By Lorene D. Park, J.D.

A federal district court in Illinois has concluded that reinstating a former Chicago park supervisor is appropriate, given her strong performance and the fact that her national origin discrimination claim took issue not with her coworkers or supervisors but with the investigators and human resources department that the jury found conducted a discriminatory investigation into a hotline report that she falsified time sheets. The fact that the employer resented her for prevailing was not a good reason to deny reinstatement, as it would punish her for succeeding in standing up for her rights, noted the court. The employee was also awarded $165,162 in backpay (Vega v. Chicago Park District, November 16, 2018, Alonso, J.).

The employee was hired by the park district in 1990 and became park supervisor in 2004. She oversaw park operations, supervised employees, and conducted community outreach. Though she generally received positive reviews, things changed after the park received a September 2011 complaint from another employee on its hotline, accusing her of time-sheet falsification. The park enlisted two Chicago police department officers to help investigate.

Investigation and termination. In a typical timesheet falsification investigation, investigators gather background information and videotape when an employee leaves home and then arrives at work. Videotapes are compared to the timesheet. The investigation of the employee, however, was atypical because it lasted five-and-a-half months and the videotape recorded derogatory comments by the investigators. The report concluded that she arrived later than entered on timesheets and failed to log all absences, and that she falsified timesheets on 13 days.

In a July meeting with HR, the employee produced 56 pages of documents explaining timesheet discrepancies and refuting the report. She asserted every employee had to falsify timesheets, which were due before the timesheet period was over. She also claimed she typically worked eight-hour days, sometimes longer, and most salaried employees used an imprecise eight-hour period, such as 9:00 to 5:00. Nonetheless, she was fired for timesheet falsification.

Litigation and verdict. The employee filed suit under Title VII and Section 1981. In pretrial proceedings, the court denied summary judgment on her national origin and retaliation claims, noting among other things that Hispanics make up roughly one-third of the park’s workforce but are “grossly underrepresented in the Park’s senior executive positions and HR positions.” Also, the investigation of the employee was “remarkably long” and was the “only one in which all five investigators participated.” Significantly, when asked about his investigation of a Caucasian park supervisor accused of leaving every day to pick up her children without signing out, a senior investigator testified that he would have never prolonged that investigation for over five months. Moreover, the employee was the first employee to be fired solely for “Timesheet Falsification” without corresponding allegations of actual theft of time, or other code of conduct violations.

The case went to trial and the jury returned a verdict for the employer on the retaliation claims but found for the employee on her national origin discrimination claims. The court therefore turned to consider the relief requested by the employee.

Reinstatement. Among other relief, the employee sought reinstatement to her position as park supervisor, at a park comparable to the one she had supervised. The employer argued there was too much hostility to “be able to trust” her in a park supervisor position and reinstating her would invite conflict that would likely require “continuous judicial intervention” in the employment relationship. It also pointed out that her career path had diverged from parks and rec, and she now works in medical billing at a hospital and that she had earlier testified that working for the Chicago Park District had caused her such stress that her mental and physical health suffered.

To the court, these arguments didn’t preclude the “preferred” remedy of reinstatement. The fact that the employer resented the employee for prevailing at trial was not a good reason to deny reinstatement, as it would punish her for succeeding in standing up for her rights. Moreover, her dispute was not with her coworkers or supervisors, it was with the investigation done by the HR department, which the jury found discriminatory. Given her strong performance prior to the investigation, the court found no reason to doubt whether she genuinely wanted reinstatement.

Though the employer took issue with the condition the employee placed on reinstatement—she wanted to be put in a park in the approximate condition that she left Bessemer Park, before it deteriorated—the court did not find her request unreasonable. However, it had to give due regard to consequences reinstatement might pose to innocent third parties. Thus, the employer was not required to abide by this condition because it risked displacing other innocent employees.

Noting the employer has a large number of park supervisors, the court ordered the employer to reinstate the employee to the next park supervisor position available, and to do so by December 31, 2018. If unable to place her, the employer will owe additional back pay.

Injunction. In addition, the employer was enjoined from discriminating against the employee or retaliating against her for bringing this suit.

Damages. The court also awarded the employee $154,707.50 in lost salary; $1,200 in lost longevity bonuses; and $9,255.42 in health insurance premiums, along with prejudgment interest. While the employer argued she was not entitled to back pay because she failed to mitigate her damages, the court found otherwise. She testified that she applied for numerous jobs, but equivalent positions now required a bachelor’s degree that she did not have. She eventually had to accept odd jobs and a temporary grant-funded position in medical billing to support herself while she pursued a degree. Once she realized her efforts were futile without a degree, explained the court, the law did not require her to continue applying for jobs in her former field at her former pay and accept nothing less.

Though the employer argued that the employee’s self-reported account of her job search was not sufficient proof, the burden was on the employer and it did not provide a basis for disbelieving the employee. Nor did the employer prove that there was a reasonable likelihood she could have found comparable work with reasonable diligence.

The court refused to deduct the employee’s unemployment compensation from her back pay award and would not reduce it by the amount she saved in union dues either. That said, the court found that she failed to meet her burden of proving her damages for the value of her lost paid time off, nor did she establish that the award of pension contributions she sought was necessary to make her whole, so the court declined to grant those requests.

Singapore’s labour market showed further signs of improvement in 3Q 2018, according to the Ministry of Manpower’s Labour market report. Total employment growth in 3Q 2018 more than doubled that in the preceding quarter while the resident unemployment rate held steady.

The report showed that the pace of hiring picked up in the third quarter when compared to the second quarter. This quickening resulted in total employment (excluding Foreign Domestic Workers) growth of 15,200, more than double that observed in the previous quarter (6,500).

The higher employment growth in 3Q 2018 was broad-based. Increases were reported in Manufacturing after fifteen consecutive quarters of decline. There were also gains in Services, such as in Professional Services, Information & Communications, Community, Social & Personal Services and Financial & Insurance. However, employment in Construction continued to decline in the third quarter of 2018, although at a slower pace.

Meanwhile, Singapore’s seasonally adjusted unemployment rates among residents (2.9%) and citizens (3.0%) were unchanged from the previous quarter, while the overall rate rose slightly (from 2.0% to 2.1%).

When compared to the same period last year, all rates (residents, citizens and overall) remained at or below those in September last year (overall: 2.1%, resident: 3.1%, citizen: 3.2%).

“Given the growth in employment, the slightly elevated unemployment rates reflected the continued inflow of job seekers into the labour market,” the report stated.

The Ministry’s report also found that layoffs in the third quarter were lower than in the second quarter. They were also lower than in the same period last year. Overall, for the first three quarters of 2018, layoffs were lower than the corresponding periods in the preceding two years.

Overall, the Ministry’s data suggest that the labour market continued to improve in 3Q 2018. However, the report cautioned that as the labour market begins to tighten, employers may face greater challenges filling vacancies.

By Lorene D. Park, J.D.

Refusing to dismiss age and sex discrimination claims against a U.S. employer and its European parent company, a federal court in New York found that a female CFO who was allegedly viewed as unattractive and heavyset by owners of the European parent company plausibly alleged a joint employment relationship based on centralized labor control, common management, and other factors. She also plausibly alleged that the corporate parent participated in the discriminatory actions intended to “break her” and make her quit. Her aiding and abetting claim also proceeded against the parent company, but her allegations were not sufficient to state a claim against another subsidiary (White v. Best Cheese Corp., September 27, 2018, Roman, N.).

In 2001, the employee started working for Best Cheese, a wholly-owned subsidiary of Uniekaas International, a company organized under the laws of the Netherlands and with its principal place of business there. In 2008, she became the chief financial officer (CFO) at Best Cheese.

Regarded by new owners as unattractive. According to the employee, who is 67 years old, two individual owners who acquired a majority interest in the parent company in 2012 began telling the president of Best Cheese that he and the other owners wanted the employee fired and replaced with a younger man because they regarded her as unattractive and heavyset. The company president refused but one of the owners, Willem Rote kept urging him to fire her or “break her” so she would quit. In 2015, the employee told a different owner of the parent company she planned to work through 2020 and he assured her that her future was secure.

Overworked and mistreated. Nonetheless in June 2015 the president of Best Cheese left and was replaced by a new company president who, at the direction and approval of Rote and the parent company, allegedly began a course of discrimination against the employee. She was given additional duties to the point where she had trouble getting things done and her attempts to hire help were rejected. She was badgered into a golf outing though she did not play golf and was “not physically up to it” and when she needed to go to the bathroom was told to go in the woods like the men. She begrudgingly did so and fell on her way back. In August 2016 she was demoted and replaced by a younger male. She hired an attorney, who wrote complaining of discrimination, and the employee was scolded for getting a lawyer.

Fired and accused of misfeasance. On August 2016 she was placed on paid administrative leave. She remained on leave until December 6, when she received a termination letter on letterhead for Uniekaas International and Best Cheese. The letter, which said she was terminated for “significant misfeasance,” was not signed but closed with “Regards, the Best Cheese Company and Uniekaas Nederland B.V.” She applied for unemployment benefits and soon after, the president of Best Cheese filed a criminal complaint against her for embezzling. The state labor department denied unemployment based on this and she asserted that Best Cheese was alleging her misconduct because it knew she was preparing to file EEOC charges. A hearing was scheduled, but after the employee’s attorney indicated they would call the former company president to testify on her behalf, Best Cheese withdrew its appeal.

Joint employer status. In the employee’s subsequent suit under Title VII, the ADEA, and state law claiming discrimination based on age and gender, the defendants moved to dismiss, claiming first that Uniekaas International and Uniekaas USA were not “employers” under those laws. Denying the motion as to parent company Uniekaas International, the court explained that the critical question was “what entity made the final decisions regarding employment matters related to the plaintiff?” Courts also focus on the parent’s involvement in the circumstances giving rise to the suit. Under the joint employer doctrine, liability can be imposed on two legally separate entities if they handle certain aspects of the employer-employee relationship jointly, taking into account “commonality of hiring, firing, discipline, pay, insurance, records, and supervision.”

Here, there was evidence of centralized control of labor relations. The parent company or one of its owners allegedly directed and approved the president of Best Cheese to begin a persistent course of discriminatory conduct against the employee. There was also common ownership and management, since Best Cheese was a wholly-owned subsidiary of Uniekaas International, and the Best Cheese president traveled between New York and the Netherlands for various meetings. In addition, there were interrelations of operations, including websites. For these reasons, the employee sufficiently alleged Uniekaas International was her joint employer.

The same was no true of Uniekaas USA, which was a subsidiary jointly owned by Uniekaas International and Best Cheese. The mere fact of ownership and that the employee prepared annual financial statements for Uniekaas USA was not enough to establish joint employer status, nor was it enough to state a plausible aiding and abetting claim against the subsidiary.

Aiding and abetting by corporate parent. The court also found that the employee sufficiently alleged that Uniekaas International aided and abetted a violation of the NYHRL. She claimed that the parent company arranged for the new president of Best Cheese to be hired and she claimed the increase in job responsibilities and denials of her attempts to hire help were tactics used to “break her,” as the corporate parent’s owner had been trying to do for years. That was enough to make her claim plausible.

Singapore’s labour market improved slightly in the first quarter ended March 2018, supported by sustained expansion in economic activity, according to the Ministry of Manpower’s Labour market report.

The report found that in Q1 2018, total employment (excluding Foreign Domestic Workers) grew by 4,001, a reversal from the decline a year ago in Q1 2017 (-9,400). There were also more job vacancies in Q1 2018 when compared to Q4 2017.

Meanwhile, the seasonally adjusted unemployment rate declined to 2.0% in Q1 2018, from 2.1% in the previous quarter. It also declined for residents (3.0% to 2.8%), and remained unchanged for citizens (3.0%). The seasonally adjusted resident long-term unemployment rate declined from 0.8% in the fourth quarter to 0.7% in the first quarter of 2018.

With more job vacancies and fewer unemployed persons, the seasonally-adjusted job vacancies to unemployed ratio improved from 0.92 in December 2017 to 1.04 in March 2018. This was the first time since March 2016 where there were more job vacancies than unemployed persons.

The Ministry’s report also found that layoffs declined significantly in the first quarter when compared to the previous quarter, while resident re-entry rate declined marginally. The decline in layoffs was broad-based across Manufacturing, Construction and Services. The main reason for layoffs continued to be business restructuring and reorganisation.

In 2018, overall labour demand is expected to expand, but unevenly across sectors, according to the Ministry. Job opportunities will be available in services sectors such as finance & insurance, infocomms & media, healthcare, professional services, logistics and wholesale trade. However, hiring is expected to remain cautious in construction and marine Shipyard.

“As the resident unemployment rate declined to the lowest level since March 2016, further improvements will be harder to attain,” the report said. “To keep unemployment low, it is critical to prepare workers and businesses to be agile and responsive to economic restructuring and the evolving employment landscape.”

Singapore’s unemployment rate fell to 2.0% in the quarter ended March 2018 from 2.1% in the quarter ended in December, the Ministry of Manpower reported. However, total employment declined — but to a smaller extent than a year ago. The decline was largely due to continued contraction in construction and marine shipyard. Overall, the labour market advanced, according to the ministry.

Job opportunities will continue to be available in both the manufacturing and sevices sectors, particularly infocomms & media, financial & insurance, healthcare, professional services, logistics and wholesale trade.

“While unemployment rates have declined from a year ago, further improvement will be harder to achieve,” according to the ministry. “Addressing potential job-skills mismatches remains critical, as the economy restructures and the profile of the resident labour force evolves.”