March 3, 2005

State Court Cannot Compel OSHA to Disclose Investigative Report of Workplace Accident

Holland & Knight Alert
Howard Sokol

Disability Discrimination (ADA)

Alcoholic Manager Held Not Disabled Under ADA

An alcoholic bank manager fired for erratic attendance is not disabled or regarded as disabled and therefore cannot pursue a claim of disability discrimination under the ADA, a federal court in Miami has ruled in Roig v. Miami Fed. Credit Union. Roig was discharged for unexcused absences and filed suit, alleging he had been terminated because he is an alcoholic. While acknowledging that alcoholism – “in certain narrow cases” – has been held to constitute a disability, the Court found that Roig, who was either an alcoholic or a recovering alcoholic during more than six years of employment at Miami Federal Credit Union, failed to present sufficient evidence to establish that he was a “qualified individual” under the terms of the ADA because he failed to present evidence that his alcoholism substantially impaired him from participating in any major life activity. The Court also concluded that the employer did not “regard” Roig as disabled under the ADA. Neither Roig nor his employer disputed that Roig was an alcoholic and that the credit union disciplined him on several occasions for absenteeism that was related to his alcoholism.

Employers should remember that even though an alcoholic employee may be covered under the ADA, they may hold the employee to the same qualifications and standards for employment or job performance and behavior as they hold other employees, even if any unsatisfactory performance or behavior is related to the alcoholism of the employee.

Age Discrimination (ADEA)

EEOC Regulation Permitting Reduction of Retiree Health Benefits Delayed

A federal district court judge in Philadelphia granted a 60-day injunction on implementing an EEOC regulation that would allow employers to reduce or end retiree medical benefits when the retiree becomes eligible for Medicare. The regulation, which was approved by the EEOC in April 2004, was intended to encourage employers to offer retiree medical coverage to those retirees who were not yet eligible for Medicare. Without the regulation, employers risked violating federal age discrimination laws if they offered coverage and then reduced or retracted it once the retirees grew into Medicare coverage. The regulation was supported both by business groups and labor as an incentive for employers to provide younger retirees with a “bridge to Medicare.” However, the regulation was fiercely opposed by the AARP, an advocacy group for older Americans, which contended that the regulation sanctioned discrimination against older retirees. In AARP v. EEOC, the court approved AARP’s request for a preliminary injunction and set a schedule for briefing and oral arguments during the 60-day injunction period. In the interim, employers face uncertainty about whether they can lawfully offer “gap” coverage to retirees.

National Labor Relations Act (NLRA)

NLRB Determination Excluded from Jury in Secondary Boycott Litigation

Frederick D. Braid

In a construction contractor’s lawsuit for damages against a building and construction trades council and five local unions for secondary boycott activity, a Pennsylvania federal district court excluded from evidence NLRB determinations dismissing the secondary boycott unfair labor practice charges that had been filed against the unions and council with the NLRB. Finding the NLRB’s determinations perfunctory and conclusory, the court held that the absence of any discussion of the basis upon which the NLRB made its determinations rendered them of little probative value and outweighed by the potentially unfair prejudice they would cause because of their authoritative language indicating that a careful investigation preceded the determinations. Although the NLRB’s dismissal of the charges deprived the contractor of the injunctive relief that would have ended any illegal activity quickly, the court’s refusal to admit into evidence the NLRB’s pre-hearing dismissal preserved the employer’s ability to prove its case to the federal court in the separate damage action authorized by law without such potentially confusing and prejudicial evidence. This is important for an employer where the NLRB erroneously fails to intervene because the discovery that the employer’s damage court action allows often enables it to be better prepared to prove the secondary boycott than the more summary NLRB proceedings and to recover damages.

Family And Medical Leave (FMLA)

Employer Subject to FMLA Litigation, Even After Claim Is Arbitrated

An employee was permitted to sue her employer in federal court for violating the Family and Medical Leave Act when it fired her in connection with an absence, although her claim was already arbitrated under her union contract and the arbitrator ordered her reinstatement. In Cook v. Electrolux Home Products, a federal district court in Iowa ruled that the arbitration proceeding did not preclude the FMLA litigation, despite the fact that it arose from the same set of facts. The court focused on the many differences between a union arbitration procedure and a court action under the FMLA, including the different rules of evidence and procedures, and the arbitrator’s reliance on the collective bargaining agreement as the basis for his decision, rather than the FMLA statute and caselaw. Significantly, the court explained that the interests of a union in pursuing a violation of its collective bargaining agreement do not always coincide with the personal interests of a particular union member. The court stressed the explicit language in the FMLA that entitles individuals to recover damages in a private cause of action, and held that such an interest was not satisfied by arbitration, even where the employee won the arbitration. However, the court rejected the employee’s argument that her favorable arbitration decision precluded Electrolux from arguing it did not violate the FMLA. For the same reasons that the arbitration did not prevent the employee from bringing her statutory suit, neither did it prevent the employer from asserting its defenses. This case provides a reminder that arbitration provisions do not necessarily insulate employers from employment litigation, particularly when the arbitration is performed under a collective bargaining agreement.

Occupational Safety and Health (OSHA)

State Court Cannot Compel OSHA to Disclose Investigative Report of Workplace Accident

Howard Sokol

In Metcalfe v. Ultimate Sys. Ltd., a federal district court in Ohio ruled that the state court did not have jurisdiction to compel OSHA to disclose its investigative report concerning an accident that resulted in a fatality. In a wrongful death action brought by the administrator of the deceased worker’s estate, one of the defendants filed a motion seeking OSHA’s investigative report of the accident. Relying on a United States Department of Labor (DOL) regulation, barring such disclosure in response to a demand of court or other authority, OSHA refused to comply with an order requiring OSHA to release a “full, complete, and unredacted copy of its investigative report” relating to the accident without approval of the appropriate Deputy Solicitor of Labor.” The state court then issued an additional order directing OSHA and its Toledo area director to appear and show cause as to why the agency should not be held in contempt. Upon removal, the federal judge vacated the state court’s discovery orders and held that the state had no authority to compel a federal worker or agency to testify or produce documents when such testimony or disclosure is clearly contrary to a valid agency regulation.

State Issues

Rhode Island Workplaces Must Be Smoke-Free by March 1

Effective March 1, 2005, all Rhode Island workplaces must be smoke-free, pursuant to the Public Health and Workplace Safety Act. The Act prohibits smoking in all enclosed facilities within places of employment, with very limited exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles and all other enclosed facilities. Employers must communicate the smoking prohibition to all existing employees by March 1 and to all prospective employees upon their application for employment. The Act requires employers to post signs clearly at every entrance to public places and workplaces where smoking is prohibited. Should an employer provide an outdoor smoking area, it must physically be separated from the enclosed workplace so as to prevent the migration of smoke into the workplace. The R.I. Department of Health recommends that any outdoor smoking area be at least 50 feet from the building. Any employer that allows smoking in an area or establishment that is regulated by the Act or which fails to post the required signs can be subject to a civil penalty of up to $1,000. The Act makes it unlawful for an employer to retaliate against any employee, applicant, or customer for exercising any rights afforded by the Act or for reporting or attempting to prosecute a violation of the Act. The Act prohibits discrimination against an employee or prospective employee for using tobacco products outside the course of employment.

Florida Court Rules That Employer Had No Duty to Tell Co-Worker That Child Care Provider Was Convicted Sex Offender

A Florida supermarket had no obligation to tell an employee that the co-worker she was using as a day care provider was a convicted sex offender, a Florida appeals court has ruled. In K.M. v. Publix Super Markets Inc., a Publix employee arranged to leave her 7-year-old daughter, K.M., with a co-worker, Robert Woolard, while she was at work. The store manager knew that Woolard was on parole from a conviction for attempted sexual battery on a minor under 12. He did not, however, inform K.M.’s mother of this fact, and during the three months K.M. was in Woolard’s care, she was sexually abused on at least two occasions. K.M.’s father filed suit against Publix, alleging the manager should have known Woolard was unfit to provide child care and that since all of the actors in the case were Publix employees, the company was also liable for K.M.’s injuries. The trial court dismissed the case, holding there was no duty to so inform K.M.’s parents. On appeal, the Fourth District Court of Appeals agreed, holding that because the baby-sitting involved nonwork activities, Publix was under no legal duty to inform the employee even though it was aware of the arrangement. “Under the facts of this unfortunate case,” the Court wrote, “we hold that an employer does not have a duty to warn one employee about a second employee’s criminal background, where the warning pertains to the employees’ personal relationship outside of work.” Otherwise, the Court continued, “employers might have to monitor their employee relationships apart from work, in areas such as commuting and socializing.” Reiterating the established common-law rule, the Court explained “that the fact that a person realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose a duty to take such action.”

Revisions to Illinois Human Rights Act and Illinois Public Relations Act

In January of 2005, the Illinois Human Rights Act was amended to include sexual orientation as an unlawful basis for discrimination in employment. Under the Act, “sexual orientation” is defined as “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth,” but specifically excludes “physical or sexual attraction to a minor or adult.” The Act further provides that employers are not required to give employees or applicants preferential treatment based on sexual orientation or to implement affirmative action policies or programs based on sexual orientation.

A recent amendment to the Illinois Public Labor Relations Act has lowered the number of employees a public employer must have in order to be subject to the Act. The Act now applies to units of local government with more than five employees. It previously applied to units of local government with more than 35 employees.

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