Your company’s personnel files are not your employees’ personal property

One repeat question that I seem to receive is whether employees have a right to see their personnel files. At least in Ohio, the answer is “no”—with three key exceptions:

1. Medical Records. Ohio Revised Code 4113.23(A) provides employees access to their own medical records from physical examinations either that are required for employment or stem from a job-related injury or disease.

2. Wage & Hour Records. Ohio Revised Code 4111.14(G) provides employees (or their designated representative) access to their own wage and hour records, which must include their rate of pay, total gross wages per pay period, and hours worked each day.

3. Public Employees. Ohio Revised Code 149.43 provides employees of the state, or any county, city, village, township, or school district, access to their personnel files as public records.

Mileage may vary in your jurisdiction. According to The HR Café, 20 states require that employers provide employees periodic access to their personnel files. Thus, it is critical that you have a policy establishing rights and expectations in relation to personnel files. Something as simple as, “The Company will provide employees access to personnel files according to state law,” should suffice.

Also, unless a state law provides otherwise, if you permit access to personnel files you should make the following internal decisions about their handling:

• Will you permit access to an entire file, or only certain parts?
• Will you permit employees to photocopy parts of their files?
• Will you permit employees to designate their right to inspect (for example, to a family member, union rep, or lawyer)?
• Will you permit employees to challenge information, and if so, how?
• Will you place limits on access to confidential information (i.e., background checks or workplace investigation reports)?
• Will you limit how often an employee can access a personnel file?

How does state law interpret a “disability” after the ADAAA?

This coming January will mark the five-year anniversary of the ADA Amendments Act. The ADAAA expanded the definition of a “disability” by undoing decades of Supreme Court precedent.

One example is the distinction between a long-term ailment and a short-term or temporary disabling condition. Under the originally drafted ADA, as interpreted by the U.S. Supreme Court in Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002), to be substantially limiting and meet the definition of a “disability” an impairment “must ... be permanent or long term.” With the ADAAA, Congress rejected the Williams construction of “substantially limiting” by requiring an individualized inquiry of an impairments limitations regardless of the duration of the impairment.

One lingering question, however, is whether courts interpreting state disability statutes will fall in line with the ADAAA, or chart their own course under their own separate state laws. Ohio courts, for example, have long held that they look to federal law to interpret Ohio’s employment discrimination statutes, including that which prohibits disability discrimination. Does this rule hold in state-law disability-discrimination claims in the absence of an intent expressed by the Ohio legislature to follow the changes in the ADAAA?

In Welch v. IAC Huron, LLC (N.D. Ohio 9/10/13), we get the beginnings an answer to this important question. Welsh involved an employee with a short-term, yet disabling, shoulder injury. She sued under Ohio’s disability discrimination statute after her employer terminated her during her medical leave. The employer argued that Welch was not disabled because Ohio’s disability discrimination law follows Williams and does not cover short-term medical conditions. The court, however, disagreed, tersely stating:

The Supreme Court of Ohio repeatedly has held courts considering disability discrimination claims under [Ohio law] may look to case law and regulations interpreting the ADA for guidance. The statutory definitions of “disability” under federal and Ohio law are nearly identical, and neither definition includes the temporal limitation Williams endorsed and Congress rejected.... I conclude Ohio courts no longer would apply the Williams temporary/permanent distinction Congress rejected, and that the temporal duration of Welch’s condition would not disqualify that condition as a disability under the meaning of [Ohio’s disability discrimination statute].

In other words, at least according to this court, Ohio courts follow the ADAAA in applying and interpreting Ohio’s disability discrimination statute. While the courts have yet to flush out this issue, employers should not hold out hope that Ohio courts will apply Ohio’s disability-discrimination protections more liberally than the ADAAA.

Instead of focusing on whether an employee is “disabled” under the ADA or its Ohio counterpart, employer should focus on reasonable accommodations and engaging employees in the interactive process. The distinction between who is (or is not) disabled is a legal issue to be worked out in costly and time consuming litigation. Attempting to accommodate a disabled employee is an issue to be worked out in the workplace in collaboration with the employee. I’ll let you decide which is the path of lease resistance.

WIRTW #288 (the “words of wisdom” edition)

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

Discrimination

• Top 5 tips for employers when managing pregnant employees — from Employment Intelligence
• Thou Shalt Not Retaliate Against Thine Employees—Ever!! — from The Emplawyerologist
• Obesity is Now a “Disease,” AMA says; What’s That Mean for HR? — from HR Gazette
• EEOC Commissioner Feldblum provides answers on obesity as a disability — from Eric Meyer’s The Employer Handbook Blog
• 7th Circuit embraces “no jerks” rule after mediation meltdown — from Work Matters
• Can The EEOC Troll For Plaintiffs By Sending A Blast Email To Business Email Addresses? — from Workplace Class Action Litigation
• 6 Ways To Prove You’re A Victim Of Age Discrimination — from Donna Ballman’s from Screw You Guys, I’m Going Home
• Employer not liable for shift leader’s bad acts — from EmployerLINC
• Retaliation is Reality TV — from EntertainHR
• What Happens AFTER a Remand from the Appellate Court? — from Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• Do you follow terminated employees on Twitter? — from The Tim Sackett Project
• Is BYOD Right For Your Workplace? — from Washington Workplace Law
• “Your cellphone: private or not?” — from How Appealing
• More Facebook Issues: This Time, It’s the Stored Communications Act — from Trade Secret / Noncompete Blog
• Employer Failure to Preserve Employee Social-Media Evidence — from Delaware Employment Law Blog
• Can You Say Discrimination? 28% of Recruiters React Negatively to Religious Posts/Tweets — from WinWinHR

HR & Employee Relations

• What to expect when you return to work — from Evil HR Lady, Suzanne Lucas
• Well, That Stinks: Dealing With Smelly Co-workers — from Workplace Diva
• You Say Let’s Talk Severance/Your Employer Hears I Quit (Or, Employees Are From Pluto, Employers Are From Uranus) — from Workplace Fairness

Wage & Hour

• Dear Evil Skippy: My Employee Was Out Shopping When She Was Supposed To Be On Medical Leave — from Evil Skippy at Work
• Does employee use of DOL “timesheet” app mean we can’t ban cellphones? — from Business Management Daily
• “Protected Activity” No Shield for Insubordination — from Lawffice Space
• What Pink Floyd Can Teach Employers about FMLA: Enforce Call-In Procedures and Insist Upon Facts Supporting Need for Leave — from Jeff Nowak’s FMLA Insights

Bathroom breaks do not equal breaks in pay

Yesterday’s post on OSHA’s bathroom rules generated an interesting reader question: can an employer deduct bathroom time from an employee’s pay?

The answer is no. Under the FLSA, “Rest periods of short duration, running from 5 minutes to about 20 minutes … must be counted as hours worked.” The Department of Labor includes “restroom breaks” as an example of these short-duration rest period for which an employer must pay its employees.

Thus, failing to pay your employees for time spent taking care of their personal business will subject you to a claim for unpaid wages.

Moreover, if the employees are exempt, pay deductions will also jeopardize their exempt status. You are required to pay exempt employees a weekly salary. Taking short-time deductions from an employee’s pay treat them like hourly employees, which, in turn, destroys the exemption for that job class.

In addition to these legal reasons to pay your employees for bathroom time, there is also a good practical reason. Treating your employees like tagged wildlife—tracking and recording their every move within the workplace—will create an work environment of distrust and apathy. Instead, you should treat all employees like professionals, and address performance-based issues as they arise. Is an employee failing to produce because he or she is spending too much time in the bathroom (or taking smoking breaks, or hanging around the coffee machine, or looking at Facebook, etc.)? Then address the performance issue. Is there a medical reason for which the employee needs a reasonable accommodation? Is the employee not busy enough and is looking for other way to fill time? Or is the employee a slacker that needs counseling, and if necessary, discipline?

Address the underlying performance issue on an employee-by-employee basis; avoid implementing company-wide edicts that will alienate the majority of your employees.

When you gotta go, you gotta go: The right to workplace bathroom breaks

Do you know that OSHA protects the right of employees to go to the bathroom? OSHA’s sanitation standard states:

Toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment.

The OSHA standard tells you everything you would ever want to know about workplace bathroom facilities, including the minimum required per number of employees. Thankfully, it also forbids employees from “consum[ing] food or beverages in a toilet room.” (just in case your employees like to snack while taking care of business).

It’s not enough that employers provide toilets; they also must provide access for employees to use them. According an April 6, 1998, Director’s memorandum to the OSHA Regional Administrators, this OSHA standard mandates that “employers allow employees prompt access to bathroom facilities,” and that “restrictions on access must be reasonable, and may not cause extended delays.” Another issues to keep in mind when dealing with bathroom breaks is that the ADA might require extended or more frequent breaks as a reasonable accommodation.

What do “reasonable on restrictions on access” look like? Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13) provides an answer. Plastipak terminated Mark Zwiebel, a production-line operator, for leaving his machine three times in one shift, which included once to use the bathroom.

Zwiebel claimed that his termination wrongfully violated the public policy embodied in OSHA’s restroom standard. The court of appeals disagreed:

While there is a clear public policy in favor of allowing employees access to workplace restrooms, it does not support the proposition that employees may leave their tasks or stations at any time without responsibly making sure that production is not jeopardized. In recognition of an employer’s legitimate interest in avoiding disruptions, there is also a clear public policy in favor of allowing reasonable restrictions on employees’ access to the restrooms.

Thus, the employee lost his wrongful discharge claim because his breaks unreasonably interfered with production. Going to the bathroom is one thing—abandoning one’s job is another.

Nevertheless, employers shouldn’t be the potty police. When an employee has to go, an employee has to go. Unless an employee seems to abusing bathroom rights, or, like in Zwiebel, the breaks interfere with performance or production, let employees be.

Lies, untruths, and protected concerted activity

Consider the following two posts, each made by an employee on his respective personal Facebook page, during non-working time.

• Commenting on the Facebook post by another employee posting about her termination for commenting to a patient about the condition of the employer’s vehicles, William Norvell posted the following: “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
• Michael Rice posted the following: “Hey everybody!!!!! Im [f****n] broke down in the same [s***] I was broke in last week because they don’t wantna buy new [s***]!!!! Cha Chinnngggggg chinnng-at Sheetz Convenience Store.”

In Butler Medical Transport (9/4/13) [pdf], an NLRB Administrative Law Judge concluded that Norvell’s post was protected concerted activity, while Rice’s post was not.

Norvell’s Facebook posts … was advising … a fellow employee to obtain an attorney/and or contact the Labor Board. What I find particularly important is that Norvell was responding to a post in which Zalewski stated she had been terminated for commenting to a patient about the condition of Respondent’s vehicles. The condition of Respondent’s vehicles was a matter of mutual concern to Respondent’s employees…. Thus, I find his post to be protected….

Respondent’s Chief Operating Officer … testified without contradiction that he reviewed Respondent’s maintenance records and determined that Rice’s vehicle had not broken down when he made this post…. As a result I conclude on the basis of Respondent’s uncontradicted testimony that the allegations made in his Facebook post were maliciously untrue and made with the knowledge that they were false.

Thus, the employer’s termination of Norvell was illegal, while its termination of Rice was perfectly lawful.

What does this case teach us? That there is a line between protected complaining and unprotected lying. Both employees posted about the condition of their employer’s work vehicles. The ALJ protected Norvell’s post because he was voicing a legitimate concern for a coworker, but failed to protect Rice’s post because he was caught lying about his vehicle breaking down. Thus, despite the belief of some that the NLRB is pushing the bounds of what qualifies as protected concerted activity vis-à-vis social media, one universal truth remains the same—liars do not win cases.

Hat tip to Molly DiBianca at her Delaware Employment Law Blog.

photo credit: Express Monorail via photopin cc

Failing to communicate with disabled employees is an easy way to buy an ADA lawsuit

Two ADA lawsuits filed by the EEOC over the past two weeks illustrate the risk that employers take when they fail to talk to employees about possible accommodations.

• The EEOC brought suit against Kmart, claiming that the retailer refused to consider alternate per-employment drug testing other than urinalysis for an applicant with kidney issues.
• The EEOC also brought suit against an Arkansas car dealer that declined a salesperson the use of a golf cart following spinal surgery. 

In both instances, the EEOC’s press releases make it clear that part of each employer’s violation was the employer’s failure to “engage in any discussions … about the suggested accommodations.”

The ADA does not guarantee an employee his or her preferred accommodation. It only guarantees a reasonable accommodation. The statute does guarantee, however, that employers engage disabled employees in an interactive process to determine the appropriate reasonable accommodation (if any).

If an employer dismisses an individual’s accommodation request outright, it will be difficult, if not impossible, for that employer to show that it engaged in the required interactive process. In that case, even if the employee’s request is absurd, burdensome, or otherwise unreasonable, it is likely that the employer nevertheless violated the ADA.

Communication between an employer and a disabled employee is the key to avoiding problems under the ADA. Do not commit the cardinal ADA sin of having a failure to communicate.