GANFER & SHORE, LLP CLIENT EMPLOYMENT LAW ADVISORY MARCH 2012 SHOWING HOSTILE WORK ENVIRONMENT FOR ONE PROTECTED
GROUP MAY NOT SUPPORT THAT CLAIM FOR ANOTHER GROUP A group of Hispanic employees brought claims of race discrimination and retaliation, including hostile work environment harassment. Their lawsuit included an allegation by a Caucasian employee that his association with Hispanic and African-American employees led to a hostile work environment and retaliation against him. A Hispanic employee claimed that he was once called a racially derogatory term and that he saw a poster or letter containing a derogatory reference to Hispanics. Another Hispanic employee claimed that he once heard a derogatory reference to Mexican-Americans over a company radio and that he had seen a derogatory posting or drawing. In asserting that the work environment was hostile to Hispanics, the Hispanic employees also relied on alleged harassment of African-American employees. A federal trial court in Texas dismissed the suit, ruling that harassment of African-American employees could not support, bolster, or bootstrap the Hispanic employees’ claim that there was a hostile work environment for them. The Fifth Circuit Court of Appeals affirmed the trial court’s summary judgment in favor of the employer in Hernandez v. Yellow Transportation, Inc.,2012 WL 400569 (5th Cir. 2012). The appellate court held that the evidence of alleged harassment against the Hispanic employees was insufficiently frequent, severe or pervasive as to them to support their otherwise insufficient hostile environment claim. In other words, when a plaintiff's allegations of alleged harassment against his or her own protected class are not frequent, severe, or pervasive enough to support a hostile work environment claim, reliance on harassment against another protected class is insufficient. EMPLOYER’S DECISION TO RECLASSIFY EXEMPT EMPLOYEES IS NOT EVIDENCE THAT THEY WERE ORIGINALLY MISCLASSIFIED Reacting to an increasing number of suits under the Fair Labor Standards Act (FLSA), an employer voluntarily reclassified as nonexempt a number of technical computer workers it had previously classified as exempt. The employees thereafter sued for three years’ worth of overtime. One plaintiff, however, delayed filing a law suit for more than two years after being reclassified. This meant that his claim was time-barred under the FLSA statute of limitations unless he could establish that the employer “willfully” violated the law, in which case the statute of limitations would be three years. The plaintiff argued that the misclassification was willful, as the decision to reclassify itself demonstrated the employer’s knowledge that the prior classification was incorrect. A federal trial court in New York rejected plaintiff’s claim in Clarke v. JP Morgan Chase Bank, 2010 WL 1379778 (S.D.N.Y. 2010). The court ruled that the employer’s decision to reclassify the employee by itself did not establish a willful violation. On the contrary, the court stated, the reclassification reflected the employer’s good-faith effort to ensure that the company’s employee classifications complied with the FLSA. The court stated that “the mere fact that an employee was reclassified cannot establish an employer’s liability for the period prior to the reclassification.” Ultimately, it is the employee’s actual duties, rather than the employer’s classification decisions, that control whether an employee is exempt from the FLSA or not. EMPLOYEE HAS NO FMLA REMEDY FOR POST-LEAVE CLAIM THAT HIS BOSS GAVE HIM HEARTBURN Plaintiff had taken Family Medical Leave Act (FMLA) leave to receive treatment for gastroesophageal reflux. After exhausting his FMLA leave time, he returned to work, but then took two additional non-FMLA medical leaves for esophageal surgeries. He did not return to work after he took a third leave in order to have an esophagectomy, but instead sued the employer for retaliation. The gist of his claim, the court stated, was that “the esophagectomy was necessary because a supervisor . . . caused him to suffer stress, high blood pressure, and stomach reflux, all of which exacerbated his pre-existing medical condition” and left him permanently unable to return to work. A federal trial court in Illinois dismissed plaintiff’s claim, and the appellate court affirmed, in Breneisen v. Motorola, Inc., 656 F.3d 701(7th Cir. 2011). The court ruledthat the FMLA does not authorize relief where the employee had already exhausted his leave entitlement. The court explained that “since stress can adversely affect many common ailments from which physically infirm employees suffer, granting relief on this basis would contravene the straightforward premise of the FMLA: to protect employees from adverse actions by their employers during finite periods when short-term personal or family medical needs require it. When serious medical issues render an employee unable to work for longer than the twelve-week period contemplated under the statute, the FMLA no longer applies. This is true regardless of the cause of the infirmity.” EMPLOYERS MUST BE CAREFUL WHEN SUSPENDING EXEMPT EMPLOYEES WITHOUT PAY TO AVOID RISKING THEIR EXEMPT STATUS Under the FLSA, the general rule is that an exempt employee must receive a fixed weekly salary that does not vary regardless of the number of hours worked or the quality or quantity of work performed in any week in which he or she performs services. Improper deductions from an exempt employee's salary can result in loss of exempt status, for the affected employee as well as for all employees in the same job classification. There are, however, exceptions to the general rule: 1. If an employee is absent for one or more full workdays for personal reasons other than sickness or disability, the employee's salary may be reduced proportionately. 2. An exempt employee's salary may be reduced for full-day absences due to sickness or disability if the employer provides paid sick leave or other disability compensation. 3. FLSA regulations also allow for salary deductions for "unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules" if they are "imposed pursuant to a written policy applicable to all employees." Because of the potentially serious consequences of mistakes, employers may wish to consult with counsel before taking disciplinary action with financial consequences against exempt employees. The cases presented in this Advisory are drawn from courts located throughout the United States. They may or may not apply to a given employer based upon regional interpretations of federal law as well as any applicable state or local laws. If you have any questions concerning labor or employment law, please contact Robert I. Gosseen, Esq., who heads this practice area at Ganfer & Shore, LLP, at (212) 922-9250, ext. 288, or your contact at the firm. |
