April 19, 2002

ADEA Disparate Impact Issue/OSHA and FAA Joint Effort Granting Whistleblower Protection

Holland & Knight Alert
Howard Sokol

NATIONAL LABOR RELATIONS ACT (NLRA)

Certification Year Irrebuttable Presumption of Majority Status

Frederick Braid

The irrebuttable presumption of continuing majority status that unions enjoy for one year following NLRB certification as the employee representative after a representation election has been strengthened by the D.C. Circuit's ruling in Chelsea Industries, Inc. v. NLRB. The presumption, which prohibits an employer from withdrawing recognition from a union for one year following certification, even if the employer has evidence that the union has in fact lost majority support, has now been held to prohibit reliance upon evidence of loss of majority support received during the one-year period. Accordingly, the NLRB's decision that the employer's withdrawal of recognition from the UAW in this case after the one-year period based upon a petition it had received from the employees about half way through the certification year was unlawful was upheld. 
 

DISABILITY DISCRIMINATION (ADA)

ADA Protection Extended to Third Party

The Third Circuit Court of Appeals (PA, NJ, DE) held that an employer may be liable for retaliating against relatives or friends of employees who have alleged disability discrimination. In Fogelman v. Mercy Hospital Inc., a security guard claimed he was terminated because his father, who previously worked for the employer, was involved in a disability discrimination action against the employer, and the employer viewed the son as an additional litigation risk. In permitting the retaliation suit to proceed, the court reasoned that because the ADA prohibits discrimination against employees who are perceived as disabled, it would also prohibit retaliation based on the perception that an employee was helping another person pursue a disability claim.

Reliance on Physician’s Opinion Does Not Insulate Employer from ADA Liability

Employers may not escape liability under the ADA by merely relying on a physician’s opinion that an applicant is unable to perform the essential functions of the job due to a disability. In Gillen v. Fallon Ambulance Service, Inc., the employer refused to hire as an emergency medical technician a genetic amputee with only one completely functioning arm based, in part, on the assessment of a physician who performed a pre-employment medical examination of the plaintiff and concluded that she would not be able to perform the heavy lifting functions of the job with her single arm. In reversing summary judgment in favor of the employer, the First Circuit Court of Appeals (MA, RI, NH, ME, PR) held that the employer could not "slavishly defer to a physician’s opinion without first pausing to assess the objective reasonableness of the physician’s conclusions.” The court noted there was evidence sufficient for a jury to find that the physician’s opinion was unsupported by objective medical evidence, since he made no inquiry into the plaintiff’s actual ability to lift and instructed the trial court to assess the factual foundation of the physician’s opinion and whether the employer acted in an objectively reasonable way in relying on that opinion.

AGE DISCRIMINATION (ADEA)

Supreme Court Lets Circuit Court Split Stand On ADEA Disparate Impact Issue

Howard Sokol

The United States Supreme Court, stating that the writ of certiorari had been "improvidently granted," dismissed a case brought by more than 100 workers 40 years of age or older who contested the legality of the state's reduction in force (RIF). The employees in Adams v. Florida Power Corp. claimed more than 70 percent of those targeted for discharge were at least 40 years of age. The dismissal lets stand a decision from the Eleventh Circuit (AL, FL, GA), that held disparate impact claims, i.e., those where neutral policies or actions impact one class of individuals significantly more than another, are not available under the Age Discrimination in Employment Act (ADEA). Currently, the Second, Eighth and Ninth Circuits allow ADEA disparate impact claims; the First, Seventh, Tenth and Eleventh do not. It is the view of the Equal Employment Opportunity Commission that such claims be allowed. While the Supreme Court recognized disparate impact claims under Title VII of the 1964 Civil Rights Act more than 30 years ago, its recent dismissal in Adams marked at least the second time in less than 10 years when the Court missed an opportunity to decide the issue concerning the ADEA. The ADEA contains very similar language to Title VII, but allows for differentiation in the workplace based on reasonable factors other than age.

EMPLOYMENT DISCRIMINATION (OTHER THAN AGE)

Offer of Reasonable Accommodation Defeats Religious Discrimination Claim

The Second Circuit Court of Appeals (CT, NY, VT) has upheld the dismissal of a claim by an employee who alleged that the U.S. Postal Service disciplined him because of his religious beliefs in violation of Title VII. In Cosme v. Henderson, the plaintiff's religious beliefs prevented him from working on Saturdays. He had previously worked a route with a fixed Monday to Friday schedule. When that route was eliminated, the plaintiff's supervisor offered him several options that would not require him to work on Saturdays, but the plaintiff rejected them and successfully bid for a route that required him to work on Saturdays. He then refused to report to work on Saturdays and was disciplined. The Second Circuit affirmed the trial court's judgment in favor of the Postal Service, holding that the accommodations offered to the plaintiff were reasonable and noting that an "employer need not offer the accommodation the employee prefers" in order to avoid Title VII liability. This case underscores the importance of offering reasonable accommodations to employees whose religious beliefs may conflict with certain aspects of their work, while at the same time emphasizing that "reasonableness" does not require the employer to cater to an employee's preferences. 

PENSIONS AND BENEFITS (ERISA)

DOL Issues Final Regulations on Use of Electronic Communication and Recordkeeping

The Department of Labor (DOL) issued final rules relating to the use of electronic communications and recordkeeping that apply to retirement and welfare benefit plans. Employers who satisfy the safe harbor requirements may provide a variety of information through electronic means, including summary plan descriptions (SPDs), summary annual reports (SARs) and summary of material modifications, individual benefit statements, certain investment-related information, notices required in connection with a qualified domestic relations order (QDRO), and certain loan information. The final rules also permit satisfaction of the records maintenance and retention requirements through electronic means. The final rules specify a number of requirements that must be satisfied before an employer may take advantage of electronic communication and recordkeeping. The DOL anticipates that the expansion of the safe harbor for electronic provision of disclosure documents (and recordkeeping) will reduce plan administration costs and increase timeliness, quality and accessibility of this information. 

IRS Issues Simplified Retirement Plan Distribution Rules

The IRS has issued final regulations governing required retirement plan distributions. These final regulations include new life-expectancy tables, as required under the 2001 Tax Act. Although these regulations generally keep the temporary regulations that were issued last year intact, a number of changes were made. These changes include simplifying the calculation of required minimum distributions, changing the deadline for determining a designated beneficiary to September 30 of the year following the year in which the participant died, and changing the annuity distribution rules. The revised annuity distribution rules have been issued as a temporary regulation. The final regulations provide flexibility in their application. For 2002, a taxpayer may choose the final regulations, the 2001 proposed regulations or the 1987 proposed regulations.

FAMILY AND MEDICAL LEAVE (FMLA)

Application of Absenteeism Policy Found to Violate FMLA

An employee discharged for violating her employer's absenteeism policy soon after returning from FMLA leave was allowed to proceed with her claim that the employer enforced the policy more strictly against her than others because she had exercised her rights under the Family and Medical Leave Act. In Norman v. Southern Guaranty Ins. Co., the employee, who suffered from depression, had been granted leave while her medication was adjusted. Upon her return she was warned about excessive absences. Within a month, she was placed on probation after taking four days of sick leave for bronchitis. A few weeks later, she was terminated following an absence because of an upper respiratory infection. The court found support for the employee's retaliation claim in evidence that the company failed to apply its policy consistently and had manipulated its application of the policy in order to have a reason for firing the employee. This case serves as a reminder of the need to apply attendance policies fairly and consistently, with an eye toward the FMLA and other protective legislation.

OCCUPATIONAL SAFETY AND HEALTH (OSHA)

OSHA and FAA Joint Effort Granting Whistleblower Protection to Flight Attendants and Other Aviation Workers

Howard Sokol

A Memorandum of Understanding (MOU) between the Federal Aviation Administration (FAA) and the Occupational Safety and Health Administration (OSHA) detailing the process that would grant whistleblower protection to flight attendants and other aviation workers who are fired, demoted, harassed or otherwise discriminated against for reporting violations and concerns relating to air carrier safety, went into effect March 22, 2002. It provides that aviation worker complaints filed with OSHA will be reported to the FAA along with its investigatory findings, reports and orders, and vice versa if a complaint is filed with the FAA. The FAA also must inform workers that OSHA is their "personal remedy for discrimination," and that they have 90 days to file a complaint with OSHA from the time the alleged discrimination took place. However, the FAA made clear that, according to the Transportation Security Administration surprisingly, the recently federalized airport security screening personnel will not be given whistleblower protection.

STATE ISSUES

California Labor Commissioner Clarifies Salary-Basis Test

On March 22, 2002, the current California Labor Commissioner issued an opinion letter concluding that California’s salary-basis test is generally consistent with the federal salary-basis test. Accordingly, the Labor Commissioner determined that the weekly standard is consistent with both California and federal law. Thus, employers are only required to pay their exempt employees full salaries for any week in which the employee performs any work and need not pay employees for any week in which he or she performs no work. 

Obesity Ruled a Protected Status under New Jersey Bias Law

Christopher Nolan

The New Jersey Supreme Court recently recognized morbid obesity as a handicap under the state's Law Against Discrimination (LAD). In the unanimous decision in Viscik v. Fowler Equip Co., the court affirmed an Appellate Division ruling that a 400-pound woman suffering from a genetic metabolic disorder tendered enough evidence and expert testimony to fall within the protections afforded by the LAD for proving a physical handicap. The justices explained that the term "handicapped" under the LAD is interpreted broader than under the federal Americans with Disabilities Act. Under the LAD, the term "handicapped" is not limited to "severe" or "immutable" disabilities because the statute does not require that the condition result in a substantial limitation on a major life activity.

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