Tuesday, March 8, 2011

Does CBS “regard” Charlie Sheen as disabled under the ADA?


Yesterday, CBS finally pulled the plug on Charlie Sheen. I go back and forth whether he’s legitimately off his rocker, or he’s pulling off a calculated publicity stunt. Either way, CBS had enough and officially terminated him. TMZ published CBS’s 21-page termination letter [pdf].

Sheen’s agreement provides for termination in the event of “Incapacity,” including “mental disabilities, which due to the unique nature of Performer’s Obligations, are not subject to reasonable accommodation and which render Performer unable to perform the essential duties of Performer’s position.” Here’s how CBS’s lawyers discussed the touchy issue of terminating an employee with an apparent mental illness.

The facts establish that there was a serious material change in Mr. Sheen’s attributes that rendered him unwilling or unable to perform his essential duties. As the lead actor in a successful television comedy, Mr. Sheen’s essential duties encompass more than just showing up and delivering lines. One essential duty is working cooperatively and creatively with the other persons critical to the production. Mr. Sheen went from an actor who performed those duties to an individual whose self-destructive conduct resulted in his hospitalization, his inability to work at all for a period and the rapid erosion of the cooperative and creative process necessary to produce the Show. Indeed,

Mr. Sheen’s shocking behavior has continued since production was halted, further confirming such incapacity and/or a serious health condition.

CBS disposed of the contractual argument, but has it opened itself up to a claim under the ADA?

The ADA (as amended by the ADA Amendments Act), not only covers employees with actual disabilities, but also employees that an employer “regards as” disabled. There is no doubt from reading the termination letter that CBS fired Sheen because it “regarded him” as having a mental impairment. The legality of this termination under the ADA will hinge on whether Sheen is a “qualified individual”—that is, can he perform the essential functions of his position with or without reasonable accommodation. CBS clearly believes the answer is “no.”

Given the amount of money at stake, a court or arbitrator will have the final say. I suspect, however, that given Sheen’s public tirades about his boss, coupled with his public displays of incoherence (real or calculated), he is going to have a tough row to hoe in litigation.


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.

Monday, March 7, 2011

Follow these 6 easy steps to avoid harassment and retaliation liability


Do you want to avoid harassment and retaliation liability at your company? Here are six easy steps to follow:

  1. Have a sexual harassment policy, which includes procedures for employees to complain about harassment.
  2. Train all employees on the harassment policy.
  3. Make sure your human resources manager knows the definition of sexual harassment.
  4. Do not let a manager expose his genitals to female employees, and force one to place her hand on his private parts.
  5. Do not require women to participate in a “kissing” or “smooching” club to receive the sales leads and accounts necessary to earn commissions.
  6. Do not fire women who reject managers’ sexual advances and complain about them.

According to the EEOC, a Memphis company failed in each of these steps. The result—a $1.5 million verdict.


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.

Friday, March 4, 2011

WIRTW #167 (the fable-ulous edition)


Earlier this week, the Supreme Court issued what I believe will end up being one the most significant employment decisions of the last decade—Staub v. Proctor Hospital. This case has to ability to gut summary judgment in any discrimination case (except age) in which a supervisor is accused of having a discriminatory animus. (And are there any discrimination cases in which a supervisor does not have some role in the adverse action?) Many of my blogging brethren have chimed in on this case. Here’s a survey of the 10 best I’ve read:

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

Social Media & Workplace Technology

Labor Law

Discrimination

HR & Employee Relations

Wage & Hour


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.

Thursday, March 3, 2011

Are businesses really asking for age on employment applications?


I came across an article yesterday on The Huffington Post which says that many large retailers are requiring job applicants to disclose their ages as part of the application process. Are businesses really asking for age on employment applications?

While there’s nothing per se illegal about asking for age on a job application, why ask for certain information that’s illegal to consider? Simply, you should not ask for age, or for any information that suggests age: date of birth, year of high school or college graduation, or anticipated retirement age. The only age-related questions you should ask on job application is whether the applicant is age 18 or over and eligible to work. Anything more crosses the line, and will help a rejected candidate create an inference of discrimination. Why take that risk?

For more information on illegal questions during the hiring process, see Avoid hidden interviewing traps.

Do you want to know if your job application and other hiring processes are legal? Consider KJK’s proprietary (and free) HR and employment law audit.


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.

Wednesday, March 2, 2011

Listen to your lawyer! (It might save you money)


Pure Energy sought an opinion from its labor and employment counsel whether its practice of paying its employees a day rate for all hours worked violated the Fair Labor Standards Act. Pure Energy, however, ignored the opinion of its attorney of the steps it needed to take for its date rate to pass muster under the FLSA. In Mumby v. Pure Energy Servs. (USA), Inc. (2/22/2011), the 10th Circuit concluded that the employer’s ignoring of its attorney’s advice constituted a willful violation of the FLSA:

Although consultation with an attorney may help prove that an employer lacked willfulness, such a consultation is, by itself, insufficient to require a finding in favor of the employer….

In fact, Pure Energy did not track its field employees' hours to ensure compliance with the FLSA or with the guidance provided… [A]ny overtime Pure Energy did pay was calculated using its erroneous “day rate” without regard for any weekly hours worked in excess of forty.

Pure Energy made no real changes to its compensation policy…. Indeed, without tracking the number of hours worked by each field employee, it was virtually impossible for Pure Energy to determine whether it was complying with [the] advice, let alone the requirements imposed under the FLSA.

Because the company sought, and then ignored, the advice of an attorney, the court concluded its violation was willful. The willful violation subjected the company to the FLSA’s three-year statute of limitations, as opposed to the non-willful two years, costing it an extra year of damages.

The moral of the story: If you hire an attorney, have the good sense to follow the advice you paid for.

[Hat tip: Overtime Law Blog]


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.

Tuesday, March 1, 2011

There’s No Place Like Home


After 19 days, 2 procedures, 2 N/G tubes, 1 PICC line, 3 x-rays, 3 ultrasounds, dozens of needle sticks and blood draws, 1 blood transfusion, 16 IV feedings, more than 50 trips back and forth to the Cleveland Clinic, 38 sleepless nights between me and my wife, and too many doctors, nurses, and other medical professionals to keep track of, we brought our son home yesterday. He is home, happy, and, most importantly, healthy.

Thank you to everyone who took the time to share a thought—here, via Twitter, Facebook, or by email. You might not think it was a big deal, but every message I received meant a lot, and taught me a lesson on compassion and caring that I will never forget and plan on repaying at every opportunity. For starters, I’ll be donating blood to pay back the anonymous donor that made my son’s transfusion possible.

Finally, keep an eye on the blog, my Twitter feed, and my new Facebook page. Once I collect all of our medical bills, I’ll be running a contest to see who comes closest, without going over, to the total, unadjusted cost of a 19-day hospital stay at the Cleveland Clinic. A prize of a yet to be determined nature awaits.

Back to regularly scheduled employment law programming tomorrow, with a post on why you should listen to the advice of your employment attorney.


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.

The “cat’s paw” lives: Supreme Court issues broad victory for employees in Staub v. Proctor Hospital


This morning, the Supreme Court issued its decision in Staub v. Proctor Hospital, which asked whether the “cat’s paw” is a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

Staub is a huge victory for employees. A unanimous opinion written by Justice Scalia whole-heartedly endorsed the “cat’s paw”:

We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

The Court also declined to immunize employers who undertake their own independent investigation of the circumstances leading to the adverse employment action. Instead, the Court only excuses reliance on the biased report of a supervisor if the employer independently determines that the decision was entirely justified apart from the supervisor’s input:

Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

While the Court limited its holding to USERRA, it pointed out that USERRA’s “motivating factor” causation standard is “very similar to Title VII.” It will be difficult for lower court’s to avoid this broad application of the cat’s paw in Title VII (and likely ADA) cases. The only hold-out will be ADEA cases, which, in light of Gross v. FBL Financial Services, Inc., requires “but for” causation.

I have two initial reactions to this opinion:

  1. Staub is a broad, sweeping win for employees, which leaves employers with little protection against the discriminatory animus of those who play no role in the decision making process.
  2. The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Staub v. Proctor Hospital [pdf] is available for download directly from the Supreme Court’s website via this link.

[Hat tip: Workplace Prof Blog]