In The News

Admittedly, we have been a little quiet here lately at The Coles Firm P.C. blog. Between our case load, some new projects we've been working on, and a hectic travel and event schedule, we have not been able to blog like we would like. That said, we are back.

To ease back into things, we thought we would highlight some employment issues that have been in the news lately and see if we can generate some feedback and comments from our followers.

First, The Equal Employment Opportunity Commission filed a lawsuit in El Paso, Texas against Starbucks for firing a dwarf. The former employee in question requested a stool to perform her job and Starbucks felt she posed a danger to customers and coworkers. The EEOC claims Starbucks' actions constitute disability discrimination. What do you think? Do you think Starbucks was right that the request posed a danger to customers and coworkers? Do you think Starbucks' actions constitute disability discrimination?

The second thing we noticed was an MSNBC article highlighting a growing trend among employers regarding a four day workweek. The trend actually has less to do with work-life balance and more to do with financial issues driven by the tough economy and budget concerns. The article also noted Utah's decision to transition all state workers to four day workweeks. In Utah, employee satisfaction improved, Utah experienced energy savings, and environmental issues improved. What are your thoughts? Is a four day workweek possible for all employers and companies? Does it make sense? Should we incorporate other flex schedules in the workplace? Is the five day workweek simply outdated?

Let us know what you think about these and other issues. We look forward to hearing from you.

Coles Corner Winning Wine: April 2011 (Archive)

Santa Margherita’s Prosecco – Often called “Poor Man’s Champagne,” Prosecco is typically sweeter than champagne. Santa Margherita’s Prosecco is a brut style sparkling wine more reminiscent of champagne than a traditional Prosecco. This Prosecco is a less expensive alternative to some higher end champagnes.

Coles Corner Winning Wine: March 2011 (Archive)

Bodega Tamari Reserva. 2009 Malbec. This Argentinian Malbec starts and finishes smooth, making this bottle of wine an easy red. Tamari’s subtle fruit flavors create a great table wine to enjoy at any time. We suggest pairing this wine with a sweet nutty cheese, such as a Manchego.

Coles Corner Winning Wine: February 2011 (Archive)

Hip Chicks Do Wine Drop Dead Red – A true Pacific Northwest wine, Hip Chick’s Drop Dead Red combines Oregon and Washington grapes into a bold red blend. This decidedly smooth blend carries a hint of smoke that lingers well after your first sip. You can’t miss this bottle on the shelves since Hip Chicks continues with their clever and witty labels and descriptions. Pick up a bottle tonight and enjoy.

Fifth Circuit Court of Appeals Rules that Private Employer Can Refuse to Hire Individual Based on Individual's Previously-Filed Bankruptcy

Chapter 11 of the United States Code section 525(a) prohibits a governmental unit from denying employment to an individual who has filed bankruptcy. The governmental unit also is prohibited from terminating the individual’s employment or “discriminat[ing] with respect to employment against” an individual who has filed bankruptcy.

A subsection under this Chapter prohibits private employers from “terminat[ing] the employment of, or discriminat[ing] with respect to employment against” an individual who has filed bankruptcy. This subsection is silent as to whether “discriminat[ing] with respect to employment against,” includes refusing to hire based on an individual’s previously-filed bankruptcy.

On March 4, 2011, the U.S. Court of Appeals for the Fifth Circuit held that Chapter 11 of the United States Code section 525(b) does not prohibit a private employer from refusing to hire an individual based on the individual’s previously-filed bankruptcy. The decision is Burnett v. Stewart Title, Inc., Case No. 10-20250. The facts are straightforward and quite common. Ms. Burnett applied for a job with Stewart Title, Inc. and Stewart Title, Inc. offered Ms. Burnett the job contingent on passing a drug test and background check. During the background check, Stewart Title, Inc. discovered Ms. Burnett previously filed bankruptcy. For that reason, Stewart Title, Inc. revoked its employment offer. Ms. Burnett then filed a discrimination lawsuit under 11 U.S.C. § 525(b).

In dismissing Ms. Burnett’s lawsuit, the Court noted section 525(a) specifically prohibited the government from refusing to hire based on bankruptcy status, but Congress omitted this language as to private employers in section 525(b). Accordingly, the Court reasoned Congress’ omission indicated an intentional differentiation between government and private employers’ rights to discriminate. As such, the Court determined that Ms. Burnett could not bring a lawsuit based on the claim Stewart Title, Inc. (a private employer) refused to hire her based solely on the fact she previously filed bankruptcy.

Coles Corner Winning Wine: January 2011 (Archive)

Ninety Cellars’ Lot 17 Merlot – Deceptive in name, Lot 17 Merlot blends Merlot, Cabernet Sauvignon, and Cabernet Franc resulting in pleasantly smooth and smoky opening note. This blend provides the traditional bold flavor of a Merlot, but lacks the dryness often associated with a Merlot. We recommend this Merlot to those of you who believe a Merlot should be left on the rack.

New Health Care Law Contains Provision to Amend FLSA

The new health care bill recently signed into law by President Barack Obama contains a little known and often overlooked provision about which all employers should be aware. The provision amends the Fair Labor Standards Act (FLSA) and employers now will be required to provide women with breaks to breastfeed, as well as a location to breastfeed.

Such requirements already exist in sixteen states but the requirement now will be a federal law. Under the law, employers must provide reasonable time and a place for nursing mothers to express breast milk for one year following the child’s birth. The location must be something other than a bathroom, shielded from view, and free from intrusion by coworkers and the public.

In light of the potential burden imposed and the logistical concerns (such as how to provide bus drivers, postal workers, police officers and other mobile workers a place to breastfeed), the Department of Labor Wage and Hour Division is seeking public comment before it begins writing guidelines for the new law. The public can comment through February 22, 2011 at http://www.regulations.gov/#!home. We encourage employees and employers alike to comment and provide their perspectives on this new law.

New U.S. Supreme Court Decision Regarding Retaliation

Yesterday, the United States Supreme Court ruled that an employer violated Title VII when the employer terminated an employee’s fiancée three weeks after the employee filed an EEOC Charge against the employer. See Thompson v. North American Stainless, LP, 2011 WL 197638 (Jan. 24, 2011). The Supreme Court confirmed that although the fiancée did not engage in a protected activity, the employer could not retaliate against the fiancée because the action might have “dissuaded a reasonable worker from making or supporting a charge.” This decision should not surprise an employer, but the Supreme Court did note the difficulty with determining the type of relationship needed in this circumstance. Will a boyfriend/girlfriend relationship support a retaliation claim? What about very close friends? While the Supreme Court refused to draw a line, the Supreme Court stated firing a close family member almost always equals retaliation, while firing a “mere acquaintance” almost never does. We will wait for the lower courts to draw the line between “close family member” and “mere acquaintance.” Meanwhile, employers must be mindful that courts interpret Title VII retaliation broadly and employment actions against a complainant’s relatives or close friends might constitute retaliation.

Determining the Appropriate Discipline

If you are a college football fan you might have read that ESPN recently fired a play-by-play announcer for making a sexist remark to a female co-worker. If you haven’t seen the article, the background story is that during the pre-game production meeting for the Chick-fil-A Bowl game, the announcer told his female co-worker “Listen to me, sweet baby, let me tell you something …” After the co-worker told the announcer not to use that language with her, the announcer responded with “OK then, listen to me, assh*le.” ESPN terminated the announcer a few days after the comments were reported to management.

ESPN’s handling of this situation raises an interesting discussion regarding appropriate employee discipline. Most employers have varying levels of discipline ranging from verbal warning to demotion to termination. The question the ESPN situation raises is when should an employer issue a verbal warning versus a demotion or termination?

The law allows an employer to minimize liability from discrimination or harassment lawsuits if the employer can show it took “prompt remedial action” regarding the wrongdoing. Prompt remedial action is often a question for the jury and, therefore, the jury will determine if the employer issued sufficient and appropriate discipline. An employer should show the jury that the employer (1) had an anti-discrimination/harassment policy, (2) trained its employees about the policy, (3) quickly investigated any complaints, and (4) if the investigation revealed a policy violation, the employer issued appropriate discipline. Appropriate discipline is often shown when the employer followed the progressive discipline outlined in the company policy and the discipline stopped the wrongdoing.

In the ESPN case, according to the New York Post, the announcer had a history of making sexual comments towards female co-workers. The prior history of comments probably made it more necessary for ESPN to terminate the announcer as opposed to issuing a lesser disciplinary action. Since ESPN terminated the announcer instead of suspending or demoting the announcer, we’ll never know if a jury would have determined a lesser disciplinary action was appropriate.