Monday, February 13, 2012

Same Sex Benefits and Religious Preferences Collide

The Eleventh Circuit Court of Appeals recently decided a religious discrimination case that has significant implications for employers with employees expressing religious objections to dealing with certain customers.

The facts of the case are a little convoluted: the plaintiff, a devout Christian who believes it immoral to engage in same sex sexual relationships, worked for the Centers for Disease Control in Atlanta via a contract under which she performed counseling as part of an employee assistance program for CDC employees. The plaintiff worked as an EAP counselor, and her contract required that EAP services be made available for all CDC employees, regardless of the nature of personal or organizational issues related to work or life.

Her direct supervisor was aware that plaintiff considered herself conflicted with respect to her religious beliefs and her job responsibilities in counseling homosexual clients. About a year after advising her supervisor of these conflicts, Plaintiff performed an initial intake counseling session with a CDC employee who indicated that she was in a same sex relationship for 18 years and had some relationship issues. The plaintiff recognized that she was going to have difficulty performing the counseling, and advised the client that because of plaintiff’s “personal values”, she was not the best counselor for the client and that her personal values would likely interfere with a client therapist relationship, which would not be fair to the client. The plaintiff then referred the CDC employee to another counselor.

The CDC employee was upset on how the intake session and referral was handled and complained to the plaintiff’s supervisor.

The company, of course, followed up with the plaintiff, and specifically asked her if she would be willing to tell clients that she was not able to deal with same sex relationship issues because of a "lack of experience." The plaintiff replied that she could not lie when making an referral. Because of plaintiff’s indication that she would not tell homosexual clients she couldn't deal with them because of a lack of experience, but rather due to her personal values and religious beliefs, the employer removed her from her counseling session. The company offered her the opportunity to apply for different positions within the company, but the plaintiff did not avail herself of that opportunity.

The trial court dismissed the case before trial and the Eleventh Court of Appeals affirmed the dismissal, noting that the employer’s decision was not based on the plaintiff’s religious beliefs, but because of the manner in which she handled the referral. The court also noted that it was not part of the plaintiff’s religious beliefs to tell clients that she could not counsel them due to her religious beliefs or personal values. That was the key for her employer – not that her religious values precluded her from dealing with homosexual clients, but rather that the way the plaintiff advised them that she couldn't deal with them was problematic.

Although this might seem like a distinction without a difference, it is crucial. The key to defending religious discrimination claims is to identify specifically the religious practice and belief at issue and the conduct that is the actual cause of the adverse employment actions. Companies that confront a religious accommodation or discrimination claim need to immediately begin to draw lines around the decision making process so that they can better pare off religious issue claims and concentrate on employee conduct that is actually driving the adverse employment decision. Doing this can help you make a better employment decision and at the same time may well reveal alternate ways of dealing with the issue that can work within the aegis of the employee’s religious preferences.

Why It's Important to Get Your Testimony Right the First Time

Frequently in litigation we run into a situation where a plaintiff in a deposition (or some other witness, but it’s usually a plaintiff) makes a statement that is particularly damaging to her case. Or a witness will simply feign forgetfulness, reciting over and over again she doesn't recall the particular events that caused her to think that the employer was violating state or federal employment law.  Deposition testimony is recorded and transcribed, of course, and is taken under oath, which makes it effectively the same as testimony at a trial.

These damaging answers, or a lack of recollection, are normally put to good use by company counsel when they prepare the employer’s motion for summary judgment. So it is not unusual to see a plaintiff in an employment lawsuit, after realizing that she has screwed up her case by her deposition testimony, attempt to rewrite her answers by submitting an affidavit, also under oath, that either directly contradicts the deposition or fills in significant memory gaps once the specific nature of the damaging testimony becomes apparent.

Fortunately, this type of conduct is expressly prohibited, at least in federal court. A recent case out of Illinois serves as an example. The employee, who worked for the Post Office, repeatedly testified at his deposition he “could not recall exactly what it was his supervisor did that was discriminatory or improper.” He also testified that he did not remember any of the details about disciplinary actions that were taken against him. However, when the Post Office filed its motion for summary judgment (to have the court throw out the case before going to trial), the employee’s memory suddenly improved in the form of an affidavit he submitted that filled in the gaps in his previously unreliable memory, and in a seeming coincidence, raised issues of material facts that would have prevented the court from awarding summary judgment to the Post Office.

The federal judge would have none of it. She noted that the employee’s “alleged memory” lapse during his deposition, followed by a drastic recovery of his recollection post-deposition, was manifestly improper. The judge threw out the affidavit, meaning the employee was stuck with his responses at the deposition, which were insufficient to keep his case from going out the window prior to trial.

This is why it is crucial to nail down the recollections and facts for witnesses on both sides of the case early on. Courts are proving to be less and less willing to allow the type of sandbagging engaged in here, and an unresponsive witness can't fix the situation later on except in the most unusual circumstances.

Actors Unions Engage in Pointless Merger?

The SAG (Screen Actor’s Guild), and AFTRA (the American Federation of Radio and Television Artists) recently approved a merger agreement that will now be submitted to both union memberships for approval. But based on the problems the groups needed to resolve, any benefits from the merger are likely to be illusory, at least in the short term (you can read an online discussion of various parts of the merger and the positions for and against it, here).

The merger was apparently undertaken to eliminate the turf wars that have broken up between the two groups, since they have overlapping jurisdictions. The overlapping jurisdictions situation means that actors basically have to pay dues to two unions, and more importantly, split their benefit contributions between the two. The split benefit issue is a real problem because it means that actors dividing their time between SAG and AFTRA jobs may not contribute enough under either contract to meet the earning thresholds for the benefit plans, even though the job is essentially the same between both union contracts.

Moreover, there doesn’t appear to be an agreement on the key dues provisions.  Both SAG and AFTRA charge a set dues amount for each member, as well as a second payment based on the total earnings of the actor. The problem is that SAG cuts its sliding scale amount off at $500,000 of earnings, while AFTRA uses a much lower $250,000 cap. The end result is that for some actors, SAG dues are significantly higher than for AFTRA.

There are other differences as well. SAG enforces what the union calls Global Rule 1, a workplace restriction that precludes SAG members from working in nonunion shops like CNBC and CNN. AFTRA has a similar rule (Rule 1 No Contract/No Work) designed to keep union members from working for employers wherever AFTRA has“jurisdiction”, but no contract, but AFTRA does not enforce this provision. The union contract does not require that SAG’s Global Rule 1 extend to the literally hundreds of AFTRA members (mainly broadcasters) working in nonunion shops. This is a boon to AFTRA employees, who presumably can continue to move between union and nonunion jobs with no consequences.

So what is the point of the merger? Perhaps this is the first step in a gradual consolidation of union membership for entertainers. My bet is that the consolidation is going to progress very, very, slowly. In the short run, however, the failure to address the merger of the benefit plans leaves each of the SAG and AFTRA pension plans with hundreds of millions of dollars of deficits, which can only be resolved by increased member contributions – the motion picture and entertainment industry is certainly not going to voluntarily cough up additional money to help solve the union’s problems. In other words, both sets of union leadership are going to have to go to the members with their hands out right away. That should generate plenty of discussion among the members about whether this merger solves anything, or really makes the situation worse.

Sunday, February 12, 2012

How to Measure an FMLA Interference Claim

The Sixth Circuit Court of Appeals recently decided a Family Medical Leave Act case that has important applications for practitioners there and in other circuits. In a case where the Plaintiff employed was terminated from her job one day after returning from an FMLA absence, the Court held that the McDonnell-Douglas  analysis was the proper framework to assess whether the Plaintiff made a sufficient case to survive a summary judgment motion. The Court determined that where an employer establishes a good faith belief that its decision was based on a non-discriminatory reason, it can defeat FMLA interference and retaliation claims.

The facts of the case were relatively clean. The plaintiff was out on leave that she later claimed was FMLA-related. Prior to her departure, the plaintiff's employer began an investigation into missing cash register receipts, focusing on her register. Her employer’s suspicion crystalized while she was gone, and one day after she returned she was terminated. She sued for FMLA interference and retaliation, as well as discrimination based on an alleged disability under the ADA. She lost at the trial court level, where the judge granted summary judgment and determined that she failed to present evidence showing that her employer’s reason for its decision was actually a pretext for FMLA interference, retaliation, or discrimination.

The Sixth Circuit agreed, applying the McDonell-Douglas prima facie/pretext standard to the claims.

This is an important decision by Court of Appeals. Other courts have determined that the McDonell-Douglas framework is not applicable to FMLA interference claims and that these cases are better analyzed under a mixed motive analysis (i.e. under an analysis where an employer may have considered the FMLA issue, along with other legitimate factors, in its determination of whether to act against an employee). Mixed motive cases are virtually impossible to dispose of via summary judgment, so the Sixth Circuit here is definitely striking a blow for employers in these types of cases.  The decision is also important because FMLA interference cases, unlike Title VII cases, don't have to be decided on issues of intent--if the employee is entitled to FMLA leave and the employer does something that prevents her from using it, liability attaches.  If an employer can show there's no entitlement via the Title VII standard, then it has a clearer path to avoid being sued.

Thursday, February 9, 2012

Newsflash: Performing Killer Whales Are Not Considered Employees, Either

I realize that PETA was simply trying to make a point here, but doesn't trying to apply the 13th amendment to performing animals denigrate the plight of the people who really were slaves?
On a positive note, I guess there is some common sense in the court system, even in California.

Wednesday, February 8, 2012

E-Mail Etiquette Suggestions


Given the number of cases with evidentiary issues that involve poorly written or misunderstood e-mails, it never hurts to review some basics.

FLSA Follies: Security Screening As Time Worked

In recent years, as personal search technology improved, a number of employers began introducing various types of screening inspections in their workplaces. Such security inspections have always been in place for sensitive areas like public utilities or transportation hubs, but many private sector employers have begun using these processes as well.

These inspections typically occur before or after (or both) an employee's workday. Naturally, employees began to assert claims that this additional time spent in inspections and screening should be considered time worked for purposes of computing hourly and overtime compensation. Historically, courts have rejected these types of claims, especially in circumstances where the screenings are required by government regulation, such as at airports or power plants. The thought process was that such inspections were not performed for the benefit of the employer, but required by the governmental entity. But at least one relatively recent case determined that pre-and post-work inspections were not to be considered time worked and compensable when they were performed as part of an employer's loss prevention program.

Fast forward now to the present day-a case recently surfaced in California (it's always California), in the form of an hourly workers' class-action asking for compensation for loss prevention, bag inspections that cut into the California mandated meal break period. In addition, there are several other class actions that have been filed against retail establishments that engage in loss prevention inspections that usually occur at the end of a work shift.

The California cases are particularly problematic because of the state's mandatory meal break statute, which requires mid-shift unpaid time off. Inspections that are performed around the meal break are arguably viewed as compensable time worked, or alternatively, as violations because the inspections cut into the unpaid meal break time. Employers in states with mandatory meal or rest breaks need to be aware of this trend.

There is at least an argument that the loss prevention inspections should not be considered time worked because they are not a principal work activity for which the employee must be paid. On the other hand, it doesn't take much effort to argue that these inspections are clearly done for the benefit of the employer, and that the time it takes to complete them is therefore compensable. I think the key here is to minimize the amount of time employees actually spend undergoing inspection (the more time spent, the stronger the argument that the time should be considered work time), to minimize any type of loss prevention inspection that occurs between the start and end of work shifts, and make whatever adjustments are necessary to the employees' schedules so that the inspection time does not infringe on rest or meal break time, where possible.