You and the Law
Summer-Released Employment-Law Cases No Picnic for Employers
In the retaliation cases, the U.S. Supreme Court held:
• Six-to-three that federal government employees who complain of age discrimination can bring a retaliation claim (just like private workplace employees can) under the Federal Age Discrimination in Employment Act (ADEA). Gomez-Perez v. Potter, No. 06-1037 decided May 27, 2008); and
• Seven-to-two that an employee losing his job after complaining about alleged racially discrimination treatment of another employee, can bring a federal Section 1981 civil rights statute civil claim. CBOS West, Inc. v. Humphries, No. 06-1431, also decided May 27.
The justices relied upon retaliation rights upheld previously under Title VII and other antidiscrimination statutes to expand these two statues to include retaliation protection of employees.
These decisions expanding retaliation rights by a large majority of justices seem to be a departure from recent five-to-four pro-employer discrimination and labor-law decisions. The court apparently wanted to maintain consistency in the interpretation of the federal antidiscrimination statutes, even though there was an absence of an express “retaliation” rights wording in these two statutory sections.
The more troubling decision for employer defense of age discrimination (ADEA) cases came in Meacham v. Knolls Atomic Power Lab. No. 06-1505, where the court on June 19, 2008, held:
• Seven-to-one that an employer defending a disparate-impact age discrimination claim bears both the burden of production and the burden of persuasion that “reasonable factors other than age” were the basis for an adverse employment decision, if that justification is used as a defense.
The court toughened the employer’s affirmative defense of “reasonable factors other than age.” This defense can be found as an exception contained in the ADEA statute which reads as follows:
“It shall not be unlawful for an employer to take any action prohibited (under the ADEA)…where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business (the so-called BFOQ defense) or where the discrimination is based on reasonable factors other than age” (the so-called RFOA defense).
Where an employer claims the benefits of an exception to liability under a protective rights statutes, courts often declare that to be an “affirmative” defense, which the employer must prove. That was the reasoning here.
The context of this case was a reduction-in-force implemented by the Knolls Laboratory, which resulted in the layoffs of 31 employees—30 of whom were over the age of 40. These layoffs allegedly were made based on non-age factors including “performance, flexibility and critical skills.” After a jury awarded these employees $6 million, the employer appealed and the U.S. Court of Appeals (2nd Circuit) reversed and imposed the burden of proof upon the plaintiff exemployees of showing that reasonable factors other than age were not the base for the employer’s decision. Then the U.S. Supreme Court reversed, and determined that the burden of proof of this RFOA affirmative defense belongs upon the employer. The court sent the case back to the 2nd Circuit Court of Appeals to review the evidence under this burden-of-proof standard.
Employer’s Errand Request to be Performed on Employee’s Day Off Triggers Worker’s Comp Coverage
A construction company requested one of its employees to deliver some equipment to a jobsite on his day off. The employee normally operated a grout-pump machine; his job duties did not typically involve driving or delivering. During his day off, after he had delivered the equipment, he was injured in a motor vehicle collision. He then filed a worker’s comp claim for his injuries. His employer resisted the claim by arguing that the employee’s injuries were not caused or connected to risks related to his employment as a grout-pump operator.
The case made it up to the Nevada Supreme Court. Citing similar rulings from Minnesota and Washington State, the Nevada Supreme Court ruled that the employee was entitled to his worker’s comp benefits for injuries occurring within the employer’s errand request.
In the court’s words:
“Injuries that are normally exempted from coverage on the ground that they did not arise in the course of employment are brought within the scope of coverage if they occur while the employee is in transit to or from the performance of an errand outside the employee’s normal job responsibilities.
“Just as injuries sustained while traveling to perform a special errand arise in the course of employment, so too do injuries sustained when returning from the performance of the special errand. But…while we conclude that the special-errand exception encompasses both outgoing travel and a return journey, factual issues remain regarding whether Murphy’s injuries were sustained during his return journey or after resuming a personal journey.”
Special errands having a business purpose benefitting the employer trigger an exception in a number of states to the “going and coming” rule. Under the special-errand exception, even though going and coming from work (i.e. commuting) generally is not in the course of employment, an employee is considered to be acting within the course of his or her employment when completing a special errand for the employer, on both legs of the errand—unless he detours too far away from his special-errand route and gets injured on a wholly personal venture. MF
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