Heyl Royster

 


Heyl Royster

 

Recent Developments In The Courts

3/25/13

EEOC v. United Airlines: Seventh Circuit Changes Employer Accommodation Analysis Under The ADA

Under the ADA, employers are required to provide reasonable accommodations to disabled employees. One possible “reasonable accommodation” is reassignment to a vacant position.

In 2000, the Seventh Circuit ruled that an employer was not required to reassign a disabled employee to a job for which there is a better applicant, provided that it was the employer’s consistent and honest policy to hire the best applicant for the particular job in question. This ruling was overruled by the Seventh Circuit in EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012), issued on September 7, 2012.

According to United Airlines, the ADA does mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. On the issue of reasonableness, the court noted that the fact an accommodation would provide a “preference” cannot, in and of itself, automatically show that an accommodation is not “reasonable.”

In determining whether reassignment is a reasonable accommodation, the court adopted a two-step framework. The first question a court will consider is whether mandatory reassignment is ordinarily a reasonable accommodation. If yes, the court must then consider if there are fact-specific considerations particular to the employer’s employment system that would create an undue hardship and render mandatory reassignment unreasonable.

The court indicated undue hardship may occur if reassignment runs afoul of a collective bargaining agreement. It did not identify any other circumstances where an undue hardship might be found. In the coming months and years, district courts in the Seventh Circuit will likely identify additional undue hardships. However, since United Airlines, there have not been any district court opinions published on the subject.

In reaching its conclusion, the Seventh Circuit relied on case law from the Tenth Circuit. While not binding, this Tenth Circuit decision identified factors that are helpful considerations:

The reassignment obligation extends only to existing vacant positions. The
employer is not required to create a job or to modify the essential functions of a vacant job. If other employees have contractual or seniority rights to a vacant job, it may not be considered vacant for reassignment purposes.

The disabled employee must be qualified for the vacant position.

The employer has the authority to pick which appropriate vacant job is to be offered.

 No reassignment is required if it is not reasonable or poses an undue hardship.

Aside from the foregoing factors, there are a number of factual issues that must be considered on a case-by-case basis with respect to any individual that contends he is disabled.

Knox v. Service Employees:  The United States Supreme Court Addresses the Requirements a Union Must Meet in Order to Collect Regular Fees From Nonmembers

In Knox v. Service Employees Intern. Union, Local 1000, 132 S.Ct. 2277 (2012), the United States Supreme Court addressed the Teachers v. Hudson, 106 S.Ct. 1066 (1986) decision which sets out the requirements a union must meet in order to collect regular fees from nonmembers without violating their rights. In Knox, the respondent (a public sector union) sent California employees its annual Hudson notice setting and capping monthly dues and estimating that 56.35 percent of the total expenditures in the coming year would be chargeable expenses. A nonmember had thirty days to object to full payment of dues but would still have to pay the chargeable portion. After the thirty day objection period ended, the union sent a letter to unit employees announcing a temporary 25 percent increase in dues and a temporary elimination of the monthly dues cap, billing the moves as an “Emergency Temporary Assessment to Build a Political Fight Back Fund” in order to achieve the union’s political objectives in the special election and in the upcoming November 2006 election. Petitioners, on behalf of nonunion employees who paid into the fund, brought a class action against the union alleging violation of their First Amendment rights. The court held 1) that the voluntary cessation of challenged conduct does not ordinarily render a case moot because that conduct could be resumed as soon as the case is dismissed; and 2) under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent.

Christopher v. SmithKline Beecham Corp.:  The United States Supreme Court Addresses Payment of Overtime to Outside Salesmen

In Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012), the petitioners were employed by the respondent as pharmaceutical sales representatives for approximately four years. During that time their primary objective was to obtain nonbinding commitments from physicians to prescribe respondent’s products in appropriate cases. Each week the petitioner spent about forty hours in the field calling on physicians during normal business hours and an additional ten to twenty hours attending events and performing other miscellaneous tasks. Petitioner ultimately filed suit alleging that the respondent violated the Fair Labor Standards Act which requires employers to pay employees overtime wages. The respondent moved for summary judgment, arguing the petitioner’s were “employed in the capacity of outside salesmen” and were, therefore, exempt from the FLSA’s overtime compensation requirement. The district court agreed and granted summary judgment. After making its way to the Supreme Court, the Supreme Court held that petitioners qualify as outside salesmen under the most reasonable interpretation of the Department of Labor’s Regulations.

Kasten v. Saint-Gobain Performance Plastics Corporation:  Oral Complaints May Qualify as Protected Activity Under the FLSA

Kevin Kasten sued Saint-Gobain alleging unlawful retaliation for lodging oral complaints regarding the location of time clocks under the Fair Labor Standards Act. He complained that the clocks were placed in locations which caused him to frequently forget to punch in, notifying his supervisors on at least five occasions that the location was “illegal.” He was disciplined for failing to punch in on several occasions, was suspended and ultimately terminated. The district court granted summary judgment for the employer on the ground that oral complaints do not constitute protected activity under the FLSA and the Seventh Circuit affirmed the decision.  On certiorari, the Supreme Court vacated and remanded holding that oral complaints may qualify as protected activity where they provide fair notice that an employee is asserting his rights under the FLSA. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (2011). The case was remanded to the district court who granted summary judgment in the employer’s favor. The Seventh Circuit then held that Kasten had provided evidence which would support a jury inference of retaliation so it reversed the district court’s grant of summary judgment and remanded for further proceedings.