Ohio Employer Law Blog

Wednesday, July 9, 2014

Hear me on The CYA Report discussing Hobby Lobby

Today we’re going to try something a little different. Usually, you get to read my thoughts on the employment law issues of the day. Today, you get to hear my voice, waxing philosophical on the Supreme Court’s Hobby Lobby decision.

Last week, Kris Dunn (old friend, and proprietor of, among other things, The HR Capitalist) asked if I’d appear on his podcast, The CYA Report, to discuss the case.

Kris and I discussed: What does Hobby Lobby mean? Are corporations people? And, what employment law areas can we expect its holding to challenge?

Take a listen here.

Tuesday, July 8, 2014

What does the ADA say about employee medical information and social media?

The ADA protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court—in Shoun v. Best Formed Plastics—began sketching an answer.

George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.

All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.

Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information—workers’ compensation claims, FMLA claims, reasonable accommodation requests, and other medical information related to the performance of the job—is off-limits for discussion.

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, training—on this issue could save you from a disability discrimination lawsuit down the road.

Monday, July 7, 2014

EEOC transforms a $1.39 bag of chips into a $180,000 settlement

Nearly three years ago, I reported on a disability-discrimination lawsuit filed by the EEOC against Walgreens. The agency had filed suit of behalf of a diabetic employee who, without permission, took a bag of chips off the shelf to stabilize her blood sugar level during a hypoglycemic attack. Walgreens considered it shoplifting and fired the employee. The EEOC considered the termination a failure to reasonably accommodate the employee’s disability and filed suit.

Last week, Walgreens settled the lawsuit, agreeing to pay the ex-employee $180,000, in addition to agreeing to implement revised policies and training.

Whether you think this is a fair settlement, or that Walgreens overpaid, depends on whether you view the termination an unfair discrimination against an employee trying to stop a medical episode, or a reasonable enforcement of a retailer’s anti-shoplifting policy. In denying the employer’s motion for summary judgment earlier this year, a federal judge strongly hinted it was the former:

Here, the misconduct alleged by Walgreens that formed the basis of her termination was the taking of the chips without paying for them first, an act Hernandez claims was caused by her disability. Walgreens has failed to allege any misconduct that is unrelated to her disability.

In announcing the settlement, the EEOC also recognized the dichotomy between discrimination and theft-prevention:

People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.

As for me, I don’t believe either interest trumps in this case. I firmly believe that employers like retailers (or casinos) must do everything they can to prevent and deter employee theft. These measures include terminations that, under other circumstances, might seem overly harsh. Yet, in this case, the company knew about this long-term employee’s medical history, and refused to let the employee pay for the chips after her recovery. This does not appear to be the case of an employee nefariously grazing on unpaid goods. Instead, it appears to be a case of employee making a snap judgment in response to a medical condition, and trying to make good on it after the fact. Given these facts, this case seems like an odd one for this employer to litigate for three years. It could have cut its losses, settled early, and saved itself three years of legal fees. Yet, I also see the import of the employer’s “zero tolerance” stance.

This case illustrates how difficult reasonable accommodate cases are. When the accommodation is so trivial (a $1.39 bag of chips, for example), employers should strongly consider making the accommodation for an employee’s medical situation regardless of the scenario. It is difficult to justify a claim of hardship based on a economically trivial accommodation. Even when the interest the employer is trying to protect is as strong as deterring theft, the cost of defending that interest may to be too high, especially in light of the uncertainty related to the potential outcome of very fact-specific litigation.

Wednesday, July 2, 2014

Why I Write: Reflections on the Ohio Employer’s Law Blog

Earlier this week, I was tagged in a “blog hop.” “What is a blog hop,” you ask? it is a blog-to-blog chain letter built around a common theme. The theme of this blog hop is writing. My good friend, and author of the Connecticut Employment Law Blog, Dan Schwartz, tagged me in his blog hop. Given that he called me a blogging “rock,” and “great person,” how could I not take up his challenge and continue the chain (especially since Dan and I started our respective blogs within a few months of each all the way back in 2007, and I respect him as much as anyone else in the legal blogosphere).

What am I working on?

The Ohio Employer’s Law Blog (of course). I started my blog in 2007 to fill a niche. There were only a few lawyers blogging in the Cleveland area, and none on labor and employment law. “What a great way to differentiate myself,” I thought. I also love the creative aspect of writing, a love which my blog lets me sate in spades. Let’s face it, no lawyer ever won a prize for the most creative opposition brief. The blog has also let me spread my wings. Workforce.com cross-publishes every post I write on a blog it calls The Practical Employer. I also write a monthly column for Workforce Magazine, and serve on its editorial advisory board. My blog has also allowed me to publish a couple of books (The Employer Bill of Rights and Think Before You Click). In short, the blog has opened up opportunities for me that nothing else could have, and for that I am grateful.

How does my writing differ from others of its genre?

Legal writing is, well, boring and impersonal. I try to break that stereotype. For one, I write about my personal life. I believe that you cannot understand one’s take on an issue unless you under that which influences that person’s life view. So, I’ve written about my wife, my daughter, my son, and even my dog. I’ve also written about vacations (with the kids and without), concerts, and German daughters. Each of these posts provides a glimpse into who I am when I’m not a lawyer, which, in turn, influences who I am as a lawyer. I also try to have fun. I love it when someone emails or tweets their appreciation for a punny title or song reference.

Why do I write what I write?

I write what I write out of love. I know that sounds trite, but I love to write. The Internet is a junk yard of discarded blogs. I am proud that I’ve posted every work day for more than seven years. But, you cannot do that if you write for any reason other than love. I have a passion for labor-and-employment law and a passion for writing. This blog lets me combine the two in a way that I hope is unique and different for my readers.

How does my process work?

The question I am most often asked is some variation of, “Geez, you must spend a lot of time blogging. How do you find the time to blog and practice law?” The reality is that after seven years, it’s not as time intensive as it looks. I consume a ton of information, mostly from Twitter and Feedly. I bookmark those stories or cases that look blog-worthy. I do most of my writing early in the morning or late at night. The speed at which I can post is helped by the fact that I’m not writing law review articles or case briefs. I try to give the quick summary of the issue, and then make a practical point or two for businesses to take away. My audience isn’t necessarily lawyers, so I don’t feel the need to give deep, searing legal analysis. Instead, I try to focus on the practical.

Please check out my blogging friends

Every Friday, I share a list of what I’ve read that week. Weekly, each of the following usually makes an appearance, so the fact that I am tagging them to continue this blog hop shouldn’t surprise them or you:

Molly DiBianca, author of the Delaware Employment Law Blog, who’s been doing the blogging thing almost as long as I have, has a unique voice that is always worth reading.
Eric Meyer, author of the Employer Handbook Blog, like me writes every business day. His posts are worth checking out for no other reason than to see his song of the day, which is always creatively tied in to the day’s employment law topic.
Phil Miles, author of Lawffice Space, who is usually first to post about breaking news such as a hot-off-the-presses Supreme Court decision.

As for me, I’m taking an extended holiday weekend. Enjoy your 4th, and I’ll see everyone back on Monday morning.

Tuesday, July 1, 2014

Will Hobby Lobby give Title VII fits?

Yesterday, the Supreme Court decided Burwell v. Hobby Lobby Stores [pdf], holding that a closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act (which prohibits the federal government from taking any action that substantially burdens the exercise of religion unless it is the least restrictive means possible). Thus, the plaintiff was able to rely on its religious beliefs to opt out of the requirement of the Affordable Care Act (aka Obamacare) to provide healthcare coverage for contraceptives.

The opinion is long, but worth the time to read. I want to focus, however, on Justice Ginsburg’s scathing dissent.

Justice Ginsburg believes that the majority’s opinion is not limited to the ACA’s contraceptive mandate, but instead will enable any company to opt out of any non-tax law on the basis of a religious belief:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

What about Title VII and the other ant-discrimination laws? What if a company has a sincerely held religious belief that it is okay to discriminate based on race? Or, how about a company, that, because of its religious beliefs, segregates its men and women? Would Hobby Lobby permit those employers to opt out of Title VII? Hobby Lobby does not answer these questions. Instead, it leaves them to lower courts to interpret in future cases. We will have to watch and see how these issues play out down the road.

I agree, however, with Justice Ginsburg, that we need to worry about how companies will try to use this opinion to opt out of laws they do not like. I am concerned that this opinion could lead to a slippery slope of companies using religion to pick and choose laws based on their socio-political beliefs, which could undermine our civil-rights laws, and is antithetical to the First Amendment religious freedoms upon which out country was founded.

Monday, June 30, 2014

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.

Friday, June 27, 2014

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: