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Employment Law Alert
July 29, 2002

In this Issue...

Employment Law Alert - July 29, 2003

LABOR LAW (NLRA)

DISABILITY DISCRIMINATION (ADA)

EMPLOYMENT DISCRIMINATION (OTHER THAN AGE)

FAMILY AND MEDICAL LEAVE (FMLA)

WAGES AND HOURS (FLSA)

 

LABOR LAW (NLRA)

NLRB Restores Longstanding Successorship Rules

In one of its first opportunities to address an area of the law that had been upset by the previous Board majority, the newly constituted NLRB has restored the longstanding rule that had governed recognition of unions in successorship situations until 1999.  Now, as before, in those situations where an employer acquires and essentially continues a preexisting business with a unionized workforce and employs a sufficient number of the employees of the previous employer to constitute a majority of the new employer's workforce, the new employer will succeed to the bargaining obligation of the previous employer.  Now, as before 1999, however, the employees will be able to petition for decertification or the successor employer will be able to withdraw recognition from the union it has inherited as soon as it has a legitimate indication that the union no longer represents a majority of its workforce.  Under the reinstated rule, the successor stands in the shoes of its predecessor and is free to withdraw recognition immediately upon learning that the union no longer represents a majority, rather than having to await a "reasonable period of time" to allow the bargaining relationship to take hold, as the prior Board required.  Frederick D. Braid

 

DISABILITY DISCRIMINATION (ADA)

Alcoholic Teacher Lawfully Fired for Incompetence and Absenteeism

An alcoholic school teacher was lawfully fired for absenteeism and incompetence, not because she was an alcoholic, the U.S. Court of Appeals for the Second Circuit (NY, CT, VT) has ruled in Nucifora v. Bridgeport Board of Education.  The plaintiff was fired after receiving unsatisfactory evaluations for several years.  She claimed her shortcomings were the result of her alcoholism, and asserted that she had been unlawfully terminated in violation of the ADA.  The court held that Nucifora had failed to establish she was an individual with a disability within the meaning of the ADA because there was no evidence her alcoholism substantially limited any of her major life activities.  The court also rejected her claims that she had a record of a disability and was regarded as disabled by the Board.  Finally, the court concluded that even if Nucifora had been able to show she was disabled, the evidence established that she was fired because of her absenteeism and incompetence, not her alcoholism.  This case illustrates that employers may hold an employee who is an alcoholic to the same standards of job performance and behavior that the employer holds other employees and the importance of carefully documenting unsatisfactory job performance in order to support your position if challenged.

 

EMPLOYMENT DISCRIMINATION (OTHER THAN AGE)

White Supremacist Unlawfully Demoted for Religious Beliefs

An employer violated Title VII when it demoted an employee because of his membership in the World Church of the Creator and his white supremacist beliefs, a Wisconsin federal court has ruled in Peterson v. Wilmur Communications, Inc.  In Peterson, the plaintiff was demoted from his management position, in which has supervised eight employees, including three minorities, after the employer learned through a newspaper article that Peterson was a minister in the World Church of the Creator.  The church’s belief system of “Creativity” teaches that followers should live their lives according to what will best foster the advancement of white people and the denigration of all others.  The court ruled that Peterson’s belief system of Creativity was a “religion” within the meaning of Title VII, based on his undisputed statements that he had a sincere belief in the teachings of Creativity, and that he considered Creativity to be his religion.  The court also found that the employer had demoted Peterson because of his religious beliefs because the demotion letter specifically stated Peterson was being demoted because he is “a member of the World Church of the Creator, a White supremacist [   ] organization . . . “  Employers need to be aware that to be a “religion” under Title VII, a belief system need not have a concept of a God, supreme being, or afterlife, or derive from any outside source.  Purely “moral and ethical beliefs” can be religious so long as they are hold with the strength of religious convictions.

FAMILY AND MEDICAL LEAVE (FMLA)

Employer Error in Designating FMLA Leave Period Proves Costly

An employer cannot assert that an employee had exhausted his 12 weeks of FMLA leave because it sent him a letter stating his job would be protected until a date 34 weeks after his leave began, the U.S. Court of Appeals for the Eight Circuit (AR, IA, MN, MO, NE, ND, SD) has ruled in affirming a $305,000 jury verdict.  In Duty v. Norton-Alcoa Proponants, the plaintiff went on medical leave on April 17, 1997.  On September 15, 1997, the employer sent him a letter stating that his leave was FMLA qualified.  The letter also informed Duty that his job would be protected for 12 weeks from receipt of the letter, until December 11, 1997.  On December 11, 34 weeks after first going out on medical leave, Duty called the company to find out what to do to return to work, and was told he was fired for not returning to work after the expiration of his FMLA leave.  Duty prevailed at trial on his disability discrimination and FMLA claims.  The Eighth Circuit affirmed, rejecting the employer’s argument that it should not be penalized for extending to Duty more benefits that the FMLA requires.  The court held that the employer could not contest Duty’s eligibility to assert a claim under the FMLA because it had made a misleading representation to Duty and he had relied on that representation to his detriment.  This case illustrates the importance of providing timely and accurate FMLA notices. 

WAGES AND HOURS (FLSA)

Appeals Court Allows Removal to Federal Court

In a victory for employers who would rather proceed in federal court, the Eleventh Circuit (AL, FL, FA) recently concluded in Breuer v. Jim’s Concrete of Brevard, Inc., that FLSA cases that are begun in state court can be removed to federal court.  The FLSA says that a lawsuit “may be maintained” against the employer in state or federal court.  While most federal courts that have passed on this issue have ruled that the permissive language is not a clear enough statement of Congressional intent to divest the federal court of jurisdiction over a matter begun by a plaintiff instate court, a few federal courts, including the Eighth Circuit in a 1947 ruling, have disagreed.  The court's reasoning is that the “may be maintained” language gives the plaintiff the right to choose the forum, which choice should not be allowed to be disturbed by an employer-defendant.  Now, at least in the Eleventh Circuit, employers will have the right to have federal FLSA claims heard by federal court judges even if a plaintiff initiates suit in state court.  Tim Singhel



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