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August 2007 - Vol. 9, No. 7
The Employer E-Letter: Labor and Employment Law News from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.
Editor, Richard R. Burns, rrb@hanftlaw.com or 218.529.2433.
Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
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THIS MONTH'S TOPICS:
- TIMELY COMPLAINT TO EEOC
- AMERICANS WITH DISABILITIES ACT (ADA) - NONDISCRIMINATION
- FEDERAL MINIMUM WAGE
- TIP OF THE MONTH
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TIMELY COMPLAINT TO EEOC
The Supreme Court recently held a claim of sex discrimination under Title VII against Goodyear Tire Company was time-barred because it did not contain allegations of discrete discriminatory acts within 180 days of the Equal Employment Opportunity Commission (EEOC) complaint.
Lilley Ledbetter was employed by Goodyear for 19 years, until 1998. As an area manager, her salary was not increased at a comparable rate of her male counterparts' salaries over the period of her employment. Ledbetter alleged in her EEOC complaint that Goodyear had paid her in a discriminatory manner due to the fact that she was a woman – arguing that each paycheck was a separate act of discrimination.
The Court determined that a valid Title VII claim requires an act of discrimination, such as termination, failure to promote, refusal to hire or denial of transfer. Individual paychecks do not qualify as discrete acts of discrimination, but pay decisions do. Noting that the EEOC filing deadline 'protect[s] employers from the burden of defending claims arising from employment decisions that are long past,' the Court ruled that the "EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent non-discriminatory acts that entail adverse affects resulting from the past discrimination."
While the decision does not condone unequal pay or other discriminatory acts, the Court recognized that the necessary intent to discriminate was missing during the statutory 180 day limitation period in Ledbetter's claim.
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AMERICANS WITH DISABILITIES ACT (ADA) - NONDISCRIMINATION
The Eighth Circuit Court of Appeals (which includes Minnesota) has followed the Seventh Circuit Court of Appeals (which includes Wisconsin) in holding that an employer, who has an established policy to fill vacant job positions with the most qualified applicant, is not required to reassign a qualified disabled employee to a vacant position if that disabled employee is not the most qualified applicant.
In Huber v. Wal-Mart Stores, Inc. (8th Cir. 2007), the employee had been assigned to a new, but lower paying, position. Under the ADA, the scope of reasonable accommodations may include: job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustments or modifications of examinations; training materials or policies; and even qualified readers or interpreters for individuals with disabilities. While the Seventh Circuit had suggested that reassignment provisions are mandatory if the disabled person would be able to fully perform the position, both the Seventh and Eighth Circuit Courts will not require the employer to turn away a superior applicant. A contrary rule would convert a nondiscriminatory statute into a mandatory preference statute, which would be inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employer and co-workers of disabled employees. This is now the majority position.
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FEDERAL MINIMUM WAGE
The Federal minimum wage increased to $5.85 on July 24, 2007. This will have little effect on large Minnesota employers who are required to pay $6.15, but might catch some smaller employers, who were only required to pay $5.25. For budgeting purposes, one should realize that the Federal minimum wage will be $6.55 in July 2008 and $7.25 in July 2009. Also remember you need to post an updated federally-required poster.
In regard to overtime, the U.S. Department of Labor recently debuted a new tool that certainly will be used by employees to make sure that the employer is properly calculating overtime. It will do a good estimate of what an employee should have been paid. The calculator, called the "FLSA (Fair Labor Standards Act) Overtime Calculator Advisor," can be found at www.dol.gov\elaws\otcalculator.htm.
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TIP OF THE MONTH: You will recall that exempt employees who work any part of a work day must be paid for the full day. If you have not established a policy, you can charge back against an employee's bank of sick time or vacation time for his or her time off, lateness or early leaving due to illness, although you are not permitted to discipline an offending employee by docking his/her pay for only working part of a day. You should turn to your progressive discipline policy and recognize that you can only suspend without pay in whole week increments, except for serious work violations.
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Hanft Fride's business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth Minnesota. Visit our website at www.hanftlaw.com. In addition to general information on the firm and our attorneys, you can find past issues of this newsletter. Keep checking back for new information, and let us know if there is anything you would like to see added to the site that would help you and your organization. Our employment lawyers include Richard Burns, Tom Torgerson, Rob Merritt and Gabe Johnson.
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The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E-letter.
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To subscribe or unsubscribe to Employer E-Letter, e-mail your request to Richard R. Burns, rrb@hanftlaw.com or call 218.529.2433.
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Copyright 2007 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; fax 218.529.2401.
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