HOT TOPICS IN THE WORKPLACE
DallasHR Legal Round Up
September 9, 2014 Dallas, Texas
Terrence S. Welch
Brown & Hofmeister, L.L.P. 740 E. Campbell Road, Suite 800
Richardson, Texas 75081 www.bhlaw.net “The Times They Are A-changin’.”
— Bob Dylan
There have been significant decisions by the United States Supreme Court and other courts during the last several years that have rocked the workplace, resulting in discarding past notions of who is, or is not, married and how same-sex couples should be treated under the law by employers. Similarly, the federal circuit courts have wrestled with the concept of gender discrimination, including the rights of both heterosexual and homosexual plaintiffs to bring suit. In a different vein, and not surprisingly, there have been a multitude of cases that address more mundane issues, from overtime compensation under the Fair Labor Standards Act (FLSA) to obesity being considered a disability and the ongoing battle about what constitutes a reasonable accommodation under the ADA. There also are some unique Texas-only type of FLSA issues included for your consideration. The purpose of this paper is to provide a broad overview of recent cases, including “hot topics” in employment law.
I. Same-Sex Marriage and the Death of DOMA
A. United States Supreme Court Cases
The two blockbuster United States Supreme Court cases on the topic of same sex marriage during the 2013 term of the Court were United States v. Windsor,1 and Hollingsworth v. Perry.2 While not providing a detailed analysis of both of the cases, a brief review is nonetheless helpful.
Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Ontario, Canada in 2007. Ms. Spyer died in 2009, leaving her entire estate to Ms. Windsor. Ms. Windsor sought to claim the federal estate tax exemption for surviving spouses; however, she was barred from doing so by Section 3 of the
Defense of Marriage Act (DOMA) (codified at 1 U.S.C. § 7),3 which provided that the 570 U.S. ___, 133 S.Ct. 2675 (2013).
570 U.S. ___, 133 S.Ct. 2652 (2013).
Section 3 of DOMA provides as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
1 U.S.C. § 7.
1 term “spouse” only applies to a marriage between a man and woman. The Internal
Revenue Service (IRS) found that the exemption did not apply to same-sex marriages, denied Ms. Windsor’s claim, and compelled her to pay $363,053 in estate taxes.
On November 9, 2010, a lawsuit was filed against the United States government in the United States District Court for the Southern District of New York, where Ms.
Windsor sought a refund because DOMA singled out legally married same-sex couples for “differential treatment compared to other similarly situated couples without justification.” On February 23, 2011, U.S. Attorney General Eric Holder issued a statement from the Obama administration that agreed with the plaintiff’s position that DOMA violated the United States Constitution and said he would no longer defend the law in court. The Bipartisan Legal Advisory Group (BLAG) of the House of Representatives continued the defense of the law. On June 6, 2012, U.S. District Judge
Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due process guarantees of the Fifth Amendment and ordered the federal government to issue the tax refund, including interest.4 The Second Circuit Court of Appeals affirmed the decision on October 18, 2012.5
BLAG and the U.S. Department of Justice (DOJ), as a nominal defendant, appealed the decision to the U.S. Supreme Court, which granted a writ of certiorari in
December 2012. On March 27, 2013, the Supreme Court heard oral arguments and on June 26, 2013, issued a 5–4 decision declaring Section 3 of DOMA to be unconstitutional. The Court first held that although DOJ decided not to defend DOMA, the government retained a stake sufficient to support Article III jurisdiction because the unpaid refund is “a real and immediate economic injury.”6 Thus, there was a sufficient basis for the court to entertain jurisdiction over the case.7 DOMA was then determined to be unconstitutional as a deprivation of the equal liberty of persons under the Fifth Amendment. The Court noted that although the regulation of marriage has traditionally been within the authority of the states,8 DOMA, applicable to more than 1,000 federal
833 F.Supp.2d 394 (S.D.N.Y. 2012).
699 F.3d 169 (2d Cir. 2012). Windsor, 133 S.Ct. at 2686.
Interestingly, Justice Kennedy, writing for the majority, addressed the political nature of this case. “The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons.
These circumstances support the Court’s decision to proceed to the merits.” Id. at
2689.
Id. at 2690-92.
2 statues and numerous federal regulations—such as Social Security, housing, taxes, criminal sanctions, copyright and veterans’ benefits—was directed to a class of persons that the laws of New York and 11 other states had sought to protect.9 Justice Kennedy wrote that DOMA is inconsistent with the principle that marriage laws may vary from state to state, but are consistent within each state. “The principal purpose [of DOMA] is to impose inequality . . . to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”10 New York’s decision was a proper exercise of its sovereign authority and by seeking to injure the class New York sought to protect, DOMA violated basic due process and equal protection principles applicable to the federal government. Constitutional guarantees of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of the group. DOMA’s history and text indicated a purpose and practical effect to impose a disadvantage, a separate status, and a stigma upon those entering into same-sex marriages made lawful by the states. The law deprived some couples married under the laws of their states, but not others, of rights and responsibilities, creating two contradictory marriage regimes within the same state; it diminished the stability and predictability of basic personal relations.11 Justice Kennedy concluded that
[DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth
Amendment. This opinion and its holding are confined to those lawful marriages.12
On the same day that the Windsor opinion was issued, the Court also issued a second 5–4 decision in Hollingsworth v. Perry, a case related to California's constitutional amendment initiative barring same-sex marriage. The Hollingsworth decision effectively allowed same-sex marriages in that state to resume after the Court ruled that the proponents of the initiative lacked the requisite Article III standing to appeal in federal court based on its established interpretation of the case or controversy clause.
In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Id. at 2694.
Id.
Id. at 2693.
Id. at 2695.
3 Constitution.13 Later that year, state voters then passed a ballot initiative, Proposition 8, amending the state constitution to define marriage as a union between a man and a woman.14 Same-sex couples who wished to marry filed suit in federal court, challenging
Proposition 8 as being in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.15 Not unlike the position taken by the Obama Administration in Windsor, California state officials refused to defend the law; however, the federal district court allowed the initiative’s official proponents to intervene and the court subsequently declared Proposition 8 unconstitutional and enjoined its enforcement.16 State officials declined to appeal but the intervenors opted to appeal. The Ninth Circuit certified a question about Article III standing, to which the California Supreme Court answered that the official proponents of a ballot initiative had authority to assert the state’s interest to defend the constitutionality of the initiative when public officials refuse to do so. The Ninth Circuit, relying on that answer, concluded that petitioners had standing and affirmed.17 The Supreme Court vacated and remanded, holding that the intervenors did not have the requisite Article III “case or controversy” standing to appeal. While the Court determined the intervenors had standing to initiate this case against the California officials responsible for enforcing Proposition 8, once the federal district court issued its order, they no longer had any injury to redress—they had won—and state officials chose not to appeal.18 The intervenors had not been ordered to do or refrain from doing anything and their “generalized grievance” was insufficient to confer standing. “Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.”19
B. So How Is The Federal Government Responding?
Since late June, the Federal Government has been in the process of responding to Windsor. Not surprisingly, federal regulations are being revised accordingly. Federal guidelines have been amended as follows:
● Federal Taxes. On August 29, 2013, in Revenue Ruling 2013-17, the
Department of the Treasury and the Internal Revenue Service (IRS) ruled that same- In re Marriage Cases, 43 Cal.4th 757; 76 Cal.Reptr.3d 683; 183 P.3d 384.
Hollingsworth, 133 S.Ct. at 2659.
Id. at 2660.
Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010).
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).
Hollingsworth, 133 S.Ct. at 2662.
Id.
4 USCIS has done exactly that, and sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage. Under Revenue Ruling 2013-17, same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.
Any same-sex marriage legally entered into in one of the 50 states, the District of
Columbia, a U.S. territory or a foreign country will be covered by the ruling; however, the ruling does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law. Same-sex marriage partners may file amended tax returns and choose to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations. Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011 and 2012. Some taxpayers may have special circumstances, such as signing an agreement with the IRS to keep the statute of limitations open, that permit them to file refund claims for tax years 2009 and earlier. Additionally, employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.20
● Immigration. On July 1, 2013, Secretary of Homeland Security Janet Napolitano issued the following statement:
After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.21 visas and green cards now extend to same-sex
spouses. An FAQ issued by USCIS provides the following information about immigration and
Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law is found at http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions- for-Same-Sex-Married-Couples.
See http://www.dhs.gov/news/2013/07/01/statement-secretary-homeland-security-janet- napolitano-implementation-supreme-court.
5 same-sex marriages: U.S. citizens or lawful permanent residents in a same-sex marriage can now sponsor their spouses for a family-based immigrant visa; U.S. citizens who are engaged to be married to a foreign national of the same sex can file a fiancé or fiancée petition; and same-sex couples who were married in a U.S. state or a foreign country that recognizes same-sex marriage may file an immigrant visa petition for the spouse, because as a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as
USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, it will apply all relevant laws to determine the validity of a same-sex marriage. The domicile state’s laws and policies on same-sex marriages will not bear on whether
USCIS will recognize a marriage as valid.22
Family and Medical Leave Act. The U.S. Department of Labor issued its Guidance (Fact Sheet #28F)23 in mid-August confirming that same-sex married couples are entitled to the same benefits of the Family and Medical Leave Act (FMLA) as heterosexual married couples. The Guidance indicates that FMLA spousal leave entitlements extend to same-sex spouses that reside in states that recognize same-sex marriages. DOL now defines “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.” An employer located in a state that does not recognize same-sex marriage does not have to grant FMLA leave to a same-sex married employee to care for that employee’s same-sex spouse if the same-sex married couple does not reside in a state that recognizes same-sex marriage.
There is nothing in the DOL Guidance, however, that precludes an employer from having its own internal leave policy allowing for leave for a same-sex spouse. Until there is further judicial review, there will be disparate treatment of same sex married couples for FMLA leave purposes that will turn on the place of residence—DOL’s interpretation is unique because it focuses solely on the residence of the employee and not where the employer is located.
Other Federal Regulations. Below is a summary of other regulations from the federal government about same-sex marriage: Employees may cover their same-sex spouses under health care plans provided by their employers without having to pay taxes on the value of such coverage.
Same-sex spouses have full rights to continuation health care coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) in
See USCIS Frequently Asked Questions (FAQ) about Implementation of the Supreme Court Ruling on the Defense of Marriage Act (updated on July 1, 2013), and found at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/? vgnextoid=fbfe0b8497b9f310VgnVCM100000082ca60aRCRD
See http://www.dol.gov/whd/regs/compliance/whdfs28a.htm.
6 the event of a participant’s termination of employment, divorce or legal separation.
Employees may receive tax-free reimbursement under flexible spending accounts, health reimbursement arrangements and health savings accounts for qualified medical expenses incurred by same-sex spouses.
Same-sex spouses are entitled to the same special enrollment right under the Health Insurance Portability and Accountability Act (HIPAA) as opposite-sex spouses.
Same-sex spouses are entitled to a 50 percent qualified joint and survivor annuity (QJSA) or a 75 percent qualified optional survivor annuity (QOSA) under a participant’s pension plan, and the spouse’s consent is required to pay pension benefits in any other form.
Same-sex spouses are entitled to a 50 percent qualified preretirement survivor annuity (QPSA) where the participant dies prior to commencing pension benefits, unless the spouse consents to waive the benefit.
Same-sex spouses are entitled to receive 100 percent of a participant’s Section 401(k) account balance at death, unless the spouse consents to another beneficiary.
Same-sex spouses are clearly eligible to receive a qualified domestic relations order (QDRO) apportioning pension benefits upon divorce.
Same-sex spouses may roll over plan distributions to their own individual retirement account or employer plan, rather than only being able to roll over to an “inherited IRA” (which is subject to more restrictions).24
II. Gender Stereotyping An issue of increasing relevance in the workplace is gender stereotyping, and more specifically, are actions brought by gay employees under Title VII viable or are they “lost causes”? Not surprisingly, federal courts have approached this issue somewhat differently. In essence, a “straight” male brining a claim may have more success than a gay man. Three recent federal appellate cases highlight this dichotomy.
As most know, Title VII prohibits discrimination based on gender stereotyping as a form of sex discrimination; however, no federal statute prohibits discrimination based on sexual orientation alone. Distinguishing between gender stereotyping and sexual
24 See http://about.bloomberglaw.com/practitioner-contributions/same-sex-marriage- and-erisa-in-the-windsor-era/.
7 orientation is problematic, though, when the plaintiff is gay or lesbian. While no federal court has opined that sexual orientation is protected under Title VII, some courts have looked upon gender stereotyping claims brought by gay plaintiffs with skepticism. In fact, the federal courts have cautiously guarded against allowing gay or lesbian plaintiffs to use gender stereotyping claims as a means for litigating sexual orientation discrimination claims “through the back door.”25
The Fifth Circuit’s recent en banc decision in Equal Employment Opportunity
Commission v. Boh Brothers Construction Co.,26 highlights the issue for a “straight” male plaintiff. The plaintiff, an iron worker, alleged that his supervisor called him various homophobic names, which are spelled out in the opinion and will not be repeated here.
The plaintiff also alleged that when he performed a task that required him to bend over, his supervisor would approach him from behind and simulate having sex with him.
Although the supervisor viewed the plaintiff’s conduct as “kind of gay” and “feminine, he did not perceive the plaintiff to be gay. The EEOC alleged that the supervisor harassed the plaintiff because he “was not a manly enough man” in the supervisor’s eyes.27
The Fifth Circuit held that the plaintiff had a viable cause of action for gender stereotyping, based upon the Supreme Court’s 1989 Price Waterhouse decision.28 The
Fifth Circuit wrote that the supervisor’s use of sex-based epithets as well as the supervisor’s simulation of sexual acts on the plaintiff suggested that the supervisor viewed the plaintiff as falling outside of a “manly man stereotype.” A reasonable jury could therefore find that the plaintiff suffered harassment because of his sex.29
In Vickers v. Fairfield Medical Center,30 the Sixth Circuit Court of Appeals dismissed a similar gender stereotyping claim brought by a gay man. Similar to the plaintiff in Boh Brothers, the Vickers plaintiff alleged that he had been called derogatory homophobic slurs by his co-workers and had been subject to simulated sex acts; however, unlike Boh Brothers, the plaintiff’s co-workers perceived him to be gay because of his friendship with a gay physician. In fact, the plaintiff alleged that his co- See Stephen Trimboli, The Gender Stereotyping Paradox: Are Actions Brought by Gay Employees Under Title VII Viable Claims or Lost Causes?, The Federal Lawyer
(Sept. 2014) at 20 (hereafter referred to as “Trimboli”).
731 F.3d 444 (5th Cir. 2013).
Trimboli at 20 (citations omitted).
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Trimboli at 20.
Boh Brothers, 731 F.3d at457; Trimboli at 20.
453 F.3d 757 (6th Cir. 2006).
8 workers had subject him to a slew of homophobic epithets and lewd sexual gestures because of his perceived (and indeed, actual) sexual orientation. The Vickers plaintiff alleged that he was a victim of gender stereotyping because his harassers allegedly objected to “those aspects of homosexual behavior in which a male participant assumes
. . . traditionally female or less masculine roles.”31
The Sixth Circuit rejected the Vickers plaintiff’s gender stereotyping claim. According to the Sixth Circuit, recognizing the plaintiff’s theory of the case would effectively amend Title VII to allow sexual claims based on sexual orientation. “[I]n all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory . . . as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.”32 The Sixth Circuit also found that the plaintiff had failed to show that his gender nonconformance was demonstrable in the workplace through his appearance or behavior. The plaintiff had “made no argument that his appearance or mannerisms on the job were perceived as gender nonconforming in some way and provided the basis for the harassment he experienced.”33 The Sixth Circuit cited the Second Circuit’s decision in Dawson v. Bumble & Bumble,34 a case involving a gay female employee, for the proposition that a “gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.”
In Prowel v. Wise Business Forms, Inc.,35 the Third Circuit attempted to strike a more balanced approach to the issue. The plaintiff, a gay machine operator, alleged that he was called “princess” and other homophobic slurs, similar to the plaintiffs in Boh
Brothers and Vickers. The plaintiff also alleged that he was the victim of lewd sexual jokes and gestures. In allowing the Prowel plaintiff’s claim to proceed, the Third Circuit reasoned that a gay plaintiff could be discriminated against both for failing to conform to gender stereotypes and for his sexual orientation, but that this dual nature should not bar the plaintiff from proceeding with a sex discrimination claim under Title VII.36
In holding that the Prowel plaintiff could proceed with a gender stereotyping claim under Title VII—despite the fact that his harassment involved homophobic slurs and anti-gay sentiment—the Third Circuit reasoned: “It is possible that the harassment Id. at 763; Trimboli at 21.
Id. at 764; Trimboli at 21.
Id. at 763; Trimboli at 21.
398 F.3d 211, 218 (2d Cir. 2005); Trimboli at 21.
579 F.3d 285 (3d Cir. 2009).
Trimboli at 21.
9 [plaintiff] allege[d] was because of his sexual orientation, not his effeminacy.
Nevertheless, this does not vitiate the possibility that [plaintiff] was also harassed for his failure to conform to gender stereotypes.”37 Noting that the alleged harassers had made reference to his clothing, the way he crossed his legs and filed his nails, and the way he walked, the court observed that such remarks constituted “sufficient evidence of gender stereotyping harassment—namely, [plaintiff] was harassed because he did not conform to [his co-workers’] vision of how a man should look, speak, and act—rather than harassment based solely on his sexual orientation.”38
Notably, the Third Circuit reasoned that “there is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.39 Accordingly, the Third Circuit found that the plaintiff had a viable gender stereotyping claim despite the anti-gay nature of much of the harassment, and despite his sexual orientation.40
Unlike the plaintiffs in Boh Brothers and Vickers, the Prowel plaintiff presented evidence suggesting that his workplace behavior differed from that of his male co-workers. The Prowel plaintiff claimed that he had a high voice and did not curse; was well groomed and wore “dressy” clothes, carried himself in an effeminate manner; and talked about art, music and interior design.41 The plaintiff claimed that his co-workers reacted negatively to his demeanor and appearance, taunted him with anti- gay epithets, left lewd drawings in the workplace, made threatening statements such as “they should shoot all fa-s,” and accused him of having AIDS and sleeping with male co-workers.42 The allegations allowed the Prowel court to identify a viable gender stereotyping claim separate and apart from a nonviable claim based solely on the plaintiff’s sexual orientation.43
Until the United States Supreme Court speaks on the issue, the gender stereotype paradox will remain. Gay and lesbian plaintiffs will face greater difficulty in pursuing sex discrimination claims based on gender stereotyping, at least in certain federal circuit courts, than will heterosexual plaintiffs, as the federal courts struggle to
Prowel, 579 F.3d at 292. Id. at 291-92.
Id. at 292 (emphasis in original).
Trimboli at 21.
Prowel, 579 F.3d at 287.
Id. at 287-88.
Trimboli at 21.
10 distinguish actionable gender stereotyping claims from non-actionable claims based solely on sexual orientation. Consequently, employers will face a greater likelihood of incurring federal liability based on claims brought by heterosexual plaintiffs than those brought by gay and lesbian plaintiffs, as counter-intuitive as that might seem. The best defense for employers against any such claims is prevention. Harassing conduct based on gender, including homophobic language and mistreatment based on real or perceived “unmanly” or “unwomanly” behavior, should be prohibited, and allegations of such conduct should be investigated and, where appropriate, remedied appropriately.44
III. New Technology and Overtime Compensation
Under the Fair Labor Standards Act and its regulations, an employer must record and pay non-exempt employees for all hours “suffered or permitted to work,” without regard to the reason for the work. 45 Hours worked includes time spent for the employer’s benefit, as well as time an employee cannot otherwise effectively use as his or her own, even if the employee is not actively engaged in performing a task. 46 There is no such thing as “unauthorized” work; if management is aware the work is being done, the employer must record the hours and compensate the non-exempt employee accordingly.47 Nonetheless, in 1946 the United States Supreme Court created a “de minimis” exception to the general rule that non-exempt employees must be paid for all hours worked.48 Courts have noted that “[n]o rigid rule can be applied with mathematical certainty” when determining whether work time is de minimis for purposes of the Fair Labor Standards Act.49 Consequently, courts often employ a three-pronged test, considering: (1) the practical administrative difficulty of recording the additional
Trimboli at 26.
29. C.F.R. § 785.11 (“Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.”). 29 C.F.R. § 785.7.
Id.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946); see also 29 C.F.R.
§ 785.47 (“In recording working time under the [Fair Labor Standards] Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.”).
Lidow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984).
11 time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.50
The analytical and regulatory emphasis on “administrative difficulty,” “industrial realities,” and whether an employee’s working time is “practically ascertainable” in the context of the de minimis exception should serve as a signal to employers that they need to remain cognizant of the technological advances that are emerging to make it easier than ever to record hours worked. The U.S. Department of Labor even has an app to assist employees in independently tracking their hours, breaks and overtime.51
As a consequence of new technology, more cases are being filed about alleged entitlement to overtime compensation. A few representative cases follow:
Kuebel v. Black & Decker.52 The plaintiff in this putative collective action was a Black & Decker employee whose job duties included travelling to various Home
Depot stores. Black & Decker required this employee to synch his company-issued personal digital assistant (PDA) with Black & Decker’s server, which he would do several times a week by plugging it into his home computer. The employee sued for overtime compensation relating to his at-home work as well as other compensation issues. The employee admitted he never reported the overtime being claimed (and he thus submitted false timesheets) but testified he did so at his supervisor’s instruction. The court ruled the actual time spent working at home could be compensable and represented a fact issue for trial.
Allen v. City of Chicago.53 Plaintiff Chicago police sergeant brought a wage-hour collective action claiming that he and other similarly-situated employees were required to use employer-issued PDAs and other electronic communication devices to perform work outside of normal working hours without receiving compensation, including overtime compensation. The court denied the City’s motion to dismiss because “whether the amount of time plaintiff worked off the clock is greater than a de minimis amount . . . is a matter of the proof of his claim, not a matter of the sufficiency and plausibility of his complaint.” The court questioned “the ability to treat on a class basis the broad range of situations in which police personnel may ‘respond’ to messages that are sent to them on PDAs, the extent to which those responses might constitute ‘work,’ and the extent to which work might not be compensable because it is
‘de minimis.’”
Reich v. Montfort, 144 F.3d 1329, 1333-34 (10th Cir. 1998); Lidow, supra note 66.
Press Release, U.S. Department of Labor, Keeping track of wages: The US Labor Department has an app for that! (May 9, 2011).
643 F.3d 352 (2d Cir. 2011).
2011 WL 941383 (N.D. Ill. 2011).
12 ● West v. Verizon Communications, Inc.54 A personal account manager for Verizon sought overtime compensation on behalf of herself and all similarly situated meployees for work allegedly performed remotely using a company-issued BlackBerry. The court denied the collective action, but in a subsequent order, the court held that there were genuine issues of material fact whether the employee had worked the hours claimed. The difficulty for Verizon was that it had not required such employees to keep track of their work time nor did it track the hours these employees worked. Accordingly, when Verizon submitted evidence of Ms. West’s hours worked in the form of a list of the calls (incoming and outgoing) made on her BlackBerry (including the length of each call) and a list of the call log entries made by Ms. West on the Verizon website (including how many words each call log entry consisted of), Ms. West simply submitted her testimony that she did not work exclusively by BlackBerry. Considering the conflicting evidence, the court found that there was a fact issue.
Some employers have now adopted policies that explicitly require all non-exempt employees to record all of their time worked, even if it is just checking emails on their telephones. Such a policy also could prohibit employees from working “after hours,” thus prohibiting employees from checking emails on their phones. If an employee violates such a policy, the employee could be subject to disciplinary action. While this may seem harsh, with more collective actions being authorized by trial courts, large employers face ever increasing potential liability.
IV. Obesity as a Disability
In the Equal Employment Opportunity Commission’s (EEOC) original ADA regulations, the EEOC determined that “except in rare circumstances, obesity is not considered a disabling impairment.”55 Cases generally required an individual to show some different underlying medical condition that is a disability and that causes obesity as a “symptom.” After the adoption of the Americans With Disabilities Act Amendments
Act of 2008, the EEOC’s regulations still provide that “[t]he definition of the term “impairment” does not include physical characteristics such as . . . weight, . . . that are within “normal” range and are not the result of a physiological disorder.”56 Nevertheless, it is interesting to note that the EEOC may now consider obesity a disability under the ADAAA. In 2010, in a case arising prior to the ADAAA, the EEOC filed a lawsuit in
Louisiana against an employer, claiming that it had terminated an employee because of
2009 WL 2957963 (M.D. Fla. 2009).
29 C.F.R. § 1630.16 App. (§ 1630.2(j), “Substantially Limits”) (Pre-ADAAA text).
29 C.F.R. § 1630.16 App. (§ 1630.2(h), “Physical or Mental Impairment”).
13 obesity. In a somewhat surprising ruling the federal district court sided with the plaintiff, finding that severe obesity may qualify as a disability, regardless of the cause.57
Lisa Harrison was slightly over five feet in height and weighed 527 pounds when she was fired from her job in 2007 at a Louisiana drug addiction treatment center. She had been hired in 1999 and at that time, Ms. Harrison weighed more than 400 pounds.
She contended in her EEOC charge that she was “discriminated against in violation of the Americans with Disabilities Act (ADA), in that [she] was regarded as having a disability.” Ms. Harrison passed away on November 1, 2009, and the official cause of death listed on her death certificate was morbid obesity. Additionally, her death certificate listed hypertension, diabetes and congestive heart failure as other “significant conditions contributing to death.” While the court noted that Ms. Harrison was a qualified individual with a disability under the ADA, it noted that she “was severely obese, which is an impairment under the ADA [and] she was actually disabled as a result of her severe obesity because of the resulting diabetes and heart problems.”
Additionally, there was evidence that Ms. Harrison “was regarded by Defendant as being substantially limited in the major life activities of walking, being mobile, and working,” and the court noted there was “sufficient evidence that supports the notion that [Defendant] regarded her as disabled based upon her supervisor's comments.”
The key contested issue for trial was whether Ms. Harrison's disability was the cause of her termination from Family House.58 What is noteworthy about this case was that the EEOC filed suit on Harrison’s behalf and took an expansive view of obesity as a disability.
Not surprisingly, after the ADAAA’s effective date in 2009, the “regarded as” prong of a disability claim based on obesity is now an easier threshold than under pre-
ADAAA case law. In Lowe v. American Eurocopter,59 a federal district court in Mississippi held that an obese receptionist, who alleged that her weight affected her ability to walk, could proceed with her “regarded as” having a disability claim 60 because her former employer harassed her based on her use of disabled parking. She also alleged that (i) her weight affected the major life activity of walking (she was “unable to park and walk from the regular parking lot”); and (ii) her “[e]mployer was informed of this EEOC v. Resources for Human Development, 2012 WL 669435 (E.D. La. 2012).
Id.
2010 WL 5232523 (N.D. Miss. 2010).
Under the ADA, as amended, a disability is “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
14 situation [referring to her obesity and her inability to walk from the regular parking lot].”
The Court read this allegation as an attempt by the plaintiff “to show that her employer regarded her as having such a disability.” The court noted that under the ADAAA, an individual is now not required to demonstrate that the disability she is regarded as having is an actual qualified disability under the ADA or that it substantially limits a major life activity61; rather, the ADAAA requires a plaintiff to only show “that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Thus, a plaintiff now might be considered
disabled due to obesity under the ADA if an employer perceived the employee’s weight as an impairment.62
V. Is It a Reasonable Accommodation for Fern to Sit in a Plastic Lawn Chair for Half of Her Shift?
Since the focus of any disability inquiry no longer rests on the interpretation of whether an individual is disabled, but instead whether (i) employers have complied with their statutory obligations and (ii) discrimination has occurred, the safer course is to assume that all employees suffer from no disabilities and if indeed there is an impairment, assume the ADA applies and the employee qualifies for some sort of reasonable accommodation. The purpose of the ADAAA, in part, was to broaden the restrictive definitions that often had been judicially imposed, of course including the Sutton trilogy63 of Supreme Court cases. As a consequence, in the cases determined to date, few defendants have been successful. One notable exception is EEOC v. Eckerd
Corp.64
Fern Strickland began working as a cashier at Eckerd’s in 1992. In 2000, Ms. Strickland transferred to a different Eckerd’s store, where she continued to work as a cashier. Rite Aid purchased the Eckerd Corporation in June 2007, and Ms. Strickland worked as a cashier for the Rite Aid store from the date of the acquisition until she was terminated on January 29, 2009. Ms. Strickland was diagnosed with osteoarthritis in both of her knees in June 2001. Her condition made it difficult for her to walk without the assistance of a cane or
See 42 U.S.C.A. §§ 12101(1)(C), (3).
Id.
63 The three “Sutton trilogy” cases are Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
64 2012 WL 2726766 (N.D. Ga. 2012).
15 to stand for prolonged periods of time. At some point in 2001, Ms. Strickland began intermittently sitting in a chair at work to relieve pain in her knees, having knee replacement surgery in her right knee in 2006. Her knee pain nevertheless persisted and she continued to use the chair at work.
In March 2008, Larry Frisbie became the district manager of the Rite Aid store.
Several months later, Mr. Frisbie and Human Resources Manager Linda Sheffield visited the store and observed Ms. Strickland sitting in a plastic lawn chair behind the counter. Ms. Sheffield was perplexed by this observation because Rite Aid generally did not permit cashiers to sit while they were on duty and she had never seen a cashier sitting in this manner. According to Mr. Frisbie, cashiers were required to productively work on the sales floor stocking, cleaning and performing other housekeeping and general store duties when they did not have a customer at the register.
When Mr. Frisbie and Ms. Sheffield asked Ms. Strickland why she was sitting behind the counter, Ms. Strickland informed them that she had provided Rite Aid a doctor’s note concerning her need to use the chair at work. Following the store visit, Ms. Sheffield checked Ms. Strickland’s file for a doctor’s note and found one from January 2007. The note stated that Ms. Strickland “requires a stool or chair to sit in at work . . . throughout the day, and most of the day due to severe arthritic symptoms.”
After reviewing the note and speaking with Ms. Strickland, Ms. Sheffield determined that she needed more information about Ms. Strickland’s limitations as well as her work habits and ability to meet the requirements of the cashier position.
Upon further investigation, Ms. Sheffield was informed by the store manager,
Robin Jean, that Ms. Strickland had been permitted to sit intermittently and at her discretion for several years due to her arthritic symptoms; however, Ms. Sheffield did not find any evidence that Eckerd or Rite Aid had ever formally approved a sitting accommodation for Ms. Strickland. Moreover, Ms. Sheffield surmised from her interview with Ms. Jean that Ms. Strickland’s frequent sitting was causing productivity and personnel problems for the store.
Based on her preliminary inquiries, Ms. Sheffield concluded that the 2007 doctor’s note was outdated and vague concerning Ms. Strickland’s precise limitations. Accordingly, Ms. Sheffield requested an updated and more specific doctor’s note regarding Ms. Strickland’s medical restrictions. Per Ms. Sheffield’s request, Ms. Strickland provided a doctor’s note in December 2008 stating that she “requires a chair at checkout and limited to 15 minutes or less at a time due to osteoarthritis.” In an accompanying handwritten note, Ms. Strickland indicated that “Dr. Ellis’s nurse ‘Allison’” could provide more information if necessary. In addition to requesting an updated doctor’s note, Ms. Sheffield asked Rite Aid Loss Prevention Manager Gibson to review security surveillance tapes over the register to determine how much time Ms. Strickland spent sitting idly and how much time she spent working productively. By mid-January
2009, Mr. Gibson had reviewed four days of video footage from the first week of
January 2009 and he reported to Ms. Sheffield that, on those four days, Ms. Strickland was sitting down idly for about half of her shift. A loss prevention associate reviewed
16 two additional days of tape and reported similar findings.
After reviewing the updated doctor’s note and the loss prevention reports, Ms.
Sheffield determined that she and Mr. Frisbie needed to meet with Ms. Strickland to determine whether they could find an appropriate accommodation for her. They scheduled a meeting with Ms. Strickland on January 15, 2009. The stated purpose of the meeting was for Ms. Sheffield and Mr. Frisbie to engage in an interactive dialogue with Ms. Strickland so that they could better understand her restrictions and try to identify reasonable accommodations. During the meeting, Ms. Sheffield and Mr. Frisbie advised Ms. Strickland that they had received an updated doctor’s note, but that the note still was unclear about Ms. Strickland’s limitations. They also informed Ms.
Strickland about the results of the loss prevention surveillance review indicating that Ms. Strickland was sitting down idly for about half of her shift. At some point in the meeting,
Ms. Sheffield and Mr. Frisbie asked Ms. Strickland about the permanency of her requested sitting accommodation. Ms. Strickland responded that she would likely need the accommodation forever.
Shortly after the January 15 meeting, Ms. Strickland provided Ms. Sheffield and Mr. Frisbie a new note from her doctor stating that she “needs to sit at least 30 minutes per hour worked throughout the work day.” The new note was consistent with the amount of time that Ms. Strickland had been observed to be sitting idly on video surveillance tapes; however, the note did not provide a rationale for the half-time sitting restriction or a more specific assessment of Ms. Strickland’s limitations, as requested by Ms. Sheffield and Mr. Frisbie. Based on their most recent discussions with Ms.
Strickland and the new doctor’s note, Ms. Sheffield and Mr. Frisbie concluded that they still needed more information about Ms. Strickland’s restrictions and needs to identify a reasonable accommodation.
On January 19, 2009, Ms. Sheffield faxed a written cashier job description to Dr.
Ellis and asked him to review it to ensure that Ms. Strickland was medically capable of performing the essential functions of the job. The purpose of Ms. Sheffield’s request was to determine whether Ms. Strickland’s doctor could recommend any accommodation other than the “very restrictive 50% sitting accommodation” requested by Ms. Strickland and indicated by the doctor’s most recent note. Dr. Ellis never responded to Ms. Sheffield’s job description inquiry and Ms. Strickland admitted that she never asked Dr. Ellis to provide the requested information or otherwise followed up to see if he had responded to Ms. Sheffield’s inquiry.
Within the next several days, Ms. Sheffield concluded that Rite Aid could not provide Ms. Strickland with the sitting accommodation that she had requested. Mr.
Frisbie, as well as Ms. Sheffield’s direct supervisor, concurred. Mr. Frisbie and Ms. Sheffield met with Ms. Strickland on January 29, 2009, to tell her that Rite Aid would not allow her to sit for half of each hour that she worked. Per Ms. Sheffield’s recommendation and accommodation decision, Ms. Strickland was not permitted to continue working on January 29, 2009, and Ms. Strickland was terminated on that date.
17 In her lawsuit (filed on her behalf by the EEOC), Ms. Strickland contended that (i) she was not provided a reasonable accommodation for her disability, and (ii) was then terminated on account of her disability, in violation of the ADA. To prevail on her reasonable accommodation claim, Ms. Strickland was required to prove that she had a disability (which was assumed here) and that she was qualified for the Rite Aid cashier position. She also had to prove that the defendant failed to provide a reasonable accommodation for her disability. For the defendant to avoid liability, it was required to show that Ms. Strickland’s accommodation would impose an undue hardship on its business or operations. Not surprisingly, the defendant contended that Ms. Strickland was not a qualified individual because she could not perform the essential functions of the cashier position, either with or without a reasonable accommodation. Moreover, the defendant asserted that Ms. Strickland’s requested accommodation of sitting for half of every hour she worked would impose an undue hardship on its business.
The court determined there was no question that the cashier job at issue here had significant physical requirements and that the defendant’s written job description for the cashier position included several customer service and housekeeping duties that are physically demanding, including unloading merchandise, stocking shelves and end- caps, building merchandise displays, and ensuring that the store is always clean and visually pleasing. To accomplish those duties, the job description specified that cashiers must be able, among other things, to (1) regularly stand dynamically for long periods of time without a break, (2) regularly walk about, (3) occasionally stand statically for long periods of time without a break, and (4) occasionally lift and carry up to fifty pounds. Consistent with the written job description, the store manager and district manager testified that cashiers were expected to productively work on the sales floor, rather than sit idly, when they did not have a customer at the register. According to Mr. Frisbie, cashiers spent much of their time at work walking customers to a department, cleaning, stocking shelves, unloading trucks, implementing price changes and performing other inventory duties throughout the store. For that reason, cashiers were not permitted to sit while on duty and they were expected to stay busy doing tasks that generally required movement around the store.
The court, crediting Ms. Strickland’s testimony and her doctor’s assessments, wrote that Ms. Strickland did not meet the physical requirements described in the written job description, and could not perform many of the tasks identified by her employer as essential, without an accommodation. The determinative question was whether Ms. Strickland could perform the essential job functions with a reasonable accommodation, and the court wrote that the EEOC had not met that burden with respect to Ms. Strickland. The only accommodation that Ms. Strickland ever identified was to be allowed to sit in a chair for at least half of her work day and the EEOC did not explain how sitting idly for half of the work day would enable Ms. Strickland to (1) work productively on the sales floor when there is not a customer at the register, or (2) meet the physical demands required to assist with truck unloads and perform regular stocking, cleaning and inventory-related duties. In fact, the court wrote that the sitting accommodation
18 would simply eliminate, rather than enable Ms. Strickland to perform, many of the essential functions of the cashier job and that the proposed accommodation was per se unreasonable.
The EEOC also argued that the accommodation was nevertheless required by the ADA because Ms. Strickland had been allowed to sit for the last eight years of her employment without incident. The defendant conceded that Ms. Strickland began using a chair intermittently at work in 2002, but during the first five years that Ms. Strickland was allowed to sit, her store was operating as an Eckerd rather than as a Rite Aid. When Rite Aid purchased Eckerd in 2007, it reduced the payroll budget and correspondingly increased the expectations of its cashiers. Assuming that the sitting accommodation was reasonable for an Eckerd cashier, it was not necessarily feasible once the store became a Rite Aid, as evidenced by the fact that Mr. Frisbie and Ms.
Sheffield began questioning Ms. Strickland about her sitting within about a year of the acquisition. In any case, the court wrote, it is well-settled that an employer’s previous willingness to provide a certain accommodation does not establish that the accommodation is reasonable or required. Additionally, the EEOC contended that the functions that Ms. Strickland was unable to perform were not essential because she was not personally asked to do them during the last several years of her employment.
On this point, the store manager testified that she exempted Ms. Strickland from any physically demanding tasks and that she allowed her to sit frequently during the work day. The court determined that as with any other type of voluntary accommodation, an employer does not concede that a job function is unessential by temporarily removing the function from a disabled employee’s duties.
Finally, the last effort by the EEOC was to suggest that the defendant was liable under the ADA as a result of its failure to discuss alternative accommodations that might have enabled Ms. Strickland to perform the essential functions of her job. The court disposed of this contention summarily, holding the Eleventh Circuit has held that an employer has no affirmative duty even to engage in an interactive process where the disabled employee fails to identify a reasonable accommodation—the only accommodation that Ms. Strickland identified during her employment with the defendant was per se unreasonable. The court wrote that “[e]ven now, neither Strickland nor the EEOC can point to any accommodation that would enable Strickland to perform the essential functions of the cashier job. Given Strickland’s acknowledged physical limitations, it is doubtful that any such accommodation exists.” To the extent that the ADA required an interactive process in this case, it was determined that the defendant clearly met its burden in that regard—Mr. Frisbie and Ms. Sheffield conducted an investigation during which they gathered information from various sources concerning Ms. Strickland’s condition, her work habits, and her ability to perform the cashier job in spite of her physical limitations. They subsequently met with Ms. Strickland several times, at least once with the express purpose of identifying and discussing potential accommodations. Having fully engaged in a dialogue with Ms. Strickland about her limitations and ability to be accommodated, the court wrote that the defendant was not liable under the ADA for failing to consider accommodations that Ms. Strickland herself never identified or requested.
19 Based on the foregoing, the district court concluded that the sitting accommodation requested by Ms. Strickland was not only unreasonable, it was patently incompatible with the essential functions of the cashier job as identified by management and routinely performed by every other cashier except Ms. Strickland. It was undisputed that Ms. Strickland never identified an alternative reasonable accommodation, and there was no indication that such an accommodation exists. Accordingly, Ms. Strickland was not a “qualified individual” under the ADA.
The court next addressed the “undue hardship” defense. An accommodation is an undue hardship when it can only be accomplished with “significant difficulty or expense” to the employer.65 To determine whether that is the case, a court considers several factors, including the nature and cost of the accommodation and its impact on an employer’s operations and workforce.66 Accommodations that result in other employees having to work harder or longer are often denied on the ground of undue hardship.67
The EEOC acknowledged that Rite Aid operates on a lean staffing model. There are generally only one or two cashiers and a store manager or other supervisor on duty during any given shift. In addition to checking out customers at the register, cashiers are responsible for a number of other customer service and housekeeping duties, including unloading merchandise, stocking shelves, cleaning, working in the photo lab, and assisting customers with their shopping needs. To fulfill those duties, cashiers are expected to productively work on the sales floor any time they do not have a customer at the register. The court noted that given the defendant’s business model, having a cashier sit idly for half of her shift would necessarily cause productively and morale issues. In fact, there was undisputed evidence that Ms. Strickland’s sitting interfered with the defendant’s operations in a number of ways. Ms. Strickland admitted that she
(1) did not work in the photo lab, (2) only mopped the floor two or three times during her entire Eckerd/Rite Aid employment, and (3) helped stock only a small fraction of the store, and there was testimony that other Rite Aid employees became frustrated by Ms. Strickland’s low productivity.
The EEOC countered that the sitting accommodation was essentially cost-free because Ms. Strickland purchased her own chair, and that the defendant can easily absorb any impact associated with the accommodation because it is a large corporation with over 4,700 stores and 80,000 employees. The court held that these arguments
See 42 U.S.C. § 12111(10)(A).
Id. at § 12111(10)(B).
See Dey v. Milwaukee Forge, 957 F.Supp. 1043, 1052 (E.D. Wis. 1996) (“An accommodation that would result in other employees having to work harder or longer is not required under the ADA”); and Pate v. Baker Tanks Gulf S., Inc., 34 F.Supp.2d 411,
(W.D.La.1999)(holding same).
20 failed to account for the true cost of the accommodation and its impact on the particular store where Ms. Strickland worked. Every employee, including Ms. Strickland, testified that the cashier job required frequent movement throughout the store in order to accomplish a variety of tasks that are essential to the operations of the store. At any given time, there were only one or two cashiers who are available to perform the required work. While Ms. Strickland was sitting, the work was either being done solely by one person or not being done at all. The court wrote that the defendant’s size does not ameliorate the impact of that arrangement on the productivity and morale of the specific store. Therefore, the requested sitting accommodation met the definition of “undue hardship” under the ADA.
VI. Plaintiffs Almost Always Get Their ADA Day in Court
The news for plaintiffs is much better. Although Rite Aid ultimately prevailed in the district court, courts around the nation have been far more sympathetic to plaintiffs, at least allowing them to have their day in court to attempt to prove some sort of disability discrimination. Again, many cases are unreported, but do serve to show that courts are far more sympathetic to plaintiffs’ disability discrimination claims after the ADAAA than before its adoption.
In LaPier v. Prince George’s County,68 Steven LaPier began training as a student officer at the Police Department sometime in October 2008. Mr. LaPier alleged in his lawsuit that he witnessed “what he considered inappropriate and unprofessional conduct by the police instructors” from the “very first day of the Academy.” He alleged various examples of this conduct— e.g., the instructors’ use of “foul language”; the instructors’ forcing the cadets to fold clothes for weeks; an instructor’s punching a hole in a wall and “telling” a cadet to pay for it; and the instructors’ forcing students to change in a parking lot “at some point during the winter months.” Although Mr. LaPier alleged that he and other student officers were subjected to “demeaning and dehumanizing treatment” on a daily basis, he alleged no details regarding such treatment. He also alleged that he communicated these concerns to Major David Morris who, at some point, communicated them to “appropriate personnel” at the Department.
On April 9, 2009, Mr. LaPier passed out during a training run. One or more doctors diagnosed him with Osler–Weber–Rendu syndrome, which is a chronic blood disorder that causes decreased oxygen in the blood. Mr. LaPier resumed his normal training activities after a weeklong period during which his doctors advised him to perform only light work. In a letter dated May 5, 2009, one of Mr. LaPier’s doctors informed the County that Mr. LaPier was fit to resume normal training activities.
The County’s Medical Advisory Board (MAB) met on June 4, 2009. The MAB reviewed Mr. LaPier’s medical records, determined him to be unfit for duty, and recommended his separation from the Police Department. The Police Chief advised Mr.
68 2012 WL 1552780 (D. Md. 2012).
21 LaPier of the Board’s recommendation in a letter that the Chief signed on June 9, 2009, and delivered on June 18, 2009. Mr. LaPier appealed to the County Personnel Board the MAB’s recommendation that the Chief terminate him. Mr. LaPier was represented by legal counsel during this appeal and was permitted to produce witness testimony on his behalf. Mr. LaPier also alleged that the Personnel Board made a decision and transmitted it to the County’s law office for review, but that the County’s law office unjustifiably failed to permit the Personnel Board’s decision to issue.
On June 17, the day before Mr. LaPier received the termination letter, he learned of a cheating scandal in which instructors were spoon-feeding exam answers to police cadets. Apparently, on the same day, Mr. LaPier informed Major Morris of his discovery, who in turn informed the Chief.
On October 14, 2010, Mr. LaPier filed a complaint containing six counts. While not addressing the civil rights violations alleged by Mr. LaPier in his lawsuit, he asserted a claim for violations of the ADA and ADAAA, along with a claim for violation of the Rehabilitation Act of 1973.
In brief, the County argued that Mr. LaPier was not a qualified individual with a disability under the ADAAA. An individual can show that he is disabled in three ways, only two of which are relevant to this case, under the ADAAA. An individual can show that he suffers from “a physical . . . impairment that substantially limits one or more major life activities of such individual.” 69 Alternatively, an individual can show that his employer regarded him as having such an impairment.70
Under the ADAAA, the court noted that an individual has an actual disability where he suffers from a physical impairment that substantially limits at least one major life activity.71 One can divide this definition of disability into three prongs: (1) whether someone suffers from a physical impairment; (2) whether the physical impairment limits at least one of the person’s major life activities; and (3) whether such limitation is substantial.
In this case, the court determined that Mr. LaPier had adequately alleged that he had a physical impairment—a chronic blood disorder. Further, the court wrote that Mr. LaPier had sufficiently stated that this impairment limited a major life activity. The ADAAA defines “major life activities” to include “breathing,” as well as “respiratory” and “circulatory” functions.72 Here, Mr. LaPier had alleged that he passed out on account of
42 U.S.C. § 12102(1)(A).
Id. § 12102(1)(C).
See id. § 12102(1)(A).
Id. § 12102(2)(A)-(B).
22 a chronic blood disorder that causes decreased oxygen in the blood, and at a minimum, the court noted that this event would seem to implicate breathing, respiration, and/or circulation.
Therefore, the only question for the court was whether Mr. LaPier had satisfactorily stated that his blood disorder “substantially” limited a major life activity. As the court noted, the ADAAA does not define the phrase “substantially limits.” In an attempt to fill this gap, the court reviewed the ADAAA’s legislative history and concluded that “although the [ADAAA] evinces Congress’s intent to lower the threshold for demonstrating a disability, the impairment’s severity must rise above a floor of material restriction.”
Here, at a minimum, the court determined that Mr. LaPier had suitably asserted that his blood disorder substantially limited the major life activities of breathing, respiration, and/or circulation. “To reiterate, Plaintiff alleges that he suffers from a chronic blood disorder that, inter alia, causes decreased oxygen in the blood. Plaintiff maintains that he has experienced ‘bleeding events’ from his adolescence. Plaintiff further avers, and Defendants do not dispute, that Plaintiff lost consciousness during a training activity. In light of these allegations, it is plausible that Plaintiff’s blood disorder limits his ability to engage in major life activities (e.g., breathing) compared to most people in the general population. Anything less would make a mockery of the ADAAA’s mandate that ‘[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.’”73 Accordingly, the court held that Mr. LaPier had stated a cognizable claim for actual disability.
The next issue addressed by the district court related to Mr. LaPier’s allegation of a perceived disability. The ADAAA provides that disability means being “regarded as” having an impairment that substantially limits at least one major life activity.74 An employee may satisfy this definition by showing that his employer subjected him to discrimination “because of a . . . perceived . . . impairment whether or not the impairment limits or is perceived to limit a major life activity.”75 Here, Mr. LaPier alleged that the County perceived him as disabled because he provided the County with medical documentation of his blood disorder and the County relied on such documentation in determining him to be physically unfit for duty. The County did not dispute these assertions. Instead, the County contended that Mr. LaPier’s blood disorder was “transitory
See 42 U.S.C. § 12102(4)(A); see also 29 C.F.R. § 1630.2(j)(1)(i) (“‘Substantially limits’ is not meant to be a demanding standard.”).
See 42 U.S.C. § 12102(1).
Id. § 12102(3)(A).
23 and minor” and, therefore, did not fall under the ADAAA’s “regarded as” definition of disability.76 The court wrote that the foregoing discussion, however, demonstrated that Mr. LaPier had adequately alleged that his blood disorder was more than minor.
Moreover, the ADAAA defines “transitory impairments” as those with “an actual or expected duration of 6 months or less.”77 In this case, by contrast, Mr. LaPier maintained that he has suffered from his blood disorder since he was an adolescent.
Therefore, the court determined that the County’s argument was without merit and that Mr. LaPier had stated a cognizable claim for perceived disability.
Alternatively, the County contended that Mr. LaPier had failed to state a prima facie case for disability discrimination. In this case, as the court explained, Mr. LaPier had suitably asserted that he came within the ADA’s protected class because he had stated a cognizable claim that he is disabled under the ADAAA. Although Mr. LaPier’s allegations were “somewhat sparse,” they sufficed to state that Mr. LaPier was performing at a level that met the County’s legitimate expectations. Nevertheless, in light of these admittedly sparse allegations, the court held that Mr. LaPier had stated a facially plausible claim that he can satisfy the elements of a prima facie case. The court also held that because Mr. LaPier had stated a cognizable claim for disability discrimination under the ADAAA, “it forcibly follows that he has stated a cognizable claim for disability discrimination under the Rehabilitation Act.”
VII. Recent ADA Cases: Mostly Victories for Plaintiffs
Below is a listing of cases where plaintiffs generally have been successful, at least by “lowering the bar” to survive motions to dismiss and other pleas.
Gibbs v. ADS Alliance Data Sys.78 The court denied defendant’s motion for summary judgment and held that carpal tunnel syndrome that is debilitating in one hand may constitute a disability under the ADAAA. The court stated that under the new law, “Congress intended to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis and that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” Kinney v. Century Services Corp.79 Plaintiff had isolated bouts of depression, which was debilitating when active, but did not impact her work performance when it was inactive. The district court denied defendant’s motion for
See id. § 12103(3)(B).
Id.
2011 WL 3205779 (D. Kan. 2011).
2011 WL 3476569 (S.D. Ind. 2011).
24 summary judgment and held that although intermittent depressive episodes were clearly not a disability prior to the ADAAA’s enactment, plaintiff’s depression raised a genuine issue of fact as to whether she is a qualified individual under the Amendments Act.
Feldman v. Law Enforcement Assoc.80 One plaintiff had episodic multiple sclerosis and the other plaintiff had TIA, or “mini-stroke.” The court found that the multiple sclerosis was clearly a disability under the ADAAA since the statute specifically states that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” In addition, the recent EEOC regulations for the Amendments Act specifically list MS as a disability. As to the plaintiff suffering from TIA, the court held that “while the duration of [plaintiff’s] impairment may have been relatively short, the effects of the impairment were significant”, and therefore, he also alleged sufficient facts at the initial stage of the case.
Chamberlain v. Valley Health Sys.81 Plaintiff adequately alleged that she was “regarded as” disabled as a result of her visual field defect which made fine visual tasks more difficult. The court denied summary judgment and held that the issue of whether the employer believed that plaintiff’s impairment “was both transitory and minor must be decided by a jury” given that plaintiff submitted an affidavit stating that one of her supervisors insisted that plaintiff was completely unable to work as a result of her vision problem.
Cohen v. CHLN, Inc.82 Plaintiff alleged that he suffered from debilitating back and leg pain for nearly four months before his termination. The court denied summary judgment and held that under the less restrictive standards of the ADAAA, plaintiff has offered sufficient evidence to raise an issue of fact as to whether he was disabled at the time of his termination. While defendant claimed that his condition was of too short a duration, the court disagreed and found that the ADAAA mandates no strict durational requirements for plaintiffs alleging an actual disability.
Norton v. Assisted Living Concepts, Inc.83 The court denied summary judgment and held that renal cancer qualified as a disability under the ADAAA. The fact that plaintiff’s cancer was in remission when he returned to work is of no consequence since there is no dispute that renal cancer, “when active,” constitutes a physical impairment under the statute. Moreover, cancer, when active, substantially limits the major life activity of normal cell growth, as defined by the statute and the EEOC
779 F.Supp.2d 472 (E.D.N.C. 2011).
781 F.Supp.2d 305 (W.D. Va. 2011).
2011 WL 2713737 (E.D. Pa. 2011).
786 F.Supp.2d 1173 (E.D. Tex. 2011).
25 regulations regarding the Amendments Act. See also Meinelt v. P.F. Chang’s China
Bistro, Inc.84
Coffman v. Robert J. Young Co., Inc.85 A copy center operator (and 15-year employee) was seriously injured in a non-work related accident. She was placed on FMLA leave and subsequently received both short-term and long-term disability benefits. Even though she was given a “return to work” date with certain lifting limitations, she was terminated because (1) she could not perform the tasks of her position, (2) the company needed to fill the position and (3) “due to [her] long term disability.” The court held that the plaintiff had sufficiently pleaded a physical impairment that substantially limited the major life activity of working and the defendant had terminated her employment as a result of her impairment.
Rico v. Xcel Energy, Inc.86 Plaintiff suffered a work-related back injury as an apprentice lineman and after surgery, he returned to work with “modest lifting restrictions” and “no utility pole climbing.” He subsequently requested a transfer, which was denied, where he would not lift or climb poles. Instead, he was recommended for long-term disability benefits and terminated, and he applied for an open position in competition with other job applicants. He was offered a lower-paying job with a loss of seniority. Plaintiff’s allegations of a violation of the ADA, as amended by the ADAAAA, withstood a motion to dismiss because plaintiff sufficiently pleaded he was disabled.
Harty v. City of Sanford.87 After having received knee injuries and a 40% disability rating from the VA while in the Navy, plaintiff accepted a job with the city as an equipment operator. After a pre-employment physical, it was determined that he could perform all essential job functions. After 2 weeks on the job, he applied for and was offered a foreman’s job, with no additional fit-for-duty examination being conducted. He injured his knee while assisting a bricklayer and was placed on light duty. After returning to work full-time with restrictions on squatting, kneeling, running and jumping, among others, a fit-for-duty evaluation was performed, and it was determined that he could not perform all of the essential functions of a foreman and he was terminated. The employer’s motion for summary judgment was denied because there was evidence the plaintiff was disabled and a qualified individual who could perform essential job functions. 2011 U.S. Dist. LEXIS 57303 (S.D. Tex. 2011) (denying summary judgment where plaintiff had an operable brain tumor).
2011 WL 2174465 (M.D. Tenn. 2011).
893 F.Supp.2d 1165 (D.N.M. 2012).
2012 WL 3243282 (M.D. Fla. 2012).
26 Johnson v. Farmers Ins. Exchange.88 Under the broad definition of disability in the ADAAA, the plaintiff’s allegations that she suffered from sleep apnea were sufficient to state a claim that she had a disability that substantially limited a major life activity. As a consequence, the defendant’s motion to dismiss was denied.
Farina v. Branford Bd. of Educ.89 Since the ADAAA lowered the threshold requirement to establish a disability, and specifically included lifting as a major life activity, “it is possible that even a relatively minor lifting restriction could qualify as a disability within the statute.” In this case, the lawsuit of a tenured elementary school teacher who had substantial performance issues and was often tardy to work did not survive a motion for summary judgment because of factual insufficiencies in her pleadings.
Phelps v. Balfour Commemorative Brands, Inc.90 Although the plaintiff alleged she suffered from arthritis, bursitis, obesity, tendonitis, diabetes and anemia and was often sick and hospitalized, she made no factual statements as to the nature of her disability and did not show that her impairment substantially limited one or more major life activities. Consequently, she failed to establish a prima facie case for discrimination and also could not show a failure to accommodate a disability.
Fierro v. Knight Transportation.91 Terminated truck driver requested that he not be sent over-the-road because of important medical appointments and that he be granted leave from work to seek medical attention. The plaintiff alleged that he had adenoid cystic carcinoma, a form of cancer, but failed to plead any facts giving rise to an inference that his cancer substantially limited one or more major life activities. He also failed to plead sufficient facts regarding the timing of his termination relative to his alleged cancer as well as facts that his employer had notice of the disability and failed to accommodate; however, the plaintiff did plead sufficient facts that he was perceived by his employer to have cancer, thus stating a cause of action for discriminatory discharge.
Nayak v. St. Vincent Hospital and Health Care Center, Inc.92 Hospital
OB/GYN resident delivered one of two twins (one passed away during pregnancy) and experienced serious post-partum difficulties. Her contract was not renewed and she alleged it was a result of her pregnancy complications. The court determined the 2012 WL 95387 (W.D. Okla. 2012).
2010 WL 3829160 (D. Conn. 2010).
2013 WL 653542 (W.D. Ky. 2013).
2012 WL 4321304 (W.D. Tex. 2012).
2013 WL 121838 (S.D. Ind. 2013).
27 resident had sufficiently pleaded a plausible claim for disability discrimination but had not adequately pleaded a “regarded as” disabled claim of discrimination.
VIII. Special Issues for Public Sector Public Safety Employers
Not surprisingly, the human resources landscape for public sector employers is sometimes vastly different than that for private sector employers. This section of the paper will address several, but certainly not all, of these differences. In a shameless act of self-promotion, please refer to a law review article I authored on this topic, A Primer on Texas Public Employment Law, found in 56 Baylor Law Review 981 (Fall 2004).
A. Texas Public Safety Employees—Overtime
Chapters 141 and 142 of the Texas Local Government Code provide unique challenges for local governments, due in large part to the difficulty in understanding the wording and intricacies of the language and the reliance upon other statutes referenced therein, such as the Fair Labor Standards Act and the Texas Code Construction Act.
Additionally, in the public safety context questions are often raised about the use of polygraph examinations in investigations. Below is a short review of the three principal areas of concern for local governments in Texas relative to Chapters 141 and 142 of the Texas Local Government Code as well as a short discussion of the use of polygraph examinations in the public safety context.
Section 207(k) of the Fair Labor Standards Act93 partially exempts employees engaged in fire protection or law enforcement activities from the standard overtime for all work in excess of forty hours provisions of the Fair Labor Standards Act. According to Section 207(k), for fire protection employees, overtime must be paid for hours worked beyond 212 during a 28-day work period; for law enforcement personnel, overtime is triggered for employees working more than 171 hours during a 28-day work period. In the case of fire protection and law enforcement employees who have a work period of at least seven (7) days but less than twenty- eight (28) consecutive days, overtime compensation is required to be paid when the ratio of the number of hours worked to the number of days in the work period exceeds the ratio of 212 (or 171) to twenty-eight (28) days. The Section 207(k) exemption, however, may be preempted by a state law or municipal ordinance establishing a maximum workweek lower than that established by the Fair Labor Standards Act. Simply stated, the Fair Labor Standards Act expressly provides that it does not preempt any state law that establishes lower maximum hours
(as well as higher rates of overtime pay) than the Fair Labor Standards Act. In such a situation, state law (or a municipal ordinance) controls the employer’s duties relative to overtime compensation for police and fire personnel.
In Texas, the Section 207(k) exemption often does not apply in municipalities with a population of more than 10,000. Availing itself of Section 218(a) of the Fair Labor
93 29 U.S.C. § 207(k).
28 Standards Act, the Texas Legislature in most cases has mandated a workweek for police personnel and certain fire personnel of forty (40) hours. In such Texas municipalities, the general rule is that these personnel may not work in excess of the average number of hours worked by a majority of other non-sworn personnel (other than firefighters). Section 142.0015(f) of the Texas Local Government Code specifically provides:
A police officer may not . . . be required to work more hours during a calendar week than the number of hours in the normal work week of the majority of the employees of the municipality other than firefighters and police officers.
Consequently, since the overwhelming majority of cities in Texas have forty (40) hour workweeks for non-firefighters and non-police personnel, most cities are limited to forty (40) hour workweeks for police officers (or fewer than forty (40) hours, if the majority of the city’s employees work less than a forty (40) hour workweek). The exceptions to this rule are (i) police officers who work more hours due to an emergency and (ii) those police officers who sign a written waiver of their rights, thereby agreeing to workweeks with more hours than those of a majority of the employees of the municipality other than fire fighters and police personnel. Similar provisions exist for those non-exempt fire department personnel who do not fight fires or provide emergency medical services, including a mechanic, clerk, investigator, inspector, fire marshal, fire alarm dispatcher and maintenance worker; however, non-exempt firefighters and emergency medical service personnel may avail themselves of the Section 207(k) exemption; that is, they may work up to 212 hours in 28-day tours of duty. Thus, most Texas cities with populations in excess of 10,000 cannot rely on the Section 207(k) exemption for police officers and those fire personnel listed in Section 142.0015(c) of the Texas Local Government Code because the Section 207(k) exemption “cannot excuse noncompliance with any Federal or State law or municipal ordinance establishing . . . a maximum workweek lower than the maximum workweek established under [the Fair
Labor Standards Act].”
Under the Fair Labor Standards Act, compensatory time may be given public employees in lieu of monetary overtime compensation, at a rate of not less than one and one-half (1½) hours for each hour of overtime worked. The calculation generally is the same as that used for calculating monetary overtime. Only state and local governments may use compensatory time; private employers are not eligible and must pay cash overtime. Public employees generally may accrue up to 240 hours of compensatory time while public employees who work in a public safety activity, emergency response activity or seasonal activity may accrue up to 480 hours of compensatory time. A public employee who has accrued compensatory time and requests use of the time must be permitted to use the time off within a “reasonable period” after making the request if it does not “unduly disrupt” the operations of the public agency. Moreover, a public employer may force its employees to use accrued compensatory time.
29 B. Public Safety Employees—Vacation
Section 142.0013(b) of the Texas Local Government Code provides, in part, that
“[a] member of a fire or police department in a municipality with a population of more than 30,000 is entitled to 15 vacation days each year with pay if the member has been regularly employed in the department or departments for more at least one year.”
Section 142.010(b) of the Texas Local Government Code defines a “member of the police department” as a licensed peace officer and a “member of the fire department” is defined as “an employee of the fire department who is defined as ‘fire protection personnel’ by Section 419.021 of the Texas Government Code.” According to Section 419.021(3) of the Texas Government Code, “fire protection personnel” means:
permanent, full-time law enforcement officers designated as fire and arson investigators by an appropriate local authority;
aircraft rescue and fire protection personnel; or
permanent, full-time fire department employees who are not secretaries, stenographers, clerks, budget analysts, or similar support staff persons or other administrative employees and who are assigned duties in one or more of the following categories:
fire suppression;
fire inspection;
fire and arson investigation;
marine fire fighting; aircraft rescue and fire fighting;
fire training;
fire education;
fire administration; and
any other position necessarily or customarily related to fire prevention or suppression.
Thus, while a “member of the police department” as a practical matter includes sworn personnel only, the term “member of the fire department” includes almost everyone in a fire department except clerical and support staff.
30 Similar to Section 142.0015(f), the operative word in Section 142.0013(b) of the Texas Local Government Code is “population.” Chapter 311 of the Texas Government
Code is the Code Construction Act. According to Section 311.002, the Code Construction Act applies to any code enacted by the 60th or subsequent Legislature. The Local Government Code was enacted by the 71st Legislature in 1989. According to Section 311.005(3) of the Government Code, “population” means “the population shown by the most recent federal decennial census.” Therefore, when Section
142.0013 of the Local Government Code refers to a population of more than 30,000, that number refers to the population as of the most recent decennial census. Further, according to Section 2058.001 of the Texas Government Code, “a governmental entity may not recognize or act on a report or publication . . . of a federal decennial census . . . before September 1 of the year after the calendar year during which the census was taken.”
C. Public Safety Employees--Acting Status (or “Step Up”) Pay
A recurring issue for many public safety issues in municipalities with a population of 10,000 or more is the issue of acting status pay for members of the Police and Fire
Departments, as referenced in Section 141.033(b) of the Texas Local Government
Code. In brief, it is our contention that all police and fire department officers are entitled to acting status pay (or “step up” pay) for performing the duties of a higher classification if and only if they assume all (or substantially all) of the duties of the higher classified position, regardless of the duration of such an assignment. Therefore, in deciding whether an officer is entitled to acting status pay, a determination must be made on a case-by-case basis whether the officer in question is performing all, or substantially all, of the duties of the higher classified position.
Section 141.033(b) of the Texas Local Government Code provides that
[a] member of the fire or police department who is required to perform the duties of a particular classification is entitled to be paid the salary prescribed for that position during the time the member performs those duties. Almost ten years ago the Texas Attorney General’s Office issued a letter opinion, LO- 96-027 (March 11, 1996), in which the Attorney General held that “a municipality that has temporarily assigned a fire fighter or police officer to perform the duties of a higher classification may not restrict the fire fighter’s or police officer’s entitlement to higher classification pay under subsection (b) [of Section 141.033 of the Local
Government Code] to an assignment of a certain minimum duration.”
In Mokwa v. City of Houston,94 the court, interpreting Tex.Rev.Civ.Stat.Ann. art.
1269q,95 in conjunction with Tex.Rev.Civ.Stat.Ann. art. 1269m, § 8(b),96 held that a
94 741 S.W.2d 142, 148 (Tex.App.—Houston [1st Dist.] 1987, writ denied). 31 police officer called upon to perform the duties of a higher pay classification was entitled to be compensated at the higher rate. In this case the officer had worked in higher job classifications 268 days over a 45-month period.97 Nevertheless, the court wrote that
we hold that an officer is eligible for compensation of a higher classification if the Chief of Police designates the officer to temporarily fill a vacant position, under article 1269m, or if the officer is “called upon to perform the duties” of the position, under article 1269q.98
In the situation, for example, where the Fire Chief and Police Chief is absent from the city for a seminar and a lieutenant is named the acting chief in the chief’s absence, we do not believe that Section 141.033(b) would be applicable because the lieutenant is not performing all, or substantially all, of the chief’s duties, only part of them. In our opinion, an officer or firefighter who is “called upon to perform the duties” of that position must be authorized to perform all of the duties of that position, not just several of the duties. For example, an acting chief over a weekend would not, or clearly should not, assume that he would be allowed to terminate firefighters or police officers, reorganize the department or eliminate positions from the budget. For purposes of that weekend, the lieutenant is nothing more than the contact person in the case of an emergency should the need arise for an executive decision of some type. In the situation, however, where a police patrol officer assumes the duties of a patrol sergeant, including all (or substantially all) job responsibilities, then that patrol officer is entitled to be paid a sergeant’s salary for that period.
Mokwa still remains good law and clearly holds that a police or fire employee who
(1) temporarily fills a vacant position or (2) is called upon to perform the full duties of a position is entitled to the position’s salary for that time period. Absent these circumstances, we do not believe that acting status pay must be given to an employee who temporarily assumes some of the duties of a higher classified position for a short period of time.
Additionally, another Texas court has upheld such a determination. In Haliburton v. City of Article 1269q was the predecessor statute to Section 141.033(b) of the Texas Local Government Code.
Article 1269m, § 8(b) was the predecessor statute to Section 143.111(a) of the Texas
Local Government Code.
Id., 741 S.W.2d at 148. Chapter 143 of the Texas Local Government code is entitled
“Municipal Civil Service.” In Mokwa, the court recognized that the City of Houston had adopted civil service in its police department. In LO 96-027, the Attorney General’s Office concluded that Section 141.033(b) of the Local Government Code applies to all municipalities over 10,000 population, regardless whether civil service has been adopted.
Id. (emphasis in original).
32 San Antonio,99 Chief Justice Hardberger of the Court of Appeals in San Antonio described
Mokwa as standing for the proposition that “municipal police officers be compensated for temporarily and substantially performing the duties of higher ranked employees.”100
The key for a city is determining if and when an employee is entitled to acting status pay. Some public safety officers would suggest that if a police lieutenant, for example, is out of town on a regular work day attending a seminar, then the sergeant who “fills in” for him is entitled to lieutenant’s pay for that day. It is clear that in this example the sergeant is not entitled to lieutenant’s pay since he was nothing more than the contact person for that day, took messages for the lieutenant, etc. He did not perform all of the duties of a lieutenant— he simply “filled in” for one day and, in all likelihood, performed his regular sergeant duties. On the other hand, when there is a vacancy in a lieutenant position and a sergeant is the acting lieutenant (usually this entails more time than a day or two), then the sergeant is entitled to lieutenant’s pay. The only problem we foresee is when a lower rank fills in for a short time a position at a higher rank and is expected to perform the higher rank job duties. Thus, the primary issue is whether an employee is truly performing all, or substantially all, of the duties in the higher classification.
Our suggestions are as follows. First, it is imperative that when an employee is simply a contact person for a day or a weekend, then any departmental memorandum or other documentation about that matter should be clear and precise. It should not state that “Sergeant X is the Acting Lieutenant for the weekend.” That language will cause certain personnel to conclude that the sergeant is entitled to acting status pay because the memorandum stated that “Sergeant X is the Acting Lieutenant.” Rather, the memorandum should state that since Lieutenant Y is out of town for a training seminar, Sergeant X will be the contact person and that during Lieutenant Y’s absence, any questions or issues should be referred to Sergeant X.” Unfortunately, most police and fire departments are somewhat loose in using the phrase “acting chief” or “acting lieutenant,” for example. It is difficult to argue that an individual is not entitled to acting status pay when a memorandum from the chief has named the person as “acting lieutenant.” A public safety agency simply needs to be careful about the wording it employs.
Second, in the situation where an individual truly is acting in the higher classification, then it should be made clear to that individual that he or she has all, or substantially all, of the duties of the higher classification. Third, even though it may be difficult in some situations to determine whether an individual truly is “acting” (generally due to questions about the length of time involved), it is clear that an individual is entitled to acting status pay as soon as such status commences, not after 8 hours or 30 days, for example, of serving in that position.
974 S.W.2d 779 (Tex.App.—San Antonio 1998, no writ).
Id. at 780.
33 D. (Most) Public Safety Employees—Polygraph Examinations
The Employee Polygraph Protection Act of 1988101 generally prohibits employers from requiring, requesting, suggesting or causing any employee or prospective employee to take or submit to a lie detector test; employers cannot use, accept, refer to or inquire about lie detector test results; and employers cannot discharge, discipline or otherwise discriminate in any manner or deny employment or promotion to employees who refuse or otherwise decline to submit to a lie detector test.102 Although there are certain exceptions to the Employee Polygraph Protection Act of 1988, 103 the key exception is that this Act does not apply to any state or local government or any political subdivision of a state or local government.104 Thus, while private employers’ use of lie detector tests at any time during an employee’s tenure is severely curtailed by the Act, state and local governments are free to administer polygraph examinations, subject to any state law provisions on point.
In the Texas public employment context, polygraph examinations are often used; however, the use of such examinations for public employees other than certified peace officers is subject to Texas Supreme Court jurisprudence and, for peace officers, subject to applicable provisions of the Texas Government Code.
For public employees, the Texas Constitution provides that the right to personal privacy is safeguarded against unreasonable intrusion and, the Texas Supreme Court has reasoned, should yield only when the government demonstrates that the intrusion will achieve a compelling governmental purpose, which cannot be attained with any less intrusive, more reasonable means.105 Moreover, Texas has recognized the common law right to privacy in the employment context.106 Consequently, there are three elements to consider in regard to the invasion of privacy: (i) an intentional intrusion, (ii) upon the seclusion, solitude or private affairs of another, (iii) which a reasonable person
29 U.S.C. § 2001 et seq. 29 U.S.C. § 2002.
29 U.S.C. § 2006.
29 U.S.C. § 2006(a).
Texas State Employees Union v. Texas Dept. of Mental Health and Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1988).
Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 253 (Tex.App.—Houston [1st Dist.] 1993, writ denied)(citing Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973)).
34 would find highly offensive.107 For an employer to succeed in polygraphing its employees, the employer must demonstrate unique circumstances that are adequately compelling to warrant the intrusion in order to maintain a polygraph testing procedure.108
As the Texas Supreme Court wrote:
We do not doubt that the Department [of Mental Health and Mental
Retardation] is entitled to require employees to answer questions that are narrowly and specifically related to the performance of their job duties.
The use of a lie detector, however, presents a qualitatively different question. The Department’s asserted interests are inadequate to overcome the privacy interests impinged upon by the polygraph testing.
We hold that the Department’s polygraph policies impermissibly violate privacy rights protected by the Texas Constitution.109
In the law enforcement context, this privacy interest may be outweighed by the government’s compelling interest in public safety since persons who accept employment as police officers subordinate their right to privacy to the superior right of the public to an efficient and credible police department.110 Therefore, an officer who refuses to submit to a polygraph examination “is guilty of insubordination in refusing a direct order to submit to a polygraph examination during a departmental investigation of a matter relating to efficiency and credibility when reasonable cause exists to believe that the police officer so ordered can supply relevant knowledge or information.”111
A statute governing polygraph examinations for non-civil service peace officers was enacted in 1997112 to limit previous practices of terminating peace officers who refused to take polygraph tests. This legislation allows the head of a law enforcement organization to order the polygraph examination of a peace officer when the subject matter of a complaint is confined to the internal operations of the organization; the complainant is an employee or appointee of the organization; and the complaint does not appear to be invalid based on the information available when the polygraph Id. (citing Gill v. Snow, 644 S.W.2d 222, 223-24 (Tex.App.—Fort Worth 1982, no writ)).
Texas State Employees Union, 746 S.W.2d at 206.
Id.
Richardson v. City of Pasadena, 500 S.W.2d 175, 177 (Tex.Civ.App.—Houston [14th Dist.] 1973), rev’d on other grounds, 513 S.W.2d 592 (Tex. 1974).
Id.
Tex.Gov’t Code § 614.063.
35 examination is ordered.113 Additionally, the head of the law enforcement organization is required to provide written explanation why he considers the circumstances to be extraordinary and why he believes the integrity of the peace officer or the law enforcement organization is in question.114 This written notice is not required for matters affecting internal operations of the law enforcement organization.115 Thus, it is clear in Texas that law enforcement officers may be required to submit to polygraph examinations due to the unique circumstances inherent with law enforcement, thereby justifying polygraph examinations in the appropriate situation.116 Tex.Gov’t Code § 614.063(d).
Tex.Gov’t Code § 614.063(e).
Id.
Texas State Employees Union, 746 S.W.2d at 206 (“Texas courts have shown a deference to the important interests served by public agencies that are directly involved in the compelling state goal of protecting the safety of the general public.”). 36