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Company that fired foreign employee after his visa lapsed despite promises to help renew it violated California law and was not protected by defense based on federal immigration law.
When an Italian employee’s visa expired, his retail employer fired him, even though it had promised that he would only be fired for cause and that it would help him get another visa.
The employee sued, contending that the firing breached an implied contract of employment and thus violated California public policy; a jury awarded him more than $1 million. On appeal, the company argued that it was required by the federal Immigration Reform and Control Act (IRCA) to fire the manager for being out of status. But the court disagreed, explaining that the company could have complied with both state and federal law by suspending the worker without pay until his visa issue was resolved. Instead, the company used the visa problem as an excuse to fire the manager unlawfully.
As evidence of the company’s unlawful actions, the jury heard evidence that the employer helped another employee whose visa had expired get a new one but refused to similarly help the plaintiff. Although the IRCA prohibits an employer from paying any worker who is not legally authorized to work in this country, the court explained that the company was not required to immediately fire the worker, particularly because he had several methods of regaining lawful status as a worker in the United States. Instead, the company merely had to make sure he did not earn any money until his status issue was resolved. By ignoring these options, the company demonstrated that its reason for termination was actually pretext for its unlawful firing.
This case demonstrates how federal and state laws can work in tandem with each other. Although the employer had argued that it did not want to violate federal law and that is why it fired the plaintiff, the evidence and law showed that there were a number of options by which the company could have adhered to both California contract law and the IRCA.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Incalza v. Fendi N. Am. Inc., -- F.3d --, 2007 WL 656355 (9th Cir., March 6, 2007)].
English-only policy at taxi company justified by business necessity.
Requiring the employees of a taxi company to speak only English in its dispatch office when carrying on business was not a violation of Title VII, a New York federal court recently ruled.
The company did not require employees to speak English outside of the main office or during breaks and contained an exception if a customer spoke limited or no English, thus necessitating the use of another language.
The plaintiff was an office assistant who spoke both English and Spanish. She was fired for excessive absenteeism and brought suit, alleging that the policy was evidence of ethnic bias by the company and that such bias was the real reason for her termination. The court disagreed. It explained that the Equal Employment Opportunity Commission has stated that English-only rules in the workplace are lawful and not evidence of discrimination if they are adopted for a business purpose. In this case, the evidence showed that such a policy was necessary to make sure that taxis were properly dispatched and that all instructions and directions communicated between the dispatch office, drivers and customers were understood.
This case gives an example of a narrowly tailored English-only policy supported by a clear business necessity. Not all such policies are lawful; for example, an English-only policy that forbid employees from speaking their native language during breaks could be used to support allegations of discrimination.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Gonzalo v. All Island Transp., 2007 WL 642959 (E.D.N.Y. February 26, 2007)].
A suspension of two days followed by an offer of reinstatement is not a materially adverse action that would support a claim of discrimination.
An airline pilot who was fired after he refused to fly a plane that was heavier than legally allowed could not support his claim of retaliation, because his employer offered to reinstate him two days later after it recognized its mistake.
The pilot had first conferred with his company’s safety official, who told him not to fly a plane. But another official ordered him to fly and then fired him when he refused.
Two days later, another official called the pilot and told him that he was not going to be fired; the company sent him a letter to that effect the same day. The pilot refused to return to work and instead filed a lawsuit, alleging that he was fired because he had tried to report a safety violation. The court disagreed that the pilot’s two-day suspension was enough to support a claim of retaliation, because a reasonable employee would not be dissuaded from making a complaint because of fear of such an action. The administrative agency hearing the case pointed out that the airline took steps to correct its mistake after it had fired the pilot, and it was this action, more than the original firing, that might influence another employee. Although the two-day suspension might cause brief unhappiness, it was not material.
This case demonstrates an example of an employment action that is not materially adverse under the new standards set out by the Burlington Northern case. Unlike the suspension of 37 days in that case, a two-day suspension is not serious enough to prevent an employee from complaining about discrimination or a violation of the law.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Hirst v. Southeast Airlines, DOL ARB, No. 04-116, 2007 WL 352447 January 31, 2007)].
Employee was allowed to add up two periods of service for employer, five years apart, to reach 12 months of service threshold required for FMLA eligibility.
An automobile salesman for a dealership in Maine injured his back and sought to take leave under the Family and Medical Leave Act (FMLA) seven months after he started working. His employer fired him while he was on medical leave, explaining he was not eligible under the FMLA because he had not worked at the dealership for 12 months. The employee disagreed, arguing that the employer could count not only the seven months of current employment, but also five additional years of service for the same employer he had completed five years earlier.
The court held that the FMLA was ambiguous as to whether an employee could add up two periods of service to reach the 12-month threshold but that the Department of Labor (DOL) had issued regulations stating that some previous years of service do count. In this case, the DOL opined that a five-year break in service was probably the outside limit of what was permissible when counting previous periods of employment. The court did not make its own ruling regarding how long a gap in employment could be and still be counted for the 12-month limit, but it allowed the salesman in this case to count his work five years earlier.
This case addresses a new issue under the FMLA. Although the court did not provide a definite time limit for the break in service, there is a definite question as to whether a gap of longer than five years will interrupt an employee’s ability to count prior service. Before making any decisions concerning eligibility under the FMLA in cases involving a gap in service, employers should contact experienced labor and employment counsel.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006)].
