Fired for Working Through Lunch - COTW #76

When two co-workers email you a case, the mainstream media picks up on it, and it has already hit the blogosphere... it's probably a good case of the week. The Case of the Week is an unemployment compensation case involving Sharon Smiley and a Chicago real estate company.

The gist of the story is that an employer fired a woman because she worked through her lunch break. Cue the moral outrage! Well, after a two-year battle, she finally won her unemployment compensation benefits.

 Shockingly (I say sarcastically) the employer may have actually had a reason for doing this. They had a policy requiring employees to take 30-minute lunch breaks. Maybe they think lunch breaks help keep their employees refreshed and motivated. Or maybe the employer has the policy because Illinois law requires employers to provide lunch breaks.

In any event, what could be more basic than an employer's right to set the schedules of its employees? In a previous Case of the Week, I covered a similar situation. An employee was fired for working too much. I explained that employees working through breaks could, and in that case did, also lead to FLSA lawsuits.

It seems like employers are stuck. They can't allow employees to work through breaks. If they enforce the break policy they might be stuck paying UC benefits (and/or facing an FLSA lawsuit anyway and/or facing the righteous condemnation of the media). What's an employer to do? Robin Shea has some tips on her blog entry on this case: OFF-CLOCK WORK: "Flintstone" laws in a "Buck Rogers" world.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Lawffice Links 1/26/2012

I baked up some fresh Lawffice Links for your reading pleasure. They're jam-packed with federal agency goodness:

• The NLRB acting GC just released a second social media memo, detailing 14 cases.
• The EEOC unveiled a draft strategic plan for 2012-2016.
• DOL provided a fact sheet on Prohibiting Retaliation Under the FLSA.
• DOL also provided a fact sheet on Protection for Individuals under the FMLA (HT: Eric Meyer for these last two).
• Finally, a bit of fun with the Top 10 Bizarre Worker's Comp Cases for 2011 (and big ups to my home state of Pennsylvania for landing 3 of the top 10 slots!).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Charts of EEOC Charges by Type of Discrimination 1997-2011

The EEOC released charge statistics for FY 2011 today. I'll be honest... nothing too earth-shattering here. But, I noticed a few things:

• Total charges leveled off, creeping up from 99,922 to 99,947 (or as the media might report it... "EEOC charges set all-time record!");
• The heavy-hitters, race and sex, actually saw decreases;
• Religion claims are up almost 10% (after rising about 12% last year);
• Disability claims are still rising (and have been the fastest growing over the past 5 years), but they leveled off a little bit this year;
• Finally, I ignored GINA again this year because there were only 245 claims (or as the media might report it... "GINA claims skyrocket, up 22%, a new record!").

OK, enough of my babbling, here are the charts:

Retaliation claims continue to rise and comprise a higher percentage of total claims:

And there you have it folks, another record year.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Fired for Wearing a Fake Penis?

When people find out I'm an employment lawyer, they almost always have questions. Those questions are invariably some form of "Can my employer fire me for __________." I can assure you that I have never been asked, "Can my employer fire me for . . . wearing a fake penis to work?"

A new case just filed in federal court in Scranton, Pennsylvania may just provide the answer. HT: Law and Daily Life for the details. A female line worker for J&J Snack Foods claims she is taking steps toward a sex change. Apparently, one of those steps is wearing a prosthetic penis while she works. Her lawsuit alleges that her fake penis was the reason she was fired.

She claims nobody could tell she was wearing it and that it didn't interfere with her work. How did the employer find out? The employee confided in a few co-workers and somehow the word spread. Unsolicited advice: when you tell your co-workers you're wearing a fake penis . . . word is gonna spread!

So, how does this become a lawsuit? She alleges discrimination on the basis of gender and gender identity. "Gender identity" is not a protected class per se under Pennsylvania law (PHRA) or federal law (Title VII). But, some transgendered plaintiffs have had success framing their cases as a form of gender discrimination. The plaintiff here also claims that a male co-worker who wore women's clothing and prosthetics to make him look female was treated differently.

With any luck, this will go all the way to the Supreme Court so I don't have to worry about finding good blogging topics for the next few years!

Image: Those are J&J Snack Foods' SuperPretzel SoftStix of course! Product image used in commentary on J&J.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

"Grandma" it's a "Lateral Move" (and an ADEA Claim!) - COTW #75

Grandma, don't forget to file your ADEA claim! Two of the key components of a discrimination claim are 1. establishing discriminatory motive; and 2. showing an adverse employment action. The employment law Case of the Week is Norris v. Millbrook, 2011 WL 5553082 (M.D. Ala. Nov. 15, 2011). It provides a succinct analysis of lateral moves as adverse employment actions, but first the discriminatory intent . . .

The plaintiff was able to establish her employer's discriminatory intent based in part on ageist comments from her boss. He repeatedly called her "grandma" in a derogatory fashion. He allegedly followed up by telling the plaintiff she needed Gingko Biloba (believed to be a memory enhancer). So, when the boss transferred her to a new position, age might have had something to do with it.

The employer argued that the transfer was a "lateral move" and therefore not an adverse action (or demotion). After all, the plaintiff's remuneration was not changed. But the Court noted:

Although Plaintiff does not dispute that there was no abatement in her pay or her benefits, she testified that her responsibilities "were reduced to almost zero" and that she was not supplied "any [necessary] equipment" and that she was a departmental outcast after the move.

The plaintiff was also, "moved to an unoccupied small desk in the corner of the records office that did not have a telephone or a computer."

That was enough to get "Grandma" past the defendant's summary judgment motion. "Lateral moves" can be tricky, and results may vary from jurisdiction to jurisdiction.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Obama's "Recess" Appointments and the Constitution

President Obama kicked off the new year by making a handful of recess appointments, including three NLRB appointees. This touched off a firestorm of legal commentary. Volokh Conspiracy has a nice recess appointment round-up, featuring links to commentary ranging from libertarian-leaning Richard Epstein, to conservative John Yoo, to liberal Laurence Tribe.

At the risk of over-simplifying, here's the gist of the back-and-forth:

• Certain appointments by the President require the "advice and consent" of the Senate.
• Per Article II, Sec. 2, Cl. 3 of the U.S. Constitution: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
• The Senate went home for the holidays.
• Pro-Recess: A-ha! The Senate is in "recess" and Obama can make recess appointments!
• Anti-Recess: Nope. The Senate is holding "pro forma" sessions!
• Pro-Recess: Those don't count, President Obama can declare that the Senate is in recess.
• Anti-Recess: Who do you think determines if the Senate is in recess... the President... or, I don't know... the Senate!? Talk about a no-brainer!
• Pro-Recess: Yeah, but these "pro forma" sessions are just a bogus ploy to block recess appointments, the Senate isn't actually doing anything, so the President can call it what it is... a recess!
• Anti-Recess: Not doing anything!? How quickly you forget! The Senate just passed the payroll tax extension during one of these pro forma sessions!

Well, I won't make you suffer through any more of my dumbed down version. If you're interested in this subject, the Department of Justice dropped a 23-page pro-recess opinion on January 6th. And, SCOTUSblog has the details on the first legal challenge to Obama's NLRB appointees. Maybe, if we're really lucky, we'll get some actual court opinions on this fascinating subject!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Today, at the Centre County Courthouse...

... arbitration panel hearing! Beautiful day to get out and see the courthouse in Bellefonte, PA.