Wednesday, November 12, 2014

Recap of #hrintelchat on pregnancy discrimination


Yesterday afternoon, Jeff Nowak and I had a lively tête-à-tête on Twitter—aka the #hrintelchat—on all things pregnancy discrimination. In case you missed it (and given the numbers of folks tweeting along, I’m going to guess that you did), below is a neat little summary of the hour-long tweetfest. The rights of pregnant workers is an important issue that will only get more important and dual-income families and single moms are the rule and not the exception.

Thanks to Thompson HR for the invitation and for hosting. I enjoyed my hour of tweeting (even if my wrists and fingers did not).

Tuesday, November 11, 2014

Putting paternity leave on equal footing with maternity leave, #hrintelchat


This afternoon, from 3 – 4 pm, EST, I, along with my friend, Jeff Nowak, will be hosting a TweetChat for Thompson Information Services on the “Evolving Rights of Pregnant Employees in the Workplace.” Follow us on Twitter at #hrintelchat, and tweet your questions or comments to @ThompsonHR, @jeffreysnowak, and @JonHyman. We’ll be discussing workplace right and accommodations of pregnant employees. More information is available here.

While our TweetChat will focus on the rights of pregnant women, females aren’t the only ones that have workplace rights when it comes to new babies. According to the New York Times, even though many men have the same right to paternity leave that their female counterparts have to maternity leave, few exercise that right out of fear and stigmatization.

Paternity leave is perhaps the clearest example of how things are changing — and how they are not. Though the Family and Medical Leave Act of 1993 requires companies with more than 50 employees to provide 12 weeks of unpaid leave for new parents, it requires no paid leave. The 14 percent of companies that do offer pay … do so by choice. Twenty percent of companies that are supposed to comply with the law, meanwhile, still don’t offer paternity leave…. And almost half the workers in the United States work at smaller companies that are not required to offer any leave at all.

Even when there is a policy on the books, unwritten workplace norms can discourage men from taking leave. Whether or not they are eligible for paid leave, most men take only about a week, if they take any time at all. For working-class men, the chances of taking leave are even slimmer.

Here are a few “don’ts” to keep in mind in managing new dads in your workplace.

  • Don’t forget the men in your workplace when you’re crafting leave policies.
  • Don’t deny leaves to new dads doling out post-childbirth leaves of absence.
  • Don’t punish those that use those policies and leaves, such as limiting promotions, opportunities, or raises.
  • Don’t apply unconscious stereotypes about the dedication or loyalty of men who take leaves of absence for familial responsibilities.

Monday, November 10, 2014

Directing the delicate union decertification dance


It was one of the most tense moments of my career. One for the union, one for the employer. That’s how the folded pieces of paper lifted out of the previously sealed box. I sat in the conference room of my client, a company saddled with a labor union it did not want, and a group of employees, who, feeling the same way, filed a decertification petition with the NLRB. One for the union, one of the employer, all the way to 16 – 16. We all held our breath as the board agent lifted the 33rd piece of paper out of the box, unfolded it, and announced that by a margin of one, my client’s employees were no longer represented by a labor union.

I thought of this story over the weekend as I read in the New York Times that the NLRB had issued a complaint against Cablevision, accusing it of threatening to deny a group of employees a pay raise unless they voted to quit their union, and further accusing it of illegally sponsoring a nonbinding poll to determine those same employees wanted to leave their union.

Decertification is a tricky dance. An employer cannot solicit, support, or assist in the initiation, signing, or filing of a decertification petition by its employees. It can, however, provide “ministerial aid” to its employees in response to their own efforts. The test is whether the specific conduct had “the tendency … to interfere with the free exercise of the rights guaranteed to employees under the Act.” Thus, an employer cannot poll its employees to determine whether they support decertification, nor can it help employees circulate the decert petition. It likely can, however, direct employees to their local NLRB office in response to a question about decertification.

What does an employer’s unlawful assistance of a decertification campaign look like? McKesson Corp. [pdf], decided last week by an NLRB Administrative Law Judge, shows us. In that case, the employer assisted a group of employees (to whom it referred as the “magnificent seven”) to circulate a decertification petition. According to the ALJ:

The credited evidence establishes that these individuals did not act on their own but rather on behalf of management and with management’s assistance…. I find that the respondent had embarked on a plot to rid itself of the union and that the seven individuals collecting signatures were part of the plot.

Employers need to be mindful of the distinction between unlawful solicitation, support, or assistance, versus lawful ministerial aid. Critically, employers cannot interject in a decertification campaign. If you have any doubt on where the line is in your case, consult with your labor counsel to avoid a costly error.

Friday, November 7, 2014

WIRTW #344 (the “potty police” edition)


Do you know what rights your employees have to use the bathroom at work? Earlier this morning, Adrienne Mitchell and I discussed that very issue on Marketwatch Radio. You can listen here: When nature calls, does your boss answer?


On November 11, from 3 – 4 pm, Jeff Nowak and I will be hosting a TweetChat on the evolving rights of pregnant employees in the workplace. Follow along and participate with the hashtag, #hrintelchat. We’ll talk to you then.


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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, November 6, 2014

Not all speech on social media is protected


I’ve spilled a ton of ink over the past few years warning employers about the risks and pitfalls that lurk in attempting to act against an employee for work-related comments on social media. Not all online speech, however, is protected, as two recent cases illustrate.

In Ames v. Ohio Department of Rehabilitation & Correction (Ohio Ct. App. 10/28/14), a parole office posted the following on her personal Facebook page:

I’ll gimp into work tomorrow. I guess I could just shoot them all ... lol!

Yo! Thanks neighbor. I’ll gimp into work tomorrow. I guess I could just shoot them all … ARE YOU KIDDING ME? ‘MEANING I CAN’T CHASE THEM!’ OH MY GOD! YOU PEOPLE REALLY DO NEED A LIFE! LIKE NO LAW ENFORCEMENT OFFICER ‘EVER’ MADE THAT TYPE OF COMMENT. YOU MAKE ME LAUGH OUT LOUD!

Troubled by these comments, the ODRC sent Ames for three different independent medical examination, and ultimately terminated her. The appellate court dismissed her disability discrimination claim, concluding that: 1) the mere fact that an employer sends an employee for an IME does not mean that the employer regarded the employee as disabled; and 2) regardless, “posting a vulgar, threatening statement toward a co-worker under her supervision” is a legitimate, non-discriminatory reason to terminate.

Richmond District Neighborhood Center (NLRB 10/28/14) [pdf] concerned the following Facebook exchange between two teen center employees:

Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like bein their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money…. They dont appreciate shit. Thats why this year all I wanna do is shit on my own. have parties all year and not get the office people involved….

hahaha! Fuck em. field trips all the time to wherever the fuck we want!

When a co-worker sent screenshots of the conversation (which included a student), the teen center rescinded its re-employment offers to the two employees. The NLRB had little trouble concluding that these posts were unprotected insubordination, not protected concerted activity:

Callaghan and Moore’s lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail. We are not presented here with brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation. The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.

From these two examples, we glean that, indeed, there exists a line between protected online speech and unprotected threats, harassment, or insubordination. The difficult task is figuring out where that line is, an issue that will continue to develop, and bears watching, as more employees take to the social-sphere to air workplace grievances.

Wednesday, November 5, 2014

The New Kid says thank you @rhettmiller — #NailedIt


One of the benefits of maintaining this very public forum is having the opportunity to share with you some personal insight into my family. For example, you know that my 6-year-old son deals with some life-long medical issues, and that my 8-year-old daughter plays rock music. Today is one of those days that I get to share some family stuff, this time of the insanely cool variety. So sit back and relax—no employment-law lessons. Today is a straight up rock-and-roll story.

My daughter’s favorite band is the Old 97’s. You can read the whole history here. Sunday night, my wife and I took Norah to see Rhett Miller, the band’s lead singer, perform a solo gig at the Music Box Supper Club. (Side note: if you’re anywhere near Cleveland, do yourself a favor and catch a show at the Music Box. Mike and Colleen built an amazing venue, with great sound, sight lines, and food; they deserve your business). Front row seats for the Hymans.

Norah’s third-grade class is learning how to write personal narratives. Her first story for the school year was all about going to see the Old 97’s in June and meeting Rhett backstage before the show. He was gracious and kind, and clearly made a big impression on a girl of her size.

Norah wanted to give Rhett a copy of her book at Sunday’s show, and asked if I could tweet Rhett to let him know. So I did. I didn’t get any response (nor did I expect one), and tried to temper Norah’s expectations about Rhett remembering her. But it’s hard to temper an 8-year-old.

There we are at the show, our table abutting the front of the stage, Norah no more than three feet from her idol. Did Rhett remember Norah? Of course he did. He spent his first moment talking to the crowd to say a personal hello to her (while making apologies for some of his songs’ more saltier language). And the show went on, Norah in her seat, right in front of Rhett, singing along to all of her Old 97’s favorites.

During the show, Rhett leaned forward and asked Norah if she knows Fireflies. For those who don’t know Rhett’s catalogue, Fireflies is a beautiful (if a tad biting) duet sung with a female. Historically, when Rhett performs this song live he brings someone from the audience up on stage to sing the female part. Needless to say, the song works much better if the person knows it. When Rhett asked Norah if she wanted to sing Fireflies with him, she had to decline, because she didn’t know it nearly well enough to sing it in front of a crowd. Rhett told her to practice, and they would sing together on his next visit to the Music Box.

And the show goes on. After dueting Over the Cliff with opening-act Jon Langford (whom I really enjoyed), Rhett noticed the similarities between that song and the next on his set list, Let’s Get Drunk & Get It On, so much so that he could not get into the song without confusing the two. He needed a “palate cleanser,” as he put it, and asked Norah for a request. She chose The New Kid, the song that started her Old 97’s obsession. Rhett enthusiastically launched into the song.

After finishing the first verse, and watching Norah belt away from her in front of him, Rhett leaned forward and asked if she wanted to come on stage and sing the rest of the song with him.

This is what happened next:

Rhett put it perfectly after Norah finished — #NailedIt! (Stick around to the end of the video to see Norah give Rhett the copy of her book, and thanks to Marie Popichak for capturing and sharing).

The show ends, and Rhett hands Norah the set list (which you Old 97’s/Rhett fans know is a thing and a big deal). And, sure as you know it, there is Fireflies, with “(NORAH?)” inked in right next to it.

Rhett Miller Set List, Cleveland, 11/2/14

Not only did Rhett remember meeting Norah in June, he pre-planned a duet with her!

Rhett, you are one of a kind. From the bottom of our hearts, thank you for caring enough to turn a special night for our little girl into an absolutely unforgettable one. You undeniably rock in all the ways that matter, and represent the hope that one can be both a celebrity and a good person.

We’ll see you next time you’re in town. Norah’s working on Fireflies, just in case.

Tuesday, November 4, 2014

“I honestly bet you’re big down there.” SNL tackles workplace diversity training.


NBC does itself a disservice by running classic episodes of Saturday Night Live each week, because the old episodes merely reinforce that the new episodes are longer appointment viewing. But, this sketch on diversity training (spoofing some very bad VHS videos you hopefully didn't use during the last millennium) from this past week’s episode made me laugh pretty hard. Enjoy.

 

Monday, November 3, 2014

Ohio considers paid leave for quarantined employees


As just-back-from-Sierra-Leone Kaci Kickox continues to fight efforts to bind her to a mandatory 21-day Ebola quarantine, states around the country continue to figure out how to deal with these very new issues.

Ohio (which was Ebola ground-zero only a few weeks ago) has entered the fray with H.B. 647. The bill would:

  • Provide paid leave to any employee unable to work because of a quarantine or placement in medical isolation.
  • Prohibit an employer from requiring the employee to use paid time off in lieu of the statutory paid leave.
  • Prohibit an employer from taking any adverse action against an employee who failed to report to work because of a quarantine or placement in isolation, or who has requested quarantine or isolation pay.
  • Provide for both administrative and judicial remedies for aggrieved employees.

The bill has only just been introduced, and has not yet even been assigned to a committee. If any action is taken on this bill, I will pass it along.

In the meantime, employers need to be flexible with employees who have potentially been exposed to Ebola or other dangerous infectious diseases. If you send the employee home, do it with pay. Otherwise, you are inviting legislative fixes to what should be common-sense issues.

Friday, October 31, 2014

WIRTW #343 (the “trick or treat” edition)


True confession—I do not like Halloween. I never did. As a kid, I tolerated the holiday because it brought a bounty of candy. As I aged out of trick or treating, however, whatever soft feelings I had for the holiday devolved to hardened ire. The only good thing about Halloween is that it makes way for the Godfather I and II of holidays, Thanksgiving and Christmas. 

Here’s some stuff you need to know about Halloween and your workplace.  

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, October 30, 2014

EEOC files historic lawsuit challenging biometric testing by employers


It’s no secret that health insurance costs are out of control. To help combat this surge, many employers have turned to biometric testing for their employees. Biometric testing is part of corporate wellness programs where employees measure certain levels, such as blood pressure and cholesterol, for breaks on insurance premiums under the Affordable Care Act.

If the Affordable Care Act expressly permits this testing, then why is the EEOC claiming that Honeywell’s biometric testing program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act?

On Monday, the EEOC filed a lawsuit seeking a temporary restraining order declaring Honeywell’s biometric testing illegal. According to the EEOC’s lawsuit, ­Honeywell’s program creates up to $4,000 in penalties for employees unless they and their spouses take blood and medical tests that can identify smoking, diabetes, high blood pressure, obesity and other health problems. The Minneapolis Star Tribune quotes an EEOC attorney, who said, “Honeywell’s tests and threatened penalties go too far because they are not job-related and are not consistent with any business necessity…. They can only do that in ­situations where it’s ­voluntary for the employee to answer.”

For its part, Honeywell has called the lawsuit “frivolous”

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace…. The incentives we provide are specifically sanctioned by two separate Federal statutes—HIPAA and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs…. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

Because the EEOC is seeking a TRO, I would expect this case to unfold quickly. I will keep everyone updated as this important story develops. Special thanks to Kate Bischoff for brining this to my attention.

Wednesday, October 29, 2014

Court of appeals decision highlights risk of (mis)classifying employees


I once handled a wage-and-hour investigation in which the employer, before retaining my services, hired an HR consultant to help classify its employees as exempt or non-exempt. The DOL, however, disagreed, and reclassified half of the company’s employees (with corresponding back pay awards for unpaid overtime for those employees moved from exempt to non-exempt).

FLSA exemptions are highly fact specific and highly subjective. One person’s exempt manager is another’s non-exempt clerk. Case in point? Little v. Belle Tire Distributors (6th Cir. 10/23/14) [pdf].

Little concerns a first assistant manager at a tire store. As a “manager,” the employer had the employee classified as exempt under both the executive and administrative exemptions. The employer’s written job description defined the first assistant manager position as requiring proficiency in “Professional Selling Skills,” “inventory control and pricing,” and “knowledge of location payroll control.” The job description further states that the employee have “necessary supervisory skills” and “managerial skills,” and be “fully knowledgeable” of “hiring and termination procedures.”

The court of appeals concluded that the employer’s determination that this employee was exempt was not dispositive, and sent the case back to the district court for trial on the issues of whether the employee qualified as exempt under either the executive or administrative exemption:

Belle Tire seeks to paint Little as influential in hiring and as actively leading employee training and other management tasks. Little, on the other hand, seeks to characterize himself as a salesman who provides clerical-type assistance to his store manager….

Though it is clear Little played some role in interviewing job candidates, preparing work schedules, and conducting training, questions remain concerning the exact nature of the work Little performed and the level of discretion that Little exercised. Such questions are suitable for a factfinder’s determination….

Although Little engages in office and non-manual tasks such as typing up the schedule and preparing purchase orders, Little testified that he spends eighty to ninety percent of his time engaged in sales duties. Time spent on a task is not the sole determinant of a primary duty, but the fact that Little spent the vast majority of his time on tasks he could not do concurrently with administrative tasks creates a genuine dispute as to whether his administrative responsibilities were his “primary duty.” Additionally, Little’s deposition—the most detailed account of his day-to-day activities—suggests that Little’s discretion was highly constrained.

The lesson here is not a happy one. No matter how reasonable or rational you think you are being in classifying employees, a court may second-guess you down the road. In close cases, err on the side of caution and classify as non-exempt. You will end up paying more overtime as you go, but will avoid the windfall (and related legal fees) if a court later re-classifies an employee or group or employees.

Tuesday, October 28, 2014

The times they are a changin’ for LGBT discrimination


Last week, the The U.S. Office of Special Counsel announced a landmark determination that the Department of the Army engaged in “frequent, pervasive and humiliating,” gender-identity discrimination against an Army software specialist who had transitioned from male to female.

According to a press release issued by the OSC, the employee

experienced a significant change in working conditions when the Army improperly restricted her restroom usage, repeatedly referred to her by her birth name and male pronouns, and excessively monitored her conversations with coworkers. In response, the Army agreed to provide training to correct and prevent future discrimination. The Army already had permitted Ms. Lusardi to use the restroom associated with her gender identity.

You can download the full decision here.

Congress has been slow to amend Title VII expressly to prohibit LGBT discrimination. Yet, courts, agencies, the White House and, now, the U.S. military, continue to fill in the gaps.

The time will come when it becomes per se illegal for all employers to discrimination against an employee’s sexual orientation or gender identity. Until that time, we will have to rely on courts’ creative solutions to fit these claims under Title VII’s general prohibitions against sexual stereotyping and sexual discrimination. Nevertheless, employers should not wait for Title VII to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII still permits discrimination against some.

Monday, October 27, 2014

Does social media hold the cure for your malingering, hooky playing employees?


In one of the better earlier episodes of The Office, the Assistant to the Regional Manager, Dwight Schrute, thinks that one of his co-workers is faking an illness to get out of work. So, he stakes out the employee’s house to investigate and uncover the truth.
 
According to a recent Harris Poll (h/t: Cleveland.com), figuring out if your employees are cheating on their sick leave is no longer as complicated as a stake out, and is only as far away as a few clicks of your mouse. According to the poll, nearly a quarter of employers have caught their employees lying on social media about being sick. Of those caught, a quarter were fired, while half were disciplined or reprimanded.
 
 
Three observations—
 
     1. If you think an employee is abusing sick leave or other time off, a little investigation on social media appears to go along way to ferreting out the truth. You no longer need to go the Dwight-Schrute route to determine if an employee is lying to you about the reason he or she isn’t at work. You should be adding social media to your quiver of investigatory tools. Otherwise, you could be missing a key (and easy) piece of the puzzle.

     2. The employment relationship is based on trust. Once that trust disintegrates, the relationship is almost certainly unsalvageable. I’m almost as shocked that only 25% of employers who have caught an employee lying about sick leave fired the offending employee, as I am that that another 25% appear to ignore the indiscretion completely. While I agree that we need better time-off policies in this country, it is still no excuse for lying.

     3. Then again, if an employee is so reckless (or senseless) as to tell an employer one thing, and then post the exact opposite on Facebook or Twitter an hour later, maybe I don’t want that employee working for me anyway. Just saying.

Friday, October 24, 2014

WIRTW #342 (the “family photo” edition)


1-HymanSept2014-WEB

Photo by Jenny Gildea Photography (who I cannot more highly recommend).

Here’s what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

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.