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Roundup: 6th, 9th, 11th and D.C. Circuits

6th Circuit: Right-to-Sue Waiver Must be Clear

An employment application isn't sufficient notice of a waiver of an employee's right to sue the employer, the 6th Circuit ruled April 26 in Alonso v. Huron Valley Ambulance, Inc.

Alan and Kimberly Alonso applied for jobs with Huron Valley Ambulance (HVA) in July 2005. They each completed an application with a provision requiring employees to submit any job-related claims to an internal grievance board as the sole remedy.

Alan joined the National Guard and asked for time off to attend training but didn't actually go. He had a medical emergency at work in February 2008 related to the mind-altering drug hydrocodone. HVA fired him for lying about his whereabouts and being under the influence of a mind-altering drug at work. He appealed through the grievance board and lost.

In May 2008, Alan filed suit in district court, alleging wrongful termination and retaliation. Kimberly joined his suit, claiming HVA was a hostile work environment. The district court dismissed both of the Alonsos' claims, holding that they had knowingly waived their right to sue.

The 6th Circuit disagreed, remanding the case to the district court because the Alonsos didn't "intelligently" waive their right to sue. It ruled that HVA didn't adequately explain the grievance board process to the potential employees before requiring them to sign an agreement.

9th Circuit: Movie Theaters Fall Under ADA

Movie theaters may be required to provide closed captioning and audio descriptions to aid sight and hearing impaired patrons under the Americans with Disabilities Act (ADA), the 9th Circuit ruled April 30 in Arizona v. Harkins Amusement.

Arizona Attorney General Terry Goddard filed suit against movie theater chain Harkins on behalf of a class of plaintiffs with sight and hearing disabilities. Harkins did not provide aids to accommodate those disabilities in its theaters, which the suit claimed violated both the ADA and the Arizonans with Disabilities Act. The district court dismissed the case for failure to state a claim.

But the 9th Circuit found captioning and narration fell under the ADA, and therefore the plaintiffs do have a claim. The court cautioned, however, that doesn't necessarily mean Harkins must provide those accommodations. It remanded the case to the district court to determine whether supplying those services would pose an undue burden on the theaters.

11th Circuit: Post-Leave Demotion Didn't Violate FMLA

An employee can be demoted after maternity leave for problems discovered while she was away, the 11th Circuit ruled April 6 in Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline.

Ellen Schaaf, a regional vice president at GlaxoSmithKline (GSK), announced a pregnancy in July 2002, the same month three employees filed complaints against her. Schaaf's supervisor gave her a plan to resolve the issues. By the time she went on maternity leave in January 2003, Schaaf had failed to complete the plan. The company also decided the person who replaced Schaaf during her maternity leave performed the job better.

When she returned to work, Schaaf's supervisor gave her the option of accepting a demotion or resigning. She accepted the demotion but sued GSK for violating the Family and Medical Leave Act (FMLA) by demoting her after maternity leave.

The district court found that GSK did not violate FMLA in demoting Schaaf, and the 11th Circuit agreed.

"[T]he evidence shows that Schaaf was demoted because of managerial ineffectiveness that revealed itself, in full, only in her absence; she was not demoted because ... she took FMLA leave," wrote Judge Susan H. Black in the opinion.

D.C. Circuit: Companies Liable for Each Employee

Companies can be held liable for separate violations for each employee for whom they fail to provide respirators or workplace training, the D.C. Circuit ruled April 16 in National Association of Home Builders v. OSHA. The ruling confirms that the Secretary of Labor can amend Occupational Safety and Health Act (OSHA) rules.

The homebuilders association and other business groups challenged a final rule that defined the unit of prosecution in a case involving the failure to provide proper safety equipment and training.

A contractor hired 11 workers to remove asbestos from a building but didn't provide respirators or training for handling the carcinogen. Rather than charging the contractor with two violations--one for failure to provide respirators and one for failure to provide training--the Secretary tried to issue 11 separate violations for each act. The Occupational Safety and Health Review Commission denied this punishment, but the Secretary issued a new rule, published in December 2008, that adopted or amended 34 standards so that companies could be charged employee-by-employee for violations.

The D.C. Circuit found that because the Secretary can establish standards, he or she had the authority to issue these amendments.

Associate Editor

Lauren Williamson

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