Do personality tests pass the ADA-compliance test?

The ABA Journal (hat tip: Overlawyered) is reporting that the EEOC is investigating whether several well-known companies are violating the ADA by using pre-employment personality tests to screen applicants.

I cautioned employers about this issue three years ago. This is what I said.

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Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. 

The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

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What does all this mean? The use of personality tests raises complex legal and business issues, even more so now that this issue is on the EEOC’s radar. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.

“Faithfully” considering performance obligations in employment contracts

Ken Adams, writing at his always insightful blog, Adams on Contract Drafting, comments on the use of terms such as “faithfully” to describe an employee’s performance obligations in an employment agreement. Ken concludes that terms such as faithfully, diligently, competently, industriously, etc., are too wishy-washy to be of any practical use. Instead, he suggests that you “be as specific as possible regarding an employee’s duties”—

For lack of anything more tangible, drafters throw in faithfully and the like. But I don’t think it does any good. In a contract you might well say that the employee is obligated to perform duties specified by the CEO (or, in the case of the CEO, by the board of directors), is obligated to work full-time, and can be fired for specific transgressions. Beyond that, you face the question of whether the employee will do a good job and be successful. Unless you come up with quantifiable targets, imposing on an employee an obligation to be successful wouldn’t work. So drafters make impotent gestures in that direction—that’s where faithfully comes in.

Even though I agree with Ken, terms like “faithfully” do serve a legal significance in employment agreements. They intend to impose a heighted (or fiduciary) duty of performance upon the contracting employee. Unless a contract provides otherwise, an employee might now not owe a fiduciary duty to his or her employer. In many circumstances, employers want to ensure that they impose this obligation on managers and other higher-level employees. Thus, they use terms like “faithfully” to legally bind the employee to a heightened performance obligation.

The, problem, however, is as Ken points out. Performance obligations such as “faithfully” are too vague and subjective to be of any practical use. Sure, a court might use that word to impose a fiduciary duty, but a court could just as easily strike it for vagueness. Instead of using these indefinite terms of art that do not provide the employer or the employee any practical on-the-job guidance, employers should tie the obligations to specific performance standards. Consider the following example:

Employee shall devote all of his/her working time, attention, knowledge, and skills to Employer’s business interests and shall do so in good faith, with his/her best efforts, and to the reasonable satisfaction of the Employer.

Employee agrees to refrain from any interest, of any kind whatsoever, in any business competitive to Employer’s business. The Employee further acknowledges s/he will not engage in any form of activity that produces a “conflict of interest” with those of the Employer unless agreed to in advance and in writing. 

The Employee understands that failure to reach benchmarks or performance terms provided by the Employer may result in reassignment, demotion, or termination. Employee further understands that reaching these benchmarks or performance terms constitutes a reasonable and substantial condition of employment, but does not in any way guarantee or promise continued employment.

As for “faithfully,” I recommend we stick to cheesy soft-rock ballads.

WIRTW #340 (the “punting” edition)

The federal court that recently announced its intent to dismiss the EEOC v. CVS severance agreement case has finally issued its written opinion … and the court did not reach the key issue in the case. Instead, the court dismissed the EEOC’s lawsuit based solely on its failure to conciliate with CVS prior to filing suit. So, it’s back to the drawing board for employers hoping for some concrete guidance on the legality of myriad garden-variety severance agreement provisions, which may come from a similar lawsuit the EEOC is pursuing in Colorado. You can more on the background of this story here and here.

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

Discrimination

• An employer should never ask about disability or religion. Except when it should. —Robin Shea’s Employment & Labor Insider
• You’re More Biased Than You Think — via Fast Company
• Weight Discrimination Is Surprisingly Rare, Study Finds — via Discovery
• Age Discrimination In Finland – Suffered Most By Those … Under 30? — via Employment Discrimination Report
• EEOC and wellness programs: Looking for “just right.” — via Michigan Employment Law Connection
• Remember that a duty to accommodate may exist after childbirth — via Eric Meyer’s The Employer Handbook Blog
• The EEOC’s Litigation Scorecard For FY2014 – What Does It Mean For Employers — via EEOC Year-End Countdown
• Should ADA protections apply to pedophiles? — via ABA Journal Daily News

Social Media & Workplace Technology

• Employees Can Break Data Privacy Rules Too — via Dan Schwartz’s Connecticut Employment Law Blog
• Even If You Don't Use Social Networks, They Still Know Stuff About You — via Lifehacker
• Union access to employer’s e-mail systems: Are times a-changin’? — via Technology for HR
• Workplace Trends: The Office Telemedicine Kiosk — via Workplace Diva

HR & Employee Relations

• Is your workforce knowledgeable about Ebola … and should it be? — via Employment Law Matters
• When “The End” Is Not “The End”: Asserting Trade Secret Claims After The Execution of a Mutual Release — via Trading Secrets
• Breaking Bad: Disciplining employees for off-duty conduct — via EntertainHR
• Further Thoughts on the “CEO Dads”: Schireson and El-Erian — via Fathers, Work and Family
• Breast Cancer Awareness Month and HR — via Fistful of Talent
• What To Do When You Don't Have a Policy in Place — via ERC Insights Blog
• Bullying in the Workplace: New Laws or Stronger Employer Policies? — via Smart HR Manager

Wage & Hour

• The Secret Life of Equity Compensation at IPO — via Compensation Café
• Ignoring the FLSA: Another case of Stupid HR — via Mike Haberman’s Omega HR Solutions

Labor Relations

• NLRB General Counsel and Company Seek Detailed Financial Accounting in Beck Disclosure, NLRB Members Say No — via Matt Austin Labor Law
• NLRB Finds FedEx Drivers to be Employees–Not Independent Contractors — via Wyatt Employment Law Report
• NLRB Refines Its Test for Independent Contractor Status — via Labor Relations Update
• Cursing, fighting, and screaming could be protected under the NLRA — via HR Hero Line

Are post-work security checks compensable? #SCOTUS and Integrity Staffing Solutions v. Busk

Yesterday, the Supreme Court heard oral argument in its first employment law case of this term, Integrity Staffing Solutions v. Busk.

To wage-and-hour geeks (like me), this case presents an interesting issue under the Fair Labor Standards Act: whether the FLSA entitles hourly employees to be paid for post-shift time spent undergoing mandatory security screenings. The case was brought by two employees of a warehousing company that was having employee theft problems. To combat the issue, the company implemented mandatory (and unpaid) post-shift security checks, which included passing through metal detectors, which kept employees at the plant for up to 30 extra minutes.

FLSA, as amended by the Portal-to-Portal Act, generally precludes compensation for “preliminary” (pre-shift) and “postliminary” (post-shift) activities, unless the activities are “integral and indispensable” to an employee’s principal activities. To be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In this case, the 9th Circuit held that the security screenings were “integral and indispensible” because the company required them “to prevent employee theft, a concern that stems from the nature of the employees’ work.” In so ruling, the court distinguished cases involving non-compensable pre- and post-shift screenings at airports and nuclear power plants, which did not benefit the employer because they were otherwise mandate by federal law.

In its brief, the employer argued that the screenings take place away from the work area after the workday, and did not affect their work activity of pulling product off shelves. The employer also argued that the unpaid screenings are no different than unpaid time walking from their cars, through the parking lot, and into the warehouse. Contrarily, the employees argued that the employer’s required security screenings, for which the employees had no choice, triggered a legal duty to pay.

During oral argument (transcript) the conservative wing of the Court seemed to advocate for a narrow interpretation of “principal.”

Chief Justice Roberts: But no one’s principal activity is going through security screening.  The employer doesn’t hire somebody, I need somebody to go through employee screening.  He hires them to do something else…. You’re saying everything that is related somehow to the job is principal. I would have thought principal has to do with things that are more significantly related.

Justice Alito: You wouldn’t pay anybody just to come in and go through security.

Meanwhile, the more employee-friendly Justices attempted to argue that because “inventory control” is “important” to the business, it is integral and indispensable:

I mean, what makes it Amazon? It’s a system of inventory control that betters everybody else in the business. And what’s really important to Amazon is that it knows where every toothbrush in the warehouse is. And that’s just as integral to what Amazon does and to what it requires its employees to do….

In handicapping this case, you have to keep in mind that earlier this year, this same Court, in Sandifer v. U.S. Steel, decided that the time spent putting on and taking off certain protective gear is not compensable. While Sandifer is a different case, decided under a collective bargaining agreement, I would be surprised, especially given the tenor of oral argument, if the employees walk away from Busk with a win. This case will hinge on whether the security screenings are key to the nature of the employment. I, along with what I perceive as a majority of the Court, believe that the employer has the better of this agreement. We’ll find out for sure early next year when the Court issues its opinion.

Sexual discrimination vs. sexual favoritism

The Employment Matters blog recently posted about a 10th Circuit case that upheld the dismissal of a sex discrimination case that alleged sexual favoritism as its lynchpin.

What is the difference between sexual discrimination and sexual favoritism? The former is illegal, while the latter isn’t.

In the words of one federal appellate court:

Title VII does not, however, prevent employers from favoring employees because of personal relationships. Whether the employer grants employment perks to an employee because she is a protegé, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.

Or, in the words of another federal court:

As the numerous cases finding that preferential treatment for a paramour does not constitute gender discrimination make clear, nothing about the favoritism … had to do with the protected characteristic of gender. Instead, the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male … or female…, were equally negatively affected by the purported favoritism.

This is not to say that playing sexual favorites in the office is a good idea. It’s far from it. For starters, is morale crushing for employees to believe (correctly or incorrectly) that they are being treated differently simply because they are not sleeping with or otherwise romantically attached to the boss. It also leads to office gossip and potential conflicts of interest.

Also, lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.

I will not tell you that employers should forbid their employees from dating. The heart will go where it wants to go. If your employees want to date (or do more), they will, with or without a policy forbidding it. Instead, use workplace romances as an opportunity to educate your employees about your anti-harassment policies and programs.

• Train your employees about what is, and is not, appropriate workplace conduct between the sexes.
• Remind employees that the company expects professional behavior at all times, regardless of the personal relationships (past or present) between employees.
• Advise employees that unprofessional behavior is not tolerated, and will lead to discipline, up to, and including, termination,, which includes such behavior during and after romantic or sexual relationships.

Focusing on conduct (and misconduct) instead of the relationships itself provides your employees the tools to avoid the potential problems that can arise from these relationships, which, in turn, will help any organization avoid the litigation expenses these problems can cause. And we can all agree to love that idea.

Don’t fire employees on the heels of a cancer diagnosis

You can’t escape the fact that October is Breast Cancer Awareness Month. Pink is everywhere. Women are wearing pink everything. Buildings are ablaze in pink lights. And NFL games are awash in pink arm sleeves, handkerchiefs, and end-zone paint.

So, it’s appropriate that I bring you the story of a Chicagoland woman allegedly forced off her employer’s health insurance after her breast-cancer diagnosis, and later fired for complaining about it.

 

From the Chicago Tribune:

When Harrington [the employee] learned that she had an abnormal mammogram, the suit said, Quinlan [the employer] began pressuring her to get off of the company’s group health insurance policy. Quinlan forced her off the policy the next month, according to the suit, when she was diagnosed with breast cancer and needed treatment.

Quinlan became angry with her for complaining about not being on the insurance policy, according to the suit, saying that insurance costs would be much higher with her on the policy. Quinlan then fired Harrington, the suit claims.

There is little doubt that the ADA protects cancer as a disability. While a lawsuit is nothing more than a statement of unproven facts, if there is any truth to the allegations in this lawsuit, this employer is going to have big problems.

For want of a well-placed pickle: will your termination pass the red-face test?

Have you ever refused to eat at fast food sandwich because the pickles were off? Not “off” as in omitted, or “off” as in taste, but “off” as in alignment, or, these pickles are arranged in a triangle and not in a square on my patty?

If you answered “yes”to this question, you’re lying, because no one in the history of the world has ever said or thought that their McPickles are mis-aligned.

Ask yourself, then, why an employer would try to justify an employee’s discipline on the grounds of “poor pickle placement.”

Last week I discussed EYM King of Michigan, in which an NLRB Administrative Law Judge invalided a fast-food restaurant’s no-loitering policy. In that same case, the same ALJ also considered the suspension and termination of an employee who worked part-time for a labor union and had previously struck other local fast food establishments over raising the minimum wage. On September 20, 2013, that employee, Claudette Wilson, was sent home early without pay for “not placing pickles on sandwiches in a perfect square as she was supposed to.” The day prior, she had met with a co-worker in the parking lot to fill out a union questionnaire on wages, for which she received a written warning for violating the no-loitering policy.

The ALJ concluded that the employer’s suspension of Wilson discriminated against her for engaging in protected union activity:

Wilson admits that she did not put pickles on her sandwiches in perfect squares as she was supposed to, due to her anger over the written warning she received.  However, given Respondent’s animus towards her protected activity, as evidence by the illegal warning given toher the same day, I find that the General Counsel has made a prima facie that her discipline (being sent home early) was related to Wilson engaging in protected activity in Respondent’s parking lot the day prior.

Folks, no one in their right mind is going to believe that a fast-food worker suffered discipline for poor pickle placement. Your personnel decisions must pass the red-face test. Can you consider the decision without repelling in embarrassment? If not, it’s best to pass on the decision and live to fight another day. If you react poorly to your own decision, imagine how a judge or jury will react.