Babst Calland Employment Bulletin – June 2010

Babst Calland Employment Bulletin – June 2010



Keeping You Up to Date with the Latest Employment and Labor News

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:

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, or Rachel Brown Clark at (412) 394-6690 or

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.


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