Employment Law Year in Review (aka the dumb things people do at work)

Jill L. Walsh, Esquire

SHRM-SCP, SPHR, CCP

jwalsh@tthlaw.com

(610) 332-7028

Presented by:

WWW.TTHLAW.COM

SHRM-LV Annual Conference

October 6, 2015

Topics for Discussion: Employment Law

Cases that you May or May not Like…

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McCourt v. Gatski Commercial Real

Estate Servs. (D. Nev. May 5, 2015)

�Let’s start with a bang…

�Co-worker tells plaintiff that she is “bangin” and then clarifies this, stating that she is “f---able”

�Plaintiff reports to female supervisor and requests meeting with business owner

o Supervisor’s response: speaking to owner is forbidden and she would be disciplined for it

�Co-worker’s comments continue over next weeks:

o “wanted to know what [her] panties smell[ed] like”

o told plaintiff she was a “MILF”

3Title VII – Sexual Harassment

McCourt v. Gatski, cont.

Supervisor’s Response:

“I know that you think he is making sexual comments towards you but I disagree. Because he referenced your panties and what they smell like is just weird and not offensive. Because he says you're f---ble is not really offensive either. He's a guy and you work with guys. Ignore it and smile.”

4Title VII – Sexual Harassment

McCourt v. Gatski, cont.

� But wait, there’s more…

� Continued verbal and physical harassment:o Co-worker grabbing plaintiff's rear end, sending suggestive and

aggressive emails, putting his hand down the back of her shirt to feel her bra strap, and inviting plaintiff to go home with him for a “quickie” at lunch time.

� Plaintiff complains again. Supervisor’s emailed response:o “Your position is easily replaced. [Harasser] makes the company

money! Don't you need insurance for your son? Think about it!”

� Soon after this email, supervisor fires plaintiff

� Needless to say, Court denied Defendant’s motion to dismiss Title VII and IIED claims

5Title VII – Sexual Harassment

Young v. UPS

�SCOTUS, 03/25/15

�Pregnancy Discrimination Act, 42 U.S.C. §

2000e(k)

�Pregnancy-blind light duty policy: UPS offered

light duty to employees who were injured but

not to pregnant employees requiring similar

light duty (for example, lifting restrictions)

6Pregnancy Discrimination Act

Young v. UPS, cont.

�Holding:

o No blanket accommodations for pregnant workers

but employers shall consider “the extent to which

an employer’s policy treats pregnant workers less

favorably than nonpregnant workers similar in

their ability or inability to work.”

7Pregnancy Discrimination Act

Mach Mining, LLC v. EEOC

� SCOTUS, 04/29/15

� Before suing an employer the EEOC must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

� Conciliation provides an employer with an opportunity to resolve a discrimination claim without resorting to formal litigation

� Here, EEOC sent one letter to Employer following reasonable cause finding and another letter, one year later, before filing suit

8EEOC Conciliation

Mach Mining v. EEOC, cont.

�Court held that:

o A court may review EEOC’s conciliation efforts

o Review is narrow in scope and EEOC is given

discretion to determine process

o EEOC must try to engage employer in order to give

the employer a chance to remedy the allegedly

discriminatory practice

o File suit only after conciliation fails

9EEOC Conciliation

Lowe v. Atlas Logistics Grp. Retail Servs.

�N.D. Ga. May 5, 2015

�Unknown employee began habitually defecating in one of Employer’s warehouses

�Employer requested some of its employees, including the Plaintiffs, to submit to a cheek swab

�Cheek cell samples sent for DNA analysiso Plaintiffs not a match

�With the culprit apparently still on the loose, Plaintiffs filed suit under the Genetic Information Nondiscrimination Act (GINA)o GINA prohibits employers from requesting genetic

information from its employees

10GINA

Lowe v. Atlas Logistics, cont.

�Summary judgment granted for…PLAINTIFFS!

�GINA makes it “an unlawful employment

practice for an employer to request, require,

or purchase genetic information with respect

to an employee.”

�Court rejected Employer’s argument that

genetic tests prohibited by GINA must relate

to an employee’s propensity for disease

11GINA

Greer v. Mondelez Global, Inc.

� Third Circuit Court of Appeals, 10/22/14

� Title VII/race discrimination/retaliation

� Plaintiff claims forced to resign due to racial comments

� Stupid or actionable? Hostile work environment is actionable only if it is “so severe & pervasive” it alters the working conditions and creates an abusive working environment

� Environment must be more than “hostile in the plaintiff’s view;” it must be “objectively hostile.”

� Offensive comments, jokes and jibes insufficient to establish a Title VII claim absent a change in a term, condition or privilege in employment

BRACE YOURSELVES…STUPID COMMENTS ARE EVERYWHERE

12Title VII - Race Discrimination/Retaliation

Braun v. Wal-Mart Stores

�Supreme Court of Pennsylvania, 12/15/14

�Wage Payment & Collection Law (WPCA) & PA

Minimum Wage Act (PMWA)

�Paid rest breaks & “off the clock” work

�“Hours worked” defined

�Judgment of nearly $200M

�187,979 hourly employees

13Wage Payment

Hansler v. Lehigh Valley Hospital

�Third Circuit Court of Appeals, 06/22/15

�Employee submits doctor’s note with request for intermittent FMLA leaveo Note does not list medical diagnosis

�Employee misses five days of work

�Employer advises employee that FMLA denied and concurrently terminates employee for absenteeism

�Employee thereafter diagnosed with diabetes and high blood pressure

�Held: Employer required to advise employee in writing of deficient medical certification to afford the employee an opportunity to cure the deficiencies

14FMLA – Deficient Medical Certification

EEOC v. Abercrombie & Fitch

�SCOTUS, 06/01/15

�Applicant wearing head scarf applies for a job

�Without confirming if religious

accommodation requested, Abercrombie

refuses to hire applicant, because headscarf

conflicted with its employee “Look Policy”

Title VII – Religious Discrimination 15

EEOC v. Abercrombie & Fitch, cont.

� EEOC prevailed in the District Court

� Tenth Circuit reversedo Failure-to-accommodate liability attaches only when applicant

provides employer with actual knowledge of a need for an accommodation

� The Supreme Court held that a job applicant seeking to prove a Title VII disparate treatment claim need only show that the need for a religious accommodation was a motivating factor in the prospective employer's adverse decision

� Applicant need not show that Employer actually knew applicant's practice was a religious practice that required an accommodation

Title VII – Religious Discrimination 16

Ever Have Employees Who Make You

Want to do This?

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DiFrancesco v. A-G Administrators, Inc.

�Eastern District of Pennsylvania, 09/04/14

�Wrongful Termination and ADEA Claim

�Employee raises name-calling, such as “grandma,” “lunch bag,” and “old hillbilly”

�Employer claims: an “overall strain on Human Resources”

�Plaintiff must show that the adverse employment action would not have occurred but for the employer's consideration of age

o In other words, Plaintiff failed to establish her termination occurred because of age

18Age Discrimination

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Victory is Ours!!!

Bonkowski v. Oberg Indus.

� Third Circuit Court of Appeals, 05/22/15

� On Nov. 14, Plaintiff, suspended for allegedly sleeping on the job, claims shortness of breath & chest pain

� Plaintiff clocks out; admitted to hospital just past midnight (Nov. 15)

� Released in the early evening of Nov. 15, w/doctor’s note

� Terminated Nov. 16 for walking off the job on Nov. 14

� Plaintiff sues (wrongfully termination/FMLA rights)

� Employer argued Plaintiff did not have a “serious health condition” because he did not have in-patient care, which requires an “overnight stay” in the hospital

� District Court Overnight Stay Rule: admitted before sunset on one day and discharged after sunrise the next day

FMLA – Serious Health Condition 20

Bonkowski v. Oberg Industries, cont.

�Third Circuit Overnight Stay Rule: employee must be in the hospital for a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and time of discharge

�Employers must strictly review the time of day the employee is admitted and the time of day the employee is discharged to determine whether there has been an “overnight stay” in order to have received “in patient care” under the FMLA

FMLA – Serious Health Condition 21

Stewart v. FedEx

� Superior Court of Pennsylvania, 04/17/15

� Wrongful termination/violation of public policy

� Employee fired for licensed firearm in car glove box on company property

� Absent a statutory or contractual provision to the contrary, either party may terminate an employment relationship for any or no reason

� Public Policy Violation: “so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it”

� Neither U.S. nor PA Constitution bestow the right to carry a concealed firearm or transport a loaded firearm in a vehicle

22Firearms - Public Policy Violation

Triple Play Sports Bar and Grille

�National Labor Relations Board, 08/22/14

�Social Media Policies

�Section 7

�Concerted Activities

o Griping?

o “Liking” a post

o Replying to a post

23Social Media

Andersen v. Mack Trucks, Inc.

�Eastern District of Pennsylvania, 07/30/15

�Another victory for the Employer!

�Male HR employee laid off due to merger

�Companies are permitted to make business decisions which result in the retention of one employee and the termination of another employee for any reason that is not predicated upon an impermissible factor

�The Court does not act as a “super-personnel department that re-examines the employer’s business decisions”

Layoff Decisions 24

Questions/Comments?

Questions/Comments?Jill Walsh: (610) 332-7028 / jwalsh@tthlaw.com

www.tthlaw.com

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