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Labor and Employment Law Reporter:
Summer 2011
In This Issue:
ADA LIMITED TO DISABLED INDIVIDUALS
The Sixth Circuit Court of Appeals granted an interlocutory
appeal to address the scope of the Americans with Disabilities
Act (“ADA”). Bates, et. al. v Dura Automotive Systems, Inc., No.
09-6351 (6th Cir. 2010). The plaintiffs are individuals who
worked at Dura Automotive’s Lawrenceburg, Tennessee
manufacturing facility. Dura Automotive became concerned when
its Lawrenceburg facility had a higher rate of workplace
accidents than at comparable plants. Dura suspected that the
higher rate might be caused by legal or illegal drug use. Dura
implemented a policy to prohibit employees from using legal
prescription drugs, if those drugs contained substances that had
an adverse effect on safety, company property, or job
performance. Dura developed a procedure to screen employees for
all substances believed to be dangerous in the workplace, even
if they are in prescription medications.
Each of the plaintiffs tested positive for one of the prohibited
substances. However, each employee had a legal prescription for
those medications. Dura gave the employees an opportunity to
transition to different medication without the prohibited
substances and refused to consider letters from doctors saying
that the employees’ work performance would not be affected by
the drug. Dura terminated the employees when they continued
taking the medication with the prohibited substances. The
employees sued, claiming that Dura’s drug testing policy
violated the ADA. The trial court denied Dura Automotive’s
motion to dismiss, citing a difference of opinion on the issue
of whether an individual must be disabled in order to assert a
claim under Section 12112(b)(6) of the ADA, but certified the
question for an immediate appeal to obtain guidance from the
Sixth Circuit.
The ADA prohibits discrimination against a “qualified individual
with a disability because of the disability.” Discrimination is
defined to include “…using qualification standards, employment
tests or other selection criteria that screen out or tend to
screen out an individual with a disability…” The ADA does allow
non-disabled individuals to bring some claims under some
provisions of the Act, but that does not apply to employee
screenings. The plain language of subsection (b)(6) only
protects individuals with disabilities. The court adopted a
straightforward reading of this section of the ADA, and
concluded that only a “qualified individual with a disability”
is protected from the prohibited form of discrimination
described in subsection (b)(6) – the use of qualification
standards and tests tending to screen out disabled individuals.
Here, the plaintiffs had no disabilities. Thus, the Sixth
Circuit reversed the trial court’s denial of Dura’s motion to
dismiss, and ordered that the claims of non-disabled plaintiffs
be dismissed.
As this decision makes clear, it is permissible to establish
screening procedures which target the use of medications
containing certain substances which affect performance. While
that may help employers control use of certain medications in
some cases, the possibility remains that if a disabled
individual is caught in the net, there may still be some ADA
exposure.
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ARBITRATOR PROPERLY EXAMINED THE ISSUE OF ARBITRABILITY BEFORE
ADDRESSING MERITS
In Merkel v Lincoln Consolidated Schools, Mich. App. No. 292795
(unpublished, 10/19/10), the court addressed the scope of an
arbitrator’s authority to determine the question of arbitrability. Lincoln Consolidated Schools and the Lincoln
Education Associates Organization (“LEAO”) were parties to a
collective bargaining agreement. A grievance was filed against
the school district, in which it was asserted that a bargaining
unit member was entitled to additional healthcare benefits. The
grievance procedure contained five steps, and step five provided
that if the LEAO was not satisfied with the disposition of the
grievance at step four, the grievance could be submitted to
arbitration “within fifteen (15) working days.” The step four
decision denied the grievance, so the union filed a demand for
arbitration. However, it did so eighteen (18) working days after
the step four decision.
The collective bargaining agreement also contained a provision
explaining that if the parties disputed the arbitrability of the
grievance, the arbitrator “shall first render a decision as to
the arbitrability thereof.” The contract also stated that the
time limits were to be strictly observed, but could be extended
by written agreement of the parties. Ultimately, an arbitration
hearing was held and, following the filing of post-hearing
briefs, the arbitrator concluded he did not have jurisdiction to
resolve the merits of the dispute because the union failed to
timely advance the grievance to arbitration. The union then
filed suit to vacate the arbitration award and order the
arbitrator to issue a decision on the merits.
Both parties filed motions for summary disposition. The trial
court denied the union’s motion, granted the employer’s motion,
and dismissed the complaint. The court explained that while the
union had an opportunity to present evidence to the arbitrator,
the arbitrator first had to assess whether the dispute was
arbitrable. The Court of Appeals confirmed that procedural
matters arising relating to an arbitrable dispute are for the
arbitrator, and not the court, to determine. As such, the
timeliness of bringing an arbitration proceeding was a
procedural issue to be determined by the arbitrator. The Court
of Appeals confirmed the trial court’s dismissal of the union’s
complaint. Because the arbitrator had the authority to address
the initial issue of arbitrability, and did so based upon
evidence and arguments presented to him, his refusal to reach
the merits of the case was appropriate.
This case reminds us of the importance of deadlines in
collective bargaining agreements. Sometimes the familiarity of
the parties results in a less than strict adherence to
contractual deadlines. It is the best practice to strictly
follow contractual deadlines and obtain any necessary extensions
in writing. We encourage all managers and administrators to be
familiar with and mindful of contractual deadlines, particularly
in the grievance process.
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SURPRISE: SLEEP APNEA INTERFERES WITH ONE’S ABILITY TO DO ONE’S
JOB
Stanley Williams worked for the University of Michigan Medical
Center as an anesthesia technician. Plaintiff took an approved
leave of absence from his employment due to severe obstructive
sleep apnea. His sleep apnea resulted in tiredness at work,
difficulties with concentration and attention, falling asleep
while driving, and decreased sleep at night. Plaintiff’s
treating physician eventually released him to return to work,
but the medical center referred him to a sleep medicine
specialist for a fitness for duty evaluation. The specialist
concluded that plaintiff could return to work provided that he
work part-time, with a later starting time, and with the
assistance of a colleague to work along side him to monitor his
work and correct any mistakes that he might make. The hospital
determined that it could not authorize plaintiff’s return to
work with the “work-buddy” restriction. Williams was
subsequently reevaluated and allowed to return to work without
the work-buddy arrangement. Williams responded by filing a
lawsuit alleging that he was discriminated against on the basis
of a disability and that he was retaliated against for seeking
certain accommodations. Williams v University of Michigan, Mich.
App. No. 291323 (unpublished, 12/16/10).
Plaintiff’s complaint alleged that he was discriminated against
on the basis of disability in violation of the Michigan Persons
With Disabilities Civil Rights Act (PWDCRA). MCL 37.1101, et.
seq. The allegedly discriminatory conduct occurred when the
hospital would not allow him to return when first released under
the conditions established by the sleep medicine specialist. The
hospital moved for summary disposition and the trial court
dismissed the case. The Court of Appeals agreed.
The court restated the general principle that the Act prohibits
discrimination against individuals because of their disability
status. The Act protects against discrimination based on
physical and mental disabilities that substantially limit major
life activities, but that, with or without accommodation, do not
prevent the disabled individual from performing the duties of a
particular job. The purpose of the Act is to ensure employment
of the disabled to the fullest extent possible. In other words,
employers are prohibited from taking any adverse employment
action against an employee because of a disability unrelated to
the individual’s ability to perform the duties of a particular
job.
The trial court specifically found that plaintiff’s disability
prevented him from performing the duties required of an
anesthesia technician, even with reasonable accommodation,
because of the risk posed to patient safety as a consequence of
plaintiff’s disability. An anesthesia technician is required to
place arterial lines, central lines, epidural catheters, airway
devices, echo monitoring devices, and devices necessary for
cardiac and vascular cases. The technician also assists in the
administration of anesthesia to patients, at staff requests.
Further, the technician is responsible for ensuring that the
equipment used for anesthesia is working properly. The court
concluded that precision was very important and any failure in
doing his job properly could be life threatening to patients. A
number of other hospital staff members confirmed that failure to
do the job properly could pose a very serious risk of injury to
patients. The very fact that the proposed accommodation, having
a co-worker monitor his performance, confirmed that if he did
something wrong it could harm the patients. As a result, it was
determined that even with accommodation he was not be able to
perform the essential functions of the job, so he was not
protected by the PWDCRA.
The court also held that he had not been retaliated against for
seeking reasonable accommodations to return to work. After his
return he did receive some criticism from his supervisor, but he
also received a positive evaluation, a pay raise, and his
compensation was comparable to other employees. Further, his
employment was ultimately restored to what it was previously.
Therefore, Plaintiff failed to show any adverse employment
action at all, let alone for seeking accommodations.
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EMPLOYERS MAY NOW REQUIRE EMPLOYEES TO ACCEPT THEIR WAGES
THROUGH EITHER DIRECT DEPOSIT OR A DEBIT CARD
Effective December 21, 2010, the Michigan Legislature amended
the Payment of Wages and Fringe Benefits Act to make it easier
to encourage direct deposit. As a cost saving measure, many
employers would prefer that employees receive pay through direct
deposit. Prior to the amendment, employers could not mandate
that employees’ wages be direct deposited. An employee was
required to give full, free, and written consent to being paid
through direct deposit, obtained without intimidation, coercion,
or fear of discharge or reprisal. Under the amendment, an
employer may now require an employee who refuses direct deposit
to accept a debit card, so long as each employee received
notification and a form giving him or her the option to receive
wages either through direct deposit or debit card. The employer
must also notify the employee that failure to return the form
within thirty (30) days will be presumed to indicate consent to
receiving wages through a payroll debit card.
Paying wages via direct deposit or debit cards reduce the costs
associated with issuing or distributing paper checks. It also
eliminates bank processing and check handling fees, as well as
postage to send the checks to employees. Before the amendment,
there was no way an employer could compel payment of wages by
something other than a paper check. This amendment, should
employers choose to take advantage of it, may yield some cost
savings. It is critical, however, that the requisite notices be
provided. Please note that there is also some question whether
unionized employers are required to negotiate this method of
payment. Accordingly, we recommend you contact legal counsel
before implementing such a program with your unionized staff.
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STATUTE OF LIMITATIONS BARS WPA CLAIM
In Wajer v Outdoor Adventures, Inc., Mich. App. No. 294985
(unpublished, 1/25/11), the Michigan Court of Appeals upheld the
dismissal of a complaint alleging a violation of the Michigan
Whistleblowers Protection Act (“WPA”). There, the Plaintiff was
terminated from his employment on October 24, 2008, allegedly in
violation of the WPA. However, the lawsuit was not filed until
February 17, 2009. That is more than the ninety (90) day period
allowed by the WPA. Accordingly, the claim was untimely and,
thus, properly dismissed.
Moreover, the court reiterated that the “continuing violation
doctrine” cannot serve to revitalize an otherwise time barred
lawsuit. The Wajer court relied on a previous Michigan Supreme
Court decision which made the general statement that “the
[continuing violations] doctrine has no continued place in the
jurisprudence of this state.” Even though the economic harm
associated with being terminated from employment continued long
after the discharge, that alone was insufficient to toll the
statute of limitations. There must be some allegedly
inappropriate action taken within the limitation period, for the
doctrine to apply. That was absent, so the case was properly
dismissed by the trial court.
This case exemplifies the need to check the applicable statute
of limitations in every WPA case. Because the statute of
limitations is so short, it is not inconceivable that a
plaintiff failed to file a complaint in a timely fashion.
Failure to recognize and address the issue early on may
constitute a waiver of that particular defense, so timelines
must be studied as early as possible.
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FAILURE TO BRING ALL CLAIMS BEFORE THE EEOC WILL BAR THEIR
INCLUSION IN SUBSEQUENT LITIGATION
Plaintiff Nazeeh Younis appealed from an order granting summary
judgment to Pinnacle Airlines in this action for disparate
treatment discrimination and retaliation under Title VII of the
Civil Rights Act of 1964. Younis v Pinnacle Airlines, No.
08-6112 (6th Cir. 2010). Younis was a pilot for Pinnacle
Airlines and promoted to captain in 2004. Eventually, Younis was
discharged for failing to successfully pass both the oral and
written portions of a proficiency test. Younis claimed that the
tests were unreasonably complicated, consisted of unrealistic
scenarios, and the results were, in some cases, inaccurate. So,
naturally, he sued under Title VII alleging national origin
discrimination.
In an issue of first impression, the Sixth Circuit clarified the
administration prerequisites at the Equal Employment Opportunity
Commission (“EEOC”) before one may file a Title VII lawsuit. In
this case, Younis did file a disparate treatment claim with the
EEOC. He identified three or four isolated and allegedly
discriminatory comments by his peers that occurred over a three
year period to support his charge. The EEOC failed to find merit
to his charge and issued a “right to sue” letter. When he filed
his suit, he included a hostile work environment claim, too. In
order to establish a claim of hostile work environment, a
plaintiff must present evidence of harassment that unreasonably
interferes with work performance and creates an objectively
intimidating, hostile, or offensive work environment.
The court held that the facts plaintiff noted in the EEOC charge
were limited to his claim of disparate treatment and did not
support the subsequent, uncharged claim of hostile work
environment. In other words, one must include all claims at the
EEOC, as part of the duty to exhaust administrative remedies,
before filling a lawsuit. Previously, the courts were somewhat
lax in allowing uncharged claims to proceed if the facts seemed
to be close to raising such issue. Here, the court ultimately
held that the allegations of hostile work environment in the
complaint clearly exceeded the scope of the EEOC charge. The
facts alleged in the charge before the EEOC could not reasonably
be inferred to extend to a hostile work environment claim.
Accordingly, the plaintiff failed to satisfy the duty to exhaust
administrative remedies, and the trial court properly dismissed
the complaint.
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THE PRINCIPLES OF “DONNING AND DOFFING” CLOTHING IS MODIFIED BY
THE SIXTH CIRCUIT
In Franklin v Kellogg Company, No. 09-5880 (6th Cir. 2010),
Alice Franklin filed suit on behalf of herself and all similarly
situated employees to recover unpaid wages allegedly owed under
the Fair Labor Standards Act (“FLSA”). Plaintiff’s claim that
the time spent “donning and doffing” Kellogg’s mandatory food
safety uniforms and protective equipment should be paid. The
claim also sought to recover wages for time spent walking to and
from the changing area to the time clock. The trial court issued
summary judgment in favor of Kellogg, concluding that donning
and doffing equipment is excluded from hours worked under the
FLSA. However, the Court of Appeals reversed, in part, and
remanded for further consideration.
Under the FLSA, employers must pay their employees time and a
half for hours worked in excess of 40 hours per week. Section
203(o) of the Act excludes changing clothes from the measured
working time, if it has been excluded by custom or practice
under a collective bargaining agreement (“CBA”). In this
particular case, Kellogg relied on an interpretive opinion
letter from the Department of Labor concluding that “clothes”
include clothes worn on the body for covering, protection, or
sanitation. Based on this ruling, the hairnets, pants, snap
front shirts with Kellogg logo and employee name, and slip
resistant shoes were concluded to be “clothes” covered by the
exception. Additionally, it had long been the practice that the
period of time spent “donning and doffing” this clothing was not
paid to employees covered by a CBA. Accordingly, the court
affirmed the trial court’s decision that the period of time
spent “donning and doffing” does not count toward the hours
worked under the FLSA.
However, the court remanded the case for further proceedings as
pertains to the time spent walking from the locker room to the
time clock, where the employees are required to clock in.
Franklin argued that the time spent walking between the locker
room and time clock was a “principal activity,” and thus must be
counted towards overtime. Under the continuous work day rule, a
work day is generally defined as the period between the
commencement and the completion, on the same work day, of an
employee’s principal activity or activities. During a continuous
work day, any walking time that occurs after the beginning of
the employee’s principal activity and before the end of the
employee’s last principal activity is covered by the FLSA and
must be compensated. Principal activities are those that are an
integral and indispensable part of the activity which the
employee is employed to perform. Therefore, the plaintiff argued
that after changing into the uniform, the time walking to the
time clock was actually part of the work day and needed to be
compensated. The court adopted a broad interpretation of the
term “integral and indispensable,” particularly because the
activity was required by Kellogg, and ruled that the time spent
walking from the locker room to the time clock could
potentially
be compensable. However, there were questions of fact as to the
length of time it took to walk from the changing area to the
time clock. Minimal walking time would not be compensable.
Accordingly, the case was sent back to the trial court for
further development of this factual question.
For those employers who do have uniform requirements, this case
may affect their overtime obligations. We will continue to
monitor the case to see if there is any clarification as to
whether the length of time spent walking between the locker room
and the time clock must be compensated.
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FOIA REQUESTS IN CIVIL ACTIONS
In Beaty v Ganges Township, Mich App. No. 290347 (unpublished,
6/29/10) the Michigan Court of Appeals reversed the trial
court's decision granting the Defendants' summary disposition
motion. The Court of Appeals disagreed with this trial court’s
conclusion that the information requested by Plaintiffs was
exempt from disclosure pursuant to the Freedom of Information
Act (FOIA).
Plaintiffs James Keag and Jean Beaty filed an application for a
planned unit development (PUD) to be built on property they
owned in Ganges Township. The Planning Commission found the site
plan to be consistent with the intent and purpose of the
Ordinance, and compatible with adjacent land usage and the
natural environment. However, when Keag and Beaty submitted
their final site plan, the Planning Commission denied the
application. After denial of their PUD application, Keag and
Beaty filed suit against Ganges Township seeking an order of
superintending control compelling the defendants to approve the
site plan and asserting a claim of appeal from an administrative
agency.
After filing suit, Keag initially filed four requests for
information under FOIA, requesting certain tape recordings,
copies of proposed zoning and PUD ordinance changes, and
correspondence and e-mails exchanged by planning commission
members related to the changes. He later filed three more
requests, including a copy of a site plan submitted by a
non-party and approved by the Planning Commission, information
related to another non-party's special use permit application,
and all communications between the Planning Commission and a
company dealing with reports and ordinance changes, dating back
to when the company was retained.
Under FOIA, a public body must disclose any public record that
is not specifically exempted from disclosure. MCL 15.233(1). A
public body must respond to a FOIA request within five business
days by granting the request, denying the request, or granting
the request in part and denying it in part. MCL 15.235(2).
Pertinent to this case, MCL 15.243(1)(v) states that a public
body may deny in whole or in part a request for "records or
information relating to a civil action in which the requesting
party and the public body are parties."
The trial court concluded the materials requested by Keag
"related" to the underlying case, because Keag might be able to
use them in some way for comparison purposes in pursuing his
appeal of the Planning Commission's decision. However, the Court
of Appeals concluded the trial court erred in making a general
conclusion that all the information Keag requested was exempt
from disclosure. Keag requested a wide variety of information -
e-mails, tape recordings, drafts and final copies of ordinances,
applications and plans submitted by other persons "and the trial
court simply made a blanket determination that all the
information was exempt under MCL 15.243(1)(v)." The court held
the "trial court was required to sort through the requests and
make a particularized determination regarding each piece of
information sought under the requests." As such the case was
remanded for further proceedings.
Obviously, this clarifies that all public bodies must take
particular care when attempting to invoke an exclusion to the
FOIA disclosure requirements, especially when those requested
are quite broad. We recommend that each individual item
requested be separately analyzed under each possible exemption.
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MAY A PRIVATE BODY BE A PUBLIC BODY UNDER THE WPA?
In Denney v Dow Chemical Co., Mich. App. No. 294278
(unpublished, 1/11/11) the Michigan Court of Appeals affirmed
the trial court’s grant of summary disposition to Dow Chemical
Company on Priscilla Denney’s employment claims for (1)
violating the Whistleblowers Protection Act (WPA), (2) breach of
implied contract, and (3) sex discrimination. Notably the Court
of Appeals concluded that the WPA’s statutory definition of
“public body” does not include a private body whose
implementation, action, or reporting is directed by the
government.
Before Dow hired Ms. Denney, she signed an employment
application that acknowledged, if hired, she could be terminated
by Dow at any time with or without cause and that her employment
was at will. She also signed an employment agreement when she
was hired that stated Dow could terminate her employment at
will. Dow's "Code of Business Conduct" provided that nothing "in
this document constitutes a contract of employment with any
individual."
During her employment, Ms. Denney, a civil and environmental
engineer, reported to Dow’s "compliance officer" her concerns
about a contractor's failure to validate data regarding
contamination of pollutants in a local river. She contended that
reporting to the "compliance officer" was equivalent to
reporting to a public body under the WPA. Ms. Denney claims that
she was “demoted” for reporting these concerns and she
eventually resigned from her position with Dow.
The Court of Appeals noted that to establish Ms. Denney engaged
in protected activity, she had to "prove she reported or was
about to report a violation or suspected violation of a law or
regulation to a public body." Ms. Denney, relying on case law,
argued that the WPA covers reports to a private body when the
government sets forth directions as to the private body's
implementation, action, or reporting. The Court of Appeals
disagreed and held that Ms. Denney “did not report her concerns
to any public body as defined in the Act; nor did she claim that
she was about to make a report to any public body.”
Additionally, the Court concluded that Ms. Denney did "not
explain how the plain language of [a public body] extends to
employees of private companies, even if the company has a duty
to report certain matters to the government."
The Court of Appeals further determined that Ms. Denney could
not establish a breach of implied contract based on Dow’s
non-retaliation policy stated in its “Code of Business Conduct,”
because Ms. Denney signed an employment application that stated
that “any other Dow documents are not contracts of employment”
and because Dow’s “Code of Business Conduct” disclaimed the
intent to form a contract with the employee. Finally, the Court
of Appeals agreed with the trial court’s conclusion that Ms.
Denney’s change in job duties did not arise to the level of
adverse employment action. The Court of Appeals stated that even
if it were to assume that Ms. Denney suffered an adverse
employment action, it could not conclude that the circumstances
in this case create an inference that Dow’s actions were
motivated by gender animus.
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This client newsletter is intended to provide helpful
information on topics relating to labor and employment law and
is not intended to constitute legal advice or opinion relative
to specific facts, matters, situations, or issues. Legal counsel
should be consulted concerning the application of this
information to specific circumstances or situations. ©The
Williams Firm, P.C., Summer, 2011
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