Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement

Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement  

MacKinnon v City of New York HRA, USCA, 2^nd Circuit, 08-1171-cv

[N.B. This is a Summary Order by the Second Circuit Court of Appeals. Second Circuit rulings by summary order do not have precedential effect.]

John A. MacKinnon alleged that the New York City Human Resources Administration had unlawfully discriminated against him in violation of the federal the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621. MacKinnon contended that Human Resources had unlawfully discriminated against him because of his age when it (1) decided to reduce his overtime hours because of "concern over his age" and (2) because he was "singled out for such treatment."

A federal district court judge dismissed his complaint and the Circuit Court of Appeals affirmed the lower court’s ruling, observing that the factual record did not support any of MacKinnon’s claims.

Rejecting MacKinnon theory of unlawful discrimination, the Court of Appeals said that the record indicated that the City's Human Resources Administration had reduced his "overtime hours" for two reasons:

1. “because [MacKinnon] appeared on a list of New York City’s top fifty overtime earners (a politically unpopular distinction),” and

2. “because [MacKinnon] had become eligible for retirement and his pension benefits would be based on his compensation for his last twelve months of work.”

The court held that “An employment decision motivated by pension costs, even when strongly correlated with age, is not an ADEA violation,’ citing Hazen Paper v. Biggins, 507 U.S. 604.

Termination for disruptive behavior claimed to violate the State’s Human Rights Law

Termination for disruptive behavior claimed to violate the State’s Human Rights Law
Robinson v NYC Dept. of Corrections277 A.D.2d 76

The appointing authority orders an employee who is exhibiting "disruptive behavior" to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on a theory that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.

According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984, he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a "pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers."

Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.

As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him based on "perceived disabilities." Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to DHR's finding of probable cause by first suspending and then terminating him.

The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a "belief that [Robinson] was mentally unstable or under the influence of drugs." It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.

Although the Appellate Division vacated DHR's decision for technical reasons based on "timeliness," it commented that were it to have to decide on the case on its merits, it would find Robinson's allegations of harassment to be baseless.

The Appellate Division explained, "[t]here is ample evidence of [Robinson's] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.

The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson's "behavior continued to be erratic."

The court concluded that considering DOC's "responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory."

Electronic surveillance

Electronic surveillance
The Electronic Communications Privacy Act

Employers may find themselves being sued and held liable for unlawful harassment as a result of employees using e-mail and other electronic means of communications which others find offensive or discriminatory.

For example:

1. African-American employees sued, charging that their employer, Morgan Stanley and Company [Owens v Morgan Stanley & Co., USDC, SDNY], denied them promotions because of racial discrimination in violation of Title VII and introduced as evidence racially insensitive e-mail messages transmitted via Morgan Stanley's computers.

2. In Schwenn v Anheuser-Busch, Inc., USDC, NDNY, Schwenn introduced as evidence of a hostile work environment claim "sexually explicit e-mail messages she had received."

3. Postings on the employer's electronic bulletin board were part of the basis for suing the Continental Airlines in federal district court [Blakey v. Continental Airlines Inc., NJ Supreme Court].

As a general rule, courts impose a duty to stop such forms of harassment and discrimination on employers. Employers can take steps to prevent such misuse of its electronic data equipment, or at least be able to claim it tried to do so, by instructing its workers that the use of e-mail and electronic bulletin boards under its control:

1. Cannot be used for distributing discriminatory jokes, statements or other unlawful purposes; and

2. Employees who do so will be disciplined.

Does this mean that employer's may monitor its employees' use of its computer equipment to guard against such misuse?

The Electronic Communications Privacy Act of 1986 [18 USC 2071], prohibits the unlawful intentional interception of e-mail among other forms of protected communication. However, there are a few exceptions to this general rule.

Among the exceptions relevant to the monitoring of e-mail by employers is that the employee may give "consent" to such monitoring. This exception may encourage employers to attempt to negotiate the inclusion of a "consent to monitoring e-mail" in a collective bargaining agreement.

In DuPont and Co., 301 NLRB 12, the National Relations Board ruled that the employer has a duty to bargain with the union over the monitoring of employee e-mails.