Thursday, October 23, 2014

“He liked breasts” is never an appropriate response to a harassment complaint


Ruby Blackmon claimed that for a ten-month period, her second-level manager inappropriately stared at her breasts three to 10 times per day, would sexually rub her back, and would breath on her back and ear. Blackmon made ten different complaints to an HR manager, an administrative manager, and her immediate supervisor, all of which were ignored, except for one occasion when her immediate supervisor simply told her that the alleged harasser “liked breasts.” To make matters worse, on the heels of one complaint, her immediate supervisor gave her a negative evaluation. She filed suit after her termination.

Surprisingly, the district court granted this employer’s motion for summary judgment. Not surprisingly, the 6th Circuit reversed in Blackmon v. Eaton Corp. (10/16/14), concluding that genuine issues of material fact exists on the objectively hostile nature of the work environment and on whether there existed a causal nexus between Blackmon’s complaints and her termination.

We know that “He liked breasts” is an inappropriate response to a harassment complaint. What is an appropriate response? Here are 10 steps to follow if you receive a harassment complaint from an employee.

  1. If you are not the person in your organization trained to address and investigation these situations, immediately refer the matter to the person who is. If no one is, hire a consultant or attorney who specializes in these issues to do the investigation for you. One word of caution. If you hire an attorney to do the investigation, do not make the mistake of assuming that the investigation will be privileged. It likely won’t be, meaning that the lawyer conducting the investigation might not be able to represent your company in any subsequent lawsuit.
  2. Separate the complaining employee from the accused harasser. If that means you need to send someone home, with pay, while you complete the investigation, so be it. Better you eat a few days pay than risk the accused making matters worse by harassing again.
  3. As soon as possible, interview the complaining employee (or, if someone else made the complaint, the victim), the accused, and any witnesses.
  4. Don’t demean, belittle, or joke about the alleged victim. It will undermine the objectivity of your investigation.
  5. Compile and review any pertinent documents. Don’t forget social media accounts, email, and text messages. They are your best friends in these cases.
  6. Guard against retaliation, and ensure all employees that their participation will be free of retaliation.
  7. Review all information and make a reasoned decision as to the credibility of those involved and what happened.
  8. Take prompt and effective remedial action, and communicate your conclusions to the complaining employee.
  9. Document the investigation.
  10. Never, never, never retaliate.

Wednesday, October 22, 2014

“Honest belief” isn’t a defense to an FMLA claim, says federal court


The honest-belief rule is one of most effective shields available to employers in discrimination cases:

As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.

What happens in an FMLA claim, however? Can an employer use the honest-belief rule to fend off an employee’s claim that an employer interfered with FMLA rights? Yontz v. Dole Fresh Vegetables (S.D. Ohio 10/10/14) says “no.”

The case involved an employee whose newborn daughter had Down syndrome. He got stuck on vacation in Florida because of medical complications with the daughter, which delayed his post-vacation return-to-work date. The employer, based on pattern of similar prior non-medical issues with extended vacations, believed he was malingering and fired him.

The employer claimed as its defense to Yontz’s FMLA claim that it had an “honest belief” that Yontz “misused his pre-approved, intermittent FMLA leave.” The court disagreed, and rejected the application of the honest-belief defense in FMLA interference cases:

Dole may not use an honest mistaken belief that Yontz misused FMLA leave as a legitimate non-discriminatory reason for his termination. That Yontz received attendance points for using what may have been legitimate intermittent FMLA leave is the problem, not a legitimate, non-discriminatory excuse for the problem. The Sixth Circuit has not decided whether the rule applies to FMLA interference claims. To so rule would be to reward and encourage ignorance of a law our democratic process has seen fit to enshrine in law.

Per this case, the FMLA requires more than an honest belief to deny an employee FMLA leave. Thankfully, the FMLA provides employers myriad tools to check and double-check the legitimacy of an employee’s claim for leave. Employers have medical certifications, re-certifications, checks for authenticity and clarification, and second and third opinions. As this case shows, an “honest belief” will not save an employer who denies an employee’s FMLA request without first exhausting all available avenues of communication and clarification with the employee.

Tuesday, October 21, 2014

Cop caught sleeping on the job awarded $1M in ADA lawsuit — what could this employer have done differently?


A federal jury awarded nearly $1 million to a former police officer, allegedly fired after sleeping on duty.
According to the McPherson Sentinel,  alleged the city violated his civil rights, the Americans with Disabilities Act, the Family Medical Leave Act, and the Kansas Wage Payment Act when he was fired for sleeping on the job. Michaels has sleep apnea, and claims that the disability resulted in his dismissal, which was a violation of his rights. It appears the courts agree.
Matthew Michaels had worked as a police office in McPherson, Kansas, for nine years. From 2006 to 2007, Michaels had three on-duty at-fault car accidents. Three years late, he was suspended after being repeatedly caught sleeping in his patrol car. Thereafter, Michaels was diagnosed with obstructive sleep apnea, for which he received medical treatment and had no further incidents of falling asleep on duty.
Micheals performance problems, however, did not end. Two years later, the city fired Michaels for a variety of performance issues, which included insubordination and arguing with superiors.
If Michaels’ sleep issues ended two years prior to his termination, how did he hit for nearly $1 million in his ADA lawsuit? Because his supervisor listed his prior incidents of sleeping on duty as one of the reasons for his termination.
Unless an employee is absolutely unable to perform the essential functions of the job with (or without) reasonable accommodations, a medical diagnosis should never come into play as a reason for termination. In this case, the medical issues stopped impacting Michaels’ job performance once he began receiving treatment. Thus, there was absolutely no reason to mention the two-year-old (and under control) sleep issues in support of the termination decision. This employer had other good reasons to fire this employee. It dropped the ball, however, by adding his medically-caused, stale, performance problems into the termination equation.

Monday, October 20, 2014

What if…? Internet use as a disability


Last year I reported on the possibility that Internet use could become an ADA-protected disability. Now, we have one of the first documented cases of this phenomenon. From CNN:

A man who checked in to the Navy’s Substance Abuse and Recovery Program for alcoholism treatment was also treated for a Google Glass addiction, according to a new study.

San Diego doctors say the 31-year-old man “exhibited significant frustration and irritability related to not being able to use his Google Glass.” He has a history of substance abuse, depressive disorder, anxiety disorder and obsessive-compulsive disorder, they say.

The man was using his Google Glass for up to 18 hours a day in the two months leading up to his admission in September 2013, according to the study…. “He reported that if he had been prevented from wearing the device while at work, he would become extremely irritable and argumentative,” the doctors write.

The Guardian adds that “the patient repeatedly tapped his right temple with his index finger, … an involuntary mimic of the motion regularly used to switch on the heads-up display on his Google Glass.”

This supposed addiction is not limited to wearables like Google Glass. For example, CBS News recently reported on the physiological changes to the brain that could result from too much Facebook use.

What results when we toss this story into the employment-law blender?

  • Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, you may have to engage them in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area?

  • Do you have a policy that prohibits non-work-related Internet use? If so, it might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

These are difficult issues, exacerbated by the novelty of the concept. Nevertheless, the more the Internet becomes entrenched in our lives (if that possible), the greater the likelihood that employees will begin embracing ideas such as Internet addiction as a disability and the need for employers to consider and provide reasonable accommodations. It’s a brave new world, we just happen to work in it.

Friday, October 17, 2014

WIRTW #341 (the “impeachment by blog” edition)


I’ve been blogging for more than seven years, and I’ve never had opposing counsel try to impeach one of my clients with something I’ve written on this site. Overlawyered brings us a story from Abnormal Use of an attorney-blogger whose opposing counsel did attempt to impeach via the blogger’s posts. It did not end well for the impeacher. This is absurd and offensive, and I would not stand for it in a hearing of deposition of mine.

Lawyer readers, have you ever had this happen to you? And, if so, how did you handle it? Let me know in the comments below.


The Manpower Employment Blawg presents this month’s Employment Law Blog Carnival: Halloween Edition. Please click over to read the best of the employment law blogosphere from the past month (including one from yours truly).


Here’s the rest of what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, October 16, 2014

When #Ebola impacts your workplace


If you employ people at Cleveland Hopkins Airport, Frontier Airlines in Cleveland, or Kent State University, congratulations, you’re among the first non-healthcare employers to have a potential Ebola exposure. Now, what do you do?

First things first, don’t panic. Instead, take a deep breath … and think.

Employers must consider what they should do in the event that an employee is potentially exposed to the virus, or otherwise has  been in a high risk area. The definition of “high risk area” is very much in flux. Two week ago, it was Western Africa. Last week, the definition expanded to a Dallas hospital. Now, it’s Cleveland’s airport, a local university, and a couple of our local hospitals.

So, what do you do?

1. Have an action plan for disease prevention. This plan could include action items such as travel restriction to high risk areas, and providing information and training to employees, along with protective gear or hand sanitizer .

2. Have a response plan for specific employees who are suspected to, or actually do, pose a risk to others because of a viral exposure. Because of the ADA, employers have certain limits on their ability to ask medically-related questions, even when dealing with something as critical as Ebola.

  • Questions about travel are not disability-related. Therefore, the ADA places no limits on an employer’s ability to inquire about an employee’s travel to gauge potential exposure and risks.

  • Questions about diseases or exposure thereto are, however, disability-related. The ADA  does permit an employer to request medical information when the employer has  a reasonable belief that an employee will pose a “direct threat” because of  a medical condition. A potential exposure to Ebola could constitute a direct threat, though employers must be careful to avoid unlawful stereotypes or generalizations, as opposed to acting on actual, objective evidence.
  • The CDC has published monitoring guidelines for individuals who have traveled to a country experiencing an Ebola outbreak, or otherwise have been potentially exposed to the disease. These guidelines depend on exposure levels and visible symptoms.

    • Individuals who exhibit symptoms consistent with Ebola, or who develop Ebola-like symptoms at work, should seek medical evaluation, regardless of any known exposure, and should limit activities and contact with others until medically cleared.

    • Asymptomatic individuals who have had no known exposure should self-monitor for symptoms for a 21-day period (the known incubation period for the disease). During that time the CDC recommends that an individual “may continue normal activities, including work.” 

    • Asymptomatic individuals who report possible contact with an infected individual should stay home until medically cleared to return to work. While an employer is not required to pay the employee for this time off, under the circumstances it would be an appropriate gesture. By way of example, both the Cleveland Clinic and MetroHealth are paying the 13 nurses who flew from Dallas for their quarantined time off.

There is a big difference between vigilance and panic. The key for employers in dealing with Ebola is to understand the former while not falling susceptible to the latter.

Wednesday, October 15, 2014

Two all-beef patties, special sauce … and a noncompete?


While the law of noncompete agreements is state-specific, generally you need three things to enforce such an agreement: reasonableness as to the duration of the agreement, reasonableness as to its geographical scope, and reasonableness as to the interest the employer is attempting to protect. So, what’s so special about a fast-food worker that merits the protection of a non-competition agreement? That’s the question an Illinois federal court is going to answer in Brunner v. Jimmy John’s Enterprises, Inc.
According to The Huffington Post, a Jimmy John’s franchise in Niles, Illinois, requires all of its employees to sign a Confidentiality and Non-Competition Agreement as a condition of employment. The agreement prohibits the employee, for two years following employment at Jimmy John’s, from working at any business within three miles of any Jimmy John’s that derives at least 10% of its revenue from sandwiches
Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after … he or she will not have any direct or indirect interest in or perform services for … any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located with three (3) miles of either [the Jimmy John’s location in question] or any such other Jimmy John’s Sandwich Shop.
It’s one thing to bind your managers and other high-level employees to a noncompetition agreement. It’s another to require the same of your low-level sandwich makers and cash-register operators. The lower down the food chain you move, the harder it becomes to enforce these agreements. If these employees received specialized training, or if the employer was protecting customer goodwill, the employer would have a better chance in enforcement. But we’re talking about sandwiches. What’s the legitimate business interest this employer is trying to protect?
Employers, use some discretion and common sense. Narrowly tailor your noncompete agreements to the specific interests you are trying to protect. And, if you don’t have such an interest, forego the agreement altogether for that employee or group of employees. Otherwise, you will spend gaggles of money attempting to enforce an unenforceable agreement.

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