How many pre-employment medical exams does the ADA permit?

The ADA applies a traffic-light approach to employer-mandated medical exams.

• Red Light (prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that a job related. 
• Yellow Light (after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
• Green Light (after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

McDonald v. Webasto Roof Systems (6th Cir. 6/25/14) [pdf] concerns the interpretation of the green-light, post-offer conditional medical examination. The question the case asks is how many post-offer, pre-employment medical examinations may an employer require of an individual? The answer is as many as reasonably necessary to determine whether the employee can perform the essential functions of the job with or without a reasonable accommodation.

Colin McDonald applied to work as a maintenance employee at Webasto. The job required one to be able to perform certain physical activities. His initial medical examination revealed a history of back problems, but ultimately concluded that he could perform the essential functions of the job. Concerned about the back injuries, Webasto sent him for a second opinion, which ultimately disqualified McDonald from the job.

McDonald claimed that the second examination violated the ADA’s requirement of one post-offer, pre-employment examination. The Court of Appeals disagreed:

The [ADA’s] regulation refers to “[m]edical examinations” in the plural. More saliently, McDonald cites no authority interpreting the ADA to prohibit more than one pre-employment medical examination. EEOC guidance expressly provides that an employer may request “more medical information … if the follow-up examinations or questions are medically related to the previously obtained medical information.” … Webasto required a second medical examination only after the first revealed a history of “[l]umbar bulging discs.”

This case makes a whole lot of sense. The purpose of pre-employment medical exams is to confirm that an employee is capable of performing the essential functions of the job. This employer was concerned because of conflicting information revealed by the first exam. The follow-up exam was the best way to determine if the individual could physically perform the job. 

If one can prove that the second exam was an unjustified fishing expedition, then one might have a claim under the ADA. Where, as was the case here, however, the second exam is medically related to the first exam, the ADA should not cause a problem.

WIRTW #327 (the “Noel Canning” edition)

Yesterday, the Supreme Court decided what might be its most important labor-and-employment decision of the current term—NLRB v. Noel Canning—which held that President Obama lacked the authority to make recess appointments to fill NLRB vacancies. The case likely invalidates more than a year of NLRB decisions.

Here’s what the rest of blawgosphere has to say about this decision:

• Court strikes down recess appointments: In Plain English — from SCOTUSblog
• Supreme Court Invalidates NLRB Recess Appointments; Dozens of Decisions Impacted — from Dan Schwartz’s Connecticut Employment Law Blog
• Supreme Court’s Noel Canning Decision Invalidates Numerous NLRB Decisions — from Stoel Rives World of Employment
• Supreme Court Strikes Down NLRB Recess Appointments: 9-0 — from Jonathan Segal
• Supreme Court Rejects President’s Recess Appointments as Unconstitutional — from Trade Secret / Noncompete Blog
• Justices Find NLRB Recess Appointments Invalid — from WSJ.com Law Blog
• Supreme Court Affirms, but Narrows, D.C. Circuit’s Decision in Noel Canning — from Workplace Prof Blog
• SCOTUS on NLRB Recess Appointments — from Phil Miles’s Lawffice Space
• U.S. Supreme Court: President’s “Recess Appointments” to NLRB Were Invalid — from What’s New in Employment Law?

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

Discrimination

• Should You “Go Solo” Before The EEOC? Is “Don’t Use An Attorney” Good Advice? — from Employment Discrimination Report
• When Does A Workplace Joke Go Too Far? — from Evil Skippy at Work
• Nooses, n-words, and confederate flags, but no discrimination — from Eric Meyer’s The Employer Handbook Blog
• Sixth Circuit finds all anti-retaliation provisions are not created equal, but they are legal landmines. Watch your step. — from Employer Law Report

Social Media & Workplace Technology

• Our society’s view on commuting (and telecommuting) is still painfully warped — from Boy Genius Report
• More Employers Not Hiring Due to What They Find on Social Media — from TLNT
• Facebook Post Means No Unemployment Benefits for Nurse — from Molly DiBianca’s Delaware Employment Law Blog
• Give It a Rest: Constant Connectivity Not Good — from Joe’s HR and Benefits Blog
• How to know when it’s OK to look at your smartphone during dinner — from Boy Genius Report

HR & Employee Relations

• A Note from the U.S. Coach is a Great Idea, But Not a Good Excuse — from Dan Schwartz’s Connecticut Employment Law Blog
• Should There Be Restrictions on Restrictive Covenants? — from The Emplawyerologist
• Considerations for Technology Companies to Attract, Motivate and Retain Key Talent — from Technology Company Counselor
• My Disturbing Experience With Employee Reviews — from You’re the Boss Blog
• What HR Professionals Can Learn From Casey Kasem — from EntertainHR

Wage & Hour

• In the News (again) — Paid Leave — from Workplace Prof Blog
• Push for Parental Leave Grows Due to More Family-friendly Workplaces — from Smart HR Manager
• Court Awards Fees And Costs Against USDOL — from Wage and Hour Laws Blog
• Offset as Defense to FLSA Suit May Mitigate Unpaid Wage Claims — from Wage & Hour Defense Blog
• Heigh-Ho, Heigh-Ho, It’s Off to a Non-Compensable Commute We Go — from Wage & Hour Insights
• Second Circuit Court of Appeals Addresses FLSA’s Public Agency Volunteer Exception, But Withholds Comment on Private Sector Volunteers — from Employment Matters Blog
• Echoing White House Mandate, Senate Dems Release Proposal to Overhaul FLSA Exemptions and Overtime Regulations — from Minnesota Employment Law Report
• DOL Proposes New Definition of “Spouse” for FMLA — from Phil Miles’s Lawffice Space
• Can An Employee Who Receives All of His or Her FMLA Leave Bring an FMLA Interference Claim? — from Minnesota Employer

Labor Relations

• It’s Time for a New Partnership Between Labor and Management — from Harvard Business Review
• NLRB Continues to Throw Up Roadblocks for Internal Investigations — from Pennsylvania Labor and Employment Blog
• NLRB ready to back broad union organizing and collective activity — from Business Management Daily

Supreme Court holds NLRB recess appointments invalid. Chaos ensues?

This morning, in NLRB v. Noel Canning, the U.S. Supreme Court held that President Obama exceeded his authority in making recess appointment to fill vacancies on the NLRB in 2012. 

A copy of the opinion is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdf

If you read the early analysis around the Web, you will see people calling this opinion “narrow” and “limited.” Make no mistake. If you are an employer, this case is huge. It likely means that every case decided by the NLRB during the time of the recess appointments (January 2012 – July 2013) is void. That’s a whole bunch of NLRB decisions out the window, including some of its cutting edge, and controversial, decisions on issues such as social media and protected concerted activity. 

Stay tuned for more analysis of this critical Supreme Court decision. 

The Supreme Court’s opinion on cell phone privacy is a must-read for all employers

It’s a rare day that I write a post of which the vast majority is a 900-word quote from a court opinion. Yesterday’s decision by the U.S. Supreme Court in Riley v. California [pdf], however, is significant enough to cede my space to the words of Chief Justice Roberts:

Cell phones differ in both a quantitative and a qualitative sense from other objects.… The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity.… Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so.…

But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos.… Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand entry phone book, and so on.… We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. 

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. See Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013).… Today … it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.… 

Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.…

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.… 

To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself.… Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.… Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another.

Riley is a 4th Amendment search-and-seizure case. It’s not an employment case. So, why, you ask, is it so important? For the first time, our highest court is recognizing, in great detail, the significant privacy interests we expect in our mobile devices. Does your company have a cell phone or mobile device policy? Does it explain to your employees that they are giving up certain expectations of privacy if they accept your phone or connect their own phones to your network? In light of Riley, if you don’t have this policy containing these disclaimers, you better, because courts are going to become increasingly hostile to claims that individuals do not have privacy expectations in their mobile devices.

There's no such thing as a free lunch, unless you're the NLRB

Let’s say you’re a popular Kansas City barbecue chain that provides employees the benefit of a free meal during each employee’s shift. Let’s say a labor organization, upset at your low wages, organizes a one-day strike in the hopes of “encouraging” you to raise your employees’ rate of pay to $15 an hour. Your employees exercise their rights under the National Labor Relations Act to walk of the job for a day in support of a demand for higher wages, and then exercise their right to return to work the following day. But, when they return to work, the free-lunch benefit they had been receiving is no longer available.

In Gates & Sons Barbeque of Missouri, Inc. (June 17, 2014), and NLRB Administrative Law Judge concluded that the employer’s elimination of the free-lunch benefit violated the NLRA as retaliation against the employees for their one-day wage strike:

Shipley, the store manager with authority to continue or discontinue the meal benefit, told employees that if they participated in the strike they would “feel [his] wrath,” “might has well find another place of employment” and would be terminated.… These statements are more than sufficient to establish that the Respondent bore animosity towards the protected strike activity, but the timing of the action makes the case even stronger. The Respondent first notified employees that the meal benefit was being discontinued immediately upon their return to duties after the strike.

As a remedy, the ALJ ordered the employer to reinstate the free-meal benefit. 

We’ve looked at a lot of protected concerted activity cases in the last few years. Unlike the social media and workplace communication cases, this one is pretty straight forward. You can’t take away a benefit or otherwise retaliate against employees when they strike over wages. But, this case raises a deeper point. By all appearances, this employer did not know this basic principle of labor law. Employers have an obligation to educate themselves about the laws that govern their relationship with their employees. This case was low-hanging fruit for the Board. Don’t leave your fruit hanging. 

The united colors of harassment claims

Let’s take a look at two recent settlements of harassment claims brought by the EEOC:

1. A Tampa, Florida, bank paid $300,000, resulting from a manager’s ongoing harassment of subordinate female employees, which included repeatedly trapping a 20-year-old behind the teller counter with his body, telling a woman she should wear a bathing suit to work, regularly staring at women’s breasts, and frequently caressing and grabbing a female employee.
2. A Charlotte, North Carolina, security-services company paid $155,000, resulting from a two managers’ repeated harassment of subordinate male employees, which included making offensive sexual comments, soliciting nude pictures, asking one to undress in front of him, soliciting sex in exchange for promotions, forcing accompaniment to a gay bar while on duty, touching certain employees’ chest and genitals.

It’s difficult to compare settlements in different cases based on value. They involve different parties, lawyers, judges, and allegations. Yet, it strikes me that if one compares the offensiveness of the misconduct alleged in these two cases, number two seems a whole lot more egregious than number one. Yet, number one paid double. I’ll ignore making the generalization that we, as a society, view same-sex harassment differently than the harassment of women by men, and, instead, conclude that similar cases offer lend to different results, often for arbitrary reasons.

I’ll leave you with the words of Lynette A. Barnes, EEOC regional attorney, who comments that employers need to halt all workplace sexual harassment:

All workers have the right to work in an environment free from sexual harassment. No one should have to put up with sexual comments or touching while they are just trying to make a living. Employers need to halt or prevent it—and the best prevention is training supervisors and managers on how to put a stop to such misconduct as soon as it appears.

I’ll let you decide about which of these two cases she made this observation.

Is it ethical to check jurors’ social media accounts?

Every jury trial starts with what is called voir dire—a question-and-answer session between the lawyers and the pool of potential jurors. As lawyers, we are trying to deselect those jurors whom we feel would be unfairly biased against our case or our client. It is much more an art than a science, and the more information we can gather about potential jurors, the more educated of a decision we can make that a juror is not the right fit for our case. 

Recently, the American Bar Association made this information gathering a little bit easier. In an ethics opinion (h/t: ABC News), the ABA gave lawyers the green light to view jurors’ and potential jurors’ publicly available Internet information, which, for example, could include their Facebook or Twitter musing. 

The Internet is a treasure trove of information about jurors. You could learn their political leanings, religious background, and all about their jobs and families. In short, you could learn the entire backstory of a “connected” juror.

But, do you want to? Just because this information gathering is ethical does not mean it’s strategically wise. By using the Internet as a basis for questions about a potential juror, you will clue the entire pool of jurors in on the fact that you’ve been trolling online for information about them. They might view your ethical conduct as a creepy invasion of their privacy. Voir dire is as much about you learning about the jury as it is about the jury learning about you. In other words, you don’t want to piss off the jury during voir dire. If you lose credibility before the trial even starts, what chance do you have to win the case?

So, lawyers, my take is that Facebook-ing potential jurors presents more of a risk to damaging your credibility with the jury than any benefit you will receive from learning information to help with the inexact science of voir dire. And, if you choose to research jurors online, keep that choice private, and don’t let the jury know you’ve been trolling them. It’s not worth the risk of the jury punishing you for it from the privacy of their deliberations.