Archives for August 2012

August 31, 2012 By

EITHER TAKE OUR WELLNESS EXAMS OR “COUGH UP” THE CASH: 11TH Circuit Rules Employer Mandated Work Wellness Programs Fall Within “Safe Harbor” Provisions of (ADA)

By Cynthia McNabb

As open-enrollment season for health insurance approaches, employees may see (if they have not already) options for reducing their health insurance costs by voluntarily enrolling in an employer wellness program.  Alternatively, your union may have even entered into an agreement with your employer that requires you to participate in an employer wellness program, in order to maintain your health insurance.  Billed as your opportunity to save money, participation in employer wellness programs are, in reality, merely fee-shifting endeavors that penalize employees with higher deductibles, higher co-pays, or fees for failure to participate.  Unfortunately, trying to sort out what your rights are with respect to these wellness programs under the ADA, HIPAA and GINA ** (“Genetic Information Nondiscrimination Act) is a complicated undertaking.

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Filed Under: Disability Discrimination, Discrimination, Legal Rights
August 28, 2012 By

Arizona Federal Court Denies Attempt to Dismiss Firefighter’s First Amendment Retaliation Case

By Mitchell Riese

A recent decision from U.S. l District Court in Arizona denied the City of Prescott, Arizona’s attempt to dismiss a lawsuit by a former firefighter, who alleged that he had been coerced into retiring by being threatened with criminal charges for having traded shifts. In  Vicente v. City of Prescott, AZ, 33 IER Cases 1306 (D. Ariz. 2012), Vicente, who had been a firefighter for almost 20 years and a Captain for 10, was vice president of the firefighters union. In that role, he advocated on behalf of two union members who claimed that they were being harassed by certain managers. Not long after Vicente assisted the members in filing formal complaints, he was called into a meeting and told that he had engaged in criminal conduct by trading shifts or obtaining substitutes for shifts with other firefighters. He was told that the situation was serious and that his job could not be saved. Vicente was told that his only option was to retire. Vicente claimed that he was told that he had to cease all union activity because that was the reason why they were all there.

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Filed Under: Constitutional Rights, Free Speech Rights, Legal Rights
August 27, 2012 By

Arbitrator Determines Employer Committed ULP by Disciplining Correctional Officer for Abusing Sick Leave

By Rick Gautschi

In Woodford County, 130 LA 843, May 12, 2012, since prior to 2004, under a collective bargaining agreement, correctional officers in Woodford County, IL were authorized up to 12 sick days in a given fiscal year.  In December 2004, the Sheriff’s Department revised an existing policy (Policy) to authorize requests for medical certification from correctional officers after the officers had used five sick days in a given fiscal year.  Consistent with that revision, between 2004 and 2008, the Sheriff’s Department routinely made requests for medical certification of correctional officers who reached that threshold.  In addition, during the same period the employer took disciplinary action in the form of issuing letters of caution to several corrections officers who had used five or more sick days during a fiscal year.  When the parties negotiated a 2008-2011 collective bargaining agreement (CBA), the union agreed to include language that would give the employer authority to request medical certification from a correctional officer if the employer suspected the officer had abused the sick leave policy.  During the 2010-2011 fiscal year, the employer issued a letter of caution to an officer, who had used five days of sick leave during that year, two days of which were consecutive and the other three of which were not.  The union grieved the issuance of the letter.  The basis for the grievance was language in the CBA that was the subject of the amendment to which the union had agreed during the negotiations on the 2008-2011 CBA.  According to the union, absent suspected sick leave abuse, a request for medical certification was authorized only if the three sick leave days were consecutive.  Consequently, the issuance of the letter was an unfair labor practice in violation of the CBA.

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Filed Under: Arbitration Rulings
August 23, 2012 By

Recent Blog Articles of Note

By Jim Cline

We are following other Labor and Employment Law Blogs on the Web and will bring to your attention some other articles worth reading.  Here’s some other articles we think are worth a look:

“Helping employees become healthier: rewards or penalties and the EEOC”

This blog discusses recent EEOC and court rulings concerning legality of employer wellness programs which involve incentives for health assessments

 “My Employer Says I Have To Resign. What Should I Do?” 

This blog identifies some considerations in addressing the problem facing employees facing resignation in lieu of discharge

“The FMLA in Plain English”

This blog discusses and links to DOL’s recent release of its new “Employee Guide to the FMLA”

“Illinois Prohibits Employers from Seeking Social Networking Passwords”

Illinois becomes the 2nd state, after Maryland, to outlaw employer demands for Facebook passwords

 

Filed Under: Legal Rights
August 20, 2012 By

Arizona Federal Court Judge Rules that Police Department Engaged in Sex Discrimination by Requiring Physical Fitness Test

By Rick Gautschi

In State of Ariz. v. City of Cottonwood, 115 FEP Cases 998, No. CV-11-2-1576-PHX-GMS, July 20, 2012, D. Az., sometime around 2000, as the result of agreements with the Arizona Peace Officers Standards and Training Board (AZ POST) and other law enforcement agencies in Arizona, Fitness Intervention Technologies (FIT) conducted a study for the purpose of developing a physical fitness test for law enforcement officers.  Subsequently, FIT presented the test to AZPOST, whose director rejected the use of the test out of a concern that if administered, it was likely to have a disparate impact on women.  In December 2006, the City of Cottonwood (City) Police Department (CPD) adopted a general order that required incumbent officers and applicants for officer positions to pass the FIT physical fitness test.  The policy gave incumbent officers three years to pass the test.  The policy was silent as to officers who applied for promotions.  Regardless, CPD’s Chief added passing the test to the department’s requirements for promotion.  In early 2007, Monica Kuhlt (Ms. Kuhlt) applied for promotion to sergeant.  She took the physical fitness test but did not pass all the elements of it.  In May 2008, she applied for an open sergeant position, but again she failed the physical fitness test and suffered a back injury in the process of taking the test.  She then filed a claim of discrimination with a state agency.  In February 2009, the agency dismissed the claim but on April 1, 2009, reinstated it at her request.  Subsequently, she supplied a doctor’s note that recommended substituting, for her, an aerobic activity other than the test’s required 1.5 mile run.  CPD sent her to another doctor who opined that because of her inability to run, she was not fit to be a police officer.  A lawsuit for sex discrimination and retaliation for having opposed sex discrimination followed.

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Filed Under: Discrimination, Gender/Pregnancy Discrimination
August 17, 2012 By

Arbitrator Rules that a Collective Bargaining Agreement does not Require an Employer to Pay for More than Eight Hours of Holiday Work

By Rick Gautschi

In City and County of Denver, 130 LA 837, May 21, 2012, a police officer began his regular shift during the afternoon of the day, immediately preceding a holiday. He ended his shift at 2:00 a.m. on the holiday, which was the officer’s scheduled day off. For the holiday, initially, the employer paid the officer for eight hours of work at his base rate of pay, i.e., holiday pay, plus pay at one and one-half times his base rate for the two hours that he actually worked on the holiday, i.e., holiday premium pay. Subsequently, the employer debited his pay for two hours, at the base rate, on the ground that applicable provisions in the collective bargaining agreement (CBA) required the employer to pay a total of eight hours for any combination of holiday pay and holiday premium pay. Consequently, the officer was entitled to receive two hours of holiday premium pay and six hours of holiday pay. The union argued that the same provisions in the CBA obligated the employer to pay employees who worked on a holiday eight hours of holiday pay plus holiday premium pay for the hours that the employees actually worked on the holiday.

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Filed Under: Arbitration Rulings
August 16, 2012 By

A Facebook “Thumbs-Up” Could be a Thumbs Down for your First Amendment Rights

By Cynthia McNabb

In the ever-evolving legal environment regarding use of social media in and outside the workplace, a new case before the 4th Circuit is getting quite a bit of attention.  In Bland v. Roberts, a deputy sheriff (along with five others) went on his Facebook page and, like millions of others every day, clicked the “like” button on a page he was viewing.  The page happened to be a political page for a candidate running against his boss, the Sheriff of Hampton, VA.  Once his boss was re-elected, Deputy Carter, along with Bland, et. all were terminated.  The employer alleged that the employees were terminated for poor work performance and their support of the opposing candidate had disrupted the workplace. [Read more…]

Filed Under: Constitutional Rights, Free Speech Rights, Legal Rights
August 16, 2012 By

Texas Appellate Court Finds that Houston Fire Department Discriminated Against Firefighter Based on Him Having Transient Amnesia Scene of Fire

By Rick Gautschi

In City of Houston v. Proler, No. 14-10-00971-CV, Texas Court of Appeals, Fourteenth District, May 31, 2012 , during March 2006, a captain in a fire suppression unit in the Houston Fire Department (HFD) responded, along with firefighters that he supervised, to a building fire.  While at the scene of the fire, the captain failed to follow orders and was found standing in a smoke-filled room.  Medics at the scene determined that his blood pressure was low.  Subsequently, at the direction of the HFD, he sought medical treatment. [Read more…]

Filed Under: Disability Discrimination
August 16, 2012 By

The U.S. Court of Appeals for the Second Circuit upholds Buffalo, New York’s Fire Department’s Use of an Examination to Determine Promotions

By Rick Gautschi

In M.O.C.H.A, Soc’y, Inc. v. City of Buffalo, Nos. 11-2184-cv and 10-2168-cv, July 30, 2012, 2nd Cir.,as permitted by a state statute, in late 1997, the City of Buffalo contracted with the state of New York’s Civil Service Department (CSD) to have the CSD develop an examination to be administered to fire fighters who sought promotions to the position of fire lieutenant. In response to the request, an associate personnel examiner at CSD spent approximately three years performing a job analysis of fire fighters at all ranks in departments across the state. [Read more…]

Filed Under: Race Discrimination
August 16, 2012 By

The U.S. Court of Appeals for the Seventh Circuit Rules that Repeated Hostile References to a Woman Employee as a “Bitch” Support a Claim of Sexual Harassment

By Rick Gautschi

 In Passananti v. Cook County, No. 11-1182, Slip Opinion, July 20, 2012, 7th Cir., Beginning in 2004, over a period of approximately three years, a former director of the Day Reporting Center (DRC) in Cook County, IL, on numerous occasions, referred to the then-deputy director, Kimberly Passananti, as a “bitch.” At times, references came in face-to-face meetings between director and Ms. Passananti. On other occasions, the director made the references in front of other employees and he used the same term to refer to other women employees at the DRC. The claim that the director used the term in a hostile manner was shown, for example, by his repeated statements to Ms. Passananti that she was a “stupid bitch” and when he directed her to “shut the ‘F’ up, you lyin’ bitch.” [Read more…]

Filed Under: Gender/Pregnancy Discrimination
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