Announcing KJK’s Next Employment Law Breakfast Briefing: Managing Employee Medical Issues Under the ADA

You are invited join KJK’s employment lawyers for our next Breakfast Briefing: Managing Employee Medical Issues Under the Amended Americans With Disabilities Act.

Perhaps no issue confounds and confuses employers more than employee medical issues. The 2009 amendments to the Americans With Disabilities Act have only served to complicate matters for businesses. Now, the ADA covers most employees with medical issues. As a result, it is incumbent upon employers to stay up to date on their obligations to accommodate this unique class of employees. Join KJK’s employment lawyers for a free breakfast to discuss the following issues and learn how to proactively avoid ADA claims from increasingly litigious workforces:

1. What qualifies as a “disability” under the current ADA?
2. What are employers’ obligations to reasonably accommodate disabled employees?
3. How does the ADA interact with the other key laws that concern employee medical issues: the FMLA and workers’ compensation laws?
4. What does it mean to “regard” an employee as disabled, and why is this subset of the ADA so dangerous?

Date: Tuesday, April 12, 2011

Time: 8:00-8:30 Continental Breakfast / 8:30-9:30 Presentation / 9:30-10:00 Q&As

Place: The Club at Key Center, 127 Public Square, Cleveland

Cost: Free (including parking)

If you are interested in attending this free seminar, or for more information, please contact Andrea Hill, (216) 736-7234 or ach@kjk.com, by April 7, 2011.

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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.

Rash action could lead to false conclusions in dealing with employee problems

The mall was packed Saturday afternoon. The fact that we had a few inches of snow on the ground did not help the parking situation. I drove around for more than 10 minutes looking for a close parking space so the cold walk wouldn’t impact my two-year-old son’s asthma. I finally eyed a great spot, only to have it stolen by a woman who ignored my turn signal while she zoomed up the aisle the wrong way. I’d normally curse loudly from the safety of my car and move on, but on that day I took a stand. I parked behind her car, waited for her to get out, rolled down my window, and confronted her over her lack of parking lot etiquette. Surprisingly, she apologized, asked me to pull forward so she could back out, and surrendered the spot. We exchanged courtesies and went about our ways. When I came out from the mall, I found a note tucked under my wiper blade. It read, “ASSHOLE.” I can only assume that the note was left by someone in the line of traffic behind me who, not having witnessed the entire transaction, assumed that I had stolen their space.

There is a good lesson in this story for employers. Don’t act rashly when dealing with employee complaints or problems. Employers should only take action after a full investigation into all of the facts and circumstances. When an employee complains about something, you only are getting half of the story (at best). If you act based on that half, you are jumping to a conclusion, the correctness of which might as well be a coin flip. You cannot have any confidence in the ultimate conclusion until you conduct a complete and unbiased investigation, which includes interviewing all witnesses, reviewing all documents, and considering all versions of events.

There was an asshole in the parking lot on Saturday, but it wasn’t me. It was the person who left the note without knowing how I ended up taking that spot. Don’t make the same mistake and shortchange your employees by jumping to rash decisions and failing in your duty to fully and completely investigate all employee complaints.

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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.

Unstable employees, direct threats, and the ADA

I opened my email this morning to find the following question from fellow blogger The Evil HR Lady:

As you probably know, I’m an avid reader, even though I’ve never lived in Ohio, although I have been to two weddings there, so that must count for something.

I've been reading about Jared Lee Loughner--the Arizona shooter and came across the e-mails written by a class member who thought Loughner was dangerous here: http://voices.washingtonpost.com/44/2011/01/jared-loughners-behavior-recor.html?hpid=topnews

My question for you, the employment lawyer, is given ADA protections, if I notice an employee becoming increasingly unstable, what can I do about it?

I’d love to read your thoughts on this.

Instead of responding directly, I thought I’d share my thoughts with everyone.

The ADA contains a specific exception for employees who pose a “direct threat.” The statute defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require that the determination that an individual poses a direct threat must be “based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Employers must base this assessment on either “a reasonable medical judgment that relies on the most current medical knowledge” or “on the best available objective evidence.” In making this determination, employers should rely on the following four factors:

1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

Palmer v. Circuit Court of Cook County (7th Cir. 1997) succinctly explains the Hobson’s choice employers face when deciding whether to retain a potentially violent employee. Since I can’t say it any better, I’ll just quote from the opinion:

The [ADA] does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge—in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one….

It is true that an employer has a statutory duty to make a “reasonable accommodation” to an employee’s disability, that is, an adjustment in working conditions to enable the employee to overcome his disability, if the employer can do this without “undue hardship.” … But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

To sum up and answer the question posed, employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

A few additional practical points to consider:

1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior.

2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.

3. Typically, I’m opposed to security escorts of terminated employees. The termination of an employee who poses a direct threat for violence is the exception.

4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.

5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.

Finally, my thought and prayers are with everyone in Tucson as they mourn, fight for their lives, cope with what happened, and start the healing process.

WIRTW #159 (the welcome to the party edition)

While it gets harder each week to keep up with the goings-on in the blogosphere, I’m always happy to welcome another to the table. This week, Philadelphia attorney Eric Meyer launched The Employer Handbook, which he promises will provide “clear and concise summaries of the employment-law landscape in PA, NJ and DE.” Eric, welcome, I look forward to reading and sharing links on future Fridays.

Here’s the rest of what I read this week (and last week):

2011 Predictions & Thoughts

• Learning From History: Employment Litigation Trends in 2010 and Preparing for 2011 – from Stephanie Thomas’s The Proactive Employer

• This Year in Employment Law, 2011 Edition - The Year of ... – from Daniel Schwartz’s Connecticut Employment Law Blog

• 84% of employees plan to look for a new position in 2011 – from Philip Miles’s Lawffice Space

• A 2011 Human Resources Forecast – from Michael Haberman’s Omega HR Solutions

• HR resolutions for the New Year part one, part deux – from Sindy Warren at the Warren & Hays Employment Law Blog

• Top Five Non-Compete and Trade Secret Issues to Watch for in 2011 – from Trade Secrets & Non-Compete Blog

• What's Ahead in Discrimination Litigation for 2011? – from Iowa Employment Law Blog

• Policies, Practices and More: An FMLA “To Do” List for 2011 – from FMLA Insights

• 2011: Implementing the NO IDIOT RULE – from Fistful of Talent

HR & Employee Relations

• Cleveland Cavaliers Give Homeless Man a Second Chance – from employeescreenIQ Blog

• Employment Background Checks: What They’re Really Looking For – from the Evil HR Lady, Suzanne Lucas

• Is Creditworthiness a Protected Characteristic? Yes, says EEOC – from Molly DiBianca’s Delaware Employment Law Blog

• Applicant Filed for Bankruptcy: Can You Refuse to Hire? – from Mindy Chapman’s Case In Point

• 10 Things Your Boss Won’t Tell You – from Smartmoney

• What It Takes to Be a Great Employer – from Harvard Business Review

• Another reason managers and executives should avoid gossip – from Work Matters

• How Executive Candidates Can Deal With a Lie on Their Resume – from The HR Capitalist, Kris Dunn

Social Media & Technology

• Eleventh Circuit Holds That It is a Federal Crime For an Employee To Use His Employer’s Computer For “Non Business Reasons” After Receiving Clear Instruction From Employer Not to Do So – from How Appealing

• Perils of social media and the law : Don't check your common sense at the door – from Real Lawyers Have Blogs

• Facebook most searched term, visited site of 2010 in U.S. – from Boy Genius Report

• Too Much Information: When Social Media Spills Into The Workplace – from TLNT

• Discovery of Social Networking Sites – from Electronic Discovery Law

Discrimination

• Calling a Female Colleague “Sweet Baby” Sounds Like Sexual Harassment at ESPN – from Minnesota Labor & Employment Law Blog

• 7th Circuit Rules Medical Evidence Not Necessary in Disability Discrimination Claim – from Wisconsin Employment & Labor Law Blog

• 7th Circuit: Medical Testimony Not Needed to Establish Substantial Limitation in a Major Life Activity Under the ADA – from HR Lawyer’s Blog

Wage & Hour

• Recording Overtime Over Defendant-Employer’s Objections Not Protected Activity Under 29 U.S.C. § 215 – from Overtime Law Blog

• Fifth Circuit Holds Insurance Adjuster Is Exempt Administrative Employee – from Wage and Hour Law Update

• Fifth Circuit Holds that FLSA Action Is Improper Forum for Employer to Seek Set-Off Against Wage and Overtime Claims – from Texas Employment Law Update

• Nature Of DOL’s “Right To Know” Remains Largely Unknown from Wage and Hour Laws Blog

• Denial of Class Certification By Court Is Based On Need For Individual Assessment: The Key To The Defendant’s Success – from Wage & Hour - Development & Highlights

Trade Secrets & Employee Competition

• Difference In Degree of Competition Between Wedding Photographers Results In Denial of Injunction – from Legal Developments In Non-Competition Agreements

• Employers - Ask potential candidates if they signed a non-compete! – from Rob Radcliff’s Smooth Transitions

• TRO Entered Where Owner Of Trade Secrets Made “Substantial” Efforts To Maintain Confidentiality – from Trading Secrets

• DOJ Pursues Antitrust Claims Against Companies That Agree With Competitors Not to Recruit One Another's Employees – from Trade Secrets and Noncompete Blog

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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.

Federal court takes on the word “n***er” in a reverse race discrimination case

The n-word has been discussed a lot in the media this week, with the announced sanitization of Huckleberry Finn. (Are Roots and To Kill a Mockingbird next? But I digress.) In Burlington v. News Corp. (12/28/10), a Philadelphia federal judge has ordered that a jury must decide whether it is acceptable for a black employee, but not a white employee, to use that word in the workplace. The opinion also contains a lengthy narrative (excerpted below) discussing the larger implications of the differential use of the word between white America and black America.

This case involves the firing of a white television news anchor over his non-pejorative, context-appropriate, use of the n-word during a newsroom meeting. Thomas Burlington, who is white, claims race discrimination because the station did not discipline, let alone fire, three black employees who used the same word in similar meetings in similar contexts. The court agreed that Burlington’s different treatment justifies a jury trial on the issue:

Plaintiff’s use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay’s use of the word elicited only Defendants’ defense of his actions. Plaintiff is white. Jervay is African American. Management’s inability to explain why Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.

The court also took on society’s conventional use of the controversial word:

Justice Holmes observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that “[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry.” … Professor Kennedy, an African American, made the observation that

many people, white and black alike, disapprove of a white person saying “nigger” under virtually any circumstance. “When we call each other ‘nigger’ it means no harm,” [rapper] Ice Cube remarks. “But if a white person uses it, it’s something different, it's a racist word.” Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying “nigger.” He writes that “most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.” …

When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans…. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII.

The n-word is one of the English language’s most volatile words. Few others spark as much debate or as much rancor. We should all be able to agree that it has no place in the workplace. Yet, as this case illustrates, Title VII does not allow for double standards. If you intend to punish its use by white employees, you cannot condone its use by black employees.

I swore I wasn’t going to write about Brett Favre; then he got sued

Earlier this week, two former employees of the New York Jets sued their former employer and Brett Favre for sexual harassment. The message therapists allege that Favre made unwanted sexual advances during his tenure with the Jets in 2008. The lawsuit comes on the heels on the NFL’s fine against Favre for not cooperating with its investigation of similar allegations made by former Jets television host Jenn Sterger. Because others have covered the issues of the dangers of text messaging in harassment prevention and litigation (Philip Miles’s Lawffice Space, for one), I have a different take on this story.

The timing of the lawsuit—on the heals of the NFL’s closure of the Sterger investigation and its $50,000 fine of Favre—is more than suspicious. In their complaint, the plaintiffs try to explain the nearly 2½ year gap between the alleged harassment and the lawsuit:

   30. The plaintiffs have refrained from filing suit in the misguided hope that the NFL would take some meaningful action against defendant Favre for his improper behavior with Ms. Scavo, Ms. Sterger and others.

   31. Unfortunately, instead of taking any meaningful action, the NFL, after an alleged extensive investigation, which according to the media used former FBI agents and other extensive resources, provided no meaningful report, made no findings, waited until the regular football season was basically over and Favre was retiring from football and then reached the inexplicable and rather shocking conclusion that Favre did not violate any league policies regarding conduct in the workplace but rather merely failed to cooperate.

   32. The NFL imposed what is a relatively meaningless fine of $50,000 after probably spending a hundred times that amount on its alleged investigation and public relations attempt to derail any inquiry which would determine what occurred and to institute procedures to prevent the type of behavior Favre was accused of in the future.

   33. Since the NFL took no action, the plaintiffs had no choice but to commence their own legal action to be permitted to work in their chosen profession without being harassed, to recover the damages they had suffered and hopefully, maybe someday, to deter players in the NFL from acting inappropriately with other women who are required to come into contact with football players within the scope of their work and to encourage other women who are harassed by professional athletes in the workplace to come forward without fear of retribution.

I have no idea whether Favre propositioned the plaintiffs for a three-way encounter, just like I have no idea whether the pictures of Favre’s maleness that have surfaced online are genuine. The truth lies somewhere in between the allegations and the text messages. But, it certainly doesn’t help the plaintiffs’ cause that, according to Good Morning America, they refused to cooperate with an earlier NFL investigation concerning “media reports that Favre had made passes at two massage therapists who worked for the New York Jets.” It also doesn’t help their cause that their lawsuit looks like a money grab, piggy backing off the high publicity Jenn Sterger investigation.

I am not arguing that a gap of years between harassment and a lawsuit means that the harassment did not happen. I am, however, questioning the motives of the individuals bringing it to light via a lawsuit 2½ years later. Ultimately it will be up to a jury to determine the extent to which the timing undermines the plaintiffs’ credibility. It would be a shame if that timing ends up clouding the truth.

(Photo by Lisa Yarost, available on Flickr)

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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.

2011: A Rehiring Odyssey

According to CNN, 2011 is going to be the year that American businesses start hiring again:

After three years of economic pain, a growing number of economists think 2011 will finally bring what everyone's been hoping for: More jobs and a self-sustaining recovery.... [E]conomists forecast between 2.5 million and 3 million jobs being added to U.S. payrolls in 2011, about triple the gains likely to be recorded in 2010 and what would be the best one-year jump since the white hot labor market of 1999.

If your business is planning to contribute to these 3 million new jobs, here are some issues for you to think about as you locate and hire the best available candidates to rebuild your workforce:

• Are you going to hire anew from the outside, or rehire former employees?

• Where are you recruiting from and what is your applicant pool?

• When is the last time you read, and revised, your employment application?

• Should you conduct reference or background checks, and how will you do so non-discriminatorily?

• If you are going to check backgrounds, will you use online tools like Facebook and Google?

• Are you asking lawful and non-discriminatory interview questions?

• Will you conduct any applicant testing, such as personality tests, and if so, are they legally timed?

• Do you require medical exams or drug/alcohol tests, and if so, are they legally timed and administered?

• What are the terms and conditions of employment? Offer letters? Non-competition agreements? Confidentiality agreements?

• When is the last time you reviewed and retooled your employee handbook?

There is no magic wand that you can wave to hire the most qualified and productive workforce. How you answer these questions, however, will help ensure that the process you use in restocking your workforce exposes you to the least amount of legal risk.

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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.