Tag Archives: United States

A Jury Duty Refresher and Warning

Contributed by Julie Proscia

Lesson number one:      Know the Federal and State rules regarding jury duty;

Lesson number two:      When a Judge sends you a letter do NOT throw it away.

In a recent turn of events a federal judge, Judge Holderman, appointed a lawyer to represent an employee that was terminated while serving jury duty in his court room. The employee was hired as a sales associate by HHGregg in August 2011. In January of 2012, the employee was called for jury duty by the federal district court for Northern Illinois. He was picked for the panel and notified his employer that the trial could last as long as 10 or 12 weeks.

The trial began on a Thursday, and the employee reported for work the following Saturday. On Saturday the employee informed his manager that he couldn’t meet his Sunday work schedule. Approximately two hours later, the manager called the employee into his office and fired him, allegedly stating that the employee was being terminated for not meeting his sales quotas. While the employee had previously received counseling regarding his low sales numbers, he had never been disciplined.

The employee notified Judge Holderman of the termination and his belief that the termination was related to jury duty. Lesson Number one: Know the law, under both the Federal and Illinois judicial systems, employees cannot be terminated or retaliated against for serving on a jury. Although there is no Federal or Illinois law that requires employers to pay non-exempt employees for their service, they cannot be retaliated against for being called or selected for service. Because the employee was called for federal jury duty, federal law applied. Under federal law, the presiding judge can investigate the termination to determine if the termination appears to have been based on the employee’s jury service; if the Judge finds “probable merit” that the termination was related to the service the Judge can appoint a lawyer to plead the juror’s case and initiate a lawsuit against the company. And this, my friends, is exactly what happened.

First, Judge Holderman sent correspondence to the HHGregg store management, requesting an explanation regarding the employee’s termination. No response was given. Lesson number two: Do not blow off the judge. When no response was given the court proceeded to investigate the matter. During the investigation Judge Holderman learned that virtually all the sales associates were still “on a draw” for potential commissions, many were failing to meet their quotas, and only one other associate had been disciplined, but not terminated, for low sales. This news likely did not endear the company to the court. Instead the problem was compounded when the court learned that the company has a policy that requires employees on jury duty to be paid minimum wage for the first 30 days and one-half minimum wage after that. This led to the belief that the employee was terminated to avoid the payment of wages and this belief resulted in the appointment of counsel and a result that will likely not be favorable for the company.

Moral of the lessons learned, know your state and federal jury duty laws, if you do not know them, call your labor and employment attorneys for advice prior to effectuating an adverse action. Terminations during jury service appear suspect; make sure you have a good trail to explain why the termination is based on a legitimate business reason. And if a Judge knocks on the door don’t hide behind the door and pretend that you are not home — it did not work when we were teenagers, it is not going to work now. 

In re Henders, N.D.Ill., No. 12-c-1147 (Feb. 17, 2012).

NLRB’s Ambush (Quickie) Election Rule No Longer in Effect (for now…)

As we previously reported in our blog, the NLRB’s ambush (aka “quickie”) election rule went into effect on April 30, 2012.  The rule sought to dramatically shorten the time frame in which a union representation election will take place. In short, the rule limited the issues employers could raise in the pre-election process (i.e. determining which employees are considered supervisors, and which employees constitute an appropriate bargaining “unit” would no longer be permitted before the election took place) and significantly diminished employers’ ability to appeal unfavorable decision-making at the local board level. The net effect forced employers to counter union organizing campaigns in 14-21 days versus the previously set time frame of approximately 42 days. 

Yesterday, May 14, 2012, a U.S. District Court ruled that the NLRB’s Ambush Election Rule is invalid and no longer in effect because no proper quorum of members existed when the rule was voted on and passed.  U.S. Chamber of Commerce et. al. v. NLRB (D.C. Cir. 1:11-cv-02262). 

Effective immediately, NLRB election procedures revert back to how they had been prior to this April 30, 2012 rule making, which means employers can expect an approximate 42 day window before an election, as opposed to 14-21 days.  We expect the NLRB will likely appeal this decision. 

SmithAmundsen’s Labor & Employment Practice Group recently received one of the first quickie election petitions in the United States, and the new rule was indeed decidedly working against employers.  Unfortunately, this issue isn’t quite over… but this is a significant victory for employers who prefer to remain union free in whole or in part.  As always, more detail will follow as new developments arise.

A Question From a Follower…

One of our blog followers recently submitted a question about whether there have been any recent attempts to repeal or dramatically amend the Pension Protection Act of 2006 (PPA), which instituted the most comprehensive reform of the U.S. pension laws since the Employee Retirement Income Security Act of 1974 (ERISA) was passed.  The PPA affected, and continues to affect, all varieties of retirement plans including defined benefit plans, defined contribution plans, and deferred compensation plans for executive and other highly compensated employees.

There have been no “breaking-news” attempts to repeal or gut the PPA like the ones we are hearing about with respect to the Patient Protection and Affordable Care Act, in fact, there is little news at all regarding the PPA.  That being said, 2012 does mark the end of the phase-in period for the new interest rates to be used when a defined benefit plan participant elects, pursuant to the terms of the plan, for a lump sum payout when the participant quits or retires.

Beginning in 2008, the PPA modified the mortality tables and interest rates that defined benefit plans must use when calculating the minimum value of lump-sum payouts.  The new mortality table, which reflects recent increases in life expectancy, went into affect in 2008.  The estimates are that the change in the mortality table has or will result in increases in the value of lump-sum payouts by 1% to 2%.  Prior to the PPA, defined benefit plans used the prescribed current interest rate on 30-year U.S. Treasury bonds to calculate the current lump-sum value.  The PPA requires that plans now use the corporate bond interest rate to calculate such a value.  The impact of interest rates on lump-sum payouts is inverse—the higher the interest rate, the smaller the lump-sum.  The T-bond interest rate has been historically lower than interest rates on corporate bonds, so, in theory, this change will ultimately result in lower lump-sum payouts. 

While blogging on “the actual impact of the phased-in change in interest rates to be used when calculating the minimum value of a lump-sum payout” six months from now sounds intriguing, I think I’d rather answer another blog follower’s question.  Followers – thanks for following and thanks for submitting specific questions – keep ‘em coming.

Cerebral Accommodation: ADA Claims for Mental, Psychological, Psychiatric and Intellectual Deficit Disabilities – A few thoughts – Part 1

Contributed by Terry Fox

Recognized disabilities protected under the ADA have expanded, following the Congressional Amendments to the ADA of 2008 (eff. Jan. 1, 2009).  These expanded protections now include more disabilities “of the mind,” in addition to more concrete physical infirmities. “Disability” now includes limitations on major life activities of cognitive and mental processes.   Essentially, the EEOC has extended “disability” to the life activity of “thinking,” as evidenced by its revised compliance manual and regulations.

This expansion presents considerable concern for the employer. Confirming and understanding a mental or cognitive disability can be a difficult process to navigate, and accommodating such a disability can require some level of sophistication and, in some cases, a little creativity. It is clear that where there is a professional diagnosis of a mental condition, particularly where the DSM-IV diagnostic codes are utilized, the employer can generally accept the professional diagnosis as substantiation of a disability.  Of more concern is a situation where the family or nurse practitioner provides a diagnosis of Attention Deficit Disorder or a similar problem or a notice of disability, for example in Carlson v Carroll University (involving student under Title II of ADA). If the diagnosis is unclear or non-existent, the employer may refer the employee to a qualified medical professional for review and assessment.  However, the medical review-assessment must be job-related and consistent with business necessity.  All records concerning the employee’s condition must be stored in a separate, confidential file.    

The starting point for any employer is to focus on the claimed disability.  An ADA disability requires either a physical and/or mental impairment, coupled with a substantial limitation of one or more major life activities caused by said impairment. For example, fear, which is a cognitive or thinking process, itself does not implicate a “disability.”  Late night employees at a Florida Sonic Drive-In were present for one or more armed robberies, including an instance where a gun was put to the head of an employee and she was told she’d be killed. All employees articulated fear of working that shift and asked for a change to daytime work.  Those employees were terminated and they sued under the ADA, claiming both to be disabled and for being treated as disabled by their employer.  Wallner v. MHV Sonics, Inc.  Fear of future robbery was found to be transitory and minor, and the employer was not liable under the “regarded as disabled” prong where the condition was transitory and minor.  Similarly, fear of cancer and fear of snakes, without more, do not qualify as “disabilities.”  Fear of large social settings is not a disability because it is not atypical of the general populace.  Bialko v. Quaker Oats Co. 

In the next installment, we’ll address specific issues regarding accommodation. . . .