Protected activity doesn’t protect against poor performance

Yesterday brought us two different 6th Circuit cases upholding dismissals of lawsuits in which the employees alleged that their terminations followed their exercise of protected activity.

• In Wilson v. Cleveland Clinic Foundation, the hospital fired a patient transporter for failing to follow proper procedures for moving a post-surgical patient. That incident was not her first breach of protocol, as the hospital had previously suspended her for leaving a corpse unattended in a patient room. She had filed an EEOC charge after the corpse incident.
• In Travers v. Cellco Partnership, the employer fired an employee with a history of performance problems on her first day back from FMLA leave, after she made yet another on-the-job mistake.

These cases illustrate that it is not impossible for fire an employee on the heels of protected activity. In both cases, the court concluded that there existed no factual dispute as to the veracity of the performance problems, and that each was a terminable offense.

“Terminability,” however, is the key. If an employee can show either that stated reason for the termination (1) had no basis in fact, (2) did not actually motivate the employer’s action, or (3) was insufficient to motivate the employer’s action, then the employer cannot prevail on summary judgment.

Consistency is crucial. How did the Clinic and Verizon treat other employees who committed similar violations? If the treatment is consistent, it becomes difficult for the employee to establish either of the three indicia of pretext, even if the termination follows on the heels of the protected activity.

What can you learn from these cases? Protected activity does not per se protect a poor performer from termination, provided that you can demonstrate a history of treating similarly situated poor performers similarly.

Is this the end of the independent contractor as we know it?

In Alexander v. FedEx Ground Package Sys. (8/27/14), the 9th Circuit Court of Appeals concluded that FedEx’s delivery drivers are employees of the company, not independent contractors.

The opinion’s introductory two paragraphs pretty much sum up the entire case:

As a central part of its business, FedEx contracts with drivers to deliver packages to its customers. The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards. FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent. 

FedEx contends its drivers are independent contractors under California law. Plaintiffs, a class of FedEx drivers in California, contend they are employees. We agree with plaintiffs.

Even though this case is decided under California law, it confirms that in determining whether one who performs services for pay is an employee or a contractor, the label placed by the company is irrelevant. As noted by the concurring opinion:

Abraham Lincoln reportedly asked, “If you call a dog’s tail a leg, how many legs does a dog have?” His answer was, “Four. Calling a dog’s tail a leg does not make it a leg.” … Bottom line? Labeling the drivers “independent contractors” in FedEx’s Operating Agreement does not conclusively make them so.… [O]ur decision substantially unravels FedEx’s business model.…

This case also confirms that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors. This distinction is important, because, unlike contractors, employee are subject to a host of employment laws, including the anti-discrimination laws, workers’ comp laws, and wage-and-hour (minimum wage and overtime) laws.

While this case only covers employers governed by California law in the 9th Circuit, I would expect the filing of copycat lawsuits under the laws of different states in different courts. In other words, this case is not the final word on this issue. Thus, to answer the specific question I posed in the title to this post, while this case does not necessarily spell the end of the independent contractor, it very well could be the beginning of trend of cases leading down this path.

WIRTW #335 (the “Cutetallica” edition)

“What is Cutetallica”, you ask? It’s my daughter’s latest School of Rock band (earlier, here and here). What else could it be?

If you’re in the Cleveland area over the next three weekends, you have three different chances to see the band.

• September 6 and 13 at the Music Box Supper Club, 1148 Main Ave., on the West Bank of the Flats. Show time, 2 pm.
• September 21, at the Metroparks Chalet, 16200 Valley Parkway, Strongsville. Show time, 4 pm.

If you’re there, please stop by and say hello.

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

Discrimination

• Fair Is Fair: The EEOC Did Not “Botch” Case — via Employment Discrimination Report
• Wal-Mart Shows Employers That Ignoring Sexual Harassment Complaints Don’t Go Away When You Ignore Them! — via The Emplawyerologist
• The Goldilocks Paradigm In RIF Releases — via The Labor Dish
• When training separates the men from the women — via HR Café
• Stress-induced racism – really? — via Employment Law Worldview
• Accommodating Employee Religious Practices: A Nuanced Matter — via Minnesota Employer
• Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so. — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• “BYOD Bill of Rights” May Help Concerns about Privacy — via Abovethelaw.com
• Court won’t let jury see plaintiff’s trial-victory prediction on Facebook — via Eric Meyer’s The Employer Handbook Blog
• Millennials Increasingly Using Social Media to Challenge Harassment and Discrimination — via WinWinHR
• I Like You, You Like Me, But Companies Don’t Own the “Likes” You See — via All in a Day’s Work

HR & Employee Relations

• Fantasy Football: A Real and Present Danger to the Workplace? — via Dan Schwartz’s Connecticut Employment Law Blog
• Flaw in Employment Background Check Law is Hurting Candidates — via employeescreenIQ Blog
• Casino or Employee? Who Owns the Book of Elite Players? — via Phil Miles’s Lawffice Space
• Why this should worry you. — via Suzanne Lucas at Inc.com
• Gen Y! Start Thinking About Work-Life Issues — via Families and Work Institute Blog
• Auburn Football and HR: Why We Write New Handbook Policies To Police Morons — via The HR Capitalist, Kris Dunn
• Restrictive Covenants: Better To Ask And Disclose — via Trade Secrets and Noncompete Blog

Wage & Hour

• The War of the Wages — via The Sociable Lawyer Blog
• FLSA Exemptions And “Overtime Rights”  — via Wage and Hour Laws Blog
• FedEx Ruling: Form, Rather Than Label, Determines Independent Contractor Status — via In House
• $4.2M Settlement in Wage and Hour Lawsuit — via Overtime Lawyer Blog

Labor Relations

• Kellogg Puts on a Clinic in How to Lock Out Employees — via Matt Austin Labor Law
• Gee Whiz! NLRB says union representative required for urine test. — via Mike Haberman’s Omega HR Solutions
• Button Bans – Be Careful — via Labor & Employment Law Perspectives
• Judge Calls Out NLRB Pro-Union Partisanship — via LaborPains.org
• Fast-Food Strike Follows From Joint-Employer Rumblings — via Labor Relations Today
• US unions are shrinking. These 7 charts show what that means. — via Vox
• What Unions No Longer Do — via Harvard Business Review

6th Circuit agrees to re-hear telecommuting accommodation case

In April, the 6th Circuit issued a decision that recognized telecommuting as a possible reasonable accommodation under the ADA. Work-life balance advocates rejoiced. It seems that their revelry may have been premature.

Earlier this week, that same court agreed to rehear the case — EEOC v. Ford Motor Co. — en banc. Thus, the entire panoply of 6th Circuit judges, and not just a random panel of three, will hear the case anew.

Would the 6th Circuit backtrack on its pronouncement that “[C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home?” Or will the court take issue with the panel’s decision that a fact issue existed over whether physical attendance at the place of employment was an essential function of this plaintiff’s job? Or will the en banc panel reach the same result with a new opinion?

Stay tuned. The outcome of this case will be one of the most significant ADA cases of 2015.

[Hat tip: Robin Shea]

“Wage Theft” is a fraud (or at least a misnomer)

Forgive them, for they know not what they do.

Over on LinkedIn, my friend (and author-extraordinaire of the Connecticut Employment Law Blog) Dan Schwartz wrote a post entitled, Beware: Use of Loaded Term “Wage Theft” On the Rise. 

In that post, Dan called out the use of the phrase, “wage theft.”

It’s time for employers to beware this phrase and fight its usage because, in my view, it’s really an attempt to turn something often unintentional, into something nefarious and intentional.… In other words, the use of the phrase is being pushed to push various agendas — not as a result of any legal theory or real change in the law.… And it’s time to call it out; it’s a phrase that is both misleading and loaded.

Dan was kind enough to point out that I covered this issue last year, in a post of my own entitled, Taking issue with the term “wage theft.” Here's what I said:

I have a huge problem with the term “wage theft.” It suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not. 

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better. 

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age.… 

We are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. 

As a result, sometimes employees are underpaid.

There is no doubt that our wage-and-hour laws need to be fixed. But the solution is not to craft heftier penalties for non-complying employers. Instead, we need to update our laws to account for the realities of the modern workplace, one in which the iPhone has replaced the time clock. 

Until Congress gets its act together to amend the FLSA, employee advocates will continue to push the term "wage theft" to drive an agenda. As this turn of phrase gains traction, it will focus attention on whether you, as an employer, are paying your employees correctly. These are expensive crosshairs in which to find yourself. As we round into the final quarter of 2014, make wage-and-hour compliance a priority, if for no other reason that because employees are watching, and no company is 100% error free under the FLSA.

Ohio Supreme Court punts on individual discrimination liability … for now

Earlier this summer, I reported on Hauser v. City of Dayton, which I hoped would answer the question of whether Ohio’s employment discrimination statute still provided for individual liability for managers and supervisors.

Last week, the Court issued its ruling in Hauser, and, disappointingly, punted on the issue. Yes, the employer technically won the case, and the Court held political-subdivision employees (i.e., public-sector workers) are immune from discrimination lawsuits.

On the bigger question, however, of whether Revised Code chapter 4112 imposes liability on managers or supervisors in general, the Court punted. It concluded that it did not have to revisit Genero (the case that originally concluded that 4112 imposes liability on individual managers and supervisors), because the employer in that case was in the private sector. Nevertheless, the Court concluded that its “reasoning in this case calls the Genaro majority’s reasoning into question, particularly its basis for distinguishing the prevailing interpretation of Title VII.”

For now, Genaro and its imposition of individual liability lives to fight another day. Private-sector managers and supervisors can still be sued for their own individual acts of discrimination. Moreover, Ohio employers are now split down public / private lines as to whether managers and supervisors can be held individually liable for discrimination.

Yet, Ohio employers have hope that when presented with the right case, this Court will overturn Genaro and rid Ohio of its anomalous individual liability. Or, Ohio’s legislature can do right by our state’s employers and pass legislation ending this incorrect interpretation of R.C. 4112, which will bring Ohio into line with the discrimination laws of nearly every other state and Title VII.

WIRTW #334 (the “these go to 11” edition)

Today is my 11th anniversary. I love my wife. That is all.

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

Discrimination

• Gee Whiz! Sexual Harassment Claims Abound at Archie Comics – By Both Males and Females! — via Employment Discrimination Report
• 5th Circuit Weighs In On Religious Discrimination — via Michael Fox’s Jottings By An Employer’s Lawyer
• Understanding Gender-Identity Discrimination — via Molly DiBianca’s Delaware Employment Law Blog
• Is AGE the hidden area of discrimination? — via Mike Haberman’s Omega HR Solutions
• Why the majority and dissenting opinion in the Ninth Circuit case of Weaving v. City of Hillsboro both got it wrong — via Understanding the Americans with Disabilities Act (ADA)
• NYC: “‘Ban the Box’ bill worries businesses” — via Walter Olson’s Overlawyered
• Sexy ADA issue: Bad breakup may not justify employer-mandated medical exam — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Looking back on Zubulake, 10 years later — via Electronic Discovery Law
• How NOT to Produce Facebook Evidence — via Next Blog
• Dinging distracted drivers — via Technology for HR
• Delaware Adopts Model Law Allowing Social Media Accounts to be Inherited — via Ride The Lightning

HR & Employee Relations

• A Cold Shower for Workplace Ice Bucket Challenges? — via Dan Schwartz’s Connecticut Employment Law Blog
• My Boss Talks About Killing People — via Evil Skippy at Work
• Telecommuting not as prevalent as you might think — via Business Management Daily
• How Family Support For Dads Also Helps Working Moms, Kids and Employers — via Fathers, Work and Family
• Don’t Treat Work-Life Balance as a Zero-Sum Game — via Lifehacker
• Common Mistakes that Derail Enforcement of a Noncompete Agreement — via Michigan Employment Law Advisor

Wage & Hour

• Under the FLSA, a Day Late is a Dollar Short — via Wage & Hour Insights
• How Do Wage and Hour Laws Apply to Telecommuting? — via Overtime Lawyer Blog
• Showdown With Showtime: Never Ask Professionals to Work for Free — via Evil HR Lady, Suzanne Lucas
• The Growing Use of Statistical Analysis In FLSA Overtime/Misclassification Lawsuits — via Wage & Hour - Development & Highlights
• Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important? — via Jeff Nowak’s FMLA Insights
• Here’s why you provide a list of essential job functions when approving FMLA — via Eric Meyer’s The Employer Handbook Blog
• 7th Circuit Rules Plaintiff Does Not Need Expert Testimony to Show Incapacitation in FMLA Claim — via Wisconsin Employment & Labor Law Blog
• 3d Cir. on FMLA Right to Return to Work — via Phil Miles’s Lawffice Space

Labor Relations

• Handbooks are Still Being Overly-Scrutinized by the NLRB — via Matt Austin Labor Law
• Harassment Investigations: New NLRB Decision Complicates Them Even More — via WinWinHR
• Cry “Solidarity” and Let Loose the NLRB: A Significant Expansion of the NLRA’s Protections — via Vorys on Labor

 

What does the ADA have to say about employer inquires about prescription drugs

Employers with employees working in safety-sensitive positions have an obligation to ensure that their employees are not impaired while engaged in their jobs. For example, earlier this week I discussed Blazek v. City of Lakewood, in which the 6th Circuit concluded that the ADA does not protect a drunk snowplow driver. We also know that the ADA does not protect employees under the influence of illegal drugs.

What about legally prescribed drugs? As an employer, can you test employees for prescription medications packaged with warnings about operating heavy equipment. And, if an employee tests positive, can you require those employees to disclose those medications to the third-party company hired to administer the tests. Surprisingly, the ADA is silent on these issues.

In Bates v. Dura Automotive Sys. (8/26/14) [pdf], the 6th Circuit attempted to give us some answers.

1. Does the ADA permit an employer to test for prescription medications?

Whether the ADA permits an employer to test employees for prescription medications will hinge on whether the test is a “medical examination.” If the test is a “medical examination,” then the ADA only permits it during employment if the test is “job-related and consistent with business necessity.” According to the Court, whether the prescription-drug screen is a “medical examination” will hinge on whether the test “is designed to reveal an impairment or physical or mental health,” which examines both the employer’s reasons in using the test and the test’s typical uses and purposes.

The Court concluded that this issue presented a close enough call for a jury to decide:

Dura denies using its drug-testing protocol to reveal impairments or health conditions…. Far from a “free peek into a[n] … employee’s medical history,” … the evidence shows that Dura abstained from asking plaintiffs about their medical conditions…. The urine test itself revealed only the presence of chemicals—amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates, oxycodone, phencyclidine, and propoxyphene. No one suggests that the consumption of prescription medications containing these chemicals constitutes protected medical information (or even an “impairment”) under the EEOC definition of medical examination….

Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocol—with a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs—reflects Dura’s effort to avoid obtaining information about employees’ medical conditions and to avoid discriminating against all employees who take prescription drugs.

Still, much depends on Dura’s credibility. Inconsistencies between Dura’s written and actual drug-testing policies and its disparate treatment of individual employees may evince a pernicious motive. For instance, one plaintiff (Bates) claims that Dura asked her directly about her prescription medications and fired her for reporting them, and Dura allowed another plaintiff (Long) to return to work despite testing positive. If credited, a jury could reject Dura’s explanation as a pretext for screening out potentially disabled employees. Moreover, plaintiffs-appellees may present evidence that the disclosure of machine-restricted medications typically reveals confidential health information, such that the jury could determine that the test targets information about an employee’s physical or mental health, regardless of Dura’s intent.

2. Does the ADA permit an employer to require employees, after a positive test, to disclose medications to a third-party administrator?

The 6th Circuit concluded that there exists a huge difference between a general requirement that employees disclose a list of all prescription medications taken (possibly illegal), versus a policy that only requires the disclosure of machine-restricted medications after a positive test. Given the fact-based nature of this inquiry, the court concluded that a jury should decide this question, too.

Dura denies asking employees about their general prescription-drug usage. Viewing the evidence in its favor, Dura’s third-party-administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same…. A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability….

A jury could reasonably conclude that Dura implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.

How can an employer make sense of this discussion? These are difficult issues that balance an employer’s right to maintain a safe workplace against an employee’s right to medical privacy. What is an employer to do?

1. Limit testing for the use of prescription drugs to safety-sensitive positions and only those medications that could pose a safety risk.

2. Be consistent in your treatment of employees who test positive.

3. Only disclose the results to those who need to know.

4. Do not ask employees to disclose the underlying medical condition for which they are taking the medication.

These steps will help limit your risk in the event an employee challenges your testing or the use of the results.

”Ritalin-SR-20mg-full” by en:User:Sponge - Created by en:User:Sponge. Transferred from en.wikipedia. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

Hear what I had to say on @WCPN about #BanTheBox

Yesterday, WCPN’s The Sound of Ideas was kind enough to invite me to speak about criminal background checks in employment and the “Ban the Box” movement.

Did you miss the live broadcast? 1) shame on you; and 2) today’s your lucky day because WCPN archives all of its broadcasts on its website.

Here you go.

Thanks Mike McIntyre for having me on. Let’s do it again soon.

Facebook firing causes unfair labor practice double play for NLRB

In Triple Play Sports Bar & Grille [pdf], the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive.

A former Triple Play employee, Jamie LaFrance, posted the following on her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!

Two then-current employees, Spinella and Sanzone, interacted with that post. Spinella clicked the “Like” button under the comment. In response to another’s comment to the same post, Sanzone commented, “I owe too. Such an asshole.”

The Board concluded that Triple Play unlawfully fired Spinella and Sanzone for their Facebook activities:

Spinella’s and Sanzone’s comments were not “so disloyal … as to lose the Act’s protection.” … The comments at issue did not even mention the Respondent’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.

The NLRB then examined the employer’s Internet/Blogging Policy, which stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The Board concluded that a vagueness and lack of specificity doomed the policy:

Here, we believe that employees would reasonably interpret the Respondent’s rule as proscribing any discussions about their terms and conditions of employment deemed “inappropriate” by the Respondent. The rule contains only one other prohibition—against revealing confidential information—and provides no illustrative examples to employees of what the Respondent considers to be inappropriate. Under these circumstances, we find the term “inappropriate” to be “sufficiently imprecise” that employees would reasonably understand it to encompass “discussions and interactions protected by Section 7.” …

The two unlawful discharges served as an indication to employees that the clause did not shield Sanzone’s and Spinella’s protected activity. Faced with these discharges, employees therefore would reasonably construe the Internet/Blogging policy to prohibit Section 7 activity such as the Facebook discussion of tax withholding issues involved in this case.

What can employers learn from this decision:

1. Even the simple act of clicking the “Like” button can be enough to constitute protected concerted activity.

2. The line beyond which an employee must cross to cost themselves the protections of the NLRA is far down the path of online speech.

3. For any social media policy to pass muster under the NLRA, you should provide specific examples of the prohibited speech. Generalizations will likely cause you problems with the NLRB.

4. The surest way to end up the NLRB’s crosshairs for an unlawful social media policy is to fire an employee for a violation of that policy. Absent a termination, it is unlikely the Board will ever find out about your policy.

Listen to me on WCPN tomorrow morning (8/26) from 9–10, discussing “Ban the Box”

If you’re near a radio tomorrow morning from 9 – 10, tune to 90.3 FM, WCPN, to hear me on The Sound of Ideas.

The topic of the day is “Ban the Box,” the disturbing legislative trend that prohibits employers from asking job applicants about criminal conviction histories on job applications. Given that we have an hour to fill, I imagine the discussion will also more broadly cover employment background searches in general.

If you miss the show live, I’ll have links for everyone to stream it at your leisure. You can also watch live on your computer here.

This is my second appearance on The Sound of Ideas, and I’m grateful to the show for having me back.

The difference between alcoholism and drunk under the ADA

A few months ago, I had to fly to Houston for a hearing. After the flight took off, I witnessed the most impressive bit of alcohol consumption I’d seen since my college days a couple of decades ago. The guy sitting next to me ordered four bloody maries, downing all four in a matter of a couple of minutes. He then proceeded to pass out on my shoulder, but that’s a story for another day. That had been the most impressive feet of drinking I’ve encountered in some time … until I read Blazek v. City of Lakewood (6th Cir. 8/13/14).

Jonathan Blazek worked in the in streets, construction, maintenance, and repair department for the City of Lakewood. His job followed a seasonal cycle—leaf pick-up in the fall, snow removal in the winter, and Christmas tree pick-up after the holidays. His job required that he maintain a commercial drivers license.

For reasons that only Blazek could explain, on March 13, 2012, he arrived at work with a 21-ounce bottle of Canadian Mist whiskey stashed in his truck. During his one-hour lunch break, he drank the entire bottle, the equivalent of 14 shots of whiskey. At a post-lunch meeting, Blazek’s boss suspected something was “off” was Blazek. Even though Blazek denied drinking, she took him to the police station, where he blew a 0.132, 65% more than Ohio’s legal limit, and more than three times the limit for CDL drivers.

The City charged Blazek with various violations—being intoxicated at work, driving a city vehicle while intoxicated, drinking at work, and possessing alcohol on City property. Each violated the City’s policy on alcohol in the workplace, and Possessing or consuming alcohol on City property constituted a fireable offense—even for a first-time violator. But, this was not Blazek’s first violation. He admitted as his pre-disciplinary hearing that he had drunk “at work and/or drove City vehicles, on a handful of occasions in the [preceding] several months…. This includes driving a snowplow under the influence during a snow storm.” As a result, Blazek was fired.

Blazek sued the City for disability discrimination, claiming that the City had fired him because of, and failed to accommodate, his alcoholism. The 6th Circuit disagreed:

Plaintiff admitted driving a City snowplow during a storm while intoxicated. Plaintiff further admitted that was not his only time drinking on the job. Plaintiff's violations of City policies dwarf those of the other employees whom Plaintiff offers up as comparisons. The most analogous is Bork, who also operated a City vehicle while drunk—and was fired. Even if we assume that none of these fifteen employees was disabled (and there is no reason to make this assumption), the facts of their cases are simply too different from the facts of Plaintiff's case to be of use. Plaintiff therefore cannot show that Defendant's legitimate reason for terminating him was pretextual.

The ADA protects “alcoholism” as a disability. There is a huge difference, however, between alcoholism, which the ADA protects, and being drunk at work, which the ADA absolutely does not protect. The ADA is never going to cover any employee who uses substances at work, let alone one who’s in an altered state a result.

You are seldom in the wrong for firing an employee who’s drunk at work. It’s plain sad that we need a federal appellate court to remind us.

WIRTW #333 (the “firsts” edition)

Big week of firsts for the Hyman family. First week at a new job for me. First week of third grade for Norah. And, it was the first day of kindergarten for Donovan, who after watching his sister walk the halls of her school for the past three years, is finally proud to call it his school too.

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

Discrimination

• Peanut Allergies Can Be Disabilities But Analysis Must Run Deeper — via Dan Schwartz’s Connecticut Employment Law Blog
• Anti-discrimination law vs. associational freedom, again — via Overlawyered
• Post-Pregnancy Discrimination? — via Next Blog
• Facially Sex-Neutral Statements and Conduct May Support a Sexually Hostile Work Environment Claim — via New York Labor and Employment Law Report
• Sex Discrimination: Employers can be held liable for terminating an employee based on an angry co-worker’s intent on revenge — via Employment Law Bits
• Teacher Who Refused Fitness-For-Duty Exam Has No Disability Accommodation Claim — via The Employment Brief

Social Media & Workplace Technology

• Delaware is first state to adopt model law that says social media accounts can be inherited — via ABA Journal Daily News
• Social Media Policies in the Workplace — via The Labor Dish

HR & Employee Relations

• The hidden business benefits of fantasy football — via Evil HR Lady, Suzanne Lucas
• HR Cinema: Guardians of the Galaxy — via Casey Sipe’s The Employer’s Lawyer
• Teleworker, or teleslacker? Here’s how employers can tell the difference. — via Robin Shea’s Employment and Labor Insider
• Forget About Non-Competes – What are employers agreeing on? — via Smooth Transitions
• Why Going Green Is a Great Idea in the Workplace — via Mike Haberman’s Omega HR Solutions
• Five Things Every Lawyer Should Know About The Ebola Virus — via The Sociable Lawyer Blog
• My Employee Is Obsessed With Ebola — via Evil Skippy at Work

Wage & Hour

• Lesson from Wal-Mart: Wage and Hour Violations Don’t Pay! — via The Emplawyerologist
• Gawker Media in Crosshairs of Interns’ FLSA Suit — via Joe’s HR and Benefits Blog
• NFL Argues Cheerleader Pay Is Exempt From State Labor Laws — via Law.com
• 7-Eleven Franchise Operators’ Overtime & Minimum Wage Lawsuit Given Green Light by NJ District Court — via Management Memo
• When Is It Time For A Wage Hour Audit? Answer—Now! — via Wage & Hour - Development & Highlights
• Not Paying Employees On Time? It’s Considered an FLSA Violation — via TLNT

Labor Relations

• Board Circles Back To Ruling Nixed By Noel Canning — via Labor Relations Today
• You’re NOT Paranoid – the Agencies ARE Ganging Up — via Labor & Employment Law Perspectives
• NLRB may encourage your employees to file OSHA, FLSA claims too — via Eric Meyer’s The Employer Handbook Blog
• The latest from the NLRB on employment-at-will — via Business Management Daily

Cop loses big ADA verdict on a finding of no disability

When is a disability not a disability? When an employer fires a difficult employee based on his inability to get along with his co-workers, his ADHD diagnosis notwithstanding, at least according to the 9th Circuit in Weaving v. City of Hillsboro (8/15/14).

Matthew Weaving was diagnosed with ADHD as a child. As an adult, he pursued a career as a police office, and later a police detective. He joined the Hillsboro, Oregon, Police Department in 2006.  His performance record at the HPD was spotty. His co-workers complained that he was often sarcastic, patronizing, and demeaning. After a 2009 complaint by a subordinate about Weaving’s bullying, the HPD placed him on paid administrative leave. While on leave, Weaving sought a mental-health evaluation, which concluded that some of his interpersonal difficulties had been caused by his continuing ADHD. Shortly thereafter, the HPD finished its investigation, finding that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” As a result, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis.

The 9th Circuit reversed a jury verdict of more than $500,000. Surprisingly, it did so based on a finding that Weaving’s inability to get along with others as a result of his difficult personality did not qualify as an ADA-protected disability.

A “cantankerous person” who has … trouble getting along with coworkers is not disabled under the ADA…. One who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA…. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.

Since Congress amended the ADA in 2009 to expand the definition of “disability,” conventional wisdom has said that most medical conditions will qualify for protection under the ADA. This case sets the bounds of the exception. Weaving notwithstanding, employers should not hold out much hope that they will be able to win many ADA cases on an argument that an employee’s medical condition is not an ADA disability. In the right case, however, faced with the right employee, the right performance issues, and the right claimed medical condition, an employer might be able to prevail that the employee’s medical condition does not rise to the level of a “disability.” The better (safer?) course of action, however, is to assume that the medical condition is an ADA-protected disability, and instead argue that the condition notwithstanding, an employer cannot offer any reasonable accommodation that will enable the employee to perform the essential functions of one job. You end up at the same place—a dismissal—albeit on safer legal footing. Regardless of how you get there, however, it is reassuring to see a court refuse to protect an alleged jerk employee on a claim that a disability caused the awful behavior.

When the cat’s paw strikes retaliation

What happens when a decision-maker acts with an innocent motive, but unwittingly carries out the retaliatory motive of a subordinate? Does the cat’s paw impute the unlawful intent to the otherwise innocent manager or supervisor? In Seoane-Vazque v. The Ohio State University (6th Cir. 8/19/14) [pdf], the 6th Circuit held that while the cat’s paw applies to retaliation claims, it is still bound by the higher but-for causation standard the Supreme Court applied to retaliation claims in University of Tex. S.W. Med. Ctr. v. Nassar.

Following Nassar, “a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors.” … So long as the untainted factors were sufficient to justify [the] ultimate decision, the University will be entitled to summary judgment.

Thus, in any claim alleging retaliation under Title VII, courts must apply the stricter “but for” causation standard, regardless of the identity of the purported decision-maker. As a result, retaliation claims remain harder for employees to prove, and easier for employers to win on summary judgment.

This all makes for an interesting academic discussion, but once you reach these platitudes of burden of proof and causation, you’ve already lost. You’ve already fired an employee who engaged in protected conduct. You’ve already gotten sued. And, you’ve already spent a tidy sum investigating the complaint, taking discovery, and preparing a (hopefully winning) motion for summary judgment. You’ve spent $100,000 (or more) to justify the termination of a marginal employee. In that case, have you really won?

What’s the safer course of action? Only terminate as a last resort. Treat employees who engage in protected activity with kid gloves. Make an informed decision early in any case whether it is one worth fighting or settling. Better yet, consider severance pay in exchange for a release claims in all but the most egregious of terminations. Nassar’s “but-for” causation standard may shift employers’ decisions to fight over flight in more cases, but employers should resist the litigation urge, which is usually a losing proposition for all. I know this is odd advice coming from a litigator, but a termination decision must be fully informed, and the vast void of litigation costs must be a key part of that decision.

Even the lone wolf can establish protected concerted activity with today’s NLRB

In Fresh & Easy Neighborhood Market (8/11/14) [pdf], the NLRB held that an employee engaged in protected concerted activity merely by asking co-workers for help in making a sexual harassment complaint to her employer. It was irrelevant to the Board whether the employee had engaged other employees for group activity; all that mattered was that the employee engaged others at all.

Margaret Elias, a cashier, wrote a note on a whiteboard about some training known as “TIPS.” When she returned to the whiteboard the next day, she noticed that the “P” in “TIPS” had been changed to a “T,” and someone had drawn a picture of a worm (or peanut) urinating on her name. In support of her intent to file a sexual harassment complaint with her employer, Elias asked three co-workers to sign a piece of paper that contained a copy of the whiteboard. When the employee relations manager later spoke to Elias about her harassment complaint, she asked why Elias felt the need to obtain co-workers signatures, and instructed her not to obtain any further statements so that she could conduct an investigation. Elias admitted that was only filing the complaint on her own behalf, and her co-workers were not involved other than as potential witnesses.

Based on these facts, the NLRB concluded that the employer violated the Act by questioning Elias about the signatures she obtained:

Here, Elias sought her coworkers’ assistance in raising a sexual harassment complaint to management, by soliciting three of them to sign the piece of paper on which she had copied the altered whiteboard message in order to “prove” the harassment to which she had been subjected. Although she did not intend to pursue a joint complaint, her testimony establishes that she wanted her coworkers to be witnesses to the incident, which she would then report to the Respondent…. Elias’ conduct in approaching her coworkers to seek their support of her efforts regarding this workplace concern would constitute concerted activity. Elias did not have to engage in further concerted activity to ensure that her initial call for group action retained its concerted character.

Even if the employee was pursuing her own individual claim, her “selfish motivation” for speaking to her co-workers was irrelevant because “concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.”

This case creates a dangerous precedent. It enables an employee to create an unfair labor practice out of thin air merely by airing an issue with co-workers, regardless of whether those co-workers share in that concern. It makes case for the lone wolf, who, even though, by definition, a lone wolf cannot act in concert.

I’ve long argued that the current iteration of the NLRB is using “protected concerted activity” as a life-vest to prop up its own existence. Fresh & Easy does little to dissuade me of that opinion. If a single employee, admittedly acting on her own behalf, can create an unfair labor practice merely by talking to other employees about a workplace issue, then any workplace conversation could constitute protected concerted activity. If that is the rule, then good luck disciplining employees for anything.

Announcing a new beginning at Meyers Roman

And to make an end is to make a beginning.
― T.S. Eliot

According to my blogging service, this is my 2,000th post. While this milestone is mind-blowing (at least to me), I am marking this bi-millenium with news of a different kind. Today, I start the next phase of my career at Meyers, Roman, Friedberg & Lewis.

Why switch law firms, you ask? It’s hard to quantify “why.” New opportunities, new challenges, new surroundings, etc. In short, I feel energized, which, when you have to get up and go to work everyday, is a really good thing. I am excited by everything Meyers Roman offers to my career and to me. I’m thrilled to join a vibrant firm with a vibrant labor and employment practice.

I’d be remiss if I did not say thank you to the firm that I’ve called home for the past 8 years, and was the only home this blog has known. Kohrman Jackson & Krantz was nothing but supportive of me and this blog, and for that I will be eternally grateful.

For you, my loyal readers, the move will be transparent. Other than seeing a different firm’s logo above the fold, nothing else is going to change (for now). I’ll still bring you daily posts, Monday through Friday, which will still include my famous Friday What I’m Reading weekly recap. Still, new beginnings bring new opportunities, and I’m looking forward to version 2.0 of the blog, which will bring more multimedia, including (if I can get my stuff together) a podcast.

I’d love to hear from anyone and everyone. My new contact information is:

Jon Hyman
Meyers, Roman, Friedberg & Lewis
Eton Tower
28601 Chagrin Blvd., Ste. 500
Cleveland, Ohio 44122
216-831-0042
jhyman@meyersroman.com
www.meyersroman.com

WIRTW #332 (the “carpe diem” edition)

There are lots of snippets of Robin Williams I could play. I chose this one.

I'll see everyone Monday with some huge news.  

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

Discrimination

• The “Dirty Dozen”: Top 12 employer harassment mistakes — via Robin Shea’s Employment and Labor Insider
• An employer-defendant argued that cancer — CANCER!!! — is not an ADA disability — via Eric Meyer’s The Employer Handbook Blog
• “Oh Wow, You Look So Pretty I Can’t Even Concentrate” – Sexual Banter Or Sexual Harassment? — via Employment Discrimination Report
• My Muslim Co-Worker Gets Special Breaks — via Evil Skippy at Work
• Can You Get Compensatory and Punitive Damages in ADA Retaliation Claims — via Understanding the Americans with Disabilities Act
• My boss makes us all keep kosher for Passover — via Ask a Manager
• A Lesson on the ADA: Engaging in Good Faith in the Interactive Process is Essential — via Employment Matters Blog

Social Media & Workplace Technology

• Creators of Siri working on Viv, a complex AI that can teach itself — via TiPb
• Will Baby Monitor Technology lead to Employee Monitoring? — via Blogging4Jobs
• The 21st Century Water Cooler: Discovery and Text Messages — via Abovethelaw.com
• Check Your Social Profile for These Lesser-Known Job-Killing Mistakes — via Lifehacker
• Should Employers Ban Email After Work Hours? — via Harvard Business Review
• Courts Warming up to Social Media — via Justice Judy

HR & Employee Relations

• Ban the Box Has Jumped the Shark- It’s Getting Ugly Employers — via employeescreenIQ Blog
• Yes, Dad’s DO Have It a Lot Easier in the Workforce — via TLNT
• Is Being a Good Parent and a Good CEO Impossible — via Fast Company
• 16 Dads 16 Experiences: This Is What Paternity Leave Looks Like in 2014 — via Fathers, Work and Family
• American Horror Story: Violence in the Workplace — via DOL’s Work in Progress
• Robin Williams and the Dark Side of Genius — via Evil HR Lady
• Don’t Panic: Workplace Worries Over Ebola Virus — via Corporate Counsel
• Anatomy of a Big-Time Noncompete Dispute — via Suits by Suits

Wage & Hour

• Wage-And-Hour Implications For Telecommuting — via Employment Essentials
• Seyfarth Shaw Attorneys Update Definitive Guide to Litigating Wage & Hour Lawsuits — via The Wage and Hour Litigation Blog
• Did you know that having a migraine headache qualifies an employee for FMLA coverage? — via Mike Haberman’s Omega HR Solutions

Labor Relations

• Food, Folks, and Franchise-Wide Liability: NLRB Signals Intent to Pound Square Joint Employer Peg Into Round Franchise Hole — via Trade Secret / Noncompete Blog
• New Vista, NLRB Square Off In 3d Circuit — via Labor Relations Today
• NLRB Attacks Another Arbitration Agreement — via Matt Austin Labor Law
• The NLRB Goes To “Pot” – “The Board, Like Congress, Has The Authority To Regulate The Marijuana Industry” — via Management Memo
• NLRB Work Rule Decisions Continue to be a Mixed Bag — via Labor Relations Update

When retaliation stands the test of time

Often when we consider the issue of temporal proximity in a retaliation case, we examine it from the standpoint of whether temporal proximity is sufficient to infer retaliatory intent when the adverse action happens right on the heels of the protected activity. What happens, however, if the converse is true—if a long period of time elapses between the protected activity and the adverse action. Can an employer save itself from a retaliation claim simply by waiting it out? This was the question the court faced in Malin v. Hospira, Inc. (7th Cir. 8/7/14).

Deborah Malin worked in the IT department of the Abbott Laboratories’s hospital product division (spun off to a new company, Hospira, in 2006). In July 2003, she informed her direct boss, Bob Balogh, that she was going to complain to HR about sexual harassment by her indirect supervisor, Satish Shah, who reported to Mike Carlin. Before she could complain to HR, Balogh told her that Carlin told him to do everything in his power to stop Malin from going to HR. Malin ignored the stop sign and lodged her harassment complaint with HR.

Between the 2003 complaint and the 2006 Hospira reorganization, Malin applied for several promotions but received none of them. On June 14, 2006, the management team (including Carlin, then the CIO) met to discuss new roles for current IT employees. Five days later, Malin took emergency FMLA leave. Several weeks later, the IT department announced its reorganization, which again resulted in Malin being passed over for a promotion.

Among other claims, Malin claimed that when Hospira executed its 2006 reorganization, it retaliated against her for the 2003 harassment complaint. The court concluded that the intervening three-year gap between the harassment complaint and the decision not to promote Malin was insufficient to defeat her retaliation claim:

[A] long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation…. Rather, if the time interval standing alone is long enough to weaken an inference of retaliation, the plaintiff is entitled to rely on other circumstantial evidence to support her claim….

The evidence in this case permits an inference that Carlin had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006. During that time, Carlin was the final decision-maker on all promotions in the IT department, both at Abbott and after the spin-off at Hospira. Malin’s immediate supervisors repeatedly told her that she would be an excellent fit for newly-available positions at higher salary grades and that they would recommend that she be promoted into them. Nevertheless, Malin did not receive any promotions at Hospira between 2003 and 2006…. These incidents are circumstantial evidence that Carlin remembered Malin’s complaint about Shah and acted to prevent her from being promoted at Hospira long after the complaint was made.

This case serves as a solid reminder that an employer cannot hold a grudge against an employee who engaged in protected activity, with the hope that the passage of time will permit later retaliation. If an employee can connect the dots between the protected activity and the adverse action, the employer faces risk, no matter how much time has passed.

Image via Robbert van der Steeg (originally posted to Flickr as Eternal clock) [CC-BY-SA-2.0], via Wikimedia Commons

Do not force employees to work during FMLA leave

With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no.

When Tondalaya Evans, a pregnant payroll manager for Books-a-Million, requested FMLA paperwork for her impending September 1 due date, her employer told her that she “would not go on leave but would work while on maternity leave.” She protested, but was told that she had no choice because the "go-live" date for the new payroll system on which she had been working had been delayed until November. Evans gave birth on August 30, and immediately starting working (full-time, and with full pay) upon arriving home from the hospital with her baby on September 1. When she eventually returned to the office, she was transferred to a new position. Unhappy with the transfer, Evans quit and sued, claiming, among other things, FMLA interference.

The court concluded that requiring an employee to work (even for pay) in lieu of requested FMLA leave for which the employee was entitle to take violates the FMLA. In doing so, it rejected the employer’s argument that it could not have violated the FMLA because it paid Evans for her time off.

It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.

What lesson can employers learn from this case? Don’t suggest or require that an employee work during an FMLA-eligible leave (even if it’s paid). The purpose of the FMLA is to enable employees to take time off from work for certain qualifying medical and other reasons without from the encumbrance of work responsibilities and the fear of losing one’s job while away from work. Telling an employee that she cannot take an FMLA, but instead can (must?) work from home, undercuts both of these purposes. It both forbids an employee from taking time off, and puts the employee’s job at risk because of slipped performance as a result of divided attention. FMLA leave is federally guaranteed for a reason. Don’t mess with that reason by requiring work (albeit paid and at home) in lieu of bona fide leave of absence.