Articles Posted in Public Sector Employment Law

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Now is an excellent time for employers to assess their compensation policies. That’s because the New Year activated California’s Fair Pay Act. Analysts say it’s one of the country’s toughest equal pay laws, and the consequences are serious for companies that are found to be in violation.

Fair%20Pay%2070618813-001.jpgThe new legislation was signed in October 2015 by Governor Jerry Brown. It’s essentially an amendment to the state’s existing fair pay laws, which have been in place for several decades. Federal laws also ensure equal pay for workers regardless of gender or other characteristics. However, this new legislation puts more of the onus on employers to ensure that they are fairly paying employees.

Democratic state senator Hannah-Beth Jackson introduced the bill earlier in 2015 in the wake of actress Patricia Arquette’s Oscar acceptance speech that called for an end to the gender pay gap. A key component of the new law is the requirement for employers to be able to prove that they are paying employees of both sexes the same compensation for “substantially similar work.” The law asks employers to look beyond titles, assessing actual duties performed and responsibilities assumed, when settling questions of pay. If disparities exist between the compensation for male and female workers who perform substantially similar work, then the employer must be able to articulate a non-gender based reason why the disparity exists.

Employers can use distinctions like seniority and merit to justify offering higher compensation to men when compared to women in a similar role. It is advisable for employers to assess and document such decisions in case questions or disputes arise at a later date. Similarly, the new law is forcing many employers to dig deep into company archives to assess the current salaries of employees and decide whether or not such disparities already exist.

While a full-scale, company-wide audit of employee compensation is neither easy nor inexpensive, it is far preferable to being made the subject of a class-action lawsuit. Employers may want to contact employment law attorneys to learn more about how to protect themselves in light of the new fair pay law.

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An Allegiant Airlines pilot has been fired after an incident at the St. Petersburg/Clearwater International Airport. Allegiant claims that the pilot endangered all passengers and crew aboard a flight while the pilot contends that he was acting in the interest of everyone’s safety. A lawsuit recently filed by the pilot may decide which party has the law on their side.

Fired%2053061626-001.jpgPilot Jason Kinzer had been working for Allegiant for three years, having been promoted to pilot in December 2014. Since that time, he maintained a clean record without any safety violations. In June, he was piloting a twin-engine MD-80 out of the St. Petersburg/Clearwater airport. Nearly 150 passengers and crew members were on board. It wasn’t long after takeoff that Kinzer received a phone call from one of the flight attendants. Kinzer described her as being frantic. It seemed that several passengers were smelling smoke in the cabin.

Thinking quickly, Kinzer turned the plane around and made an uneventful landing at the airport they had just left. Emergency personnel met the plane on the runway, quickly confirming that one of the engines was on fire. Kinzer ordered the evacuation of the aircraft. Inflatable slides were deployed and everyone left the plane. However, before the evacuation took place, Kinzer received a strange transmission over the radio from an unidentified person who suggested that evacuation was unnecessary. Kinzer asked who was speaking but did not receive a reply. The evacuation commenced. However, four passengers were injured while leaving the aircraft via the slide.

Kinzer waited for several weeks while Allegiant investigated the incident. Eventually, he received a telephone call telling him that he was being terminated for putting the lives of the passengers in jeopardy unnecessarily. Allegiant’s officials didn’t believe the evacuation was warranted, especially in view of the injuries sustained by the four passengers.

It is likely that the lawsuit may bring to light some additional information which might help better understand Allegiant’s actions in this matter.
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The NLRB handed down a decision that appears to be a win for employers. In the case of Shore Point Distribution Co., the NLRB found that there was no wrongdoing on the part of the employer when they installed a GPS tracking device in an employee’s work truck. The device helped the employer prove that the employee was stealing time and was instrumental in the employee’s dismissal.

GPS%20navigation%2085141634-001.jpgShore Point became suspicious of the employee, a route driver for the beverage distribution company, who seemed to take significantly longer on his routes than other drivers. Suspecting that the employee was stealing time, the employer hired a private investigator to follow the driver. Shore Point’s employees are unionized. A bargaining agreement allowed the employer to engage a private investigator for this purpose. However, Shore Point went further by installing a GPS tracker in the driver’s work truck.

The use of GPS devices is not specifically included in the existing bargaining agreement. This became a point of contention between Shore Point and the union, with the union arguing that the employer should have bargained for the right to install the GPS unit. On the surface, it looked as though the NLRB might agree with the union. However, they went the other way.

The NLRB found that the GPS was only used by the private investigator once to locate the employee when he temporarily lost sight of the truck. Because this use did not seem to materially affect the conditions of employment, the NLRB argued that Shore Point did not have to bargain for the right to install and use the device.

This decision seems like a win for employers, but it still makes a great deal of sense to proceed with caution before installing GPS devices on company vehicles.
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In a ruling that is sure to have far-reaching ramifications for employers, the Utah Supreme Court has issued a ruling upholding an employee’s right to act in self-defense on the job. The court has ruled that employers who fire workers for defending themselves may be guilty of wrongful termination.

Fired%2053061626-001.jpgThe determination of wrongdoing hinges on two conditions. First, the employee must reasonably believe that the use of force is necessary in order to “defend against an imminent threat of serious bodily harm.” Second, the worker must have no opportunity to simply withdraw from the threat.

The case before the court was Ray v. Wal-Mart Stores. Five employees from two different Wal-Marts were caught up in two separate incidents involving violent individuals. All five of the workers were fired under Wal-Mart’s no-confrontation policy, which requires employees to withdraw from violent situations and call for help, regardless of the circumstances involved.

In one case, a shoplifter threatened employees with a knife. The workers managed to wrest the knife away from the woman and avoid injury, but they were later terminated. In the other case, a shoplifter held three employees at gunpoint inside a closed office, including shoving one worker into a wall and holding the gun to his back. The workers struggled with the man and retrieved the gun. These workers were also fired.

The terminated workers sued Wal-Mart for wrongful discharge in federal court. The federal court, in turn, asked the Utah Supreme Court to determine whether, assuming the workers’ actions truly were in self-defense, Wal-Mart’s policy would be recognized under Utah law.

The Utah court’s ruling stated that an individual’s right of self-defense is drawn directly from the state’s constitution and specific Utah statutes, as well as from common law. The court further stated that this right “protects human life and deters crime,” and confers “substantial benefits on the public.” Additionally, the court ruled that the workers’ right to defend themselves from bodily harm carries more weight than their employer’s business interests.

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Toledo Public Schools recently settled a lawsuit with the Toledo Federation of Teachers. The settlement requires the district to change its policy regarding staff members interacting with the media. Allegations in the lawsuit stated that the current media policy violated the First Amendment rights of union members.

Freedom%20of%20Speech%2045907452-001.jpgThe trouble began when Bowsher High School athletic director Terrance Reeves granted an interview to a local weekly publication. A reporter asked questions about an injury Reeves received while breaking up a fight between spectators at a basketball game. Reeves had given interviews before in his role as athletic director. The focus of this interview was more personal, and Reeves didn’t have any qualms about answering the questions.

After the story appeared, Toledo Public Schools requested a meeting with Reeves. It seems he was in violation of the district’s policy that prohibits staff communication with the media without concurrently working with the district. The TPS policy says that staff members “contacted directly by a member of the media must refer the reporter to the communications office, who will work with staff and the media outlet to respond appropriately … .”

Although this policy had been in place for years it had never been enforced. Reeves had communicated with the media frequently without receiving any kind of reprimand, but the district’s reaction to this story was different. Reeves and the teachers union sued the district after he was given a “green sheet,” essentially a written warning. The lawsuit attacked the policy as being overly broad and vague.

The parties reached a settlement in which the district agreed to change its policy regarding staff members and media communication. Included in the new policy is an acknowledgement of the right of staff members to express themselves as part of participation in a free society. However, the policy also requires that media communications related to the district should be mindful of the district’s interests.

Having organization policies reviewed by an attorney is an excellent way to avoid similar situations. With the assistance of a lawyer it’s possible to balance the rights of employees with the interests of the employer.
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Schools and businesses beware. Electromagnetic Hypersensitivity Syndrome (EHS) may be hurting your students, employees and customers. While Science has not yet proven a causal link between EHS and the symptoms of its growing numbers of sufferers, lawsuits are being filed here in the US and abroad.

WiFi%20sign%2068234810-001.jpgA woman in France has been awarded about $32,000 in compensation for pain and suffering brought about by an allergy to WiFi. She claimed that she was forced to relocate to the countryside because digital wireless transmissions caused her severe discomfort. Her award will be paid out over the next three years.

Recently, the parents of a 12 year old boy in Southboro Massachusetts have filed a lawsuit claiming that the schools WiFi signal is causing their son to become ill and lose focus and concentration in school.

The complaint alleges that the boy was diagnosed with EHS after experiencing headaches, nausea and nosebleeds after the Fay School installed new, stronger wireless internet equipment in 2013. The lawsuit seeks accommodations and $250,000 in damages.

The World Health Organization acknowledges that EHS is a collection of symptoms, but clarifies it is not a medical diagnosis, and the symptoms may not be caused by a single medical problem.

A number of EHS sufferers have relocated to Green Bank, West Virginia in the Appalachian foothills. Green Bank is within the 13,000 square mile radio free zone in the US. Virtually all wireless devices are against federal law in that zone.

Is the beginning of a trend of EHS lawsuits? Should schools and businesses pay closer attention to the wireless waves being showered on anyone nearby? Will EHS become an ADA issue/category? It is just too soon to tell, but we will keep you informed.

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A California appellate court has ruled in favor of a white employee who suffered from discrimination by his Hispanic boss. The court ordered the City of Los Angeles to give James Duffy $3.2 million for the harassment he received from his supervisor, Abel Perez.

Retaliation%2032004699-001.jpgAccording to court records, Perez told Duffy that he hated Caucasians. Three of Duffy’s Hispanic coworkers related that Perez also told them that he was biased against white people. Additionally, the court determined that Perez harassed Duffy because he was disabled.

Duffy was a gardener for the city from 1991 until 2010. In 2001, Perez began regularly calling his partially disabled subordinate insulting names and making up reasons to write him up for poor performance.

In 2004, Duffy received a workplace injury that resulted in a traumatic brain injury. The injury caused speech and cognitive difficulties for Duffy, including difficulty thinking and repetitive speech. Perez took advantage of Duffy’s added disabilities, ramping up the abuse and even hiding the man’s tools so that Perez could discipline him for not completing his work. He also forbade other employees from coming to Duffy’s aid.

Although he was eventually investigated and transferred, Perez continued to be Duffy’s indirect supervisor and maintained control over his assignments. Perez assigned Duffy harsher working conditions and began driving past Duffy as the man worked, honking his vehicle’s horn and yelling insults.

Throughout the years of abuse, Duffy made report after report. However, the abuse was never stopped. Perez, who maintains his position with the city, denies Duffy’s claims and insists he has never been disciplined by the parks department.

In spite of Perez’ protestations, however, the original court found in Duffy’s favor. The City of Los Angeles appealed the large settlement, claiming that Duffy waived his right to sue when he accepted early retirement. The city also claimed that video testimony of Duffy’s fatally ill wife taken during her deposition was inadmissible because it was hearsay.

The appellate court dismissed the city’s claims as groundless and ordered it to pay the settlement. According to Duffy’s legal counsel, the case was unusual in the realm of employee harassment cases because of the wealth of direct evidence to prove Duffy’s claims.

The case is James Duffy v. City of Los Angeles, available HERE.

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The EEOC has sued AutoZone, a Fortune 500 company which employs some 65,000 people. At the center of the litigation is the firing of sales manager Kevin Stuckey.

AutoZone%20Logo-001.jpgStuckey, who is African-American, was employed at a Chicago AutoZone store in 2012. The EEOC alleges that AutoZone decided to institute a Hispanics only employment rule for that location because the neighborhood’s predominate population was Hispanic and those customers might be more comfortable dealing with sales personnel of their own race. Accordingly, Stuckey was ordered to begin reporting to a different location in another part of Chicago. Stuckey refused the transfer, and AutoZone fired him.

In court, AutoZone argued that the EEOC did not have the necessary evidence to back up their allegations. Moreover, the retail giant says the EEOC has not proven that there was an adverse employment action.

The EEOC is relying upon the Civil Rights Act of 1964, Title VII of which makes it illegal to use race to segregate or classify employees. Attorneys for the EEOC argue that AutoZone’s assertion that the decision to transfer Stuckey was based solely on sales figures and job performance is unsubstantiated. Although AutoZone claims that sales and performance were the only factors in the decision to transfer Stuckey, they have refused to produce the documents that would support this defense.

Statements allegedly made by Stuckey himself may undermine the EEOC’s position. AutoZone produced a statement in which Stuckey claimed that he couldn’t remember whether or not he had asked for a transfer to another location. Stuckey’s testimony, and any supporting documentation produced by AutoZone, may seal the fate of this EEOC lawsuit.

This matter is still in its early stages. It’s likely that both sides will demand to review pertinent documents and seek to depose several witnesses. The judge appointed to the case has already ordered that AutoZone must provide a list of all employees working at the two stores in question. AutoZone is also required to detail any transfer details for all of these employees. However, the judge denied the EEOC request to review compensation records for managers at both locations.

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A U.S. Supreme Court decision made in March 2015 has led the EEOC to issue a new enforcement guidance with respect to pregnancy discrimination. The amendments may impact employers going forward, and it’s best to be aware of the changes now in order to avoid possible future complaints that could lead to lawsuits.

Pregnant%20at%20work%202822222%20%282%29.jpgPart-time worker Peggy Young sued UPS, her employer, for not providing her with reasonable accommodations in relation to her pregnancy. Her doctor wanted her to follow certain lifting restrictions. Young asserted that other workers who had been injured received accommodations similar to those she was requesting, such as light duty, but that she was denied. Her case was decided via summary judgment by a lower court, so Young took the matter to the U.S. Supreme Court. The justices ruled that UPS had committed discrimination against Young because of her pregnancy. Accordingly, the summary judgment was vacated and the case continues on.

The EEOC felt it would be beneficial to issue a new enforcement guidance on pregnancy discrimination. Much of the document remains unchanged since the July 2014 update, which was the first revision to have been made in 30 years. The amendments relate to the treatment of workers who are pregnant and include a portion that addresses light duty work for such employees.

The changes are relatively minimal and leave much of the July 2014 revision unedited. For instance, there is no change on the stance about the illegality of firing or refusing to hire someone because they are pregnant and forced leave policies are still prohibited. Similarly, employers are still required to treat both male and female employees equally when considering parental leave.

Keeping up with EEOC changes is important for human resources personnel and for anyone within an organization who may make employment related decisions. A single misstep can have serious consequences, exposing an organization to long, costly litigation that may damage its reputation. Supervisors and managers may want to consult with an employment attorney regarding these EEOC updates to ensure that they are fully understood before being confronted by these issues in the workplace.

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The National Labor Relations Board made a landmark decision recently, when it ruled that employees have the right to use their employer’s email system to send communications regarding union organizing.

Email%20%2081091615-001.jpgThe decision came in response to a matter involving Purple Communications of Rocklin, California. Company policy forbade employees from using the email system for “activities on behalf of organizations or persons with no professional or business affiliation” with Purple Communications.

A union was attempting to organize certain employees within Purple Communications. They filed a protest over election results at a couple of the company’s worksites because the restrictive email policy prevented employees from freely conversing about the election. Union organizers also filed a complaint of unfair labor practices because employees were being restricted from engaging in a legally protected activity. An administrative law judge initially found in favor of Purple Communications, but the union organizers decided to appeal that decision.

The board reversed its decision, finding that employees who have already been granted access to a workplace email system do have the right to use that system for protected communications relating to matters about working conditions and union organizing as long as such communications were made during non-working hours. Nonetheless, companies may still have the right to restrict such emails if they can show that such a ban is necessary for disciplinary reasons or to maintain production activities.

Holding that communication is a basic building block of legal organization efforts, the board effectively reversed earlier decisions. Members of the board agreed that email is ubiquitous in the modern workplace and that it is essentially a “gathering place” for employees to discuss their rights and working conditions.

The board notes that employers still maintain the right to monitor emails to meet management objectives. Moreover, the ruling does not apply to employees who do not ordinarily have access to the company’s email system or to third parties, like union organizers, who request such access. This new decision may make it necessary for employers to make amendments to existing email policies so as not to run afoul of this new precedent.
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