Friday, August 29, 2014

WIRTW #334 (the “these go to 11” edition)

Today is my 11th anniversary. I love my wife. That is all.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations


Thursday, August 28, 2014

What does the ADA have to say about employer inquires about prescription drugs

Ritalin-SR-20mg-fullEmployers with employees working in safety-sensitive positions have an obligation to ensure that their employees are not impaired while engaged in their jobs. For example, earlier this week I discussed Blazek v. City of Lakewood, in which the 6th Circuit concluded that the ADA does not protect a drunk snowplow driver. We also know that the ADA does not protect employees under the influence of illegal drugs.

What about legally prescribed drugs? As an employer, can you test employees for prescription medications packaged with warnings about operating heavy equipment. And, if an employee tests positive, can you require those employees to disclose those medications to the third-party company hired to administer the tests. Surprisingly, the ADA is silent on these issues.

In Bates v. Dura Automotive Sys. (8/26/14) [pdf], the 6th Circuit attempted to give us some answers.

1. Does the ADA permit an employer to test for prescription medications?

Whether the ADA permits an employer to test employees for prescription medications will hinge on whether the test is a “medical examination.” If the test is a “medical examination,” then the ADA only permits it during employment if the test is “job-related and consistent with business necessity.” According to the Court, whether the prescription-drug screen is a “medical examination” will hinge on whether the test “is designed to reveal an impairment or physical or mental health,” which examines both the employer’s reasons in using the test and the test’s typical uses and purposes.

The Court concluded that this issue presented a close enough call for a jury to decide:

Dura denies using its drug-testing protocol to reveal impairments or health conditions…. Far from a “free peek into a[n] … employee’s medical history,” … the evidence shows that Dura abstained from asking plaintiffs about their medical conditions…. The urine test itself revealed only the presence of chemicals—amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates, oxycodone, phencyclidine, and propoxyphene. No one suggests that the consumption of prescription medications containing these chemicals constitutes protected medical information (or even an “impairment”) under the EEOC definition of medical examination….

Although some prescription medications may reveal more than meets the eye because of brand-name recognition and ubiquitous marketing campaigns, an employer might struggle to discern medical conditions from the prescription drugs discovered here, which included a number of prescription pain relievers. Arguably, this attenuated testing protocol—with a narrow focus on substances containing machine-operation restrictions, as opposed to all prescription drugs—reflects Dura’s effort to avoid obtaining information about employees’ medical conditions and to avoid discriminating against all employees who take prescription drugs.

Still, much depends on Dura’s credibility. Inconsistencies between Dura’s written and actual drug-testing policies and its disparate treatment of individual employees may evince a pernicious motive. For instance, one plaintiff (Bates) claims that Dura asked her directly about her prescription medications and fired her for reporting them, and Dura allowed another plaintiff (Long) to return to work despite testing positive. If credited, a jury could reject Dura’s explanation as a pretext for screening out potentially disabled employees. Moreover, plaintiffs-appellees may present evidence that the disclosure of machine-restricted medications typically reveals confidential health information, such that the jury could determine that the test targets information about an employee’s physical or mental health, regardless of Dura’s intent.

2. Does the ADA permit an employer to require employees, after a positive test, to disclose medications to a third-party administrator?

The 6th Circuit concluded that there exists a huge difference between a general requirement that employees disclose a list of all prescription medications taken (possibly illegal), versus a policy that only requires the disclosure of machine-restricted medications after a positive test. Given the fact-based nature of this inquiry, the court concluded that a jury should decide this question, too.

Dura denies asking employees about their general prescription-drug usage. Viewing the evidence in its favor, Dura’s third-party-administered test revealing only machine-restricted medications differs from directly asking employees about prescription-drug usage or monitoring the same…. A drug test that requires positive-testing employees to disclose medications to a third party, who then relays only machine-restricted medications to the employer, need not reveal information about a disability….

A jury could reasonably conclude that Dura implemented a drug-testing policy in a manner designed to avoid gathering information about employees’ disabilities.

How can an employer make sense of this discussion? These are difficult issues that balance an employer’s right to maintain a safe workplace against an employee’s right to medical privacy. What is an employer to do?

  1. Limit testing for the use of prescription drugs to safety-sensitive positions and only those medications that could pose a safety risk.

  2. Be consistent in your treatment of employees who test positive.

  3. Only disclose the results to those who need to know.

  4. Do not ask employees to disclose the underlying medical condition for which they are taking the medication.

These steps will help limit your risk in the event an employee challenges your testing or the use of the results.

Ritalin-SR-20mg-full” by en:User:Sponge - Created by en:User:Sponge. Transferred from en.wikipedia. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

Wednesday, August 27, 2014

Hear what I had to say on @WCPN about #BanTheBox

Yesterday, WCPN’s The Sound of Ideas was kind enough to invite me to speak about criminal background checks in employment and the “Ban the Box” movement.

Did you miss the live broadcast? 1) shame on you; and 2) today’s your lucky day because WCPN archives all of its broadcasts on its website.

Here you go.

Thanks Mike McIntyre for having me on. Let’s do it again soon.

Tuesday, August 26, 2014

Facebook firing causes unfair labor practice double play for NLRB

In Triple Play Sports Bar & Grille [pdf], the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive.

A former Triple Play employee, Jamie LaFrance, posted the following on her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!

Two then-current employees, Spinella and Sanzone, interacted with that post. Spinella clicked the “Like” button under the comment. In response to another’s comment to the same post, Sanzone commented, “I owe too. Such an asshole.”

The Board concluded that Triple Play unlawfully fired Spinella and Sanzone for their Facebook activities:

Spinella’s and Sanzone’s comments were not “so disloyal … as to lose the Act’s protection.” … The comments at issue did not even mention the Respondent’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.

The NLRB then examined the employer’s Internet/Blogging Policy, which stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The Board concluded that a vagueness and lack of specificity doomed the policy:

Here, we believe that employees would reasonably interpret the Respondent’s rule as proscribing any discussions about their terms and conditions of employment deemed “inappropriate” by the Respondent. The rule contains only one other prohibition—against revealing confidential information—and provides no illustrative examples to employees of what the Respondent considers to be inappropriate. Under these circumstances, we find the term “inappropriate” to be “sufficiently imprecise” that employees would reasonably understand it to encompass “discussions and interactions protected by Section 7.” …

The two unlawful discharges served as an indication to employees that the clause did not shield Sanzone’s and Spinella’s protected activity. Faced with these discharges, employees therefore would reasonably construe the Internet/Blogging policy to prohibit Section 7 activity such as the Facebook discussion of tax withholding issues involved in this case.

What can employers learn from this decision:

  1. Even the simple act of clicking the “Like” button can be enough to constitute protected concerted activity.

  2. The line beyond which an employee must cross to cost themselves the protections of the NLRA is far down the path of online speech.

  3. For any social media policy to pass muster under the NLRA, you should provide specific examples of the prohibited speech. Generalizations will likely cause you problems with the NLRB.

  4. The surest way to end up the NLRB’s crosshairs for an unlawful social media policy is to fire an employee for a violation of that policy. Absent a termination, it is unlikely the Board will ever find out about your policy.

Monday, August 25, 2014

Listen to me on WCPN tomorrow morning (8/26) from 9–10, discussing “Ban the Box”

If you’re near a radio tomorrow morning from 9 – 10, tune to 90.3 FM, WCPN, to hear me on The Sound of Ideas.

The topic of the day is “Ban the Box,” the disturbing legislative trend that prohibits employers from asking job applicants about criminal conviction histories on job applications. Given that we have an hour to fill, I imagine the discussion will also more broadly cover employment background searches in general.

If you miss the show live, I’ll have links for everyone to stream it at your leisure. You can also watch live on your computer here.

This is my second appearance on The Sound of Ideas, and I’m grateful to the show for having me back.

The difference between alcoholism and drunk under the ADA

A few months ago, I had to fly to Houston for a hearing. After the flight took off, I witnessed the most impressive bit of alcohol consumption I’d seen since my college days a couple of decades ago. The guy sitting next to me ordered four bloody maries, downing all four in a matter of a couple of minutes. He then proceeded to pass out on my shoulder, but that’s a story for another day. That had been the most impressive feet of drinking I’ve encountered in some time … until I read Blazek v. City of Lakewood (6th Cir. 8/13/14).

Jonathan Blazek worked in the in streets, construction, maintenance, and repair department for the City of Lakewood. His job followed a seasonal cycle—leaf pick-up in the fall, snow removal in the winter, and Christmas tree pick-up after the holidays. His job required that he maintain a commercial drivers license.

For reasons that only Blazek could explain, on March 13, 2012, he arrived at work with a 21-ounce bottle of Canadian Mist whiskey stashed in his truck. During his one-hour lunch break, he drank the entire bottle, the equivalent of 14 shots of whiskey. At a post-lunch meeting, Blazek’s boss suspected something was “off” was Blazek. Even though Blazek denied drinking, she took him to the police station, where he blew a 0.132, 65% more than Ohio’s legal limit, and more than three times the limit for CDL drivers.

The City charged Blazek with various violations—being intoxicated at work, driving a city vehicle while intoxicated, drinking at work, and possessing alcohol on City property. Each violated the City’s policy on alcohol in the workplace, and Possessing or consuming alcohol on City property constituted a fireable offense—even for a first-time violator. But, this was not Blazek’s first violation. He admitted as his pre-disciplinary hearing that he had drunk “at work and/or drove City vehicles, on a handful of occasions in the [preceding] several months…. This includes driving a snowplow under the influence during a snow storm.” As a result, Blazek was fired.

Blazek sued the City for disability discrimination, claiming that the City had fired him because of, and failed to accommodate, his alcoholism. The 6th Circuit disagreed:

Plaintiff admitted driving a City snowplow during a storm while intoxicated. Plaintiff further admitted that was not his only time drinking on the job. Plaintiff's violations of City policies dwarf those of the other employees whom Plaintiff offers up as comparisons. The most analogous is Bork, who also operated a City vehicle while drunk—and was fired. Even if we assume that none of these fifteen employees was disabled (and there is no reason to make this assumption), the facts of their cases are simply too different from the facts of Plaintiff's case to be of use. Plaintiff therefore cannot show that Defendant's legitimate reason for terminating him was pretextual.

The ADA protects “alcoholism” as a disability. There is a huge difference, however, between alcoholism, which the ADA protects, and being drunk at work, which the ADA absolutely does not protect. The ADA is never going to cover any employee who uses substances at work, let alone one who’s in an altered state a result.

You are seldom in the wrong for firing an employee who’s drunk at work. It’s plain sad that we need a federal appellate court to remind us.

Friday, August 22, 2014

WIRTW #333 (the “firsts” edition)

10544379_10152404410596130_904692989877768665_nBig week of firsts for the Hyman family. First week at a new job for me. First week of third grade for Norah. And, it was the first day of kindergarten for Donovan, who after watching his sister walk the halls of her school for the past three years, is finally proud to call it his school too.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, August 21, 2014

Cop loses big ADA verdict on a finding of no disability

When is a disability not a disability? When an employer fires a difficult employee based on his inability to get along with his co-workers, his ADHD diagnosis notwithstanding, at least according to the 9th Circuit in Weaving v. City of Hillsboro (8/15/14).

Matthew Weaving was diagnosed with ADHD as a child. As an adult, he pursued a career as a police office, and later a police detective. He joined the Hillsboro, Oregon, Police Department in 2006.  His performance record at the HPD was spotty. His co-workers complained that he was often sarcastic, patronizing, and demeaning. After a 2009 complaint by a subordinate about Weaving’s bullying, the HPD placed him on paid administrative leave. While on leave, Weaving sought a mental-health evaluation, which concluded that some of his interpersonal difficulties had been caused by his continuing ADHD. Shortly thereafter, the HPD finished its investigation, finding that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” As a result, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis.

The 9th Circuit reversed a jury verdict of more than $500,000. Surprisingly, it did so based on a finding that Weaving’s inability to get along with others as a result of his difficult personality did not qualify as an ADA-protected disability.

A “cantankerous person” who has … trouble getting along with coworkers is not disabled under the ADA…. One who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA…. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.

Since Congress amended the ADA in 2009 to expand the definition of “disability,” conventional wisdom has said that most medical conditions will qualify for protection under the ADA. This case sets the bounds of the exception. Weaving notwithstanding, employers should not hold out much hope that they will be able to win many ADA cases on an argument that an employee’s medical condition is not an ADA disability. In the right case, however, faced with the right employee, the right performance issues, and the right claimed medical condition, an employer might be able to prevail that the employee’s medical condition does not rise to the level of a “disability.” The better (safer?) course of action, however, is to assume that the medical condition is an ADA-protected disability, and instead argue that the condition notwithstanding, an employer cannot offer any reasonable accommodation that will enable the employee to perform the essential functions of one job. You end up at the same place—a dismissal—albeit on safer legal footing. Regardless of how you get there, however, it is reassuring to see a court refuse to protect an alleged jerk employee on a claim that a disability caused the awful behavior.

Wednesday, August 20, 2014

When the cat’s paw strikes retaliation

What happens when a decision-maker acts with an innocent motive, but unwittingly carries out the retaliatory motive of a subordinate? Does the cat’s paw impute the unlawful intent to the otherwise innocent manager or supervisor? In Seoane-Vazque v. The Ohio State University (6th Cir. 8/19/14) [pdf], the 6th Circuit held that while the cat’s paw applies to retaliation claims, it is still bound by the higher but-for causation standard the Supreme Court applied to retaliation claims in University of Tex. S.W. Med. Ctr. v. Nassar.
Following Nassar, “a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors.” … So long as the untainted factors were sufficient to justify [the] ultimate decision, the University will be entitled to summary judgment.
Thus, in any claim alleging retaliation under Title VII, courts must apply the stricter “but for” causation standard, regardless of the identity of the purported decision-maker. As a result, retaliation claims remain harder for employees to prove, and easier for employers to win on summary judgment.

This all makes for an interesting academic discussion, but once you reach these platitudes of burden of proof and causation, you’ve already lost. You’ve already fired an employee who engaged in protected conduct. You’ve already gotten sued. And, you’ve already spent a tidy sum investigating the complaint, taking discovery, and preparing a (hopefully winning) motion for summary judgment. You’ve spent $100,000 (or more) to justify the termination of a marginal employee. In that case, have you really won?

What’s the safer course of action? Only terminate as a last resort. Treat employees who engage in protected activity with kid gloves. Make an informed decision early in any case whether it is one worth fighting or settling. Better yet, consider severance pay in exchange for a release claims in all but the most egregious of terminations. Nassar’s “but-for” causation standard may shift employers’ decisions to fight over flight in more cases, but employers should resist the litigation urge, which is usually a losing proposition for all. I know this is odd advice coming from a litigator, but a termination decision must be fully informed, and the vast void of litigation costs must be a key part of that decision.

Tuesday, August 19, 2014

Even the lone wolf can establish protected concerted activity with today’s NLRB

In Fresh & Easy Neighborhood Market (8/11/14) [pdf], the NLRB held that an employee engaged in protected concerted activity merely by asking co-workers for help in making a sexual harassment complaint to her employer. It was irrelevant to the Board whether the employee had engaged other employees for group activity; all that mattered was that the employee engaged others at all.

Margaret Elias, a cashier, wrote a note on a whiteboard about some training known as “TIPS.” When she returned to the whiteboard the next day, she noticed that the “P” in “TIPS” had been changed to a “T,” and someone had drawn a picture of a worm (or peanut) urinating on her name. In support of her intent to file a sexual harassment complaint with her employer, Elias asked three co-workers to sign a piece of paper that contained a copy of the whiteboard. When the employee relations manager later spoke to Elias about her harassment complaint, she asked why Elias felt the need to obtain co-workers signatures, and instructed her not to obtain any further statements so that she could conduct an investigation. Elias admitted that was only filing the complaint on her own behalf, and her co-workers were not involved other than as potential witnesses.

Based on these facts, the NLRB concluded that the employer violated the Act by questioning Elias about the signatures she obtained:

Here, Elias sought her coworkers’ assistance in raising a sexual harassment complaint to management, by soliciting three of them to sign the piece of paper on which she had copied the altered whiteboard message in order to “prove” the harassment to which she had been subjected. Although she did not intend to pursue a joint complaint, her testimony establishes that she wanted her coworkers to be witnesses to the incident, which she would then report to the Respondent…. Elias’ conduct in approaching her coworkers to seek their support of her efforts regarding this workplace concern would constitute concerted activity. Elias did not have to engage in further concerted activity to ensure that her initial call for group action retained its concerted character.

Even if the employee was pursuing her own individual claim, her “selfish motivation” for speaking to her co-workers was irrelevant because “concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.”

This case creates a dangerous precedent. It enables an employee to create an unfair labor practice out of thin air merely by airing an issue with co-workers, regardless of whether those co-workers share in that concern. It makes case for the lone wolf, who, even though, by definition, a lone wolf cannot act in concert.

I’ve long argued that the current iteration of the NLRB is using “protected concerted activity” as a life-vest to prop up its own existence. Fresh & Easy does little to dissuade me of that opinion. If a single employee, admittedly acting on her own behalf, can create an unfair labor practice merely by talking to other employees about a workplace issue, then any workplace conversation could constitute protected concerted activity. If that is the rule, then good luck disciplining employees for anything.

Monday, August 18, 2014

Announcing a new beginning at Meyers Roman

And to make an end is to make a beginning.
― T.S. Eliot

According to my blogging service, this is my 2,000th post. While this milestone is mind-blowing (at least to me), I am marking this bi-millenium with news of a different kind. Today, I start the next phase of my career at Meyers, Roman, Friedberg & Lewis.

Why switch law firms, you ask? It’s hard to quantify “why.” New opportunities, new challenges, new surroundings, etc. In short, I feel energized, which, when you have to get up and go to work everyday, is a really good thing. I am excited by everything Meyers Roman offers to my career and to me. I’m thrilled to join a vibrant firm with a vibrant labor and employment practice.

I’d be remiss if I did not say thank you to the firm that I’ve called home for the past 8 years, and was the only home this blog has known. Kohrman Jackson & Krantz was nothing but supportive of me and this blog, and for that I will be eternally grateful.

For you, my loyal readers, the move will be transparent. Other than seeing a different firm’s logo above the fold, nothing else is going to change (for now). I’ll still bring you daily posts, Monday through Friday, which will still include my famous Friday What I’m Reading weekly recap. Still, new beginnings bring new opportunities, and I’m looking forward to version 2.0 of the blog, which will bring more multimedia, including (if I can get my stuff together) a podcast.

I’d love to hear from anyone and everyone. My new contact information is:
Jon Hyman
Meyers, Roman, Friedberg & Lewis
Eton Tower
28601 Chagrin Blvd., Ste. 500
Cleveland, Ohio 44122

Friday, August 15, 2014

WIRTW #332 (the “carpe diem” edition)

There are lots of snippets of Robin Williams I could play. I chose this one.

I'll see everyone Monday with some huge news.  

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, August 14, 2014

When retaliation stands the test of time

kvtakgtqOften when we consider the issue of temporal proximity in a retaliation case, we examine it from the standpoint of whether temporal proximity is sufficient to infer retaliatory intent when the adverse action happens right on the heels of the protected activity. What happens, however, if the converse is true—if a long period of time elapses between the protected activity and the adverse action. Can an employer save itself from a retaliation claim simply by waiting it out? This was the question the court faced in Malin v. Hospira, Inc. (7th Cir. 8/7/14).

Deborah Malin worked in the IT department of the Abbott Laboratories’s hospital product division (spun off to a new company, Hospira, in 2006). In July 2003, she informed her direct boss, Bob Balogh, that she was going to complain to HR about sexual harassment by her indirect supervisor, Satish Shah, who reported to Mike Carlin. Before she could complain to HR, Balogh told her that Carlin told him to do everything in his power to stop Malin from going to HR. Malin ignored the stop sign and lodged her harassment complaint with HR.

Between the 2003 complaint and the 2006 Hospira reorganization, Malin applied for several promotions but received none of them. On June 14, 2006, the management team (including Carlin, then the CIO) met to discuss new roles for current IT employees. Five days later, Malin took emergency FMLA leave. Several weeks later, the IT department announced its reorganization, which again resulted in Malin being passed over for a promotion.

Among other claims, Malin claimed that when Hospira executed its 2006 reorganization, it retaliated against her for the 2003 harassment complaint. The court concluded that the intervening three-year gap between the harassment complaint and the decision not to promote Malin was insufficient to defeat her retaliation claim:

[A] long time interval between protected activity and adverse employment action may weaken but does not conclusively bar an inference of retaliation…. Rather, if the time interval standing alone is long enough to weaken an inference of retaliation, the plaintiff is entitled to rely on other circumstantial evidence to support her claim….

The evidence in this case permits an inference that Carlin had a long memory and repeatedly retaliated against Malin between 2003 and 2006. Malin was denied promotions numerous times between 2003 and 2006. During that time, Carlin was the final decision-maker on all promotions in the IT department, both at Abbott and after the spin-off at Hospira. Malin’s immediate supervisors repeatedly told her that she would be an excellent fit for newly-available positions at higher salary grades and that they would recommend that she be promoted into them. Nevertheless, Malin did not receive any promotions at Hospira between 2003 and 2006…. These incidents are circumstantial evidence that Carlin remembered Malin’s complaint about Shah and acted to prevent her from being promoted at Hospira long after the complaint was made.

This case serves as a solid reminder that an employer cannot hold a grudge against an employee who engaged in protected activity, with the hope that the passage of time will permit later retaliation. If an employee can connect the dots between the protected activity and the adverse action, the employer faces risk, no matter how much time has passed.

Image via Robbert van der Steeg (originally posted to Flickr as Eternal clock) [CC-BY-SA-2.0], via Wikimedia Commons

Wednesday, August 13, 2014

Do not force employees to work during FMLA leave

With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no.

When Tondalaya Evans, a pregnant payroll manager for Books-a-Million, requested FMLA paperwork for her impending September 1 due date, her employer told her that she “would not go on leave but would work while on maternity leave.” She protested, but was told that she had no choice because the "go-live" date for the new payroll system on which she had been working had been delayed until November. Evans gave birth on August 30, and immediately starting working (full-time, and with full pay) upon arriving home from the hospital with her baby on September 1. When she eventually returned to the office, she was transferred to a new position. Unhappy with the transfer, Evans quit and sued, claiming, among other things, FMLA interference.

The court concluded that requiring an employee to work (even for pay) in lieu of requested FMLA leave for which the employee was entitle to take violates the FMLA. In doing so, it rejected the employer’s argument that it could not have violated the FMLA because it paid Evans for her time off.

It seems plain to us that if an employer coerces an employee to work during her intended FMLA leave period and, subsequently, reassigns her based upon her allegedly poor performance during that period, the employee may well have been harmed by the employer’s FMLA violation.

What lesson can employers learn from this case? Don’t suggest or require that an employee work during an FMLA-eligible leave (even if it’s paid). The purpose of the FMLA is to enable employees to take time off from work for certain qualifying medical and other reasons without from the encumbrance of work responsibilities and the fear of losing one’s job while away from work. Telling an employee that she cannot take an FMLA, but instead can (must?) work from home, undercuts both of these purposes. It both forbids an employee from taking time off, and puts the employee’s job at risk because of slipped performance as a result of divided attention. FMLA leave is federally guaranteed for a reason. Don’t mess with that reason by requiring work (albeit paid and at home) in lieu of bona fide leave of absence.

Tuesday, August 12, 2014

Apparently, “information security” is now an unfair labor practice

In Fresh & Easy Neighborhood Market (7/31/14) [pdf], the NLRB examined the following “Confidentiality and Information Security” policy:

We have an important duty to our customers and our employees to respect the information we hold about them and ensure it is protected and handled responsibly. The trust of our staff and customers is very important, so we take our obligations under relevant data protection and privacy laws very seriously. We should also regard all information concerning our business as an asset, which, like other important assets, has a value and needs to be suitably protected.

What does it mean for me? …

  • Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained.

The Board concluded that this directive reasonably tends to chill employees in their Section 7 rights to engage in protected concerted activity:

We find … that employees would reasonably construe the admonition to keep employee information secure to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment…. In addition, the instruction to use information “only for the purpose for which it was obtained” reinforces the impression that the rule prohibits Section 7 activity, as the Respondent’s business purpose clearly does not include protected discussion of wages or working conditions with fellow employees, union representatives, or Board agents.

Here’s the problem with the Board’s  current application of the Section 7 “protected concerted” rules to employer policies. It presumes bad intent by the employer. The Board imagines a parade of horribles, and strikes down any policy on account of some hypothetical bad conduct by the employer.

Member Johnson picks up on these themes in his dissenting critique:

Of course, the relevant inquiry is whether employees would reasonably construe rules as restricting Section 7 activity, and not whether employers intended the rule to restrict Section 7 activity. But certainly, this fact does not support construing rules to presume a malicious intent on the part of the employer. An employer’s primary purpose in drafting employee handbooks and policies is not to stifle employee rights, but to attempt to comprehensively cover many topics, including compliance with other workplace statutes and policies that protect business interests and the workplace environment of its employees….

As an alternative approach, Member Johnson proposes giving the challenged rule a reasonable reading, instead of deconstructing it with an eye towards illegality.

I believe the best approach is to examine the overall context of a disputed rule—from the general purpose of the document in which the rule is contained, its introduction, its general sections and topics and accompanying explanatory texts, and finally, to the disputed rule and the text around it—to give a rule a reasonable reading.

While Member Johnson is 100% correct, his view is the minority view (at least for the next 30 months). Thus, employers would be prudent to carefully review all workplace policies in light of these gruesome standards, and seek the guidance of experienced labor counsel to draft or, at a minimum, review all handbooks and other workplace policies.

Monday, August 11, 2014

You might want to reconsider if you send your FMLA forms via regular mail

One of the very first things a lawyer learns in law school is the “mailbox rule.” This rule simply states that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed … that it reached its destination at the regular time, and was received by the person to whom it was addressed.” It gives the benefit of the doubt to the sender, based on the reliability of the U.S. Postal Service.

Well, it’s 2014, and at least one federal court of appeals is no longer enamored with the reliability of the U.S. Postal Service. In Lupyan v. Corinthian Colleges, Inc. (3d Cir. 8/5/15) [pdf], the 3rd Circuit Court of Appeals (which covers Pennsylvania, New Jersey, and Delaware), rejected the mailbox rule and ruled that its presumption does not apply when an employer sends FMLA forms via regular snail mail, and the employee, without any other support, denies that he or she received the forms in the mail.

Here are the facts. Lisa Lupyan, an instructor at Corinthian Colleges, took a personal leave of absence for depression. While out, she sent the school a completed FMLA medial certification supporting her leave. As a result, the employer converted the leave from “personal” leave to “FMLA” leave, and mailed, via regular U.S. mail, the appropriate FMLA forms designating her absences as such. When Lupyan attempted to return to work after 14 weeks, the employer told her that it had already terminated her because she had failed to return after her 12 weeks of FMLA had expired. 

The court concluded that because the employer could not prove that Lupyan had received the forms, she was entitled to a jury trial on her FMLA claims.

CCI provided no corroborating evidence that Lupyan received the Letter. The Letter was not sent by registered or certified mail, nor did CCI request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, there is no direct evidence of either receipt or non-receipt….  Accordinly, we hold that evidence sufficient to nullify the presumption of receipt under the mailbox rule may consist solely of the addressee’s positive denial of receipt, creating an issue of fact for the jury

More importantly, the court opined on the type of notice an employer should expect to provide in today’s modern age.

In this age of computerized communications and handheld devices, it is certainly not expecting too much to  require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as  important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender’s mailroom.

What does this mean to your business? Stop sending FMLA notices by regular U.S. mail. Instead, use a method that enables you to prove delivery.

  1. If you hand-deliver the notices to an employee, have the employee sign and date a receipt for the documents.
  2. If you mail, send via a method that permit you to track delivery — whether it’s certified mail with a green card to return, or an express delivery service with a tracking number.
  3. If you email, click the box on Outlook that will send a delivery notice upon receipt.

I was also planning to write a long dissertation on what this employer did wrong, how it failed to effectively communicate with the employee during and after her leave, and how a few simple phone calls could have avoided this entire mess. Then I read Jeff Nowak’s thoughts on his FMLA Insights blog, and decided I couldn’t say it any better:

I see such a lost opportunity here. Couldn’t this mess have been avoided had the College simply kept in regular contact with the employee while she was on leave? … If Lisa had any doubt whether or not she was on FMLA leave, that ambiguity would have been resolved in one quick phone call from the College a few weeks into her leave. Am I correct? Maintaining regular contact with your employees serves many good purposes: a) it helps you best administer the employee’s FMLA leave and the timing of their return; b) it is the ADA interactive process. Think about it — no sweat if this condition later is considered an ADA disability, since you have been communicating regularly with your employee. As such, you cannot be accused of any break down in the interactive process!; and c) it’s just good business practice to show that you care about your employee and that you want to do what you can to help them get back to work.  Don’t forget we’re in the human relations business!

This decision also is a reminder of what not to do when FMLA leave ends. What else did the College do wrong?  First, it insisted that the employee return without restrictions…. Second, the College did nothing to engage the employee as FMLA leave was expiring as to whether any accommodations were necessary to help the employee return to work.  Come on, employer friends!  This is ADA 101.  Talk to your employee well before expiration of FMLA leave to begin determining whether they might need some assistance to return to work.

Friday, August 8, 2014

WIRTW #331 (the “Rosie” edition)

yij0z0huAccording to a recent report jointly published by the Pew Research Center and the Imagining the Internet Center, almost half (48%) of technology experts believe that by 2025, robots or digital agents will substantially take over many jobs currently performed by humans. These same experts expressed concern that this displacement will lead to increases in income inequality, the unemployability of certain workers, and breakdowns in the social order.

So, readers, are we on the verge of Isaac Asimov’s I, Robot, or is this a pipe dream of sci-fi fanboys?

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, August 7, 2014

More on anticipatory pregnancy discrimination

Every so often, I write a post that rankles some feathers. Yesterday’s was one such post. Recall that yesterday I discussed a case in which a court concluded that an employer was justified in firing an employee whose pregnancy restrictions rendered her unfit to perform the duties of her job, but that the employer pulled the termination five weeks too early.

That post garnered myriad comments (many of them unkind). Several opined that the case was one of clear pregnancy discrimination. One questioned why the FMLA did not protect this employee. And another called me inhuman, suggested I lack a moral compass, and questioned how I sleep at night.

Given all of the questions raised, I thought it best to follow up with some answers.

1. Is this case the rule or an exception?

This case is the exception. The Pregnancy Discrimination Act, on its face, does not mandate reasonable accommodations for pregnant employees. It merely requires that employers treat pregnant workers no worse than non-pregnant workers with similar medical conditions. So, to determine whether you must accommodate a pregnant employee’s accommodation request, you must ask yourself in what other circumstances have you made accommodations for other employees. As we know, since Congress amended the ADA in 2009, that law’s definition of a “disability” is so broad as to cover most physical and mental impairments as “disabilities.” We also know that the ADA requires employers to offer reasonable accommodations to disabled workers to enable them to perform the essential functions of their jobs. Thus, if an employer has ever offered an ADA-accommodation to another employee, it will likely have to offer to same to a pregnant employee.

In this case, this employer had no examples of ever accommodating a short-term medical issue. Maybe the right questions weren’t asked in discovery to develop these facts. It’s hard to say. But, given the breadth of the definition of “disability” under the ADA, and the affirmative obligation to accommodate such disabilities, the number of employers that have never accommodated an employee will be slim. If this number is slim, so too will be the number of employers who don’t have to offer accommodations to pregnant employees, who must be treated no worse than anyone with a similarly disabling condition. In other words, I think this employer got lucky. But, assuming as true the fact it had no comparable non-pregnant employees, than this employer did nothing legally wrong (except terminate the employee five weeks too early). Thus, based on the specific facts of this case, I believe it is a correct interpretation of Title VII.

2. Why didn’t the FMLA protect this employee?

To be eligible for FMLA leave, an employee must have been employed for at least 12 months prior to the request for leave. In this case, the started working in September 2011, and made her request for time off beginning in June 2012. Thus, as she had been employed for less than 12 months, she was not eligible for FMLA leave.

3. How do you sleep at night (you #%*&^!)?

I sleep just fine, unless I have too much coffee after 8 pm or the dog is snoring.

Nevertheless, firing an employee under these circumstances is risky. You need to make sure:
  1. The employee is not FMLA-eligible.
  2. You have never accommodated any non-pregnant employees with time off, modified work assignments, or other accommodations to account for similar work restrictions. Otherwise, you would be treating this pregnant employee less favorably than comparable non-pregnant employees, which would constitute pregnancy discrimination under Title VII.
  3. If there is ever a time to call you employment lawyer before firing an employee, the circumstances of this case would be that time.

Wednesday, August 6, 2014

Beware the “anticipatory pregnancy” claim

In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.

Araceli Cadenas worked as a certified nursing assistant at a nursing and rehabilitation facility. Her position required her to pull, push, or lift at least 20 pounds. At her 15th week of pregnancy, Cadenas presented her employer a note from her doctor stating that once she reached the 20th week of pregnancy, she would no longer be able to lift more than 20 pounds. Faced with an employee who soon would be unable to perform the essential functions of her job, the company fired her.

First, the court concluded that that Butterfield had no duty to accommodate Cadenas’s pregnancy-related restrictions.
Meadowbrook was not required to accommodate Cadenas’ physical restrictions—if it would not have accommodated a non-pregnant employee’s similar restrictions—or give her any special treatment, such as light duty, if it would not have afforded that option to a non-pregnant employee. Here, there no evidence that Meadowbrook applied its light duty policy inconsistently to pregnant and non-pregnant employees. Cadenas submits no competent evidence to contradict the fact that Meadowbrook denied both pregnant and non-pregnant employees an accommodation of light duty work unless they had suffered a work-related injury. This neutral policy is not evidence of discrimination.
Thus, without any duty to accommodate, Meadowbrook was entitled to fire Cadenas at her 20th week of pregnancy, because, at that time, she could not perform the basic functions of the job.

The court then turned to the timing of the termination. Was Butterfield justified in firing Cadenas at week 15, even though her restrictions did not take affect until week 20. On this issue, Cadenas’s pregnancy discrimination claim faired much better.
In this case, Meadowbrook never suggested, or provided evidence, that there was any business reason not to let Cadenas work during the five weeks remaining before her restrictions went into effect.… Without any physical restrictions applicable between weeks 15 and 20 of Cadenas’ pregnancy, Meadowbrook has pointed to no non-discriminatory reason for terminating Cadenas effective immediately.… On these facts, a reasonable jury could conclude Meadowbrook terminated Cadenas because of her pregnancy, not because she was subject to any present restrictions.
Thus, Cadenas can take her claim to a jury, but her economic damages are limited to five weeks back pay.

What can we learn from this case?

  1. It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
  2. If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.

[Hat tip: Judy Greenwald at Business Insurance]

Tuesday, August 5, 2014

LinkedIn’s $6M FLSA settlement provides a good lesson to employers (updated)

LinkedIn will pay nearly $6 million in back pay and liquidated damages to 359 current and former employees following a Department of Labor investigation, reports the DOL.

The employees, reports Business Insider, are commissioned inside salespeople. Typically, inside salespeople are not exempt under the FLSA, and must be paid overtime for all hours worked over 40. If an employee is paid a straight commission, you would, on a weekly basis, divide the commissions paid that week by the total numbers of hours worked to arrive at the hourly rate for that week. You would then multiply that hourly rate by 1.5 to obtain the overtime rate for that week, and pay the 0.5 premium rate on top of the commissions for any hours worked in excess of 40 for that week. LinkedIn says that the violation “was a function of not having the right tools in place for some employees and their managers to track hours properly.” Likely, it had mis-assumed that its inside salespeople were exempt.

This story offers businesses two important lessons:
  1. Do not assume that you need not pay overtime to employees who are paid other than hourly. The method of pay is not the only factor that determines whether an employee is exempt. Instead, you must undertake a fact-specific analysis for each employee’s job duties to determine if it falls under one of the FLSA’s narrow exceptions. Making assumptions without taking the time to do the analysis will result in costly wage-and-hour mistakes.
  2. If the DOL comes knocking, cooperate. Cooperation helps demonstrate that any errors are sins of omission, not of commission. Ignorance may not excuse FLSA violations, but it will definitely put you in a better light with the DOL than will chicanery. And, if the error is cut and dry, pay. You gain nothing from digging in your heels to fight a clear wage-and-hour mistake, other than incurring a gaggle of legal fees. I’m not saying you should go this alone with legal counsel and guidance, but the lawyer should be guiding you to a resolution, not a costly battle.