The Workplace Report with Ancel Glink

Overruling the lower court and its own previous rulings, the 7th Circuit Court of Appeals held that job applicants can sue for disparate impact discrimination based on age pursuant to the Age Discrimination in Employment Act. In Kleber v. CareFusion , the plaintiff, Kleber, who is a 58 year old attorney, applied for a job with the defendant company. The job posting put a maximum seven years of experience cap for eligibility for the job. Kleber exceeded that experience cap and his job application was rejected.  He sued the company for age discrimination, alleging that the maximum experience cap was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions ... and has a disparate impact on qualified applicants over the age of 40.” The key provision of the ADEA, 29 U.S.C. § 623(a), reads: (a) It shall be unlawful for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discriminat...

This week, current and former employees of the “sports and grill” restaurant Twin Peaks filed charges with the EEOC alleging, among other things, that they were subject to hostile work environment sexual harassment. The employees, who were hired as servers and a bartender, claimed, among other things, that they were forced to wear very revealing uniforms which were much skimpier than the shorty shorts and midriff tops that they were given upon hire and that they were subject to regular body inspection and grading on their appearance which was not only humiliating but directly correlated to their table assignments, with those table assignments directly correlating to probable tips. The factual allegations are salacious enough and include claims that the uniforms that the servers were required to wear were so skimpy that they received indecent exposure citations from the Village and that they were repeatedly “body shamed” by management. There is no doubt that being a server at Twin...

Last week, the Seventh Circuit held that former College of DuPage President Robert Bruder’s lawsuit against the College could go forward. Robert L. Breuder was hired as the College of DuPage’s president in 2009, with his contract running through 2019. Four years before that contract expired, newly elected members to the College’s Board of Trustees campaigned to remove him from his position. Shortly thereafter, Breuder was discharged without notice or a hearing, with the Board issuing a public statement that it was firing Bruder as a result of misconduct. In response, Breuder filed a complaint for wrongful termination and defamation against the Board, arguing that the language in his contract did not justify firing him without an opportunity to a hearing. The Board of Trustees raised numerous defenses to the lawsuit including several arguments that the contract itself was invalid because it extended beyond the term of the Board members who approved it and the requirement o...

A Fresno State professor has been widely criticized for tweets that she sent out after the death of former First Lady Barbara Bush last Tuesday. A mere hour after Barbara Bush’s death, she tweeted: “Barbara Bush was a generous and smart and amazing racist who, along with her husband, raised a war criminal. F--- outta here with your nice words.” She then tweeted: “Either you are against these pieces of s--- and their genocidal ways or you're part of the problem.” “I'm happy the witch is dead. can't wait for the rest of her family to fall to their demise the way 1.5 million iraqis have. byyyeeeeeeee." In response to heavy criticism for these tweets, the professor tweeted, “I will never be fired.” She also reportedly stated that she is a tenured professor and makes $100,000 a year. So, is this professor correct? Can she not be fired from her job for her nasty tweets? If she is indeed tenured, then she is probably right. One of the purposes of the tenure s...

Not many people were paying close attention to the Encino Motorcars v. Navarro case before the Supreme Court this term. So, the Court’s somewhat surprising ruling caught many off guard. The case itself was before the Court on the issue of whether automobile service advisers are exempt under the FLSA as part of the statutory exemption that includes “any salesman, parts-man or mechanic engaged in selling or servicing automobiles.” A service adviser is the guy who you talk to when you bring your car in for repair. He’s the one who tells you what kind of repair your car needs. He is not any one of the guys who actually does the repair, but he might in the process of giving you the bad news about the cost of repairing your car also try to sell you a few other things. Twice the 9th Circuit Court of Appeals held that service advisers were not exempt from overtime requirements under the FLSA because they were not primarily salesmen, parts-men, or mechanics. This month the Supreme Cou...

A court for the first time this week has held that using pay history as a basis to set salaries may violate the Equal Pay Act. In the case of Rizo v. Yovino , the plaintiff, Aileen Rizo was a math specialist with the Fresno, California school district. She was the only woman in that job but worked alongside a number of male math specialists. One day at lunch with her colleagues, Rizo discovered that she was the lowest paid math specialist among the group despite comparable experience and education. She quickly complained about the pay disparity but was not given a raise. Frustrated with the pay disparity, she filed suit under the Equal Pay Act claiming that she was being paid less based on her gender. The School District responded that it based salaries on pay history, not gender, placing all new hires in the pay grade that would give them a 5% increase in pay from their last job. A panel of the 9th Circuit Court of Appeals found in favor of the School District last year ...

Throughout most of the Obama administration the Department of Labor stopped issuing Opinion Letters on day to day questions of employers and workers, replacing those letters with Administrative Interpretations which addressed broader legal issues. The DOL has returned to issuing Opinion Letters by addressing the real life question of whether a non-exempt employee’s hourly 15 minute breaks required due to a physician certified FMLA qualifying serious health condition must be paid or non-paid. Although this issue may seem straight forward on its face, it poses an interesting question relating to the intersection of FMLA and FLSA. As employers are aware, an eligible employee is entitled to intermittent leave, so in the proper circumstances, it may be appropriate for an employee to take a 15 minute break in every hour of work, thus reducing their actual work time by two hours for every eight hour shift. Additionally, the FLSA provides that short employee breaks of less than 20 mi...

A common defense that employers often use against harassment claims is that they exercised reasonable care to prevent and correct the harassing behavior. According to the Equal Employment Opportunity Commission (EEOC), one of the elements required to show that reasonable care was exercised to prevent and correct harassing behavior is “an assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.” Therefore, many employers impose broad confidentiality policies in regards to harassment investigations. Ironically, such a broad policy might actually violate the National Labor Relations Act (NLRA). The NLRA prohibits employers from forbidding employees from discussing workplace conditions with one another. In Banner Estrella Medical Center , 358 NLRB 809 (2012), the National Labor Relations Board (NLRB), which enforces the NLRA, found that an employer violated the NLRA by routinely asking employees not discuss ongoing investigations...

As readers might be aware, some public sector employees have a “property interest” in their position. A property interest is generally gained through a contract, statute or ordinance. An employee with a property interest in their job cannot be removed from it without notice of the reasons for the removal and an opportunity to respond to those reasons (due process). But what if the employee was never rightfully in the job to begin with? Cleveland Hardy, a Chicago Police Officer , applied for and received a promotion to the rank of sergeant. The qualifications for promotion to sergeant include that a successful candidate had to have passed the exam for the position, which had been administered a few years prior to Hardy’s promotion. After Hardy was officially promoted, went through training, spent about $3,000 buying sergeant’s uniforms, and worked as a sergeant for about a week, it was discovered that he had not passed the sergeant exam as required for the promotion. Hardy did not ...

Remember the employee of the government contractor that impulsively “flipped off” President Trump’s motorcade, which was caught on camera by a journalist who happened to be there covering the President, who then posted the picture on the internet without identifying the “flipper” because the picture did not reveal her face, but then the employee herself posted the same picture on her social media sites because she thought it was funny? Remember that? And remember how the employee was fired because of the picture (even though she disclosed the events to her employer right away) because the government contractor said that she violated their social media policy? And the media, along with many interested citizens, thought this was a travesty because the woman was just exercising her right of free speech? Well, this employee is back in the news because she filed suit against her former employer over this series of unfortunate events. As we discussed when we first wrote about these eve...

In light of the massive contracts that have recently been awarded to major league baseball players , it might come as a surprise to learn that minor league baseball players make barely enough money to survive. The average salary for a minor league baseball player is a mere $1,100 a month, paid only during the minor league season, which runs from April to August. In light of this, there have been a series of lawsuits by minor league players claiming that they are entitled to minimum wage pay pursuant to the Fair Labor Standards Act , which requires employers to pay employees a minimum wage of $7.25 per hour worked (states have the option of increasing the minimum wage), along with time and a half for all hours worked over 40 in a week. In recent years, Major League Baseball (MLB) has been lobbying Congress to make minor league baseball players exempt from the Fair Labor Standards Act. And last month it succeeded by including the Save America’s Pastime Act in the omnibus spen...

Last Monday, we started our series on workplace bullying . Here is Part Two... Sometimes employees who are not decision makers make statements or do things which seem to evidence discrimination on the part of the employer. When a disgruntled employer later feels that they have been the victim of discrimination by the employer they sometimes try to link the words or actions of the non-decision making employee to the decision of the employer to show unlawful intent. It’s called the “ cat’s paw ” theory. In a recent Seventh Circuit employment discrimination case,  Turner v. Hirschbach Motor Lines  (April 24, 2017), the court discussed this theory and noted the importance of having a solid non-discriminatory reason for taking an adverse employment action. Tuner applied for a position as a truck driver at Hirschbach, a trucking company. He was required to take a routine pre-employment drug screen. He failed the drug screen, testing positive for marijuana, and Hirschbach di...

One of the most awkward issues to address when a worker separates from employment is the exchange of property belonging to the employee and the employer. This is especially true when the separation is involuntary and the employee has not had a chance to pack up their personal property or collect the employer’s property in his or her possession. Sometimes this even turns into a situation reminiscent of a bad romantic break up, with the parties contesting what belongs to whom and holding onto the belongings of the other out of spite(“I’m keeping those books; you won’t use them anyway” or “those are copies of my work; I’m taking them with me”). And then there’s the cell phone. So many employers either purchase or reimburse employees for their cell phone because constant accessibility is not even considered a convenience anymore; it’s a necessity. On top of that, many employers allow their employees to use their work phones as their personal phones as well. It’s a messy situation, the...

I have never met an employer who likes to fire an employee. Firing someone is awkward. People generally do not like to think of themselves as the bad guy. And every employer I know cares about his or her employees, and most of the time is hurt to know that he or she is causing one of them to become unemployed. Therefore, I have met employers who, rather than telling an employee that he or she is being fired for doing a bad job, calls every firing a layoff.  After all, this makes the employer look like he or she is not a cruel person causing someone to become destitute, but rather a helpless victim of economic forces outside of his or her control. This strategy, however, can be risky. Most suits brought by fired employees claim that the employer’s stated reason for the firing was false, and merely a pretext to engage in illegal discrimination. If an employer claims that an employee was laid off when he or she was actually fired for doing a bad job, this will support the employe...

I had one short tempered boss a long time ago who would invariably react to anything he didn’t like or thought that he wouldn’t like by immediately screaming at the top of his lungs. Here’s an example. My office was situated close to his. The building management was doing some work in the offices and early one morning was working in mine. Apparently the workers were playing music, rather loudly, while they worked. Later that day, when I arrived at work, my boss called me into his office and began yelling (and when he yelled-which was often-most of the floor could hear him) that I was so inconsiderate to play my music so loud and who did I think I was and I disturbed him while he was trying to work. It was quite a while before I pieced together what happened and when I had the opportunity to respond, I offered my explanation. He stopped, stared at me and told me to make sure it never happened again. This was the same boss who, when he was mad at you, would exclude you from team meeting...