12/31/2007
2007 Year End Case Highlights

Below is an overview of several cases that impacted labor and employment law in 2007:

Case #1

The National Labor Relations Board (“NLRB”) ruled that five employees who were discharged and eleven others who were suspended were not entitled to reinstatement or back pay even though the employer violated the National Labor Relations Act (“NLRA”) by unlawfully installing hidden surveillance cameras.  It has long been NLRB precedent that an employer’s installation of hidden surveillance cameras in a union represented facility is subject to the obligation to first bargain with the union.  In this case involving Anheiser Busch, Inc., the Board determined that each of the employees had engaged in misconduct, that the discipline was for permissible reasons and that it was not required to make inquiry into the source of the employer’s knowledge of the misconduct.  The Board stated that its order requiring the employer to cease and desist from its unlawful conduct and to bargain with the union officially addressed the violation related to the installation of the cameras.  Two dissenting members of the Board indicated that a make whole remedy, including reinstatement and back pay, to the sixteen employees was required in that “but for” the unlawful conduct of the employer, the employee’s misconduct would not have been discovered.  Although this decision kept the employer’s misconduct from impacting the legality of the action against the employees, this is a pretty unique result when it comes to reviewing employer misconduct under the NRLA.

Case #2

The United States District Court for the Northern District of Oklahoma in Conoco Phillips Co. v. Henry issued a permanent injunction barring enforcement of an Oklahoma state law making it illegal for employers to prevent workers from keeping firearms in their locked vehicles on company property.  The federal district court ruled that the Occupational Safety and Health Act (“OSHA”) preempted the Oklahoma law and enforcement of the statute against any employer in the state subject to the OSHA.  The legislation was originally enacted to bar employers from prohibiting persons (except convicted felons) from transporting or storing firearms in locked vehicles on any property set aside for the vehicle.  The district court ruled that the statute conflicted with OSHA’s general duty clause which requires employers to protect workers from recognized hazards that are causing or likely to cause death or serious physical harm.  The court also found that the amendments to the statute interfered with OSHA’s aim at promoting workplace safety and that based upon information from the Bureau of Labor Statistics, the possession of unauthorized firearms on company property is a workplace hazard.

Case #3

In Patane v. Clark, the U.S. Court of Appeals for the Second Circuit held that a secretary’s experience related to her supervisor’s proclivity for pornography supported her hostile work environment and retaliation claims against her employer.  Ms. Patane, a secretary who worked in the Fordham University Classics Department, alleged Mr. Clark, a professor in the department, kept hardcore pornographic movies in his office, utilized office equipment to view pornographic movies and websites, and had pornographic video tapes shipped to his office where she was responsible for opening and delivering them to his mailbox.  Ms. Patane reported Mr. Clark’s activities and subsequently faced what she alleged was retaliation by being subject to an unjustified, negative performance evaluation.  Ms. Patane sued alleging gender discrimination, hostile work environment and retaliation, which was dismissed by the district court.  On appeal, the Second Circuit agreed that the secretary failed to state a claim for discrimination in that she did not plead facts that indicated the adverse action was taken against her because of her gender, but held that the allegations regarding the hostile environment and retaliation should not have been dismissed.  The court determined that based upon the United States Supreme Court’s 2006 ruling in Burlington N. and Santa Fe Railway Co. v. White, which broadened the scope of retaliation claims, Ms. Patane had made a sufficient showing that Mr. Clark and his supervisor conspired to force her out due to her complaints against Mr. Clark, and thus her claims of a hostile environment and retaliation should have been heard.

Case #4

In Holding v. Graham Manufacturing Corp., the Iowa Court of Appeals reinstated a one million dollar jury verdict awarded to a manufacturing employee who was repeatedly disciplined and then fired after she sought workers’ compensation benefits for on-the-job injuries.  The trial court issued a judgment for the employer notwithstanding the jury’s verdict, which was then reversed by the Iowa Court of Appeals.  The Appeals Court determined that there was sufficient evidence to find that the employee’s pursuit of her workers’ compensation benefits was the determining factor in the company’s decision to terminate her.  Of significance in the court’s decision was the fact that most, if not all, of the disciplinary actions taken against the employee were based on mistakes made by other workers and that the temporal proximity between her benefits claim and her discharge was sufficient to support the jury’s verdict.  The jury found in favor of the employee’s claims of wrongful discharge in violation of public policy and awarded her $25,000.00 for emotional distress, $50,000.00 in back pay, $50,000.00 in front pay and $775,000.00 in punitive damages.  The court remanded the case to the lower court to consider the company’s challenges to the amount of the damages.  While the damages might be reduced, the employer’s actions will undoubtedly remain subject to a significant monetary penalty.