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Non-compliance with even one of the OWBPA's requirements for waiver of claims under the ADEA will invalidate the waiver.
Former employees terminated as part of a reduction-in-force can move forward with their age discrimination claims under the Age Discrimination in Employment Act (ADEA) because the releases that they signed waiving their rights to bring such claims did not satisfy the requirements of the Old Workers Benefit Protection Act (OWBPA). After being terminated, each former employee received extra severance payments in exchange for signing a Release of Claims waiving his or her right to bring an ADEA claim against the employer. At issue in the case was whether the Release of Claims could be enforced.
The OWBPA provides that employees may not waive their rights to bring claims under the ADEA unless the waiver is knowing and voluntary. For a waiver to be knowing and voluntary, it must satisfy certain enumerated requirements. Among these requirements, the employer must provide employees considering waiver with a list of all other employees subject to termination as well as "eligibility information" which contains the factors used to determine which employees will be subjected to the termination program.
The employer in this case provided a list of terminated employees that included workers who were not actually terminated. Additionally, the employer did not provide eligibility information, so the employees could not determine how they had been selected for termination. Therefore, their waivers were not knowing and voluntary; the court stated that "[t]he absence of even one of the OWPBA's requirements invalidates a waiver."
This case demonstrates that for employees to effectively waive their rights to bring claims under the ADEA, the employer must strictly comply with the statutory requirements of the OWBPA.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Kruchowski v. Weyerhaeuser Co., 423 F.3d 1139 (10th Cir., 2005)].
Employer violated FMLA by requiring two-week notice for employees using paid vacation time.
An employer's leave policy that required employees to give two weeks notice before taking paid vacation leave violated the Family Medical Leave Act because it discouraged employees from taking medical leave. The plaintiff was a nurse at the defendant hospital and a member of the union that represented all the nurses. The union and the hospital were parties to a collective bargaining agreement (CBA) that required two weeks notice before an employee could take paid vacation. When the nurse's father became ill suddenly, she left work for a week to care for him. Although the nurse was granted FMLA leave to cover her absences, the hospital denied her the chance to substitute paid vacation leave for unpaid FMLA leave because she had not given two weeks notice.
The court held that the policy violated the FMLA. If employees are allowed to take paid vacation leave at all, it is unlawful for an employer (and union) to place limits on the way such vacation leave is used. By requiring two weeks notice to use paid leave, employees with family medical emergencies might be discouraged from taking FMLA leave, because it would have to be on an unpaid basis. The CBA could not put such a limit on FMLA rights.
This case should alert employers of the need to examine their employment leave policies, whether or not they are contained in a CBA. Because the FMLA gives employees the right to substitute paid vacation leave for unpaid FMLA leave, any limitation on that right may violate the law.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Solovey v. Wyoming Valley Health Care Sys.-Hosp., --F.Supp.2d--, 2005 WL 2737489 (M.D.Pa. Oct. 13, 2005)].
Employee terminated for allegedly lying during an investigation after he complained about sexual harassment can bring a claim for retaliation.
A male state employee complained about sexual harassment by several of his female supervisors. His employer, Missouri's Department of Health and Human Services (Department), investigated the allegations, up to and including conducting a hearing on his grievance, but found no harassment. At the close of the investigation, the plaintiff was fired, based on the fact that his employer believed he had lied during the investigation. He sued, alleging sexual harassment and retaliation.
The court first found that the worker's sexual harassment complaint must be dismissed because the behavior he described about his supervisors – mostly that they hung around his desk, hugged him, and kept him from working – was not severe or pervasive. But he could move forward with his claim that he was fired as retaliation for filing the complaint because the only reason the employer gave for his termination was the fact that it found the female witnesses at the hearing more credible. The employer did not present any independent evidence that the plaintiff had actually lied, but instead, the Department simply relied on the statements of other employees and witnesses. Given that the plaintiff's alleged lies were the only reason for his termination, the court found a connection between his complaints of sexual harassment and his firing. Thus, it allowed the retaliation part of his lawsuit to move forward.
Although an employer does not have to sit back and do nothing while an employee lies during an investigation, in this case, the employer merely made a credibility determination and then fired the plaintiff without hard evidence against him. Experienced employment counsel can help employers determine if they have enough evidence to fire a worker for lying during an investigation.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see, Gilooly v. Missouri Dep't of Health & Senior Services, 421 F.3d 734 (8th Cir. 2005)].
Employer was justified in firing employee for using "medical marijuana" even though use was legal under state law.
An employer did not violate either the Americans With Disabilities Act or California's similar disability statute when it fired an employee who tested positive for marijuana he used for medical purposes. The employee had disabling chronic back pain and obtained the drug through a doctor's prescription pursuant to California's Compassionate Use Act. As part of his company's promotion process, the employee underwent a drug test. He provided his employer a doctor's certification regarding the medical necessity of marijuana to treat his pain, but the employer fired him anyway. The worker sued, arguing that under California law, the employer had the legal duty to accommodate his disability by allowing him to use marijuana.
The court found that the employer was justified in terminating the employee. Use of marijuana is illegal under federal law, and nothing requires an employer to accommodate a disability by allowing an employee to use illegal drugs. The state disability law at issue requires only reasonable accommodation, and the court specifically found that forcing an employer to allow medical marijuana is not reasonable. The fact that the cultivation and use of marijuana for medical reasons is not – in limited circumstances - a crime under California law does not change the fact it is illegal under federal law, and thus the employer was justified in terminating the employee.
Although this case specifically concerns a conflict between federal law and a California statute, it should remind employers and employees to be aware that every state has statutes that may differ from federal laws; both must be considered when making employment decisions.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see, Ross v. Ragingwire Telecommunications, Inc., 132 Cal.App.4th 590 (Cal. Ct. App. 3d Dist, 2005)].
Employee's failure to cooperate in EEOC investigation of a charge he filed meant his lawsuit could not go forward against his employer.
A 61-year-old employee of Sprint was terminated from his job during a reduction-in-force at the company. He filed a charge with the Equal Employment Opportunity Commission (EEOC or agency) alleging age discrimination, but he and his lawyer missed or cancelled at least three meetings with the agency, and generally failed to participate in the investigation of his claim. The EEOC noted the lack of cooperation when it closed his case and issued him a "right to sue letter." This letter means the EEOC has completed its processing of the charge; it does not necessarily mean the agency found that the charge had merit. When the employee later filed suit in court, Sprint argued that the case should be thrown out because the plaintiff had not fulfilled the requirement that he allow the EEOC to try to settle the suit first (known as the exhaustion of administrative remedies).
The court agreed. For a plaintiff to be able to bring an employment discrimination case to federal court, he or she must first file a charge with the EEOC or similar state agency, and allow the agency the chance to investigate the claim. In this case, although the plaintiff did file a charge, he did not cooperate in the investigation, which made the EEOC unable to work to resolve the dispute. Therefore, he did not fulfill one of the legal prerequisites for filing suit in federal court.
Filing a charge with the EEOC or similar state agency is required before most employment discrimination claims may be brought in court. As this case shows, plaintiffs also have the responsibility to cooperate with the EEOC's investigation, or risk having their case thrown out of court.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1 10th Cir. 2005)].