HR and the Courts: Recent Rulings and Legislation

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Court of Appeals Rules Requests for Indefinite Leaves of Absence Do Not Constitute a Reasonable Accommodation Under the ADA
The Eleventh Circuit Court of Appeals (covering Florida, Georgia and Alabama) recently held that a plaintiff’s request for a leave of absence for an indefinite term did not under any circumstances constitute a reasonable accommodation under the Americans with Disabilities Act (ADA) and that the employer properly terminated the employee, as the individual could no longer perform the essential elements of her job (Billups v. Emerald Coast Utilities (No. 17-10391, 2017 WL 487430, 11th Cir., 10/26/17)).

The court’s holding is consistent with the Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin), which recently and similarly held that “long-term leaves of absence cannot be a reasonable accommodation” under the ADA.

The Eleventh Circuit pointed out that because the plaintiff did not suggest an alternative accommodation that would have allowed her to perform her job’s essential elements “in the present or immediate future,” her open-ended request for a leave of absence was not reasonable. The court did recognize that requests for fixed-end leaves of absence in many circumstances would be a reasonable accommodation.

Illinois Workplace Biometric Privacy Act, Covering Fingerprinting, Facial Scans and More Erupts With Class Action and Individual Worker Litigation
The Illinois Workplace Biometric Information Privacy Act (BIPA), which became effective on September 1, has erupted in a series of class action and individual lawsuits in Cook County, Illinois. Most commonly litigated against are defendant employers who use fingerprint or handprint machines for time clock use and/or recording for overtime purposes and are not complying with the law’s requirement that workers be notified of the collection of such information and consent to the process. The Illinois statute goes further in terms of employee protections than the other two states with similar laws.

The Illinois BIPA prohibits the collection of such information unless the employer: (1) informs the employee that the information is being collected; (2) explains in writing the reasons for the collection and how long the information is being stored; (3) receives written consent from the employee; and (4) adopts written retention and destruction policies and does not sell, lease, trade or otherwise profit from employees’ biometric data.

The law allows individuals to file complaints on their own behalf and on behalf of classes of other similarly situated persons, including coworkers. The law provides for the collection of plaintiffs’ attorney fees and fines of $1,000 per violation for negligent violations and $5,000 per intentional violation.

Biometric privacy laws are also in effect in Texas and Washington, but neither of those states allows individual lawsuits, nor do they impose statutory fines.

EEOC’S Year-End Surge in Cases Demonstrates Focus on Disability and LGBT Discrimination
The Equal Employment Opportunity Commission (EEOC) closed out its fiscal year on September 30 with a flurry of new cases. The EEOC filed at least 88 cases this past September, three times the number it filed in September 2016.

Disability cases appear to be the focus of many of the new lawsuits. The EEOC also appears to be emphasizing LGBT cases, and in its most recent Strategic Enforcement Plan, it announced that LGBT discrimination would remain one if its priorities through 2021. While these numbers appear to be in conflict with what one would expect from a Trump administration EEOC, commentators have said that litigation decisions in the field may not be immediately affected by administrators in Washington. Commentators are also quick to conclude that with the new Trump administration appointees in Washington, the numbers of newly filed litigation next year may not be as high as this year.

Judge Rules That Married Couple’s Individual Discriminatory Discharge and Sex Harassment Claims Must Be Tried Together, Denying Employer’s Motion to Separate Trials
In a unique case in which both husband and wife were employed by the same employer and fired simultaneously after the wife was allegedly sexually harassed by a coworker and the husband and wife both complained, with the husband allegedly assaulting the coworker accused harassing his wife, the federal trial judge rejected the employer’s motion to sever the two into separate trials (Roman v. Kellogg Co. (2017 BL 375592, D Kan. No. 17-2201, 10/19/17)).

The employer claimed unfair prejudice in allowing the cases to be tried together, alleging each would unduly prejudice deposition testimony of the other, learn knowledge unique to other’s claim, and confuse the jury. The judge denied the employer’s motion and rejected the employer’s arguments, holding that the joint trial which arises out of the same facts promotes efficiency and outweighs any possible prejudice to the employer.

The lawsuit states that the wife was allegedly sexually harassed by a coworker, and both the husband and wife were suspended allegedly as a result of complaining about the harassment. The husband was fired after allegedly threatening and then assaulting the coworker, and the wife quit after being denied a transfer to another department which would have separated her from the alleged harasser. They filed discrimination, retaliation and sex harassment complaints under Title VII, and also Americans with Disabilities Act and Family and Medical Leave Act claims, which will now be heard by a single federal jury.

NLRB Rules That Employer’s Discharge of a Union Steward for Use of Profanity at a Joint Employee-Management Meeting Constituted Unlawful Discrimination in Violation of the Steward’s Right to Express His Views on Workplace Matters
A National Labor Relations Board (NLRB) administrative law judge recently ruled that an employer unlawfully discharged a union steward following his use of profanity at a meeting of company executives and dozens of employees (Heartland Coca Cola Bottling Co. (2017 BL 379117, NLRB ALJ Case No., 14-CA-195320, 10/23/17)). The judge ruled that the National Labor Relations Act “gives employees some leeway for impulsive behavior.”

The employer had just taken over a new distribution facility which was organized by the Teamsters. The company had a large customer backlog and asked workers to volunteer for overtime on a Friday, which was their normal day off. The employees had a right under the union contract to refuse overtime. A meeting of 50 people, including a small contingent of management, was called to encourage employees to work overtime on the Friday in question.

A company vice president allegedly started the meeting by saying, “Look guys. I get it. We are all [expletive] tired,” and asked employees to work on Friday anyway and get paid overtime. The union steward chimed in, allegedly saying, “If you come in, do your business, do what you need to do, and if they lie to you and you’re still doing 16 hours, [expletive] them, don’t come in on your day off. Don’t do them any more favors.”

The judge ruled that the steward was discussing work-related issues and that his language, which was common in the warehouse, was not “so egregious to lose the protections of the Act.”