Fired workers say, ‘Not so fast!’

Companies that terminate workers in questionable ways are finding themselves in court, facing not just the employees they terminate but also the unions that represent them.

Five Chicago bus drivers are learning first hand the importance of the court battles as they fight to get their jobs back. They were fired for allegedly failing criminal background checks without a chance, as the law requires, to defend their records.

Elizabeth Hunter, William Garraughty, Michael Yurkowski and Debbie Goin have gone to court where they are being represented by their union, the Amalgamated Transit Union.

The five bus drivers filed a class action suit, through the ATU, on Oct. 5 in U.S. District Court. The union says two school bus firms, First Student and First Transit, fired them illegally because they were not given a chance to contest allegations by an outside background check agency that they had criminal records.

Union President Warren S, George said that “under the Fair Credit Reporting Act, employers must notify employees of any adverse actions anticipated as a result of a background check and give employees a reasonable opportunity to dispute the accuracy of the information.

“First Group has been trampling the rights of workers,” said George. “That’s why the ATU has retained counsel to represent the legal rights of not just our members but all employees and job applicants at the company.”

While the Chicago case is a new one there have been numerous recent decisions by courts on a wide variety of worker rights issues all over the country.

A ruling that unions see as possibly having major implications nationally, was handed down in Eugene, Ore.

Nine years ago, Suzi Prozanski, former president of the Newspaper Guild in Eugene, sent two union related e-mails to her union colleagues on company computers when she was a copy editor at the Register-Guard. The newspaper disciplined her, arguing that it alone was entitled to control e-mail messages.

Years later the GOP Bush-appointed majority on the National Labor Relations Board agreed but, on appeal, the U.S. Circuit Court of Appeals in Washington D.C. did not.

The appeals judges favored Prozanski because, they said, the company had not been following its own rules by allowing workers to send out all kinds of non job-related e-mails. It was wrong, the judges said, to enforce policy only against the union.

The court said: “Throughout the relevant time period, the Register-Guard was aware employees also used e-mail to send and receive personal messages, e-mails such as baby announcements, party invitations, and the occasional offer of sports tickets or requests for services such as dog walking.” No workers were disciplined for any of those e-mails, the court noted.

Disabled workers figure prominently among those often forced to take their employers to court.

Such was the case with Kris Indergard, a 22 year veteran worker at Georgia-Pacific, also in Oregon.

Indergard had to have extensive knee surgery in 2003 after an on-the-job injury and was out of work for two years.

Before allowing her to return as either a napkin operator or a napkin adjuster in its mill, the company, according to Indegard’s court testimony, gave her an extensive “physical competency exam” including stress tests, lifting 45-lb. bags of sand from the floor to the table, kneeling, squatting and crawling. She failed the test and the company, claiming it had no “alternative” positions for her, fired her in 2006.

She sued, claiming the exam was illegal and in violation of the Americans with Disabilities Act because it tested her ability to perform tasks that were not job-related. Indergard lost in lower courts but won in the 9th Circuit Court of Appeals.

The ruling read, in part: “Physical agility tests must be given to all similarly situated applicants or employees regardless of disability. If the test screens out or tends to screen out an individual with a disability the employer would have to demonstrate the test is job related and consistent with business necessity and that performance cannot be achieved with reasonable accommodation.”

In a victory for women’s rights, another court ruled recently that it is illegal to pass over a female officer for promotion simply because she is a woman.

The 6th U.S. Circuit Court of Appeals ruled that the police department in Royal Oak, Mich. did precisely that.

The department has 14 women among its 60 members and one woman among its 16 supervisors. The judges said that the department illegally passed over Karyn Risch for a promotion three times in five years.

Risch’s 17 years on the force placed her ahead of male applicants for openings as lieutenant and detective, even though she finished slightly behind them on tests. The department chief passed over her three times.

During the trial she showed how that move hurt not only her but convinced other female officers not to try for promotions.

The appellate judges ruled in her favor and sent the case back down to lower courts for retrial under federal discrimination laws.
Their ruling read, in part: “Evidence that the plaintiff was more qualified than the successful applicant can in some circumstances be sufficient to raise a genuine issue of material fact.”

A recent court ruling in Missouri ended in victory for an older worker.

The 8th U.S. Circuit Court of Appeals said, essentially, that a company was wrong to fire an older supervisor because she refused to fire older workers whom she supervised. The court called it a violation of federal age discrimination laws.

Administrators at the Silver Oak nursing home in Nevada, Mo. fired Kathy Baker, 53, in 2005 because she refused to fire some of the older workers in her department.

Baker testified that administrators had told her the company needed people who were “young and vivacious,” not “slow and old.” and that Baker needed to “get rid of the dead wood.” They also told her, Baker testified, that she should change her own appearance, saying Baker “dressed like an old lady.”

When she refused to fire the other older workers, Baker, herself, was terminated. A lower court supported the company but the appeals court, on Sept. 14, ruled that Baker had been fired illegally and ordered a new trial for her.

PAI contributed to this article.

AP photo