in First Amendment protected speech

21 CONCLUSION CEOs can be difficult employees too! Freeman v. Ace Communications Group, 467 F.3d 695 (8th Cir. November 1, 2006)