Tuesday, October 21, 2014
Cop caught sleeping on the job awarded $1M in ADA lawsuit — what could this employer have done differently?
Monday, October 20, 2014
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
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:
- EEOC Sues FedEx for Discriminating Against Deaf Employees — via In House
- Getting fired for bringing a gun to work probably isn't discrimination — via Eric Meyer’s The Employer Handbook Blog
- Good documentation pays off! Not once but TWO times — via Mike Haberman’s Omega HR Solutions
- Ending Gender Discrimination Requires More than a Training Program — via Harvard Business Review
- Black Supervisor Remarks He Has “Too Many Black” Employees; Employer Loses Motion For Summary Judgment — via The Employment Brief
- Is It Harassment To Tell An Employee To “Pull Her Own Weight”? — via Evil Skippy at Work
- Do “Engaged” Employees File Fewer Charges? — via Employment Discrimination Report
Social Media & Workplace Technology
- Four Things To Do Now BEFORE An Employee Data Breach — via Dan Schwartz’s Connecticut Employment Law Blog
- Banning Employers from Asking for Social Media Passwords is Stupid — via employeescreenIQ Blog
- Should Your BYOD Policy Ban Third-Party Keyboards? — via Blogging4Jobs
- LinkedIn Sued for Furnishing Reference Reports on Users — via Law.com
- Using Social Media as a Screening Tool for New Hires — via Attorney at Work
HR & Employee Relations
- Ebola and Employer Liability Issues — via Employment Law Lookout
- Staying Calm and Prepared for Potential Workplace Ebola Issues — via TLNT
- EBOLA and Employer Liability Issues — via Environmental & Safety Law Update
- Apple and Facebook are now paying for women employees to freeze their eggs — via The Verge
- Eggs in the workplace — via Robin Shea’s Employment & Labor Insider
- Should My Business Use an Arbitration Agreement for Employment Disputes? — via Michigan Employment Law Advisor
- 5 Ways to Make Your Employees Love You — via Evil HR Lady, Suzanne Lucas
- Lessons from the Ryder Cup: don’t blast the boss in front of a world-wide audience — via Employment Law Worldview
Wage & Hour
- DOL Makes It Official: New FLSA Regulations Delayed Until 2015 — via Wage & Hour Insights
- Wage and Hour Division Releases Enforcement Statistics — via Wyatt Employment Law Report
- An Explainer: NFL Cheerleader Lawsuits — via On Labor
- NLRB Toasts Chicago Bakery On English-Spanish Translation — via The Labor Dish
- NLRB Wins Reversal of Section 10(j) Ruling; Trial Court Denied Bargaining Order Remedy Bloomberg BNA
Thursday, October 16, 2014
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
Tuesday, October 14, 2014
The ABA Journal (hat tip: Overlawyered) is reporting that the EEOC is investigating whether several well-known companies are violating the ADA by using pre-employment personality tests to screen applicants.
I cautioned employers about this issue three years ago. This is what I said.
Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA.
The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.
Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:
Is A Medical Exam
Is Not A Medical Exam
Prior to an offer of employment: Personality tests are prohibited. No limits on the use of personality tests. After an applicant is given a conditional job offer, but before s/he starts work: Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category. No limits on the use of personality tests. After employment begins: Personality tests are permitted only if they are job-related and consistent with business necessity. No limits on the use of personality tests.
Monday, October 13, 2014
Ken Adams, writing at his always insightful blog, Adams on Contract Drafting, comments on the use of terms such as “faithfully” to describe an employee’s performance obligations in an employment agreement. Ken concludes that terms such as faithfully, diligently, competently, industriously, etc., are too wishy-washy to be of any practical use. Instead, he suggests that you “be as specific as possible regarding an employee’s duties”—
For lack of anything more tangible, drafters throw in faithfully and the like. But I don’t think it does any good. In a contract you might well say that the employee is obligated to perform duties specified by the CEO (or, in the case of the CEO, by the board of directors), is obligated to work full-time, and can be fired for specific transgressions. Beyond that, you face the question of whether the employee will do a good job and be successful. Unless you come up with quantifiable targets, imposing on an employee an obligation to be successful wouldn’t work. So drafters make impotent gestures in that direction—that’s where faithfully comes in.Even though I agree with Ken, terms like “faithfully” do serve a legal significance in employment agreements. They intend to impose a heighted (or fiduciary) duty of performance upon the contracting employee. Unless a contract provides otherwise, an employee might now not owe a fiduciary duty to his or her employer. In many circumstances, employers want to ensure that they impose this obligation on managers and other higher-level employees. Thus, they use terms like “faithfully” to legally bind the employee to a heightened performance obligation.
The, problem, however, is as Ken points out. Performance obligations such as “faithfully” are too vague and subjective to be of any practical use. Sure, a court might use that word to impose a fiduciary duty, but a court could just as easily strike it for vagueness. Instead of using these indefinite terms of art that do not provide the employer or the employee any practical on-the-job guidance, employers should tie the obligations to specific performance standards. Consider the following example:
Employee shall devote all of his/her working time, attention, knowledge, and skills to Employer’s business interests and shall do so in good faith, with his/her best efforts, and to the reasonable satisfaction of the Employer.
Employee agrees to refrain from any interest, of any kind whatsoever, in any business competitive to Employer’s business. The Employee further acknowledges s/he will not engage in any form of activity that produces a “conflict of interest” with those of the Employer unless agreed to in advance and in writing.
The Employee understands that failure to reach benchmarks or performance terms provided by the Employer may result in reassignment, demotion, or termination. Employee further understands that reaching these benchmarks or performance terms constitutes a reasonable and substantial condition of employment, but does not in any way guarantee or promise continued employment.As for “faithfully,” I recommend we stick to cheesy soft-rock ballads.