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Newsroom
Friday, November 30th, 2007
EMPLOYMENT LAW TIP SHEET

WORKPLACE VIOLENCE – OKLAHOMA GUN LAWS STRUCK DOWN. MUST COMPANIES BAN FIREARMS FROM PARKING LOTS?

The May 2007 Tip Sheet noted that a recent Department of Labor study showed that over 70% of U.S. companies do not have formal policies or programs addressing workplace violence. Those companies that have addressed this subject, however, generally prohibit employees from bringing any firearms or weapons onto company property, including employee parking lots. This is seen as a safety measure to prevent a disgruntled employee from having ready access to weapons.

In response to these policies, the Oklahoma legislature passed the Oklahoma Firearms Act and the Oklahoma Self Defense Act. This legislation, enacted in 2004, makes it illegal for any company to prevent employees from keeping firearms in their locked vehicles on company property – saying in essence that employees have a “right” to keep firearms in their personal vehicles even on company property.

Whirlpool Corporation had a facility in Oklahoma and wanted to enforce its rule against bringing firearms onto company property. Whirlpool filed a lawsuit in federal court contending that the Oklahoma laws were overridden by federal law? namely the Occupational Safety and Health Act. The OSH Act contains what is called a “general duty clause” that requires companies to protect workers from “recognized hazards that are causing or are likely to cause death or serious physical harm.”

A federal trial court in Oklahoma recently issued a decision agreeing with Whirlpool and striking down the Oklahoma laws as being inconsistent with the OSH Act. In doing so, the court cited the Department of Labor statistics referenced in the May 2007 Tip Sheet, and found that allowing firearms on company property is a recognized workplace hazard.

Consequently, at least one federal court has now declared, in a reverse sort of way, that companies that do NOT ban firearms from their property, including employee parking lots, may be in violation of OSHA’s general duty clause. We are not aware of any OSHA ruling on this, and we will try to keep you updated on this development.

Also, we are not aware of other states that have legislation similar to the Oklahoma laws, but we continue to urge all employers to establish written policies on workplace violence. We can provide sample policies for those who are interested.

FAMILY AND MEDICAL LEAVE ACT – DOG “SCARES” WOMAN INTO FMLA LEAVE

Beverly Stevenson worked at a warehouse for Hyre Electric Company near Chicago. She had a good employment record with no history of discipline or health problems. One day in February, a stray dog climbed through a window at the warehouse and approached the area where Stevenson worked. There was no indication that the dog was vicious or threatening, but nonetheless, Stevenson’s reaction upon seeing the dog was extreme. She became very agitated and belligerent and began spraying the work area with Glade and shouting that “f king animal should not be in the workplace.” This “fit” lasted three or four minutes.

Two hours later, Stevenson informed her supervisor that she was ill and needed to go home. She did not report to work the next day, but left her supervisor a voice mail that she “wasn’t feeling well and wouldn’t be in.”

The next day, Stevenson reported to work but went to the company President’s office and began “yelling in a very aggressive manner” about the dog incident. The “scene” in the President’s office lasted eight or nine minutes, after which Stevenson told her supervisor that she “could not work” and left the premises. She went to the emergency room where all tests were normal. She was discharged with a diagnosis of “anxiety and stress” and was prescribed Ativan. She did not work for the next week, calling in sick each day.

At the start of the next week, Stevenson reported to work but was agitated, fidgeting, and unable to complete any tasks. She gave her supervisor a copy of the emergency room report and again left work. Stevenson began seeing a physician who eventually gave her a note excusing her absences for the two week period following the dog encounter.

Hyre Electric eventually terminated Stevenson’s employment based on her bizarre behavior, her refusal to report to work, and the fear that she might harm a co-worker.

Stevenson sued, contending that Hyre Electric violated her rights under the Family and Medical Leave Act (FMLA). The trial court quickly threw the case out but the Federal Appeals Court in Chicago, normally a very conservative venue, allowed Stevenson to continue her case.

The Appeals Court said that Hyre Electric had constructive notice that Stevenson was suffering from a serious health condition and needed leave under the FMLA. Ironically, it was Stevenson’s bizarre behavior at work that caused the court to decide that Hyre Electric should have known that something was seriously wrong with Stevenson.

This case is unusual in that the employee never mentioned the FMLA or in any way indicated a desire for FMLA leave. The court stretched the “should have known” part of the FMLA to its extreme limit in holding that the employee’s strange behavior was enough to put the employer on notice that the employee needed and qualified for FMLA leave.

##MAYBE IT’S TIME FOR UNISEX BATHROOMS

The Utah Transit Authority was in a pickle. One of its bus drivers, a biological male, was in the process of undergoing gender transformation and wanted to use the company’s restrooms reserved for women. The Transit Authority refused the request, and insisted that the driver use its men’s restrooms.

The driver sued, alleging sexual discrimination under Title VII of the 1964 Civil Rights Act.

The Federal Appeals Court in Denver recently tossed the suit out of court, saying that a company’s requirement that its employees use the restroom that matches their biological sex neither exposes biological males to disadvantageous terms and conditions of employment nor discriminates against employees who fail to conform to gender stereotypes.

This case reemphasizes the general rule that federal discrimination law does not protect transsexual activity.

ELECTRONIC NOTICE OF EEOC CHARGES – DON’T OPEN THAT EMAIL

Applicable Federal Law requires the EEOC to “promptly” notify employers when a charge is filed against them. The EEOC’s policy and practice has always been to notify employers by standard mail.

Recently, the EEOC issued a warning to the business community and general public about powerful computer viruses that were being spread using a phony email that appears to come from the EEOC.

The email gives the appearance of notifying the company of a pending charge and may contain headings such as “harassment complaint update for” or “employer liability for harassment.” The EEOC’s warning reemphasized that it does not use email to notify companies of charges – and only uses standard mail.

If you get such a notice via electronic means, delete the notice without opening it.