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Searching for Articles by Kevin J.T. Terry
Kevin J.T. Terry
Attorney
Wausau Office
.
Found 26 Results.

Walk-Off Home Run Beats Employer in the Bottom of the Ninth

Posted on June 20, 2013, Authored by Kevin J.T. Terry, Filed under Employment

All sports fans know that in baseball, it is a critical advantage to be the home team. This is because the home team bats last in the ninth inning and has the last crack at hitting the game winning home run. A recent case in New York (Allen v. Chanel, Inc.) illustrated why it is just as important to for an employer to be the "home" team when dealing with separation agreements and the signing of a release of claims. For those that are confused, let me explain. A samples coordinator for Chanel's fashion division alleged that she was wrongfully terminated after reporting multiple instances of discrimination. At the time of her discharge, Chanel presented to her a "Separation and Release Agreement" that included a "General Release of Claims" that stated the employee released her claims against the company "including, but not limited to, claims of discrimination and harassment" among others. Chanel management, in the top of the ninth inning, signed the document and sent it to the employee, like a fastball down the heart of the plate, for her signature. Five months later, the Chanel employee brought her discrimination claim. Chanel moved to dismiss the claim and pointed to the "General Release of Claims" for support. The court found for the employee and stated she "manifested an intent to preserve her right to file a discrimination claim." How did she do that?! After Chanel management released their pitch, the employee had the last crack at the document. The employee signed the pre-signed agreement that Chanel sent, but not until after she re-typed the page with the general lease of claims. She used the same font, margins, and style, but changed the first two letters of the word "including" to read "excluding." The release now excluded claims of discrimination and harassment. The employee, and the home team, wins in the bottom of the ninth! This story, and poor attempt at an analogy, can serve as a reminder to employers. Never pre-sign a Separation Agreement. Retain control of the document so that there is no dispute about what the parties are agreeing to. When you have the chance, always choose to bat last in these types of disputes.

Act 10 Seventh Circuit Update

Posted on January 25, 2013, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

As we wait for the Wisconsin Court of Appeals to weigh in on many fundamental principles of Act 10, the Seventh Circuit recently announced that it believes the entirety of Act 10 passes constitutional muster. While this decision certainly does not signify the end of the fight, it is likely to be the last time the Feds weigh in on the issue. Here is a link to the summary of the case I provided on our website. It will be interesting to see whether an appeal is filed and whether this case will impact the State Court of Appeals analysis of the Colas' decision. Stay tuned!

"Can you hear me now?" Supreme Court May Provide Clarity on Cell Phone Searches

Posted on January 21, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

Last Friday, the Supreme Court decided to tackle an issue that may impact school districts. The Court will review a pair of cases about whether the police need a warrant to search the contents of a criminal suspect's cell phone. While school district administrators are held to a lower standard than police officers when searching a student's cell phone, reasonable suspicion versus probable cause, at least two courts have ruled against such searches. The standard of reasonable suspicion for searches of students and their belongings comes from the Supreme Court's landmark decision in New Jersey v. T.L.O., which states that searches of students not be "excessively intrusive" in light of the infraction. This provides school district administrators greater latitude than police in conducting searches. While some may argue that a search of a student's cell phone is not nearly as intrusive as other searches, courts across the country have found that these can violate student rights. Last year, a federal court ruled that a Kentucky school administrator's search of text messages on a student's personal phone violated the student's Fourth Amendment rights. It isn't guaranteed that the Court will directly address school district searches in its decision, but there is now another opportunity for the Court to provide input. Clear guidance from the Supreme Court may help school districts handle student discipline matters.

Federal Court Decision Supports Strict Call-In Procedures

Posted on August 15, 2013, Authored by Kevin J.T. Terry, Filed under Employment

Many employers maintain no-fault attendance policies requiring advanced notice of absences and a voluntary quit provision when an employee fails to report to work for two days without providing notice. These policies assist companies in meeting client deadlines and properly monitoring employee performance. The Sixth Circuit Court of Appeals recently ruled that an employer may enforce such a policy against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee's violation of the policy. In Srouder, et al. v. Dana Light Axle Mfg, LLC, the employee, White, submitted an incomplete FMLA certification at a September 30 meeting that the company could not comply with as the restrictions prohibited him from working. The company sent him home and instructed him to speak with his physician about possibly having the restriction lifted. On October 1, the company sent White a memorandum outlining the deficiencies in the certification form and gave him until October 7 to correct them. White was absent on October 1, 2, 5, and failed to call-in as required by the company's attendance policy. On October 6, the company sent White a termination letter pursuant to this policy. White brought suit for interference with FMLA leave. The Court noted that the 2009 FMLA amendment clearly states: "where an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied." 29 C.F.R. Sec. 825.302(d). Based on this regulation, and because White did not offer an "unusual circumstance" warranting a departure from the policy, his claim failed. This decision is not binding in Wisconsin; however, it does provide support for employers wishing to strictly enforce similar attendance policies. Unfortunately for employers, not much clarity was provided as to what is deemed an "unusual circumstance" warranting a departure from company policy. When this issue does arise, please contact Ruder Ware to discuss the fact scenario so your company can feel confident before making a similar decision.

Accurate Job Descriptions Key in ADA Case

Posted on April 7, 2013, Authored by Kevin J.T. Terry, Filed under Employment

The Eighth Circuit recently decided a case that stands for the notion that an employer's description of the essential functions of an employee's job, and not the employee's specific personal experience in the job, is critical in determining whether or not an employee is qualified for protection under the ADA. In Knutson v. Schwan's Home Service, Inc., the employee was terminated because he was no longer able to meet the physical standards set forth in the job description as a warehouse manager. Included in that description was the ability to be licensed to drive a commercial vehicle. Knutson suffered a serious eye injury after which he was unable to obtain the medical waiver necessary to qualify him for the required DOT certification. Because he was unable to be licensed as a commercial driver, the employer said he was unable to perform an essential function of the job with Schwan's and terminated employment. Knutson argued that driving truck was not an essential function of the job because he had only actually driven a commercial vehicle a handful of times while employed as a warehouse manager. The court rejected this argument, and instead relied on the written job description and the company's judgment of the duties of a warehouse manager. Even though the managers do not necessarily drive commercial trucks on a daily basis, the employer's judgment of the essential job functions and the need for managers to be able to drive commercial trucks proved to be "highly probative." While this decision is not binding in Wisconsin, it is a reminder of how important accurate job descriptions can be to employers. Just as handbooks and policies need to be updated by the employer frequently, employers must review job descriptions to assure that each accurately reflects the core duties, qualifications, and responsibilities associated with the position.

Is a Policy of 12 Months and You're Out, Out?

Posted on February 28, 2014, Authored by Kevin J.T. Terry, Filed under Employment

The United Parcel Service, Inc.'s (UPS) motion to dismiss a claim filed by the Equal Employment Opportunity Commission (EEOC) challenging the company's leave policy was denied last week by the U.S. District Court in Illinois. EEOC v. United Parcel Service, Inc., N.D. Ill, No. 09C5291, February 11, 2014. For over a decade UPS has maintained a 12-month-and-out policy. Employees are separated from employment after 12-months of leave, unless they can return to work at that time without any restrictions. UPS supports this policy by claiming the ability to regularly attend work and not miss multiple months on the job is an "essential function" of the job. The Seventh Circuit has previously determined that regular attendance can be in fact an essential job function. The ADA, however, requires that an employer refrain from using "qualification standards" that screen out disabled individuals unless the standard is "job-related for the position in question and consistent with business necessity." The EEOC in the UPS case did not take issue with the attendance issue but rather the language that required "100% healing." Because of this language, the motion filed by UPS was denied and the issues went to a jury. Employers have been aware for years that a blanket 100% return to work policy is an issue. This case is a reminder. The focus on returning an individual to work after a medical leave needs to be on the interactive process and reasonable accommodations. A blanket policy based only on the number of months an employee has been on leave is not enough, at least in this Court's view, to free an employer from EEOC scrutiny.

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