Labor and Employment Law Weekly Update

23 August 2010 Publication

Legal News: Employment Law Update

Michigan’s Workplace Smoking Ban: Are You Compliant?

As a reminder to employers with operations in Michigan, amendments to the Michigan Clean Indoor Air Act took effect on May 1, 2010. The amendments require certain modifications of the workplace, including:

  • Clearly and conspicuously posting “no smoking” signs or the international “no smoking” symbol at the entrances to and in every building or other area where smoking is prohibited under the Act (which includes most places of employment)
  • Removing all ashtrays and other smoking paraphernalia from anywhere smoking is prohibited under the Act
  • Informing individuals smoking in violation of the Act (including employees and customers) that they are in violation of state law and subject to penalties
  • Asking individuals smoking in violation of the Act to refrain from smoking and, if the individual continues to smoke in violation of the Act, asking him or her to leave the workplace

Even if your workplace was already smoke free prior to May 1, 2010, you still must post the required signs. As more and more states and local communities pass laws dealing with smoking in the workplace, employers need to make sure they remain compliant. In addition to Michigan, several other states, including California, Florida, Ohio, and Wisconsin, have passed laws prohibiting smoking in the workplace.

Michigan’s Department of Community help has a helpful Web site http://tinyurl.com/yhchue2 that contains answers to frequently asked questions and assistance for employers seeking to comply with the Act.

The Web site also provides a sample “Smoke Free” building decal, http://tinyurl.com/366xsut, as well as a fact sheet for employers dealing with e-cigarettes (battery powered devices that deliver nicotine by way of a vaporized solution), which are not covered by the Act.  


Employer Wins “Cat’s Paw” Case

On August 11, 2010, a federal court rejected a terminated employee’s “cat’s paw” argument. Lindsey v. Walgreen Co., (http://tinyurl.com/3xcu9gw) No. 10-1036 (7th Cir. August 11, 2010).

Katie Lindsey was 53 years old when she sued her employer under the Age Discrimination in Employment Act (ADEA). A few years after she began her employment, Ms. Lindsey was promoted from staff pharmacist to pharmacy manager by the district pharmacy supervisor. Before long, the company received complaints from Ms. Lindsey’s co-workers, and the same district pharmacy supervisor determined that Ms. Lindsey was not fit to continue in a managerial position. The district pharmacy supervisor then demoted Ms. Lindsey to staff pharmacist, transferred her to another store, and warned her that she would be fired the next time she failed to follow pharmacy procedures. The district pharmacy supervisor later determined that Ms. Lindsey again violated company policy and terminated her employment.

Ms. Lindsey presented several theories of discrimination, including the cat’s paw theory, a term that refers to an unbiased decision-maker who is being used as a tool by a biased employee. Ms. Lindsey argued that the district pharmacy supervisor was a cat’s paw for a co-worker, who she claimed disliked Ms. Lindsey because of her age. Ms. Lindsey insisted that the district pharmacy manager decided to fire her after “blindly relying” on biased information from the co-worker. At her deposition, Ms. Lindsey testified her new co-workers called her “lazy” and “slow” and questioned why the employer repeatedly exiled “old,” “demoted” pharmacists to their store. She also testified the alleged biased co-worker made disparaging remarks about her age and abilities.

The court rejected Ms. Lindsey’s argument because the employer proved that its employment decision was based on an independent evaluation and was not tainted by any alleged bias. This case underscores the importance of appointing a neutral decision-maker to review the basis of termination decisions and thoroughly document the factors that formed the basis of the employment decision (also discussed in the March 1, 2010 Employment Law Update (http://tinyurl.com/364jx6w). Otherwise, the cat’s paw may be the link between the employment action and the biased decision.


Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or any of the following individuals:

Authors

Michael Groebe
Detroit, Michigan
313.234.7131
mgroebe@foley.com

Diane Gianos
Chicago, Illinois
312.832.
5158
dgianos@foley.com

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