"Ban the Box" to Become the Law for Federal Employers

Later today in Newark, New Jersey President Obama will announce an Executive Order prohibiting questions about criminal history on federal job applications. The announcement comes after years of nationwide lobbying by the "ban the box" movement. The Executive Order is geared toward giving people convicted of crimes a chance to land a job.

It's no secret that most employers reject job applicants who reveal a criminal history on a job application. Prohibiting criminal history questions on an application will at least keep people in the running for a job. Employers will still be permitted to run background checks. There are no laws forbidding employers to base hiring decisions on background checks, so the ban the box order may not result in more employment for people with a crime on their record. It will, however, increase their employment opportunities. It remains up to the individual to demonstrate that despite their history they have experience and skills that make them the most qualified applicant.

To help convicts get a job the State of Ohio created Certificates of Qualification for Employment ("CQE"). Ohio employers who hire a CQE holder are protected from lawsuits arising from conduct by the holder. Getting sued is often a reason why many employers do not want to hire people with a criminal history. Read more about the process of obtaining a CQE here.

FMLA, No-Fault Attendance Policies and the Statute of Limitations

          A recent case out of the federal Seventh Circuit Court of Appeals shows the danger of waiting to assert FMLA time-off rights. In Barrett v. Ill. Dep't of Corrs., unreported, Case No. 13-2833 (7th Cir., Oct. 20, 2015), plaintiff's employer had a no-fault attendance policy allowing 12 absences before termination. The plaintiff missed work one time each in 2003, 2004 and 2005 for FMLA-covered absences but did not assert her FMLA rights. The employer counted those absences against her under the attendance policy. Plaintiff's twelfth absence occurred in 2010 and resulted in her termination. Plaintiff waited seventeen months before filing suit in 2012.

          Plaintiff argued that the FMLA violation occurred upon her termination. The employer countered that the alleged FMLA violations occurred in 2003-2005 and, therefore, Plaintiff’s FMLA claim had to be filed within two years thereafter. The trial court and the Court of Appeals agreed with the employer.  The Court of Appeals reasoned as follows:

We begin with the statutory text. The FMLA provides that “an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.” *** To determine when the claim accrued, the statute tells us to identify the “last event” constituting the alleged FMLA violation.

          Without going into the full analysis, it’s pretty clear that the event giving rise to what was an FMLA interference claim was counting an FMLA-covered event as an unexcused absence under the attendance policy. Consequently, the FMLA-claim accrued at the latest in 2005. Plaintiff had until 2007 to bring the claim but waited until 2012 to file a lawsuit.  Too late.

          The moral of the story is that employees should not sit on their rights. Contact an employment lawyer (i.e., me) as soon as you’ve been nailed with an unexcused for medically-related reasons. I have had great success with FMLA/attendance policy cases, but no lawyer will be able to help you if you sit on your rights.

Visit me at NeelLaw.com

You can contact me via email through NeelLaw.com 

Halloween, Wicca and Religious Discrimination

          To most Americans October 31^st is Halloween. To members of the Wicca religion October 31^st is one of the most, if not the most, important “sabbats” (solar festivals) of the year. I know this because I was recently asked by a member of the faith whether her employer was legally obligated to give her the day off for religious observance on October 31^st.  I had to do a little research into the subject and what I learned is good news for witches and warlocks.  

          Federal courts are in agreement that Wicca is a religion protected under federal law just as mainstream religions are.  This from Saeemodarae v. Mercy Health Services-Iowa Corp., 456 F. Supp.2d 1021 (N.D. Iowa 2006):

Federal courts have recognized Wicca (also known under various names, including “the Wiccan (or Wiccian) religion,” “the Craft,” “witchcraft,” or “the Old Religion”) as a bona fide, established, or sincerely held religion that is protected, for example, by the Free Exercise clause of the First Amendment to the United States Constitution or Title VII of the Civil Rights Act of 1964. See, e.g., Dettmer v. Landon, 799 F.2d 929, 931-32 (4th Cir. 1986) (Wicca is a religion protected by the Free Exercise clause of the First Amendment to the United States Constitution); Van Koten v. Family Health Mgmt., Inc., 955 F. Supp. 898, 902 (N.D. Ill. 1997) (finding that Wicca was a “religion” within the meaning of Title VII), aff’d, 134 F.3d 375 (7th Cir. 1998) (table op.) (finding sufficient evidence to assume a prima facie case, including that the plaintiff was asserting protection on the basis of a “religion” within the meaning of Title VII).

See also Hedum v. Starbucks Corp., 546 F. Supp.2d 1017, 1023 (D. Or. 2008) (“There is no dispute that Ms. Hedum's practice of the Wiccan religion places her in a protected class”).

          What does this mean for employees who request a day off from work for religious observance on October 31st?   Thus, the employer who allows a Catholic employee a schedule change to attend services on Good Friday must treat members of the Wicca faith in the same manner on their important holidays, otherwise the employer is discriminating based on religion.

The Objective Test for Severe or Pervasive Sex Harassment

Dana Ellis worked for Jungle Jim’s grocery. Upon transfer to the seafood department her new supervisor, Caldas, started making lewd comments and suggestions on what she said was a daily basis.  Ellis cried and became physically ill because of her supervisor’s conduct. She needed her job, which paid $9.00 an hour. The store had a sex harassment policy in its employee handbook but Ellis didn’t follow it by complaining to her supervisor’s boss. A co-worker brought the harassment to the attention of management. The company reprimanded Caldas and told him to stop but the conduct continued albeit in a less direct way.

The law is clear as to what plaintiff’s such as Ellis must prove to win a hostile work environment sex harassment case:

Ellis must demonstrate: that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the "terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment," and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

The third element requires a two-pronged showing: the conduct in question must (1) be severe or pervasive enough to create an objectively hostile or abusive work environment, and (2) be subjectively perceived by the victim to be abusive.

When you read the opinion it seems abundantly clear that the supervisor created an abusive sexually charged work environment. Nevertheless, the trial court tossed the case on summary judgment because it decided that the supervisor’s conduct wasn’t bad enough to make it harder for Ellis to do her job. The court of appeals reversed that decision and sent the case back for trial. The trial court’s error was in making its own subjective determination that a reasonable person would have been able to put up with the supervisor’s behavior. This is what I believe is a common mistake judge’s make. The issue for the trial court is not the judge’s opinion of the plaintiff’s working condition; rather, the issue is whether reasonable people, sitting on a jury, could view the evidence as demonstrating the existence of a hostile work environment. It’s unfortunate that Ms. Ellis had to pursue a timely and costly appeal in order to correct what really is a simple application of the law.

Treatment of Direct Evidence in Age Discrimination Cases Under the ADEA

The federal Sixth Circuit Court of Appeals recently opined on how direct evidence of age discrimination under the ADEA is to be addressed on summary judgment. In Scheick v. Tecumseh Public Schools, Case No. 13-1558 (6th Cir., Sept. 2, 2015), the district court granted summary judgment in favor of the employer Plaintiff’s evidence consisted, among other things, of statements that “[t]he Board wants you to retire”  and that the employer "wanted someone younger.” The district court granted summary judgment, finding these statements not direct evidence of age discrimination.

The Sixth Circuit reversed based on the second set of statements, explaining as follows:

To prevail on a claim under the ADEA, it is not sufficient for the plaintiff to show that age was a motivating factor in the adverse action; rather, the ADEA’s “because of” language requires that a plaintiff “prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009) (citing Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 141-43, 147 (2000)). *** [A]fter Gross, we now look to whether evidence, if believed, requires the conclusion that age was the “but for” cause of the employment decision.

*     *     *

The first statement, made during the performance review, did not constitute direct evidence of age discrimination. As the district court found, McAran’s statement that the Board wanted Scheick to retire would require an inference to conclude that retirement was a proxy for age (as opposed to either years of service or a desire that he leave the position voluntarily). See, e.g., Scott v. Potter, 182 F. App’x 521, 526 (6th Cir. 2006) (finding the statement “[w]hy don’t you retire and make everybody happy” did not constitute direct evidence of age discrimination).

In contrast, McAran’s other two statements about wanting “someone younger” are not ambiguous and, if believed, do not require an inference to conclude that age was the but-for cause of the decision not to renew Scheick’s contract. First, the statements by McAran to Scheick on February 26 and March 15, respectively, represent direct references to age. See Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 794 (6th Cir. 2013) (involving statement “we want someone younger”). Moreover, the statements are not ambiguous despite the lack of an explicit statement that “the Board” wanted someone younger. Cf. Fuhr, 710 F.3d at 674 (finding ambiguities required inferences about what part of the “old boys network” took which unspecified retaliatory actions).

The Sixth Circuit, however, rejected the notion that presentation of direct evidence will always defeat an employer’s motion for summary judgment under the ADEA.

Thus, even when direct evidence of age discrimination has been offered, the question to be asked in deciding an employer’s motion for summary judgment is whether the evidence, taken as a whole and in the light most favorable to plaintiff, is sufficient to permit a rational trier of fact to conclude “that age was the ‘but-for’ cause of the challenged employer decision.” Gross, 557 U.S. at 178.

The Court ultimately concluded that “the evidence, taken as a whole and in the light most favorable to Scheick, is sufficient to permit a reasonable juror to conclude that Scheick’s age was the but-for cause of TPS’s decision not to renew the contract for his services.”

2016 Ohio Minimum Wage Same As 2015

Ohio’s minimum wage of $8.10 per hour for non-tipped employees and $4.05 per hour for tipped employees will stay the same in 2016.  A minimum wage of $7.25 will apply to smaller companies (yearly gross revenues of $297,00 and under) and to 14- and 15-year-olds.

Can Supervisors Enforce an Arbitration Agreement They Did Not Sign?

Plaintiff Rivera worked for Rent a Center. He sued his supervisor, Owens, for race discrimination. Owens presented an arbitration agreement between Rivera and Rent a Center and asked the court to dismiss or stay the case pending arbitration. The agreement provided arbitration of legal claims against not only Rent a Center but also against its employees. Rivera insisted that the agreement was between him and Rent a Center only.

The Cuyahoga County Court of Appeals reversed the trial court's decision denying Owen's Owens' motion. The reason? Pretty simple: Owens was a third-party beneficiary of the agreement. In short, basic agency and contract principles apply to arbitration agreements, including ones between employer and employee.  Rivera v. Rent A Center, Inc., 2015-Ohio-3765 (8th Dist., Sept, 17, 2015).