“SAY IT! SAY IT!” Yelling as an essential function

Did you know that the ability to yell at one’s students is an essential function of a teacher? According to Johnson v. Cleveland City School District (6th Cir. 11/15/11), because the ability to “verbally control” resistive students is an essential function of an elementary or middle school teacher, Sha’Ron Johnson was not otherwise qualified for her position with the Cleveland schools and therefore could not succeed on her ADA claims.

After a 1988 car accident damaged Johnson’s spinal cord, she suffered from Cervical Myelopathy, which caused her body to weaken over time, and which could be aggravated by stress or over-exertion. As a result, Johnson’s doctors provided the school district documentation that she “not be required to verbally control resistant behavior in students that persists after initial warning.” The school district, believing that “verbally controlling” students was an essential function of an elementary or middle school teacher or counselor, terminated her employment.

The 6th Circuit agreed: because Johnson was medically unable to “verbally control” students, she was not qualified for any available positions:

As the District explained to Johnson in its letter on July 17, 2007, these restrictions are “problematic.” They seek to exempt Johnson from “the requirement of disciplining students and maintaining order in the classroom,” which is “an essential function of the job.” The District’s letter explained that “[t]he consequences of a failure to maintain such order result in a direct threat to the safety and security of you, the students, and other faculty, staff, and students in the building,” and fail “the responsibility of the District to provide an orderly environment to its students for learning.” …

“Teachers and counselors, whether working with large groups, small groups, or one-on-one, are required to deal with the students in their care, not only when they are quiet and well behaved, but also when they are loud, restless, and possibly belligerent…. Teachers, counselors, and other adults employed at schools need to be physically, mentally, and emotionally capable of managing and controlling students in those circumstances.”

What is the takeaway for employers? Just because the ADA (as amended by the ADAAA) renders virtually every medical condition a protected disability does not render employers defenseless. Essential functions come in all shapes and sizes. When handling an accommodation request from a disabled employee, do not omit consideration of all facets of the job.

WIRTW #202 (the “thankful” edition)

I learned something new yesterday. I learned, from my kindergartener, that the first Thanksgiving feast lasted three days. I am thankful that I am able to learn something new every day—whether from my kids, or from the bloggers and tweeters I follow and whose thoughts I share with you at the end of each week.

The Thanksgiving holiday (and a much needed couple of days off) moves my weekly summary up a couple of days to Wednesday. Even though the week has been short, its been busy. Here’s what I read this week:

Discrimination

• Issue: Doctors, Diapers, and … Discrimination? – from Employment Law Matters
• Pregnancy Discrimination Case Against Chicago Law Firm Allowed to Proceed to a Jury – from Wisconsin Employment & Labor Law Blog
• Is Your Adverse Impact Analysis Arbitrary? – from Stephanie Thomas’s The Proactive Employer Blog
• Federal Express’ Six-Month Limitation on Statutes of Limitations in Employment Disputes Approved – from Fitzpatrick on Employment Law
• A Big Problem: Obesity Discrimination In The Workplace – from Hunton Employment & Labor Law Perspectives™
• Numbers Show That Sexual Harassment Claims on the Decline – from Dan Schwartz’s Connecticut Employment Law Blog
• Can an Evangelical Christian Ask For a Religious Accommodation? (re: Sharing His Faith) – from The HR Capitalist, Kris Dunn
• Public Criticism of Discrimination Claim as Retaliation – from Phil Miles’s Lawffice Space
• The 2011 EEOC Performance and Accountability Report – from Employment & the Law

Social Media & Workplace Technology

• Managing Your Social Media Mullet—Part 1 – from Jessica Miller-Merrell’s Blogging4Jobs
• Social Media Training is Important – and More Companies Need To Do It – from Lindsay Walker at i-Sight Investigation Software Blog
• What To Do When An Employee Violates Your Social Media Policy – from MonsterThinking
• Can you access an ex-employee’s Facebook posts if she sues? – from Eric Meyer’s The Employer Handbook Blog
• Employers Can Discover Employee Facebook Posts, But… – from Social Media Employment Law Blog
• The Worst Way To Lose A Job – from Kashmir Hill’s The Not-So Private Parts
• The Outshiners… – from William Tincup at Fistful of Talent
• Great sex and social media, it’s all about the response – from Mike VanDervort’s The Human Race Horses
• Out on the Town, Always Online – from John Leland at The New York Times
• No 1st Amendment Protection for Teacher’s Facebook Posts – from Delaware Employment Law Blog

HR & Employee Relations

• The Cost of Litigating Competition Cases – from Legal Developments In Non-Competition Agreements
• If you can, give your employees a rest for Thanksgiving – from Robin Shea’s Employment and Labor Insider
• When the CEO refuses to stop dishonesty – from Evil HR Lady, Suzanne Lucas
• Cheating in the Work Place – from Rob Radcliff’s Smooth Transitions
• It’s the holiday season: time to check your solicitation policy – from John Holmquist’s Michigan Employment Law Connection
• 9 Tips For Planning the Company Holiday Party – from Russell Cawyer’s Texas Employment Law Update
• When Employee Misconduct Becomes Criminal - Understanding The Fifth Amendment in Parallel Proceedings – from Michigan Employment Law Advisor by Jason Shinn
• Lessons from Penn State – from Beth Mirza at SHRM  

Wage & Hour

• Paying Employees During Bad Weather Closings – from Mike Haberman’s Omega HR Solutions
• Does An Exempt Employee Who Calls In Sick The Day Before Thanksgiving Get Holiday Pay? – from Wage & Hour Insights
• FLSA Computer Exemption To Get Revised: A Good Thing For Employers – from Wage & Hour - Development & Highlights
• Employer deemed to have interfered with Family Medical Leave Act (FMLA) benefits – from Employment Law Bits

Labor Relations

• NLRB bias is a menace to business – from Rep. Trey Gowdy in The Post and Courier
• NLRB Member Hayes: Board Plans to Ignore its Rules to Push Through “Quickie Elections” – from Seth Borden’s Labor Relations Today
• NLRB Trying to Ram Through Pro-Union Ambush Election Rules – from The ChamberPost
• Breaking: NLRB Member Hayes Details Outrageous Pearce Strong-Arming on Quickie Election Rules – from Labor Relations Institute
• NLRB To Vote On Finalizing Some Election Rules – from Workplace Prof Blog
• NLRB sets vote on portions of proposed election rule – from LawMemo Employment Law Blog
• Whining, Sniveling Employee or Protected Concerted Activity? – from Minnesota Labor & Employment Law Blog 

Sympathy for the Devil (as religious discrimination)

I haven’t always been a lawyer. During a previous life (high school and college), I spent weekends and summers as a bar mitzvah DJ, a nursing home busboy, and a warehouse loading dock guy. At one of those warehouses, I worked with a man by name of Harland Jester. (I provide his name because he named his son “Court,” and this context provides the necessary color for the rest of the story.) Harland was an interesting cat. He believed, for example, that the Freemasons ran the world from a secret office on the 36th floor of Rockefeller Center, and the Lee Iacocca saved Chrysler by making a pact with the devil. This warehouse was full of colorful characters in addition to Harland, many of whom enjoyed a good practical joke. One such joke, played at Harland’s expense, involved a sketch on Harland’s work desk of Mr. Iacocca shaking hands with Satan, with both saying, “Harland, we’re watching you!” Harland did not find the joke nearly as funny as the rest of us, and complained to management. For its part, the company took the path of least resistance, repainting his desk and requiring everyone at attend sensitivity training.

Suzanne Lucas, the Evil HR Lady, shared a story this morning about another employer which could have taken a lesson from my summer job. Billy Hyatt sued Pliant Corp. after it fired him for refusing to wear a sticker with the number 666 (representing the number of consecutive accident-free days) on it. According to the Workplace Prof Blog, Mr. Hyatt’s complaint alleges that he “asked a manager for a religious accommodation on day 666,” and was fired after he refused to work on that day at all.

Sometimes, the path of least resistance makes sense. Is it silly for an employee to refuse to wear “666” on a sticker? Yup. Was the employer within its rights to fire that employee? Maybe. Could the employer have avoided the cost (in legal fees, bad publicity, and a potential settlement or judgment) by simply exempting this employee from the sticker requirement for that one day? Absolutely. Even if this employer was legally in the right in firing this employee—and think about the reasonable accommodation requirements for an employee’s religious beliefs—sometimes it’s just not worth the cost to be right.

A new era dawns—my first post at Fistful of Talent

Today’s post is a little different. It's the first I’ve ever written that is not being debuted on my own blog. Today is my first endeavor as a guest poster on Fistful of Talent. FOT is the preeminent, collaborative human resources blog, featuring a who’s who of HR bloggers. A few weeks ago, it’s proprietor, Kris Dunn [The HR Capitalist / @kris_dunn] reached out to me looking to fill FOT’s employment law void. So, we’re trying each other out.

Today’s post marks what I hope is the beginning of a long relationship between this blog and FOT. Please help get us off on the right foot by clicking over to FOT to read my thoughts on what you can do about employees who cheat your time keeping system.

WIRTW #201 (the “Mickey Mouse” edition)

The news has been pretty somber this week, with the sexual abuse of children dominating the headlines. So, I thought we needed a light-hearted theme for this week’s WIRTW.

On this day in 1928, Walt Disney released the first Mickey Mouse cartoon, Steamboat Willie:

Steamboat Willie’s success launched an empire that has touched every aspect of pop culture in the last 83 years. Thanks Walt.

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

Discrimination

• 5 signs that you’ll lose your sexual harassment case – from Robin Shea’s Employment and Labor Insider
• Bad Christmas Card Idea – from Phil Miles’s Lawffice Space
• Speech criticizing lawsuit = “retaliation” – from Walter Olson’s Overlawyered
• EEOC to consider disparate impact and reasonable factors other than age at meeting – from John Holmquist’s Michigan Employment Law Connection
• Settling a Discrimination or Harassment Lawsuit – from Delaware Employment Law Blog
• When Is a Test a Medical Examination? – from Labor & Employment Law Perspectives

Social Media & Workplace Technology

• 6 things you must know about social media & your workforce – from Eric Meyer’s The Employer Handbook Blog
• Just The Facts About Workplace Social Media – from Blogging4jobs
• HIPAA Dangers Lurk on Facebook; Ongoing Policy Revisions Are Advised – from Health Business Daily
• Recommendations for Preventing and Responding to Workplace Violence – from Jason Shinn’s Michigan Employment Law Advisor
• The Thorny Combination of Old Laws and New Tech – from The Atlantic
• Social Media for Small Biz: Your HR Survival Guide Source – from Evil HR Lady, Suzanne Lucas
• Social Media: Don’t Get Off Track With the Law in Monitoring Employees – from SmartHR

HR & Employee Relations

• Honoring Veterans Day: USERRA and Employment Law Resources – from Dan Schwartz’s Connecticut Employment Law Blog
• Here is The Reason You Want to Be in Compliance! – from Mike Haberman’s Omega HR Solutions
• Penn State Disgrace: If Only… – from Nick Fishman’s employeescreenIQ Blog

Wage & Hour / Benefits

• Calculating FMLA Leave for Holidays, Breaks and Plant Shut Downs – from Jeff Nowak’s FMLA Insights
• Circuits Split as to Whether Public Officials Can be Sued Individually Under the FMLA – from Fitzpatrick on Employment Law
• You’ve been WARN-ed – from HR idiot
• 73% of Wage/Hour Investigations Result in Findings – from HR Daily Advisor
• Supreme Court To Decide Constitutionality of Obamacare from Above the Law

Labor Relations

• Apple Prepares to Crush Apple Store Unions – from Gawker
• NLRB Acting General Counsel Warns Companies about Social Media and Handbook Rules – from EFCA & Labor Law Reform Blog
• Senate Bill 5 Repeal—What is Next? – from Employer Law Report
• NBA Talks Collapse; Union Disbands – from Workplace Prof Blog
• Senator Johnny Isakson (R-GA) Introduces Bill to Reverse NLRB's “Micro-Union” Decision – from Seth Borden’s Labor Relations Today

I’m begging you … have a social media policy

Last week, SHRM released the results of its 3rd survey on Social Media in the Workplace [pdf]. SHRM polled 532 randomly selected HR professionals from its membership. According to the survey, 68% of companies use social media to communicate with external audiences (current customers, potential customers, or potential employees). Yet, only 27% provide their employees using social media any kind of training on its proper use.

This disconnect is disturbing. It’s bad enough that employees are using social media to communicate with each other absent any guidance or training. It’s astounding that nearly three-quarters of companies allow their employees to communicate with the public at-large in this manner.

Without a policy establishing expectations for the proper use of social media internally and externally, this is what you are asking for in your business:

Please, for the love of god, do not allow anyone in your organization to use social media for any purpose without putting a policy in place and training your employees on that policy. Anything less is a recipe for a human resources or public relations disaster.

[Hat tip: Social Media Employment Law Blog]

Who owns social media accounts? (part 2)

Last Monday, I asked the following question: “What happens to an employee’s social media account when the employee leaves a company?” The very next day, a California federal court began to sketch the outline of an answer.

PhoneDog v. Kravitz (N.D. Calif. 11/8/11) [pdf] concerns the ownership of a corporate Twitter account. Noah Kravitz worked for PhoneDog as a product reviewer and video blogger. In that role, PhoneDog provided him use of a Twitter account—@PhoneDog_Noah—to disseminate information and promote PhoneDog’s services on its behalf. When Kravitz resigned his employment, PhoneDog requested that he relinquish use of the Twitter Account. Instead, Kravitz changed the account’s name to @noahkravitz, continuing to use it. PhoneDog filed suit, claiming, among other things, that by refusing to relinquish control of the Twitter account, Kravitz stole its trade secrets and other proprietary and confidential information.

In seeking dismissal of the lawsuit, Kravitz argued that PhoneDog cannot establish any damages because it cannot establish ownership over the Twitter account. According to Kravitz: “To date, the industry precedent has been that absent an agreement prohibiting any employee from doing so, after an employee leaves an employer, they are free to change their Twitter handle.” (emphasis added). The court disagreed, and is permitting the claims alleging misappropriation of trade secrets and conversion of property to proceed to discovery.

Despite the employer’s (at least temporary) victory, why take a risk that an employee can challenge ownership rights to a social media account? If you have employees using corporate-branded or other official social media accounts, require them to sign an agreement as a condition of their employment that says the following:

1. The company, and not the employee, owns the social media account.
2. All social media accounts, including login information and passwords, must be relinquished at the end of employment.

Anything else places these issues in the uncertain hands of a judge or a jury.