Food fight erupts into melee at Minneapolis South High School
- Updated: February 15, 2013 – 6:16 AM
200 to 300 students involved; some cited racial, ethnic tensions.
200 to 300 students involved; some cited racial, ethnic tensions.
The answer depends on where you live. For Minnesota employers, the Federal Eighth Circuit Court of Appeals ruled in a case entitled Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007), that an employer is not required to reassign a disabled person to a vacant position ahead of better qualified applicants.
The Equal Employment Opportunity Commission(EEOC) believes otherwise, having asserted way back in 1999 that “reassignment means that the employee gets the vacant position, if s/he is qualified for it.” Courts in other federal circuits, including those in Colorado (10th Circuit), D.C. (D.C. Circuit), and Florida (11th Circuit), have agreed with the EEOC’s reading of the ADA.
The Seventh Circuit in Chicago had previously sided with the Eighth Circuit’s view on this issue, explaining that the ADA merely requires a level playing field and is not “an affirmative action statute.” However, last week they reversed course and ruled:
“[T]he ADA does indeed 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.” EEOC v. United Airlines Inc., No. 11-1774 (Sept. 7, 2012).
The court was not persuaded by the company’s “disability neutral” policy of hiring only the best applicant for a vacant job. They found that while an employer probably does not have to disregard a full-fledged “seniority system” (e.g., a system established by a collective bargaining agreement), a simple rule or policy does not create an “automatic exemption” from an employer’s duty to accommodate under the ADA. Instead, the employer must be prepared to show that “fact-specific circumstances” particular to the employer’s employment system would create an undue hardship and render mandatory reassignment of a disabled employee into a vacant job unreasonable.
Remember that this is a Seventh Circuit decision so it does not directly impact Minnesota employers. However, the EEOC’s success in getting the Seventh Circuit to flip flop almost certainly will spur them to seek the same from the Eighth Circuit. Therefore, while the law governing Minnesota says that we can remain “disability neutral” and not give preference to a disabled employee over more qualified applicants for a vacant job, we definitely can sense a possible change in the wind.
We will keep you up to date as this emerging issue continues to develop.
In a union workplace, the collective bargaining agreement (CBA) outlines rights for both employees and the employer. It also defines the powers an arbitrator may have if called on to interpret the contract. If the arbitrator goes too far, a court can reverse his or her decision.
Recent case: Ruben’s union job at a Corpus Christi door manufacturer required him to operate a tool that, if misused, could cause serious injuries. It was equipped with a guard to protect employees’ hands from harm.
Ruben was caught reaching around the guard. He admitted he regularly did so, even though he knew it was against safety rules. Ruben’s employer fired him, skipping several steps in the progressive discipline system because it considered his violation so serious.
The union took the case to arbitration, where the arbitrator concluded that Ruben broke the safety rules, and that his violations were indeed serious.
But then the arbitrator went further. He compared the violation to other violations and concluded management hadn’t fired everyone who broke serious safety rules. He ordered reinstatement.
The company immediately appealed. It won when the court concluded the arbitrator wasn’t authorized to do anything other than decide whether the rule in question dealt with a serious safety hazard and whether the employee broke the rule. Anything else was outside his authority. Management had the exclusive right to decide what the punishment should be. (Horton Automatics v. The Industrial Division of the Communications Workers of America, et al., No. c-11-381, SD TX, 2012)
Final note: Labor law isn’t a do-it-yourself project. Get expert legal help when negotiating union contracts. An experienced labor attorney can help you preserve as much management authority as possible.
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On April 25, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued newEnforcement Guidance on using arrest and conviction records when making employment decisions. The EEOC is aggressively pursuing this issue, as reflected by EEOC Commissioner Ishimaru’s remark at a recent public meeting that the EEOC is currently investigating hundreds of cases where employers unlawfully used criminal history in employment decisions.
What an Employer Can Ask?
The Guidance recommends that employers not ask about convictions on applications. When such questions are asked during other parts of the pre-employment process, they should be job-related.
The Guidance states in no uncertain terms that use ofarrest records is not job related. However, when an applicant or current employee is arrested, the underlying conduct that led to the arrest can be considered if it renders the individual unfit for a position and only if the conduct is verifiable and not based solely on the fact of an arrest.
What Factors Should Employers Consider?
The EEOC has long declared that decisions based on a criminal conviction must consider these factors: (1) the nature and gravity of the offense(s), (2) the time that has passed since the conviction and/or completion of the sentence, and (3) the nature of the job held or sought. The new Enforcement Guidance, adds substance to these declarations.
Considering the nature and gravity of the offense(s) requires evaluating the harm caused, the legal elements of the crime, and the classification (i.e, misdemeanor or felony). As to the amount of time that has passed, employers should evaluate each case individually and consider studies of the risk of recidivism. As to the nature of the job, the EEOC says to look beyond the mere job title to analyze the duties, essential functions, and work environment.
Is an Individual Assessment Required?
While stopping short of saying that an individualized assessment is needed, the EEOC makes clear that “the use of a screen that does not include individualized assessment is more likely to violate Title VII.” An individualized assessment generally means that an employer (a) informs the individual that he may be excluded because of past criminal conduct, (b) provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him, and (c) considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.
Employer Best Practices
The Guidance suggests several “Best Practices” for employers who are considering criminal record information when making employment decisions.
In Barker v. County of Lyon, — N.W.2d —-, 2012 WL 1570133 (Minn. Ct. App. May 7, 2012), the Minnesota Court of Appeals recently held that it is unreasonable as a matter of law for an employee to rely on provisions of a personnel handbook if the handbook also contains a disclaimer warning that the employer can modify or eliminate any of the policies at any time.
The case involved the Lyon County personnel manual, which had been altered numerous times over the years. In 1985, the manual guaranteed retiring employees certain benefits. In 1991, the manual was amended to include a provision stating that the county reserved the right “to change any of these policies, after notice to and input from employees.” In 1995, the county added a clause on the front of the manual in large, bold-face capital letters stating, “THIS POLICY MANUAL IS NOT AN EMPLOYMENT CONTRACT.”
In 1999, the manual was amended yet again to cut off the retirement benefit for employees hired after May 1, 1997. Finally, in 2009, another change to the manual capped the retirement benefit for all employees, including those hired before May 1, 1997.
Several current and former employees who lost benefits as a result of the amendments brought suit based on the theory of promissory estoppel, which is a legal term meaning “detrimental reliance.” To succeed with such a claim, the employees needed to show that (1) the county made a “clear and definite promise”; (2) the county intended to induce the employees to rely on the promise; (3) the employees reasonably relied on the promise to their detriment; and (4) the promise must be enforced to prevent injustice.
Like the district court, the appellate court ruled against the employees, finding that their reliance on the pre-2009 versions of the manual was unreasonable because of the disclaimer. The court further rejected the employees’ argument that they could rely on oral promises made by county representatives. The court reasoned that “any reliance on oral promises that contradicted provisions in the policy manual was, as a matter of law, unreasonable” because such representations explicitly contradicted the manual’s disclaimer.