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Friday, April 24, 2015

Supreme Court Provides Accommodation Protection for Pregnant Employees

The United States Supreme Court held, in a March 25, 2015 decision, that employers must either accommodate pregnant employees to the same degree as they accommodate other employees “similar in their ability or inability to work,” or show a legitimate, nondiscriminatory reason for refusing to do so.  Young v. United Parcel Service, 135 S.Ct. 1338, 575 U.S. ___ (2015).  This means that if employers allow such accommodations as light duty assignments, leave or flextime for employees with temporary disabilities, on-the-job injuries, or otherwise, then they likely must offer the same accommodations to similarly situated pregnant employees or face potential liability under the Pregnancy Discrimination Act unless they have a legitimate non-discriminatory reason for refusing.  An undue burden on the employer may constitute such a reason.

Young represents a shift in the law in that it allows pregnant employees to demand the same treatment that is being offered to disabled, injured, aged, or other employees whose work ability is comparable to the pregnant employee’s.  The employee need not have direct evidence of discriminatory statements or animus, but only circumstantial evidence to meet her burden of proof that she was treated differently than others who were similarly unable to perform their job functions.  For example, the pregnant UPS driver in Young offered statistical evidence of how often pregnant versus non-pregnant employees were allowed to work under lifting restrictions to create an inference that UPS’s stated reason for placing her on unpaid leave (a 70-pound lifting requirement) was only a pretext for pregnancy discrimination.

Therefore, Young is a reminder that care must be taken when applying an employer’s workplace accommodation policies to pregnant employees.  Employers should consider whether to revise their light duty policies and, if faced with specific situations involving possible accommodations for pregnant employees, employees should carefully analyze how employees with similar restrictions are accommodated.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, D. Leo Human, and Erin M. Leach.


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Tuesday, March 10, 2015

EEOC Statistics Fiscal Year 2014

The EEOC recently released its Fiscal Year 2014 statistics, summarizing the data collected from its year ending September 30, 2014.  The full report and access to the data tables can be found here.

The EEOC reports that it received 88,778 charges last year.  This is a decrease from recent years, which the EEOC attributes at least partly to the 2013 government shut-down.  42.8% of 2014 claims were based on allegations of retaliation.  This is up from last year, indicating once again that employers must carefully consider any potential adverse employment action not only for possible discrimination against a protected class, but also to avoid the appearance of retaliation or other unlawful conduct.  Other claims most often alleged were race, sex, disability, and age discrimination, in that order. 

Enforcement proceedings administered by the EEOC itself garnered $296.1 million in total monetary relief in 2014, and the EEOC's litigation program collected $22.5 million.

Not surprisingly, the most complained of practice was again discharge.  However, 30% of all charges in Fiscal Year 2014 alleged harassment of some type, including sexual or racial harassment.  This is an increase from prior years.  The take away from these statistics is that employers should be proactive in educating employees about their obligations under the law.  We believe that training to properly and fairly evaluate, discipline, supervise, and otherwise deal with employees is a key element in reducing charges of discrimination.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, D. Leo Human, and Erin M. Leach.


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Thursday, January 15, 2015

National Labor Relations Board: Employees May Use Employer’s Email System for Protected Communications

The National Labor Relations Board (“NLRB”) held in a 3-2 decision last month that employees who are given access for work purposes to their employer’s email system are presumptively permitted to use that system to engage in communications protected by Section 7 of the National Labor Relations Act (“NLRA”).  Purple Communications Inc. and Communication Workers of America, 361 N.L.R.B. No. 126 (Dec. 11, 2014). Section 7 covers all “concerted” communications that support employee interests, including general discussions of the terms and conditions of employment, and applies to both union and non-union workplaces.  These protections do not apply to employees of Missouri local governmental entities that are not governed by the NLRA, but Purple Communications may still be useful by analogy when considering a public employer’s obligations under Missouri law applicable to public employees.

Purple Communications reverses previous NLRB precedent, which held that employers could prohibit non-work use of their email systems as long as restrictions were applied consistently and in a manner that did not discriminate against Section 7 activity. As permitted by this previous precedent, many employers have policies that restrict email to “business use.” Following Purple Communications, these policies may now be subject to legal challenge. Consequently, employers should review their email and technology policies to ensure compliance with the Purple Communications decision.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, D. Leo Human, and Erin M. Leach.


Friday, December 12, 2014

Supreme Court: Wait-Time for Security Screening not Compensable under the FLSA

The Supreme Court held in a 9-0 decision this week that employees who were required to pass through anti-theft security screenings at the end of each work day were not owed for the time spent waiting in line, emptying their pockets, and passing through metal detectors, because that time was not compensable under the Fair Labor Standards Act (“FLSA”). Integrity Staffing Solutions, Inc. v. Busk, et al., No. 13-433 (Dec. 9, 2014).

The case, brought by employees in a Nevada Amazon.com warehouse, required the Court to interpret the FLSA and the Portal-to-Portal Act, which essentially provide that a work activity is compensable if it is “an integral or indispensable part” of the employee’s principal work activities. The Supreme Court held that an activity is integral and indispensable, and therefore requires compensation under the FLSA, if: (a) it is an intrinsic element of the activities which the employee is employed to perform; and (b) the employee cannot dispense with the activity and still be able to perform his principal activities. Stated simply, the activity must be a direct and essential part of the performance of the employee’s core responsibilities. The Court then held that passing through security was not part of the duties the warehouse workers were hired to perform and would not have affected the performance of their packing and shipping duties if it had been eliminated. Therefore, the Court ruled that the employer properly regarded the waiting in line and screening time as off the clock.

While this case controls with respect to time spent for certain employer security measures, it may have broader application to those employers that require, or are considering requiring, employees to perform non-essential activities off the clock. It provides a test to determine whether those activities are compensable under the FLSA, which employers can apply to attempt to avoid violations.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert, D. Leo Human, and Erin M. Leach.


Friday, December 12, 2014

Transactional Legal Malpractice Cannot Be Shown By Speculative Better Deal

This summer’s decision by the Missouri Supreme Court in Nail v. Husch Blackwell Sanders illustrates the inherent difficulty a legal malpractice plaintiff faces when trying to prove causation in a transactional case.  In Nail, the court held that the plaintiff failed to show that, but for the law firm’s allegedly negligent drafting of a settlement agreement, he would have obtained a more favorable outcome.  Summary judgment in favor of the defendant law firm was therefore affirmed.

The plaintiff in Nail argued multiple theories of liability, one of which was that a settlement agreement he entered into with his former employer relating to certain stock options was negligently drafted by the law firm in that it did not require the employer to place particular documents in escrow and this failure prevented him from being able to enforce the settlement agreement’s liquidation clause.  The court held that, to prevail on this theory, the plaintiff had to prove that the former employer would have agreed to include the necessary provisions in the settlement agreement and, further, that the former employer would later have breached them.  The plaintiff did not offer any evidence that the former employer would have agreed to any of these provisions or that the former employer would have breached them.  The court characterized the plaintiff’s hypothesized claim as “pure speculation.”

The Missouri Supreme Court’s holding is the latest in a line of legal malpractice cases involving transactions and, in particular, settlement agreements, in which the courts have rejected plaintiffs’ claims as being too speculative.  In the 2013 Bryant v. Bryan Cave case, the Eastern District of the Missouri Court of Appeals similarly rejected on causation grounds a legal malpractice plaintiff’s claim against a law firm for negligently failing to address certain issues in an antenuptial agreement.  The court of appeals rejected as speculative all types of evidence submitted by the plaintiff—including expert testimony—that his wife would have agreed to his changes.  The court of appeals acknowledged the difficulty in proving such a claim, but nevertheless rejected plaintiff’s claim on summary judgment.

In light of these cases, it is hard to conceive of a situation, short of direct evidence of an actual agreement, in which a legal malpractice plaintiff would be able to prove in a transactional situation that its then-opposing party would have agreed to terms more favorable to the plaintiff.  Courts thus far have consistently held that such claims are inherently speculative.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our legal malpractice defense lawyers if you have any questions.

This update was prepared by Robert F. Murray and D. Leo Human.


Wednesday, August 27, 2014

Missouri Supreme Court: At-Will Employment Not Sufficient Consideration for Arbitration Agreement

The Supreme Court of Missouri’s primary holding in a 4-3 decision last week in Baker v. Bristol Care, Inc., is that continuing at-will employment does not constitute consideration to make an arbitration agreement enforceable.  This holding may negatively impact some Missouri employers’ ability to enforce current arbitration agreements with their employees.

In that case, Bristol Care, Inc. (“Bristol”) and Baker entered into an agreement to arbitrate employment disputes, which was executed contemporaneously with Baker’s promotion.  The agreement also included certain new terms of employment, including stricter limits on Bristol’s ability to terminate Baker and the offer of severance pay under certain conditions.  However, the Court held that the indefinite duration of Baker’s employment coupled with the company’s right to terminate her without cause compelled the conclusion that her employment remained at will, and therefore, that there was no consideration for the arbitration agreement.

The Court also held that provisions giving Bristol a unilateral right to modify, amend or revoke the arbitration provision made the mutual promises to arbitrate illusory.  These mutual promises were therefore also not sufficient consideration to support the agreement, although the Court suggested that such a provision that applied only prospectively may be acceptable.  The dissent, by contrast, reasoned that the contract, including the arbitration agreement, was supported by consideration because the contract was mutually enforceable, and would have upheld the arbitration agreement on that basis.

Baker follows the trend of recent Missouri appellate cases, which have held that continued at-will employment is not sufficient consideration to support arbitration agreements.  It also delineates certain provisions that may render a mutual agreement to arbitrate employment disputes unenforceable.  The Court’s decision does not currently mean that all agreements to arbitrate employment disputes are unenforceable.  Rather, employers who desire to bind their employees to arbitration of employment disputes must carefully review their arbitration agreements to ensure that they are supported by consideration and otherwise comply with Missouri law.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and D. Leo Human.


Wednesday, August 27, 2014

Joint Employer Status with Temporary Employment Agency Under Missouri’s Minimum Wage Law

In Tolentino v. Starwood Hotels & Resorts Worldwide, Inc., the Supreme Court of Missouri held that an employer that contracts to receive employees from a temporary employment agency (“temporary agency”) may be held liable as a joint employer with that temporary agency for the temporary agency’s violation of Missouri’s Minimum Wage law,  § 290.500 et. seq. R.S.Mo. (“MMWL”).

Starwood occasionally obtained housekeepers from Grant Labor Services (“GLS”), paying for their services on a per-room rate basis.  For one pay period, covering 122 rooms cleaned by Tolentino, after deductions by GLS, Tolentino’s take home pay was $0.  Tolentino sued Starwood and GLS for failure to pay minimum wage in violation of the MMWL.  The trial court granted Starwood’s motion for summary judgment on the grounds that Starwood adequately compensated Tolentino and could not be held liable for GLS’ unforeseeable, illegal wage deductions.

The Supreme Court reversed the trial court and remanded the case to determine whether Starwood and GLS were joint employers under the MMWL.  It held that factors to consider for that inquiry are Starwood’s power to hire and fire, right of supervision, control over rate and method of pay and maintenance of records.  More importantly, the Court held that if Starwood was a joint employer, then it could be held liable for GLS’ failure to pay the minimum wage, which resulted from an illegal deduction, because Starwood had an independent duty to pay the minimum wage.

The lesson of this case is that employers using temporary staffing agencies likely should determine whether they are joint employers with the temporary agency, and if so (or regardless to be conservative) verify that the temporary workers are paid in compliance with the MMWL.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert and D. Leo Human.


Thursday, April 10, 2014

Requiring Employees to be “Positive and Professional” May Be Unlawful

On April 1, 2014, a panel of the National Labor Relations Board (“NLRB”) held that an employer’s policy that, among other things, required employees to “represent [the employer] in the community in a positive and professional manner in every opportunity” is unlawful.  Hills and Dales General Hospital, 360 NLRB No. 70.  The NLRB reasoned that employees could reasonably construe this policy language to prohibit so-called Section 7 activity, which includes the right to act with other employees for mutual benefit and protection.  The NLRB said that policy language, particularly coupled with other unlawful policy language prohibiting “negative comments” and “negativity,” would discourage employees from publicly protesting employer conduct or making any public statements that are not perceived as positive toward the employer.

On April 2, 2014, the same NLRB panel held that employee handbook rules that prohibit “discourteous or inappropriate attitude to passengers, other employees or members of the public” among other things, was unlawful.  First Transit, Inc., 360 NLRB No. 72.  Again, the NLRB panel ruled that the language was so overbroad and ambiguous that it would encompass disagreements among employees relating to their Section 7 rights.

While the principles followed by the NRLB in these decisions are not new, their application to words and phrases commonly used in employee handbooks and policies is significant.  Further, while these cases may be limited to their particular facts, we nevertheless suggest that employers carefully review their employee handbooks policies to determine whether they contain similarly allegedly overbroad, ambiguous and possibly unlawful language.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact us if you have any questions.

This update was prepared by Charles S. Elbert.


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Wednesday, March 12, 2014

Genetic Information Nondiscrimination Act (“GINA”) Case Settles for Over $100,000

In what it hails as the “first systemic case” under GINA, which was enacted in 2008, the Equal Employment Opportunity Commission announced that it settled a case against a nursing and rehabilitation center that allegedly illegally asked applicants for family medical history as part of a post-offer pre-employment medical examination.  See EEOC v. Founders Pavilion, Inc., No. 13-cv-6250 (W.D. N.Y.), settlement approved 1/9/14.  The settlement resulted in payment of $110,400 for a fund to distribute to 138 claimants.

The EEOC’s position is that employers are prohibited by GINA from requesting family medical history. 

While this is a settlement, not a court decision, and therefore has no precedential effect, we believe that it is significant.  Employers probably should eliminate from post-offer pre-employment medical examinations any questions about family medical history. 

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact us if you have any questions.

This update was prepared by Charles S. Elbert.


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Wednesday, February 12, 2014

EEOC Statistics Fiscal Year 2013

The EEOC recently issued its Fiscal Year 2013 statistics, which show that it received 93,727 charges of discrimination, which is a decrease from prior years, but still is one of the five highest years in terms of number of charges filed.  Once again, retaliation accounted for the most charges, followed by race, sex and disability discrimination charges.  Discharge, not surprisingly, is the most frequently alleged adverse action, followed by general terms and conditions of employment and harassment.  The EEOC claims that it collected a record $372,000,000 in monetary relief through its administrative enforcement procedures, including mediation and conciliation.  It also claims to have obtained $39,000,000 through its litigation program.  These statistics again illustrate the importance of continuing to diligently and carefully evaluate employment decisions to attempt to avoid retaliation and discrimination charges.

The EEOC also adopted and implemented its Strategic Enforcement Plan (“Plan”) to identify six priorities, which include eliminating barriers in recruitment and hiring, protecting immigrant, migrant and other vulnerable workers, addressing emerging and developing issues, enforcing equal pay laws and preventing harassment.

As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact us if you have any questions.

This update was prepared by Charles S. Elbert.


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