Tenth Circuit finds in-flux positions filled by temps were not “vacant” for ADA accommodation purposes
June 29th, 2010 | David Stephanides | Add a Comment
To reasonably accommodate an employee with a disability under the Americans with Disabilities Act (ADA), an employer may be required to consider reassignment of that employee to a vacant position. But, what exactly does “vacant” mean in the employment context? Addressing this question for the first time, the Tenth Circuit has issued a ruling defining the term. A position is “vacant” with respect to a disabled employee for the purposes of the ADA “if it would be available for a similarly-situated non-disabled employee to apply for and obtain,” the court held. In the case, the court found that two positions filled by temporary workers pending possible outsourcing of those functions were not “vacant” for purposes of reassignment as a reasonable accommodation under the ADA. (Duvall v Georgia-Pacific Consumer Prods, L.P., June 9, 2010)
An employee, who suffered from cystic fybrosis, worked in the shipping department of a paper mill. When the owners of the mill decided to begin outsourcing the running of its shipping department, the employee transferred to the converting department where raw rolls of newly fabricated paper were machined into finished products, such as napkins. However, he found that the paper dust in the air resulting from the converting process made it impossible for him to work there.
As a reasonable accommodation, the employee requested that he be put back in his old shipping position, which was then occupied by a temporary contract worker pending the permanent outsourcing of the department, or in a position in the mill’s storeroom, where, as in the shipping department, the dust levels were relatively low. But, at that time, a number of temporary employees were filling some of the storeroom positions because the storeroom was under consideration for outsourcing. (Ultimately, the employer decided not to outsource the storeroom functions, but did restructure them.) The employer refused these requests, and the employee went on short-term disability. Three months later, the employer offered him two other positions – a storeroom palletizer temporary position that did not offer regular shifts or predictable hours, and a storeroom clerk position with less hourly pay than his previous two positions.
He accepted the storeroom clerk position, and a few months later, sued under the ADA. The district court granted summary judgment in favor of the employer, holding that the shipping department and storeroom positions filled by the temporary workers were not “vacant” within the meaning of the ADA.
The Tenth Circuit affirmed. It was undisputed that the employee’s cystic fibrosis rendered him disabled within the meaning of the ADA. Accordingly, resolution of the case turned on whether the ADA required the employer to reassign him to either his old position in the shipping department until it was ready to be permanently outsourced, or to a position in the storeroom during the interim three-month period in which he was not offered a position in the storeroom (since he was unable to work in the converting department).
The Tenth Circuit noted that it had not previously defined the term “vacant” for purposes of the ADA, and it did not find any cases from other circuits doing so. It pointed out that, while not defining the term, the Supreme Court, in US Airways, Inc v Barnett (2002), observed that nothing in the ADA suggests that Congress intended the term “vacant” to a have a specialized meaning. As such, the Tenth Circuit held that, in the employment context, “a position is ‘vacant’ with respect to a disabled employee for the purposes of the ADA if it would be available for a similarly-situated non-disabled employee to apply for and obtain.”
The circuit court explained that iIf a “vacant” position meant anything other than one available to similarly situated non-disabled employees, it would run the risk of transforming the ADA from an antidiscrimination law into a mandatory preference law, the circuit court explained. If that were the case, employers would effectively be required to create new positions specifically for disabled employees – positions not available to non-disabled employers. Courts have universally held that the ADA does not require employers to take such action.
Applying its definition to the case at hand, the Tenth Circuit found the undisputed evidence was that the employer’s business plan was to occupy the positions at issue exclusively with temporary contract employees until they would permanently be filled with the outsourcer’s employees, or until the employer later determined to make the storeroom positions vacant again for its own employees. Thus, from the perspective of the paper mill’s employees, the positions were not vacant and available to any of them at the time the employee sought an accommodating assignment into one of those positions. Accordingly, the employee failed to establish a factual issue as to whether the positions were vacant.
Voters in Fremont, Nebraska, pass controversial illegal immigration law; ACLU plans challenge
June 25th, 2010 | David Stephanides | Add a Comment
Following in the footsteps of a recently passed Arizona law requiring police to check people’s immigration status if there’s a “reasonable suspicion” they are in the country illegally, voters in Fremont, Nebraska, passed a petition-driven measure in a special June 21 election to make illegal the harboring, hiring of and renting to undocumented immigrants. The ordinance, which passed by 57-43 percent, would require renters in the city to obtain an occupancy license before they could move into an apartment or house and, as part of the application process, have their immigration status checked.
The ordinance would also require city businesses to use the federal E-Verify immigration database to double-check the status of job applicants. If a business fails to register with E-Verify or provide the required affidavit, the ordinance states, the business will be tried at a public hearing before the city council. And, if the city council determines a business has violated the ordinance, it may revoke the license, contract, or grant issued to the business. In addition, the city attorney will have the power to bring a civil action in district court against any business suspected of violating the ordinance.
Fremont joins Hazelton, Pa.; Riverside, N.J.; Valley Park, Mo.; and a few dozen other towns that have passed laws targeting undocumented immigrants. According to a fact sheet released by the Nebraska Accountability and Disclosure Commission, though, no ordinance similar to that passed by Fremont was ever enforced successfully.
In response, the Nebraska American Civil Liberties Union announced its plans to file within the next few weeks a lawsuit challenging the ordinance’s constitutionality. While noting that “an ordinance of this kind is a true indication of the frustration some communities feel,” Laurel Marsh, executive director of ACLU Nebraska, added, however, that she believed it violates the supremacy clause of the United States. Marsh argued that two main problems exist with the law: that setting immigration policy is solely a federal function, and that the 14th Amendment guarantees due process to all people in the US, not just citizens.
“We’re hearing from people who are legal residents who are Hispanic, that they feel incredibly unwelcome now,” said Amy Miller, Nebraska’s ACLU Legal Director. “Even though they are here legally the rhetoric around the issue has sent a clear message that they are not welcome because the color of their skin or their national origin.”
The ordinance is scheduled to take effect 15 days after the official vote count is announced.
Illinois Treasurer extends family benefits to gay and lesbian employees in domestic partnerships
June 22nd, 2010 | Deborah Hammonds | Add a Comment
Illinois Treasurer Alexi Giannoulias signed an Executive Order on June 13, 2010 providing gay and lesbian treasury department employees in domestic partnerships with the same family leave rights and benefits as married employees. The new office policy, which recognizes a domestic partnership as equivalent to marriage, allows gay and lesbian employees to take unpaid leave to care for a sick partner or relative or for the birth or adoption of a child. Giannoulias’ office is the first constitutional office or state agency to adopt such a policy, according to a statement. The EO effectively extends the Family and Medical Leave Act to gay and lesbian employees in committed relationships. The new policy changes also allow those employees to take maternity/paternity leave and bereavement leave following the death of their partner or partner’s immediate family.
The FMLA applies to married couples who are permitted to take up to twelve weeks of unpaid leave to care for a sick parent, spouse or child. But, according to FMLA, if an employee’s domestic partner or domestic partner’s child falls ill, he or she does not have legally protected leave. “Illinois is home to thousands of households with committed same-sex couples,” Giannoulias said. “But when a crisis occurs, these couples that own and live in the same home and emotionally and financially depend on one another do not have the same rights as married couples. We should not deny same-sex domestic couples those same rights.” Giannoulias believes this step will make the state more competitive with private sector employers, many of which already offer such benefits to their employees.
Giannoulias has taken other steps to recognize the rights of gay and lesbian employees. Shortly after taking office in 2007, he changed office policy to allow employees involved in domestic partnerships to receive the same health benefits as married employees and their dependents. Prior to the Giannoulias administration, the Treasurer’s Office had been the only constitutional office not to give health benefits to same-sex partners of state workers since the Governor extended the benefits in May 2006.
TILT: flu-like symptoms plaguing Gulf cleanup workers
June 17th, 2010 | Connie Eyer | Add a Comment
The latest in a seemingly never-ending series of horror stories arising in the wake of the BP oil disaster in the Gulf of Mexico comes to us in the form of a new acronym: TILT, short for Toxicant-Induced Loss of Tolerance. Cleanup workers—formerly known as shrimpers, oystermen and fishermen, but now increasingly known as patients—have reported strange, flu-like symptoms such as joint pains, upper respiratory problems, difficulty breathing, stomach cramping, nervousness, inability to concentrate, balance difficulty, nausea, headaches, skin rashes, pain with or frequent urination.
Workers’ complaints to BP initially went unheeded as the company claimed it was unaware of any such problems and was slow to provide respirators to workers who experienced symptoms from odors associated with both petroleum and the chemical dispersants used to combat the spill.
According to InventorSpot.com, TILT (also known as Multiple Chemical Sensitivity) can be caused by exposure to diesel or gas engine exhaust, gasoline, tobacco smoke, insecticide, cleaning products like disinfectants or bleach cleansers, fresh tar or asphalt… even perfume-y odors, nail polish remover, or new furnishings. Pregnant women and asthmatics are most susceptible to TILT.
Despite a request to OSHA in late May by George Miller (D-Cal), Chair of the House Education and Labor Committee, to ensure that there were sufficient OSHA personnel dispatched to the Gulf of Mexico “to properly and aggressively protect the health and safety of those involved in the [BP] oil cleanup activities,” workers and citizens of Gulf communities are still getting sick.
While BP says it’s doing all it can to keep supplies stocked and has had to turn to foreign companies for help, the AP reports that, with demand so high for everything from plastic gloves, to oil-blocking booms and sand-sifting machines, finding enough items to outfit workers and protect the coast is an unending task. Added to that, the summer’s heat and humidity of the region pretty much ensures that we’ll be hearing a lot more about TILT.
NLRB moving to electronic elections?
June 15th, 2010 | Matt Pavich | Add a Comment
When Republican senators filibustered President Barack Obama’s nomination of Craig Becker to the National Labor Relations Board, they usually cited his alleged support of changes to the NLRB election process that would have offered a choice between unions, not between representation, or no representation. Becker’s opponents suggested that the former SEIU counsel would do whatever he could to tilt the labor election battlefield in favor of his old colleagues. As it turns out, those Senatorial worrywarts may have been right to be concerned.
On June 9th, the NLRB issued a Request for Information (RFI) on “industry solutions regarding…secure electronic voting services for both remote and on-site elections.” In other words, the NLRB is exploring the possibility of conducting elections through electronic/internet voting, a change that would represent a dramatic departure from the current manual ballot election process.
Use of a remote online voting process, like the one used by the National Mediation Board, presents many concerns, some of which the NLRB appears to acknowledge in its RIF. Such elections are ripe for outside interference, and the RIF asks for information on existing safeguards that are employed to prevent vote manipulation. Electronic or internet elections also lack the benefit of a pre-designated voting location, which tends to be a convenient room in the workplace, thus creating the potential for decreased voter participation. Again, the NLRB appears cognizant of this concern, as the RIF asks for comparisons on participation levels in traditional and electronic elections.
This early in the process, the RIF also poses numerous questions. When would this election procedure be used? Would it entirely replace the traditional election? Or would it be used only when in-person voting is impractical, due to the dispersion of the workforce? If the NMB is the model for the NLRB is in this regard, the answer is likely that the NLRB means to replace the old model, not supplement it, as the NMB uses this model exclusively.
Which brings us back to Member Becker. Unions have been agitating for speedier elections, which they believe will decrease an employer’s ability to dissuade workers from opting for representation. Electronic/internet elections could be set up to take place within a very discrete period of time and, free from the prying/curious eyes of their peers, workers might feel more comfortable casting a quick vote. If speedier elections is the goal of the prospective change, then perhaps Becker’s opponents were right to be concerned.
Especially if this is only the first of many changes wrought by the Obama NLRB.
