May 3, 2002

New York Appellate Court Holds Lessee Liable for Injuries to Subcontractor's Employee

Holland & Knight Alert
Howard Sokol


Supreme Court Rules ADA Does Not Trump Seniority System

In another decision limiting the Americans with Disabilities Act, the U.S. Supreme Court has ruled that, in most circumstances, employers do not have to disturb an established seniority system to accommodate the needs of a disabled worker.  In U.S. Airways v. Barnett, a sharply divided Court ruled 5-4 that the defendant airline did not have to give a disabled baggage handler a mailroom job as a "reasonable accommodation," when two employees with more seniority were also seeking the same job.  The Court instructed that, generally, a seniority system will prevail because, ordinarily, a requested accommodation that conflicts with the rules of a seniority system will not be "reasonable."  However, the Court recognized that special circumstances, like frequent exceptions to a seniority system, might enable a disabled worker to overcome the presumption in favor of a seniority system by helping to establish that making an exception for him or her would not significantly upset employees' expectations about seniority.  Significantly, the decision applies to both collectively bargained seniority systems as well as systems that are unilaterally imposed by management.  The Barnett decision follows on the heels of the Court's recent decision in Toyota Motors v. Williams, which narrowed the definition of a disability under the ADA.


Terminating Employee Who Requested Leave to Adopt Violates FMLA

A trade journal that fired an editor a few weeks after he requested leave to travel to Russia to adopt a child may be liable for retaliating against him for exercising his rights under the Family and Medical Leave Act. In Merli v. Bill Communications Inc., the District Court for the Southern District of New York permitted the editor to go forward with his FMLA suit against his employer. Although the employer did not deny the request for leave, when the editor requested the leave, his supervisor expressed concern that the leave would interfere with the publication schedule.  Prior to requesting the leave, the editor had recently received a raise and a positive performance evaluation. The employer claimed that the editor's termination was due to a staff reorganization that eliminated the editor's position, but soon after firing the editor, the journal advertised a job opening for a position substantially similar to the editor's position.  The court found sufficient evidence to suggest that the stated reasons for discharging the editor were a cover for retaliation based on the request for leave.


Court Orders Advance Notice of Strikes

Frederick D. Braid

Relying upon the Railway Labor Act's broad requirement that "every reasonable effort" be made to settle all disputes in order to avoid disrupting the operations of railroads and airlines, the Court of Appeals for the Fifth Circuit (TX, LA, MS) upheld a district court's requirement that a labor union give ten-days' notice of any future strike or picketing in order to remedy a pattern of repeated unlawful strikes designed to obtain leverage by surprise.  The union's repeated failure to comply with the RLA's prerequisites to engage in such self-help activities had historically been enjoined sometime after the intended disruption on operations had occurred. Under such circumstances, the union's activities had undermined the purpose of the RLA, and the Fifth Circuit concluded that only the extraordinary remedy of a preemptive injunction imposing the advance notice requirement could redress such violations.


Sleeping on the Job, Even When Necessitated by the Job, May Not be Compensable

A federal court in Kansas recently ruled that sleeping on the job, even if the employee is prohibited from leaving the worksite, may not qualify as work for the purposes of computing overtime under the FLSA. Key to the court's reasoning was that the employee was not performing any routine duties during "sleep time," and that, even though the employee in question had not signed a formal agreement concerning the sleep time, there was ample evidence that he assented to the arrangement, and even "lobbied" for the implementation of the schedule.

Job Training, Even When Required for Certification, May Not be Compensable

The First Circuit (MA, NH, ME, PR) recently overturned a district court's decision granting summary judgment to four campus police officers in Boston. The officers claimed overtime for the time they spent obtaining EMT certifications, a requirement of their jobs. The appellate court concluded that the time spent in training was not compensable because the training "is not an integral and indispensable part of the principal activities for which they are employed . . . ."  The court reasoned that even though the officers were required to obtain the certification within a year after being hired, the employer's decision to hire employees before they had concluded certain necessary training, does not obligate the employer to pay the employees for the time spent in training.


TROs Used to Prevent Violence in Workplace

Christopher Nolan

Tennessee and Indiana have enacted legislation authorizing employers to seek a temporary restraining order on behalf of an employee who has either received a credible threat of violence or has been violently injured by an individual.  Such orders prohibit further acts or threats of violence whenever an employee is acting within the scope of his employment, and may forbid, for example, stalking or harassing via telephone, e-mail or fax.  Absent such laws, only the harassed employee may seek a restraining order.  When both laws go into effect on July 1, there will be eight states with such laws, namely, Arizona, Arkansas, California, Georgia, Nevada, Rhode Island, Tennessee and Indiana. Similar legislation is pending in Kentucky, New Jersey and New York.

New York Appellate Court Holds Lessee Liable for Injuries to Subcontractor's Employee

Howard Sokol

A New York Appellate Court recently held that a subcontractor's employee injured while working on a construction site has a cause of action under Section 241(6) of the New York Labor Law against the party who contracted for the work.  The First Department in Kane v. Coundorous, reversed the trial court, which had dismissed the complaint against the lessee of the ground floor of a five-story Manhattan building.  The lessee intended the space to be used as a restaurant upon completion of renovation. The injury to the subcontractor's employee occurred when he slipped on wet stairs between the second and third floors of the building as he and another employee were carrying sections of an exhaust blower to the roof, a necessary installation for the restaurant's heating, ventilation and air-conditioning system.  The trial court held that the lessee was not the "owner" or a responsible party for the injury because the injury did not occur in a section of the building under his control. The First Department, however, held that Section 214(6), which governs safety at construction sites and attendant areas, creates an absolute and nondelegable duty upon owners and their agents to provide safe working areas, and  that they are vicariously liable for injuries sustained as a result of a subcontractor's negligence. The court went on to explain that under the law a lessee is considered an "owner" for purposes of liability.

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