Judicial Developments

  • The U.S. Court of Appeals for the Eleventh Circuit recently held that it was not discrimination for an employer to fire a pregnant certified nurse's assistant after her doctor imposed a 25-pound lifting restriction, so long as other employees who suffer from non-occupational injuries are similarly situated. Employees given modified job duties to accommodate on-the-job injuries are not comparators with respect to a claim of pregnancy discrimination.
  • Sticking with the 11th Circuit, the court ruled that a supervisor at Borden's Miami dairy facility did not commit actionable sexual harassment when he constantly followed the plaintiff, a former employee, stared at her, and made sniffing noises while staring at her crotch. The divided court held that the conduct was not sufficiently severe or pervasive to alter the former employee's terms or conditions of employment. The judges dwelled on the fact that the supervisor's actions were not unambiguously sexual gestures. Due to the fact that the entire court (rather than a panel of 3 judges) ruled on this case, it is an important benchmark sexual harassment decision (the plaintiffs' Bar is seeking Supreme Court review). Mendoza v. Borden Inc., 11th Cir., No. 97-5121, en banc, 11/16/99.
  • Recent FMLA Decisions: In July, the 11th Circuit invalidated a U.S. Department of Labor regulation and found that an employer need not give employees advance notice that their paid leave will be counted toward the 12 weeks of leave provided by the FMLA. In Cox v. AutoZone, the employee had accrued 13 weeks of paid disability leave, which she used after child birth, along with two weeks of unpaid leave. She thought that she was entitled to her paid leave, as well as up to 12 weeks of FMLA leave. The Department of Labor argued that she was so entitled, unless the employer specifically and prospectively notified her that she was using FMLA leave when she used her paid leave. The court disagreed, finding the regulations add requirements and grant entitlements beyond the statute, concluding that the employer exercised its right to require the employee to use her paid leave as part of the 12-week FMLA leave and, as she was absent for more than 12 weeks, she did not have a right to return to her previous job or an equivalent position (she was demoted).
  • In another 1999 case, this one involving a public sector employee, the 11th Circuit ruled that individual liability does not exist under the FMLA. The same court had similarly found, in another case involving government employees, that public officials are not liable for violations of the FLSA. It is not yet clear that these decisions are applicable to the private sector (although most other courts have found FLSA individual liability of owners, presidents, board directors in the private sector).
  • The Seventh Circuit Court of Appeals joined other courts in finding that depression induced from inability to work under a particular boss, where the employee was otherwise capable of working, was not protected under the ADA. In another ADA decision, a Federal trial court in Alabama found that a sales representative's attention deficit disorder was not a disability under the ADA.
  • Congress enacted the Labor-Management Reporting and Disclosure Act (LMRDA), in 1959 to protect various rights and interests of union members, including freedoms of speech and assembly in union affairs and due process in disciplinary proceedings, against abuses by unions and their officials. In addition, the LMRDA requires unions to inform their members about the act's provisions. The International Association of Machinists gave its members such notice when the LMRDA was passed in 1959, but has not done so since. On January 27, 2000, the United States Court of Appeals for the Fourth Circuit held that insufficient, because the notification duty is "continuous": "Effective notice . . . requires at a minimum that each individual, soon after obtaining membership, be informed about the provisions of the LMRDA." Thomas v. Machinists, 163 L.R.R.M. (BNA) 2324, http://www.law.emory.edu/4circuit/jan2000/991621.p.html (4th Cir. Jan. 27, 2000).
  • In Communications Workers v. Beck, 487 U.S. 735 (1988), the Court ruled that under the National Labor Relations Act nonunion employees required to pay union "agency fees" as a condition of employment have a right to object and pay only that portion of union dues attributable to collective bargaining, contract administration, and grievance adjustment. On February 22, 2000, reversing the National Labor Relations Board, the United States Court of Appeals for the District of Columbia Circuit held, in a case brought by National Right Work to Work Legal Defense Foundation attorneys, that the duty of fair representation requires a union to inform all new employees and agency fee payors what percentage of dues they would pay if they become Beck objectors and to provide all objectors with "a detailed explanation of how the union calculated" that percentage, including an explanation of "how its affiliates used the money" paid over to them. Penrod v. NLRB, No. 99-1121, http://pacer.cadc.uscourts.gov/common/opinions/200002/99-1121a.txt (D.C. Cir. Feb. 22, 2000).
  • Most, if not all, unions require nonunion employees to object annually during a narrow "window" period if they want to exercise their "Beck rights." However, in Shea v. Machinists, 154 F.3d 508 (5th Cir. 1998), a case brought under the Railway Labor Act (RLA) by National Right to Work Legal Defense Foundation attorneys, the court held that an annual objection requirement violates the employees' First Amendment rights and breaches the duty of fair representation. On February 1, 2000, Foundation attorneys filed a follow-up nationwide class action suit against the Machinists in the United States District Court for the Eastern District of Virginia. This suit seeks, on both collateral estoppel and substantive grounds, to extend the Shea ruling to all RLA nonunion employees subjected to that union's agency shop requirements. Lutz v. Machinists, Civil Action No. 00-148-A (E.D. Va.). The Foundation's press release announcing the filing of Lutz can be read at http://www.nrtw.org/b/nr_177.htm.

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