February 2008 Archives

February 27, 2008

Supreme Court: Federal Express Employee Filed EEOC Charge

Today, the Supreme Court decided that an employee who filed an intake questionnaire along with a lengthy affidavit alleging age discrimination by her employer can proceed with her class-action lawsuit. (Read the opinion in Federal Express Corp. v. Holowecki.) The employee never completed the EEOC's official charge form, and the EEOC didn't treat her filing as a charge of discrimination. However, because she provided all of the information necessary and indicated that she wanted the EEOC to take action, the Court found that her filing should have been treated as a charge.

Whether her filing qualified as a charge was hugely important because of the role the EEOC plays in discrimination lawsuits. Before suing for discrimination, an employee must file a charge with the EEOC. In this case, Holowecki's lawsuit was initially dismissed because the district court found that she hadn't filed a charge. Now, she and other employees may proceed with their class action lawsuit.

If you want to know more about EEOC charges and discrimination lawsuits (and how to avoid them!), pick up a copy of The Essential Guide to Handling Workplace Harassment and Discrimination, by Deborah C. England (Nolo).

Lisa Guerin

February 27, 2008

Supreme Court Says "Me Too" Evidence May Be Admissible

Yesterday, the Supreme Court found that evidence of discrimination against other employees may be admissible in an age discrimination case, depending on the circumstances. In Sprint/United Management Co. v. Mendelsohn, the Court found that whether this type of evidence should be admitted is a "fact-intensive, context-specific inquiry" that should be made by the district (trial) court. That court is in the best position to judge whether the relevance of evidence is outweighed, on balance, by its potential to create prejudice in the minds of the jury, which is the ultimate test for deciding whether evidence can be admitted at trial. (For more on this test and the underlying facts of the case, see my previous post.)

Mendelsohn lost her age discrimination case at trial, after the district court excluded testimony from other employees. The district court found that other employees should be allowed to testify only if they were claiming that Mendelsohn's direct supervisor had discriminated against them, close in time to when Mendelsohn said she was discriminated against. Mendelsohn appealed and won; the Court of Appeals for the 10th Circuit said that the evidence should have been admitted. The Supreme Court found fault with both of the lower courts -- the District Court for failing to adequately explain why it was excluding the evidence, and the Court of Appeals for deciding evidentiary issues that should be left to the District Court. The Supreme Court sent the case back so the District Court could explain itself.

For the parties in this case, the decision was mostly a victory for the employer. Sprint already won at trial, and the Court of Appeals' decision would have forced a new trial with the evidence from other employees included. Depending on what the District Court says in explaining why it kept the evidence out, Sprint may still come out on top.

For everyone else, however, this decision could be a win for employees, mostly because of what the Supreme Court didn't do. The Supreme Court could have made a blanket rule that evidence of discrimination against other employees is never admissible unless the same decision-maker is involved -- but it didn't. Instead, the Court found that this has to be a case-by-case decision, dependent on the facts and the legal theories involved. This means that employees remain free to try to introduce this evidence, and trial courts may not reject it out of hand without taking a close look at the facts. As Linda Greenhouse points out in the New York Times article "A Case-By-Case Ruling on Discrimination," it also may mean that more employees are able to defeat an employer's motion for summary judgment (a request that the judge throw the case out before trial) and get their cases in front of a jury.

Lisa Guerin

February 22, 2008

Supreme Court Won't Stand in the Way of San Francisco's "Fair Play" Ordinance

In 2006, San Francisco's Board of Supervisors passed an ordinance with an arguably noble purpose: Ensuring that most workers in the city have health insurance. The San Francisco Health Care Security Ordinance required most employers within the city to make minimum health care contributions on behalf of their employees.

The plan was met with some opposition. The Golden Gate Restaurant Association ("GGRA") argued successfully before a U.S. District Court that the plan is preempted by the federal Employee Income Security Act of 1974 ("ERISA"), which specifically limits states' ability to enact laws that "relate to" private-sector employee benefit plans . This week, Supreme Court Justice Anthony Kennedy denied a motion by the Golden Gate Restaurant Association to vacate an emergency stay of the district court's judgment granted by the Ninth Circuit Court of Appeals. In effect, this means the ordinance goes into effect until it is given full review by the Ninth Circuit.

As a hot topic in the close race for the Democratic presidential nomination, health care is likely to stay at the forefront of our minds. And the issue of "pay or play" or "fair share" programs, either by state or local bodies, is its own animal. In 2006, a similar Maryland law (dubbed the "Wal-Mart Bill" because Wal-Mart was the only employer affected) was struck down for violating ERISA. Similar bills have popped up in states around the country, sometimes with similar result. How the San Francisco ordinance will fare remains to be seen.

Alayna Schroeder

February 13, 2008

Company Can Fire Employee for Using Medical Marijuana

medicalmarijuana.jpgThe California Supreme Court has found that a company can legally fire an employee for failing a drug test, even if that failure is due to the employee's use of medical marijuana as allowed by California law. The employee, Gary Ross, used marijuana to relieve the pain and spasms caused by a back injury he suffered while serving in the Air Force. He was offered a job at Ragingwire Telecommunications, Inc., then fired for failing a drug test shortly after starting work.

Ross sued for disability discrimination and wrongful termination in violation of public policy. He claimed that his back injury qualified as a disability, and that Ragingwire was legally required to accommodate his off-duty use of marijuana to treat his disability. He also argued that firing him for using medical marijuana violated the public policy inherent in California's Compassionate Use Act (CUA), which exempts those who use medical marijuana from state criminal prosecution for possessing or growing marijuana.

The California Supreme Court wasn't persuaded. The Court found that the CUA applied only to criminal prosecution, not to employment. Because marijuana use remains illegal under federal law, it isn't the equivalent of prescription drugs that might be used to treat a disability -- and employers don't have a legal duty to accommodate its use.

The dissent argued that allowing employees to be fired for using medical marijuana put those who suffer from serious illnesses to a cruel choice: treat their chronic pain or other symptoms with medical marijuana and lose their jobs, or keep their jobs and suffer. The dissent said the court should have looked at this as a straightforward disability discrimination case and evaluated whether it would have been an undue hardship for Ragingwire to make an exception to its usual drug testing policy for Ross.

In response to the Court's decision, Assemblyman Mark Leno announced that he will soon introduce a bill in the California legislature protecting employees from being fired for off-the-job use of medical marijuana.

For more information on drug testing, check out Nolo's article Drug Testing for Job Applicants.

Lisa Guerin

February 12, 2008

Proposed FMLA Regulations Released

Yesterday, the Department of Labor issued proposed changes to the FMLA regulations. These proposed rule changes have been a long time coming; the DOL first announced that it was reviewing the regulations five years ago. The proposed rules include a number of changes, but doesn't go as far as some employer groups hoped -- and some employee advocates feared. (You can read all 100+ pages of the proposed regs here).

Some hotly contested issues were left alone. For example, the proposed rules make only minor changes to the definition of a "serious health condition." The rules also continue to allow employees to take intermittent FMLA leave in the smallest increments of time tracked by the employer's recordkeeping system, something many employer groups protested.

The most significant changes appear to be to the notice and medical certification requirements, including:


  • Employers now have to provide more information when employees request leave and when an employer designates time off as FMLA leave; the time limit for providing this information has been extended from two days to five.

  • Employees still don't have to say that they are requesting "FMLA leave," but they can't just call in "sick." Employees must indicate that they have a condition that renders them unable to perform their job functions (or renders a family member unable to perform daily activities); how long they expect to be out; and whether the employee or a family member is getting care from a health care provider.

  • Employees must comply with the employer's usual notice and procedure requirements for taking time off (for example, calling in) absent unusual circumstances. If the employee could have followed the employer's rules but didn't, FMLA leave can be delayed or denied.

  • Employees still have to give 30-days' notice of foreseeable leave, but now an employee who doesn't give this much leave must explain why.

Medical Certifications. The form got longer, and the rules for unclear and incomplete certifications were changed:

  • Employers would be allowed to contact health care providers directly to clarify and authenticate the certification.

  • If an employer finds the certification to be incomplete or insufficient, the employer must tell the employee, in writing, what additional information is necessary and give the employee at least seven days to fix it.

  • Although the proposed rules say that employees can't be required to waive their right to privacy in their medical records, they also say that FMLA leave can be denied if the certification is inadequate (after the employee has had an opportunity to fix it) and the employer can't straighten things out by talking to the health care provider.

There are no rules proposed for the new military family leave provisions; instead, the DOL raised a number of questions about how to implement the new requirements and sought comments from the public.

What happens next? The DOL will be accepting comments until April 11, 2008. After reviewing those comments, the DOL will issue final regulations. (It has said that these final rules will probably include provisions on military family leave, too.) However, Congress has a right to weigh in on -- and potentially, disapprove of -- the final regulations. Considering that we are now in the throes of a presidential (and Congressional) election year, will final, binding regulations ever see the light of day? My Magic 8-Ball says "Reply hazy, try again."


Lisa Guerin