Reasonable accommodations for an employee’s inability to commute to work

Consider the following story. An employee with a history of eye problems (glaucoma and partial blindness) presents a doctor’s note recommending that she not drive at night. That note presents a scheduling problem, since she works third shift, public transportation is not available, and she has no other way to consistently get to work. Do you have a responsibility to accommodate this employee by transferring her to a day shift so that she can commute? Here’s the answer, at least according to the 3rd Circuit in Colwell v. Rite Aid Corp. (4/8/10) [pdf]:

Rite Aid argues that it had no duty to even consider changing Colwell’s shift because Colwell’s difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not obligate employers to address such difficulties…. Instead, we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates … [and] that under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable…. In sum, we hold that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work.

This decision potentially opens a can of worms for employers. How far do you have to go to accommodate an employee’s disability-related commuting difficulties? Under this case, a shift-change is one possible accommodation. What about arranging for rides by co-workers? Paying for taxis or other transportation? Exceptions to attendance policies and rules? What is reasonable will change from employee to employee and workplace to workplace. What never changes, however, is your responsibility to explore these options through the interactive process required by the ADA.

Employees with medical conditions that impede their ability to do their jobs raise a huge red flag. Before summarily denying a reasonable accommodation, you should be consulting with counsel to make sure that you are not stepping into a lawsuit.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Using criminal histories and conviction records in hiring

A rejected applicant has filed a class action lawsuit against management consulting firm Accenture, claiming that it discriminates against minorities through a policy of rejecting qualified individuals with criminal histories. Judy Greenwald at Business Insurance provides the details:

According to Roberto J. Arroyo vs. Accenture L.L.P., filed … in federal district court in New York, Mr. Arroyo spent two and one-half years in prison in a 10-year-old conviction for vehicular homicide in a car accident in which he had been driving while intoxicated.

Mr. Arroyo worked for Chicago-based Accenture as a contract employee in its Murray Hill, N.J., office from November 2005 to April 2007. In April 2007, the firm offered Mr. Arroyo permanent employment subject only to the results of a background check, but withdrew the job offer and terminated his employment as a contract worker based on his conviction, according to the lawsuit.

This lawsuit illustrates an important issue—that the EEOC targets blanket policies that bar the employment of any applicant because of an arrest or conviction. According to a December 14, 2004, informal EEOC opinion letter:

Although Title VII does not, on its face, prohibit discrimination on the basis of conviction records, the EEOC and courts have concluded that a policy or practice of excluding individuals from employment on the basis of their conviction records may have an adverse impact on certain minority groups in light of statistics showing that they are convicted at a rate disproportionate to their representation in the population.

Just because a company cannot per se disqualify individuals because of criminal histories does not mean that they can never be used a factor. What are the rules for the proper use of arrest and conviction records as employment criteria?

1. If an employer collects arrest or conviction information, it must do so consistently. It is unlawful under Title VII to obtain criminal records in an inconsistent manner—based on the race, color, religion, national origin, or sex of the applicant. For example, it would be facially unlawful for an employer only to require background investigations of applicants who were born in the Middle East or are Muslims.

2. An Employers should assure applicants and employees that honestly providing criminal histories will not result in an automatic disqualification from consideration.

3. If a policy concerning arrest or conviction records disproportionately affects minorities, an employer may nevertheless maintain the policy if it can prove a business need. According to the EEOC, an employer must consider whether a particular applicant should be excluded from a particular job based on:

• The nature and gravity of the offense;
• The time since the conviction and/or completion of the sentence; and
• The nature of the job held or sought.

In other words, employers must undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job.

If you have a question about the use of criminal backgrounds in hiring and other employment decisions, you should contact employment counsel to guide you through this thorny issue.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

This is not a late April Fools’ joke: Employees strike over right to drink beer at work

Oh to have the labor problems in this country that they have elsewhere around the world. For example, take Denmark beer company Carlsberg. More than a thousand brewery workers walked off the job after the company restricted their ability to drink beer during the work day. The New York Times has the details. Until recently warehouse workers were able to drink as much beer as they wanted to during the day – provided they did not get drunk. Under the new policy, however, beer consumption is limited to lunch breaks only. Here’s the best part. Although truck drivers are not covered by the new policy, they joined the strike in sympathy. The truck drivers already have their own limits – 3 beers per work day outside of lunch.

So as you bemoan a liberalized NLRB and Department of Labor, an amended ADA that makes almost anyone with a medical condition “disabled,” mandatory lactation breaks, and a Congress that may look to expand employment protections before the November elections, at least be thankful that you don’t have employees walking off the job over the right to drink beer.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #122

May 4 is primary election day in Ohio. In Cuyahoga County, there are 5 contested Democratic judicial primaries – 2 in common pleas court, and 1 each in the court of appeals, domestic relations court, and juvenile court. Judge4Yourself.com is an online repository of 4 local bar associations’ independent and impartial ratings of the candidates. Do you need a reason why it is important to educate yourself? Of the 21 candidates running in contested elections, the Cleveland Metropolitan Bar Association rates only 6 as “Excellent,” while another third are “Not Recommended.” If you plan to vote in the primary, please click over to Judge4Yourself.com’s ratings. You will appreciate the time spent reading if you or someone you know if ever a litigant in Cuyahoga County.

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

Wage & Hour

• Will “We Can Help” Really Help, or Hurt? from Darcy Dees at Compensation Cafe

• Five Steps to Diminish Wage & Hour Problems from Michael Haberman’s HR Observations

• Federal Court Rules Plaintiffs Seeking Class Certification May Not Rely on Employers’ Job Descriptions and Uniform Exemption Policies to Satisfy Predominance of Issues from Wage & Hour Counsel

Discrimination

• Simple strategies for avoiding employment claims from Jennifer Hays at Warren & Hays Employment Law Blog

• EEOC Warns Employment Credit Reports Could Pose Bias Risk from Nick Fishman at employeescreenIQ Blog

• Desperate Housewife Sues Abusive Boss For Hostile Work Environment from UndercoverLawyer

• Are Tea & Coffee Parties Happening in Your Office? from Brian Molinari at Prima Facie Law Blog

• Is the EEOC Getting Interested in Disparate Impact Claims? from Texas Employment Law Update

• San Francisco Chronicle Op-Ed: Data Espionage A Major Issue Facing U.S. from Trade Secrets Blog

• Downsizing & Data Loss - The Alarming Connection from Hunton Employment & Labor Law Perspectives™

• Credit, Education and EEOC — Tip of the Week from The Word on Employment Law with John Phillips

• Medical intern unable to perform the essential functions of a first-year resident could not support ADA claim from Employment Law Matters

Social Media

• Repository of Model Jury Instructions re: Social Media from Molly DiBianca’s Going Paperless

• You Really Need A Social Media Policy For Your Workplace! from Minnesota Labor & Employment Law Blog

• A caution about recruiting through social media from HR Cafe

• Employers Incur Risk if they Pursue Action Against an Employee for Off-Duty Web Comments from Tom Crane’s San Antonio Employment Law Blog

Litigation

• Finesse the Impasse by Changing the Deal: Advice from a Former Disney GC from Victoria Pynchon’s Settle It Now Negotiation Blog

• How to Keep People Like Me Out of Your Workplace, Part 1 and Part 2 from HR Daily Advisor

Labor Law

• Union Salts vs. Union Moles: IBEW Updates Members on ‘Union Salting Possibilities’ from LaborUnionReport.com

• With a new NLRB, wholesale reversals? from PointOfLaw Forum

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Department of Labor targets enforcement of rules against unpaid internships

More than a year ago, I cautioned employers about the legal risks of unpaid internships. At the time, I wrote that the Department of Labor uses a six-factor test to determine whether an intern is an employee in disguise, who must be paid. All six of the following factors must be met before an employer can legally refuse pay to an intern:

1. Is the training similar to what would be given in a vocational school or academic educational instruction?
   
2. Is the training for the benefit of the trainees or students?
   
3. Do the trainees or students work under their close observation of regular employees without displacing them?
   
4. Does the employer derive no immediate advantage from the activities of the trainees or students, and on occasion are the employer’s operations actually impeded?
   
5. Are the trainees or students not necessarily entitled to a job at the conclusion of the training period?
   
6. Do the employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training?
   

Last week, Steven Greenhouse wrote in the New York Times that state and federal agencies are beginning to use these factors to crack down on for-profit businesses that use the services of unpaid interns:

The Labor Department says it is cracking down on firms that fail to pay interns properly and expanding efforts to educate companies, colleges and students on the law regarding internships. 

“If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law,” said Nancy J. Leppink, the acting director of the department’s wage and hour division.

Employers that use unpaid interns should pay careful attention to this issue. Better to scrutinize your interns under these six factors before the Department of Labor swoops in and does it for you. Even better to formalize the relationship in a written Internship Agreement that formally spells out how each of these six questions are answered in your favor.

I also recommend you have a look at what others have said on this important wage and hour compliance issue: Overlawyered, ABA Journal Daily News, Lawffice Space, The Word on Employment Law with John Phillips, Manpower Employment Blawg, The HR Capitalist, Abovethelaw.com, Warren & Hays Employment Law Blog, Workplace Prof Blog, Minding the Workplace, and The Business of Management.

Illustrating the duty of loyalty

About a month ago I wrote about the an employee’s duty of loyalty to his or her employer. Here’s some of what I said:

Just because an employee is not subject to a noncompetition agreement does not mean that he or she cannot be liable for mistakes made on the way out the door. In fact, each and every employee owes his or employer a duty of loyalty up to the moment he or she ceases employment.

Two recent stories illustrate how this duty of loyalty works in the real world:

• This morning, The Word on Employment Law with John Phillips commented on a New York Times report that MSNBC indefinitely suspended one of its most prominent anchor David Shuster. His transgression – testing a new show for CNN.

• Molly DiBianca at the Delaware Employment Law Blog and Rob Radcliff’s Smooth Transitions both provide their takes on a recently filed non-competition lawsuit in which the chief evidence of the breach comes from the defendants’ LinkedIn accounts.

Even without non-competition agreement, an employee cannot serve two masters at the same time. While in your employ, an employee has an absolute duty to act in your best interest, and not to act in the interest of anyone else that is contrary to yours. For example, an employee cannot solicit customers or employees for a competing venture while still working for you. If you find out that a current employee might be competing, your best course of action:

1. Call your attorney.
2. At a minimum, suspend the employee pending an investigation, which should also include suspension of all computer and network access.
3. Upon confirmation of the competition, convert the suspension to a termination.
4. Consider legal action depending upon the scope of the competition and the harm caused.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? What employers need to know about EEOC investigations

You’ve just received notice from the EEOC (or its state equivalent, the OCRC, for example) that an employee has filed a charge of discrimination against you. What happens next is often confusing to businesses, and mistakes can have serious consequences in later lawsuits.

Let’s start with the basics – what happens when a charge has been filed against you?

1. The EEOC will notify you that a charge of discrimination has been filed against you. The charge packet will include the name and contact information of the investigator assigned to your case.

2. The charge will likely include a offer to submit the case to voluntary mediation. Mediation can be useful for two purposes – to see if you can resolve the charge early and cost-effectively, or to obtain early informal discovery from the charging party.

3. Absent mediation, the case will proceed to an investigation. During the investigation, you will be required to submit a written statement of position. This document is your chance to tell your side of the story. It is the most critical piece of the agency investigation. More on this in a bit.

4. The investigation will may also include a request for information (documents), a request for an on-site visit, or contact information for witness interviews of management and non-management personnel. Do not assume, however, that you have to turn documents over, open up your business, or make people available simply because the agency is asking. The requests still must comply with basic notions of relevancy and discoverability.

5. Once the investigator has completed the investigation, the EEOC will make a determination on the merits. If EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Rights that tells the charging party of the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter, with a copy to the employer.

6. If EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a Letter of Determination stating that there is reason to believe that discrimination occurred and inviting the parties to resolve the charge through an informal conciliation process. If conciliation fails, the EEOC has the authority to file a lawsuit in federal court or issue the same Notice of Right to Sue, releasing the employee to file his or her own lawsuit within 90 days. The process is differently with the OCRC, which ends with a formal administrative hearing and a right to appeal to common pleas court. Also, under Ohio’s civil rights laws the employee always has the right to bypass the agency and proceed directly into court.

There is an inclination within companies to go it alone in EEOC and other agency proceedings, believing that the expense of hiring an attorney is not justified at this early junction. I cannot more strongly caution against this urge.

As I said above, the statement of position is the critical piece of the agency investigation. It not only tells your story, but it locks in your story because it is discoverable by the employee in a later lawsuit. One of the easiest ways to create a jury question on the issue of pretext and lose a summary judgment motion is to give a reason for termination different than that set out in your EEOC position statement.

You should assume that every charge – no matter the merit – will turn into a lawsuit. Employment litigators can interview witnesses, review policies and personnel files, and make decisions as to your best defense. Not involving an attorney as early as your first receipt of the charge of discrimination can cost valuable insight into your best effort to win the case.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.