Accommodating disabled job applicants is no game

When we think of employers’ reasonable accommodation obligations under the ADA, we usually think in terms of accommodating current employees. The ADA, however, equally extends this obligation to job applicants.

A recent lawsuit filed by the EEOC against Toys “R” Us illustrates this issue:

The EEOC charged that Shakirra Thomas, who is deaf, applied for a team member position at the retailer’s Columbia, Md., store in October 2011. Thomas communicates by using American Sign Language, reading lips and through written word. When the company contacted Thomas to attend a group interview, Thomas’s mother advised that Thomas was deaf and requested the company to provide an interpreter for the interview. The retailer refused and said that if Thomas wished to attend a group interview in November 2011, then she would have to provide her own interpreter, the EEOC alleges.

Thomas’s mother interpreted for her during a group interview, but the company refused to hire Thomas despite her qualifications for and ability to perform the team member position, with or without a reasonable accommodation, the EEOC said in its lawsuit.

What is the takeaway for employers? Don’t conflate the need for a job-related accommodation with an interview-related accommodation. If a job applicant need an accommodation to complete the interview process, and it does not impose an undue burden, provide it. If it turns out that someone cannot perform the essential functions of the job even with an accommodation, you are within your rights to deny employment. You cannot make that determination, however, unless you consider them for the job first.

At least we’re not France

I like France. I like French fries, French toast, and French wine (although not necessarily all at the same time). Today, I have another reason to like France. It has provided a fabulous reality check. No matter how bad off we believe labor relations are in this county, at least we don’t have the problems the French do.

From USA Today:

A law working its way through [the French] parliament would grant amnesty to workers who have ransacked their company's offices or threatened their bosses during a labor dispute…. In the next few weeks, the bill will be taken up by parliament's lower house, the National Assembly, where parties on the left have a substantial majority.

The amnesty would apply to people who caused property damage, issued threats or defamed management during a labor or housing dispute over the last six years, and were sentenced to five years in prison or less. Acts that caused physical harm to someone else would not be covered.

I've spilled a lot of digital ink railing against the pro-union agenda of the National Labor Relations Board. I’m not saying I’m going to stop. But, stories like this one at least make me grateful that my clients aren’t French.

See Me, hear me: Upcoming speaking engagements

Every now and then, I like to update everyone where you can see or hear me wax poetically on all things employment law.

Let’s start with tomorrow (March 19), when I’ll make my triumphant return to DriveThruHR, one of the web’s most popular radio shows discussing human resources. You can listen live at  1 pm on Blog Talk Radio or on DriveThruHR.com. You can also follow the conversation on Twitter @drivethruhr and with the hashtag #dthr.

Here’s what else I have planned through the summer:

• On April 11, I’ll be presenting Think Before You Click: Strategies for Managing Social Media in the Workplace for HR.com. It is a free webinar to all registered HR.com members (which itself is free). Registration information is available here.

• On April 23, I’ll in Chicago presenting, Is it Legal? Managing Legal Risks while Working with Legal to Build a Flexible Social Media Policy, at GSMI Social Media Strategies Summit. Information on the conference, including resigstration, is available here.

• On April 25, I’m at the Cleveland Metropolitan Bar Association 13th Annual Northern Ohio Labor & Employment Law Conference. I’ve been tasked with what I consider the Keynote, entitled, Federal and State 2012 Employment Law Update: Is Your Client Ready for This?

• Finally, I’m in NYC on July 31, presenting at the ACI Employment Discrimination Conference as part of a panel entitled, Social Media and Employment Law: Best Practices for Establishing a Social Media Employee Policy and Minimizing Exposure to Employment Litigation Arising from the Use of Social Media.

You can also keep up to date on where I am appearing throughout the year at the Speaking Engagements link at the top of the page. The page also indexes all of my old gigs.

If you are in attendance at any of the live events, please stop by and say hello.

Paying employees for accrued vacation upon termination—Yay or Nay?

One of the questions clients most frequently ask me is whether they have an obligation to pay employees for accrued, unused vacation days at the end of their employment. My default answer always is, “It depends. What does your handbook or vacation policy say?”

Under Ohio law, the default rule is as follows.

• If an employer has no policy under which an employee forfeits unused vacation time or other paid time off at the end of employment, an employer must pay out any unused time.
• If, however, an employer has a clear policy providing that paid vacation time or other paid time off is forfeited on resignation or discharge, then an employer is not obligated to pay out any unused time upon termination.

What does a policy look like that entitles an employer to withhold accrued, unused vacation time or other paid time off as a forfeiture at the end of employment? The employer in Broadstock v. Elmwood at the Springs (Ohio Ct. App. 3/15/13) [pdf] had the following policy:

When a team member leaves Elmwood, all accrued vacation time is paid to the end of the last pay period provided the team member requests the pay; a two (2) week notice is given and fulfilled; an exit conference has been conducted; all items (keys, uniforms, badges) have been returned; and the team member has not been terminated. (Emphasis added.)

According to the court, the employee handbook clearly stated that accrued vacation is forfeited to an employee upon termination. The employee was terminated. Therefore, the court held that the she was not entitled to her accrued vacation time.

To me, however, such as policy is draconian and overbearing. Instead, consider limiting vacation and other paid time off forfeitures to “for cause” terminations. In that case, you won’t benefit employees who lose their jobs because through their own misconduct, but you also won’t be punishing employees who lose their jobs through no fault of their own (i.e., downsizing, restructuring, etc.).

WIRTW #265 (the “Ides of March” edition)

Caesar:
Who is it in the press that calls on me?
I hear a tongue shriller than all the music
Cry “Caesar!” Speak, Caesar is turn’d to hear.

Soothsayer:
Beware the ides of March.

Caesar:
What man is that?

Brutus:
A soothsayer bids you beware the ides of March.

Julius Caesar Act 1, scene 2, 15–19

Today is March 15, the ideas of March. Two years ago, I used this day’s history to provide a lesson to employers of 10 types of problem employees to avoid in your workplaces. It’s worth reviewing.

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

Discrimination

• When Pregnancy Disability Leave Is Not Enough — from Hunton Employment & Labor Law Perspectives™
• Re-Visiting Leave as a Reasonable Accommodation Under the Americans with Disabilities Act — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Dear Evil Skippy: Is A Visit From Ellen’s Underwear Model Workplace Harassment? — from Evil Skippy at Work
• Applications and convictions: A new proposal — from John Holmquist’s Michigan Employment Law Connection
• Background Checks and the EEOC: Navigating the Minefield — from The Emplawyerologist
• “How Not To Handle A Sexual Harassment Charge”—A Case Study Involving The Mayor Of Toronto — from Employment Discrimination Report
• An EEOC complaint is not your free pass to goof off at work — from Eric Meyer’s The Employer Handbook Blog
• 3 Ways to Avoid Employment Discrimination Claims in 2013 — from i-Sight

Social Media & Workplace Technology

• Are You Googling Job Candidates? When You Do, Everyone Loses — from TLNT
• Nuts and Bolts for Terms Commonly Used in Trade Secret Computer Forensic Investigations — from Trading Secrets
• EEOC Sanctioned for Failure to Produce Social-Media Evidence — from Molly DiBianca’s Delaware Employment Law Blog
• When your company wants to hijack your social media accounts — from Ask a Manager
• Productivity and Technology – A Marriage Made in Heaven? Maybe Not from netWORKed Lawyers

HR & Employee Relations

• A Culture of Work or a Culture of Clock? — from Mike Haberman’s Omega HR Solutions
• You Don’t Always Have to Give Two Weeks Notice When Leaving Your Job — from Lifehacker
• More and More Workers Demanding Paid Sick Days — from Workplace Fairness
• Do you allow smoke breaks? — from The Tim Sackett Project

Wage & Hour

• Dog Days (of Winter) are Over: Audits for Worker Misclassification On Increase  — from Dan Schwartz’s Connecticut Employment Law Blog
• The Attack of the Unpaid Interns — from Overtime Advisor
• Are Journalists Exempt From Overtime? — from Donna Ballman’s Screw You Guys, I’m Going Home
• If You Complain To Your Employer About Overtime Pay Violations, Are You Protected From Retaliation? — from Overtime Lawyer Blog
• 5 Things You Need to Know about Hiring Contractors — from Evil HR Lady, Suzanne Lucas
• 20 Years Later, is FMLA Working? — from Stephanie Thomas at Compensation Café

Labor Relations

• NLRB to Seek SCOTUS Review of Noel Canning — from Phil Miles’s Lawffice Space
• NLRB Lightens Grip on At-Will Language in Employer Handbooks — from The National Law Review

Do employees have any privacy rights in personal emails sent from corporate accounts?

Earlier this week, a story broke reporting that Harvard University surreptitiously viewed the work emails of 16 residential deans as part of its investigation into a cheating scandal. Your level of outrage at Harvard’s investigation will depend entirely on the degree to which you believe employees have an expectation of privacy in a corporate email account.

According to U.S. v. Finazzo (E.D.N.Y. 2/19/13), employees enjoy no such expectation of privacy, provided that you have the right language in your email policy.

In Finazzo, the U.S. government alleged that Christopher Finazzo, an executive at the clothing retailer Aéropostale, received illegal kickbacks from transactions between his employer and one of its vendors. During an unrelated internal investigation, Aéropostale discovered an email in Finazzo’s Aéropostale email account between him and his personal attorney. That email contained a list of Finazzo’s personal assets, which included several companies he co-owned with the vendor from whom he received the illegal kickbacks.

In his subsequent federal criminal trial, Finazzo attempted to block the government from using that email against him. The trial court denied his motion, holding that he had no expectation of privacy in his work email account.

In reaching this conclusion, the federal court relied upon Aéropostale’s email policies, which stated:

Except for limited and reasonable personal use (e.g., occasional personal phone calls or e-mails), Company Systems should be used for Company business only. Any limited exceptions to this rule must be approved through the IT department. Under no circumstances may Company Systems be used for personal gain or profit; solicitations for commercial ventures; religious or political issues; or outside organizations. Company Systems may not be used to distribute chain letters or copyrighted or otherwise protected materials….

You should have no expectation of privacy when using Company Systems. The Company may monitor, access, delete or disclose all use of the Company Systems, including e-mail, web sites visited, material downloaded or uploaded and the amount of time spent on-line, at any time without notification or your consent.

The court concluded that Aéropostale’s policy, and Finazzo’s knowledge of it, disposed of any claim  that the email exchange with the personal attorney was private and therefore privileged:

Finazzo has no reasonable expectation of privacy or confidentiality in any communications he made through his Aéropostale e-mail account. Aéropostale had a clear and long-consistent policy of limiting an employee's personal use of its systems, reserving its right to monitor an employee's usage of the system, and making abundantly clear to its employees, including Finazzo, that they had no right to privacy when using them.

Do you have an email or workplace technology policy? Do your employees know that you have such a policy? Does  your policy—

1. Warn employees that they have no expectation of privacy in corporate emails or in their use of corporate systems?
2. Ban personal use of corporate systems or email, or limit such personal use to what is reasonable and occasional?
3. Reserve the right of the company to monitor employee use of its systems, including emails?

Following these simple steps will go a long way to dispelling any idea by your employees that their work email is private, while providing you sufficient coverage lest anyone challenge your ownership of employee corporate emails and or your right to search such emails.

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.