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Government
Contractors Required to Post Notice About Union Activities
As of June 19, 2010, nearly all government contractors
and subcontractors will be required to post conspicuous notices informing
employees of their rights under the National Labor Relations Act (NLRA).
Pursuant to the new regulation, the notice must inform employees of their right
to: organize a union to negotiate wages, hours, and other terms and conditions
of employment; form, join, or assist a union; bargain collectively for a
contract with their employer; discuss terms and conditions of employment with coworkers
or a union; take action with one or more coworkers to improve conditions
through complaint to their employer or a government agency or by seeking help
from a union; strike and picket, depending on the purpose or means of the
strike or picketing; and choose not to do any of these activities, including
joining or remaining a member of a union.
The notice must also provide examples of illegal conduct
by employers and unions. Specifically, the notice must inform employees that it
is illegal for employers to: prohibit employees from soliciting for a union
during non-working time; question employees about their union support or
activities in a manner that discourages engaging in that activity; take or
threaten to take any adverse employment action against employees who support or
engage in union activities; threaten to close the work place if workers
unionize; promise benefits or incentives to employees who do not engage in or
support union activities; prohibit employees from wearing union hats, buttons, pins,
and t-shirts in the workplace, except under special circumstances; and spy on
or videotape peaceful union activities. The following examples of illegal union
activity must also be included in the notice: threatening employees that they
will lose their job unless they support the union; refusing to process a
grievance because employees have criticized union officials or because
employees are not union members; using or maintaining discriminatory standards
or procedures in job referrals; taking any other adverse action against
employees based on whether they have joined or supported the union.
Finally, under the new regulation, federal contracting
departments and agencies are required to include provisions in all non-exempt
federal contracts and subcontracts that require posting of the notice. Certain
types of contracts, including collective bargaining agreements and contracts
for less than $100,000 are exempt. Subcontracts for less than $10,000 are also
exempt.
Employers can obtain a copy of the poster at: http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster2page_Final.pdf.
HIV Positive May Qualify as a Disability Under the ADAAA
In one of the first cases to interpret the Americans with
Disabilities Act Amendments Act (ADAAA), the Northern District of Illinois
determined that being HIV positive may qualify as a disability as defined in
the newly enacted ADAAA. In Horgan v. Simmons, Kenneth Horgan, a general
manager of Morgan Services, Inc., a uniform rental company, was terminated one
day after revealing that he was HIV positive to Timothy Simmons, Horgan's
direct supervisor and the president of the company. Horgan alleged that during
a "social visit" with Simmons, Simmons demanded to know if there was "something
medical going on" with Horgan. Although he stated that there was nothing that
affected his ability to work, after repeated questioning Horgan ultimately felt
compelled to disclose that he tested HIV positive. Following this disclosure,
Simmons ended the meeting and told Horgan that he "needed to recover" and
should "go on vacation." The following day, Horgan received an email indicating
that "effective immediately" he was no longer employed at Morgan Services, Inc.
In Horgan's subsequent wrongful termination suit against
Simmons and Morgan Services, Inc., Horgan alleged that being HIV positive
qualified as a disability under the ADAAA and that Simmons' questions regarding
Horgan's health constituted an impermissible medical inquiry in violation of
the ADAAA. Although the defendants conceded that being HIV positive constitutes
a physical impairment, they sought to have the case dismissed for failure to
state a claim. The defendants argued that having HIV is not a disability under
the ADAAA because there is "no limitation of a major life activity," as
required by law in order to give rise to a disability. The court soundly
rejected this argument, citing new language in the ADAAA that indicates that
major life activities include the operation of "major bodily functions," which
includes "functions of the immune system." The court further cited a provision
that states "an impairment that is episodic or in remission is a disability if
it would substantially limit a major life activity when active." Thus, the
court concluded that under the amended ADA, HIV positive status may constitute
a disability and therefore Horgan had met his burden of stating a claim upon
which relief could be granted. The court further supported its position by
pointing to the Equal Employment Opportunity Commission's proposed regulations
to implement the ADAAA, which list HIV as "an impairment that will consistently
meet the definition of disability." Once it determined that HIV may qualify as
a disability under the amended ADA, the court also went on to determine that
Simmons' questioning may constitute an impermissible inquiry as to whether
Horgan had a disability. Ultimately, the court determined that the case could
proceed to trial on the merits because the defendant raised valid claims for
wrongful termination based on a disability and impermissible inquiry about a
disability.
This case makes clear that the ADAAA greatly expanded the
definition of a disability. Accordingly, employers should take caution in
inquiring about employees' medical information and should refrain from making
personnel decisions based on medical information.
W. Va. Court Refuses to Extend Public Policy Exception to
At-Will Employment
The Supreme Court of West Virginia recently held that
reporting an employee's potentially criminal conduct to an employer is not a
public policy exception to the at-will employment doctrine. In Swears v.
R.M. Roach & Sons, Inc., Barry Swears, the controller of R.M. Roach
& Sons, Inc. (R.M. Roach), sued his former employer for wrongful discharge.
Swears alleged that he was terminated in retaliation for reporting to other
shareholders that Steven Roach, one of the three principals and primary
shareholders of R.M. Roach, was misallocating company resources to another
business wholly owned by Steven Roach. R.M. Roach alleged that it terminated
Swears because of "insubordination and general hostility when issues were
raised regarding his recording of and payment for accrued compensation time."
At trial both sides conceded that because Swears was an at-will
employee, R.M. Roach could terminate him with or without cause at any time.
Nevertheless, Swears argued that his termination was wrongful because the
communication of possible criminal conduct to a company principal falls within
the substantial public policy exception to the at-will employment doctrine, and
therefore, his discharge was against public policy. The trial court determined
that there was no violation of public policy and that the termination was
lawful. This holding was affirmed by the West Virginia Supreme Court on May 5,
2010. The
West Virginia Supreme Court stated that public policy for the purposes of
determining whether a retaliatory discharge has occurred must come from
"established precepts in our constitution, legislative enactments,
legislatively approved regulations, and judicial opinions." The court
determined that neither the West Virginia statute criminalizing embezzlement
nor the statute criminalizing larceny "express[ed] a public policy component
such that the statutes may form the basis for a possible violation of a
substantial public policy." The court determined that the allegations did not
involve "anything that may be injurious to the public good," but rather only
involved the fiscal interests of a private corporation. Therefore R.M. Roach
did not violate a substantial public policy in terminating Swears, and
accordingly, there was no exception to the at-will employment doctrine.
Changing an Employee's Shift to Allow for a Daytime
Commute May Be Reasonable Accommodation
The United States Court of Appeals for the Third Circuit
recently held that under certain circumstances, the Americans with Disabilities
Act (ADA) and the Pennsylvania Human Relations Act (PHRA) may obligate an
employer to reasonably accommodate an employee's disability-related difficulties
in getting to work. In Colwell v. Rite Aid Corp., Jeanette Colwell began
working as a cashier at Rite Aid in April of 2005. During the summer of 2005,
Colwell was diagnosed with glaucoma, a condition that soon rendered her blind
in her left eye. In September of 2005, Colwell requested that she be assigned
only day shifts because her partial blindness made it unsafe to drive at night.
Susan Chapman, Colwell's supervisor, refused to take Colwell off of night
shifts because she thought that it would be unfair to more senior employees.
Colwell resigned in October 2005, alleging that the strain on her family
created by her reliance on them for transportation to and from work was too
much to bear.
In Colwell's subsequent lawsuit against Rite Aid and
Chapman, the trial court determined that although Colwell's partial blindness
qualified as a disability as defined by the ADA, Right Aid had no obligation to
change Colwell's shift as an accommodation under the ADA because Colwell was
capable of performing her job once she got to work. The lower court concluded
that the requested accommodation was a commuting problem, unrelated to the
workplace and not covered by the ADA. On appeal, the Third Circuit reversed and
determined that Colwell's request was for a change in shifts and not assistance
with her commute. Ultimately, the Third Circuit held that because "modified
work schedules" are specifically mentioned as possible accommodations in the
ADA, Rite Aid's refusal to comply with Colwell's request could qualify as refusal
of a reasonable accommodation. The case was remanded to the trial court to
determine if such an accommodation would have been reasonable under the
circumstances.
Employers should be aware that the ADA may require an
employer make reasonable modifications to an employee's schedule to accommodate
disability-related commuting problems.
Babst, Calland, Clements and Zomnir, P.C.'s Employment
and Labor Services Group will continue to keep employers apprised of further
developments related to the above-mentioned topics. If you have any questions
or need assistance in addressing these areas of concern, please contact Sally
Griffith Cimini at (412) 394-6966 or scimini@bccz.com, or Rachel Brown Clark at
(412) 394-6690 or rclark@bccz.com.
Copyright
2011 • Babst, Calland, Clements and Zomnir, P.C. • Two Gateway Center,
Pittsburgh, PA 15222 • 412-394-5400 • Employment Bulletin is privately
distributed by Babst, Calland, Clements and Zomnir, P.C., for the general
information of its clients, friends and readers. It is not designed to be, nor
should it be considered or used as, the sole source of analyzing and resolving
legal problems. If you have, or think you may have, a legal problem or issue
relating to any of the matters discussed in the Employment Bulletin, consult
legal counsel.