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“The life of the law has not been logic; it has been experience.”

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McKenna Employment Bulletin – January 2015

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  • TRIBAL HIRING PREFERENCE IS NOT DISCRIMINATION WHEN BASED ON POLITICAL CLASSIFICATION
  • APPLICANTS HAVE NO STANDING TO SUE UNDER TWO FEDERAL WHISTLEBLOWING ACTS
  • VOLUNTEER NUNS HAD NO STANDING TO SUE
  • NO COMPARATIVES AND VIOLATIONS OF COMPANY POLICY STOPS A RETALIATION CLAIM
  • NATIONAL LABOR RELATIONS BOARD SAYS EMPLOYEES CAN USE WORKPLACE EMAIL SYSTEMS FOR UNION ACTIVITY
  • ARRIVING LATE FOR WORK AND FALSIFYING DOCUMENTS STOPS AN ADA CLAIM

 

TRIBAL HIRING PREFERENCE IS NOT DISCRIMINATION WHEN BASED ON POLITICAL CLASSIFICATION

A tribal hiring preference in a mining company's leases with the Navajo Nation to mine coal on reservation land did not constitute national origin discrimination under Title VII of the Civil Rights Act of 1964. EEOC v. Peabody Western Coal Co., 2014 U.S. App. LEXIS 21944, 1 (9th Cir. Ariz. Nov. 19, 2014). The EEOC argued that Title VII prohibits hiring preferences based on tribal affiliation, which it contended was a form of impermissible national origin discrimination. The question was one of first impression; however, the court had previously held that that differential treatment in employment based on tribal affiliation could give rise to a Title VII national origin discrimination claim. But outside the context of Title VII it had recognized that where differential treatment serves to fulfill the federal government's special trust obligation to the tribes as quasi-sovereign political entities, tribal preferences are permissible based on political classifications. The court reasoned that the hiring preference was a political classification rather than a classification based on national origin and Title VII did not prohibit differential treatment based on the political classification of tribal affiliation.
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APPLICANTS HAVE NO STANDING TO SUE UNDER TWO FEDERAL WHISTLEBLOWING ACTS

The Sixth Circuit held that an employment applicant had no standing to claim retaliation for whistleblowing under the Energy Reorganization Act, 42 U.S.C.S. § 5851, and the False Claims Act, 31 U.S.C.S. § 3730(h)(1), because those statutes were limited to employees, and he was not a common-law employee. Boegh v. EnergySolutions, Inc., 2014 U.S. App. LEXIS 21810, 31, 2014 FED App. 0283P (6th Cir.), 20 (6th Cir. Ky. 2014). Plaintiff applied for a job with EnergySolutions. He alleged that the prospective employer did not hire him because he engaged in protected whistleblower activity at a prior job. The district court held that Plaintiff lacked statutory standing as an applicant—not employee—and granted summary judgment in favor of EnergySolutions. In a case of first impression, the Sixth Circuit held that a non-employee had no standing to sue under either federal act for retaliation.
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VOLUNTEER NUNS HAD NO STANDING TO SUE

Two long term disaster relief volunteers for community organizations involved in emergencies were not covered by Title VII of the Civil Rights Act of 1964 because there was no evidence establishing they were employees. Marie v. Am. Red Cros, 2014 U.S. App. LEXIS 21620, 1, 2014 FED App. 0280P (6th Cir.), 2 (6th Cir. Ohio 2014). Sister Michael Marie and Sister Mary Cabrini were disaster relief volunteers for the American Red Cross for an extended period of time. But, there was no evidence presented that they received compensation, obtained substantial benefits, completed employment-related tax documentation, were restricted in their schedule or activities, or were generally under the control of either organization through any of the other incidents of an agency relationship. The Red Cross later terminated their volunteer status and the nuns sued. The Sixth Circuit affirmed the district court’s grant of judgment in favor of the Red Cross. The Court held that their volunteer relationship did not fairly approximate employment and was not covered by Title VII.
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NO COMPARATIVES AND VIOLATIONS OF COMPANY POLICY STOPS A RETALIATION CLAIM

In Reid v. Neighborhood Assistance Corp. of America, No. 13-1768, April 1, 2014, 7th Circuit, the plaintiffs alleged retaliation because the discharge of the two employees came three and eleven days after they complained about the employer’s wage and commission splitting practices. The court held this did not give rise to a reasonable inference of retaliation to support the claims of retaliation under Illinois law. The employees had made occasional complaints for six months and there was no evidence that the complaints had escalated. The terminations were also immediately preceded by an intervening event, unrelated to the complaints, when an executive unfamiliar with the employees or their complaints discovered pervasive violations of the employer’s “paperless” policy. Additionally, almost everyone in the same office complained about the same issues. Finally, there was no evidence that the co-worker terminated with the two plaintiffs made similar complaints.
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NATIONAL LABOR RELATIONS BOARD SAYS EMPLOYEES CAN USE WORKPLACE EMAIL SYSTEMS FOR UNION ACTIVITY

In Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014), the NLRB ruled there is a presumption that employees have a right to use their “employer’s” email system to engage in communications relating to concerted activity protected by Section 7 of the National Labor Relations Act to include union organizing even during nonworking time. The Board ruled that an employer may rebut the presumption by demonstrating a particularized showing of special circumstances regarding the employer’s need to maintain production and discipline. The Board stated that these exceptions will be “rare.” The NLRB found that employers are still free to implement and enforce uniform and consistent controls, “such as prohibiting large attachments or audio/video segments, if the employer can demonstrate they would interfere with the email system’s efficient functioning.” Interestingly, the Purple Communications case did not result from an allegation that a work rule was used to discipline an employee. Instead, the case originated in connection with a union’s objections to an unsuccessful election.
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ARRIVING LATE FOR WORK AND FALSIFYING DOCUMENTS STOPS AN ADA CLAIM

In Taylor-Novotny v. Health Alliance Medical Plans, Inc., Number 13-3652, November 26, 2014, 7th Circuit, the plaintiff brought a claim under the ADA, alleging that the employer terminated the plaintiff on account of her multiple sclerosis. However, the employer had concluded that the plaintiff had a history of being tardy at work and had falsified documents by inflating her number of work-related calls to customers and had failed to timely complete her projects. The court held that the plaintiff’s attendance problems precluded her from establishing that she was performing her job in an acceptable manner. The court ruled that the plaintiff also did not establish any failure to accommodate the claim because her proposed accommodation of swiping a card to register her presence at work could not satisfy the employer’s legitimate reporting requirements that were drafted to address the need for the plaintiff to explain reasons for her late arrivals or absences.
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This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Employment Law Publications



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