Does an employee have to be “disabled” to claim retaliation under the ADA?

The ADA protects employees with disabilities? But what about its anti-retaliation provision? Does an employee have to be “disabled” under the ADA for the statute to protect that employee from retaliation? According to Hurtt v. International Services, Inc. (6th Cir. 9/14/15), the answer is no.

Hurtt worked at ISI as a senior business analyst, earning a yearly draw plus a percentage commission on sales. The day after he requested FMLA-leave for (job-related) anxiety and depression, ISI terminated his draw and switched him a commission-only comp plan. He sued, claiming, among other things retaliation for requesting various accommodations for his disability, including requests for a leave of absence and for a reduced work schedule.

The 6th Circuit reversed the trial court’s dismissal of Hurtt’s retaliation claim, holding that the mere act of requesting an accommodation is sufficient to raise the specter of retaliation, regardless of whether the employee is actually “disabled”:

We have held that requests for accommodation are protected acts…. Hurtt argues that he engaged in protected activity when he requested a reasonable accommodation and when he took FMLA leave…. But, the pertinent inquiry here is not whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable accommodations.

The takeaway here is more common sense than law. If Title VII can protect a white guy from retaliation when he complains that his black co-worker is being mistreated, the ADA certainly should protect an employee requesting a reasonable accommodation, whether or not a court determines after the fact that he is, or is not, legally “disabled”. Employees who request accommodations should always be treated with care; otherwise you risk stepping on a retaliation landmine.

WIRTW #383 (the “iOS” edition)

Thanks to iOS 9, you now have a new way to read the Ohio Employer’s Law Blog. If you own an iPhone or iPad, and have upgraded to iOS 9, you have a new app called “News.” Within that News app, search for “Ohio Employer’s Law Blog” and you’ll be able to read all of my daily updates in Apple-land. As for me, I’ll be reading on my new iPhone 6S, which, barring a FedEx mix-up, should be delivered this afternoon.

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

Discrimination

• Alcoholism, Associational Discrimination, Retaliation, and Magic Words — via Understanding the Americans with Disabilities Act
• “Drawing the Line Between Civil and Religious Rights” — via How Appealing
• The Death of the Class-Action Lawsuit? — via The Nation
• Can a company regulate employee weight and appearance? — via Eric Meyer’s The Employer Handbook Blog
• What employers need to know about transgender discrimination — via EmployerLINC
• Is Your Federal Contracting Business Covered by OFCCP Affirmative Action Rules? — via Tim McConville’s Labor and Employment Law Cocktail
• What’s your boss allowed to ask when you call in sick? — via Ask a Manager

Social Media & Workplace Technology

• Facebook is expanding its workplace social network to hundreds of companies — via The Verge
• Justice Alito Says SCOTUS Is Clueless On New Tech, Which Makes Privacy Cases Even Harder — via Above the Law
• All Boards Need a Technology Expert — via Harvard Business Review
• New Key Terms for DoD’s New Cyber Security Regulations — via Privacy and Data Security Insight
• Did Volkswagen Violate the Computer Fraud and Abuse Act? — via Shear on Social Media Law
• All work and no smartphone play will dull your employees — via Ragan.com

HR & Employee Relations

• When terminating an employee, is a clean break better than a long limbo? — via Robin Shea’s Employment & Labor Insider
• Trusting Human Resources: A Fantasy or a Necessity? — via Dan Schwartz’s Connecticut Employment Law Blog
• The Pope’s visit is a magnificent case for teleworking — via Wonkblog
• Sweden Experiments with Six Hour Working Day — via Inhouse Blog
• Juggling Work and Family During School Holidays — via Fathers, Work, and Family
• Say goodbye to the “Mad Men” office: How workplace flexibility & paid leave can transform the way we work — via Salon
• Your Employee’s Former Employer Just Sued You????? — via The Emplawyerologist
• “At Will” Employment vs. Right to Self-Defense — via Phil Miles’s Lawffice Space

Wage & Hour

• Protecting the Sharing Economy: Creating an FLSA Dependent Contractor Status — via Doug Hass’s The Day Shift (p.s.: check out Doug’s new blog)
• Questions Answered About the Proposed FLSA Overtime Rule Change — via ERC Insights Blog
• Attempted self-help via internet leads to employer liability under the FLSA — via Employment Law Matters
• DOL to Pay $1.5 Million to Employer for Bad Faith Investigation — via Wage & Hour Insights

Labor Relations

• An Impractical and Dangerous Ruling — via New York Times
• Three Reasons Labor Unions Will Prevail — via Huffington Post
• “Union leaders are livid” — via Walter Olson’s Overlawyered
• NLRB Now Requires Companies to Give Most Employee Witness Statements to Unions — via Matt Austin Labor Law
• NLRB Now Publishing Election Tallies Online — via Labor Relations Today
• OUR Walmart fights … OUR Walmart? — via LaborPains

The time for your safety audit is now.

According to data released last week by the Bureau of Labor Statistics, the number of workers killed on the job as a result of slips, trips, and falls rose in 2014 by nearly ten percent.

Here are some the key findings:

• The number of fatal work injuries in private goods-producing industries in 2014 was 9 percent higher than the revised 2013 count but slightly lower in private service-providing industries. Fatal injuries were higher in mining (up 17 percent), agriculture (up 14 percent), manufacturing (up 9 percent), and construction (up 6 percent). Fatal work injuries for government workers were lower (down 12 percent). 
• Falls, slips, and trips increased 10 percent to 793 in 2014 from 724 in 2013. This was driven largely by an increase in falls to a lower level to 647 in 2014 from 595 in 2013. 
• Fatal work injuries involving workers 55 years of age and over rose 9 percent to 1,621 in 2014 up from 1,490 in 2013. The preliminary 2014 count for workers 55 and over is the highest total ever reported. 
• After a sharp decline in 2013, fatal work injuries among self-employed workers increased 10 percent in 2014 from 950 in 2013 to 1,047 in 2014. 
• Women incurred 13 percent more fatal work injuries in 2014 than in 2013. Even with this increase, women accounted for only 8 percent of all fatal occupational injuries in 2014. 
• Fatal work injuries among Hispanic or Latino workers were lower in 2014, while fatal injuries among non-Hispanic white, black or African-American, and Asian workers were all higher. 
• In 2014, 797 decedents were identified as contracted workers, 6 percent higher than the 749 fatally-injured contracted workers reported in 2013. Workers who were contracted at the time of their fatal injury accounted for 17 percent of all fatal work injury cases in 2014. 

So, we know that workplace fatalities are on the rise? What does this mean for your business? It means that now is the time for you to get your workplace-safety house in order. You are (god forbid) one fatality, serious injury, employee complaint, or planned investigation away from an visit from your friendly neighborhood OSHA investigator. 

Do you want to know what your safety programs look like before OSHA shows up at your door? Do you want the comfort of knowing that your OSHA logs and safety training material are in order, and that your safety low-hanging fruit (guarding, lock-out/tag-out, fall protection, PPE, etc.) is handled? 

If so, consider the current time (when OSHA is not in your facility) as borrowed time. Use this borrow time wisely to audit all of your safety practices. It could mean a difference of tens, or even hundreds, of thousands of dollars in fines. Time and money well spent, if you ask me.

The difference between what is "legal" and what is "right"

In McGowan v. Medpace, an Ohio appellate court dismissed an ex-employee’s wrongful discharge lawsuit. The employee—a former executive director—claimed that she was fired in retaliation for reporting concerns about her predecessor’s prescription-writing practices, which she alleged constituted insurance fraud and compromised patient safety. The court, however, concluded that regardless whether the retaliation occurred, it did not permit her to pursue a lawsuit for wrongful discharge. According to the court, under Ohio law, to support a wrongful discharge claim one cannot rely on a public policy unless it imposed an affirmative duty on an employee to report a violation, prohibited an employer from retaliating against an employee who had reported a violation, or protected the public’s health and safety. The court concluded that none of Dr. McGowan’s alleged public policies met those criteria, and, therefore, she lost.

That’s the legal analysis. Some would say that the employer won on a technicality. I prefer to call it high-quality lawyering. Whatever your take, what is clear is that whether the retaliation occurred was irrelevant to the decision. 

Employers, do not read this case as a licence to retaliate. Instead, let it stand for a deeper, more meaningful lesson. Just because the law permits something does not make it right. Strive to be better than the law’s floor, if not because it is the right thing to do, then because this case could have just as easily gone another way with a different court or different panel of this court. Justice is fickle. Do right by your employees and, more often than not, everything else falls into place. Just because the law makes it legal doesn’t mean the law makes it right, right?

What are biggest legal questions facing employers?

Last week, Employment Law 360 ran a four-part series discussing the four biggest issues facing employment lawyers across four different categories: Discrimination, Wage and Hour, Labor, and Class Actions (sub. req.).

It’s hard to disagree with any of the articles’ assessments or conclusions. It got me thinking, though, if those are the biggest issues facing employment lawyers, what are the biggest issues facing employers?

I think these issues fall into two over-arching categories:

1. What is work?
2. Who is an employee?

“What is work” does not just fall under the wage-and-hour umbrella. Yes, it is important under the FLSA to understand the compensable nature of working time, and how technology, like off-the-clock emails and smartphone use, impacts this question. Equally, if not more important, however, is the issue of the location of work, and the flexible work schedules, telecommuting, and work-life-balance implications of this question. If technology has freed us from the shackles of a four-walled office and nine-to-five time clock, does it also mean that technology has stretched the workplace to anywhere and the workday to anytime? And, with this “freedom”, should not employers be more lenient with time off, paid or unpaid.

“Who is an employee” is equally important. I’m not just talking about the FLSA implications of employee vs. independent contractor, or employee vs. intern. I’m also talking about the potential for joint-employer liability under the NLRA, Title VII, OSHA, and other statues. And, don't forget the ongoing debate over whether Title VII protects LGBT workers.

So, readers, what say you? What are the most important workplace legal issues facing you and your businesses? Leave a comment below, or tweet me @jonhyman with the hashtag #BiggestEmployerIssue

Union organizing as a protected class? Worst … idea … EVER

Raise your hand if you think that it needs to be easier for workers to unionize? If I could look through my computer screen, I’d see very few of my readers’ hands raised.

Two hands that would be raised, though, are those of Washington Senator Patty Murray and Virginia Congressman Bobby Scott (both Dems), who, last week, introduced and sponsored the Workplace Action for a Growing Economy (WAGE) Act.

What would the WAGE Act do?

• Triple the back pay to employees fired or retaliated against for engaging in protected concerted activity.
• Provide employees with a private right of action to bring suit to recover monetary damages and attorneys’ fees in federal district court, in addition to injunctive relief.  
• Clarify that joint employers are jointly responsible for violations affecting workers supplied by another employer.
• Establish civil penalties up to $50,000 for employers that commit unfair labor practices, with double penalties for repeat violations.
• Impose individual liability for employer violators on officers and directors. 
• Allow the NLRB to issue a bargaining order upon finding that an employer prevented a free and fair election, provided that a majority of employees signed authorization cards within the previous 12 months.

What else do you need to know about the WAGE Act? It’s supported by the AFL-CIO, the Teamsters, the Communication Workers of America, The Leadership Conference on Civil and Human Rights, The Century Foundation, and other worker-rights groups.

AFL-CIO President Richard Trumka described the legislation: 

The WAGE Act puts corporations who abuse working people on notice that there will be real penalties for lawbreaking. Penalties like triple back pay, strong civil penalties and preliminary reinstatement.

Teamsters General President James P. Hoffa added:

For too long employers have manipulated and abused the system under the NLRA. The WAGE Act offers real reform to our current laws and provides worker protections through significant penalties that will discourage employers from acting illegally. It is long past time to bring our labor laws into the 21st century.

The Act’s co-author, Senator Murray, continued:

Too often, as workers are underpaid, overworked and treated unfairly on the job, some companies are doing everything they can to prevent them from having a voice in the workplace. The WAGE Act would strengthen protections for all workers and it would finally crack down on employers who break the law when workers exercise their basic right to collective action.

This bill has no chance to become law. But that’s not the point. The labor movement is setting up the 2016 election to be a referendum on the American working class. This bill is a symptom of this problem, not the solution. Nevertheless, it illustrates the class divide that could lead to a greater resurgence of organized labor.

WIRTW #382 (the “bloodletting” edition)

This past weekend, my kids had their triannual School of Rock performances. Norah performed in the “Left of the Dial” show, singing and strumming the 80s pre-Nirvana alt groove. Not to be outdone, Donovan made his stage debut playing keyboards in the Rock 101 band (with Big Sis backing him on the drums).

A few observations.

1. I’m not sure where they came from, but Norah’s got a set of pipes and is quickly learning how to use them.
2. Donovan might not have music in his future, but, as you’ll see, the kid’s got stage presence.
3. Having never taken a drum lesson, Norah did herself proud behind the kit for two songs.

With that preface, let’s go to the tape.

Norah bringing down the house, singing Concrete Blonde’s “Bloodletting”

Donovan causing tears of joy with his dance moves and backing vocals

If you’re inclined, you can watch the entire 12-song Left of the Dial set here.

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

Discrimination

• The Kim Davis Story: When Religion Clashes with Job Requirements — via ERC HR Insights Blog
• Court Rulings Reiterate that Employers Should Review and Revise Best Practices for Drug-Free Workplace Programs — via Laconic Law Blog
• Reassignment As A Reasonable Accommodation Under The ADA — via Employment Essentials
• And a happy #$%!&;!*! new year to you, too! — via Robin Shea’s Employment & Labor Insider
• “Drawing the Line Between Civil and Religious Rights” — via How Appealing

Social Media & Workplace Technology

• Facebook is expanding its workplace social network to hundreds of companies — via The Verge
• Hackers Are Coming After Your Private Data — via Technologist

HR & Employee Relations

• How to Reinvent the Employee Handbook — via Evil HR Lady, Suzanne Lucas
• New Push in Congress to Pass a Nationwide Ban the Box Law — via TLNT
• The Caregiving Challenge — via U.S. Department of Labor Blog
• Work-Life Policies Payoff Isn’t Overnight — via Families and Work Institute Blog
• How to Raise Awareness About Mental Health in Your Workplace — via Blogging4Jobs
• Questions That Employers Should Avoid During The Hiring Process — via Minnesota Employer
• Your Employee’s Former Employer Just Sued You????? — via The Emplawyerologist

Wage & Hour

• The pesky FLSA implications of the Papal visit — via Eric Meyer’s Employer Handbook Blog
• USDOL Delays Its “Companionship”, “Live-In Domestic” Enforcement — via Wage and Hour Laws Blog
• DOL: Pay Discussions Protected Under Rules — via Joe’s HR and Benefits Blog
• Eighth Circuit Splits The Baby In Permitting FMLA Claims To Proceed — via The Employment Brief

Labor Relations

• National Labor Relations Board Asserts Jurisdiction over Religious Educational Institutions — via Matt Austin Labor Law
• DOL Pimping Unions — via Labor Relations Institute