1st Cir. - Use FLSA Standard For Willful Violation For FMLA

Posted 5:42 PM by Michael Fox

In a case of first impression in the First Circuit, the Court found that the test for a willful violation of the FMLA which would extend the statute of limitations to two, not three, years should be the one used for the FLSA. That standard the Court said was:

If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful . . . . If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then . . . it should not be . . . considered [willful.] [cites omitted] In crafting this understanding of the term willful, the Court expressly rejected two other tests for determining willfulness: the Jiffy June test that asked only whether the employer knew the Act "was in the picture," Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir. 1972), and another test that asked if the employer acted unreasonably in believing it was complying with the statute. McLaughlin, 486 U.S. at 134.

Here the plaintiff could not establish a willful violation which resulted in his FMLA claim being time barred. It was an all around bad day as he also failed to convince the court to reverse the summary judgment granted the employer on his age and gender discrimination claim. Hillstrom v. Best Western TLC (1st Cir. 12/31/03).

Labels: FLSA

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Tuesday, December 30, 2003

EEOC Revocation of Right To Sue Almost Fatal, But Not Quite

Posted 10:47 PM by Michael Fox

In perhaps the judicial understatement of the year, Judge Jolly notes that the 'procedural facts of this case are slightly offbeat.' Martin v. Alamo Community College District (5th. Cir 12/30/03) [pdf]. On September 17, 1999 the EEOC issued Martin a right to sue letter. On December 17, 1999 Martin filed suit against the College District. However, on the same day the suit was filed, the EEOC mailed a 2nd letter to Martin informing her that it had re-opened its investigation and rescinded its original right to sue letter. Martin had not yet sought service and in light of the 2nd letter did not do so. Five months later the District Court dismissed the case without prejudice.

Two months later, Martin received a second right to sue notice and filed a second suit. The college district challenged the suit as untimely. The case ultimately boiled down to whether Martin could have continued the first suit. There is an EEOC regulation which revokes the right to proceed with suit unless it is filed before the right to sue notice is revoked. Not surprisingly, it did not specify what happens when the suit is filed and the right to sue is rescinded on the same day.

In a judicial sleight of hand, which nevertheless makes sense, the 5th Circuit judicially declared the following rule:

We hold that, under 29 C.F.R. § 1601.19(b), when the notice to reconsider is issued on the same day that the complaint is filed, the issuance and filing are simultaneous (irrespective of the hours and minutes) and, consequently, the complaint has not been filed before the issuance of the notice.

The ruling was supported by a footnote which amplified on one aspect of the ruling:

Because some offices register the hour and minute of pleading receipts and others do not, and because mail is deposited at different times during the day, the rule is more nearly uniform and more easily manageable when time is calculated by the day.

So the long and short of it, four years after the initial right to sue was issued, the case may now move forward on the merits. Slightly offbeat, seems hardly close.

Labels: EEOC

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5th Cir. Restricts Holding of Quantum Chemical To Substantive Discrimination Cases

Posted 10:20 PM by Michael Fox

Two years ago, in Quantum Chemical Corp. v. Toennies, the Texas Supreme Court held that the under the TCHRA the proper standard for discrimination was whether the protected category was a 'motivating factor' rather than the stricter 'but for' test. Today, the 5th Circuit holds that Quantum Chemical is not as broad a decision as it might seem and that is in not applicable to retaliation claims brought under the TCHRA. Pineda v. United Parcel Service (12/30/03) [pdf]. It is rather unlikely that Mr. Pineda is too upset over this ruling however, as the 5th Circuit upheld his jury award over UPS, and declined the invitation to further lower his award. His initial award of $400,000 for compensatory damages had been reduced on a remittitur by the district court to $202,500 an amount the court found did not leave it with the 'perception that the verdict is clearly excessive'.

Labels: retaliation

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Monday, December 29, 2003

Hitting a Nerve, Or Just a Slow News Day - Reimbursement of Government Contractors Legal Bills

Posted 6:11 PM by Michael Fox

Although by now government contractors are used to being perennially raked over the coals, today's AP article on reimbursement of Department of Energy contractors' legal bills, clearly seems newsworthy to a large cross section of publications. In fact the story with this specific headline, Feds Pick Up Legal Bills for Contractors has appeared in 31 publications in the last 2 hours according to a quick google search. Since a large part of it appears to be for the fees of lawyers representing the contractors in employment law claims, it caught my attention.

As with most government contracting stories, it is easy for some to hit a rhetorical high note. This article's example is from a University of Baltimore Law Professor Charles Tieffer:

While you'd expect all corporate managements to spend lavishly on their legal self-defense, only a few have the privilege of using a key to the Treasury, namely generous 100 percent cost-reimbursement contracts, to make the taxpayer foot the bill.

A little more rational is the point made by Steve Schooner, the co-head of the government procurement program at George Washington University Law School:

There's a certain zero-sum game aspect to all of this. If one of these contractors performs only government work and we refuse to reimburse them for a legitimate cost of doing business - which many legal costs are - then we've put them in an untenable position where they're operating at a loss.

And of course if operating at a loss, they are not likely to be a long term provider of services or jobs.

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2000 Census Data Now Available

Posted 5:54 PM by Michael Fox

Although designated the 2000 census, only today are the figures that are used for various employment law purposes like the compiling of Affirmative Action Plans available for public use. The press release from the U.S. Census Bureau has a special link to the Census 2000 Special Equal Employment Opportunity (EEO) Tabulation. There you can find more than you ever wanted to know about the racial and sexual profiles of almost 500 jobs in counties throughout the country. Have fun!

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If You Are Looking For A Theme In Employment Law For 2004

Posted 5:35 PM by Michael Fox

One issue that would have to receive consideration is the increasing tension between groups supporting more liberal policies with respect to sexual orientation and those whose religious beliefs are in opposition. The likely result for employers --- caught in the middle. The headline and sub-head on this article in Christianity Today sums up the position of one group:"Corporate Thought Police:Growing pro-gay business agenda jeopardizes religious employees." With the issue of gay marriage being viewed by politicos as a 'wedge issue' in this presidential election year, it is unlikely that variations on that theme won't be played out in the workplace as well.

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Sunday, December 28, 2003

"Hit List" of Employees With Overtime Leads to Lawsuit

Posted 7:09 PM by Michael Fox

A list of the 300 employees who had the most overtime that was circulated within the track department of the Burlington Northern Santa Fe led to a class action suit in Montana state court. The list which had the employees names, social security number and station was posted on bulletin boards, left on tables in break rooms and given to anyone. The suit alleged violation of privacy rights. Although originally dismissed by the trial court, it has now been revived, at least temporarily by the Montana Supreme Court. The AP story ran in several papers including thisstory at the Fort Wayne web site.

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Personal Background of EEOC Commissioner Stuart Ishimaru Provides Context

Posted 5:53 PM by Michael Fox

A third generation Japanese American, Stuart Ishimaru, was recently confirmed to the EEOC. A story in his hometown San Jose Mercury News reports that his parents had been among the 120,000 Japanese Americans forced to live in detention camps during World War II. Hard to have a more sensitizing background for protecting civil rights during war time.

Labels: EEOC

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How Juries Think - Sometimes Surprising

Posted 5:42 PM by Michael Fox

Ross Laguzza who consults with lawyers about how juries might react to a certain case is profiled in this story in the Roanoke Times. One example he gives is a sexual harassment case where the victim was a 6 foot 3 inch, ex-Marine who claimed he was harassed by his 5 ft 1 inch, 100 lb female boss. As you expect (otherwise it wouldn't be mentioned in the article), what would seem to be the obvious strategy, turned out to not sit well with potential jurors.

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Monday, December 22, 2003

2 of 3 Top Supreme Court Cases in 2003 Have Employment Implications

Posted 12:50 PM by Michael Fox

At least if you agree with a survey of Top Legal Developments which comes from the good folks at West Publishing. The press release which highlights the Desert Palace v. Costa and Green Tree v. Bazzle decisions can be found on the Yahoo news site. My first posting (with cite to the decisions) on each of the cases can be found here and here.

Green Tree is not strictly an employment law case, but did hold that it was up to arbitrators to decide whether or not class actions were permitted under arbitration agreements if the agreements themselves do not say otherwise. West reads the decisions more broadly finding it allows employers to force class action lawsuits into arbitration.

According to Professor Rick Rossein it has "huge implications for the arbitration of employments disputes, particularly statutory discrimination claims." I am not quite sure what he means by that, as I doubt many employers are going to opt to have their arbitration agreements permit class action claims, unless forced to do so by the courts as a condition of having their agreement enforced. A quick google search didn't find the statement to place it in context, so we will just have to for further illumination on what the 'huge implications' are.

It is the potential practical effect of Desert Palace v. Costa, particularly raising the summary judgment bar, which earns it a spot. Those consequences aren't yet, and may never, play out, but the change in litigation if they do are of great importance to employers and their counsel.

Labels: arbitration

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Employer's Trial Strategy - Avoid Trials Just Before Christmas

Posted 12:12 PM by Michael Fox

Unfortunately, you can't always do that and there is really no indication that was the reason for the $2 million dollar verdict handed down by a Birmingham jury last week. The Birmingham News story on the whistleblower case by a former Vice President of Shelton Community College, Ted Spring, is one of the relatively few million dollar verdicts in an employment case that we have noted this year. But if nothing else it serves as a reminder that the claims of whistleblowers remain a serious threat, and of course, not to try cases the week before Christmas.

Labels: MDV

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Sunday, December 21, 2003

Perceived Disability Cases Not That Easy

Posted 6:02 PM by Michael Fox

Once the courts took a restrictive view of the definition of a disability under the Americans with Disabilities Act, the concern of employers was that the path to successful claims would be through the 'perceived' prong of the ADA definition. But Epps v. City of Pine Lawn (8th Cir. 12/19/03) [pdf] shows that the most frequent pattern, an employer decides that the employee can't perform a particular job, won't be enough to make a perceived disability claim. Here the City terminated Epps a 13 year veteran of the police force because he was no longer physically able to perform the role of a patrolman. But that perception, based on a doctor's opinion, is not enough. The money quote on the key distinction: "an employer is free to decide that . . . some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job." As it turns out, the difference between limiting and substantially limiting is much larger than anyone could have imagined.

Labels: ADA

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Tuesday, December 16, 2003

Never Mind the Stiff Upper Lip - Even Brits Can Get in Trouble At the Holiday Office Party

Posted 9:02 PM by Michael Fox

It is the time of year for warnings about one's conduct at the office holiday party, but this year more of them seem to be coming from overseas than here at home. The Manchest On-line site has a recounting of some of the less auspicious happenings at parties past across the pond. Not to be totally left out, the Department of Labor has a page on its website on how to avoid the problems of the employee who drinks too much while partying.

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Monday, December 15, 2003

I Will Take Any Job, Anywhere - Not Sufficient In The 11th Cir.

Posted 10:18 PM by Michael Fox

At least not where the employer has a well publicized job posting system and the plaintiff was aware of open jobs but did not apply for them. Failing to do so in this circumstance was fatal to an age discrimination claim based on failure to transfer or rehire. Smith v. J. Smith Lanier Co. (11th Cir. 12/12/03) [pdf].

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The Taxman Cometh - And Maketh Settlement More Expensive

Posted 9:59 PM by Michael Fox

After a successful (from the employee's perspective) trial, the employer agreed to a $1.2 million settlement. In order to minimize tax liability, the employee requested and the employer paid $799,000 to the employee and $401,000 to his attorney. The employee declared only the $799,000 as income.

The IRS declared a deficiency for the failure to report the $401,000. The Commission ultimately determined that the $401,000 could be counted as a miscellaneous business expense under § 115 of the Tax Code. Unfortunately, the employee was trapped by the now famous Alternative Minimum Tax (AMT) which does not permit the use of any miscellaneous deductions. An attempt to make it an above the line deduction under Â§ 62 relating to certain employee reimbursement programs failed as well. Biehl v. CIR (9th Cir. 12/12/03) [pdf]. Mr. Biehl went from a triumph to a tax crises. Although perhaps sympathetic, the 9th Circuit offered little solace pointing out that: "If this result strikes some as bad policy, or unfair, the remedy is with Congress, not the courts."

Biehl emphasizes a problem that is significant enough that both sides of the organized employment bar have approached Congress with a proposed solution that would minimize the tax consequences of settlements. The most recent iteration is the Civil Rights Tax Relief Act of 2003. One of the problems is in the title itself, tax relief, e.g. a revenue drain. Leaving it in the category of an idea that has not yet borne legislative fruit.

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Not Just Joni Mitchell Has Looked At Both Sides Now

Posted 1:41 PM by Michael Fox

So has David Linesch, a Florida lawyer who having represented management early in his career, now has an employee oriented employment law practice in Florida. The St. Petersburg Times has the story. He offers some good tips for employers on how to avoid ever having to see him on the opposite side.

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Saturday, December 13, 2003

Not A 9th Cir. Decision Yet - Illegal To Require Women to Wear Makeup?

Posted 12:21 PM by Michael Fox

But coming soon to a casebook near you will be the 9th Circuit's pronouncement on whether Harrah's mandate that all female barkeeps wear make up is discriminatory. The Reno Gazette Journal has the story, Lawsuit about more than being fired on the underlying facts that led to Darlene Jesperson's termination after 21 years because of her refusal to comply with the makeup requirement initiated by Harrah's "Beverage Department Image Transformation” program. Personally, I think Harrah's should lose based on the bureaucratic title of the program alone, but fortunately that is not a legitimate grounds for judicial intervention into the workplace, even in the 9th Circuit. Thanks to How Appealing for the pointer to the article. Stay tuned for the decision.

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Wednesday, December 10, 2003

3rd Cir. Joins 5th Circuit Interpretation That Email At Rest Is Not "Intercepted" Under the ECPA

Posted 9:48 PM by Michael Fox

After an insurance company became suspicious of the actions of one of its agents it conducted a search of his email. What it found led it to terminate his services and caused him to file a claim for wrongful termination as well as for violation of the Electronic Communications Privacy Act because of its review of his email.

Reaching the issue for the first time the 2nd Circuit accepts the interpretation under the Electronic Communications Privacy Act adopted by the 5th Circuit and all other circuits to consider it, that an e-mail can only be "intercepted" when it is in actual transmission. Fraser v. Nationwide Mutual Insurance Co. (3rd Cir. 12/10/03) [pdf]. Here, since the e-mail was already resident in the company's e-mail system when it was reviewed by the company, there was no violation of the ECPA under Title I. Additionally, the Court found no violation under Title II since it excepts actions by the person or entity providing the electronic communications service. Since the insurance company provided the e-mail service that was in question, it had no liability under Title II as well.

The agent also lost his claim for wrongful termination, but at least got a second look on the forfeiture of deferred income because of his violation of a non-compete agreement based on some new Pennsylvania state case law.

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An Insurance Company Putting Its Money In Strikers Hands

Posted 3:22 PM by Michael Fox

Not the most usual business practice to see an insurance company making a contribution to a union strike fund, but then not that many insurance companies cater to labor unions. Credit American Income Life Insurance Company for supporting their customers. The Austin Business Journal has the story of their initial $10,000 contribution and pledge to make that contribution each month for the duration of the strikes against the national grocery companies.

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3rd Circuit -- NJ State Law Sexual Harassment Claim Viable Under Disparate Impact Theory

Posted 7:46 AM by Michael Fox

While on the national scene the Supreme Court left dangling the question of whether the refusal to re-hire a drug user could be successfully attacked under a disparate impact theory, the 3rd Circuit was predicting that such a theory would be sufficient to state a cause of action for a sexual harassment hostile environment case under the New Jersey Law Against Discrimination. In Thomas v. Town of Hammonton (3rd Cir. 12/4/03) [pdf] it reversed summary judgment against a police dispatcher trainee who had been treated as a part of a class of two, to a series of sexually explicit comments, including portions of 911 tapes with sexual connotations. (Incidentally confirming some 'urban myths' about the types of injuries seen in hospital emergency rooms involving household appliances.) In the money quote, the Court said:

Based upon the rationale of Lehmann, we would expect the Supreme Court of New Jersey to hold that a sex-oriented employment environment that has a disparate impact on reasonable women violates the LAD. Lehmann, 626 A.2d at 454 (acknowledging that intent to discriminate is not necessary and that there is a distinction between an environment that a reasonable man would consider hostile and one that a reasonable woman would consider hostile). It would be permissible, we believe, for a trier of fact to conclude that the environment created by Howard was 'qualitatively different' for a woman than for a man.

On the brighter side for employers, the Court also dealt with the perennial problem of whether timing alone will serve as a sufficient basis for causation in a retaliation case. Here, a 3 week period taken in the context of other developments did not. This was the Court's standard:

We have recognized, to be sure, that a suggestive temporal proximity between the protected activity and the alleged retaliatory action can be probative of causation. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001). However, [e]ven if timing alone could ever be sufficient to establish a causal link, . . . the timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred. Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (internal quotations omitted; alterations in original); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days between protected activity and alleged retaliation sufficient to draw inference of causal connection). In cases such as this one where the temporal proximity is not so close as to be unduly suggestive, we have recognized that timing plus other evidence may be an appropriate test . . . . Marasco, 318 F.3d at 513 (internal quotations omitted).

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Friday, December 05, 2003

Fair Credit Report Amendment To Correct Problem (Which Might Never Have Existed) On Sexual Harassment Investigations Signed Into Law By President Bush

Posted 10:53 AM by Michael Fox

How lawyers can make a mountain out of a mole hill. On the occasion of my 48th birthday, although I do not believe this was anything other than happenstance, a Federal Trade Commission staff attorney responded to a private sector lawyer's inquiry to the FTC, by opining that a sexual harassment investigation conducted by a 3rd party met the definition of a consumer report under the FCRA, thus invoking a number of requirements under the FRCA including obtaining permission of the person to be investigated and providing the subject of the investigation a copy of the report prior to taking any adverse action. The letter concluded, as did all such opinions, that -- This is an informal staff opinion and is not binding on the Commission."

Although it is unknown, at least to me, what prompted this inquiry, I am not aware of any reported instance where a claim had successfully been brought or even been asserted that the failure to comply with the FCRA in connection with a sexual harassment investigation by a third party was illegal under the FRCRA. Having started the ball rolling however, and still as far as I am aware any reported case where this had proved to be an actual problem, yet another private lawyer inquired about implementing the FCRA provisions in connection with a 3rd party investigation, and received a similar non-binding letter that it was impermissible to redact any information from the report before giving it to the person being investigated.

Given these two non-binding opinions, the purveyors of legal information, in this case primarily management side employment lawyers' went into full swing to notify all concerned about this "development". A smattering of such reports derived from just the first page of a google search gave us the following headlines: SEXUAL HARASSMENT INVESTIGATIONS MAY BE SUBJECT TO FCRA; FEDERAL TRADE COMMISSION FLEXES ITS MUSCLES IN THE EMPLOYMENT ARENA; The FTC Says Sexual Harassment Investigators Must Comply With the Fair Credit Reporting Act ; The New Sexual Harassment Pitfall: The Fair Credit Reporting Act and Sexual Harassment Investigations and on on. In full disclosure, I am sure that I too wrote or at least made similar proclamations.

As a result, substantial attention to this problem, that still as far as I know had never resulted in a successful claim being made under this theory, on the part of the Society for Human Resource Management and others have led to a legislative fix. Yesterday, President Bush signed into law the Fair and Accurate Credit Transactions Act of 2003 which contains § 611 to resolve the problem, although that particular piece didn't make it into the Fact Sheet released by the White House.

So more than 5 years after we started down this road, and killed no telling how many forests to get the word out about the problem that could have been, we can now all sleep better knowing that this is one dragon that has been slain. At least until we get to comment on the regulations that no doubt will follow.

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Thursday, December 04, 2003

City Funds Trapped By Sexual Harassment Judgment

Posted 7:26 AM by Michael Fox

Cash flow in Bernardsville, NJ (population 7,345) just got a little tighter as a lien for $1.4 million was placed on the city's bank account just before Thanksgiving. The lien was based on a $500,000 jury verdict, which was coupled with $900,000 in legal fees stemming from a claim of sexual harassment by a former police department employee.

The city said it was blindsided by the action. In what I hope is a misquote or at least taken out of context, a lawyer hired to evaluate an appeal for the city (which decided not to) said, "I can't really give you a good rational explanation why she did this," he said." I think I can. She wanted (and no doubt was entitled to) her money. That's what happens when judgments become final. You can check out the story in the Bernardsville News.

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Wednesday, December 03, 2003

Updated Thoughts on Raytheon v. Hernandez

Posted 1:01 PM by Michael Fox

After seeing a number of headlines today saying in effect, company wins, for example the Daily News Tribune and the Boston Globe , I thought I better re-read the opinion and my comments. It is true that the company won yesterday in the sense that the employer was going to trial as a result of the 9th Circuit decision, and now they are at least going back to the 9th Circuit, and maybe even back to the district court on the issue of their summary judgment. And absent some real reaching to find some other evidence that there was an intention to discriminate because of the prior drug use (which may be difficult since there was some indication that the person applying the rule was not aware that the reason he was terminated initially was for failing the drug test) the company might prevail, even in the 9th Circuit, on that issue.

Where it could lose, and certainly where it seems the bigger question that was dodged by the Supreme Court is -- does such a rule have a disparate impact on individuals with disabilities, and if so, is such a rule justified by business necessity? The Supreme Court without much analysis seemed to say that the disparate impact theory is available in an ADA case which means that the next challenge to such a rule will come under that theory. The old "rule of the case" doctrine may preclude Hernandez himself from getting a bite at that apple. However, it is likely that some other company with such a policy, who may feel much better about it today because of some of the headlines referred to above, may find that they have just picked up the laboring oar of proving that it does not disproportionately impact those with disabilities and/or that it is justified by business necessity. While the Boston Globe article discounts that as only a theoretical possibility, not likely to succeed, a statement from the National Council on Disability calls it a 'partial victory' for those with disabilities. I think I was right - it was mostly a punt, but from Raytheon's perspective, it was probably a good one that may have pinned down the other side near their own goal line.

Labels: ADA

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Ever Wanted to Determine What Turn Over Really Costs?

Posted 9:27 AM by Michael Fox

Check out the handy Turnover Calculator that the folks at the superb website, workforce.com have tracked down. It helps quantify both out of pocket as well as the still real, but hidden, soft dollar costs such as loss of productivity and administrative time in processing leaving employees out and new employees in. You have to fill in your own numbers, but my guess is that doing this analysis might be a good incentive for better hiring decisions, as well as training and even treating your current employees better!

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Tuesday, December 02, 2003

First Supreme Court Employment Law Decision of the Term Is A Punt

Posted 2:35 PM by Michael Fox

Raytheon v. Hernandez (U.S. 12/2/03) raised the interesting question of whether or not an employer's no rehire for misconduct rule violated the ADA when applied to a former employee who was terminated for testing positive on a drug test. The answer is .... maybe, but we don't know yet because the 9th Circuit applied the wrong test. Instead of treating the case as a disparate impact case it applied the McDonnell-Douglas analysis used in cases of disparate treatment. The result, kick it back without reaching the question on which certiorari was granted.

Maybe it will come back for a second shot after the 9th Circuit revises its opinion, but I would be somewhat surprised. If I am correct, that is probably bad news for the company.

Update 12/3/03: After seeing a number of headlines today saying in effect, company wins, for example the Daily News Tribune and the Boston Globe , I thought I better re-read the opinion and my comments. It is true that the company won yesterday in the sense that the employer was going to trial as a result of the 9th Circuit decision, and now they are at least going back to the 9th Circuit, and maybe even back to the district court on the issue of their summary judgment. And absent some real reaching to find some other evidence that there was an intention to discriminate because of the prior drug use (which may be difficult since there was some indication that the person applying the rule was not aware that the reason he was terminated initially was for failing the drug test) the company might prevail, even in the 9th Circuit on that issue.

Where it could lose, and certainly where it seems the bigger question that was dodged by the Supreme Court is -- does such a rule have a disparate impact on individuals with disabilities, and if so, is such a rule justified by business necessity. The Supreme Court without much analysis seemed to say that the disparate impact theory is available in an ADA case which means that the next challenge to such a rule will come under that theory. The old "rule of the case" doctrine may preclude Hernandez himself from getting a bite at that apple. However, it is likely that some other company with such a policy, who may feel much better about it today because of some of the headlines referred to above, may find that they have just picked up the laboring oar of proving that it does not disproportionately impact those with disabilities and/or that it is justified by business necessity. While the Boston Globe article discounts that as only a theoretical possibility, not likely to succeed, a statement from the National Council on Disability calls it a 'partial victory' for those with disabilities. I think I was right - it was mostly a punt, but from Raytheon's perspective, it was probably a good one that may have pinned down the other side near their own goal line.

Labels: ADA

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Where To Put The Portable Toilet - Let's Count The Cost of Deciding

Posted 8:17 AM by Michael Fox

As always, there is no doubt much more behind the story than is told by this 10 page opinion, including no doubt a long history of mistreatment by some of migrant workers. Nevertheless, the lengths that it took to get a reasonable reading of an OSHA standard which requires with some (very important for this case) exceptions, a toilet and handwashing facility be within a 1/4 mile walk for any hand laborer in a field, do seem to be the sort of issue that makes many question the wisdom of the legal process and government bureaucracies.

The particulars detailed in Advanta v. Chao (8th Cir. 12/01/03) [pdf] are that the exception allows toilets be located at the point of vehicular access when the terrain makes the 1/4 mile rule unworkable. In this case, Advanta placed the toilets at the end of corn rows, since putting them in the middle of the field which would have been required by the literal language of the standard, would have precluded the company from successfully detasseling the corn, the purpose for which the workers were there. Notwithstanding language in the preamble to the standard which seems, and in fact was, tailor made for this particular problem, first the DOL, then an administrative law judge and finally the Occupational Safety and Health Review Commission issued and enforced a $1,000 citation against Advanta.

Challenging the rules under the appropriate procedural process, Advanta went through those two proceedings and appealed to the 8th Circuit. There they were supported by an amicus brief of the American Trade Seed Association, a trade organization of 800 companies involved in seed corn production. ATSA must have been surprised to be there since it was the organization's initial comment to the standard during the rule-making process which elicited the language in the preamble to the standard which seemed to support precisely what Advanta (and apparently all 800 companies who are involved in similar activities) did on a regular basis.

In finding the DOL's position unworthy of support, the Court had a number of arguments to make that case, but the concluding one gives you a tenor of their feeling:

We also find it curious that the DOL's interpretation of the Standard would require a seed company to place facilities in cornfields for seasonal corn detasselers who are never more than a half hour from a facility, while a seed company would not have to provide facilities at all - whether in the field or at a point of closest vehicular access - for seasonal corn detasselers who work three hours or less each day. See 29 C.F.R. § 1928.110(c)(2)(v) ("Toilet and handwashing facilities are not required for employees who perform field work for a period of three (3) hours or less (including transportation time to and from the field) during the day.") The DOL's decision to interpret the Standard in such a confusing manner further convinces us the DOL's interpretation of the Standard is unreasonable and is unworthy of deference and enforcement against Advanta.

So let's count the cost - Initial rule-making, with participation by ATSA. Investigation by OSHA, hearing before an administrative law judge, appeal to the Occupational Safety and Health Review Commission, and finally the appeal to the 8th Circuit. It does seem to be a long and expensive road to common sense.

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