Supreme Court to consider time limits for constructive discharge claims

Yesterday, the Supreme Court finished its Spring 2015 term with oral argument in Obergefell v. Hodges, the same-sex-marriage case. Earlier in the week, it added another case to its docket for its 2015 – 2016 term, agreeing to hear Green v. Donahoe, which asks the following question:

Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held?

While this case is not as sexy as some other employment issues recently before the Court, it is nevertheless important. Under the federal employment discrimination statutes, an employee only has 300 days to file a charge of discrimination with the EEOC, which serves as the prerequisite to the filing of a later lawsuit in federal court. If the Supreme Court holds that the filing period begins to run at the employer’s last allegedly discriminatory act, then an employee who later resigns and claims constructive discharge will have a shorter window within which to file an administrative charge after the resignation.

Stay tuned, as this case will be heard towards the end of this year or early next year.

Asymptomatic HIV is a “disability,” no matter what one appellate court said

In Clayton v. Cleveland Clinic Foundation, an Ohio appellate court was faced with the issue of whether Ohio’s disability discrimination statute protects asymptomatic HIV as a “disability.” The court relied on the following exchange from the plaintiff’s deposition to conclude, wrongly, that the employee was not suffering from a protected disability.

Q. How does your HIV status impair you?

A. It doesn’t.

Q. All right. So you would say that it doesn’t substantially limit any of your activities of daily life?

A. No. Thank God. Praise him.

Q. When you were at the Cleveland Clinic Foundation, would you agree with me that you could perform all of your essential functions of being a housekeeper without any accommodations?

A. I was able to perform any duty without any accommodations.

Let’s start with the basics. Even before Congress amended the ADA in 2009 to liberalize the statute’s definition of “disability,” the law recognized and protected asymptomatic HIV as a disability. The United States Supreme Court said as much as far back as 1998, in Bragdon v. Abbott:

In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.

The Clayton court was not only wrong about whether HIV qualifies as a disability, but also on the interplay between a disability and a reasonable accommodation. One has a “disability” if one has a a physical or mental impairment that substantially limits a major life activity, period. For the ADA to further protect that individual on the basis of that disability, the employee must be able to perform the essential functions of the job with or without reasonable accommodation. The determinations, however, are separate and distinct from each other. The essential function analysis has zero impact on whether one suffers from a protected disability as a threshold issue.

By conflating these two tests, this court set a dangerous precedent. Make no mistake, asymptomatic HIV is a disability. If an employee presents with HIV (or some other systemic illness), assume that the ADA covers the employee, and shift the analysis: 1) to ensure that the employee receives a reasonable accommodation if necessary to perform the essential function(s) of the job; and 2) to ensure that no one treats the employee differently because of the disability or some (mis)perception about the disability.

NLRB signs off on employer social media policy as legal

It’s not news that employer social media policies are on the NLRB’s radar. What is newsworthy, though, is when the NLRB considers a social media policy and concludes that it does not unlawfully infringe on employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

Consider, then, Landry’s Inc., decided last week by the NLRB, as newsworthy.

In that case, the NLRB considered the following social media policy:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.

The Board concluded that the policy was lawful:

Employees reading the Respondent’s social media policy could reasonably conclude … that they are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the Respondent or each other regarding job-related matters.… There is no restriction in the social media policy against posting “personnel” information or “payroll information,” or “wage-related information”; and obviously, posting information that in common parlance is generally understood to be personal such as, for example, matters regarding social relationships and similar private matters, could result not only in morale problems but could also constitute “harassment” to which the Respondent’s social media policy refers. It is readily apparent that such postings would likely create enmity among employees in the workplace which could, in turn, adversely affect the Respondent’s business.

Why is this newsworthy? Because, for years, the NLRB has urged for an expansive reading of employer policies, suggesting that a hypothetical parade-of-horribles that could lead to union-related, or other protected concerted, activity renders any facially neutral workplace policy unlawful. In Landry’s, the Board is adopting (at least in this case) a more reasonable, real-world reading of a social media policy to conclude that because no employee could reasonably read the policy, in context, to unreasonably infringe on employees’ rights.

This case provides a good illustration of the fine distinctions the NLRB is drawing between lawful and unlawful social media policies, and provides a good reminder of the need for all employers to routinely review your own social media and other workplace policies for compliance.

WIRTW #365 (the “on the road again” edition)

It’s been a crazy week. I gave four different seminar presentations over an eight-day span:

• Last Wednesday I presented a two-hour FMLA/ADA update to the Southwest Safety Council.
• Monday evening I gave the keynote address at the Greater Cleveland Pest Control Association annual award banquet, scaring the pants off everyone about OSHA.
• Tuesday I presented a webinar on criminal background checks and Title VII
• Wednesday I opened the Northern Ohio Labor & Employment Conference with a discussion of emerging technology and employment law (i.e., BYOD, cyber-security, and social media).

Thanks to all who invited me to speak to your organizations. It is always my pleasure.

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

Discrimination

• 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo — via Dan Schwartz’s Connecticut Employment Law Blog
• For ADA and accommodating employee disabilities, think “Burger King” — via Eric Meyer’s The Employer Handbook Blog
• Why women are afraid to tell employers they’re pregnant — via Wonkblog
• Fired for What!? - The Great Popeye’s Fried Chicken Caper — via Phil Miles’s Lawffice Space
• Is Political Affiliation the New Black When it Comes to Discrimination? — via California Labor and Employment Defense Blog
• Is telecommuting a reasonable accommodation, or is it not? — via Robin Shea’s Employment & Labor Insider
• Telesh on EPLI’s Influence — via Workplace Prof Blog

Social Media & Workplace Technology

• If you’re horrible on the internet, Clear app could save your job — via The Verge
• Can an Employer Make Me Change My LinkedIn Photo? — via HR Examiner with John Sumser
• LinkedIn dodges a legal bullet — via Walter Olson’s Overlawyered
• The Dos and Don’ts of Work Email, from Emojis to Typos — via Harvard Business Review

HR & Employee Relations

• I walked in on employees having sex — and I think there’s a sex club in my office — via Ask a Manager
• Yelling at Co-Workers and Employees: Is It Ok? — via ERC’s HR insights Blog
• What Your Company’ Policy on Employee References? — via In House
• Is Thor an illegal immigrant? — via Law and the Multiverse
• How Commute Issues Can Dramatically Impact Employee Retention — via TLNT
• How to Build a Better Marijuana Policy — via Evil HR Lady, Suzanne Lucas
• Work Schedules are Damaging Lawyer Health — via Inhouse Blog
• Recovering From a Fraud Loss — via FRAUDfiles

Wage & Hour

• Do Lower Gasoline Prices Signal A New Wave Of FLSA Actions In The Energy Industry? — via Wage & Hour - Development & Highlights
• Docking Pay From Salaried, Exempt Employees Is Illegal…And Very Common — via Texas Employment Law Blog
• Beware Strangers Bearing Gifts! DOL Promotes “Free” National Safety Council “Cell Phone Policy Kit” — via Employment Law Lookout
• “Half-Time” Overtime: The Fair Labor Standards Act’s Fluctuating Workweek Method — via Wage & Hour Insights
• Is Your Employee Abusing Her FMLA Leave? — via The Emplawyerologist

Labor Relations

• Are employer codes of conduct meaningless in today’s NLRB climate? — via HR Hero Line
• Rival Unions Vie For Position At VW — via Labor Relations Today
• NLRB vs. Right-to-Work — via Ross Runkel Report
• Union Isn’t Liable For Members’ Posts To Private Facebook Group–Weigand v. NLRB — via Technology & Marketing Law Blog
• NLRB Wants Postal Service to Bargain Over the Impact of Data Breach — via Employer Advocate

Until next week…

“Stop harassing me!” = protected conduct to support retaliation claim, says 6th Circuit

What happens when the alleged perpetrator of sexual or other unlawful harassment is also the person to whom the victim lodges a complaint of harassment? If the alleged perpetrator later fires (or causes the firing of) the victim, has the victim engaged in protected conduct (opposition of the harassment) to support a retaliation claim? According to the 6th Circuit, in EEOC v. New Breed Logistics (4/22/15) [pdf], the answer is yes.

The jury concluded that Calhoun, a supervisor, sexually harassed three women (Hines, Pearson, and Pete), retaliated against them after they objected, and further retaliated against a male employee (Partee) “who verbally opposed Calhoun’s sexual harassment and supported the women’s complaints.” The evidence at trial was that Calhoun laughed and responded “that he wasn’t going to get in trouble, that he ran th[e] area, [and that] anybody who went to [HR] on him would be fired.” Calhoun then fired each of the four employees, claiming performance and attendance issues. 

As the threshold issue, the 6th Circuit had to determine whether complaints or objections made to the accused harasser constitute protected activity to support a retaliation claim. The 6th Circuit had little difficulty concluding that these four employees had engaged in protected activity:

We conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed…. Here, at the very least, all four complainants requested that Calhoun stop his sexually harassing behavior before their terminations. Consistent with our holding today, these complaints constitute protected activity.

While I agree that this holding makes sense, consider the awful position in which it could place employers who are lax with their termination decisions. An employer is vicariously liable for the actions of a supervisor or manager (e.g., harassment or retaliation). Thus, an employer will be liable for the rogue actions of a harasser trying to protect his or her turf from an objecting employee.

The solution? More diligence and scrutiny of termination decisions by HR departments and senior management. One cannot merely rubber stamp a manager’s or supervisor’s decision to terminate. If that individual harbors a discriminatory animus, we know that the cat’s paw will nab you. Now, we also know, per New Breed Logistics, that retaliation liability has the same potential issues when an alleged harasser is involved.

Bottom line: Do not rubber stamp termination decisions. Fact-check and confirm before allowing the company to pull the trigger.

A shy employee, a drug test, and the ADA meet in a bar…

Chris Lucas suffers from paruresis (aka, shy bladder syndrome). He claimed that he could not urinate in public bathrooms, and often would hold his bladder throughout his entire work day to avoid having to use the restroom at work. He also admitted, however, that if the urge become too overwhelming, his desire not to wet himself would overcome his fear of public urination.

Lucas’s employer, Gregg Appliances, maintained a drug-free workplace policy which required periodic testing of employees. Lucas’s promotion to a general manager position was contingent upon him passing just such a drug test. When Lucas (and his shy bladder) could not complete the drug test, the testing clinic reported to the employer: “PER COLLECTOR: DONOR LEFT COLLECTION SITE BEFORE COMPLETION OF DRUG TEST.” When confronted by management, Lucas never mentioned his difficulty urinating or his paruresis. Indeed, he did not even visit a physician for his condition until the day after Gregg Appliances fired him for failing to take the required drug screen.

In Lucas v. Gregg Appliances (S.D. Ohio 4/15/15), an Ohio federal court concluded that Lucas could not proceed with his ADA claim. The court dismissed Lucas’s claim for two reasons:

1. The employer had no knowledge of his disability. Lucas never told anyone at the employer before taking his drug test, or after he failed to complete the test. He only relayed his condition to his boss after he was fired. Just because an employer knows that an employee has a health problem (i.e., the inability to pee after drinking several glasses of water over the span of two hours) does not mean that the employer also knows that the employee suffers from an ADA-protected disability. Where the disability is not obvious, the burden is on the employee to make the employer aware.

2. Just as the burden is on the employee to advise of the existence of a disability, the burden also squarely rests on the employee to request a reasonable accommodation. Here, Lucas did not request any accommodation (a blood or hair test) until after his termination. If an employee fails to request a reasonable accommodation during his employment, he cannot later complain that the employer failed to provide an accommodation or otherwise participate in the interactive process.

The ADA does not require an employer to guess and play detective. Instead, it anticipates a collaborative conversation between employer and employee about disabilities and accommodations. The party that fails to take part in this conversation will usually be the one that ends up the loser in any ADA lawsuit.

Is a LinkedIn search subject to the Fair Credit Reporting Act

I’ve written a lot in the past few years about the pros and cons of companies using social media to conduct background checks on applicants and employees (e.g., here and here). One issue I’ve never considered, however, is whether the social media site is a “consumer reporting agency” subject to the Fair Credit Reporting Act, or the information compiled from such searches qualifies as a Consumer Report. The issue is significant, because if the social sites are CRAs, or their information are CRs, then employers who use these sites to conduct background searches are subject to the FCRA’s myriad pre- and post-screening notice, consent, and disclosure requirements.

Recently, a California federal court examined this very issue in Sweet v. LinkedIn Corporation [pdf], and concluded that LinkedIn’s Reference Search function does not render it subject to the FCRA.

Unlike other social sites, LinkedIn maintains a specific tool that helps employers’ reference checks—a premium tool called “Reference Search,” which creates “a list of people who have worked at the same company during the same time period as the member you’d like to learn more about.” More simply, Reference Search generates a list of potential employment references.

In Sweet, a group of unsuccessful job applicants argued that LinkedIn failed to comply with the FCRA in how it operates and maintains “Reference Search.” The court disagreed, concluding that LinkedIn’s Reference Search is not a Consumer Report under the FCRA.

LinkedIn’s publications of employment histories of the consumers who are the subjects of the Reference Searches are not consumer reports because the information contained in these histories came solely from LinkedIn’s transactions or experiences with these same consumers. The FCPA excludes from the definition of consumer report any “report containing information solely as to transactions or experiences between the consumer and the person making the report.”

In other words, because LinkedIn creates its databases solely from information submitted by its account holders, it falls outside the FCRA’s coverage.

While employers still have EEO concerns with the use of social networks for background checks, this case should give employers some relief, as it appears that the FCRA is one statute they needn’t worry about when using social media to vet candidates or for other employment purposes.