Take a pregnant pause before firing that pregnant worker

Two pregnancy discrimination settlements recently announced by the EEOC illustrate the added risk employers assume when firing a pregnant worker.

• In the first case, a Chicago-based childcare center paid $31,000 to settle allegations that it had forced a pregnant employee to quit by refusing to allow her to work after her fourth month of pregnancy.

• In the second case, a Detroit-area hotel paid $27,500 to settle allegations that it had fired a housekeeper out of fear of potential harm to the development of her baby.

Last week, I wrote about whether an employer should choose to litigate a case or settle early. One consideration I did not cover, perhaps because it seems like common sense, is that the merits (or lack thereof) of the case can be a driving factor. In discussing the case involving the childcare center, the EEOC’s Chicago regional attorney underscored this important factor: “Really early resolution of this case—before any depositions were taken created a win-win situation for everyone. This employer avoided investing in litigation expenses which would not have yielded a different result and was able refocus on its business in a hurry.” Given the risk presented by these cases and the relatively low value settlement payments, it’s hard to argue with his opinion on the value of early resolutions.

Firing a pregnant employee is a risky proposition. You not only have to worry about Title VII, but also potential liability under the FMLA (if you are large enough to be covered), and the ADA (if the employee suffers from a pregnancy-related medical condition). Unless you want to face a settle-or-litigate Hobson’s choice, you need to think long and hard before firing, or taking any other adverse action against, a pregnant worker.

What do you do if you doubt an employee’s disability?

An employee asks you for time off and other accommodations for anxiety attacks. Do you—

1. Confirm her diagnosis and meet with her to decide the right accommodation to enable her to perform the essential functions of her job; or
2. Counter her claims with skepticism, fail to grant her leave or other accommodations, and fire her?

A Los Angeles waste disposal company chose option number 2. According to Judy Greenwald at businessinsurance.com, that choice cost the company a $21.7 million jury verdict.

I hope that I don’t have to lecture any of my readers about what is wrong about denying accommodations and firing disabled employees.

What rights do you have, however, if you doubt the legitimacy of an employee’s claimed disability? Here are six tips, culled from the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act:

• If an employee’s claimed disability is not obvious, an employer is entitled to receive “reasonable documentation” about the disability and its functional limitations.

• If an employee’s claimed disability is obvious, however, an employer cannot ask for any confirming documentation.

• Reasonable documentation means only that which is needed to establish that an ADA disability that needs a reasonable accommodation. Thus, in most cases an employer cannot request an employee’s complete medical records. If  an employee has more than one disability, an employer can request information pertaining only to those that require reasonable accommodation.

• An employer may require that the documentation about the disability and its functional limitations come from an appropriate health care or rehabilitation professional.

• An employer can ask an employee “to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.”

• Instead of requesting documentation, “an employer may simply discuss with the person the nature of his/her disability and functional limitations.”

Are employers really asking for social media logins and passwords? [survey]

Last month, I discussed the recently introduced Ohio Senate Bill 45, which would prohibit employers “from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.” As I’ve earlier noted, this bill has many problems. One of its biggest problems, though, is whether an issue even exists that this type of legislation needs to address.

Last week, the Senate’s Commerce & Labor Committee heard sponsor’s testimony on the bill. Gary Daniels, the Associate Director of the ACLU of Ohio, was among those who testified in favor of this bill.

Mr. Daniels’s testimony (which you can download in its entirety here), includes his unsubstantiated belief that this legislation is necessary to combat the “disturbing trend … developing across the country whereby prospective and current employers demand access to usernames and passwords….”

You would think that if the practice of employers requiring applicants and employees to disclose login and password information has reached epidemic proportions, I would have heard of or encountered at least one employer engaging in this practice. I haven’t. At his Connecticut Employment Law Blog, Dan Schwartz calls these password privacy bills “an answer in search of a problem.” I think Dan is spot on. Yet, is it possible that we are that far off-base, and the ACLU is correct?

Since my last survey (on the FMLA) worked out so well, I decided to try again. I’d like to gauge public opinion on whether employers are insisting on social media logins and passwords, or if this is an illusory problem trumped up by the news media and special interest groups.

Please take a few minutes to answer a short survey on your opinions about and personal experience with these issues. I’ll keep the survey open through March 22, and publish the results the following week.

You can answer the survey embedded below, or the survey is also available at this link. I thank you in advance for the few moments of your time in responding.

WIRTW #264 (the “never go to work, part 2” edition)

Marissa Meyers and her edict ending telecommuting at Yahoo continues to dominate the headlines. Here are the best articles from around the blogosphere I’ve read on this story this week:

• Why Marissa Mayer’s decision to pull Yahoo employees back to the office was likely the right call — from Boy Genius Report
• Telecommuters, The Boss Still Thinks You’re Mowing the Lawn — from Workplace Diva
• Does Telecommuting Hurt Your Career? — from Evil HR Lady, Suzanne Lucas
• I Love Work from Home — from The Tim Sackett Project
• Year of the Cubicle and the Death of ROWE at Best Buy — from KnowHR Blog
• The Brain at Work and at Home — from Huffington Post
• Don’t worry, the ban on telecommuting won’t become a trend — from Fortune

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

Discrimination

• Law Professor Lambasts Discrimination Laws And The EEOC — from Employment Discrimination Report
• Is Being On Time an Essential Function of Job? Second Circuit Says Most Times But Not Always — from Dan Schwartz’s Connecticut Employment Law Blog
• Random Alcohol Tests Not in Violation of ADA — from ERC Insights Blog
• “Height And Weight” Anti-Discrimination Bill Considered In Utah – Are “Appearance Bias” Laws Far Off? — from Employment Discrimination Report

Social Media & Workplace Technology

• Texas Bill To Allow Service of Process Via Facebook — from Shear on Social Media Law
• Cyberloafing at Work? Maybe It Really Just Shows a Lack of Leadership — from TLNT
• How Lawyers Get Their Hands on “Private” Facebook Posts — from Augmented Legality
• The Social Media Checklist for Companies — What Your Clients Should Do, Know and Learn — from Employment & the Law
• BYOD: Not the Party that BYOB Is — from Mike Haberman’s Omega HR Solutions
• All work and no play? Mobile wipes out 8-hour workday — from USAToday

HR & Employee Relations 

• Keys to ensuring the secrecy of trade secrets — from EmployerLINC
• Saving Lives? We Have a Policy Against That — from Phil Miles’s Lawffice Space
• Ask Your Coworker on a Date Without Getting Fired — from Lifehacker
• Are Workplace Bullies Violating Criminal Stalking Laws? — from Screw You Guys, I’m Going Home

Wage & Hour

• The Interns Are Coming! Is Your Program Complying with Wage and Hour Law? — from BLEG Blog
• Student Externs, Required to Complete Externship in Order to Graduate, Were Not “Employees” — from Overtime Law Blog
• How to pay employees for Daylight Savings Time work — from Eric Meyer’s The Employer Handbook Blog
• 2d Cir: FLSA Does Not Cover Gap Time — from Molly DiBianca’s Delaware Employment Law Blog
• Should Your Employer Pay You For Time Spent Changing Your Clothes? — from Overtime Lawyer Blog
• How Can Congress Improve the FMLA? Let's Count the Ways… — from Jeff Nowak’s FMLA Insights
• It’s time to fix the Family and Medical Leave Act — here are some suggestions. — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Exploited twentysomethings: It’s time for a meetup with the labor movement — from Minding the Workplace
• Chrysler and its employee code of conduct: Next stop—the NLRB? — from John Holmquist’s Michigan Employment Law Connection
• Labor law another victim of partisan politics — from HR Hero Line

Fight or flight? When an employee sues you, should you litigate or settle?

Two weeks ago, the New York Times’s You’re the Boss Blog asked the following question:

How do you handle employee litigation?

Do you dig in your heels and fight, settle, or some combination of the two?

The NYT’s blog post recounted the story of one small business owner who chose to stand his ground and assume the risk of taking an employment case to trial. As a result the employee dropped his settlement demand to a nuisance value, $10,000.

The reality, however, is that there is no easy answer to the question of how your company should respond to a lawsuit by an employee. You must weigh all of the following factors to come to the right decision for your business in each case.

• Is the plaintiff a current or former employee?
• How much can you afford to spend, and will litigation now impede your ability to fund a settlement later?
• Do you have employment practices liability insurance coverage?
• Is there a risk that a settlement will incent other employees to bring claims, or will long, protected litigation deter copycat claims?
• What is your tolerance for the distractions of litigation—responding to discovery, gathering documents, dealing with the hassles of electronic discovery, attending depositions, and attending court dates?
• Do you want to subject your managers, supervisors, and other employees to depositions?
• What is the reputation of the plaintiff’s attorney—is s/he going to make the case more difficult and expensive than necessary?
• What is the likelihood the assigned judge will grant a summary judgment motion and dismiss the case?
• How tight or loose are juries in your jurisdiction?

How you answer these question will dictate whether you litigate or offer a settlement, and, if it’s the latter, when you make that offer. Keep in mind, however, that even if you choose to offer a settlement, no case resolves without two willing parties. If the other side is not willing to meet you at a fair and reasonable value for the claim, then the choice has been made for you, lest you become an easy mark for every disgruntled employee.

This post originally appeared on The Legal Workplace Blog.

Who's the "knucklehead?" Employee loses retaliation claim after slurring co-worker

The original "knucklehead"

Noreen Wilson worked as a pharmacist for The Cleveland Clinic. From August 24 through November 4, 2010, she racked up three corrective actions -- the first for calling a coworker a "knucklehead," the second for sending an improper email to a job applicant, and the third for disconnecting a telephone while a coworker was on a call. After the last corrective action, the hospital transferred Wilson to a different shift. Three days later, she applied for, and was granted, FMLA leave. She then appealed the corrective actions through the Clinic's internal processes. After the hospital rejected her appeal and upheld the correction actions, she resigned to take a job with a different employer. She then sued the Clinic for, among other things, FMLA retaliation relating to the corrective actions.

In Wilson v. CCF (N.D. Ohio 2/6/13), the district court concluded that the corrective actions were not "adverse" to support a claim of retaliation under the FMLA.

The Court finds that the corrective action Plaintiff received for calling a customer/coworker a "knucklehead" is not an adverse employment action.... Plaintiff received a corrective action for calling a coworker a "knucklehead." Plaintiff does not dispute doing so and therefore, cannot rely on this as evidence of constructive discharge when it was based on her own misconduct.

Exercising control to dole out legitimate discipline is not retaliation or discrimination. It's sound management of your people. Provided the punishment fits the crime, and provided the punishment is consistent with your past practices, you can discipline without fear of retribution.

Beware saying too much when engaging in pre-suit settlement negotiations

Most lawsuits between employers and employees do not start out as lawsuits. They start out as conversations between the aggrieved employee's lawyer and the company's counsel. This order of events makes sense for both sides. If the parties can negotiate a deal pre-suit, everyone can save the time, expense, and aggravation of a protracted lawsuit. Additionally, a negotiated deal provides both sides certainty; once a lawsuit is filed, all bets are off and everyone's fate rests in the unpredictable hands of a judge or jury. 

When negotiating, Evidence Rule 408 (which bars the use of offers to compromise) provides everyone some peace of mind that the settlement offers will not end up in front of the jury at trial. This fact is important, because a company does not want a jury learning that an offer of settlement had been made. A jury might perceive such an offer as an admission of liability, or a floor below which its verdict cannot fall.

What happens, however, when, in the course of pre-suit negotiations, counsel makes statements that go beyond an offer of settlement, and discuss the merits of the underlying case? Bourhill v. Sprint Nextel Corp. (D.N.J. 1/23/13) [pdf] is a cautionary tale for employers' counsel responding to pre-suit settlement demands.

After Sprint terminated Bourhill, he retained an attorney to pursue a disability discrimination claim on his behalf. Before filing suit, Bourhill's attorney wrote the following to Sprint, to gauge the hope of a negotiated resolution:

While we have advised Mr. Bourhill that we are prepared to take his claims forward to litigation, he has advised us that he would prefer at this time to resolve this situation informally, by means of a [sic] adequate compensatory settlement. Please contact me, or have your attorney contact me, to discuss whether you desire to resolve this matter amicably, privately, and without resort to litigation. If I do not hear from you by February 22, 2010, we will proceed to take action to enforce Mr. Bourhill's rights.

Sprint's in-house counsel responded with a letter of his own, captioned, "Confidential/For Settlement Purposes Only".

I spoke to your assistant last week regarding your client's allegations that Sprint violated the New Jersey Law Against Discrimination. As I advised her, my investigation does not support your allegations. Mr. Bourhill's employment was terminated when, after being out of work for eight months, he went on long-term disability, a termination which was mandated by the Plan documents. Our records show his long-term disability benefits were approved through May 31, 2010. Even if Mr. Bourhill was able to return to work without restrictions in December 2009, Sprint does not grant employees one-year leaves of absences and, in this case, would have been prohibited from doing so by the Plan documents requiring termination of employment. While Mr. Bourhill remained free to re-apply for available positions at Sprint once he was cleared for work, our records show he failed to do so.

I also further noted that although your letter of February 3 inquires as to Sprint's interest in an amicable resolution, the letter does not request any specific relief. I asked your assistant if your client was attempting perhaps to use this letter as leverage to avoid repaying Sprint the overpayments he received in the amount of $7,564.57. She did not know but indicated you would get back to me. As I have not heard from you to date, I am following up via letter. In short, it is difficult to consider an amicable resolution without knowing the relief sought by your client. If you would like to get back to me with a specific proposal that also addresses the overpayments received by your client, I remain available. Thank you.

In the ensuing litigation, Bourhill's attorney attempted to use Sprint's counsel's letter to defeat Sprint's motion for summary judgment. Sprint objected, arguing that the letter was an inadmissible offer to compromise, barred by Evidence Rule 408. The trial court agreed with Sprint, but only as to the second paragraph of its letter, which discussed the money. The court allowed Bourhill to use the letter's opening paragraph, which discussed the merits of the termination. The court believed that it could divorce the two paragraphs from each other if the first paragraph was not logically connected to the second. Because the first paragraph discussed the merits of the case, and the second monetary compensation, the court redacted the second paragraph under Evidence Rule 408, and considered the redacted letter as part of the record on Sprint's motion for summary judgment.

This case teaches employers' counsel a valuable lesson. We can fall into a trap of Rule 408 myopathy -- that if we caption something "Rule 408 Confidential and Inadmissible Settlement Negotiations", courts will consider it as such and bar its use. As Bourhill makes clear, courts can divorce substantive statements from settlement negotiations, and only bar the latter. 

What is the lesson here? As a management lawyer, keep written settlement communications short and to the point -- the offer itself. If you have to discuss the merits of the case with the employee's lawyer, either do so over the phone or only put in writing what you live with a judge or jury considering.