Transfer preferences to vacant positions as an ADA reasonable accommodation continue to baffle courts

A disabled employee comes to you and asks for a transfer to an open and available position as a reasonable accommodation? Do you grant the request? For the time being, there is no clear answer to this difficult question.

The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. Courts have struggled, however, in deciding whether disabled employees are entitled to a transfer preference over more qualified, non-disabled co-workers. Five years ago, employers thought they were going to receive some clarity on this tricky issue, when the Supreme Court agreed to hear Huber v. Wal-Mart Stores. When Huber settled before the Supremes could have their say, the issue remained in limbo. Last week, in EEOC v. United Airlines [pdf], the 7th Circuit issued the latest pronounced by a federal appellate court on this issue, and its holding is diametrically opposed to Huber.

Huber held that an employer can hire the most qualified person for a position, even if means passing over a less qualified, disabled employee who requested a transfer to the vacant position as a reasonable accommodation. United Airlines, however, concluded that the ADA requires employers to provide a preference to the disabled employee, and pass over a more qualified individual in favor of providing the vacant position as a reasonable accommodation. In other words, this issue is more muddled and unsettled than ever, and remains ripe for clarification from the Supreme Court.

Going forward, employers are left with the following two very different options:

• Hire the most qualified person and deny the open position to a less qualified disabled employee.

– or –

• Automatically award an open position to a qualified disabled employee, if even a better qualified applicant is available and despite an policy to hire the best person for the job.

Employers must act cautiously if faced with this thorny issue. The answer, for now, will vary depending on the federal circuit in which your business operates. My advice from nearly five years ago rings as true today as it did then:

When you don’t hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA.

WIRTW #241 (the “replay” edition)

In case you missed it,and for your listening pleasure—

Here’s yesterday’s appearance on DriveThruHR:

Listen to internet radio with Wempen and Tincup on Blog Talk Radio

And here’s yesterday’s appearance on The Proactive Employer:

Listen to internet radio with TheProactiveEmployer on Blog Talk Radio

P.S. Today is the last day to nominate your favorites legal blogs for the ABA Journal’s Blawg 100. Thanks for your support.

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

Discrimination

• EEOC’s “emerging issues”: LGBT rights, and accommodations for pregnant women — from Robin Shea’s Employment and Labor Insider
• “Family Responsibilities Discrimination” - Is This The Next Worry For Employers? — from Employment Discrimination Report
• Benchslap: Reinstating Sexual Harasser is “Absurd” — from Phil Miles’s Lawffice Space
• Employer Liability in Single-Severe-Incident Harassment Cases — from i-Sight Investigation Software Blog
• Playing the Race Card — from Workplace Prof Blog
• A Look to the Future: Human Augmentation as Reasonable Accommodation — from Mike Haberman’s Omega HR Solutions
• Religious accommodations 101 — from Sindy Warren’s Warren & Associates Blog

Social Media & Workplace Technology

• Plaintiff has to turn over emotional social media content in employment lawsuit — from Internet Cases
• How often do you Google your own name? — from Social Media Today
• What do employers look for when they monitor your Internet usage at work? — from Ask a Manager
• This Is Why You Want Passwords On Your Phone And Computer — from Kashmir Hill’s The Not-So Private Parts
• Why I May Have to Eat My Emoticons — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Case Study: How Hard Should You Push Diversity? — from Harvard Business Review
• Employee Background Checks and the Fair Credit Reporting Act — from Minnesota Employer
• My coworker is making me sick — from Evil HR Lady, Suzanne Lucas
• Great moments in financial employment regulation — from Walter Olson’s Overlawyered
• Man Fired for 49 Year Old Conviction: Who’s to Blame? — from Nick Fishman’s employeescreenIQ Blog
• Ken and Barbie Bias in the Hiring Process… — from The HR Capitalist, Kris Dunn

Wage & Hour

• Back to School for Kids; Back to Work Limits for Employers for Child Labor — from Dan Schwartz’s Connecticut Employment Law Blog
• Vargas v. GNC: Off-the-Clock Class Certified — from Impact Litigation Journal
• Rotten apples and the FMLA: What to do — from HR Cafe

Labor Relations

• Labor Has a Day, So Why Not Corporations? Retired Employment Lawyer Touts Idea in Op-Ed — from ABA Journal Daily News
• Overbroad At-Will Disclaimers and Confidentiality Requests Are Being Challenged in Non-Unionized Workplaces — from Employment & the Law

Unemployment (or prior lawsuits) as a protected class? Not so fast says the 6th Circuit

Last week, in Berrington v. Wal-Mart, the 6th Circuit considered the issue of whether a company could be liable for refusing to hire someone because he filed an unemployment claim. William Berrington claimed that a Kalamazoo, Michigan, Wal-Mart’s refusal to rehire him after he filed a unemployment claim related to a prior termination wrongfully violated the state’s public policy. The 6th Circuit disagreed. It ignored (more or less) the issue of the public policy at issue, and instead focused on the nature of the employment decision at-issue — a refusal to hire.

Berrington’s appeal presents us with the question of whether Michigan law recognizes a public policy cause of action for an employer’s wrongful refusal to rehire because an individual claimed unemployment benefits…. The common denominator in all the recognized public policy exceptions to at-will employment is the existence of an employment relationship. An employee’s right to be hired or rehired by an employer, on the other hand, has never been recognized as actionable, under common law on public policy grounds…. In fact, neither party has been able to provide a single decision from any jurisdiction enforcing a retaliatory failure to rehire claim in state common law or public policy, absent some other statutory basis.

While this case was decided under Michigan law, it has implications beyond that state. As the opinion points out, there exist no cases from any jurisdiction (Ohio included) recognizing a failure to hire claim under state common law or public policy.

While you might not be presented with the issue of refusing to rehire an ex-employee who filed an unemployment claim, you may have other reasons not to hire someone. For example, you might decide that a potential employee is tainted because he or she filed a lawsuit against a previous employer. If the lawsuit raised issues protected by the employment discrimination statutes, for example, those same statutes’ anti-retaliation provisions likely protect the employee from failure to hire on that basis. What if, however, the prior lawsuit involved something other than protected activity in its own right (e.g., a common law tort such as invasion of privacy, defamation, or intentional infliction of emotional distress)? If a prospective employer locates the old lawsuit on the Internet and refuses to hire someone it perceives as a potential problem down the road, Berrington suggests that the employer might be off the hook for any potential liability stemming from the refusal to hire. If state common law does not recognize a failure to hire claim, as Berrington suggests, then lawsuits against prior employers should be acceptable fodder for hiring decisions (the civil rights statutes notwithstanding).

How long is too long for a medical leave of absence?

Last year, I suggested that the ADA has swallowed the FMLA for employee medical leaves:

The recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA…. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

Last week, the 10th Circuit Court of Appeals clarified that while unpaid medical leaves are a possible reasonable accommodation, no employee is entitled to an indefinite leave of absence.

In Robert v. Board of Cty. Comm’rs of Brown Cty. Kan. (8/28/12), the 10th Circuit concluded that an indefinite leave of absence is per se unreasonable. Catherine Robert, who worked as supervisor of released adult offenders, developed sacroiliac joint dysfunction. After a lengthy leave of absence, including 12 weeks under the FMLA, Robert remained unable to perform all of her required duties—including visiting offenders at their homes or in jail, supervising drug and alcohol screenings, and testifying in court. She sued for disability discrimination following her termination.

In upholding the dismissal of her claim under the ADA, the court focused on the indefinite nature of her leave of absence:

Although site visits and other out-of-office work were an essential function of her position, Robert would be nonetheless qualified if she could have performed those duties with a reasonable accommodation…. In light of Robert’s complete inability to perform site visits at the time of her firing, the only potential accommodation would be a temporary reprieve from this essential function. Our precedents recognize that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation…. There are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.”

There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position…. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. For that reason, she was not a qualified individual under the ADA and her claim of discrimination fails.

What does this case mean from a practical standpoint? That an indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA. On the broader issue—how long of a leave is too long to be reasonable—the court punted. While the court passed on this important issue, it did suggest that six months might be too long, although a hard-cap on a duration of a leave as a reasonable accommodation is a moving target.

If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to open a dialogue with the employee about a return date, and prepare to be flexible. While an indefinite leave almost always will be unreasonable, what is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company.

[Hat tip: Eric Meyer’s The Employer Handbook]

Are your policies updated to account for Ohio’s new ban on texting while driving?

The statistics are enough to scare anyone from texting while driving:

• Drivers are 23 times more likely to crash while texting and driving.
• If you only take your eyes off the road for five seconds, at 55 mph, you’ve traveled the length of football field.

As of last week, there is a reason besides safety not to text and drive in Ohio—it’s against the law.

House Bill 99 took effect August 31, and criminalizes texting while driving. It creates two levels of violations—one for adults and one for minors.

• Adult drivers face a $150 fine for texting or reading/sending email. It is a secondary offense, which means that police can only ticket if you are pulled over for another reason.
• Minors are prohibited from using any mobile communication device while operating a motor vehicle. If you are under 18, this means no texting, emailing, talking on the phone, or using a GPS, even while sitting at a traffic light or stuck in traffic. Also, it is a primary offense, carrying mandatory and escalating fines and suspensions.

What does all this mean for employers? If you have employees driving for your business, you should update your policies to account for this new law. Remind employees that texting while driving is not only against the law, but also against company policy. Your insurance carriers, and, believe it or not, your employees and their families, will thank you.

WIRTW #240 (the “see me … hear me” edition)

Every once in a while I like to give you, my readers, an update of where you can catch me live.

Next week, you have two chances to hear me from the comfort of your desk:

• On Thursday, September 6, at 1 pm EDT, I’ll be making my triumphant return to DriveThru HR, the Internet’s most popular daily radio show covering human resources. Listen live at http://www.blogtalkradio.com/drivethruhr, and share your thoughts on twitter using #dthr or @drivethruhr.

• That same afternoon, at 3 pm EDT on September 7, I’ll be making my 7th appearance on The Proactive Employer radio show, hosted by Stephanie Thomas. This appearance, entitled Your Most Challenging and Bizarre HR Questions Answered, will be a little different. Instead of discussing a pre-arranged topic, I, along with Phil Miles, Robin Shea, and Eric Meyer, will be answering questions, live and unrehearsed, from Stephanie’s listeners. It should make for an interesting experience. If you have a weird or bizarre employment law question, or just want to chat, you can:

  • Call on the listener Line: 1-888-553-6673
  • Tweet questions with the hashtag #TPESHOW
  • Login as “guest” to the show’s live chat and ask questions anonymously

If you’d rather see me live and in person, October and November give you four different chances to see me speak on my favorite topic, social media in the workplace.

• On October 1, I’ll be in Uncasville, Connecticut, leading a panel discussion at the 7th Annual National Employment Practices Liability ExecuSummit entitled, Employment Law in the Information Age: Best Practices for Employers 

• On October 16, I’ll be in San Francisco, speaking at the GSMI HR Compliance Conference. I spoke at this same conference last year, and am very excited to make a return appearance. It’s a great conference because it is specifically tailored to to the concerns of strategic level decision-makers, legal staff, and HR pros and leaders. My topic: Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace

• I am also presenting Think Before You Click… at the 7th annual COSE Small Business Convention, on October 25, at the Kalahari Resort & Convention Center in Sandusky, Ohio. COSE’s SBC is the premier small business event in the country. Over two days it offers 48 educational workshops, six national keynote speakers, a business-to-business tradeshow, and hands-on learning labs.

• Finally, I’ll be back on home turf on November 28, leading a panel discussion on workplace social media issues at the 2012 Midwest Social Media Summit.

If you are planning on attending any of these events, please reach out and let me know ahead of time so that we can meet. Or, just stop me and say hello.

Finally, if you are a fan of this blog (or others), you still have a whole week to submit your nomination(s) for the ABA Journal’s Blawg 100. The deadline is September 7, and the process is easy. Thanks for your support.

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

Discrimination

• The mommy track — from The Economist
• An employer’s nightmare: the anonymous harasser — from Robin Shea’s Employment and Labor Insider
• Dear Evil Skippy: Two Men, No Wedding, One Complaint — from Evil Skippy at Work
• Chrysler Liable for “Repulsive Harassment” of Employee — from Maryland Employment Law Developments
• America Runs on … Discrimination? — from The Proactive Employer Blog

Social Media & Workplace Technology

• Spying on Your Employees? Know the Law First — from Dan Schwartz’s Connecticut Employment Law Blog
• Can Law Keep Up with Technology? — from Heather Bussing at HR Examiner
• FINRA Regulatory Notice 12-29: Its Impact on Social Media Use — from Social Media Today

HR & Employee Relations

• Can my employer cut my paid time off — from Evil HR Lady, Suzanne Lucas
• The Trade Secret Litigator’s 7 Deadly Sins of Departing Employees in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Reference Checks: Neutral is the New Negative, and Getting Negative Info is Gold… — from The HR Capitalist, Kris Dunn
• Protecting Our Children: Another Rant About School Employment Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Apple’s Genius training manual shows how company herds and grooms its “iSheep” — from Boy Genius Report

Wage & Hour

• FLSA Questions In Wake Of Hurricane Isaac — from Wage and Hour Laws Blog
• The Importance Of Accurate Time/Hours Records In The Social Media Age — from Social Media Employment Law Blog
• BYOD Workers Are Working An Extra 20 Hours Per Week Unpaid — from Workplace Diva
• Work breaks: a right or a privilege? — from Employment Law Bits
• Can an Online Checklist Really Help Decide Who Is an Exempt Employee? — from TLNT
• FMLA may require you to adjust employee performance standards — from Eric Meyer’s The Employer Handbook Blog
• FMLA “Hours Worked” Includes Prep Time at Home — from Impact Litigation Journal
• Employee’s FMLA Leave Requires an Employer to Adjust Performance Standards — from Jeff Nowak’s FMLA Insights

Labor Relations

• Is the NLRB In Need of a Dictionary? — from Molly DiBianca’s Delaware Employment Law Blog
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Who’s the Boss? New Book Warns About Public-Sector Unions — from LaborPains.org
• Sixth Circuit Upholds NLRB's Pre-Recognition Framework Agreement Ruling — from Workplace Prof Blog

Until next week…

Are you allowed to use social media at work?

This week, Lifehacker has been running a poll asking this question — are you allowed to use social networks at work? The results so far (from nearly 3,100 votes):

• 58.63% = Yes
• 25.8% = No
• 5.89% = Only at specific times
• 9.68% = Only on personal devices

What’s more interesting to me, though, is the comments posted by Lifehacker’s readers. I’ve chosen three to reprint, each of which illustrates an important point about employers’ attempts to regulate social media in the workplace.

1. My employer blocks everything but linkedin, yet they promote internally how they use and we are to use social media to promote and otherwise discuss (in a good manner of course) the company. It’s kind of ridiculous when you get an internal company wide email saying follow us, like us, etc and when you click on it, you get good ole’ websense saying “Denied.” (comment by SpiffyMcDougal)

Companies cannot promulgate a disconnect between their external social media efforts and their internal social media policies. Openness to the public at-large will cause resentment among your employees if you restrict internal access. It sends a mixed (and wrong) message.

2. I can use FB and other sites all I want on my phone because it's not connected to anything in the office. I'm sure it's not allowed but no one really cares. (comment by Dear Zeus)

Bans on the internal use of social media are mostly worthless. Employees are increasingly technologically savvy, and will figure out work-arounds. Why implement a policy that you cannot monitor or control?

3. As the IT Administrator, it was my call whether or not to block social media. I chose not to since I work with a bunch of responsible adults who put their work ahead of their social life. If they need to take a peek a few times a day, no one cares, and it's never become a problem. (comment by Sergio526)

This commenter absolutely hits the nail on the head. The issue of whether to ban or limit access to social media in the workplace is not a black or white issue. It’s an employee-by-employee issue. I am reasonably certain you don’t have a policy telling employees that they are forbidden from reading the newspaper all day long. Yet, if an employee’s productivity or performance is suffering because they can’t pry themselves away from the New York Times, you deal with the problem with that particular employee. The same holds true for Facebook, Twitter, YouTube, or Amazon. It’s only an issue if an employee makes it an issue. Deal with it as a performance problem for that employee, not as a systemic problem that might not exist across your workforce at large.