You and the Law



Of Reimbursement Retaliation and Reasonable Accommodation

Monday, September 1, 2008
Case 1

Absence of OSHA proof of the presence or likely presence of a potential or inherent serious hazard, an employer was not required to “select” personal protective equipment (PPE) for certain wet-workplace employees. The court further determined that the employer did not have to provide for or reimburse employees for PPE even if selected by the employer (in this case rubber boots) unless the PPE item would not reasonably or normally be worn a from the workplace. The Washington State Court of Appeals found that Tyson Foods did not violate either of the following WISHA (Washington Industrial Safety and Health Act) standards when it failed to select, provide or pay for wet boots as PPE for 16 employees in its slaughter department.

• The first occupational safety regulation requires employees to “select” PPE to protect employees from workplace hazards (“if hazards are present or likely to be present”).

• The second regulation establishes when the employer is required to provide and pay for PPE:

The employer must: 1) provide PPE wherever hazards exist from processes or the environment, 2) provide necessary PPE to employees at no cost to the employee if the PPE will be used to protect against hazardous materials; or is the type that would not reasonably or normally be worn a from the workplace, such as single-use or disposable PPE.

The state appellate court then determined how the terms in these two WISHA standards were defined and integrated for compliance.

“Examples of PPE that the employer must provide are: Boots or gloves that could become contaminated with hazardous materials in the workplace.” “Hazard” is defined as: “Any condition, potential or inherent, which can cause injury, death or occupational disease.” The term “likely” is ordinarily defined as probable, not merely possible. Reviewing the regulations in context with one another and applying the definitions, an employer is required to “select appropriate PPE for…employees if hazards (any condition, potential or inherent, which can cause injury, death or occupational disease) are present, or likely (probable) to be present.” An employer then must provide and pay for “selected” PPE that “will be used to protect against hazardous materials; or is the type that would not reasonably or normally be worn a from the workplace, such as single-use or disposable PPE.”

There was no proof of a suspected exposure to a hazard (i.e. brucellosis or E. coli) because the WISHA inspector:

• Did not test the workplace for any biological hazards during inspection,

• Did not inspect Tyson’s OSHA 300 illness and injury logs, and

• Admitted he was not aware of any evidence that brucellosis bacteria have actually ever been present at this plant.

Finally, the court examined the testimony of whether this type of PPE was uniquely worn only at the workplace or was taken home. Tyson’s superintendent trainee testified that employees could buy rubber boots from Tyson or outside sources, and may leave their boots in company lockers or take them home. He testified he also had taken his rubber boots home for personal use and he had seen another employee take rubber boots from the premises. The WISHA compliance office conceded that employers are ordinarily not required to pay for PPE that can be used outside the workplace and “wet boots” were the type of PPE that an employer would not have to pay for since they could be used outside of the workplace. Department of Labor & Industries v. Tyson Foods, Inc.

Case 2

Former employees can claim FLSA (Federal Labor Standards Act) retaliation if a reasonable employee would have been dissuaded by the employer’s adverse action.

After being terminated by his employer, the plaintiff salesman sued under the federal FLSA for failure to pay overtime. The employer defendant then sued the exemployee, alleging that he fraudulently concealed the loss of a sales contract. The exemployee then amended his FLSA complaint to include an FLSA retaliation claim, contending that the employer’s fraud suit, filed 15 days after the exemployee’s overtime pay lawsuit, was without basis in fact or law.

Even though the management-oriented salesman-overtime-pay claim was found without merit (because his former job position was determined to be an exempt administrative position), the Appeals Court allowed the retaliation claim to proceed to trial.

A plaintiff asserting a prima facie claim of retaliation under FLSA must show that 1) he engaged in an activity protected by FLSA; 2) he suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and 3) that a causal connection exists between the employee’s activity and the employer’s adverse action. The employer argued that prong number two was missing (an employee who was terminated six months earlier could not have faced or endured any “employment” adverse action). But the Appeals Court looked to EEO Title VII employment discrimination cases and found the broad definition of “employees” was protected, and the antiretaliation clauses to be similar to that in the FLSA statute.

And the U.S. Supreme Court had already ruled in NLRB cases that a lawsuit filed by an employer against an employee can constitute an act of unlawful retaliation under another federal statute governing employment rights when the lawsuit is filed with a retaliatory motive and lacking a reasonable basis in fact of law. Under Title VII, a plaintiff alleging retaliation requires a plaintiff simply to allege and prove that a reasonable employee might have been dissuaded from making or supporting a charge of discrimination. Former employees need protection, the Appeals Court indicated, because they rely upon former employers for references and could face retaliation from new employers who learn they challenged the practices of previous employers. Darveau v. Detecom, Inc.

Case 3

U.S. Court of Appeals for the Eighth Circuit holds that an employer’s duty of “reasonable accommodation” under the Title VII federal antidiscrimination employment law does not need to eliminate any religion-work conflict. Disagreeing with two other federal circuit courts, the Eighth Circuit Court reasoned:

“A rule mandating that employees be given their preferred accommodations would be inconsistent with the intended purpose of Title VII’s reasonable accommodation provision, to foster ‘bilateral cooperation’ in resolving an employee’s religion-work conflict” and “Bilateral cooperation under Title VII requires employers to make serious efforts to accommodate a conflict between work demands and an employee’s sincere religious beliefs. But it also requires accommodation by the employee.”

The facts: The plaintiff, Todd Sturgill, was a full-time package car driver for United Parcel Service (UPS) in Springdale, AR. UPS terminated Sturgill when he refused to complete his route on December 17, 2004, because working past sundown on a Friday would violate his beliefs as a member of the Seventh Day Adventist Church. Sturgill commenced this action, claiming that UPS discriminated against him on account of his religion in violation of Title VII. After lengthy trial, the jury found that UPS violated Title VII by failing to reasonably accommodate Sturgill’s religious observance or practice. The jury awarded Sturgill $103,722.25 in compensatory and $207,444.50 in punitive damages. The district court denied UPS’s motion for judgment as a matter of law and awarded Sturgill reinstatement, front pay to the date of reinstatement, an injunction requiring UPS “to accommodate his religious observation of the Sabbath in the future,” and $134,838.37 in attorneys’ fees and costs. UPS appealed, raising numerous issues.

The manager tried to accommodate the employee’s request to complete his work on Fridays by sundown in order to observe the Sabbath, by splitting package loads with other drivers on Fridays. But the manager later decided that a permanent solution would adversely impact operation. When he failed to deliver some preholiday packages by sundown on Friday, the driver was fired for job abandonment. The trial court judge instructed the jury that a reasonable accommodation must entirely “eliminate” the conflict between religious beliefs and work requirements.

The Appeals Court found that despite this jury instruction, the error did not adversely affect the jury’s verdict and upheld its award of compensatory damages, reinstatement, front pay, attorney’s fees and costs, but reversed punitive damages and injunctive relief. The court reasoned that UPS failed to prove its defense that further accommodation would have caused undue hardship on company operations. Termination over a one-time failure to accommodate supported the jury’s verdict, in the view of the Appeals Court. Sturgill v. United Parcel Service, Inc. MF


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