The heroes and goats of whistleblowing history. Continue reading →
Atlas Logistics Group Retail Services (Atlanta), LLC had a relatively serious business problem stemming from what it believed was employee misconduct. The employer also had what it thought was a viable solution. It just needed DNA samples from some of its employees to identify the misbehaving worker. Unfortunately for Atlas, its plan had one major flaw: it was against federal law. As of June 22, that flaw cost the employer $2.25 million in damages awarded to two employees for the employer’s violation of the Genetic Information Nondiscrimination Act.
The problem began when Atlas discovered several piles of human feces in one of its warehouses. While disturbing to any employer, the issue was especially problematic for Atlas as a company that warehouses food products sold to grocery stores. Atlas collected DNA cheek swabs from employees Jack Lowe and Dennis Reynolds. A lab compared the DNA of the men to DNA from the feces and found no matches.
A recent Sixth Circuit holding affirmed a federal district court’s ruling that an employer did not violate Title VII of the Civil Rights Act of 1964 by declining to hire a prospective employee because he refused to provide his social security number on religious grounds.
The plaintiff applied for an internship with the defendant, an energy company. However, he refused to provide his potential employer with a social security number. The plaintiff asserted that he did not have a social security number because he disavowed it upon turning 18 due to his sincere religious beliefs. When the defendant refused to hire him, he filed suit alleging religious discrimination in violation of the Civil Rights Act. The defendant filed a motion to dismiss for failure to state a valid legal claim pursuant to Fed. R. Civ. P. 12(b)(6). The district court granted the motion.
A person who files a Civil Rights Act religious discrimination claim must prove three elements:
- There was an employment requirement that conflicts with a genuine religious belief held by the plaintiff;
- The plaintiff advised the employer of the belief; and
- The employer terminated or disciplined the plaintiff for refusing to comply with the employment requirement.
The statute of limitations for a Georgia whistleblower action does not accrue until the employee receives a definitive or final determination about the alleged retaliatory action, the Court of Appeals of Georgia held late last year. This ruling helps public employees who have been wrongfully terminated by their employers prove their cases under the Georgia Whistleblower Statute.
The plaintiff in the case was the police chief for a public institution in the University of Georgia system. The school fired the plaintiff in late 2009 after several contentious issues that began in October 2008. One of these was school staff interfering in a criminal investigation that the plaintiff thought was in violation of Georgia law. In June 2009, school administrators asked the plaintiff to resign from his post once he found a new job or face immediate termination. He initially agreed to resign but later changed his mind. On November 19th 2009, the school delivered a letter of termination to the plaintiff. The plaintiff filed suit under the Georgia Whistleblower Statute for wrongful termination on November 10, 2010.
The defendant filed a motion for summary judgment contending, in part, that the the statute of limitations barred suit. It was granted by the trial court, but the Court of Appeals reversed.
A broad set of protections, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a number of factors, including race, color, religion, sex, and national origin. Over the past 50 years, courts and lawmakers have dedicated a lot of time to tweaking the law and figuring out how to apply it to situations that may be completely unique or reflective of society’s ever-evolving norms.
Recent months have proved to be no exception, with a number of continuing legal challenges arising under Title VII further defining the breadth and boundaries of the protection it offers. Around the country and even up to the US Supreme Court, Title VII litigation is making for some interesting decisions and debates. Here are some of the more noteworthy questions and revelations of late:
Volunteers aren’t entitled to Title VII protections from employment discrimination
This might strike some as obvious, since the very notion that one is a volunteer rather than a paid employee should be enough to draw a distinction. Numerous other recent suits brought by interns and independent contractors looking to confer employee status upon themselves, however, have blurred the lines more than before. As in those cases, a big question for the Sixth Circuit in Sister Michael Marie v. American Red Cross was the amount of control exercised over the means and manner of the volunteers’ performance.
The US Supreme Court reconvened last month with this term’s docket including several employment law cases, some that might even make for major changes from business as usual. Considering that about 10,000 cases seek review by the Supreme Court, which has great discretion over which ones it will hear, and only about 80 actually make it to oral arguments in the October-through-June term, it’s significant when employment law cases account for about 10% of the roster.
Most prominently among the employment law cases is Young v. United Parcel Service, which will look at whether pregnant employees are entitled to accommodations with work restrictions if similar accommodations are being offered to non-pregnant employees. It’s a test of the Pregnancy Discrimination Act and whether a pregnant employee seeking accommodations should be given the same consideration as a UPS employee injured on the job or one who’s protected by the Americans with Disabilities Act. (Regular pregnancies aren’t considered disabilities.)
As a kid, everyone seems to have that one friend whose parents are infinitely more permissive than their own. They get to stay up late, eat junk food, and come and go at their leisure. For the envious rest of us, childhood was just a matter of biding time until we were all grown up and could do what we pleased without anyone telling us what to do. All those years of waiting for the freedom we’d only dreamed about seemed poised to bathe us in unrestricted joy…
Then came our jobs. Actual responsibilities and obligations became our new burdens, at least as long as we wanted the income to support our fabulous visions of freedom. Bosses and clients and our direct reports and customers and partners: everyone’s demands whittle away at the dream of complete autonomy. Before you realize it, you’d love it if someone would make you go to bed by 10 on a weeknight, but then who’d get to all those backlogged reports?
A fairly common trick many law school professors like to play on new students is to hand them a pretty lengthy agreement of some sort and ask that they sign and date it. Most everyone complies and hands them back in within a matter of seconds. A handful of stragglers takes their time and hands theirs in after a minute or so. It’s at that point the professor will congratulate the slower group and admonish the early birds for skimming or even ignoring the contents of the agreement. Sometimes the text explicitly says something like “don’t sign this” or “hand it in face down” just to see whether anyone’s paying attention.
The point of the exercise is to make it clear to people on their path to being lawyers that they should never again sign anything without reading and understanding the agreement. Being constantly bombarded with contracts, whether it’s leases or mobile phone agreements or even the terms of service for iTunes, it’s hardly uncommon to skip the slew of boilerplate language and just sign or click to save time and get on with life. But the law professors want the students to realize it’s now their duty to peruse all those clunky words, and there’s no reason the same rule shouldn’t apply to everyone, since making sure you know what you’re getting into ultimately is for your own protection. As a recent case from the Georgia Court of Appeals shows, it’s sometimes to your benefit, too.
In July, the Court of Appeals reminded us that it always pays to cross one’s Ts and dot their Is. The case of MAPEI Corporation vs. Prosser was a battle over which employment contract was binding when the employee was given two separate agreements on different dates with different terms. At first, anyone who’s dealt with employment contracts might guess that they know where this story is going, since the employee usually has little input or influence on the company’s standard terms, making the contract less of an evenly-negotiated agreement than it is an edict of “here’s how it’s going to be if you want to work for us.” This time, however, the contract-happy company didn’t come out the victor.
Recently, a federal court in Tennessee permitted a case to move forward that raises the question of whether the Fair Labor Standards Act (FLSA) permits compensation for work activities that “bookend” a 30-minute meal break.
In Abadeer v. Tyson Foods, Inc., employees at Tyson Foods were required to remove, wash, and stow their frocks and other equipment during their 30-minute meal break. This activity lasted from five to eight minutes. They then needed to be suited and ready to return to work by the end of the 30 minutes. The employees claimed that Tyson Foods automatically took them off of the clock during this time, even though they were not really at lunch. The employees initially claimed that Tyson was either liable to them for the entire 30-minute period, since it was not a “bona fide meal period,” or at least for the work they performed during the 30-minute break, since it was part of a continuous workday. They eventually discarded the first claim and kept the second, which was that work performed during the meal period was compensable.
Tyson Foods tried to argue that the employees’ complaint did not put them on adequate notice of their claims, but the court disagreed. The company then filed a motion for summary judgment, arguing that the employees could not seek compensation for activities performed during the 30-minute unpaid period. Tyson Foods claimed that, due to precedent set by the Sixth Circuit, employees were not permitted to “carve out” such activities and divide the meal period into portions that were compensable and noncompensable. An employer in such a situation should not be held liable unless the employees failed to receive the “predominant benefit” of the entire period.