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Entries in Weird Employee Claims (3)

Wednesday
Mar222017

Whacky Employment Claims: Who's Whackier? Management or the Employee?

Lawyer for EmployerEmployment Defense

by Nicole Kamm

818.907.3235

 

 

As employment defense attorneys, we see many strange situations arise in the workplace.

The question is, how prepared are you as an employer to handle the wackiness that may potentially arise when your employees make bizarre requests, do odd things, or intentionally violate company rules? And what if those oddball employees happen to be your managers responding to perfectly legitimate claims…?

It's time to illustrate with another Whacky Employee Claims blog. We hope you will find the following employment situations educational, if not entertaining.

 

#5:  Milking Punctuation Errors for All They’re Worth

Seventy-five milk truck drivers in Maine may be getting a $10 million pay day. Three of those drivers filed a class action lawsuit in 2014, claiming Oakhurst Dairy failed to pay them four years of overtime wages.

The problem arose not from a miswritten company policy or employment agreement, but from a state law (known as Exemption F) identifying which employees were exempt from overtime:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of . . .”

One more comma after “packing for shipment” would have distinguished packing and distributing as separate activities. But as the law is written without the serial or “Oxford comma” as it is sometimes known, the Plaintiffs were able to argue their duties fell outside Maine’s exemption law and they were entitled to overtime pay.

A trial court focused on the spirit of the law, and awarded partial summary judgment to the employer. But an Appellate Court disagreed, stating:

Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the stand-alone activities that Exemption F covers . . . the drivers fall outside of Exemption F’s scope and thus within the protection of the Maine overtime law.

Employer Tip: You don’t have much say in how state and federal laws are written, but when something seems unclear or ambiguous, consult counsel. Additionally, be ultra-careful in how your company policies and employment agreements are written and stay apprised of frequent changes in employment laws. 

 

#4: Simply Not Suited

Jessica Zelinske was an ad accountant at Charter Communications in Minnesota. She was also very attractive, and when she won a modeling gig to pose for Playboy in a 2011 "Hot Housewives" issue, Zelinske contends she got the “o.k.” from her boss.

Zelinske alleged her supervisor assured her she would not be fired if she posed nude, but once the magazine hit sales racks, she received a “Corrective Action Report” notifying her of her immediate termination. The company informed her: "You have violated Charter's professional conduct policy by making the personal choice to pose nude in a well-known publication."

Zelinske sought $150,000 for emotional distress, compensatory damages and legal expenses.

Employer Tip: Management should be familiar with the implications of all company policies to avoid making promises to employees they can't keep. 

 

#3: The Importance of Being Earnest (in Record-Keeping)

John Sederquist and Brenda White sued employer Steven Miller for unpaid overtime. This bothered Miller immensely because a.) He was pretty sure he paid all of his workers all monies owed on time, and b.) He couldn’t remember ever hiring White. So he did some digging.

Some of his other employees knew White, but no one ever remembered hiring her or actually working with her. But she did appear on his payroll for several months a few years before she jointly filed the lawsuit. For those several months, she was paid over $21,000 for work she never did. Suing for unpaid overtime was just salt in the wage and hour wound.

As it turned out, White and Sederquist were romantically involved. At the time of White’s supposed employment, a coordinator who is currently serving 20 years’ probation for thievery was handling Miller’s payroll. Miller decided to litigate, White cracked under pressure during deposition, and both sides dropped the lawsuit.

Employer Tip: If possible, take steps to enforce some checks and balances when it comes to handling payroll. While litigation can be costly, pursuing a case all the way is sometimes the way to go. 

 

#2: "I Dreamed a Dream" (of not being harassed for my weight)

Laura Ziv filed a $6 million lawsuit against her boss and perfumer employer, alleging verbal assaults regarding her looks, and in particular, her weight. Ziv claims her supervisor compared her to Britain's Got Talent star Susan Boyle, and sometimes called her "Fatty" in front of coworkers. 

Additionally, Ziv claims her supervisor wanted her to develop a competing perfume brand with him, while on company time. When she refused a second time, her supervisor removed her from the company's biggest account and took away a promised bonus. Ziv took a medical leave for high blood pressure and was threatened with termination. She claimed she suffered a brain hemorrhage due to stress.

Employer Tip: Comments regarding an employee’s weight or appearance are generally inappropriate, and could potentially lead to hostile work environment claims. Ensure entire staff knows they may report such incidents to people other than their direct supervisors, and that inappropriate remarks will not be tolerated. 

 

#1: It's a Tough Sell

Think you've heard the last of the Wells Fargo fake accounts scandal? Think again. A class action lawsuit by former employees alleges Wells Fargo fired them for ethical behavior – i.e., for refusing to meet sales quotas by opening bogus additional accounts for bank customers.

Alexander Polonsky and Brian Zaghi represent a class of Wells Fargo current and former employees over the past ten years, who may have been terminated, demoted, or retaliated against for not meeting their sales quotas. They allege employees are pressured into coercing family members and friends to open accounts to meet quotas, and were required to work "beyond a typical work schedule" without compensation – or they were threatened with demotion and termination. Plaintiffs seek $2.6 billion, "and possibly more."

Employer Tip: It is important to “walk the walk.” Comply with the law, and don't encourage or incentivize management or employees to act in violation of the law.

 

Nicole Kamm is a Shareholder in our Employment Practice Group

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Tuesday
Jul212015

Wacky Employee Claims: What Employers Can Learn From Outlandish Situations

Lawyer for EmployerWage and Hour Defense

 

 

by Nicole Kamm
818.907.3235

 

Think you've heard every cautionary workplace tale? Believe it or not, you probably haven't – the real question is, how prepared are you to handle wildly unusual complaints, extreme accommodation requests, and highly awkward situations?

We compiled some of the most interesting recent, real-life scenarios below. Sometimes, the employer acted reasonably, and in other situations, failed miserably. But each case serves as a reminder to employers: When making employment decisions, proceed with caution and advice from counsel. 

 

#4. Religious Discrimination Reeks

Religious discriminationThe Equal Employment Opportunity Commission (EEOC) filed suit against a New York company that forced employees to participate in a religion called "Onionhead." Employees were made to wear Onionhead buttons, dim the lights, join prayer groups and participate in other Onionhead-related activities. Employee resistance was futile, and in three cases led to humiliating treatment and eventual termination.

Employers: Avoid imposing your religious (or non-religious) beliefs on your employees. 

 

#3. Displeasing Prosthetics

An employee who worked for a snack food maker in Pennsylvania was considering gender reassignment surgery. She told a few coworkers about her potential surgery, and also confided that she was wearing a prosthetic penis at work to help her make a decision. The prosthetic was not visible, but one of her coworkers informed management, and the employee was soon fired.

The employee filed a federal civil rights complaint seeking back pay, compensation for suffering and humiliation, and punitive damages.  She claimed a male coworker who underwent hormone treatments and cross-dressed was treated more fairly, and her complaint alleged disparate and discriminatory treatment for being a female, and for being a female who identified as male.

Employers: The EEOC has determined that discrimination based on gender identity is sex discrimination under Title VII of the Civil Rights Act. California also makes it unlawful to discriminate based on gender identity or expression, under the Fair Employment and Housing Act. 

 

#2. Quid Pro Quo Grooming

An employee claimed that her supervisor made several sexual advances to her, and became "biased and angry" when the employee rebuffed those advances. She complained to her supervisor’s supervisor– but during this period the employee herself was written up several times for tardiness and inappropriate dress. Management decided to implement a work performance improvement plan for the employee, and the employee claimed no further discussions regarding her supervisor’s inappropriate behavior took place with upper management.

Then this happened: The supervisor called the employee to his office – the employee assumed it was to have a performance evaluation discussion. However, the supervisor asked the employee to extract an ingrown hair from his chin.  The employee refused. The supervisor then informed the employee that he could have her fired.

Shortly after this incident, the supervisor was instructed to terminate the employee, citing work performance issues observed by members of management.

The employee alleged age discrimination and sexual harassment in her claim brought to a federal court. The district court found that the ingrown hair request was not severe enough to be considered sexual harassment, though an Appellate court disagreed. The case was remanded back to district court.

Employers: Asking employees to perform personal grooming tasks is not appropriate; termination decisions should be based on legitimate business reasons and thoroughly documented. 

 

#1. Popping Positive for GINA Violations

This employer may have flushed over $2M down the sewer.

When management at a grocer's warehouse discovered that someone was defecating in the aisles and on top of canned goods, they immediately became concerned of potential health risks and took drastic action. The company ordered certain employees to submit to cheek swabs so they could identify the DNA of what a district court in Georgia called "The Devious Defecator."

Two employees submitted to the DNA test and were found to not have matching DNA of the defecator.

The employees later filed suit for violations of GINA, the Genetic Information Nondiscrimination Act. The employer contended the cheek swab testing did not provide medical information about the employees, and filed a motion for summary judgment. After losing on summary judgment, a jury awarded the plaintiffs $2.25M ($1.75M in punitive damages).

Employers: GINA clearly states it is "illegal for an employer to request, require, or purchase genetic information" of an employee, even if obtained for arguably reasonable business reasons.

 

What are the lessons learned from the bizarre claims made above? First, employers must be aware of the myriad laws governing the workplace. But more importantly, when these odd situations do come up, know to spot the issue, take proper action, and consult counsel with any questions. You can read more strange employee situations in a previous blog: Wacky Employee Claims.

 

Nicole Kamm is an Employment Defense Attorney. Contact her via email: nkamm@lewitthackman.com or directly by phone: 818-907-3235.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Jul152013

Wacky Employee Claims: Reasonable Accommodations for Unreasonable Requests?

Lawyer for EmployerEmployment Defense

 

by Nicole Kamm
818.907.3235

 

 

As an employment defense attorney, I often think I’ve heard it all: every conceivable employee complaint, late-to-work excuse, and “reasonable” accommodation request. Still, from time to time, I come across an employee claim that surprises even me.

Here are some recent ones:

Spa Sued Over Brazilian Wax Training: A woman hired at a spa as a “wax specialist” alleged her recent termination was discriminatory. As part of her training, her employer required her to receive a Brazilian wax – in front of her female colleagues. The employee refused and complained, and claims she was fired in retaliation. 

Hair Color Discrimination: Earlier this year, the NYPD issued an anti-bias message alert warning sergeants and lieutenants about harassment or discrimination against red-haired officers. This alert went mostly unsupported by those who did not feel redheads were a particularly disadvantaged group. However, employers should note, to the extent hair color is associated with race, ethnicity or national origin, it could give rise to a claim for employment discrimination.  

Fired for Irresistable Attraction?: A female employee sued for wrongful termination after her employer fired her based on his concerns that if she continued to work for him, he would have sex with her and it would ruin his marriage. The lower court ruled this did not violate the law. The employee was not fired because she was a woman, but because of her “irresistible attraction.”  The Iowa Supreme Court recently confirmed the lower court decision.  

Vegan’s Religious Accommodation Case to Proceed: A former hospital employee alleged she was fired for refusing to take a flu shot, which is derived from eggs, claiming such discharge violated her religious beliefs because she is a vegan. The court refused to dismiss the case, finding “it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.”

Disabled by Insomnia: A court recently denied an employee’s claim that her insomnia, which prevented her from sleeping more than four hours per night, was an ADA-protected condition. While insomnia may be a disability under the ADA if it substantially limits a major life activity (which includes sleeping), in this case the court found the employee was terminated because she failed to properly keep time sheets and was unable to “communicate accurately and truthfully.” 

Can Height Be a Disability?: An Arizona Department of Agriculture worker recently filed a claim for disability discrimination claiming she was forced into a field work position in which she would not be able to drive vehicles because she was too short (4’10”). The Court held, in some contexts, her short stature could “substantially limit one or more major life activities” (i.e., rise to the level of a disability). 

Time Off to Head-Bang: Though this one comes from overseas (Sweden), it is a good one. A 42-year old dishwasher, who claimed he was addicted to heavy metal, requested his employer reasonably accommodate time off to attend concerts and listen to music while working. 

 

According to EEOC: Disability claims have risen over 66% since 2000; while religious discrimination claims, though still relatively few in number, have nearly doubled.

The bottom line is this: Employers should be prepared for anything. Handling employee complaints and accommodation requests is certainly not an easy job. But staying on top of the ever-changing employment laws and consulting employment counsel when needed will go far to minimize the risk of claims and litigation. 

 

Nicole Kamm is an Employer Defense Attorney at our firm. Contact her via email: nkamm@lewitthackman.com for more information.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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