August New Developments for Employers
Arbitrator did not violate public policy by requiring employer to reinstate fired workers who were given three days to supply evidence after employer received no-match letters from SSA.
A federal appeals court has issued an interesting opinion concerning the duty of an employer who receives a no-match letter from the Social Security Administration. The employer fired 33 employees who failed to respond to the ultimatum that they supply, within three days from the postmark date of the Company's letter, either a new social security card or verification that a new card had been applied for and was being processed. The employees were represented by the SEIU and the Union grieved the discharges, after which an arbitrator ruled that the Company violated its collective bargaining agreement and ordered the 33 employees to be reinstated with backpay. The Company appealed the ruling to a federal district court, which set aside the arbitrator's ruling on the theory that the ruling forced the Company to violate federal immigration law. The appeals court reversed and reinstated the arbitrator's ruling. In response to the Company's argument that the no-match letter, plus the failure of the employees to respond provided "constructive notice" to the employer that the employees were unauthorized workers, the court stated that a no-match letter alone does not supply any suspicion of illegality since a mismatch can be caused by clerical or recordkeeping error. The court noted the new safe-harbor procedures issued by the Department of Homeland Security that, if implemented, would allow 90 days for action after receipt of a no-match letter. Thus, providing employees with only 3 days to act was insufficient time, especially since the arbitrator ruled there was no "convincing information" that the employees actually were illegal. Aramark Facility Services v. Service Employees Int'l Union, 2008 U.S. App. LEXIS 12704 (9th Cir. 2008).
Requiring female crane operator to urinate off the back of the crane could be sex discrimination based on disparate impact theory holds federal court.
The plaintiff in this case was an experienced crane operator who was reassigned to a slab yard where employees typically worked 12 hours shifts without any kind of break, including use of the restroom. When plaintiff asked about bathroom breaks, she was told by her supervisors that the cranes had to run continuously and she would have to urinate off the back of the crane if there was no one to relieve her from operating the crane. The evidence showed that relief persons generally were not available and that male crane operators regularly urinated off the back of the crane, apparently an accepted practice at this worksite. In the lawsuit that followed, the court ruled that there was sufficient evidence to go to trial on the sex discrimination claim based on disparate impact. It found that the employer maintained a practice--requiring crane operators to urinate off the back of the crane instead of using the restrooms--that was neutral on its face but which produced an adverse effect on a protected group—plaintiff, the only female crane operator in the slab yard—due to "the obvious anatomical and biological differences between men and women and the unique hygienic needs of women." Thus, a trial was needed to determine if the employer's practice was justified by business necessity. The plaintiff also brought a claim based on disparate treatment, but the court granted summary judgment to the employer on that claim because it had offered her other opportunities outside the slab yard that would have allowed her to continue working, thus plaintiff could not show that she had been constructively discharged. Keep in mind that even though a policy applies to both men and women, it can disparately affect one gender and, therefore, violate federal law. Johnson v. AK Steel Corp., 2008 U.S. Dist. LEXIS 41573 (S.D. Ohio 2008).
Reminder: The federal minimum wage increased to $6.55 as of July 24, 2008 as part of the three step increase approved last year. The Florida minimum wage currently stands at $6.79 per hour