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Employee not entitled to treat each paycheck as separate act of discrimination in pay discrimination case.
A longtime employee of Goodyear sued the company after she retired, arguing she had been paid less than her male coworkers for her entire career.
The company had a policy of awarding pay increases based on performance reviews, and the plaintiff alleged that some of her early reviews had been unfairly low because she was female. Although a jury found in her favor, the Appeals Court and the Supreme Court held that the claim was untimely.
The Court explained that a plaintiff must file a claim of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discriminatory act, or 300 days if the plaintiff files with a state human rights agency. In this case, only one performance evaluation leading to a pay increase occurred in that time frame, and the court found that the pay decision in that case was not discriminatory. The plaintiff argued that she should be allowed to look back to the earlier, discriminatory pay increases, because their effects were still being felt in her current, lower paychecks.
The Court disagreed. It explained that she should have filed her EEOC charge at the time she believed she received discriminatory evaluations, not many years later. To allow otherwise would expose employers to nearly unlimited liability, because employees could point to any number of past acts and allege they had present consequences.
This case demonstrates a strict interpretation of the requirement that discrimination complaints be filed with the EEOC within 180 days of their occurrence. The decision is already the subject of much controversy; a bill has been introduced in Congress to overturn its effect.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Ledbetter v. Goodyear Tire & Rubber Co., -- S.Ct. --, 2007 WL 1528298 (May 29, 2007)].
Inappropriate Internet usage by longtime employee with good record warrants discipline, not termination.
A longtime employee of a power company who had no prior disciplinary problems should not have been terminated for violating his company’s Internet usage policy, an arbitrator decided recently.
After the company became concerned its employees were accessing inappropriate Web sites at work, it instituted a special computer program to block access to certain sites. The program was known as the OOPS screen, because the words “OOPS! You can’t access the Web page you requested” appeared when an employee tried to access a blocked site.
Pursuant to its normal monitoring procedures, the company began an investigation of the plaintiff after his screen name and ID were associated with having produced well more than 20 OOPS screens in a single month. The investigation revealed the employee had attempted to access a number of inappropriate sexual and pornographic Web sites while at work. The company terminated him, and his union filed a grievance.
The arbitrator found that it was reasonable for the employer to set a threshold of 20 OOPS screens per month before it began an investigation. He explained that some limit is necessary, and in any event, the employer does not necessarily discipline an employee for having that many screens; it merely begins an investigation. Second, it was appropriate for the employer to focus on pornographic sites for blocking (as opposed to those that were violent or racist), because the evidence showed that pornographic sites created the biggest problem at the company by a wide margin. Finally, the arbitrator held that although the employee deserved to be disciplined for his actions, termination was too harsh a remedy. He had an otherwise clean record, which suggested he could learn from his mistakes, and there was a good chance a lesser punishment would be effective.
This case demonstrates how an employer can implement a monitoring policy to prevent employees from accessing inappropriate Web sites at work. It also provides guidance on appropriate discipline for violations of such a policy.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Georgia Power Co., 123 LA 936 (December 11, 2006)].
Construction workers cannot get paid for time spent clearing security at construction site.
A group of workers on an airport construction project cannot count the time spent in employer-provided vans traveling to and from the construction site or going though site security as “hours worked” for compensation purposes. The court found that the time spent in transit and going through security was not “work-related activity,” and therefore it was exempt from compensation under the Fair Labor Standards Act (FLSA).
The FLSA excludes the time spent walking, riding or traveling to the actual place where the principal work activities are performed from compensable work time. It did not matter that the workers were required by Federal Aviation Administration regulations to ride in employer-provided vans or go through security before reaching the site; they did not perform any work for the benefit of the employer during this time. The court explained that the test for compensability was not whether the work could only be done if the workers first spent time traveling and going through security. Instead, the question was whether the time spent was integral and indispensable to their actual jobs. In this case, the answer was no.
This case differs from FLSA actions regarding time spent by workers putting on protective clothing before beginning their jobs. If the wearing of protective gear is integral to the performance of the job, then the employee must be compensated for the time spent putting it on and taking it off.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Bonilla v. Baker Concrete Construction Inc., -- F.3d --, 2007 WL 1544173 (11th Cir. May 30, 2007)].
Comment about employee’s pregnancy that did not indicate negative bias is not evidence of discrimination.
A nurse in a dermatology office who was fired after a disagreement with her boss could not maintain her claim that she was actually fired as a result of being pregnant, because her boss’ single comment about her pregnancy did not show animosity.
The nurse had been working for six months when, in June 2003, the only other nurse in the office announced she was pregnant. At the time, the wife of the clinic owner (who was also the office manager) stated that the plaintiff should be careful not to get pregnant too, because it would be hard for the clinic to have both nurses out on leave at the same time.
A month later, the plaintiff announced her own pregnancy. Two weeks later, she got into a disagreement with the office manager about the office’s policy on dispensing medication and was escorted from work for the day. Although her employer later informed her that she had not been fired and asked her to return to the office, she refused and filed a lawsuit instead.
The plaintiff argued that she was terminated because of her pregnancy, as shown by the office manager’s comment that she should take care not to get pregnant while the other nurse was out. The court held that even assuming the plaintiff had actually been fired, the office manager’s comment was only a stray remark, not enough to prove discrimination based on pregnancy. The comment itself was not a negative reflection on pregnancy, nor did it threaten any adverse action should the plaintiff become pregnant. Instead, it was a self-serving comment about the difficulties the office would find itself in if both nurses took leave at the same time. The single comment, on its own, was not enough to demonstrate discrimination.
Although the comment in this case was not significant enough to support a claim of discrimination, employers should take care not to make even stray remarks that could be interpreted as evidence of bias.
-- Paul Freehling, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Fjelsta v. Zogg Dermatology, -- F.3d --, 2007 WL 1531237 (8th Cir. May 29, 2007)].
