WIRTW #300 (the “300th” edition)

Like a Spartan soldier raging into battle against the army of the Persian King Xerxes, I have ripped through 300 of these end-of-week compilations. Here’s the original post (Oct. 12, 2007) that started it all, so you can see how far we’ve traveled.

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

Discrimination

• What Happens in a “He Said/She Said” Case? A Trial — from Dan Schwartz’s Connecticut Employment Law Blog
• Discrimination award $27K, attorneys’ fee award nearly $700K — from Walter Olson’s Overlawyered
• Undue Hardship in the Financial Sense: A Viable Defense? — from Understanding the ADA
• FACT OR FICTION: Employers may discriminate based on family status — from Eric Meyer’s The Employer Handbook
• I Swear It Can Be Harassment: Workplace Profanity — from The Blue Ink
• Court Summarily Dismisses “Familial Status” Claim Under Title VII and the PHRA — from Currents: Hot Topics in Employment Law

Social Media & Workplace Technology

• A Game Changer For Employers: Embracing Mobile As Consumers Have — from TLNT
• Personal devices in the workplace: a recipe for cost savings or disaster? — from Technology for HR

HR & Employee Relations

• Top 9 HR Fails of 2013 — from Evil HR Lady, Suzanne Lucas
• Does LOVE Work as an Employee Relations Method? — from Mike Haberman’s Omega HR Solutions
• When Should An Employer Investigate? — from Workplace Investigations Blog
• Drafting an Employee Sick Leave Policy — from Corporate Counsel
• What rules must we follow if we must lay off work-visa employees? — from Business Management Daily
• Labor and Employment Law in the Vineyards — from Legal Tastings – A Wine Law Blog
• Does your employer own the entire contents of your head? — from Fortune Management & Career Blog
• Protected Status Of Trade Secrets May Be Lost By Not Insisting On Confidentiality — from Trading Secrets

Wage & Hour

• When Do You Have to Pay “Executive” Employees Overtime? — from The Emplawyerologist
• Eleventh Circuit Affirms Employer’s Directed Verdict Based On FLSA Outside Sales Exemption — from Employment Class Action Blog
• Great Expectations: Salesman’s Incompetent Performance Does Not Defeat Exempt Status — from The Wage and Hour Litigation Blog
• A Family and Medical Leave Act for the 21st Century — from DOL’s Work in Progress

SCOTUS

• SCOTUS Ruling on Forum-Selection Clauses Good News for Employers — from Molly DiBianca’s Delaware Employment Law Blog
• SCOTUS DIGs “most significant labor case in a generation” — from from Phil Miles’ Lawffice Space

A Festivus for the rest of us (at work)

Yesterday, Evil Skippy at Work answered a reader’s question about whether an employer can prevent its employees from celebrating Festivus in the workplace.

“What is Festivus,” you ask? “I’ve never heard of it.” Watch this short, five-minute instructional video, and then let’s talk.

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As you can see, Festivus, is not a religious holiday. It’s a parody, celebrated on December 23 as a non-commercialized alternative to the holiday season. According to Wikipedia, it started as a family tradition of Seinfeld writer Dan O’Keefe, who brought it into our collective consciousness by incorporating it into a 1997 episode of the show.

Which brings us back to the original question—can an employer ban Festivus at work? Because it’s a secular holiday, Title VII’s religious accommodation requirements do not apply. Unless, of course, it is an expression of an employee’s atheism, which is a “religion” Title VII protects and for which an employer must make a reasonable accommodation.

So, if the employee requesting a workplace Festivus Pole is doing so as an expression of his or her sincerely held atheism, then you should think long and hard before you deny the request. If, however, there is no religion supporting the request, then no law would prohibit you from banning Festivus at your company. Then again, why would you want to in the first place?

Regardless, if you are lucky enough to work for a company that embraces this holiday, consider it a Festivus Miracle.

Is social media a valid vehicle for harassment complaints?

A nuclear-medicine technician posted the following three items on her Facebook wall:

(At 9:00 am) Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn’t even work ... awesome!!

(At 1:37 pm) Sara DeBord is sooo disappointed ... can’t believe what a snake my boss is ... I know, I know everyone warned me:(

(At 2:53 pm) Oh, it’s hard to explain. . . . basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for our areas ... and he tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus he adds money on peoples checks if he likes them (I’ve been one of them) ... and he needs to keep his creapy hands to himself ... just an all around d-bag!!

Many of her coworkers saw the posts, including the “snake” of a boss with the “creepy hands.” Three different times, she denied authoring the posts when asked by HR. The hospital fired her a week later.

In DeBord v. Mercy Health Services of Kansas (10th Cir. 11/26/13), the court affirmed the dismissal of DeBord’s retaliation claim, concluding that thrice lying about posting information on Facebook, in addition to other violations, justified her termination.

In analyzing the retaliation claim, the court noted that the “Facebook post was not in accordance with Mercy’s otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy.” Nevermind that, according to the court, “Mercy's management first received notice of this behavior … through a publicly available message on Facebook.”

An employer has a legal obligation to take reasonable steps to remedy harassment that it knows about, or should know about. This obligation not only exists when an employee makes a formal complaint under an employer’s “reporting system,” but also when an employer otherwise learns that harassment might be occurring. An employer cannot go into ostrich-mode in the face of workplace harassment.

My fear is that the DeBord court’s statement about the Facebook post not being in compliance with the employer’s “reporting system” could lead to employers thinking that it’s okay to ignore harassment complaints made on an employee’s social media page. Ignoring information about harassment is not okay. An employer does not have an obligation to look for problems on every employee’s Facebook, Twitter, etc. However, once an employer becomes aware of harassment or other unlawful conduct, it cannot pretend it doesn’t exist.

If you’re taking an employee’s deposition, don’t charge them for a day off work

Today’s blog post is a multiple-choice quiz.

An employee takes a day off work to attend his own deposition, which you are taking in defense of the employee’s discrimination lawsuit. Do you:

A. Charge the employee attendance disciplinary points for missing work to attend his deposition;

B. Permit the absence as unexcused with no points accumulated?

If you chose “A,” you might be liable for unlawfully retaliating against that employee, at least according to the court in Younger v. Ingersoll-Rand Co. (S.D. Ohio 12/3/13).

The attendance points at issue were assessed to discipline Younger for missing work to attend a deposition scheduled and noticed by the Defendant. Defendant’s scheduling of Younger’s deposition for a date and time when Younger also was scheduled to be at work at the very least placed Younger in a Catch 22 in which he risked discipline from the Court in the form of sanctions if he chose to skip the deposition to attend work or risked discipline in relation to his employment for missing work to attend the deposition.

Under the Supreme Court’s generous l adverse-action standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, the court concluded that under the unique facts of this case, the assessment of disciplinary attendance points, albeit points that were later removed and resulted in no ultimate penalty, could constitute an adverse action.

Retaliation is a low standard for employees to meet. This case illustrates how carefully employers must treat when dealing with an employee who engaged in protected activity.

Medical marijuana and the Americans with Disabilities Act

Bailey v. Real Time Staffing Servs. (6th Cir. 10/29/13) involves an employee fired for a positive random drug test for marijuana. Unknown to the employer, Bailey was HIV positive and taking prescribed medication which could result in a false positive for marijuana. The court sided with the employer in affirming the dismissal of Bailey’s ADA lawsuit:

Bailey cannot show pretext if Real Time had an honest belief that he used illegal drugs… It is not clear that there was an error in the drug test at all, and Real Time went through a reasoned process by consulting with its medical review officer. Real Time had to decide whether to credit Bailey’s story or to credit the medical review officer’s. Its decision to credit the medical review officer’s does not support an inference of discriminatory animus. Even if the positive result was in fact false, an employer’s reliance on an erroneous result does not create a claim under the ADA absent an independent showing that the real reason for the firing was a disability.

This case raises an interesting question. Medical marijuana is legal in 20 states plus in the District of Columbia. Can an employer fire an employee who tests positive for legally prescribed marijuana? The ADA does not cover employees who are currently under the influence of illegal drugs. If legally prescribed, however, marijuana is not illegal. Thus, its treatment under the ADA is akin to any legally prescribed medication.

Here are four general thoughts on the handling of any legally prescribed medication under the ADA, including marijuana:

1. Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.

2. Drug testing. Drug testing programs can include legally prescribed drugs. And employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.

3. Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.

4. Post-disclosure handling. After an learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

Employers are wary about letting anyone work while under the influence of any drugs, legal or illegal. As explained above, however, the handling of employees taking legal prescription medications is highly fact sensitive and legally nuanced. Your best course of action is to consult with experienced employment counsel before implementing any policies or taking any action against employees that implicate these complex issues.

WIRTW #299 (the “Yuletide confessions” edition)

I have confession to make. I’m a Jew who loves Christmas. I knew it from an early age. We’d leave temple on a December Friday night and swing by a few streets on the way home to check out the lights. I loved going to Feeney’s garden center in Feasterville, PA, to see the decorated trees and Christmas displays. Some of my best childhood memories are riding the bus downtown with my Grandmom Annie to see the Christmas Light Show at Wanamaker’s and the Enchanted Colonial Village at Lit Brothers. And, I couldn’t wait for A Charlie Brown Christmas and Rudolph the Red-Nosed Reindeer to air each year.

Now, I am part of an interfaith family, in which we celebrate both Hanukkah and Christmas. I’m so proud of my seven-year-old daughter, who, earlier this week, visited with her old first-grade teacher to share the story of Hanukkah with this year’s batch of first graders.

Despite my Jewish roots, I jokingly say I am 13 in Christmas years, since this the 13th Christmas my wife and I have spent together. And, For the record, despite my religiously diverse family, and despite Jon Stewart’s opposition of the “War on Christmas,” I am not opposed to people wishing others a “Merry Christmas.”

So, pick your poison: Merry Christmas, Happy (belated) Hanukkah, Happy Kwanzaa, or Happy Holidays. Whichever you choose, have a joy-filled December.

Here’s the rest of what I read the last two weeks:

Discrimination

• “Weight” Of Authority Leads To Denial Of Employer’s Summary Judgment Motion In Hotly Contested EEOC Pregnancy Discrimination Lawsuit — from EEOC Year-End Countdown
• Pregnancy isn't a workplace disability, but how about morning sickness? — from Eric Meyer’s The Employer Handbook Blog
• When employee has difficult pregnancy, don’t get creative with FMLA, ADA — from Business Management Daily
• Employee Who Was Repeatedly Sniffed by Co-Workers and Fired For Swatting a Fly May Bring Retaliation Claim — from The Employment Brief
• Employee Discrimination on a Genetic Level — from Corporate Counsel
• Termination of employee for entering alcohol rehab after a last chance agreement not necessarily a violation of the ADA — from Employment Law Matters
• Appellate Court Upholds Summary Judgment for Employer — from Dan Schwartz’s Connecticut Employment Law Blog
• Take Two? EEOC Moves For Reconsideration After Losing High-Profile Religious Discrimination Case Over Abercrombie’s “Look Policy” — from EEOC Year-End Countdown

Social Media & Workplace Technology

• “Using Social Media to Discriminate”: Please Read the Fine Print — from Currents: Hot Topics in Employment Law
• Email, Twitter and the always-on lifestyle: Today’s double-edged sword — from Boy Genius Report
• Cyber Monday is Here - 54% of Workers to Shop Online at Work this Season — from Phil Miles’ Lawffice Space
• With a Few Clicks of the Mouse You Can Uncover What Job Applicants Leave Off Their Resumes — from Employment Law Lookout
• How BYOD Can Really Help to Change the Way You Hire — from TLNT
• BYOD Policy and Best Practices for When Employees Leave — from i-Sight Investigation Software Blog
• How Corporations are Responding to BYOD  — from Social Media Strategies Summit Blog

HR & Employee Relations

• Children’s Books Helped Shape the American Workplace, Says the DOL — from HR Daily Advisor
• Reining in the costs of the U.S. litigation system — from PointOfLaw Forum
• What Your Employees Steal May Be Used Against You In a Court of Law — from Molly DiBianca’s Delaware Employment Law Blog
• Incivility… The Signs Aren’t Always Obvious — from Fistful of Talent
• Happy Birthday to the FACTA! The Often Forgotten Law that Imposes Obligations and Provides Helpful — from Employer Law Report

Wage & Hour

• Seventh Circuit Finds Insurance Company’s Internal “Answer Man” Proper Classified as Exempt Administrative Employee — from Wage and Hour Law Update
• New York Federal District Court Endorses Use of Fluctuating Workweek Overtime Payment Method Where Employer Pays Performance-Based Bonuses to Non-Exempt Salaried Employees — from Employment Matters Blog
• Pending Legislation Alert: FLSA Notices On Worker Classifications — from Mike Haberman’s Omega HR Solutions
• Are Your Employees Properly Classified Under the FLSA? — from The Emplawyerologist
• ERISA & The Affordable Care Act: A Primer — from The L•E•Jer

Labor Relations

• “Americanized Labor Policy Is Spreading in Europe” — from Overlawyered
• Walmart Should Have Listened To Me About Firing Striking Workers — from Donna Ballman’s Screw You Guys, I’m Going Home
• No Solicitation / No Distribution Policies Must be Applied Evenly — from Matt Austin Labor Law
• Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration — from Wyatt Employment Law Report
• NLRB's GC Determines That Employees Must Expressly Invoke Their Right to Access Employer Property When They are Part of a Larger Group — from Vorys on Labor

When an extended leave of absence is NOT a reasonable accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the EEOC says that hard-capped leave of absence policies violate the ADA. For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s the harm in providing a few extra weeks of unpaid leave?

Attiogbe-Tay v. SE Rolling Hills LLC (D. Minn. 11/7/13) provides hope to employers that under the right circumstances, an employer can refuse to extend an unpaid leave of absence without violating the ADA.

Attiogbe-Tay worked the night shift at a senior living facility (The Colony) as a Licensed Practical Nurse, caring for 160 assisted living patients. Her job description required her kneel, squat, and be able to lift more than 100 pounds. As the only LPN working the night shift, she would have to lift patients if they fell, sometimes with help from other staff members.

Following years of knee pain resulting from degenerative joint disease and arthritis, Attiogbe-Tay elected to have knee replacement surgery, for which her employer granted her 12 weeks of FMLA leave. She returned to work at the end of the 12 weeks with a note from her doctor clearing her to work, but restricting her for six weeks to no kneeling, squatting, or lifting more than 50 pounds. The company’s employee handbook provides: “If medical restrictions exist at the end of the leave, the company will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.” Instead of discussing potential reasonable accommodations with Attiogbe-Tay, her employer fired her.

In her disability discrimination lawsuit, Attiogbe-Tay argued that the company should have reasonably accommodated her by extending her leave for six additional weeks until her restrictions expired. The court, however, disagreed, concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of this case it posed an undue hardship on the employer:

Here, Attiogbe-Tay was the only overnight LPN on duty. To cover Attiogbe-Tay’s shifts during her twelve-week FMLA leave, The Colony paid other nurses on its staff overtime and employed temporary LPNs from a staffing agency…. The Colony also bore considerable expense—$8,000 in additional staffing costs—as a result of Attiogbe-Tay’s twelve-week FMLA leave. Given The Colony’s relatively small staff size, its concerns over the quality of resident care, and the negative effects on its budget and staff, no reasonable jury could decline to find that the extended leave was an undue hardship…. As a result, Attiogbe-Tay was not qualified to perform the essential functions of the LPN position either with or without reasonable accommodations, and summary judgment is warranted.

Given the handbook violation by the employer, I’m surprised it won summary judgment. Nevertheless, this case illustrates that in the right circumstances, an employer can deny granting an extended medical leave without violating the ADA.

If you are planning on denying an unpaid leave as a reasonable accommodation, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation to extend a leave of absence as a reasonable accommodation:

• The cost of the accommodation.
• The employer’s overall size, number, composition, structure, and functions  of employees, and the financial resources.
• The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources, and operations.
• The relationship of the facility in question to the overall operations of the employer.