How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).

Continue Reading Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation

Although many employers use progressive discipline policies, I am typically not a big fan.   In theory progressive discipline seems like a good idea:  it allows an employee to learn from their mistakes.  It puts the employee on notice that further discipline is going to have more serious consequences.    It is difficult for an employee who has gone through the steps to claim surprise when the termination arrives.

On the other hand, progressive discipline limits an employer’s flexibility.   Sometimes it is clear an employee isn’t working out, but the company feels bound to go through the steps before terminating.   In other cases, the circumstances may warrant giving an employee more chances that the policy allows.  In those situations, an employee may be terminated simply because they are on the last step, even though the company would rather keep the employee.

Continue Reading Employer’s Consistent Use of Progressive Discipline Defeats Discrimination Claim

It is a truism that employers prefer to win discrimination cases on summary judgment rather than go to trial.    In most cases, winning on summary judgment means convincing the judge there is not enough evidence that would allow the plaintiff to prove “pretext.”   (Pretext: “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Merriam-Webster Online Dictionary).    With pretext, the plaintiff goes to trial; without pretext, the plaintiff goes home and the employer wins.

Continue Reading Recent Ruling from Eighth Circuit Shows an Employer’s Shifting Reasons for Decision May Not Be Evidence of Pretext

There remains a surprising number of employers who believe an employee with the title of “supervisor” who is paid a fixed salary is exempt from the federal overtime requirements. While such an employee may be exempt, it is not because of the title, and the salary is only one of the components (assuming the salary exceeds the minimum threshold). To be exempt, the “supervisor” must also satisfy one of the so-called “white-collar” exemptions by performing duties that qualify as “executive”, “administrative”, or “professional.”

A recent ruling from the Eighth Circuit (Garrison v. Con Agra Packaged foods, LLC) addressed whether ten employees who worked in a ConAgra plant as “team leaders” were exempt from overtime under the “executive” exemption. The team leaders claimed they were entitled to overtime when they worked more than forty hours a week.  At the plant in question, a team leader was responsible for, among other things, monitoring the performance and behavior of hourly employees, and identifying rules violations and poor work performance. They had authority to reassign or recommend temporary reassignment of employees and to recommend discipline. If management agreed to the recommended discipline, it would result in a change in status of the employee.images

To qualify under the “executive” exemption, an employee must meet four criteria:

1) compensation at or greater than $455 per week (increasing to $913 per week on December 1);
2) the primary duty is management of the enterprise or a customarily recognized department or subdivision of the enterprise;
3) customarily and regularly direct the work of two or more other employees; and
4) have the authority to hire or fire, or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees are given particular weight.

ConAgra and the employees agreed the team leaders satisfied the first three criteria. The dispute was whether they met the fourth. To determine whether the team leaders’ suggestions and recommendations were given particular weigh in personnel decisions, the court examined whether their input into personnel decisions had more influence that the input provided by hourly employees.

The evidence showed the team leaders were told to appraise performance of probationary employees and report good or poor performance to a manager. At least two of the team leaders in the class had recommended the discharge of a probationary employee who was ultimately discharged. Team leaders also gave feedback whether promoted employees could do their new job, and if not the employees were demoted to their former positions. Team leaders were able to fill tempoary vacancies by moving someone from one class to another and managing the scheduling of hourly employees within their areas. Finally, the evidence show management followed the recommendations of team leaders with respect to employee discipline “most, if not all of the time.” The Court of Appeals found this evidence was sufficient to prove, as a matter of law, that team leaders in that plant were exempt from the overtime requirements.

If a front line supervisor is classified as exempt, the ConAgra case shows that reliable evidence the supervisor’s recommendations are actually followed is important. The best practice would be to document their input and show that management actually followed it.

images Credit: from Google images, Creative Commons license, Industrial Plant

Good news for employers—you have due process rights too. So ruled the court in Business Communications, Inc. v. U.S. Dept. of Education  (8th Cir. 12/2/13). 

The Federal Government awarded Business Communications, Inc. (BCI) contracts to install cables in two school districts. The money for the project was provided by the American Recovery and Reinvestment Act (“ARRA” a/k/a the “Stimulus”), which requires contractors to pay employees a “prevailing wage.”   ARRA also has a “whistleblower” provision that protects employees from retaliation because the employee discloses a violation of law, rule or regulation relating to an agency contract funded with stimulus money. After a BCI employee complained to the company that he was being paid less than the prevailing wage, the employee was fired. BCI denied the termination was related to the employee’s wage complaint.

ARRA has its own procedure for the investigation and adjudication of “whistleblower” claims.   The agency’s Office of Inspector General (OIG) has 180 days to investigate the complaint. If the OIG finds the complaint is actionable, a report is forwarded to the head of the agency overseeing the contract (Department of Education in this case), the complainant, and the employer. The agency head then has a non-extendable period of 30 days to determine whether there is sufficient basis to conclude reprisal has occurred.   If the head of the agency finds in favor of the employee, the potential remedies include reinstatement, back pay, compensatory damages, and attorney’s fees. 

The statute imposes a fairly low burden of proof on the employee. The complainant must prove the disclosure of information was “a contributing factor” in the reprisal. This burden may be satisfied with evidence showing the employer knew of the disclosure and took adverse action within a reasonably short time period thereafter.   The employer is entitled to rebut the complainant’s evidence, but the standard of proof is much higher than the employee’s. The employer must demonstrate by clear and convincing evidence it would have taken the same action even in the absence of the employee’s disclosure.   In the event of an adverse finding, a party has the right to judicial review, but the review process does not allow for the admission of any new evidence not part of the proceedings below.

In the BCI case, the OIG interviewed many witnesses who provided conflicting evidence about the employer’s motive. The investigator determined the witnesses favoring the employee’s side were more credible and issued a report recommending a finding in favor of the employee. The OIG provided a report to the employer, but with witness names redacted. Almost two weeks later, the OIG provided a new copy of the report with summaries of some of the witness interviews (those who signed releases).   The OIG then gave the employer seven days to respond to this new report.    The employer asked for an extension of time to respond, which the agency refused.

Not surprisingly, the Secretary of Education supported the OIG’s findings, and concluded the employer had failed to present clear and convincing evidence that the termination was not retaliatory. The employer was ordered to reinstate the employee with back pay.   All of which occurred without providing the employer an opportunity to be heard or to cross-examine adverse witnesses.

On judicial review, the Court ruled that the Department of Education’s procedures violated BCI’s right to due process by failing to provide any kind of hearing at which it could confront and cross-examine witnesses.  Notably, the DOE acknowledged that ARRA provided no mechanism for a hearing, either before or after the secretary made a decision on the merits of the case.   Nonetheless, the agency claimed BCI was provided adequate due process. First, DOE claimed BCI would have the opportunity to present defenses in the DOE’s court action to enforce its order.   The Court easily rejected that argument, because “[d]ue process cannot be conditioned on requiring BCI to violate an order, exposing itself to statutory sanctions”. Second, DOE claimed BCI had adequate opportunity to be heard by seeking review in the Court of Appeals.   Judicial review is not itself sufficient for due process, the Court concluded, because the employer does not have the right on review to present new evidence or cross-examine witnesses. 

That a federal law would grant rights to employees without commensurate protections for employers to defend themselves should be surprising,   But, even though most federal and state employment laws are not so one-sided as ARRA’s whistle-blower protections, employers too often are subject to unfair and arbitrary administrative enforcement of employment laws.  Most employers don’t have the resources or the inclination to resist administrative overreach like occurred in this case.  That is why a ruling like BCI is not only refreshing, but is an important check on unbridled administrative discretion.

Crystal Henley enrolled in the Kansas City Police Academy in September 2005. By November 8, she was forced to leave and was not able to complete her training to become a police officer.   During her short time at the Academy, Henley claims she was treated more harshly than male trainees, subject to sexual harassment, and even physical assault.   

Almost five years later, in October 2010 Henley filed a lawsuit against the Kansas City Board of Police Commissioners and several of the employees and officials of the police academy, alleging sex discrimination and harassment in violation of her right to equal protection under the Constitution.   The defendants asked the court to dismiss the suit because Henley had failed to first file an administrative charge with the EEOC, as is required to pursue a discrimination and harassment claim under Title VII.   The reason she could not file an EEOC charge, of course, was because too much time had passed—a complainant has only 300 days after the alleged discriminatory conduct. The District Court agreed with the defendants that Henley failed to exhaust her administrative remedies, reasoning that Henley could not “circumvent Title VII requirements by only pleading violations of the Equal Protection Clause [of the Constitution].”  

The Court of Appeals reversed the dismissal of Henley’s gender discrimination claims.  (See ruling here)   While acknowledging that Title VII procedures must be followed for violations of its terms, in Henley’s case, she was relying upon the Equal Protection Clause as the source of her right to be free from gender based discrimination.    If a right is secured by the Constitution independent of Title VII, the Court reasoned, a plaintiff does not have to rely upon Title VII’s remedies to pursue such a claim.   

The Court did not find that Henley actually asserted a plausible claim for gender discrimination based upon the Equal Protection clause. The case was remanded back to the district court to consider that question.   Actually proving the defendants violated her Constitutional rights may be an uphill battle. Nonetheless, this ruling opens new doors gender based discrimination claims for public employees. The most significant practical impact is that potential claims once considered stale because more than 300 days had passed may have new life because of longer limitations periods for Constitutional claims. Public employers should be alert that this case presents yet another employment risk when taking adverse action against employees. 

In my practice I frequently represent counties, municipalities, school districts and other public entities.   Just like their counterparts in the private sector, public employees are protected against discrimination because of race, sex, age, religion, disability, and other protected statuses. However, public employees have one important right their private sector brethren do not share: the right under the First Amendment to be free of discrimination based upon their political speech and associations. 

Most First Amendment employment lawsuits involve claims of retaliatory discharge.   A typical case is the newly elected public official who wants to purge the ranks of employees who supported his political opponent in the election and fill the positions with his political supporters.   While political affiliation is a legitimate consideration for positions that involve policy making, employees holding jobs that do not involve policy functions are protected from retaliation based upon their political beliefs, even if they conflict with those of the boss.

A recent ruling from Eighth Circuit presented the more unusual case of refusal to hire based upon a person’s political beliefs. Indeed, the case was the first time the Eighth Circuit has addressed the question. Even more intriguing is that the plaintiff is a conservative law professor who claims she was blackballed by the predominantly liberal faculty at the University of Iowa College of Law.    The Court’s ruling reinstating the lawsuit that the trial court dismissed on summary judgment has sent shock waves through the legal and higher education communities, as reflected by the widespread national media coverage (WSJ; Fox News; New York Times; Chronicle of Higher Education). 

Teresa Wagner alleged she was not hired as a Legal Analysis, Research, and Writing (LAWR) Instructor because of her conservative political views.    Wagner, who is a graduate of the UI College of Law, had spent several years working with the National Right to Life Committee, a pro life advocacy group, and the Family Research Council, which advocates for conservative social policy.   Unlike the other candidates who applied for the position, Wagner had prior experience teaching Legal Analysis and Writing at another law school.    Wagner received many positive comments from both faculty and students who were involved in the interview process, and several recommended that she be hired.   Ultimately, the Dean chose to hire another applicant who had no prior successful teaching experience, had never practiced law, and had no legal publications, but who presented himself as a political liberal.  

Most interesting about the case was evidence showing that a particular faculty member’s views on abortion may have impacted the decision making.   The Court noted that Professor Randall Bezanson had been the primary, vocal opponent to hiring Wagner.   Bezanson, as it turned out, served as a law clerk to Justice Blackmun during the term Roe v. Wade was written, had written tributes to Justice Blackmun and his abortion jurisprudence, and published legal articles advocating support for abortion rights.   In contrast, part of Wagner’s legal career focused on pro-life advocacy. 

Even though Wagner was not offered the full time LAWR position, she was encourage to apply for adjunct openings in the same department.   The faculty hiring committee recommended her for an adjunct position, but the Dean chose to hire two others instead.   According to one member of the law faculty, the Dean had always followed the faculty’s recommendations in the past when hiring for adjunct positions. The others persons hired for the adjunct positions had no prior law school teaching experience, and one had just graduated from law school. 

The legal question the court addressed was whether the Dean’s decision to offer the LAWR position to another applicant was protected by qualified immunity.   The Court analyzed the claim under the burden shifting approach adopted by the First Circuit.  The Court held Wagner must first show that political affiliation was a “substantial or motivating factor” behind the hiring decision.   At that point, the employer must articulate a non-discriminatory basis for the decision and prove the decision would have been taken without regard to the candidate’s political affiliation.   Next, the Defendant is required to show the constitutional right that was allegedly violated was “clearly established” at the time of the violation.

The Court concluded that the evidence showed there was a genuine factual dispute whether the Dean would have made the same hiring decision in the absence of Wagner’s political beliefs. The Court also found that the right to be considered for a non-policy making and non-confidential position without regard to one’s political beliefs was clearly established. The question is whether Dean Jones, given the information available to her about Wagner’s political beliefs, and the relative qualifications of the other candidates, reasonably could have believed that not hiring Wagner was lawful. 

The Court of Appeals reversed the grant of summary judgment and ordered the case to trial.   Notably, on January 10, 2012, the Dean filed a Petition for re-hearing en banc.   The Court has not yet ruled on the en banc request.   Regardless whether the Court of Appeals agrees to a re-hearing or the case goes to trial, it appears this dispute is far from over.  Stay tuned.