Kentucky Employment Law Blog

Production of Confidential And Irrelevant Documents Dooms Retaliation Case

An employee's production to her lawyer of confidential but irrelevant to her case doomed her retaliation lawsuit the Sixth Circuit Court of Appeals ruled in Niswander v. Cincinnati Insurance Company (No. 07-3738 decided June 24, 2008).  The plaintiff, Niswander, was a plaintiff in a class action lawsuit claiming that the  insurance company employer discriminated against women in their pay.  In response to a pretrial discovery request for documents made by the insurance company, Niswander provided her lawyer with confidential documents that she admitted were irrelevant to her equal pay claim but did serve to jog her memory about acts of retaliation toward her.  Since Niswander admitted that the documents were not relevant to her equal pay claim, the court ruled that her production of the documents to her lawyer did not constitute protected activity for which retaliation would be unlawful.  Therefore, the court ruled that the employer lawfully terminated her for violating its confidential documents policy and upheld the trial court's summary judgment dismissal of her retaliation claim. 

What doomed Niswander's claim was her admission that the documents were irrelevant to her equal pay claim, the only claim she had pending at the time of the documents' production.  The Sixth Circuit advised that an "individual's delivery of relevant documents during the discovery process or the giving of testimony at a deposition clearly falls within the ambit of participating 'in any manner' in a Title VII proceeding." 

Robert L. Abell
www.robertabelllaw.com

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Age Discrimination Verdict Upheld by Kentucky Supreme Court

    A jury verdict finding age discrimination and awarding damages was upheld by the Kentucky Supreme Court in Childers Oil Company, Inc. v. Adkins (No. 2007-SC-000032 and available at the Kentucky Court of Justice website here). 

    Adkins was hired as a cashier and later moved to a kitchen position when food operations were started.  The kitchen was later shut down and Adkins fired, although she requested that she be returned to her cashier's job.  She, who was age 47, presented evidence that a much younger cashier had been hired only 11 days before she was fired, that management had commented that it wanted "young, pretty, and skinny" girls working as cashiers so as to attract truckdriver business.  There was also evidence that the store posted a "Now Hiring" sign in its window after Adkins was fired.   Adkins was awarded by the jury $50,000 for emotional distress damages and  $11,922 for lost wages. 

Robert L. Abell
www.robertabelllaw.com

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Police Officers Must Be Paid for Time Spent Putting On and Taking Off Required Uniform and Equipment

    Police officers must be paid for time spent putting on and taking off required uniform and equipment a federal district court in California has ruled.  Such time is compensable the court ruled in Lemmon_v_City_of_San_Leandro (U.S. District Court, N.Dist. of California, No. 06-07107).
    Patrol officers were required to wear a "Class B" uniform while on duty along with attendant equipment including a gun holster, ammunition, ammunition holders, handcuffs, handcuff case, tear gas canister, taser, taser case, baton ring, radio case, radio and gun, all of which attach to a duty belt.  When not on duty officers were expected to "cover up" their uniforms.  Some officers changed at home but almost all donned and doffed their uniform and equipment at the police station where they were supplied with lockers. 
    Under United States Supreme Court precedent "activities performed either before or after the regular work shift" are compensable "if those activities are an integral and indispensable part of the principal activities for which [the employee is] employed."  This criteria was met, the court reasoned, because the uniform identifies the police officer as an authority figure, "which is essential to the efficient performance of police work."  The officer's equipment is likewise indispensable because it is "necessary for them to perform all their law enforcement activities." 
    The court also analogized a police officer's uniform to safety wear and equipment worn in other jobs, such as in meat=packing plants, observing that although the "uniform itself is not 'specialized' in its protective properties, its color, appearance and component parts provides a gravitas that serve as an effective deterrent against crime, thereby protecting the police officer." 

Robert L. Abell
www.robertabelllaw.com

Employees Must Be Paid for Time Spent Putting On and Taking Off Safety Wear and Equipment

    Employees at chicken-processing plant must be paid for time spent putting on and taking off ("donning and doffing") safety wear and equipment a federal district court in Maryland has ruled.  Such time is compensable under the federal Fair Labor Standards Act the court ruled in Perez_v_Mountaire_Farms. (US Dist Ct of Maryland, Civil No. AMD 06-121).
    At the beginning of each shift employees were required to put on protective gear including a lab coat, ear plugs, helmet, apron, hair net, safety glasses, steel-toed boots and gloves.  The time spent putting on and taking off this protective gear could not be considered merely "changing clothes" because the employer regarded them as necessary safety equipment and they were not items employees would normally wear.  Therefore, the court ruled that the time was compensable. 

Robert L. Abell
www.robertabelllaw.com

Paramedics Entitled to Overtime Compensation

    Paramedics are entitled to recover overtime compensation the United States Court of Appeals for the Third Circuit recently ruled in Lawrence v. City of Philadelphia (No. 06-4564 decided May 28, 2008 and available at the Third Circuit website).  The paramedics, whose job titles were "fire service paramedics," were employed by the City of Philadelphia Fire Department.  Their eligibility for overtime turned on whether they had "legal authority and responsibility" for fire suppression activities.  The court ruled they were not for the following reasons: (1) their job descriptions did not mention any fire protection related examples of work to be performed; (2) a paramedic unit is not always dispatched to a fire scene; (3) they provide emergency medical services in all types of situations not just in response to fires; (4) there was no evidence of a paramedic engaging in active firefighting; and, (5) the paramedics were not trained in advanced firefighting techniques and were not certified firefighters.   

Robert L. Abell
www.robertabelllaw.com